[2017] KEHC 606 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT LODWAR

HIGH COURT CRIMINAL CASE NO. 83 OF 2016

SIMON EROT NAKALE……………………………………………….APPELLANT

-VERSUS-

REPBULIC………………………………………………………RESPONDENT

[An appeal from conviction and sentence in original Lodwar Principal Magistrates CR. 646 of 2013 delivered on 22/10/2015 by W Washira acting Principal Magistrate]

JUDGMENT

The appellant Simon Erot Nakage was charge with the offence of Preparation to commit a felony contrary to section 308 (10 of the penal code.

Particulars of the charge are:

On the night of 19th day of August 2013 at Kakuma one refugee camp in Turkana west district within Turkana County jointly with others not before court was found armed with a dangerous weapon namely a panga in circumstances that indicate that he was so armed with intent to commit a felony namely Robbery with Violence.

After full trial where two prosecution evidence testified and appellant gave unsworn evidence, he was found guilty, convicted and sentenced to serve seven (7) years imprisonment. He was aggrieved by the conviction and sentence and filed this appeal on the following grounds.

1. I pray for pardon for I am a first offender and an orphan.

2. I lost all parents 15 years ago from Toposa raiders who attached our village and wept away animals and killed all my parents.

3. I was brought up by a good Samaritan who took me to school but dropped out due to this case

4. I pray for pardon from you Hounarable court to reduce the harsh sentence of 7 years to a lesser one or set the appellant at liberty to enable me continue with my education.

5. I pray for pardon for I have learnt from the mistake I committed and promised not to repeat it any more.

The appellant filed written submissions in support of the appeal. He submitted that the prosecution did not prove the charge; that there was no evidence that he was found with the panga and that there was no proof of intention to steal and that all the prosecution witnesses were Ethiopians; that he who not given opportunity to call his witnesses, were never called are finally that his defence was not considered.

Mr. Gikunda for state opposed the appeal. He submitted that he conviction was proper and the sentence of 7 years imprisonment within the law as it is the minimum provided under section 308 of the penal code under which the appellant was charged.

The evidence in the trial court was that on 19/8/2013 at around 11:20 p.m. PW1 Joseph Adola Otula was in his house asleep when he heard noise from outside made from the interference with the iron-sheet which formed a fence. He then heard people shouting thief! Thief! The people had apprehended a person and while beating him the mad said he was an employee of the witness. He came out and found appellant having been arrested and a sword recovered from him. They called police officers who re-arrested him PW2 Shifaw Bekele was at the Ethiopian protestant church compound when he heard people jumping over the fence and noise of pangas falling down. He went and saw appellant who on seeing him had himself. Together with other people they surrounded the appellant and recovered a panga/sword near the fence. They suspected the appellant and others had intentions to rob Joseph Adole’s shop. PW3 police constable Paul Sum attached to Kakuma Police Station received a telephone call from the Ethiopian security who reported an incident. He together with others went and found appellant having been arrested of intending to steal while armed with a panga. He re-arrested him and caused him to be charged with present offence.

The appellant on being put on his defence gave a short testimony stating;

“I am Simon Erot. I lived in Kakuma. I did not do this offence”

From the appellant defence in the prosecution witnesses that he was found in the church compound at night and while armed with a panga. Section 308 of the penal code under which the appellant was charged provides:

“Any person found armed with any dangerous or offensive weapon in circumstances that indicate that he was so armed with intent to commit a felony is guilty of a felony and is liable to imprisonment of not less than seven years and not more than fifteen years”.

From the above section, the ingredients of the offence of preparation to commit a felony are:

i. That the accused is found armed.

ii. With a dangerous or offensive weapon.

iii. In the circumstance which indicate intention to commit a felony.

In the present case the prosecution had evidence which established that the appellant was armed with a dangerous or offensive weapon a panga/sword at night in a compound belonging to the church and next to the shop of PW1 having gained access through climbing over the fence. These circumstances looked at cumulating indicate an intention to commit a felony.

I am satisfied that all the ingredients of the offence of preparation to commit a felony were proved.

On sentence section 308 provides on conviction a minimum sentence of seven (7) years imprisonment and maximum of not more than fifteen years imprisonment. The appellant was sentenced under the provisions of section 308 of the penal code. The same therefore cannot be said to be excessive or harsh.

In the result I dismiss this appeal, uphold the conviction and affirm the sentence of seven (7) years imprisonment imposed.

Dated and signed this 7th day of November, 2017

S N RIECHI

JUDGE