[2011] KEHC 2054 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT

AT BUNGOMA

CRA NO.98 OF 2009

(Appeal arising from original BGM CM CR. NO.295/09)

SALIM BARASA WEKESA::::::::::::::::::::::::::::::::: APPELLANT

~VRS~

REPUBLIC::::::::::::::::::::::::::::::::: RESPONDENT

JUDGMENT

The Appellant Salim Barasa Wekesa was charged and convicted of stealing stock contrary to section 278 of the Penal Code and sentenced to serve five (5) years imprisonment. He appeals against both conviction and sentence.

The grounds are that the case was fabricated against the Appellant, that there was nothing to connect him with the theft and that the evidence was inadequate to sustain a conviction.

Mr. Okeyo for Mr. Ogoti for the state conceded to the appeal. He submitted that the village elder one Patrick who had the cow when PW1 went to Malakisi Police Station was not called as a witness. This created a gap in the prosecution’s case. PW1 later said he found the cow at police station. According to the state this was a contradiction in the prosecution’s case. The vigilante group member took the cow to the police post and did not arrest the Appellant. No explanation was given for that action by the village elder.

The facts of the case is that PW1 tied his cow in the shed outside his house and went to sleep. When he woke up on 5/02/2009, PW1 found the cow missing. Three days later, PW1 got a report from the brother of the Appellant that there was a cow found at Chwele Market and was being detained by one Patrick Tongolo who is a member of the vigilante group. PW1 went to Chwele and found Patrick there. Patrick informed PW1 that the Appellant was found with the cow though it was not known how he got it. The cow was taken to Malakisi Police Station where it was photographed and released to PW1. The accused was arrested later and charged with the offence.

PW2 gave evidence that on 6/2/2009 around 6. 00 p.m. he saw his cousin the Appellant come to their home with a cow. He tied it at the home of his maternal uncle. PW2 reported to the vigilant group member one Patrick Tongolo that he suspected the cow to be stolen and handed it over to the police. The complainant was informed about the recovery of the cow. He went to Chwele where he identified the cow as his property. Patrick (PW3) took the cow to the police station after he had asked the Appellant to produce proof that he had bought the cow as he alleged. The Appellant failed to prove ownership or explain possession of the cow. He disappeared from home and was arrested two (2) days later by members of public. He was handed over to PW5 APC Dennis Matini Mokaya of Changara AP Camp who later handed him over to Malakisi Police Station.

The submission of the state counsel is based on two issues. Firstly, that Patrick Tongolo was not called to testify which leaves a gap. This argument is not supported by the evidence. Patrick testified as PW3 and explained how he recovered the stolen cow through the help of PW2 a cousin to the Appellant. PW3 sent for the Appellant and demanded to know where he got the cow from. The witness asked the appellant to produce documentary evidence. The Appellant brought a letter without his identity card. He changed the story and said that he had bought the cow for somebody. He brought the identity card of a lady which PW3 did not find acceptable. PW3 escorted the cow to the police station. There is therefore no gap in the prosecution’s evidence.

The fact that PW3 did not arrest the Appellant immediately does not affect the credibility of the witness. He partly inquired into the matter to try and establish whether the accused had bought the cow as he alleged. The witness referred the matter to the police for further investigations after the Appellant failed to explain the possession of the animal. There is evidence from PW2 that the Appellant disappeared from home after the incident. This explains why he was not arrested for the first two days. It was three days later that he was arrested by a mob and handed over to the relevant authorities.

The Appellant in his defence did not attempt to explain how he came into possession of the stolen cow. The cow of the complainant was stolen in the night of 5th February 2009. The accused was found in its possession only one day later, on 6/2/2009 at 9. 00 p.m. PW2 saw the Appellant tie the cow in the compound of his uncle. The doctrine of recent possession is applicable herein. The trial magistrate in his judgment said he was satisfied that the Appellant was found with the cow only a day after the theft. He found the Appellant guilty of the offence. I find that the Appellant was rightly convicted. In his defence, he gave no evidence of anyone fabricating the case against him.

The maximum sentence under section 278 of the Penal Code is a sentence of imprisonment not exceeding fourteen (14) years. The sentence of five (5) years imposed is not excessive.

I dismiss the appeal and uphold the conviction and sentence.

F. N. MUCHEMI

JUDGE

Judgment delivered and dated 26th day of July, 2011 in the presence of the Appellant and the state counsel Mr. Ogoti.

F. N. MUCHEMI

JUDGE