[2010] KEHC 3662 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA Criminal Appeal 19 of 2008

(Appeal arising from Original WBY Cr. No.920 of 2007)

PETER NYONGESA SAWENJA........................................APPELLANT

-VRS-

REPUBLIC..........................................................................RESPONDENT

JUDGMENT

The Appellant Peter Nyongesa Sawenja was convicted by Webuye Senior Resident Magistrate with two counts of stealing stock contrary to section 278 of the Penal Code and sentenced to serve five (5) years imprisonment on each count. His appeal is against conviction and sentence.

The two grounds of appeal are that the prosecution did not produce any exhibit in court and that the witnesses did not mention the Appellant by his full names. He faults the court for convicting him despite the wanting evidence.

The state vehemently opposed the appeal. The state counsel Mrs Leting submitted that the case was proved beyond any reasonable doubt. PW3 and PW4 saw the Appellant and his accomplice driving away the bulls. They identified one of them as belonging to the complainant. The Appellant on being asked where he was taking them said was heading to Kimilili Market.

The prosecution in this case called six (6) witnesses. PW1 was the complainant in count I. He said he retired to bed and left his bull in the cattle boma on 20/6/2007. When he woke up in the morning, he found the bull missing. As he searched for it, he met PW3 who told him that he had met the Appellant and one Emmanuel Wechilonga driving away two bulls. He further said that he had identified one of the bulls as belonging to George, the complainant in count II. The matter was reported to police and the two suspects arrested.

PW2’s bull was also stolen at night as he slept on the 20th June, 2007. He went to police and found the Appellants under arrest. PW3 confirmed that he had identified one of the bulls as that of PW2, George Chabai having borrowed and used the bull to plough his land earlier. PW3 knew the Appellant as a cattle dealer in the area. PW3 said he talked to the Appellant who told him that he was taking the bulls to Kimilili Market.

The evidence of PW3 was direct in that he saw the Appellant and his accomplice driving the two bulls. One of the bulls was known to him. He had used it for ploughing having hired it from the owner PW2. The two men were arrested later in the day after having sold the bulls. The bulls were not recovered and as such the prosecution could not have produced them in evidence. The Appellant was known to PW3 and there was no likelihood of mistaken identity. PW3 saw the two suspects early in the morning. It appears PW3 belied what the Appellant told him because he did not bother about the matter at that time. It was not until mid-day when he met PW1 looking for his bull and he informed him of what he had seen earlier in the day.

PW4 also saw the Appellant and his accomplice driving two bulls towards Chesamis. Emmanuel Wechilonga the 1st accused in the lower court was the uncle to PW4. PW4 asked his uncle where he and the Appellant were taking the bulls. He answered him that they were taking them to Kimilili Market and that they had bought them at Maliki.

PW5 met with the Appellant and Emmanuel around 6. 30 a.m driving the two bulls away. PW5 knew the Appellant well by his two names Peter Sawenja. He talked to the Appellant who told him he was going to Kimilili. He did not know Emmanuel. He heard later in the day that the bulls had been stolen from Maliki area.

In his defence the appellant only told the court of how he was arrested and taken to Kimilili Police Station where he was tortured in order to admit the charge.

The magistrate did not believe the defence of the Appellant. After considering it, in light of the prosecutions evidence, he disregarded it.

I find that the evidence of PW3, PW4 and PW5 was so overwhelming against the Appellant. The three witnesses saw the appellant driving away the bulls towards Kimilili which was a market day at different times between 5. 40 a.m to 6. 30 a.m. Each of the witnesses talked to both suspects or to one of them asking them where they were taking the bulls. Each received an answer to their questions. None of these witnesses had known that the bulls were stolen property until later in the day. PW3 identified the bull of PW2 because he had used it to plough. There was no possibility of mistaken identity in regard to the Appellant by the witnesses. The Appellant was known to PW3 and PW5.

I find that the case against the Appellant was proved beyond any reasonable doubt. He was rightfully convicted of the offence since all the ingredients had been proved.

The maximum sentence under section 278 is fourteen (14) years imprisonment. The sentence of five (5) years imprisonment was reasonable in the circumstances. It was neither harsh nor excessive.

I hereby dismiss the appeal for lack of merit. The conviction and sentence are hereby upheld.

F. N. MUCHEMI

JUDGE

Dated Delivered and Signed at Bungoma this 1st day of March, 2010.

In the presence of the Appellant and the state counsel Mrs Leting.