[2012] KEHC 667 (KLR)

REPUBLIC OF KENYA

High Court at Kitale

Criminal Appeal 25 of 2011 [if gte mso 9]><xml>

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RAJAB EKWAM :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT.

VERSUS

REPUBLIC ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT.

(Being an appeal from the original conviction and sentence of R.M. Washika – SRM in Criminal case No. 814 of 2010 delivered on 10th March, 2011 at Kapenguria)

J U D G M E N T.

This appeal arises from the decision and judgment of the Resident Magistrate at Kapenguria in Criminal Case No. 814 of 2010, in which the appellant, Rajab Ekwam, was convicted and sentenced to five (5) years imprisonment for stealing from person contrary to section 279 (a) of the penal code.

It was alleged that on the 12th September, 2010 at Makutano Township in West Pokot County, jointly with another not before court, the appellant stole a mobile phone make Nokia valued at Ksh. 8,500/=, the property of Samuel Rangi, from the said Samuel Rangi. The appellant pleaded not guilty to the charge but was convicted after trial. He was then sentenced accordingly.

Being dissatisfied with the conviction and sentence, the appellant preferred the present appeal on the basis of the grounds of appeal dated 11th March, 2011. he represented himself at the hearing of the appeal and relied on his written submissions.

The learned prosecution counsel, Mr. Chelashow, appeared for the respondent and conceded the appeal on the basis that there was doubt with regard to the complainant's ownership of the mobile phone.

The duty of this court is to re-consider the evidence and draw its own conclusions bearing in mind that the trial court had the advantage of seeing and hearing all the witness.

Briefly, the prosecution case was that on the material date, the complainant, Samuel Rangi (PW1), a landlord at Makutano was approached by the appellant for a house. At that time, the complainant had kept his mobile phone in his coat but it was allegedly taken away by the appellant who did not return it as promised. The complainant reported the matter to the police. The appellant was later arrested and charged but the mobile phone valued at Ksh. 8,500/= was never recovered.

John Kupipir (PW2),a resident of Makutano was alerted by the complainant that the appellant had stolen the complainant's mobile phone. Later, the complainant spotted the appellant and called John who in turn alerted the police.

P.C. Walter Otieno Ojwang (PW3), of Kapenguria police station investigated the case and preferred the present charge against the appellant.

In his defence, the appellant said that he was a clothes vendor and that he was not the person who stole the mobile phone neither was he at the scene of the offence.

Having considered the aforegoing evidence in relation to the submissions by the appellant and the concession of the appeal by the respondent, this court's opinion is that although the stolen mobile phone was not recovered, there was sufficient and credible evidence from the complainant. (PW1) showing that he indeed lost his mobile phone at the hands of the appellant whom he had previously known. Indeed, the appellant may have been allowed by the complainant to go with the phone on condition that he returns it on the same day. However, the appellant went away with the phone never to be seen again until such time that he was traced and arrested. Clearly, the failure of the appellant to return the phone to its rightful owner as promised was a manifestation of the intention to permanently deprive the complainant of the phone. Indeed, the complainant was permanently deprived of his phone since it was never recovered from the appellant at the time of his arrest.

The defence raised by the appellant was dissaproved and discredited by the complainant's evidence which showed that the appellant was at the scene of the offence when it occurred and was in fact, the culprit. The appellants conviction by the learned trial magistrate is therefore sustainable.

With regard to the sentence, section 279 (a) of the penal code provides for a fourteen years imprisonment. The appellant was handed over a term of imprisonment for five years. The sentence was therefore lawful and proper for a person credited with seven (7) previous convictions, six of which were relevant.

Although the respondent conceded the appeal, it is the view of this court that the appeal lacks merit. It is therefore dismissed in its entirety.

[Delivered and signed this 13th day of November, 2012. ]

J.R. KARANJA.

JUDGE.