Nyakundi v Republic

High Court, at Kisumu July 29, 1994

Githinji J

Criminal Appeal No 324 of 1993

(From original conviction and sentence in Criminal Case No 176 of 1991 of the Chief Magistrate’s Court at Kisumu C O Ong’udi, Esq C M:)

Evidence – standard of proof – where all evidence points to the guilt of the accused – where prosecution proves the case beyond any reasonable doubt – whether the conviction of the accused should be altered.

Criminal Practice and Procedure – sentencing – where an accused is a young person and committed crime with others not charged – whether this should be considered when sentencing.

The appellant was convicted of four offences of stealing by a person employed in the public service contrary to section 280 of the Penal Code. He was also convicted of the offence of willfully and unlawfully damaging a padlock contrary to section 339 (1) of the Penal Code. He was sentenced to a total of 4 years imprisonment and he lodged an appeal against conviction and sentence.

The appellant was a store clerk at Migori Depot of Nation Cereals and Produce Board when on 25.6.1991 stock taking was done and everything was found in order. On 6.9.1991 John Oketch (PW2) the Area Manager did some checking and found 530 bags missing. Later an auditor did stock taking and confirmed also that the same 530 bags of mixed wimbi was missing. There was substantial evidence that appellant, as store clerk was in charge. There was evidence the store was fenced, gate manned, and watertight recording system.

The appellant’s case seem to suggest the audit was not correct as there were purchases and sales that were not stopped before the audit.

Held:

1. There was evidence confirmed by the records that the appellant was on duty at the store throughout the period in question dates, and further there was no evidence that anybody else could have removed the produce from the store.

2. The appellant was a young man and it seems he committed the offence with other people, a fact which should have been given weight in assessing the appropriate sentence.

Appeal allowed against conviction & sentence in count 6.

Appeal dismissed against conviction in count 1, 2, 4, 5

Appeal dismissed against the sentence in count 1, 2, 4, 5

Cases

No cases referred to.

Statutes

Penal Code (cap 63) sections 280, 339(1)

Ayiembo v Republic

High Court, at Kisumu June 15, 1994

Githinji J

Criminal Appeal No 125 of 1993

(From original conviction and sentence in Criminal Case No 128 of 1992  of the District Magistrate’s Court at Tamu: A Kosambo, Esq DM1)

Evidence – standard of proof – shop breaking – where there are no clear circumstances under which one was arrested – where there’s doubt as to whether accused was one of the thieves – whether it’s safe to convict the accused where there’s doubt.

The appellant was convicted of offence of shopbreaking and stealing contrary to section 306 (a) of Penal Code and sentenced to 3 years imprisonment and 4 strokes of cane. He appealed against conviction and sentence.

The prosecution’s case was to the effect that the complainant’s shop was broken into on the night of 15.5.1992 and goods worth 6705/= stolen. That Joanes Okelo (PW2) and George Owino Ochere (PW3), heard the shop being broken and came out. They stated that one person came out of shop and ran, and that another, the appellant, was said to have come out of shop carrying 2 rims and 2 tyres.

The appellant’s case was to the effect that he was coming from a disco in the company of his girlfriend when he was stopped and arrested.

Held:

1. Without clear description of the circumstances under which the appellant was arrested, there was no evidence which the Court could safely conclude that appellant was one of the people who broke into the shop.

2. There was reasonable doubt as to whether the appellant was one of the thieves.

Appeal allowed.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) section 306(a)

Oyengo v Republic

High Court, at Kisumu June 14, 1994

Githinji J

Criminal Appeal No 105 of 1993

(From original conviction and sentence in Criminal Case No 139 of 1992 of the Chief Magistrate’s Court at Kisumu C O Ong’udi, Esq C M)

Evidence – identification – conditions for identification – where robbers were identified in house with light – where evidence of witnesses consistent – whether such identification proper.

The appellant was charged with another with the offence of robbery contrary to section 296(1) of the Penal Code. His co-accused died before the conclusion of the trial. He was convicted and sentenced to 31/2 years imprisonment with 2 strokes of the cane, and further ordered to be under police supervision for 5 years after completion of the sentence.

The appellant was convicted on the basis that he was identified at the time of robbery and later at an identification parade and also on the basis that some of the stolen items were recovered in his house.

The appellant’s defence was that he did not take part in the robbery and that the properties recovered in his house were taken there in his absence by his co-accused whom he caused to be arrested.

Held:

1. The appellant’s witness was a neighbour of the appellant and did not give a reasonable explanation as to why he allowed the 1st accused who was not known to him to keep the goods in the appellant’s house instead of his own house.

2. The evidence of the appellant that the TV and radio cassette were taken to his house in his absence was not credible and was not supported by any credible evidence.

Appeal dismissed.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) section 296(1)