https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10615

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU COUNTY COURT NAME: KISUMU HIGH COURT CASE NUMBER: HCCRA/E040/2025 RONALD ODHIAMBO OBOTE VS THE REPUBLIC JUDGMENT **(*Being an Appeal from the decision of the Principal Magistrate at Winam SPM Court-Hon. Oanda dated 14th March, 2025, in Criminal Case No. E289 of 2024: Republic v. Ronald Odhiambo Obote Alias Ronny Alias Boss*** # BRIEF FACTS OF THE CASE/ INTRODUCTION * 1. This is an Appeal from the Judgment of Honorable R.M. Oanda, Senior Principal Magistrate Winam that was delivered on 14th March 2025 in Winam No. E289 of 2024: Republic vs. Ronald Odhiambo Obote. 2. The Appellant herein was charged with Burglary contrary to Section 304(2) and Stealing contrary to section 279(b) of the Penal Code. The particulars of the charge were that on 24th day of February 2022, at around 1835hrs at Lolwe Estate, in Kisumu Central Sub -County within Kisumu County broke and entered the building used as a dwelling house by Joan Akinyi Keno with intent to steal therein and did steal from therein a TV set make TL UK, a coffee maker make Sayona, Mengas 13kg gas cylinder, K-gas 4Kg gas cylinder, a car key of Motor vehicle make Voxy Reg. No. KDE 542C, three moving headlights and a fun make Airwave all valued at Kshs. 335,100/= and cash money Kshs. 600, 000/=, the property of the said Joan Akinyi Keno. * 1. In the Alternative charge, the accused was charged with handling stolen goods contrary to section 322 (1) (2) of the Penal Code. The particulars being that on the 7th day of April 2023 at Kanyametha area, Kisumu West Sub-County, otherwise in the course of stealing, dishonestly retained a wrist watch valued at Kshs. 4500/=, a TV Guard valued at Kshs. 2500/=, an extension valued at Kshs. 1,500/=, the property of Joan Akinyi, knowing or having reason to believe them to be stolen property. 2. The accused entered a plea of not guilty for both counts. The Prosecution called 5 witnesses and the defense had no witnesses to call. 3. After the trial court carefully considered the evidence on record and carefully considered the submissions from both parties, it pronounced as follows, *“I have carefully analyzed evidence on record, and am satisfied that accused was at the complainant’s premises on the fateful day and time. He was not seen and/or captured breaking into the complainant’s dwelling house but was found of possession of some of the items recently stolen from the complainant. The principle of recent possession thus applies. In the absence of any credible explanation from the accused person in regard to his presence and possession of the complainant’s possession, I find that he was unlawfully possession of stolen properties. The prosecution has, therefore established beyond reasonable doubt that the accused herein unlawfully entered the complainant’s dwelling premises and stole the complainant’s properties. In view of the foregoing, the court finds the accused guilty as charged and is convicted accordingly under section 215 CPC.* 4. Upon conviction, the trial court considered the favourable Probation Officer’s Report and the mitigation that the Appellant had secured employment in Nairobi and intended to relocate. Taking those factors into account, together with the prevailing difficulty in obtaining employment, the court sentenced the Appellant to pay a fine of Kshs. 30,000/=, in default to serve one (1) year imprisonment. The court further directed that the cash bail deposited be utilized as payment of the fine and informed the Appellant of the right of appeal within 14 days. * 1. The Appellant, being dissatisfied with the outcome of the trial court, filed a Petition of Appeal. The Appellant raised the following grounds; 1. *The learned trial magistrate erred in law and fact in failing to determine that the Respondent failed to prove beyond reasonable doubt, that the appellant was indeed guilty of the offence of Burglary contrary to Section 304(2) and stealing contrary to section 279 (b) of the Penal Code as charged as to have occasioned a travesty of justice to the appellant.* 2. *That the learned trial magistrate erred in law failing to take into account the fact that the charge as framed was not completely supported by the evidence on record and therefore ended up convicting the appellant based on material and evidence that was not placed before him.* 3. *That the learned trial magistrate erred in law in failing to take into account the entire evidence, material and submissions placed before him by the appellant and wrongly convicted the appellant when there was absolutely no material or evidence to warrant the conviction considering the decree of proof the prosecution failed to discharge as by law required as to have occasioned a travesty of justice to the appellant.* 2. This is the first appellate court and as held in the matter of ***Okeno v R (1972) EA 32, the Court of Appeal for East Africa*** laid down that the duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify. # SUBMISSIONS BY BOTH PARTIES **Appellants Submissions** 1. The Appellant argued that the prosecution failed to prove its case beyond reasonable doubt because the evidence presented did not support the particulars of the charge. It was submitted that whereas the charge sheet alleged that the offence occurred on **24th February 2022,** all the prosecution witnesses testified to events that allegedly occurred on **24th February 2023**, thereby creating a material inconsistency between the charge and the evidence adduced. Consequently, it was contended that the prosecution effectively prosecuted a different offence from that which the Appellant had been called upon to answer. 1. The Appellant further submitted that the prosecution failed to produce as exhibits the items specified in the charge sheet. Instead, it produced different items insinuated to have been stolen from the complainant's residence in **Nairobi**, whereas the charge related to property allegedly stolen from the complainant's residence in **Lolwe Estate, Kisumu**. It was argued that this discrepancy rendered the prosecution's evidence incapable of supporting the charge. 1. The Appellant also contended that no witness placed him at the complainant's residence at the material time. It was submitted that the CCTV footage and photographs produced in evidence neither identified the Appellant nor demonstrated that they related to the alleged incident in Lolwe, Kisumu on **24th February 2022**. Accordingly, the evidence was said to be speculative and insufficient to establish the offences of burglary and stealing. 1. Further, the Appellant maintained that he had previously been in a personal relationship with the complainant, which ended after a disagreement over unpaid salary. He asserted that the complainant maliciously orchestrated the criminal charges against him out of spite. He stated that although he had visited the complainant's residence on several occasions during their relationship, because of having been employed by the complainant, his only visit was in **February 2023 and not February 2022, and it** was to demand salary arrears, after which he left peacefully without entering the house. 1. The Appellant additionally argued that there was no direct evidence linking him to the alleged breaking into the complainant's house on 24th February 2023, or the theft of the items in question. In the absence of any witness seeing him commit the offences or leave with the stolen property, it was submitted that serious doubt existed as to his guilt. 1. Further, the Appellant submitted that the trial court ought to have considered the complainant’s general demeanor together with the Appellant’s defence that he had been maliciously victimized following a falling out with the complainant. It was argued that the considerable delay between the alleged commission of the offence and the Appellant’s arraignment in court reinforced the idea that the complainant orchestrated to unfairly punish him for an offence he did not commit. 2. Consequently, the Appellant contended that the prosecution failed to prove its case beyond reasonable doubt and that it was fair that he be acquitted accordingly. 3. The Appellant contended that the trial court erred in convicting him on based on an offense he was not charged, and that the record was so week and completely incapable of forming the basis of convicting him. He therefore urged the appellate court to find merit in the appeal, set aside the conviction, and substitute it with an acquittal. **Respondent’s Submissions** 1. The Respondent submitted that the prosecution proved its case against the Appellant beyond reasonable doubt and that there were no inconsistencies in the prosecution’s case. It was further submitted that, as a first appellate court, the High Court was required to re-evaluate the entire evidence and arrive at its own independent conclusion, in line with ***Okeno v Republic [1972] EA 32.*** 2. The Respondent contended that the CCTV footage which was produced as PEX12 placed the Appellant at the complainant's premises. This was further fortified by the evidence of PW2 who was able to identify the black Chevrolet KCU 504S which the Appellant had hired on the material day. An agreement relating to the hired vehicle was also produced as evidence PEX4. The Respondent further submitted that the Appellant failed to explain, as required under section 111 of the Evidence Act, how the stolen items recovered by the police came to be found in his house. 1. It was argued that the prosecution's case was based on circumstantial evidence, and for circumstantial evidence to work, it must be inconsistent with the accused innocence. Reliance was placed on ***Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR,*** where the court affirmed that a conviction may properly be based on circumstantial evidence, provided it enables the court to infer guilt from proved facts. Such evidence can be as probative as direct evidence and, when it forms a complete and unbroken chain pointing to the accused's guilt, it is capable of proving the offence beyond reasonable doubt. The Respondent further cited ***R v Taylor***, ***Weaver and Donovan [1928] Cr. App. R. 21*** to emphasize that circumstantial evidence is often the best evidence because it proves facts through surrounding circumstances. 2. The Respondent further submitted that, although the CCTV footage did not capture the Appellant carrying the stolen items into the vehicle, it showed his vehicle parked near the gate, with the gate opening to allow entry and later showing the vehicle leaving the compound. Together with the recovery of the stolen items from the Appellant's house, this constituted sufficient circumstantial evidence linking him to the offence. 3. The Respondent maintained that the Appellant's defence was merely an afterthought and did not dislodge the prosecution's case. It was argued that the Appellant’s explanation regarding the wrist watch allegedly given to him by PW1, or PW1’s knowledge of the recovered items, was immaterial and failed to undermine the prosecution’s evidence. 4. On sentence, the Respondent submitted that the penalty imposed a fine of Kshs. 30,000/=, in default one year's imprisonment was lenient in light of section 304(2) of the Penal Code, which prescribes a maximum sentence of ten years' imprisonment, and urged the court to enhance the sentence. 5. The Respondent submitted that the appeal lacked merit and should be dismissed and that the conviction was safe and the sentence should be enhanced. # ISSUES FOR DETERMINATION 1. Whether the prosecution proved the offences of burglary contrary to section 304(2) and stealing contrary to section 279(b) of the Penal Code beyond reasonable doubt, thereby justifying the Appellant's conviction. 2. Whether the sentence imposed by the trial court was lawful, appropriate, or ought to be interfered with. # ANALYSIS ON THE ISSUES FOR DETERMINATION ## Issue 1: Whether the prosecution proved the offences of burglary contrary to section 304(2) and stealing contrary to section 279(b) of the Penal Code beyond reasonable doubt, thereby justifying the Appellant's conviction. 1. As the first appellate court, this court is under a duty to reconsider, re-evaluate and analyze the entire evidence on record and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was stated in **Okeno v Republic [1972]** EA 32. 1. The Appellant challenged both his conviction and the evidential basis upon which it was founded. He argued that the prosecution failed to prove the offences beyond reasonable doubt because there existed a material inconsistency between the charge sheet and the evidence adduced, particularly regarding the date of the alleged offence. He further contended that the exhibits produced did not correspond with the items specified in the charge sheet, that the CCTV footage did not identify him committing the offences, that no witness saw him break into the complainant's house or steal any property, and that the prosecution was motivated by malice arising from a previous employment relationship with the complainant. 2. The Respondent, on the other hand, maintained that the prosecution proved its case through a combination of circumstantial evidence and the doctrine of recent possession. It was submitted that the CCTV footage, together with the evidence relating to the vehicle hired by the Appellant, placed him at the complainant's premises on the material day, while several of the complainant's stolen items were subsequently recovered from the Appellant's residence. The Respondent argued that the Appellant failed to offer any satisfactory explanation for his possession of those items and that his defence did not displace the prosecution's evidence. 1. The Appellant was convicted of burglary contrary to section 304(2) of the Penal Code and stealing contrary to section 279(b) of the Penal Code. The prosecution therefore bore the burden of proving beyond reasonable doubt that there was an unlawful breaking and entry into the complainant's dwelling house with intent to commit a felony therein, and that the complainant's property was dishonestly taken without her consent with the intention of permanently depriving her of it. That burden remained throughout upon the prosecution. 2. The Appellant first complained that the charge sheet alleged that the offences occurred on 24th February 2022, whereas the prosecution witnesses referred to events occurring on 24th February 2023. It is settled law that not every variance between a charge sheet and the evidence adduced is fatal. In **Yongo v Republic [1983] KLR 319**, the Court of Appeal held that a discrepancy will only invalidate a conviction where it occasions prejudice or results in a failure of justice. Similarly, section 382 of the Criminal Procedure Code provides that no finding or sentence shall be reversed on account of an error or omission unless such error has occasioned a failure of justice. 1. Upon reviewing the record, I am not persuaded that the discrepancy regarding the year prejudiced the Appellant's defence. Indeed, the Appellant himself acknowledged that he visited the complainant's residence in February 2023 to demand alleged salary arrears. His defence therefore demonstrates that he understood the transaction giving rise to the charges and was able to respond to the prosecution's case. In the circumstances, the inconsistency regarding the year, though undesirable, did not occasion a miscarriage of justice. 2. The Appellant further argued that no witness saw him break into the complainant's house or remove any of the stolen items. However, a conviction may properly be founded on circumstantial evidence provided that such evidence forms a complete chain pointing irresistibly to the guilt of the accused and is incapable of explanation upon any other reasonable hypothesis. In **Sawe v Republic [2003] KLR 364,** the Court of Appeal held that the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. 1. In the present case, the prosecution relied on CCTV footage, evidence linking the Appellant to motor vehicle registration number KCU 504S which had allegedly been hired by him on the material day, and the subsequent recovery of some of the complainant's property from his residence. Although the CCTV footage did not capture the Appellant breaking into the complainant's house or physically carrying away the stolen items, the trial court considered it together with the other evidence adduced before concluding that the circumstances pointed to the Appellant's involvement in the offences. 2. A significant aspect of the prosecution's case was the recovery of some of the complainant's property from the Appellant's possession, leading the trial court to invoke the doctrine of recent possession. In **Malingi v Republic** **[1989] KLR 225,** the Court of Appeal held that where an accused person is found in possession of recently stolen property and offers no reasonable explanation for such possession, the court may infer that he is either the thief or a guilty receiver, provided the prosecution first establishes that the property belonged to the complainant, had recently been stolen and was found in the accused's possession. 1. The Appellant disputed that the recovered items corresponded with those listed in the charge sheet. However, the trial court was satisfied that some of the complainant's stolen property was positively identified and recovered from the Appellant's residence. The Appellant did not offer any satisfactory explanation as to how he came into possession of those items. Upon re-evaluating the record, I find no basis for interfering with that factual finding. 2. The Appellant also asserted that the prosecution was actuated by malice arising from his previous relationship and employment with the complainant. While that allegation formed part of his defence, it remained unsupported by any evidence demonstrating that the prosecution was fabricated or that the evidence relied upon by the trial court was unreliable. A strained relationship between a complainant and an accused person does not, without more, negate otherwise credible evidence establishing the commission of an offence. 1. Having independently reconsidered the entire evidence on record, I am satisfied that the conviction did not rest upon the CCTV footage alone. Rather, the trial court considered the CCTV footage alongside the evidence linking the Appellant to the hired motor vehicle, the recovery of some of the complainant's stolen property from his residence, and his failure to offer any satisfactory explanation for such possession. In my view, these circumstances formed a complete chain of evidence which was inconsistent with the Appellant's innocence and incapable of any other reasonable explanation than his participation in the offences. The circumstantial evidence therefore met the legal threshold stated in **Sawe v Republic [2003] KLR 364** and properly justified the application of the doctrine of recent possession. I therefore find that the prosecution proved the offences beyond reasonable doubt. ## Issue 2: Whether the sentence imposed by the trial court was lawful, appropriate or ought to be interfered with 1. The Appellant did not specifically challenge the legality or severity of the sentence imposed by the trial court. The Respondent nevertheless urged this court to enhance the sentence on the basis that the penalty imposed was lenient in light of the maximum sentence prescribed under section 304(2) of the Penal Code. 2. Sentencing is a matter falling within the discretion of the trial court. An appellate court will only interfere where it is demonstrated that the trial court acted upon wrong principles, considered irrelevant factors, failed to consider relevant factors, or imposed a sentence that is manifestly excessive or manifestly inadequate in the circumstances. 3. In the present case, the trial court expressly considered the favourable probation report, the Appellant's mitigation, and his employment circumstances before imposing a fine of Kshs. 30,000/=, in default one year's imprisonment. The sentence was therefore imposed after consideration of relevant mitigating factors and was within the discretion of the trial court. 4. Although the Respondent invited this court to enhance the sentence, enhancement cannot properly be undertaken without first affording the Appellant notice of that possibility and an opportunity to be heard. No such procedure was undertaken in the present appeal. Consequently, I find no proper basis for interfering with the sentence imposed by the trial court. # DISPOSITION 1. Upon a careful re-evaluation of the entire record of appeal, the evidence adduced before the trial court, the grounds of appeal, and the submissions of the parties, I find that the prosecution proved the offences of Burglary contrary to section 304(2) and Stealing contrary to section 279(b) of the Penal Code, beyond reasonable doubt. Although there was a discrepancy regarding the year stated in the charge sheet, that irregularity did not occasion a failure of justice or prejudice the Appellant in the conduct of his defence. I am further satisfied that the conviction was properly founded on the totality of the circumstantial evidence, including the doctrine of recent possession, which the Appellant failed to rebut by offering a satisfactory explanation for his possession of the complainant's property. 2. I further find that the sentence imposed by the trial court was lawful, proportionate and within the discretion of the trial court. There is no basis upon which this court can interfere with the sentence. Equally, while the Respondent invited this court to enhance the sentence, no enhancement can properly be undertaken in the absence of notice to the Appellant and an opportunity for him to be heard on that question. 3. Accordingly, 1. The Appeal against both Conviction and Sentence is devoid of merit and is hereby dismissed in its entirety. 2. The Conviction for the offences of Burglary contrary to section 304(2) and Stealing contrary to section 279(b) of the Penal Code is hereby upheld. 3. The Sentence imposed by the trial court is hereby affirmed. ## It is so ordered. SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ABDI M. HASSAN** Kisumu High Court High Court Criminal Date: 2026-07-17 12:48:23