|Criminal Appeal 15 of 2009
|GODANA ABDI v REPUBLIC
|31 Mar 2011
|High Court at Meru
|Mary Muhanji Kasango
|GODANA ABDI v REPUBLIC  eKLR
|(From original Criminal case No. 76 of 2008 at Marsabit PM’S ccourt: J.Kiarie (PM)
|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 HIGH COURT OF KENYA
CRIMINAL APPEAL NO. 15 OF 2009
(From original Criminal case No. 76 of 2008 at Marsabit PM’S ccourt: J.Kiarie (PM)
The prosecutor called eight witnesses. The facts of the prosecution case were that the complainants’’ cows and those of others in Gudas village, Laisamis location were stolen by armed men, on 9th March 2008. PW 6 and PW7 were together grazing part of the stolen herds. PW6 had 110 head of cattle of his own while, PW 7 had 210 cattle belonging to his brother, PW5. On the 11th April 2008 at about 11.30 a.m., the appellant and another took one bull, photographed as Exh 1, to the home of PW2, and asked to be allowed to keep it there. The bull was eventually identified by PW5 as one of the cows stolen from his brother PW7 in the grazing field. Eventually the appellant was arrested and charged for the offence.
We have carefully analyzed and evaluated afresh the entire evidence adduced before the learned trial Magistrate while bearing in mind that we neither saw nor heard the witnesses and giving due allowance. We were guided by the court of appeal decision OKENO V. REPUBLIC  EA 32. Where the role of a first appellate Court is given as follows:
Mr. Musau opposed this appeal. The learned state counsel urged that since bulls are not fast moving, the doctrine of recent possession applied.
The prosecution relied on the doctrine of recent possession. The prosecutions case was that the appellant delivered one bull to the home of PW2. The cattle had been stolen on 9th March 2008. The bull was taken to PW2’s home on 11th April, 2008 one month after the theft. The question is whether one month is recent possession of a bull.
In this case we are told that there were over 300 head of cattle which were stolen at Gudas location of Laisamis District. The bull in question surfaced one month later in Marsabit District, Mata-Alba sub location. The difference in distance between the two locations are not discussed anywhere in the evidence, however it is clear that the place where the cattle was stolen was a different district from the place where the bull was recovered.
Having come to this conclusion we find that the prosecution had not proved that the appellant was one of those who stole the complainants’ bull and other animals from others in Laisamis, as charged in both count 1 and 2.
In order to prove the charge, the prosecution has to prove that the bull was stolen; that the appellant had knowledge or reason to be have that it was stolen; that he honestly undertook or assisted in its retention, removal, disposal as realization by or for the benefit of another person .See Ondogo –vs- Rep 1983KIR 301.
We are satisfied from the evidence adduced that the bull was sufficiently identified as the property of the complainant, PW6. The appellant did not lay any claims on it.
The prosecution has shown that the appellant had knowledge or reason to believe that the bull was stolen. We find this proved from the evidence of PW1 where he stated that as soon as the appellant who was guarding the bull in PW2’s home after tethering it saw the police approaching in a vehicle, he abandoned the bull and ran away. PW1 traced him later having traveled a distance and in the process of crossing into Galkasa sub location. We find the appellants’ conduct of fleeing from the home of PW1 proof that the appellant had knowledge or reason to believe that the bull had been stolen or dishonestly received.
We have confirmed that as required, the learned trial magistrate made no finding in respect of the alternative charge of handling stolen goods.
We do set aside the finding of guilty to count 1 for the main count of robbery with violence contrary to section 296 (2) of Penal Code and the sentence therein. We substitute this with the alternative count of handling stolen goods contrary to section 322 (2) of the Penal Code.
We have considered that the appellant was a first offender. We also saw him in court. He is a young person. The offence of handing stolen goods contrary to section 322 (2) of Penal Code calls for a maximum sentence of 14 years imprisonment with hard labour.
DATED SIGNED AND DELIVERED AT MERU THIS 31ST DAY OF MARCH 2011.