Bernard Kioko Musyoka alias Kajanja v Republic [2019] KEHC 6558 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITUI

CRIMINAL APPEAL NO. 46 OF 2016

BERNARD KIOKO MUSYOKAALIASKAJANJA........APPELLANT

VERSUS

REPUBLIC..........................................................................RESPONDENT

(Being an Appeal from Original Conviction and Sentence in Mutomo

Principal Magistrate’s Court Criminal Case No. 176 of 2016

by Hon. S. K. Ngii (RM) on 12/08/16)

J U D G M E N T

1. Bernard Kioko Musyoka aliasKajanja,the Appellant, was charged as follows:

Count 1 – Breaking into a Building and Committing a Felonycontrary to Section 306(a)of the Penal Code.Particulars of the offence were that on the night of 5thand 6th May, 2016at unknown time at Syamati Village, Kanziko Locationin Ikutha Sub-Countyin Mutomo Countywith intent to steal jointly with others not before Court broke and entered Syamatani Puband did steal from therein 10 bottles of Tusker beer, 7 bottles Allsopps beer, one carton of Kenya Kane beer, calculator and Keg Pump all valued at Kshs. 32,950/= the property of Mutungu Katili.

In the alternative he was charged with the offence of Handling Stolen Goodscontrary to Section 322(1)as read with Section 322(2)of the Penal Code.Particulars of the offence were that on the 11th May, 2016at 5. 00 p.m.at Kyatune Trading Centre, Kyatune Locationin Mutomo Sub-Countywithin Kitui Countyotherwise than in the course of stealing dishonestly retained one calculator the property of Mutungu Kitiliknowing or having reason to believe it to be stolen or unlawfully obtained.

Count 2 – Breaking into a Building and Committing a Felonycontrary to Section 306(a)of the Penal Code.Particulars of the offence were that on the night of 5thand 6th May, 2016at unknown time at Syamati Village, Kanziko Locationin Ikutha Sub-Countyin Mutomo Countywith intent to steal jointly with others not before Court broke and entered the shop of Mwende Nzuvaand did steal from therein 8 pieces of Golden Lotion, 12 pieces of Minara Coconut Oil, 12 pieces of Body Lux, Baby Powder, 3 pieces of Star Rose Lotion, 3 pieces of Utensil Cleaner, 4 pieces of Motorcycle Tubes, 6 pieces of Shaving Machines, 12 pieces of Tea Leaves, 10 packets of Match Box, 23 pieces of Colgate, 23 pieces of Puncture Stickers and 124 Pens all valued at Kshs. 7,535/=the property of Mwende Nzuva.

In the alternative he was charged with the offence of Handling Stolen Goodscontrary to Section 322(1)as read with Section 322(2)of the Penal Code.Particulars of the offence were that on 11th May, 2016at 5. 00 p.m.at Kyatune Trading Centre, Kyatune Locationin Mutomo Sub-Countywithin Kitui Countyotherwise than in the course of stealing dishonestly retained 7 pieces of Golden Lotion, 8 pieces of Minara Coconut Oil, 8 pieces of Body Lux, Baby Powder, 3 pieces of Star Rose Lotion, 3 pieces of Utensil Cleaner, 4 pieces of Motorcycle Tubes, 6 pieces of Shaving Machines, 8 pieces of Tea Leaves, 5 packets of Match Box, 23 pieces of Colgate, 23 pieces of Puncture Stickers and 124 Pens all property of Mwende Nzuvaknowing or having reason to believe them to be stolen or unlawfully obtained.

Count 3 - Breaking into a Building and Committing a Felonycontrary to Section 306(a)of the Penal Code.Particulars of the offence were that on the night of 5thand 6th May, 2016at unknown time at Syamati Village, Kanziko Locationin Ikutha Sub-Countyin Mutomo Countywith intent to steal jointly with others not before Court broke and entered the shop of Mary Mbisuand did steal from therein 10 pieces of Tissue Paper, 12 pairs of Dry Cells, 3 pieces of Weigh Scale Stones, 5 packets of Match Box, 48 pieces of Exercise Books, 12 pieces of Tooth Brush, 2 pieces of Steel Wire, 16 Pens, 2 boxes of Razor Blades, 2 dozens of Paper Bags, one packet of Toffee Sweets, 18 Pencils, 12 pieces of Scouring Pads, 12 pieces of Sanitary Pads and one packet of Parking Paper Bags all valued at Kshs. ……the property of Mary Mbisu.

In the alternative he was charged with the offence of Handling Stolen Goodscontrary to Section 322(1)as read with Section 322(2)of the Penal Code.Particulars of the offence were that on 11th May, 2016at 5. 00 p.m.at Kyatune Trading Centre, Kyatune Locationin Mutomo Sub-Countywithin Kitui Countyotherwise than in the course of stealing dishonestly handled 7 pieces of Tissue Paper, 10 pairs of Dry Cells, 5 packets of Match Box, 27 Exercise Books, 2 pieces of Steel Wire, 2 dozens of Paper Bags, 18 Pencils, 10 pieces of Scouring Pads, 7 pieces of Sanitary Pads and one packet of Parking Paper Bags the property of Mary Mbisuknowing or having reason to believe them to be stolen or unlawfully obtained.

2. He was taken through full trial, found guilty, convicted on all three Counts and sentenced to three (3) years imprisonmenton each Count.  The sentences were to run concurrently.

3. Aggrieved, he mitigates on sentence. He urged that he has served two (2) years imprisonment therefore sought to be released.

4. The State/Respondent through learned Counsel Mr. Mambaargued that there was no proof that the Appellant has been rehabilitated.  He called for the dismissal of the Appeal.

5. Following the Application this Court sought a Probation Officer’s Report.  It was established that the Appellant does not have any professional and technical training and while in prison there has been some intervention as he is undergoing rehabilitation and training which will enable him to acquire technical skills.  The Appellant confirmed that he is learning carpentry.

6. In the premises, this is not a suitable case of being placed on a non-custodial sentence.

7. In the result, the Appeal fails and is dismissed.

8. It is so ordered.

Dated, Signed and Delivered at Kitui this 15th day of  May, 2019.

L. N. MUTENDE

JUDGE