Case Metadata |
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| Case Number: | Criminal Appeal 125 of 1993 |
|---|---|
| Parties: | James Angaga Ayiembo v Republic |
| Date Delivered: | 15 Jun 1994 |
| Case Class: | Criminal |
| Court: | High Court at Kisumu |
| Case Action: | Judgment |
| Judge(s): | Erastus Mwaniki Githinji |
| Citation: | James Angaga Ayiembo v Republic [1994] eKLR |
| Court Division: | Criminal |
| County: | Kisumu |
| Case Summary: | 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) |
| Case Outcome: | Appeal Allowed. |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CRIMINAL APPEAL NO. 125 OF 1993
JAMES ANGAGA AYIEMBO......................................................................APPELLANT
VERSUS
REPUBLIC.................................................................................................RESPONDENT
(From original conviction and sentence in Criminal Case No 128 of 1992 of the District Magistrate’s Court at Tamu: A Kosambo, Esq DM1)
JUDGMENT
Appellant was convicted for the offence of shopbreaking and stealing contrary to section 306 (a) of the Penal Code and sentenced to 3 years imprisonment and 4 strokes of the cane. He appeals against conviction and sentence.
The shop of the complainant was broken into on the night of 15th May, 1992 and goods worth about 6,705/= stolen. Joanes Okelo Owando (PW2) whose house is adjacent to the shop heard the complainant’s shop being broken. He came out from his house. He was in the company of George Owino Ochere (PW3). A person came out of the shop and ran away. Another person who is the appellant came out of the shop carrying two rims and two tyres. He was arrested in possession of those items and taken to the police station.
Appellant claimed that he was coming from a disco in the company of his girl friend when he was stopped and arrested.
The evidence of PW2 and PW3 is not precise. They do not say how far away they arrested the appellant from the complainant’s shop. It was dark. They do not also say how the appellant was carrying the items. They do not describe terrain over which they were chasing the appellant PW2 says that appellant was carrying two tyres and two tubes while PW3 says that appellant was carrying a pump, a wheel and a rim. Without a clear description of the circumstances under which appellant was arrested, there is no evidence upon which the Court can safely conclude that appellant was one of the people who broke into the shop and that appellant was not merely an innocent passer by. It is surprising that although PW2 and PW3 went to the scene at the time the shop was being broken into and properties have stolen many of the stolen things were not recovered. It is unlikely that the person who ran away carried all the stolen things.
I find that there is a reasonable doubt as to whether appellant was one of the thieves. Consequently, I allow the appeal, quash the conviction and set aside the sentence. Appellant to be released forthwith unless lawfully held for another offence.
Dated and Delivered at Kisumu this 15th day of June 1994.
E.M.GITHINJI
JUDGE
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