[2023] KEHC 24339 (KLR)

Wachira v Republic (Criminal Appeal E021 of 2022) [2023] KEHC 24339 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24339 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Appeal E021 of 2022

KW Kiarie, J

October 24, 2023

Between

Nicholas Wachira

Appellant

and

Republic

Respondent

(From the original conviction and sentence in criminal case No.829 of 2019 of the Senior Principal Magistrate’s Court at Mariakani by Hon S.K.Ngii –Principal Magistrate)

Judgment

1. Nicholas Wachira, the appellant herein, was convicted of the offence of stealing goods on transit contrary to section 279 (c) of the Penal Code.

2. The particulars of the offence were that on diverse dates between 7th and 10th September 2019, at an unknown place, along the Mombasa-Malaba Highway within the republic of Kenya, jointly with others not before the court, stole 935 packages of polyvinyl chloride resin to wit 24,095 kgs valued at USD 26,743 (Kshs. 2,701,043/=) the property of Roofing Limited Kampala Uganda, from a locked container number MRKU 5258814 loaded on truck registration number KBU 783S ZE 2646 Scania, while the said goods were being transported from P.N Mashru yard in Mombasa to Roofing Limited in Kampala Uganda.

3. The appellant was sentenced to serve ten (10) years’ imprisonment. He was aggrieved and has appealed against both conviction and sentence.

4. He was in person. He raised grounds of appeal as follows:a.That the learned trial magistrate erred in law and fact by convicting [sic] the appellant to 10 years imprisonment without considering that the prosecution case was not proved beyond reasonable doubt.b.That the learned trial magistrate erred in law fact by convicting [sic] the appellant to 10 years imprisonment without considering that the appellant was denied a right to a fair trial pursuant to Article 50 (2) (p) of the Constitution.c.That the learned trial magistrate erred in law fact by convicting [sic] the appellant to 10 years imprisonment without considering the defence.

5. The appeal was opposed by the state through Ngina Mutua, learned counsel. She urged the court to dismiss the appeal for want of merits.

6. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32.

7. Section 279(c) of the Penal Code provides:if the thing is stolen from any kind of vessel or vehicle or place of deposit used for the conveyance or custody of goods in transit from one place to another;

8. In order for a conviction under section 279(c) of the Penal Code to stand therefore, the prosecution should be proof that:a)Goods of some value were stolen;b)From a vessel, vehicle, or place of deposit used for conveyance or custody of goods; andc)The goods were in transit from one place to another.

9. These ingredients must be read together with the definition of stealing which is provided for under section 268(1) of the Penal Code as:A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property.

10. The appellant contended that he was abducted and some chemicals administered to him and abandoned in a forest at Kapsabet.

11. There was no issue with the identity of the driver of the truck registration number KBU 783S ZE2646 Scania. There was also no issue as to what goods were being transported. The only issue was who perpetrated the theft.

12. The defence of the appellant was displaced by the evidence on record. If indeed he was abducted and drugged, he ought to have reported to the police immediately after treatment. In any case from his own evidence, the doctor neutralized the chemicals that had been administered. This if true, would have allayed any suspicion on him. He equally did not produce any documents to show that he indeed went for treatment.

13. Simon Wanjala Okumu (PW1) a watchman at Hashi Petrol station where the truck was abandoned, identified the appellant as the driver who paid him Kshs.200/= to watch over the truck and was to collect it after three days.

14. I am satisfied that the conviction of the appellant was supported by sufficient evidence on record.

15. An appellate court would interfere only where there exists, to a sufficient extent, circumstances entitling it to vary the order of the trial court. Those circumstances were well illustrated in the case of Nelson vs. Republic[1970] E.A. 599, following Ogalo Son of Owuora vs. Republic (1954) 21 EACA 270 as follows:The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v Rex (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor! To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R v Shershewsity (1912) C.CA 28 T.LR 364.

16. The prescribed sentence under section 279(c) of the Penal Code is fourteen years’ imprisonment. Article 50 (2) ( p) of the Constitution provides:Every accused person has the right to a fair trial, which includes the right—p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing;

17. There was no lesser sentence that the trial magistrate could have applied in favour of the appellant. This Article of the Constitution was not therefore breached.

18. Considering the value of the property stolen, the sentence of ten years’ imprisonment cannot be said to be harsh.

19. I accordingly find that the appeal has no merits and dismiss the same.

DELIVERED AND SIGNED AT HOMA BAY THIS 24TH DAY OF OCTOBER, 2023. KIARIE WAWERU KIARIEJUDGE