Christopher Kimomwe v Republic [2013] KEHC 593 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

APPELLATE SIDE

CRIMINAL APPEAL NO. 512 OF 2010

(From Original Conviction and Sentence in Criminal Case No. 228 of 2010 of the Senior

Resident Magistrate’s Court at Taveta – C. N. Ndegwa, SRM)

CHRISTOPHER KIMOMWE ……………………………………. APPELLANT

-  Versus  -

REPUBLIC  ……………………………………………………  RESPONDENT

JUDGMENT

1. The appellant has filed this appeal against conviction and sentence.

2. He was charged with the offence of Burglary contrary to Section 304(2) and with the offence of stealing contrary to Section 279(b) of the Penal Code.  The particulars of the offence are- 

“BURGLARY AND STEALING CONTRARY TO SECTION 304(2) AND STEALING CONTRARY TO SECTION 279(b) OF THE PENAL CODE CHRISTOPHER KIMOMWE:  On the night of 26^th May 2010 and 27^th May 2010 at unknown time at Mshengoni Village in Taveta District of the Coast Province, jointly with others not before Court broke and entered a dwelling house of ROSE MAGHANGA with intent to steal therein and did steal from therein one bed and twelve pieces of timber all valued at Kshs. 7,500/- the property of ROSE MAGHANGA.”

3. At the end of trial before the Magistrate's Court the Appellant was convicted and charged and was sentenced to six years imprisonment on each limb of the charge to run concurrently.

4. This is the first Appellant Court as such the duty laid upon this Court was well set out in the case OKENO -VS- REPUBLIC 1972 E.A. 32 where it was stated-

“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya V. R. (1957 E.A. 336) and the Appellate Court’s own decision on the evidence.  The first Appellate Court must itself weigh conflicting evidence and draw its own conclusions.  (Shantilal M. Ruwala V. R. (1957) E.A. 570).  It is not the function of the first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusion; it must make its own findings and draw its own conclusions.  Only then can it decide whether the Magistrate’s findings should be supported.  In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses, see Peters V Sunday Post, (1958) E.A. 424.”

5. The prosecution evidence was to the effect that PW2 on 26th May 2010 at 8.00pm saw three young men carrying a wooden bed.  She called out to the Appellant by the name Kimomwe but he did not respond.  The other two that were with the Appellant ran away.  The Appellant could not run because according to her he was drunk.  PW2 informed other people in the village what she had seen.  Those people were the ones who recovered the bed from the Appellant.  The Appellant was then handed over to the Administration Police (AP).  It was PW2 who informed the complainant PW1 that her house had been broken into.

6. On being cross examined PW2 said-

“It appears you wanted to sell the bed to Mama Musyoka but she refused to buy the bed on realizing that it had been stolen.”

7. PW1 stated that she was informed that her farm house had been broken into on the following day that is 27th May 2010.  She was informed by PW2 that someone had been arrested from stealing from her farm house.  On going to the AP's Camp she found the Appellant there.  She identified the bed as belonging to her.  She said that no one was living at that house when theft took place.  She identified the bed by saying 'I know how the joints were made using nails not bolts and I had used it before.'  In evidence she also confirmed that indeed her house had been broken into.

8. PW3 identified himself as a member of the youth and stated that it was a youth member that had informed him that on 26th May 2010 at 8.30pm the Appellant had been arrested with a stolen bed.  He saw the Appellant and the wooden bed at the scene of his arrest.  He confirmed that the Appellant was arrested whilst in the homestead of Mama Musyoka.

9. PW4 an AP Corporal stated that on 26th May 2010 at 10.00pm he was at the AP's Camp when he heard screams.  He was in the company of another AP Officer.  They together went to enquire what was happening.  They found about 20 villagers surrounding the Appellant. Members of the public informed them that the Appellant was found with a stolen wooden bed.  They re-arrested the Appellant.  On 27th Mary 2010 PW1 attended the AP's Camp and identified the bed.

10. In his defence the Appellant tendered unsworn statement.  He stated that on 26th May 2010 at 6.30 he went to the home of Mama Musyoka to take alcohol called 'Mnazi'.  While he took the alcohol together with the other customers PW2 came and talked to Mama Musyoka then left.  In regard to PW2 the Appellant stated 'she was my girl friend and we even got a child together'.  At 9.00 he left Mama Musyoka's homestead and as he reached the main road he met two men and two women.  PW2 was one of those women.  One of the men held him by the shirt and said 'leo tumekupata'.  They beat him he screamed and it was then that the AP Officers came on the scene.  He was taken to the AP Post.  He denied that the wooden bed was recovered from him.

11. In his appeal the Appellant submitted that the charge was defective but this ground is rejected.  I have looked at the charge and the particulars of the offence and I find that it is in conformity with Section 214 of the Criminal Procedure Code Cap 75.

12. The Appellant submitted before Court and indeed it was part of his defence in the lower Court that PW2 was his girlfriend.  It is noteworthy that when PW2 gave evidence the Appellant did not raise the issue of the alleged relationship while cross examining her.  This can only mean that the allegation was an afterthought and is therefore rejected.  Further, even if PW2 was on a vengeance mission against the Appellant he failed to explain the evidence of the AP Officers who responded to screams and came and found the Appellant under arrest by the villagers. The AP Officer also in evidence stated that at the place where the Appellant was arrested there was the wooden bed which was later identified by PW1 as belonging to her.  The Appellant's defence in regard to his alleged relationship with PW2 is therefore rejected in the light of the aforesaid.

13. The Appellant was of the view that the prosecution should have called the villagers that were present as witnesses.  In my view the prosecution called the material witnesses who testified in regard to the offence the Appellant faced.  It was not necessary to call all the villagers who came to the scene after the event that is after the Appellant had been arrested.  In my view the evidence adduced by the witnesses that were called by the prosecution was sufficient to sustain a conviction.

14. The Appellant submitted that the prosecution's evidence was contradictory and could not be relied upon.  The contradiction he referred to was that PW2 stated that the Appellant was arrested by the villagers and yet PW3 stated that he had been informed by PW2 that she was the one who arrested the Appellant.  In the Court's view that contradiction if it can be termed as contradiction does not affect the weight of the prosecution’s evidence.  In any case what PW2 stated was 'the bed MF1 was recovered from him (Appellant) by the villagers'. PW3 on that issue said-

'On 26th May 2010 at 8.30pm I was at home when Leny Bakari (PW2) came and told me that she had arrested the accused with a stolen bed”.

It should be noted that the witnesses testified in Swahili language.  With that in mind it is important to note that the Swahili word for sighting someone doing an act or arresting a person is one.  It therefore follows that those statements do not show a contradiction. 

15. In the Court's view with the finding of the bed of the complainant in the possession of the Appellant and with the evidence of the breaking in of the complainant's house will lead this Court to infer that the Appellant was the house breaker and the burglar.  Accordingly the doctrine of recent possession will therefore apply as was stated in the case ERIC OHERIO ARUM -VS- REPUBLIC CRIMINAL APPEAL NO. 85 OF 2005.  The Court in that case set out when the doctrine will apply as follows-

“… in our view, before a Court of law can rely on the doctrine of recent possession as basis of conviction in a criminal case the possession must be positively proved.  In other words, there must be positive proof, first; that the property was found with the suspect, secondly that; that property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly that the property was recently stolen from the complainant.  The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other.  In order to prove possession there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property and in our view any discredited evidence on the same cannot suffice no matter from how many witnesses …”

16. Considering that doctrine the bed was positively identified by PW1. 

That bed was recently stolen.  That bed was found in the possession of    the Appellant.  The doctrine is satisfied and accordingly I find that the Appellant was correctly and properly convicted.

17. On sentence, the Appellant submitted that the trial Court's sentence was harsh.  An Appellant Court should not interfere with the discretion of the trial Court in sentencing unless the trial Court overlooked some immaterial facts and took in account some immaterial factors or acted on a wrong principle where the sentence is manifestly excessive.  See the case WANJEMA -VS- REPUBLIC [1971] E.A. 493.

18. The trial Court sentenced the Appellant to six(6) years imprisonment on each limb of the offence which sentences were to run concurrently.  Under Section 304(2) of the Penal Code the maximum sentence is ten(10) years.   Under Section 379 of the Penal Code the maximum sentence is fourteen(14) years.  The Appellant was stated to be a first time offender bearing in mind the provisions of the above Sections I do not find that the sentence of the trial Court was either excessive or harsh.  Accordingly the Appellant's appeal against conviction and sentence is dismissed. 

Dated and delivered at Mombasa this 19^th  day of  December,   2013.

MARY KASANGO

JUDGE