Hassan Abdullahi Abdi v Republic [2013] KEHC 2767 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL APPEAL NO. 273 OF 2011

HASSAN ABDULLAHI ABDI ………………………………  APPELLANT

VERSUS

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

(From original conviction and sentence in criminal case No. 145 of 2011 of the Principle Magistrate Court at Mandera before R.Odenyo  , Principal Magistrate)

JUDGMENT

The appellant was convicted of the offence of malicious damage to property contrary to Section 339 (1) as read with Section 339 (3) (b) of the Penal Code and sentenced to three years imprisonment.  He lodged an appeal against the said conviction and sentence raising several grounds the bottom line of which was that, the case was not proved beyond reasonable doubt to warrant his conviction.  That ground was based on the fact that the appellant was not properly identified by the witnesses to place him at the scene of the said offence.

The offence having been committed at night it was not possible for the witnesses to conclusively identify the appellant considering the existing conditions.  There was also the submission that the evidence adduced by the prosecution witnesses and upon which the appellant was convicted was contradictory thereby casting doubt on his conviction.

At the hearing of this appeal the learned counsel for the Republic conceded the same on the ground that the only witnesses whose evidence alleged to have placed the appellant at the scene of crime were P.W. 3 and P.W. 4.  Whereas P.W. 3 said the appellant was not among the people demolishing the house, with the same breath he said he identified him with the aid of torches.  However, P.W. 4 on the other hand said there was darkness and this was contradicting the evidence of P.W. 3.

I do not deem it necessary to address the other grounds of appeal raised by the appellant alongside the elaborate submissions by his learned counsel, for the reason that the learned counsel for the Republic having conceded the appeal that shall not prove necessary.

Accordingly, this appeal is allowed conviction quashed and sentence set aside.  In the event the appellant is still serving sentence, he shall be release forthwith unless otherwise lawfully held.

Orders accordingly.

Dated and delivered at Nairobi this 4th Day of June, 2013.

A. MBOGHOLI MSAGHA

JUDGE