[2010] KEHC 1358 (KLR)
The High Court found that the evidence did not support the conviction of the appellant for procuring the offence of stealing under section 20(1)(d) of the Penal Code. The prosecution witnesses only established that the appellant encouraged others to demolish the complainant's structure, not to steal the building...
Source-derived case information.
- Citation
- [2010] KEHC 1358 (KLR)
- Parties
- Appellant: Zulufa Abdalla; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 273 of 2009
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- Appeal allowed. Conviction quashed and sentence set aside.
- Legal Topics
- Procurement of Offence, Malicious Damage to Property, Stealing, Elements of Criminal Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Zulufa Abdalla
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the appellant procured the offence of stealing as charged under section 278 of the Penal Code.
- 2 Whether the evidence supported a conviction for procuring the offence under section 20(1)(d) of the Penal Code.
- 3 Whether the conviction and sentence by the trial magistrate were legally sustainable.
Ratio Decidendi
The High Court found that the evidence did not support the conviction of the appellant for procuring the offence of stealing under section 20(1)(d) of the Penal Code. The prosecution witnesses only established that the appellant encouraged others to demolish the complainant's structure, not to steal the building materials. There was no evidence that the appellant participated in, procured, or encouraged the theft. The trial magistrate erred in convicting the appellant for procuring the offence of stealing, as the facts only supported possible malicious damage to property, not theft. Consequently, the conviction and sentence were quashed and set aside.
Court Disposition
Appeal allowed. Conviction quashed and sentence set aside.
Orders
- The conviction of the appellant is quashed.
- The sentence imposed on the appellant is set aside.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA
AT MOMBASA
Criminal Appeal 273 of 2009
(From Original Conviction and Sentence in Criminal Case No. 3210 of 2008of the ChiefMagistrate’s Court at Mombasa:T. Gesora – S.R.M.)
ZULUFA ABDALLA ………………………….. APPELLANT
VERSUS
REPUBLIC ……………………….….………. RESPONDENT
JUDGEMENT
The Appellant ZULUFA ABDALLA filed this appeal challenging her conviction and sentence by the learned Senior Resident Magistrate sitting at Mombasa Law Courts.The Appellant and another had been charged with the offence of STEALING CONTRARY TO SECTION 278 PENAL CODE.The case revolved around a certain structure which was being put up by the complainant MARIAM SHEE ALI in her plot at Kisauni.It is alleged that the Appellant and her companions objected to the structure being put up claiming that it belonged to a witch.They pulled it down and stole the plywood and timber.At the close of the prosecution case the Appellant was ruled to have a case to answer and was placed on her defence.She opted not to make any defence and left the matter to the court to decide.On
8th December 2009the learned trial magistrate delivered his judgement in which he acquitted the Appellant of the charge of stealing but proceeded to convict her of procuring the offence under S. 20(1)(d) of the Penal Code.
The Appellant who appeared in person at the hearing of this appeal opted to rely entirely upon her written submissions.MR. ONSERIO, learned State Counsel who appeared for theRespondentStatemade oral submissions opposing the appeal.
I have perused the record from the lower court.The evidence of the prosecution witnesses was that the Appellant encouraged or procured others to demolish the complainant’s structure after she had erected it.PW2 ISSA GHULAN MOHAMED tells the court at page 7 line 12
“Accused was saying “break it there is nowhere they are going to take us, I will put music for you” accused entered the house and put on the radio on high volume I think so that the neighbours don’t hear what they are doing”
His evidence is therefore that the Appellant actively encouraged the others to demolish the structure.There is no evidence that the Appellant in any way participated in this demolition.Likewise I find no evidence that the Appellant encouraged or told anybody to steal the complainant’s materials.She therefore cannot be said to have procured this offence of stealing.PW5 MOHAMED JUMA confirms this position when he states at page 10 line 23
“I looked for Mwanakombo and asked her why she destroyed the structure and she explained that she was hired by Geni Zulfa [the appellant] and Halima who she said comforted her not to worry”
Once again the evidence of this witness is specific – accused only encouraged the others to demolish the structure but not to steal.She therefore procured the offence of Malicious Damage to Property.The accuseds had been charged with the offence of stealing contrary to S. 278. I find no evidence to show that the Appellant in any way procured, participated in or encouraged her co-accuseds or indeed any other person for that matter to steal the complainant’s building materials.As such I find that the learned trial magistrate erred in applying S. 20(1)(d) in the circumstances.The conviction had no basis and I do hereby quash the same.The attendant sentence is also set aside.
Dated and Delivered atMombasathis 30th day of September 2010.
M. ODERO
JUDGE
Read in open court in the presence of:-
Mr. Onserio for State
Appellant in person
M. ODERO
JUDGE
30/9/2010