[2018] KEHC 5726 (KLR)
The court found that the appellant was found in possession of a trouser that was positively identified as having been stolen from the complainant's premises during the burglary. The appellant failed to provide a credible explanation for his possession of the stolen property, and did not claim ownership of the...
Source-derived case information.
- Citation
- [2018] KEHC 5726 (KLR)
- Parties
- Appellant: John Chacha Marwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 35 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal against conviction dismissed; sentence reviewed to community service for remainder of term.
- Judges
- AC Mrima
- Legal Topics
- Burglary, Stealing, Evidence Identification, Sentencing Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Chacha Marwa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved beyond reasonable doubt that the appellant committed burglary and stealing.
- 2 Whether the identification of the stolen property linked the appellant to the offence.
- 3 Whether the sentence imposed was appropriate in the circumstances.
Ratio Decidendi
The court found that the appellant was found in possession of a trouser that was positively identified as having been stolen from the complainant's premises during the burglary. The appellant failed to provide a credible explanation for his possession of the stolen property, and did not claim ownership of the trouser he was wearing at the time of arrest. The court held that the doctrine of recent possession applied, and that the prosecution had proved its case beyond reasonable doubt. The conviction was upheld. However, considering the appellant had served most of his sentence and in the interest of decongesting prisons, the court substituted the remainder of the custodial sentence with a...
Court Disposition
Appeal against conviction dismissed; sentence reviewed to community service for remainder of term.
Orders
- The appeal against conviction is dismissed.
- The sentence of two years imprisonment is reviewed; the appellant is admitted to community service for the remainder of his term under supervision of the relevant officer in charge of Uriri Sub-County.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
CRIMINAL CASE NO. 35 OF 2017
REPUBLIC...................................................................................PROSECUTOR
-VERSUS-
JOHN CHACHA MARWA..................................................................ACCUSED
JUDGMENT
1. The Appellant herein, JOHN CHACHA MARWA was charged with the offence of Burglary contrary to Section 304 (2) and Stealing contrary to Section 279 (b) of the Penal Code.
The particulars were that ‘On the night of 28th January, 2016 at Uriri shopping centre Uriri Sub – County in Migori County within the Republic of Kenya jointly with others not before Court broke and entered the tailoring shop of JOHN OLUOCH ODERO with intent to steal and did steal from therein assorted clothes valued at Kshs. 18,600 the property of the said JOHN OLUOCH ODERO’.
2. On denying the charge a trial was held where four (4) witnesses testified. They were John Oluoch Odero who testified as PW1. He was a tailor and ran his business at Uriri Township and whose premises were broken into and assorted items stolen. PW2 was No. 232698 C. I. David Nyakundiwho was the OCS of Uriri Police Station. He had taken his trousers for repair to PW1 which was stolen when PW1’s premises was broken into. David Okoth Otieno was PW3. He was also a tailor who ran his business at Uriri Township just like PW1. His premises were also broken into in the same night with that of PW1. The Investigating Officer No. 67968 Corporal Fidelis Kisimbai from Uriri Police Station testified as PW4.
3. The undisputed facts were that PW1’s and PW3’s business premises at Uriri Township were broken into and assorted items stolen therefrom on 28/01/2016. They reported the matter to Uriri Police Station and on 10/02/2016 PW2 was called by his Counterpart from Awendo Police Station and informed of assorted suspected stolen properties which the appellant had been arrested with. PW2 confirmed from his station that there were reports of breaking and asked his counterpart to avail the suspect and the properties to Uriri Police Station. That was done.
4. On receipt of the goods and the suspect, PW2 was shocked to see the suspect (now appellant) wearing the stolen PWI’s trousers which PW2 had taken to PW1 for repairs and which was as well stolen alongside other clothes. PW2 confirmed the trouser by some buttons he had put at some strategic areas. PW1 was called and conformed that the trouser which the suspect wore was among the items stolen from his premises which had been brought by PW2 for repair. The appellant disowned the ownership of the trouser which he wore at the time of his arrest.
5. The appellant was then placed on his defence and gave unsworn testimony. He stated that he was travelling from Migori to Awendo in a vehicle which was stopped at a road blocked and when the passengers were told to confirm their luggage one of them ran away and the police told him to carry the luggage to the police car and headed to Uriri Police Station where PW2 stated that the trouser he wore looked like his.
6. The appellant was convicted vide a judgment that was delivered on 01/03/2017 on both limbs of the charge and sentenced to two (2) years imprisonment.
7. The appellant challenged the conviction and sentence after he had served one half of the sentence. His appeal was admitted with the leave of this court on 19/10/2017 but still delayed filing the appeal upto 04/12/2017. Be that as it may the appeal was heard and the appellant relied on his written submissions filed on 19/04/2018. He contended that it was not proved that he was the assailant.
8. I have carefully perused the record and I am satisfied that the appellant was convicted to the theft and burglary in issue. The trouser which he wore at the time of arrest belonged to PW2 and had been stolen from PW1’s premises during a break in. The appellant did not even contend ownership of the very trouser he wore. In fact the appellant is very lucky that he was not charged with a more serious offence of handling suspected stolen property. I therefore do not find any merit in his appeal against conviction.
9. On sentence, the term of two (2) years was reasonable in the circumstances. The appellant has by now served around three – quarters of the sentence. In the spirit of decongesting the prison facilities, I hereby admit the appellant to Community Service for the remainder of his term to be supervised by the relevant Officer in – charge of Uriri Sub-County. Save for the review of the sentence, the appeal is hereby dismissed.
Orders accordingly.
DELIVERED, DATEDand SIGNED at MIGORI this 28th day of June 2018.
A. C. MRIMA
JUDGE
Judgment delivered in open Court and in the presence of: -
John Chacha Marwa the Appellant person.
Miss Atieno, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Respondent.
Evelyne Nyauke – Court Assistant