Nicholas Ouma Omollo v Republic [2015] KEHC 4614 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CRIMINAL APPEAL NO. 137 OF 2013

NICHOLAS OUMA OMOLLO..............................APPELLANT

VERSUS

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

[Appeal from Original Conviction and Sentence from Senior Principal Magistrate's Court : D. CHEPKWONY – SPM at Nyando

in Criminal Case No.359 of 2012. ]

JUDGMENT

The appellant was charged with the offence of breaking into a building  and committing  a felony contrary to Section 306(a) of the Penal Code .  The particulars of the offence are that on the night of 21st and 22nd March 2012 at Boya Centre in Kebongo Sub-location in Nyando District stole assorted items valued at Kshs. 77,680/= which belonged to  one Charles Omondi Odwar.

The appellant was equally charged with handling  stolen property contrary to Section 322(1)(2) of the Penal Code.

The appellant  was convicted  and sentenced to 7 years imprisonment  hence this appeal.

The Petition of appeal dated 6. 2.2013 is basically on mitigation.  The appellant is praying for forgiveness as he was remorseful.

Briefly the fact of this case are that  the complainant, PW1, Charles Omondi Odwar closed his shop at around  6. 30 p.m  on 21/3/2012.   At  around 6. 30 a.m he was called by the landlord who informed him of the break in  his premises . He went  to the scene and saw what had transpired.  He  then reported to the police, listing all the items that had been stolen.

On 11/4/2012  he was called by Tom Ogallo PW2, a member of the community  policy to  identify some items found in some home.  He went  to the scene where he met the appellant.  Upon searching , they found  the stolen  bicycle which he identified together with other assorted items.  They were found in the appellant's mother's house who  was not present at the time.

The appellant was then arrested and taken to  Boya Police  station  where PW3 Laban Anunda carried  out the the investigations.  He  later produced the various assorted recovered  items which were produced as  evidence  in court.

The appellant  gave unsworn evidence  denying the charge.  He however confirmed that the stolen items including the bicycle  were recovered in his presence  at his mother's house.

The State opposed the appeal  arguing that  the appellant  was an habitual offender and that putting him behind bars would help him reform.  In any case the State argued, the sentence was proper and not unlawful.

Having perused the proceedings as well as heard the oral submissions by the  appellant  and the learned state counsel I do not find any sufficient reason to allow the appeal.  The same is proper in law and this court can only interfere if it is illegal or inconsistent with the law.  In other words the court shall interfere with the sentence if the trial court considered such  extreneous  matters  in arriving  at its decision.  I  find  that even at the mitigation level the appellant was economical with the truth by alleging  that he was an orphan yet his mother  testified against him.  He did not deny that he served another sentence  for a similar offence of stealing.

The appeal is hereby dismissed.

Dated, delivered this 25th day of  May 2015

H.  K. CHEMITEI

JUDGE