GABRIEL NJERU NJIMUKO vs REPUBLIC [2002] KECA 277 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL

AT MOMBASA

(CORAM: OMOLO, LAKHA & OWUOR, JJ.A)

CRIMINAL APPEAL NO. 108 OF 2001

BETWEEN

GABRIEL NJERU NJIMUKO .................................

APPELLANT

AND

REPUBLIC ..............................................

RESPONDENT

(Appeal from the Judgment of the High Court of Kenya at

Mombasa (Commissioner of Assize, Khaminwa) dated

19th December, 2000

in

H.C.CR. APPEAL NO. 435 OF 1999)

****************

JUDGMENT OF THE COURT]

Gabriel Njeru Njimukowas jointly charged with another

with the offence of container breaking and stealing contrary

to  section 279(g) of the Penal Code. He was convicted and

sentenced to seven years imprisonment with four strokes of the

cane.

His first appeal to the superior court was dismissed. He

has now appealed to this Court which can only entertain

questions of law under section 361(1) (a) of the Criminal

Procedure Code (CAP 75)Laws of Kenya. The particulars of the

offence with which he was charged and convicted stated that

:"Between 27th June 1999 and 11th July 1999, in Kilindini

Port within Mombasa District of the Coast Province,

jointly with others not before court, broke into

container number PCIU-230747-0 and stole from there-in seventy one (71) television sets make Soundmax LG

Model CF-14D16 all valued at Kshs.1,192,800/= the

property of Kimago Clearing and Forwarding Company

Limited.

Before us the only one point of law that was raised was

with regard to the question of his identification as the

person involved in the offence charged, but this point is a

simple one and need not trouble us or detain  us. This is

because the appellant made an inquiry statement which was

produced and to which he did not object. In that statement he

admitted to have assisted the driver in carrying 28 television

sets contained in cartons.

In these circumstances, his identification was not in

dispute. The evidence against him was overwhelming. There is

no merit in this appeal. The sentence imposed was lawful.

Accordingly, the appeal is dismissed.

Dated and delivered at Mombasa this 24th day of January,

2002.

R.S.C OMOLO

...............

JUDGE OF APPEAL

A.A. LAKHA

...............

JUDGE OF APPEAL

E. OWUOR

...............

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR