JAMES WAFULA KHAMALA v REPUBLIC [2010] KEHC 4074 (KLR)

REPUBLIC OFKENYA

IN THE HIGH COURT

AT BUNGOMA

CRIMINAL APPEAL NO.9 OF 2010

(Appeal arising from Original CM CR. NO. 25 OF 2008)

JAMES WAFULA KHAMALA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::                    APPELLANT

~VRS~

REPUBLIC:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::         RESPONDENT

JUDGMENT

The Appellant James Wafula Khamala appeals against the judgment of Bungoma Resident Magistrate. He was convicted of handling stolen goods contrary to section 322 (2) of the Penal Code and sentenced to seven (7) years imprisonment.

The grounds of appeal are that the trial court convicted the Appellant without adequate evidence . No exhibit was produced and that the evidence relied on was hearsay. The Appellant contends that the sentence of seven (7) years imprisonment was harsh and excessive.

The appeal was opposed by the state on grounds that there was sufficient evidence to convict the Appellant. The state counsel conceded to the reduction of the sentence arguing that it was excessive and that the Appellant’s co-accused were only jailed for two (2) years.

The Appellant was acquitted of the main charge of store breaking and committing a felony contrary to section 306 (a) of the Penal Code and convicted of the alternative charge of handling a stolen generator. He was sentenced to seven years imprisonment.

It was the evidence of PW2 that he had given his vibrator machine to one Allan Njuguna PW1. The borrower kept the vibrator in his store at his petrol station in Bungoma. During the post election violence which was around the material dates, the service station was burnt and the vibrator stolen. PW2 got information that there was someone who was selling a vibrator inBungoma Town. PW2 sought the help of the police. Police advised that someone be given cash to go and pose as a buyer of the machine. PW2 gave his driver Ksh.15,000/= to buy the machine. PW6 and other police officers accompanied PW2 and his driver to the house of the Appellant. An ambush was laid and the Appellant arrested. The vibrator machine on recovery was photographed and released to the complainant. PW6 testified on he accompanied the complainant to the house of the accused. His colleague P.C. Ndombi entered the house with the driver of PW2 who was posing as a buyer. The Appellant was arrested as he sold the machine.   PW2 identified the machine as his property using the purchase receipt which had a serial number 36012795. The other mark on the machine was loss of the starting lever which helped PW2 to identify the machine.

During the hearing of the case, the photographs of the machine were produced. PW2 and PW6 identified the photographs in court, PW2 as the owner and PW6 as one of the police officers who assisted to recover the machine. The machine had been released to the complainant for use after it was recovered. The purchase receipt was also an exhibit in court.

The Appellant argues that the machine ought to have been produced physically in court. I do not find this necessary in that the owner identified the photographs and  produced the purchase receipt bearing the serial number. PW2’s evidence was corroborated by that of PW6 who saw the machine on recovery and arranged for the same to be photographed. PW6 identified the photographs in court.

In his defence, the Appellant explained how he was arrested from his house on the material day around8. 00 p.m. He denies that he had the machine.The trial court did not believe the defence. The magistrate said the Appellant failed to give a reasonable explanation on how he came into possession of the machine. The magistrate found the evidence of PW2 and PW6 credible.

I agree with the trial court that the evidence of PW2 and PW6 was watertight and was not shaken by the general defence of the appellant. In the absence of an explanation on the possession of the stolen property, the Appellant was bound to be convicted. The conviction was based on cogent evidence rendering the grounds of appeal not merited. I accordingly uphold the conviction.

On sentence, the maximum provided for by section 322 (2) of the Penal Code is fourteen (14) years imprisonment. The seven (7) years imposed was within the law. However, the Appellant was a first offender and this is a factor that ought to have been considered while  sentencing him.

The Appellant has only served less than one (1) year in prison. I set aside the seven (7) year imprisonment sentence and substitute it with three (3) years imprisonment.

F. N. MUCHEMI

JUDGE

Dated, Delivered and Signed at Bungoma this 1st  day of November, 2010 in the presence of the Appellant and the State Counsel Mrs. Letting.

F. N. MUCHEMI

JUDGE