1.The appellant was charged with the following charges: -
Breaking into a building and committing a felony contrary to section 306 (a) of the Penal Code
2.The particulars being that on the 21st day of August 2019 at Nyamira Township Sub-location, Bonyamatuta Chache Location, within Nyamira County broke and entered into a building of Joseph Mirambo with intent to steal from therein and did steal thirty (30) pieces of iron sheets and ten (10) pieces of timber all valued at Kshs. 9,500.00 the property of Joseph Mirambo.
Handling stolen goods contrary to section 322 (1) as read with section 322 (2) of the Penal CodeThe particulars being that on the 21st day of August 2020 at Nyamira Township Sub-location, Bonyamatuta Chache Location, within Nyamira County otherwise than in the course of stealing dishonestly received or retained three (3) iron sheets knowing or having reasons to believe them to be stolen goods.
Trespass upon private land contrary to section 3 (1) as read with section 11 of the Trespass Act cap 294 Laws of KenyaThe particulars being that on the 10th day of December 2020 at Nyamira Township Sub-location, Bonyamatuta Chache Location, within Nyamira County unlawfully trespassed upon private land parcel number West Mugirango/Siamani/8277 registered under Joseph Ondicho Mirambo and did plant therein kales (Sukumawiki) without the consent of the owner Joseph Ondicho Mirambo.
2.At the close of the trial, the trial Magistrate convicted the Appellant for the offence of Breaking into a building and committing a felony contrary to Section 306 of the Penal Code. The Appellant was however acquitted for the offence of Trespass upon private land contrary to Section 3 (1) as read with Section 11 of the Trespass Act Cap 294 Laws of Kenya.
3.Upon his conviction on the 1st count, the appellant was sentenced to compensate the complainant, Joseph Mirambo, with the sum of Kshs. 20,000/= and in default to serve one (1) year imprisonment.
4.The appellant was in addition to the sentence ordered to undergo counselling under the umbrella of Probation for one (1) year from the date of payment of compensation or when he completes the sentence.
5.Aggrieved by the conviction and sentence, the appellant filed the instant appeal on July 25, 2022 in which he listed several grounds which he later amended on April 11, 2023 and listed following grounds of appeal: -
6.He seeks the following orders in the appeal: -
7.The appeal was canvassed by way of written submissions wherein the appellant expounded on the grounds listed on the petition appeal.
8.The respondent, on the other hand, submitted that the trial court correctly relied on the doctrine of recent possession in convicting the appellant. It was the respondent’s case that there was sufficient evidence of recent possession of stolen property. Reference was made to the decision in Eric Otieno Arum vs R  eKLR where the doctrine of recent possession was discussed.
9.The duty of the 1st appellate court is to re-analyze the evidence tendered before the lower court with a view to arriving at its own independent findings while bearing in mind the fact that it neither heard nor saw the witnesses testify. What was evidence presented by the prosecution before the trial court?
10.PW1, Joseph Mirambo, testified that he knew the Appellant as he purchased land from the appellant’s father. He stated that he, on August 21, 2019, went to the land that he had purchased with the intention of carrying out some construction work when he discovered that his building materials, to wit, 30 pieces of iron sheets and 20 posts had been stolen from a house he had constructed on the purchased property. He then reported the matter to the police. He accompanied the police to the Appellant’s home where 3 pieces of iron sheets were recovered after the Appellant allegedly fled from the scene.
11.PW2, Samuel Onganga, the appellant’s father, testified that he sold land to someone else who in turn sold it to PW1. He stated that he did not witness the alleged breaking in and theft but added that the appellant and PW1 had a land dispute.
12.PW3, Vincent Mirera, testified that he on August 21, 2019 met the appellant carrying posts but he did not know where the appellant got the posts from. On the following day he met the Complainant complaining that his posts had been stolen. He did not see the appellant with the iron sheets.
13.PW4, Cpl. Sammy Sigei, investigated the case and recovered 3 used iron sheets from the appellant’s home. He however did not recover any posts from the appellant’s home.
14.When placed on his defence, the appellant denied the charges and stated that he was in Molo at the time of the alleged offence. He testified that he had a land case against the complainant before Kisii Court being case No. 60 of 2016 where he had secured an eviction order but that the complainant refused to vacate the land. He added that the land in question belongs to his father, PW2, and not the complainant. On cross examination, he testified that the land in dispute belongs to him.
15.DW2, Irene Nyamoita, was the Appellant’s wife. She testified that the Appellant was not at home on the alleged date of the offence as he had travelled to Molo on August 15, 2019. She stated that the police, in the company of the complainant came to her home on August 23, 2019 and took away her iron sheets. She added that she went to Nyamira police station to report the case when she was arrested and placed in custody.
16.On cross examination, DW2 stated that she bought the said iron sheets a long time ago and had used them to build her house but later pulled down the house and used the iron sheets to build a toilet. She confirmed that the appellant had sued the complainant over a land dispute.
17.DW3, Daniel Nyangau, testified that he accompanied the Appellant to Molo on August 21, 2019 where they had gone to till some land. He added that they stayed in Molo for 2 months. He produced a bus ticket as Defence exhibit No. 6. On cross examination he stated that they boarded the bus to Molo at Kisii at 4pm.
Analysis and Determination
18.I have carefully considered the Record of Appeal and the parties’ respective submissions. The main issue for determination is whether the prosecution proved its case against the Appellant beyond reasonable doubt.
19.As I have already stated in this judgment, the appellant was convicted for the offence of Breaking into a building and committing a felony.
20.This court is therefore called upon to determine if the evidence presented by the prosecution was sufficient to sustain/prove the charge of Breaking into a building and committing a felony.
21.The trial court held as follows when convicting the appellant: -
22.My analysis of the evidence of PW3, which the trial court relied upon, in convicting the Appellant, shows that the said witness testified that he saw the Appellant carrying posts. The witness testified as follows:-
23.PW4, the Investigating Officer testified as follows: -
24.My finding is that the testimony of PW4 contradicts the account of PW3 in certain respects – for example, while PW3 testified that he saw the appellant ferrying 3 posts, no such posts were recovered from the appellant’s home. PW4 claimed that they recovered the iron sheets which the appellant had used to support his fence in the appellant’s absence.
25.DW2, the appellant’s wife on the other hand, testified as follows: -
26.From the testimony of DW2, it is clear that the 3 pieces of iron sheets were recovered from her home in her absence. She explained that the iron sheets belonged to her and she took steps to report their loss to the police only to be arrested and placed in the cells.
27.I find that the conduct of DW2, upon learning that iron sheets had been taken from her home, does not depict her as a person guilty of theft. She was able to explain her ownership of the iron sheets to the police.
28.I further find that the prosecution did not establish any distinguishing feature or marks on the complainant’s alleged iron sheets when compared to iron sheets that could be found in any other home within the same locality. I find that there was no direct evidence linking the appellant to the alleged breaking into a building so as to justify his conviction. In any event, PW3 testified that he saw the appellant carrying posts and not the iron sheets that were recovered from the appellants home. Moreover, PW3 did not state that he saw the appellant taking the said posts from the complainant’s house.
29.There was also no evidence to show that the 3 iron sheets found in the appellant’s home were the exact same iron sheets that the complainant allegedly lost. No material was placed before the court to establish that the complainant owned the iron sheets and posts that were allegedly stolen.
30.It did not escape the attention of this court that it was not disputed that the complainant and the appellant had a long standing land dispute that could have precipitated bad blood between them leading to the instant prosecution.
31.The appellant presented alibi evidence and called a witness DW3 who explained that he was away in Molo with the Appellant at the time he was alleged to have committed the offence. I find that the alibi evidence was credible as it was not shaken on cross examination.
32.In a nutshell, I am not satisfied that the case against the appellant was proved beyond reasonable doubt.
33.In conclusion, I find that this appeal is merited and I therefore allow it.
34.Consequently, I quash the conviction and set aside the sentence with the result that any compensation made to the complainant shall be refunded to the appellant.
35.It is so ordered.