|Criminal Appeal 69 of 1979
|Mendo Chacha v Republic
|13 Jun 1980
|Court of Appeal at Kisumu
|Eric John Ewen Law, Chunilal Bhagwandas Madan, Kenneth D Potter
|Mendo Chacha v Republic eKLR
|Individual v Government
Mendo Chacha v Republic
Court of Appeal, Kisumu
13th June 1980
Madan, Law & Potter JJ A
Criminal Appeal No 69 of 1979
Theft - handling stolen property - doctrine of recent possession – goods handled not identified as goods stolen.
A gang attacked a shopkeeper and his wife and stole various clothes and materials from the shop. A few hours later, the appellant was seen carrying a bundle of new clothes in the bush near a river. He was charged with the robbery, but at his trial he denied having been involved or having been found with any luggage near the river. Although the clothes found in the bundle which he was carrying were not identified with the property stolen from the shop, he was convicted on the basis that the doctrine of recent possession applied. On appeal,
The appeal would be allowed since the failure to identify the goods found in the bundle carried by the appellant with the property stolen from the shop precluded the application of the doctrine of recent possession.
No case was referred to in the judgment.
Mendo Chacha appealed to the Court of Appeal (Criminal Appeal No 69 of 1979) against the order of Cotran J of 14th September 1979 dismissing his appeal against his conviction for robbery. The facts are set out in the judgment of the court.
|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
IN THE COURT OF APPEAL
(Coram: Madan, Law & Potter JJ A)
CRIMINAL APPEAL NO. 69 OF 1979
MENDO CHACHA ..............................................APPELLANT
JUDGMENT OF THE COURT
The appellant was convicted of robbery contrary to section 296(1) of the Penal Code and sentenced to five years’ imprisonment and 10 strokes. His appeal to the High Court was dismissed. This is a second appeal.
During the hours of darkness on the night of 1st November 1978 Samuel Muhere, a shopkeeper in Kihancha market, was woken up by bangs at the door of his shop. There were noises and gun shots fired. A window was broken, a torch flashed and a gun pointed at him through the window. He was told to sit down, which he did. His wife was shot in her hand. The back door of the shop was cut open and about ten people came in. Two of them guarded him. One had a gun and the other a panga and a bow and arrows. Some of the raiders went into the shop. Muhere came out after the gang left. He went into the shop to find that it had been cleared out, there was nothing left. All his shop goods, like ready-made clothes, blankets, khaki and other materials had been stolen.
A few hours later on the morning of the same day two administration police officers, Nelson and Ogola, saw the appellant carrying a bundle of new clothes in the bush near a river. He threw down the bundle on seeing these police officers. He was arrested and taken to Kihancha police station.
The appellant denied on oath in Court that he was involved in the robbery. He also swore that he was not found carrying any luggage near the river on 1st November 1978.
The appellant was convicted on the basis of the doctrine of possession of property recently stolen. His appeal to the High Court was dismissed on the same basis, the judge saying “the doctrine of recent possession applied in his case. He did not offer an explanation and he was rightly convicted”.
We consider the appellant’s conviction cannot be sustained. The goods found in the bundle with which he was arrested were not identified as part of the property stolen from Muhere’s shop and, as his conviction was based on recent possession, this was a fatal defect. Properly, State Counsel does not support the conviction.
We allow the appeal, quash the appellant’s conviction and set aside the sentence. The appellant is to be set at liberty unless otherwise lawfully held.
Dated and delivered at Kisumu this 13th day of June 1980.
JUDGE OF APPEAL
JUDGE OF APPEAL
JUDGE OF APPEAL
I certify that this is a true copy of the original