MASUMBUKO KILONZO MUTHAMI vs REPUBLIC [2000] KECA 129 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: AKIWUMI, TUNOI & SHAH, JJ.A.)

CRIMINAL APPEAL NO. 54 OF 2000

BETWEEN

MASUMBUKO KILONZO MUTHAMI .......................................................... APPELLANT

AND

REPUBLIC .......................................................................... RESPONDENT

(Appeal from a judgment of the High Court of Kenya at                 Mombasa (Commissioner K. Shah) dated 21st September,                                                                1999

in H.C.CR.A. NO. 281 OF 1998) ********************

JUDGMENT OF THE COURT

The appellant was charged before the District Magistrate's Court at Kwale with the offence of stealing stock, contrary to section 278 of the Penal Code and was convicted of the said offence on 19th September, 1998. He was sentenced to a term of seven years imprisonment with hard labour and was ordered to receive ten strokes of the cane. He was accused of stealing, jointly with one Masumbuko Chengo Mulingu, 45 goats belonging to Rashid Ndeyo Nyanjo. The appellant's first appeal to the superior court was dismissed on 21st September, 1999 and it is against that dismissal that the appellant now appeals.

The facts leading to the conviction are that the complainant (Nyanjo) found out that his forty five (45) goats went missing from his homestead at Mombasa Ndege, Lunga Lunga in Kenya, on the night of 20th/21st August, 1997. The following morning, that is, 21st August, 1997 he followed the tracks made by his goats. He was informed that five of his goats had been found in Tanzania. He went across the border to Maforeni Police Station in Tanzania where he found those five goats which he identified as his. He got information to the effect that two men were suspected of attempting to sell his goats to PW4, Elifraha Maromoko (Maromoko).

The appellant offered to sell those five goats to Maromoko claiming to be the owner thereof. Maromoko was suspicious. He was told that the goats originated from Kenya. Maromoko however, offered to buy the goats but insisted that the deal ought to be consummated at the police station. A bargain was struck in the presence of a Tanzanian police officer and Maromoko offered to pay T.Shs.60,000/= for the five goats. Maromoko then retired to his home. The complainant who had reached there claimed the goats as his. They went to the police station where they found the appellant and oTnhee otghoeart s alwreeraed ys tionl ecnu stiond yK.enya. Within a few hours of the theft five of the goats, which bore the complainant's brand marks on them, were found in the possession of the appellant who was attempting to sell them. The learned District Magistrate was convinced that both the accused persons (appellant being one of them) were in possession of the five goats and quite properly convicted them of the offence of stock theft invoking the doctrine of recent possession. We find no misdirection whatsoever on the part of the learned magistrate.

Equally we find no misdirection on the part of the superior court (Commissioner of Assize, Kassim Shah Esquire). The Commissioner said:

"The evidence shows that theft of goats occurred in the middle of the night; tracks in the morning led towards Maforoni; bare ly seven hours after the theft the Appellant was actively engaged in selling the goats; goats were identified by the brand marks; the arrest of the Appellant and finally but most importantly, the Appellant's defence. The defence is not worthy of belief in face of the overwhelming evidence. He was found with the goats and he either stole them or handled them. His explanation that he was set -up is patently false.".

The appellant, who argued his appeal in person, did not really take issue with his conviction. He urged that the sentence of seven years imprisonment with hard labour and strokes was too harsh and called upon the Court to show mercy to him. This Court cannot interfere with the sentence on the issue of severity thereof. This Court can interfere with, inter alia, an illegal sentence. Section 278 of the Penal Code provides that such an offender (for stock theft) is liable to imprisonment for a period not exceeding fourteen years together with corporal punishment. The section does not provide for imposition of hard labour. The sentence, therefore, as meted out to the appellant, insofar as the hard labour is concerned is illegal and that portion of the sentence is ordered to be set aside.

This appeal is otherwise dismissed.

Dated and delivered at Mombasa this 19th day of January, 2000.

A. M. AKIWUMI

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

JUDGE OF APPEAL

P. K. TUNOI

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

JUDGE OF APPEAL

A. B. SHAH

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

JUDGE OF APPEAL

I certify that this is

a true copy of the original.

DEPUTY REGISTRAR