Josphat Nyakundi Muhere v Republic [2018] KEHC 4116 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

CRIMINAL APPEAL NO.  73 OF 2017

(Being an appeal arising from Kitale Chief Magistrate's Court

CriminalCase No. 2981 of 2013 delivered by  P.W. Wasike

Resident Magistrate on 12/9/2017)

JOSPHAT NYAKUNDI MUHERE..............APPELLANT

VERSUS

REPUBLIC....................................................RESPODNENT

J U D G M E NT

1.  The appellant was charged with  the offence of Stealing contrary to  Section 275 of the Penal Code.  The particulars of the offence was that on the 26th day of October 2013 at Kitale Municipality within Trans County  stole motorcycle Bajaj Boxer 150 CC Red  registration number KMDB 499 U valued at Kenya shillings 94,000/= the property of Patricia Aluoch Luma.

2. The appellant denied the charge and after full trial he was convicted and sentenced to 4 years imprisonment hence this appeal.

3. Before looking at the grounds of appeal, its worthy to summarise the evidence as presented during trial.

PW1 Patricia Aluoch Luma stated that she purchased the said motor cycle  for the sum of kshs 94,000/= with the intention of using it for boda boda business.  She then entered into an agreement with the appellant where he was to use the same and pay her kshs 500/- per day. They entered into a written agreement which was marked but not produced.

4. The appellant did use it for one month but later did not remit the money as agreed.  On 26/10/2013 she was found drunk at  Grassland bar by the    complainant's  daughter. He was arrested and put in the cells. He said that the motorcycle was lost.

5. PW2 Dorine Otieno testified that she was the daughter to PW1 and that she knew the appellant very well. That on 26/10/203 she was informed by the appellant's wife that he was drinking at grassland bar and he did not   have the motorcycle. He was arrested and taken to the police station.

6. PW3 Walter Luma  Abwao is the husband to PW1. He confirmed that they purchased the motorcycle from Suam  for purposes of business. He identified the agreement between PW1 and the appellant.

7. PW4 Jackson Ngeywa Soet a pastor testified that he prayed for the motorcycle on 6/8/2013.  The same  had been brought to his house by the appellant and PW1.

8. When put on his defence the appellant  denied the charge in his sworn evidence. He explained how he was unwell on 15/11/2018 when thereafter he was arrested by  police officers after coming back from hospital.

9. On cross-examination he said that he had his own motorcycle and that PW1 did not employ her.

Analysis and Determination

10. I have gone through the  proceedings carefully as well as the written submissions by the State counsel as well as  the appellant. The grounds raised by the appellant in his appeal point to the fact that the prosecution did not prove its case beyond reasonable  doubt and that the trial court relied on circumstantial evidence in arriving at its decision.

11. The State has conceded to his appeal on the grounds that the offence of Stealing  was not proved. In particular the  State averred that there was no mens reaproved on the part of the appellant.

12. Looking at the evidence as presented by the prosecution I do not think this conceding  holds water. There is no doubt that there was a relationship between the appellant and PW1. These are people who knew each other. I  am persuaded that though the exhibit s were not produced, the appellant was indeed given the motorbike to undertake boda boda business for the complainant.

13. If then he was in possession of the motorcycle, where did  it go.  Infact it was the appellant's wife who informed PW2 that he was drinking at grassland bar and he did not have  the motorcycle.

14. I do not see any other reason why he did not return  the property to the owner.  Neither is there any malice by the complainant against the appellant.  These are people who knew each other and the pastor whom I can call an independent witness saw both the appellant and the complainant when they brought the motorcycle to be prayed for.

15. Consequently I do not find the appeal meritorious. The defence tendered by the appellant on trial did not oust the evidence of the prosecution.

16. This appeal is  dismissed. In view of the mitigation offered by the appellant in his closing submission I shall order that he be released forthwith unless lawfully held and to serve the remainder of the term under probation within the relevant jurisdiction as shall be determined by the  Trans Nzoia County Probation Officer.

Orders accordingly.

Delivered, signed and dated at Kitale this  27th day of September, 2018.

__________________

H.K. CHEMITEI

JUDGE

27/09/18

In the presence of:

Mr Kakoi for the Respondent

Appellant – present

Court Assistant – Kirong

Judgment read in open court