[2018] KEHC 303 (KLR)
The court found that the prosecution had proved the charge of stealing a motor vehicle against the appellant beyond reasonable doubt, as he was tracked to the location where the stolen motorcycle was hidden and his co-accused admitted the offence. The appellant's claim of being framed was unsupported by evidence....
Source-derived case information.
- Citation
- [2018] KEHC 303 (KLR)
- Parties
- Appellant: Peter Wanjohi Wanjiru; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garsen
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 27 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction upheld, sentence deemed served, appellant released
- Legal Topics
- Stealing Motor Vehicle, Sentencing Principles, Concurrent Sentences, Standard of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Wanjohi Wanjiru
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction of the appellant for stealing a motor vehicle was supported by the evidence.
- 2 Whether the sentence imposed took into account the appellant's existing sentence in another criminal case.
- 3 Whether the period already served by the appellant was sufficient.
Ratio Decidendi
The court found that the prosecution had proved the charge of stealing a motor vehicle against the appellant beyond reasonable doubt, as he was tracked to the location where the stolen motorcycle was hidden and his co-accused admitted the offence. The appellant's claim of being framed was unsupported by evidence. However, the court noted that the sentencing magistrate did not indicate whether the sentence in this case was to run concurrently with the appellant's earlier sentence in criminal case No. 367/2013. Given the time already served, the court held that the period was sufficient and ordered the appellant's immediate release unless otherwise lawfully held.
Court Disposition
conviction upheld, sentence deemed served, appellant released
Orders
- The conviction is upheld.
- The period already served is deemed sufficient.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT GARSEN
CRIMINAL APPEAL NO 27 OF 2016
PETER WANJOHI ……………………..……………APPELLANT
VERSUS
REPUBLIC……………………………………….…RESPONDENT
(Being an appeal from the judgment and sentencing of Hon. J.K Ndengeri, Resident Magistrate in Lamu Criminal Case No. 96 of 2014 delivered on 19/11/2014)
JUDGMENT
1. The appellant Peter Wanjohi Wanjiru was the 2nd accused in Lamu criminal case No. 96 of 2014. In count I, he was charged along with surprise Sikudhani Kazungu (1st accused) with the offence of stealing a Motor vehicle contrary to section 278A of the Penal Code. The particulars of the offence were that; on the 8th March 2014 at around 4. 00am at Kabaoni trading centre of Mpeketoni in Lamu West District within Lamu County, jointly with another not before court stole a motor cycle registration number MD 625K F5781G 81909595 and Engine No. AF 5G 81909595 valued at Kshs. 68,000/= the property of Samson Fikir Bayo.
2. The 1st accused faced a second charge of escaping from lawful custody contrary to section 123 as read with section 36 of the Penal Code. He pleaded guilty to both counts and was convicted. Being a minor he was committed to Shimo la Tewa Borstal institution for 3 years.
3. At the conclusion of the trial the appellant was convicted and sentenced to serve 3 ½ years imprisonment.
4. I have reviewed the evidence tendered in the lower court with respect to the present appeal. I have no doubt in my mind that the charge against the appellant was proved to the required standard. The prosecution tracked him to the bush where he, together with the 1st accused, had hidden the motor cycle. His co-accused admitted the offence and was convicted on his own guilty plea.
5. The appellant has stated in his submissions that the owner of the motorcycle framed him because of a grudge. His submission however is not supported by any evidence and does not in any way cast doubt on the strong prosecution evidence. My finding is that the conviction was safe and the sentence appropriate in the circumstances.
6. In the course of this appeal an issue arose over the sentence being served by the appellant There is nothing in the sentence to show whether the court took into account the fact that the appellant was already serving sentence in criminal case No. 367/2013. The court did not indicate that the present sentence would run subsequent thereto. The prosecutor had informed the court that the appellant had been convicted in criminal case No. 367/2013 while the appellant told the court that he was serving a sentence which he would complete in 2016 He also prayed for leniency stating that he did not have a father.
7. The criminal file No. 367/2013 was not availed to the court during this appeal. However, prosecution counsel informed the court that from records held in prison, the appellant was sentenced to 3 years on 10/10/2014 in the offence of breaking into a building while in criminal case No. 96/2014 which is the subject of the present appeal, he was sentenced on 26/11/2014 to serve a 3 ½ year period.
8. Without remission the appellant must have completed his 1st sentence in October, 2016 and started on the 2nd sentence which he has now served 2 years. While I uphold the conviction I consider the period served sufficient.
9. The appellant is set at liberty forthwith unless otherwise lawfully held.
Orders according
Judgment delivered dated and Signed at Garsen on 19th day of November, 2018.
R.LAGAT KORIR
JUDGE
In the presence of
................................................Court Assistant
................................................For Appellant
................................................For the Respondent