[2011] KEHC 1003 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

(Coram: Azangalala, J)

CRIMINAL APPEAL NO. 205 OF 2009

BETWEEN

SAMUEL GATITU MUGO::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

AND

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

(Being an appeal from the decision of the Senior Resident Magistrate Hon. A. Alego dated 20th November, 2009 in Eldoret Chief Magistrate’s Court Criminal Case No. 657 of 2008)

JUDGMENT

The appellant herein Samuel Gaitu Mugo has lodged this appeal contesting his conviction and sentence by the Learned Senior Resident Magistrate sitting at Eldoret Law Courts. The appellant was arraigned in court on 17th March, 2008 on a charge of stealing a motor vehicle contrary to Section 278 of the Penal Code. The allegation was that the appellant on 6th February, 2008 within Eldoret Township in Uasin Gishu District of the Rift Valley, stole a Toyota Shark Matatu Registration Number KBA 932E valued at Kshs. 1,320,000/- the property of Milka Chemesunde (hereinafter “the complainant”).

The appellant denied the charge and his trial commenced on 13th October, 2008 before W.N. Njage, Principal Magistrate. The prosecution was led by IP P. Okeriand later by IP Manuni. A total of five (5) witnesses were called in support of the charge. The brief facts of the case were that on 5th February, 2008, John Kibor Kenei (PW2), the complaint’s driver informed the complainant that the appellant had some passengers who were to be ferried from Eldoret Polytechnic to Kitale and back to Eldoret the following day which was 6th February, 2008. The complainant and PW2 fuelled the vehicle for the trip.

In the morning of 6th February, 2008, PW2 took the vehicle to the appellant who took off purportedly to pick the passengers alleged to have been at Eldoret Polytechnic. That was at about 8:30am. Thereafter the appellant became incommunicado. At 10:00am of the same date, PW2 reported the disappearance of the appellant with the vehicle to the complainant. They both made a report to PC Daniel Gaiko (PW3) of the Flying Squad Eldoret Police Station. The report was circulated to other police stations and on 11th march, 2008 PW3 got a report from AP Officers of Limiru DC’s Office that a suspect had been arrested at Limuru by APC Patrick Ngunjiri (PW4). PW3 travelled to Limuru in Kiambu District and was informed that the suspect had been handed over to CID Officers at Kikuyu Police Station. PW3 took custody of the suspect and brought him to Eldoret Police Station where the suspect was identified by PW2 as the appellant. IP Josephat Mbingu Kisingu (PW5) is the officer who mounted an identification parade on 15th February, 2008 at which the appellant was identified by PW2.

At the close of the prosecution case the Learned Principal Magistrate found that the appellant had a case to answer and put him on his defence. The trial was thereafter taken over by A. Alego Senior Resident Magistrate who duly complied with the provisions of section 200 of the Criminal Procedure Code.

The appellant gave an unsworn defence in which he denied the charge. He further denied knowledge of the complainant and PW2 and testified of his arrest and assault by police officers.

On 20th November, 2009 the Learned Senior Resident Magistrate delivered his judgment in which she convicted the appellant as charged and thereafter sentenced him to (5) five years imprisonment, after regarding the prosecutor’s statement on sentence and the appellant’s mitigation.

Being aggrieved by both his conviction and sentence, the appellant lodged his appeal before this court. When the appeal came up before me for hearing on 16th June, 2011, the appellant, who appeared in person, informed me that he did not wish to pursue his appeal against conviction and only urged the appeal against sentence. Mr. Oluoch, the Learned Senior Deputy Prosecution Counsel who appeared for the respondent, state, supported the sentence arguing that the term of five (5) years imposed upon the appellant was lawful and deserved, given that the motor vehicle was never recovered.

I have carefully perused the record, the grounds of appeal and the submissions made before me. At the outset, I must state that if the appellant had urged his appeal against conviction, I would have dismissed the same since I have found that he was convicted on sound evidence and that there was no possibility of mistaken identity. In my view the identification parade mounted by PW5 was unnecessary given that PW2 knew the appellant before the offence was committed.

With regard to sentence, the appellant has submitted that he is the sole breadwinner of his family which comprises his wife and four school- going children. The record shows that the appellant pleaded the same before the Learned Senior Resident Magistrate who considered the same and imposed the sentence of five 5 years. The maximum sentence for the offence the appellant was convicted of is seven (7) years imprisonment. The appellant was not given the said maximum sentence. Besides the motor vehicle stolen was never recovered. In these premises, I agree with the Learned Senior Deputy Prosecution Counsel that the sentence of five (5) years imprisonment was deserved.

In the end I uphold the conviction and confirm the sentence imposed upon the appellant. The appeal therefore fails in its entirety.

DATED AND DELIVERED AT ELDORET

THIS 3RD DAY OF NOVEMBER, 2011

F. AZANGALALA

JUDGE

Read in the presence of: -

The appellant and Mr. Chirchir H/B for Mr. Oluoch.

F. AZANGALALA

JUDGE

3RD NOVEMBER, 2011