[2003] KEHC 415 (KLR)
The court found that the evidence against the appellant was overwhelming, with credible and consistent testimony from the arresting officers and scientific confirmation that the notes were forged. The appellant's claim of being framed and of police confiscation of genuine money was rejected as it was not raised at...
Source-derived case information.
- Citation
- [2003] KEHC 415 (KLR)
- Parties
- Appellant: Simon Magoro Ogunda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 261 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_partially_allowed
- Legal Topics
- Possession of Forged Currency, Sentencing Principles, Criminal Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Magoro Ogunda
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for possession of forged bank notes was supported by the evidence.
- 2 Whether the appellant's claim of being framed and of police confiscation of genuine money was credible.
- 3 Whether the sentence imposed was excessive given the circumstances.
Ratio Decidendi
The court found that the evidence against the appellant was overwhelming, with credible and consistent testimony from the arresting officers and scientific confirmation that the notes were forged. The appellant's claim of being framed and of police confiscation of genuine money was rejected as it was not raised at the earliest opportunity, either at the police station or during initial court appearances. The magistrate was correct in rejecting this defence. However, the court found that the sentence of three years was excessive for a first offender and substituted it with a sentence of eighteen months' imprisonment, considering the appellant's plea for leniency and his status as a first...
Court Disposition
appeal_partially_allowed
Orders
- Conviction is upheld.
- Sentence of three years imprisonment is set aside and substituted with eighteen months imprisonment.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO.261 OF 2003
(From original conviction and sentence in Criminal Case No.159 of 2003 of the
Resident Magistrate’s Court at Kehancha – J. O. OCHAKO, ESQ., R.M)
SIMON MAGORO OGUNDA ………………………………………. APPELLANT
VERSUS
REPUBLIC ………………………………………………………….. RESPONDENT
JUDGMENT
The appellant was convicted by the Resident Magistrate Kehancha for the offence of being in possession of forged bank notes c/s.359 of the Penal Code. He was sentenced to 3 years imprisonment.
The particulars were that on 17th April 2003 at Nyamohanga Market in Kuria District he was found in possession of 63 shs.1000/- Kenya Currency notes which were not genuine.
In his appeal the appellant submitted that the charge was a frame up. He was arrested for trying to enter Tanzania without a passport. He said he was going to buy Omena and had shs.250,000/= genuine Kenya Money in a traveling bag. This money was taken by Police and was never returned to him together with the bag.
The appeal was opposed and court told that the conviction was proper. I concur with the State Counsel that the evidence in the lower court was overwhelming. PW1 P. C. GISIRI WANDE who arrested the appellant told the court that he was tipped by an informer and he arrested the appellant. He was with A. P. C. PETER KIPCHUMBA CHERUIYOT of Administration Police. On arresting the appellant they searched him and found 63 shs.1000/- Kenya Currency notes. 26 of them had the same Serial Number AC5371053, 34, Serial No.AB 3379967 and three No.AE1527526. On usual check they noted they were not genuine. They took appellant to police Station. The fake notes were taken to Government Analysts who confirmed they were not genuine. The prosecution had no obligation to call the informer as a witness. The two witnesses were very consistent in their evidence.
The magistrate was right to reject appellant’s defence that his shs.250,000/- was taken from him. He never raised that issue at the police station. He first appeared in court on 30/4/03 and he never told court that his shs.250,000/= was taken by the police. He himself applied for bond. Thereafter there were several mentions before the hearing started on 1st July 2003. During those mentions he did not raise the issue with court.
I therefore find the conviction of the appellant was proper and I uphold the same.
As to the sentence appellant was sentenced to 3 years imprisonment. He was a first offender and pleaded for leniency. Sentence of 3 years was excessive in the circumstances. I therefore set aside the sentence of 3 years and substitute it with one of 18 months (Eighteen months) imprisonment.
It is so ordered.
KABURU BAUNI
JUDGE.
21/7/2004
Delivered on 21st July 2004
KABURU BAUNI
JUDGE.