Joseph Ingutia & Daniel Aywa Oluyayi v Republic [2013] KEHC 5627 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CRIMINAL APPEAL NO. 165 OF 2009

JOSEPH INGUTIA

DANIEL AYWA OLUYAYI .………….…..…………….. APPELLANTS

VERSUS

REPUBLIC …………………………………………..………………. RESPONDENT

(Being an appeal from the conviction and sentence of G.O. Oyugi RM delivered on 29/10/2009 in Butere Senior Resident Magistrate Criminal Case No.  559 of   2009)

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(Before B. Thuranira Jaden J)

J U D G M E N T

The 1st Appellant Joseph Ingutia Andiereand the second appellant, Daniel Aywa Oluyayi were charged with the offence of stealing stock contrary tosection 278 of the Penal Code.

The particulars of the offence were that on the night of 14th and 15th July, 2009 at Ikoko village, Ebubala Sub Location, ShirombaLocation in ButereDistrict within Western Province, jointly stole one cow and one male calf all valued at Kshs.18,000/= the property of Monica Bweya Owaro.

In the alternative, the 2nd appellant, Daniel Away Oluyayi was charged with the offence of handling stolen property contrary to section 322 (2) of the Penal Code.

The particulars of the offence were that on the 17th day of July 2009, Emukhwangi village, Ebubala Sub Location after Shianda Location in Butere District within Western Province otherwise than in course of stealing dishonestly retained one cow and male calf knowing or having reason to believe them to be stolen property.

After a full trial, the 1st and 2nd appellant and another already before were convicted and sentenced to seven years imprisonment each.  The appellants were aggrieved by the conviction and sentence and appealed to this court.  Although each of the appellants had filed their respective appeals H.C.CR.A No. 165/2009 and H.C.CR.A No. 164/2009, the two appeals were consolidated and heard as one.  This judgment is in respect of both appeals.

The case for the prosecution was that the complainant, PW1 Monica Bweya Owaro of Ikoko village had on the material day locked her cow and calf in her kitchen for the night.  The following day she found the house had been broken into and the cow and the calf were missing.  The matter was reported to the village elder and to the police.

On 17/7/2009, the cow and the calf were traced to the home of the 1st appellant.  The 1st appellant named the 2nd appellant as the one who had taken the animals to him before they were sold to one Peter Majimbo Onindo (already before court).

The animals were recovered and taken to Manyulia A.P. camp then escorted to Butere Police Station.  The appellants were then charged.

In his defence, the 1st appellant, Peter Majimbo gave unsworn evidence.  No witnesses were called.  The 1st appellant stated that it was the 2nd appellant who took the cows to him to look after them on his behalf.  He stated that the animals were not recovered from his home.

The 2nd appellant in his defence gave unsworn evidence.  No witnesses were called.  He stated that he was arrested on allegations of stealing the cattle.  He further stated that the two cattle were recovered from the home of one Peter Majimbo.

The appellants’ grounds of appeal can be summarized as that the prosecution evidence was insufficient and that there was variance between the evidence of prosecution witnesses and the particulars of the offence.  Mr Oroni for the State relied on the evidence on record.

The complainant (PW1) testified on the question of theft.  She did not know who had stolen her animals but identified the same after they were recovered.

The evidence against the 1st appellant is that the cow and the calf were seen at his homestead before they were later found at the home of Peter Majimbo where they were recovered from.  The 2nd appellant was mentioned by the 1st appellant as the one who took the cattle to the home of the 1st appellant before taking them to the home of Peter Majimbo.  The evidence against the 2nd appellant is that of an accomplice.  The same required corroboration.

There was no evidence of stealing adduced against the 1st appellant.  The circumstantial evidence against the 1st appellant was that the cow and the calf were first seen in his compound before they were later recovered at the home of Peter Majimbo.  Whether the 1st appellant handled the stolen cows or was involved in the said theft does not come out clearly from the evidence on record.

Although the evidence adduced in the defence case was weak, a conviction is based on the strength of the prosecution case and not the weakness of the defence case.

The prosecution case was not proved beyond reasonable doubts.  The appeal has merits.  I therefore, quash the conviction and set aside the sentence.  The 1st and 2nd appellant are at liberty unless otherwise lawfully.

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B. THURANIRA JADEN

JUDGE

Dated and delivered at Kakamega this 18thday of April 2013.

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SAID J. CHITEMBWE

JUDGE