Silas Ojasi Bakoye v Republic [2014] KEHC 974 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CRIMINAL APPEAL NO.93 OF 2012

(An Appeal arising out of the conviction and sentence in Busia CMC.No.1082 of 2011 delivered by I.T Maisiba P.M on 19th November 2013)

SILAS OJASI BAKOYE …………………………………….APPELLANT

VERSUS

REPUBLIC ………………………………………..……….RESPONDENT

J U D G M E N T

This Appeal is conceded by the State.  In it the Appellant had challenged his conviction and sentence on the offence of Breaking into a Building and committing a felony contrary to Section 306 (a) of the Penal Code.

It had been alleged that the Appellant together with Henry Omondi Ogama (hereinafter A1) and Edwin Odembo (hereinafter A2) on divers dates between 13th September 2011 and 19th September 2011 at unknown time at Funyula Township in Busia County jointly broke and entered a building namely a store of VINCENT OGUTU OLUMBE and committed therein a felony namely theft and did steal from therein 10 tins of 20 litres pain (assorted), 8 flash doors and 15 panel doors all valued ksh404,000 the property of the said VINCENT OGUTU OLUMBE.

The concession by the State was, in my view, well taken.  There was evidence that the door to Funyula Economic Trust had been broken into sometime between 13th September 2011 and 19th September 2011.  The building was still under construction and someone had closed it with changed padlocks.  The evidence of Fredrick Khadudu Khaduli (PW2), Vincent Olumbe (PW3) and P.C. Daniel Kayo (PW4) is that the Appellant had been hired by A1 to cut the old lock.  But the evidence is that A1 had misled the Appellant into believing that he was the owner of the premises: The Appellant could not therefore have had the mens rea to commit the offence.

The Appeal is allowed, the conviction quashed and sentence imposed on 19th November 2012 set aside.  The Appellant shall be set free forthwith unless detained for some other lawful reason.

F. TUIYOTT

J U D G E

DATED, DELIVERED AND SIGNED AT BUSIA THIS 2ND DAY OF DECEMBER 2014.

IN THE PRESENCE OF:

KADENYI ………………………………………………COURT CLERK

OWITI…….………………………………………………..FOR STATE

MANWAR….…………………………………………FOR APPELLANT