Republic v Otieno alias Angira (Criminal Case 536 of 2013) [2013] KEMC 110 (KLR) (19 November 2013) (Judgment)
Neutral citation:
[2013] KEMC 110 (KLR)
Republic of Kenya
Criminal Case 536 of 2013
PA Ndege, Ag. PM
November 19, 2013
Between
Republic
Complainant
and
Yusuf Ochieng Otieno alias Angira
Defendant
Judgment
1.The Defendant herein, Yusuf Ochieng Otieno Alias Angira, was on 23.09.2013 charged with the offence of Stealing c/s 268 as read with 275 of the Penal Code. He denied that on 19.09.2013 at Isebania town Kuria West District within Migori County, he stole cash Kshs. 380,000/= the property of Welli Ahmed Dirir.
2.The evidence for the prosecution is that the complainant, PW1, Welli Ahmed Dirir, had on 18.09.2013 hidden Kshs. 380,000/= beneath some of his goods in his shop. That the following day, he received some more goods to stock in his shop. He therefore decided to call the defendant herein, who was known to him as Angira and who normally offloads for him the stocks, to help him offload the goods from the vehicle that had been used to supply them. He at first instructed the defendant to create space inside the shop, by moving some of the goods that were in the shop, so as to create some space for the new supply. That the defendant herein did the assignment as agreed and left after being paid Ksh. 250/=. The complainant, PW1, Welli Ahmed DIRIR, then went to look for the money from where he had hidden it. He was surprised to find the money missing. He immediately suspected the defendant herein because he was the only one other person who had entered the shop.
3.He reported to Isebania Police Station where he was attended to by PW4, No. 77XXXX CPL Albashir Olow, a CID officer based at the station.
4.PW1, Welli Ahmed Dirir, then also contacted PW2, Mohammed Ali Musa, who then also contacted PW3, Elias Mahat Hussein, another businessman at Migori.
5.PW3, Elias Mahat Hussein, informed the court that PW2, Mohammed Ali Musa, gave him the description of the defendant herein, but did not tell him what they wanted him for, or that he had stolen any money from them. That he later spotted the defendant herein while in front of his kiosk and immediately alerted PW2, Mohammed Ali Musa, who then also contacted PW1, Welli Ahmed Dirir.
6.PW4, No. 77XXXX CPL. Albashir Olow, accompanied them to Migori where the defendant saw them and attempted to escape. They, however, managed to chase after him and were able to arrest him with the assistance of the members of the public. PW4, No. 77XXXX CPL. Albashir Olow, did a search on the defendant and was able to recover Ksh. 66,300/= from his black jacket. He produced the money and the jacket as PEXH. Nos. 1 and 2, respectively.
7.The Defendant, when called upon to defend himself, denied stealing the money herein. He stated that he knows the complainant herein who he plays with football but denied having worked for him. He denied having been found with the money alleged herein. He confirmed that he was arrested by police officers who then planted the money herein on him.
8.I do find the prosecution's case to be flowing and consistent on how the complainant placed his money under the goods that the defendant herein was later hired to arrange so as to create space for the new supplies. The defendant had the opportunity to steal the money when he was arranging the goods as instructed.
9.The complainant immediately realised that the money was missing. The defendant herein was arrested on the same day while with part of the money. I do not see any reason for the complainant herein or PW4, to plant the money on him so as to falsely implicate him herein.
10.Even PW3, who assisted in tracing him confirmed that he did not know why PW2 needed him. He therefore appears honest and I do believe his evidence which corroborates the evidence of the other prosecution witnesses that the defendant herein attempted to escape away from the complainants and the police officers herein when he saw them, and that the money herein, PEXH. No. 1 was recovered from PEXH. No. 2, a black jacket/ jumper that he wore and was not therefore planted on him, as claimed in his defence. The fact that he did not run away from the area even after having stolen the money cannot in any way be a basis to exonerate him from the fact that he was found with the money herein, shortly after a large sum of money was reported stolen from PW1's shop where he had been engaged to work. All the witnesses are consistent that he attempted to escape away from the complainants herein when he saw them at Migori before being arrested while with the money herein. His attempt to run away from them infers his guilt.
11.I find the prosecution's evidence to be flowing and consistent, and do hereby find the defendant guilty pursuant to the presumption of likely facts under section 119 of the Evidence Act.
12.He had the opportunity to steal the money herein. He attempted to run away from the complainants herein when he spotted them at Migori while they were looking for him. Part of the money was found in his possession. He did not offer any reasonable account of how the amount was found i his possession. He instead flatly denied that he did not have the money and that the same was planted on him. I have already found the prosecution's evidence that he was found with the money to be reliable, in light of PW3's honest and corroborative evidence of the same. It is highly likely under section119 of the Evidence Act that the defendant herein stole the amount herein
13.Consequently, I do hereby convict him pursuant to section 215 of the Criminal Procedure Code of the offence of Dealing c/s 268 as read with 275 of the Penal Code.
DATED, SIGNED AND DELIVERED AT KEHANCHA IN OPEN COURT THIS 19TH DAY OF NOVEMBER, 2013ALOYCE-PETER-NDEGEAG. PRINCIPAL MAGISTRATEIn the presence of;Court interpreter: MagigeProsecutor: CIP MachariaDefendant: Present