Muema v Republic

High Court, at Nairobi January 27, 1984

Todd J

Criminal Appeal No 1007 of 1983

(Appeal from the Resident Magistrate’s Court at Kitui, ADO Andati Esq)

Criminal Practice and Procedure – charge – form of – handling stolen property – charge of – contrary to - Penal Code (cap 63) section 322(2) – charge not stating how accused dishonestly handled stolen property – whether such charge proper – whether trial a nullity.

Criminal law – handling stolen property – offence of – contrary to – Penal Code (cap 63) section 322(2) – how offence charged – failure of charge to state how accused dishonestly handled stolen property – effect of.

The appellant was charged with the offence of robbery and, in the alternative, with handling stolen property contrary to section 322(2) of the Penal Code (cap 63), in that he and his co-accused had, otherwise than in the course of stealing, jointly and dishonestly handled certain property described in the charge. The appellant was convicted on what was recorded as his own plea of guilty and he was sentenced. The appellant appealed.

Held

1. The charge of handling stolen property was defective as it did not state in its particulars how the appellant dishonestly handled the stolen goods, whether by receiving or retaining them, or by dishonestly undertaking or assisting in their retention, removal, disposal or realization by or for the benefit of another person, or if he had arranged to do so, as stated in section 322(1) of the Penal Code (cap 63).

2. The trial before the magistrate was a nullity.

Appeal allowed.

Cases

1. Antony Olale Wasiembo v Republic Kenya Court of Appeal Criminal Appeal No 48 of 1979 (unreported)

2. Ratilal & Another v Republic [1971] EA 575

3. Kipsaina v Republic [1975] EA 253

Statutes

1. Penal Code (cap 63) sections 296(1), 322(1), 322(2)

2. Statute Law (Miscellaneous Amendments) Act 1973 (Act No 4 of 1973)

Advocates

Mr CW Gatonye for Respondent.

Patrick Ndungu Mathai v Republic

High Court, at Nairobi December 14, 1983

Todd J

Criminal Appeal No 731 of 1983

Criminal law - stealing - contrary to section 306(a) of the Penal Code (cap 63) - recent possession of stolen property - when recent possession may raise presumption of theft - Penal Code (cap 63) section 306(a).

Sentencing - severity of sentence - offence of store-breaking and stealing goods - factors to be considered in sentencing - value of goods stolen not considered in sentencing - sentence of four years’ imprisonment with six strokes of corporal punishment-whether sentence manifestly excessive.

The appellant had been charged with another with the offence of store breaking and stealing contrary to section 306(a) of the Penal Code. There was an alternative charge of handling stolen property contrary to section 322(1) of the Penal Code. The appellant was convicted of store breaking and stealing as charged while his co-accused was acquitted. He was accordingly sentenced to four years’ imprisonment with six strokes. He appealed against both conviction and sentence.

Held:

1. Where an accused person is found in possession of recently stolen property, the doctrine of recent possession may be applied. In the absence of an explanation by the accused accounting for his possession of the goods, a presumption arises that he was either the thief or the receiver (R v Hassani s/o Mohamed (1948) 15 EACA 121).

2. In sentencing, the value of the goods must be taken into account. In this case, the value of the stolen goods was very low making the sentence manifestly excessive.

Appeal against conviction dismissed, appeal against sentence allowed.

Cases

R v Hassani s/o Mohamed (1948) 15 EACA 121

Statutes

Penal Code (cap 63) sections 306(a), 322(1)

Advocates

CW Gatonye for Respondent

Matheka v Republic

High Court, at Nairobi December 14, 1983

Todd J

Criminal Appeal No 531 of 1981

Evidence - accomplice evidence - meaning of - nature of - sufficiency of accomplice evidence - whether such evidence can be relied on to convict joint offender - the need for corroboration by independent witness – when corroboration is required.

The appellant was charged with two others with stealing a cow contrary to section 275 of the Penal Code (cap 63). The appellant was convicted after trial and sentenced to three years’ imprisonment, being the maximum sentence that can be imposed under section 275. The other two were acquitted.

The trial magistrate had heavily relied on the evidence of one of the coaccused in convicting the accused person. The appellant appealed to the High Court. According to the appellate judge, it was not clear how the coaccused came to know what he purported to testify to, and that his evidence was in need of corroboration.

Held:

1. Evidence given by a co-accused person against another should only be considered if it is evaluated and found believable and if it is corroborated by independent evidence pointing to the guilt of the accused and also if it implicates the person giving it (R v Hamisi bin Saidi & Another (1942) 10 EACA 50).

2. When one or more of jointly accused persons makes a confession which affects the maker and the other co-accused it, is accomplice evidence.

3. The court may take accomplice evidence into consideration against all the accused persons including the giver of the evidence, provided that the evidence by itself would be sufficient to justify the conviction of the giver for the offence charged.

Appeal allowed.

Cases

R v Hamisi bin Saidi & Another (1942) 10 EACA 50

Statutes

Penal Code (cap 63) section 275

Advocates

CW Gatonye for Respondent

Peter Kiamba Mbungo v Republic

High Court, at Nairobi March 4, 1983

Todd J

Criminal Appeals Nos 556 & 557 of 1982

Plea - charge - substitution of charge - prosecution’s version of the facts not supporting charge - court’s finding not supporting charge – facts disclosing accused only accessory after the fact to offence charged - whether court may substitute charge - charge of accessory after the fact to offence of theft of goods in transit.

Sentencing - housebreaking - whether offence carrying mandatory corporal punishment - proper sentence - substitution of sentence.

The appellants were charged and convicted on their own plea of guilty to the charge of burglary and stealing from a dwelling house contrary to sections 304(2) and 279(b) of the Penal Code (cap 63). The appellants appealed against the convictions on the grounds that the pleas were unequivocal.

Held:

1. A court should, before convicting on a plea of guilty, ensure that it is unequivocal by not only, explaining every constituent of the charge to the accused but requiring him to admit or deny each and every such constituent (Hando s/o Akunaay v R (1951) 18 EACA 307 & R v Yonasani Egalu & Others (1942) 9 EACA 65).

2. The actual words used by the accused in pleading guilty to a charge should be recorded verbatim and translated into English. This is important so as to satisfy the Court of Appeal that he fully understood the charge and what he was pleading to (R v Yekoyasi Okedi s/o Akagye (1944) 11 EACA 110).

3. For an accused person to state “it is true” after the substance of the charge is explained to him would not amount to an unequivocal plea of guilty where the facts disclose an offence different from the one charged.

4. A charge of housebreaking does not carry a mandatory sentence of corporal punishment, the sentence is therefore substituted for a sentence of three years each to run concurrently.

Appeal dismissed.

Cases

1. Hando s/o Akunaay v R (1951) 18 EACA 307

2. R v Yonasani Egalu & Others (1942) 9 EACA 65

3. R v Yekoyasi Okedi s/o Akagye (1944) 11 EACA 110

Statutes

_____ ____ (___ 63) ________ 279(_), 304(2)

Advocates

MB Mbai for Respondent

Joseph Mukuha Kimani v Republic

High Court, at Nairobi March 3, 1983

Todd J

Criminal Appeal No 1112 of 1982

Criminal Practice and Procedure - witnesses - charge of uttering false document - person named in the charge as the one to whom the document was uttered not called as witness - whether failure to call such person as a witness fatal to appellant’s conviction - Criminal Procedure Code (cap 75) Second Schedule

Criminal Practice and Procedure - charge - form of - contents of – charge of uttering false document - name of the person to whom the document was uttered the wrong one - effect of - whether such misnomer occasioning failure of justice - Criminal Procedure Code (cap 75) section 382.

Sentencing - severity of sentence - offence of uttering false document - sentence of two years’ imprisonment - whether sentence manifestly excessive.

The appellant was charged with two counts of forgery and one count of uttering a false document. After trial, he was convicted on all counts and sentenced to concurrent sentences of two years’ imprisonment on each of them. The person to whom, according to the charge, the uttering of the false document had been made was the wrong one and in fact the person actually named was never called as a witness at the trial. The prosecution’s case and the evidence, however, which was not disputed by the appellant, identified the person to whom the utterance had made. The appellant appealed against both the convictions and the sentences.

Held:

1. The fact that the person to whom the forged document was said to have been uttered by the appellant was not called as a witness was not by itself fatal to the appellant’s conviction (R v Yonasani Egalu & Others [1942] EACA 65).

2. On a charge of uttering a false document, it is not fatal to omit the name of the person to whom the utterance is made in the particulars of the charge and the naming of the wrong person in the particulars of the charge is not fatal if it does not occasion injustice.

3. The sentence of two years’ imprisonment for the offence of uttering a false document was manifestly excessive.

Appeals against convictions for forgery allowed. Appeal against conviction and sentence for uttering a false document dismissed.

Cases

1. R v Yonasani Egalu & Others [1942] EACA 65

2. Okeno v Republic [1972] EA 32

Statutes

1. Penal Code (cap 63) section 349, 353

2. Criminal Procedure Code (cap 75) section 382, Second Schedule

Advocates

PS Gatimu for Appellant

FH Nabutete for Respondent

Nashon Marenya v Republic

High Court at Nairobi

January 25, 1983

Todd J

Criminal Appeal No 786 of 1982

 (Appeal from the District Magistrate’s Court at Kibera)

Criminal practice and procedure - charge – form of – defect in charge – charge of failing to comply with curfew restriction order under the Public Order Act (cap 56) section 9(1) - charge not stating by whom order issued - charge not referring to any particular order - accused convicted - whether charge proper - whether irregularity in charge occasioning failure of justice.

The appellant was charged in a magistrate’s court with failing to comply with a curfew restriction order said to have been made under section 9(1) of the Public Order Act (cap 56), under which certain police officers are empowered to make curfew restriction orders. The charge, however, did not make any reference to any such particular order. As it turned out, it was the Provincial Commissioner and not a police officer who had issued a curfew order, so that the proper section under which to charge the appellant would have been section 8(1) of the Act. The appellant was nevertheless convicted and sentenced. He appealed to the High Court.

Held:

1. A charge and its particulars ought to be clearly framed, so that the accused persons can know what they are charged with and proper references should be made in the charge otherwise a confusion may arise which may lead to a failure of justice.

 2. The charge in this case should have stated specifically that the appellant was in violation of an order made by a police officer in charge of the police in a province or in charge of a police division as is stated in the section under which the charge was brought and a reference should have been made in the charge to the particular order.

3. It could not be said that the irregularities in the charge would not occasion a failure of justice.

Appeal allowed.

Cases

No cases referred to.

Statutes

Public Order Act (cap 56) sections 8(1), 9(1)

Advocates

MON Odero for the Appellant

JM Bwonwonga, Senior State Counsel, for the Respondent