Kamenju Muraya V Republic EKLR
|Criminal Appeal 11 of 1989||04 Dec 1989|
Johnson Evan Gicheru, Richard Otieno Kwach, Joseph Raymond Otieno Masime
Court of Appeal at Nakuru
Kamenju Muraya v Republic
Kamenju Muraya v Republic eKLR
Kamenju Muraya v Republic
Court of Appeal, at Nakuru
December 4, 1989
Masime, Gicheru & Kwach JJ A
Criminal Appeal No 11 of 1989
Criminal law – stealing from a locked motor vehicle by opening by means of a key or other instrument – whether breaking window glass in order to open the vehicle amounts to opening by key or other instrument – Penal Code )cap 63) section 279 (g) - whether charge proper - whether lesser offence of theft disclosed.
The appellant was charged and convicted of the offence of stealing from a locked motor vehicle contrary to section 179 (g) of the Penal Code (cap 63).
The particulars of the offence however did not allege that in order to commit the offence the appellant opened the locked motor vehicle by means of a key or other instrument.
Instead they alleged that in order to commit the said offence he opened the motor vehicle in question by breaking the window glass.
The entire proceedings in the trial court concerned themselves with the appellant having broken into the motor vehicle in issue.
In convicting the accused the trial magistrate observed that he was convinced beyond any reasonable doubt that the accused broke into the vehicle of the complainant.
The High Court, on appeal, upheld the trial court’s conviction.
1. To open a locked motor vehicle by means of a key or other instrument requires the unlocking of the lock of such motor vehicle. Breaking any part of such motor vehicle in order to open it is not the same thing as opening it by means of a key or other instrument.
2. Breaking into the motor vehicle mentioned was not an ingredient of the offence with which the appellant was charged.
3. The aggravating circumstances of the theft under section 279 (g) for which the appellant was charged was the opening of the locked motor vehicle by means of a key or other instrument in order to commit that offence. This circumstance was neither charged nor proved against the appellant in the court of the first instance and his conviction could not be sustained.
4. Theft is a common factor to teh offences defined in sections 279(g) and 275 of the Penal Code. Section 279(g) however has the additional aggravating circumstances contained therein. The lesser offence of theft under section 275 had been established in this case but the aggravating circumstances necessary for an offence under section 279(g) had not been established.
Appeal allowed, appellant’s conviction substituted with a conviction for theft under the Penal Code section 275.
No cases referred to.
1. Penal Code (cap 63) sections 275. 279(g)
2. Criminal Procedure Code (cap 75) sections 179(1), 361(4)