[2014] KEHC 974 (KLR)
The court found that the appellant, having been misled by a co-accused into believing that he was acting on behalf of the owner of the premises, did not possess the necessary mens rea to commit the offence of breaking into a building and committing a felony. The evidence showed that the appellant was hired to cut...
Source-derived case information.
- Citation
- [2014] KEHC 974 (KLR)
- Parties
- Appellant: Silas Ojasi Bakoye; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 93 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Breaking and Entering, Mens Rea, Theft, Criminal Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silas Ojasi Bakoye
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant had the requisite mens rea to commit the offence of breaking into a building and committing a felony.
- 2 Whether the conviction and sentence were supported by the evidence adduced.
Ratio Decidendi
The court found that the appellant, having been misled by a co-accused into believing that he was acting on behalf of the owner of the premises, did not possess the necessary mens rea to commit the offence of breaking into a building and committing a felony. The evidence showed that the appellant was hired to cut the lock without knowledge of the illegality, and thus could not be held criminally liable. The State's concession of the appeal was appropriate, and the conviction and sentence could not stand.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CRIMINAL APPEAL NO.93 OF 2012
(An Appeal arising out of the conviction and sentence in Busia CMC.No.1082 of 2011 delivered by I.T Maisiba P.M on 19th November 2013)
SILAS OJASI BAKOYE …………………………………….APPELLANT
VERSUS
REPUBLIC ………………………………………..……….RESPONDENT
J U D G M E N T
This Appeal is conceded by the State. In it the Appellant had challenged his conviction and sentence on the offence of Breaking into a Building and committing a felony contrary to Section 306 (a) of the Penal Code.
It had been alleged that the Appellant together with Henry Omondi Ogama (hereinafter A1) and Edwin Odembo (hereinafter A2) on divers dates between 13th September 2011 and 19th September 2011 at unknown time at Funyula Township in Busia County jointly broke and entered a building namely a store of VINCENT OGUTU OLUMBE and committed therein a felony namely theft and did steal from therein 10 tins of 20 litres pain (assorted), 8 flash doors and 15 panel doors all valued ksh404,000 the property of the said VINCENT OGUTU OLUMBE.
The concession by the State was, in my view, well taken. There was evidence that the door to Funyula Economic Trust had been broken into sometime between 13th September 2011 and 19th September 2011. The building was still under construction and someone had closed it with changed padlocks. The evidence of Fredrick Khadudu Khaduli (PW2), Vincent Olumbe (PW3) and P.C. Daniel Kayo (PW4) is that the Appellant had been hired by A1 to cut the old lock. But the evidence is that A1 had misled the Appellant into believing that he was the owner of the premises: The Appellant could not therefore have had the mens rea to commit the offence.
The Appeal is allowed, the conviction quashed and sentence imposed on 19th November 2012 set aside. The Appellant shall be set free forthwith unless detained for some other lawful reason.
F. TUIYOTT
J U D G E
DATED, DELIVERED AND SIGNED AT BUSIA THIS 2ND DAY OF DECEMBER 2014.
IN THE PRESENCE OF:
KADENYI ………………………………………………COURT CLERK
OWITI…….………………………………………………..FOR STATE
MANWAR….…………………………………………FOR APPELLANT