[2018] KEHC 739 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MARSABIT

CRIMINAL APPEAL NO. 9 OF 2018

ROCHE DEJENE.................................APPELLANT

VERSUS

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

(Being an appeal from the judgment of Hon. M.S. KIMANI(SRM) delivered on 21. 12. 2017 in Moyale Criminal Case No.271 of 2017)

JUDGMENT

The appellant was charged with the offence of theft of motorcycle Contrary to Section 278 (A) of Penal Code. The particulars of the offence are that the appellant on the 28th day of June 2017 at Manyatta area in Moyale subcounty within Marsabit County stole one motorcycle registration number KMED 188T Make Bajaj boxer 150CC worth Kshs. 111,000 the property of Hussein Nur Siraj. The trial court convicted the appellant and sentenced him to serve 4 years imprisonment. The grounds of appeal are that: -

1) The appellant was made to undergo the trial when he was not conversant with the court processes. There was language barrier during the hearing.

2) The trial suffered from some procedural irregularities. No exhibit was produced to prove the case.

3) The appellant was not supplied with the witness statements which contravenes Article 50 (2) (J) of the Constitution.

4) The appellant’s was kept in police custody for 4 days which is more than 24 hours and contrary to section 49 (1) of the Constitution.

5) The appellant’s defence was rejected without cogent reason.

6) The trial magistrate failed to warn himself of the danger of relying on the evidence of a single witness.

The appellant submit that there was a problem of language and that is why he failed to challenge the prosecution evidence. No exhibit was produced connecting the appellant with the offence. The investigation officer never carried any investigations to prove the case to the required standards. The trial was not fair. The appellant maintains that he was not supplied with witness statements and was kept in custody for more than 24 hours thereby violating his constitutional rights. The appellant submit that he did not commit the offence and his defence was not considered. It is clear from the proceedings that there was grudge involved. The prosecution did not prove its case beyond reasonable doubt. The appellant is illiterate. He only paid deposit to his landlord. It was 3 months deposit. The ignition key for the motorcycle was not produced by him or produced in court.

He doesn’t know the complainant.

Mr. Chirchir, prosecution counsel, opposed the appeal. Counsel submit that the appellant is conversant with both Borana and Burji languages. There was an interpreter at all times and the appellant fully participated in the proceedings. Counsel submit that at all times the appellant was ready to proceed and cross-examined witnesses. He was arrested on 30th of June 2017 and was availed in court on 3rd of July 2017. 1st and 2nd July 2017 was a weekend and the earliest day he could be arraigned in court was 3rd of July 2017. Even if that right was violated it cannot lead to automatic acquittal. The appellant has redress under Article 23 of the constitution.

Mr. chirchir submit that the appellant was entrusted with the motorcycle by PW1. He disappeared for some time and alleged that the motorcycle had been stolen. The appellant paid his landlord three months rent and asked him if he could pay him more money. The appellant was drunk when he appeared without a motorcycle. The appellant only had one ignition key for the motorcycle instead of the two keys which had been given to him. It is the appellant who can explain where the motorcycle is.

This is a first appeal and the court has to evaluate the evidence afresh and make its own conclusion. PW1 HUSSEIN SIRAJI was the complainant. On 15th June 2017 he went to purchase motorcycle registration no. KMED 188T. He was in the company of the appellant and PW3. He bought the motorcycle for Kshs. 111,000. It was a maroon boxer 150cc. He produced receipt number 16197 dated 15th June 2017. He knew the appellant as he used to operate his old motorcycle. He gave the motorcycle to the appellant who was to remit Kshs 400 daily. The appellant carried on the business but on 24th of June 2017 failed to remit the money. He also did not remit on 25th, 26th and 27th June 2017. PW1 became concerned and on 28th June 2017 at about 8. 00pm he called the appellant on phone but he did not pick his call. On 29th of June 2017 at 6. 00am the appellant went to his house and told him that the motorcycle had been stolen. The appellant then went to Ethiopia. He traced the appellant and they met with pw2, the area assistant chief. The matter was reported at the nearby AP camp at Manyatta ansd the appellant was arrested. The motorcycle was not recovered.

PW2 MOHAMMED NOOR BAKALA IBRAHIM is the assistant chief of Manyatta Burji sub location. On 24th of April 2017 the appellant rented one room from his rental houses. He had known the appellant as he was previously living in another rented house in the neighborhood. He used to see the appellant ride the stolen motorcycle which was brand new. On 28th of June 2017 the appellant went to his house at bout 7. 30pm and paid him 3months rent in advance in Ethiopia Birr. The appellant informed him that he was in a position to pay him more money if he wanted since he was in a position to do so. PW2 had seen the appellant with the motorcycle at about 2. 00pm the same day. The appellant left and returned about 9. 00pm while drunk. The appellant told him that the motorcycle had been stolen. It is the evidence of PW2 that the appellant is an Ethiopian and the criminal charges have nothing to do with his stay in Kenya. He denied that he had asked the appellant to lend him Kshs. 100,000.

PW3 ABDIHASSAN MOHAMMED is a bodaboda operator. On 15th June 2017 at about 10. 30am he was with PW1 and the appellant. Together with the appellant they were to assist PW1 to buy a good motorcycle. PW1 bought a marron motorcycle registration no. KMED 188T. The motorcycle was given to the appellant. He used to pick passengers at the same point with the appellant. The appellant later claimed that the motor cycle had been stolen. PW4 PC DENNIS GITHINJI was stationed at Moyale Police station. He investigated the case. The case was reported at the station on 29th of June 2017 by PW1. He recorded witness statements and obtained the Original receipts and logbook for the motorcycle. He later charged the appellant with the offence.

The appellant tendered sworn defence. He testified that he is a casual laborer. He told the court that the charge was founded on false allegations. He was framed. He had a grudge with PW2. He has never rode a motorcycle. He does not know the complainant or PW3. PW2 intended to increase the rent and he refused to be overcharged.

The issue for determination is whether the prosecution proved its case beyond reasonable doubt. The prosecution evidence is to the effect that PW1 purchased a motorcycle and entrusted it to the appellant to operate. The original receipt for the purchase dated 15th June 2017 was produced. The logbook for the motorcycle registration Number KMED 188T Bajaj boxer was also produced. PW3 testified that he was present when the motorcycle was purchased. PW2 saw the appellant operating the motorcycle. According to PW1 the appellant used to operate his old motorcycle. The appellant maintains that he does not know PW1 or PW3. According to the appellant it was PW2 who wanted to increase the rent and ganged up with the complainant to frame him.

Given the evidence on record I do find that it is true that PW1 purchased the motor cycle on 15th of June 2017. It is also established by the prosecution evidence that the motorcycle was given to the appellant to operate. PW4 testified that he personally interrogated the appellant who could not account for the where about of the motorcycle. The appellant casually claimed that the motorcycle had been stolen from where he had parked it. It is clear to me that the appellant’s defence is an afterthought. He told PW2 and PW1 that the motorcycle had been stolen. He changed his testimony in court and alleged that he did not know PW1 or PW3. It is PW1 who reported the case to the police leading to the arrest of the appellant. PW1 had nothing to do with the rental arrangement between the appellant and PW2. I do find that the prosecution proved that the appellant was entrusted with the motorcycle and he could not account for it.

The appellant contends in his grounds of appeal that the trial was not fair and that there was language barrier. The record of the trial court indicate that the appellant stated that he understood Borana. During the hearing of the appellant’s bond application the appellant indicated that he is from Ethiopia and understands Burji. When the matter was heard on 25th of July 2017 a Burji translator/interpreter Hido Ado was present in court and he did the translation. The appellant participated in the proceedings and cross examined PW1 and PW2. The matter was once again heard on 2nd October 2017 and another interpreter by the name Kadiro Oche did the translation. The appellant cross examined PW3 and PW4. The appellant gave his defence in Borana and the same was interpreted to the court by the court assistant. It is therefore clear that there was no language barrier and the trial was fair. Translation was done in Borana and Burji languages which the appellant understands. There was no language barrier.

The appellant also contend that his constitutional rights were violated. Throughout the hearing the appellant stated that he was illiterate. He claims that he was not supplied with witness statements. The record of the trial court show that when the plea was taken on 3rd of July 2017 the court gave an order that the appellant be supplied with witness statements. The appellant never complained that he was not supplied with witness statements. The case was reported at the Moyale police station on 29th of June 2017 which was a Thursday. The charge sheet indicate that the appellant was arrested on 30th of June 2017 which was a Friday. He was arraigned in court on Monday 3rd July 2017. Article 49 (1) (f) (ii) of the Constitution states as follows: -

If the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day.

Therefore, it is clear from the sequence of events that there was no violation of the appellant’s constitutional rights. He was arrested on a Friday and arraigned in court the following Monday. This is in line with Article 49 of the Constitution.

The other grounds of appeal are that the trial court failed to warn itself on the dangers of relying on a single witness. The evidence of PW1, PW2 and PW3 is direct evidence against the appellant. They all saw the appellant operating the motorcycle. The prosecution evidence is not that of a single witness. The appellant’s defence was an afterthought and was properly rejected by the trial court.

Section 278 (A) of Penal Code provides for a maximum of seven years imprisonment for the theft of a motor vehicle within the meaning of the Traffic Act. The trial court sentenced the appellant to serve four years imprisonment which is within the permitted sentence. The appellant was allowed to mitigate but reiterated his lies that PW2 had a grudge with him. When the plea was taken, the prosecution informed the court that the appellant was not to be granted bond because he is an Ethiopian National. The appellant informed the court that he is a Kenyan and his national identity card was at home. He did not know the identity card number because he is illiterate. The prosecution called PW2 to confirm that the appellant is not a Kenyan. The appellant then agreed that he is an Ethiopian and he only claimed to be a Kenyan to avoid being jailed. It is clear to me that the appellant is not a honest person. He does not deserve any leniency. He was entrusted with a new motorcycle worth Kshs. 111,000 and sold the motorcycle within 10 days of its purchase. This is a lose to the complainant. I do find that there is no need to interfere with the sentence.

The upshot is that the appeal lacks merit and is hereby disallowed. The appellant to be repatriated to Ethiopia after serving his sentence.

Dated, Signed and Delivered at Marsabit this 26th day of November 2018

S. CHITEMBWE

JUDGE