Republic v John Chacha Marwa [2018] KEHC 5726 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MIGORI

CRIMINAL CASE NO. 35  OF 2017

REPUBLIC...................................................................................PROSECUTOR

-VERSUS-

JOHN CHACHA MARWA..................................................................ACCUSED

JUDGMENT

1. The Appellant herein, JOHN CHACHA MARWA was charged with the  offence of Burglary contrary to Section 304 (2) and Stealing contrary to  Section 279 (b) of the Penal Code.

The particulars were that ‘On the night of 28th January, 2016 at Uriri  shopping centre Uriri Sub – County in Migori County within the Republic  of Kenya jointly with others not before Court broke and entered the   tailoring shop of JOHN OLUOCH ODERO with intent to steal and did  steal from therein assorted clothes valued at Kshs. 18,600 the property of   the said JOHN OLUOCH ODERO’.

2. On denying the charge a trial was held where four (4) witnesses testified.   They were John  Oluoch Odero who testified as PW1.  He was a tailor  and ran his business at Uriri Township and whose premises were broken  into and assorted items stolen.   PW2 was No. 232698 C. I. David  Nyakundiwho was the OCS of Uriri Police Station.   He had taken his  trousers for repair to PW1 which was stolen when PW1’s premises was  broken into.   David Okoth Otieno was PW3.   He was also a tailor who  ran his business at Uriri Township just like PW1.   His premises were also  broken into in the same night with that of PW1.   The Investigating  Officer No. 67968 Corporal Fidelis Kisimbai from Uriri Police Station  testified as PW4.

3. The undisputed facts were that PW1’s and PW3’s business premises at  Uriri Township were broken into and assorted items stolen therefrom on  28/01/2016.   They reported the matter to Uriri Police Station and on  10/02/2016 PW2 was called by his Counterpart from Awendo Police  Station and informed of assorted suspected stolen properties which the  appellant had been arrested with.  PW2 confirmed from his station that  there were reports of breaking and asked his counterpart to avail the  suspect and the properties to Uriri Police Station.  That was done.

4. On receipt of the goods and the suspect, PW2 was shocked to see the  suspect (now appellant) wearing the stolen PWI’s  trousers  which PW2  had taken to PW1 for repairs and which was as well stolen  alongside other clothes.  PW2 confirmed the trouser by some buttons he  had put at some strategic areas.  PW1 was called and conformed that the  trouser which the suspect wore was  among the  items stolen from his  premises which had been brought by PW2 for  repair.   The appellant  disowned the ownership of the trouser which he wore at the time of his  arrest.

5. The appellant was then placed on his defence and gave unsworn  testimony.   He stated that he was travelling from Migori to Awendo in a  vehicle which was stopped at a road blocked and when the passengers  were told to confirm their luggage one of them ran away and the police  told him to carry the luggage to the police car and headed to Uriri Police  Station where PW2 stated that the trouser he wore looked like his.

6. The appellant was convicted vide a judgment that was delivered on  01/03/2017 on both limbs of the charge and sentenced to two (2) years  imprisonment.

7. The appellant challenged the conviction and sentence after he had  served one half of the sentence.  His appeal was admitted with the leave  of this court on 19/10/2017 but still delayed filing the appeal upto  04/12/2017.  Be that as it may the appeal was heard and the appellant  relied  on his  written submissions filed on 19/04/2018.   He contended  that it was not proved that he was the assailant.

8. I have carefully perused the record and I am satisfied that the appellant  was convicted to the theft and burglary in issue.   The trouser which he  wore at the time of arrest belonged to PW2 and had been stolen from  PW1’s premises during a break in.   The appellant did not even contend  ownership of the very trouser he wore.   In fact the appellant is very  lucky that he was not charged with a more serious offence of handling  suspected stolen property.   I therefore do not find any merit in his  appeal against conviction.

9. On sentence, the term of two (2) years was reasonable in the  circumstances. The appellant has by now served around three –  quarters of the sentence. In the spirit of decongesting the prison  facilities, I hereby admit the appellant to Community Service for the  remainder of his term to be supervised by the relevant Officer in –  charge of Uriri Sub-County.  Save for the review of the sentence, the  appeal is hereby dismissed.

Orders accordingly.

DELIVERED, DATEDand SIGNED at MIGORI this 28th day of June 2018.

A. C. MRIMA

JUDGE

Judgment delivered in open Court and in the presence of: -

John Chacha Marwa  the Appellant person.

Miss Atieno, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Respondent.

Evelyne Nyauke – Court Assistant