Maurice Oduol Orido v Republic [2004] KEHC 1508 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CRIMINAL APPEAL NO. 255 PF 2002

MAURICE ODUOL ORIDO………………………………………..APPELLANT

VERSUS

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

JUDGMENT

Maurice Oduor Orido the appellant was jointly charged with another person before the Chief Magistrate’s Court Kisumu in Criminal Case No. 163 of 2002 for burglary and stealing from a dwelling house contrary to sections 304(2) and 279 (b) of the Penal Code. In the alternative they were charged with handling stolen goods contrary to section 322(2) of the Penal Code. They denied both the main charge and the alternative and accordingly they were jointly tried before Mr. F.M. Kinyanjui Senior Resident Magistrate who at the end of the trial found the appellant who was the 2nd accused at the trial Court guilty of the alternative charge of handing stolen property contrary to section 322 (2) of the Penal Code. Thereafter the appellant was sentenced to 6 years imprisonment with hard labour. It is against both the conviction and the sentence that the appellant lodged this appeal.

Mr. Onyiso for the appellant submitted as part of ground 6 of the petition of appeal which is argued first that the charge was defective in that it mixes receiving of the stolen property with retention of it for the benefit of another.

The particulars of this charge are as follows:-

Morris Oduor Orido,

“On the 21st day of May 2002 at Obuga Estate in Kisumu District within the Nyanza Province , than in the course of stealing, dishonestly retained one TV set make Panasonic S/No. 816397 valued at Kshs. 28,000/- knowingly on having “reasons to believe it to be stolen property.”

It is evident to me that the alternative charge preferred against the appellant did not fully comply with the provisions of the offence under section 322 (2) of the Penal Code. There were two omissions in that alternative charge. The first one related to the phrase “otherwise than in the course of stealing” which ought to have been inserted into the charge. The charge as laid appears to contain the phrase except “oltherwise.” This omission may be said to be curable. The second irregularity relates to the phrase “by or for the benefit of another person, “which was completely omitted from the charge. As this phrase is an essential ingredient of the offence under this section it was Mr. Onyiso’s contention that there was a miscarriage of justice and that his client was prejudiced by it. Ordinarily Section 382 of C.P.C. saves the decisions of the lower Courts on appeal from bang set aside when irregularities errors on omissions are discovered unless such errors have in fact occasioned failure of justice. I note that in the present case the appellant was not represented in the lower Court and the learned magistrate did not appear to be aware of the said defects in the alternative charge. In the circumstances I hold that the omissions in the alternative charge did in fact occasioned injustice and prejudiced the appellant.

It is also correct that the learned magistrate relied on the accomplice evidence of the 1st accused who claimed that the TV set was brought by the appellant and yet she had admitted that she was not present when that was done. It was necessary for the magistrate to seek corroboration of such evidence before being used.

In the result I allow this appeal. The conviction of the appellant is quashed and the sentence is set aside.

Dated and delivered this 23rd April 2004.

B.K. TANUI

JUDGE