Silas Wawire v Republic [2014] KEHC 4922 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CRIMINAL APPEAL NO.  125 OF  2010

SILAS WAWIRE …........................................................................    APPELLANT

=VERSUS=

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

JUDGMENT

The Appellant SILAS WAWIRE,  was convicted for the offence of SHOP BREAKING   and COMMITTING A FELONY  Contrary to Section 306 (a) of the Penal Code.  He was then sentenced to two (2) years imprisonment.

The conviction was based on the Appellant's own plea of “Guilty”.   However, he has  challenged the conviction on the grounds that the facts which were given by the prosecution did not reveal the Criminal  Offence.

The learned State Counsel, Mr. Mulati, conceded the  appeal.  He shared the Appellant's  view, that the facts of the case did not disclose any offence.

What were  the facts which the prosecution put forward?  They are as follows:-

“On 11/08/2010, the complainant who stays in Langas area

left his workshop where there were  several items including

sofa sets and stools amongst others.  When he returned he

found one double seater sofa set and a two-seater sofa missing.

He commenced investigations and the matter was reported

at Langas Police Station.  The accused persons were then

arrested.  One single-seater sofa set was recovered with four

small tables.  They were then charged.”

It is to be noted that the Appellant was charged alongside one other person, hence the use of the word words “They were then charged.” Those  facts do not indicate the person or persons from whom the sofa set and the small tables were  recovered.  Therefore, the facts do not link the Appellant to the offence.

In any event, the facts do not indicate any breaking into any premises or any theft from any such premises.  When  the offence is one of breaking into a premises and stealing from there, it is necessary that the facts in support of that charge should bring out those essential ingredients of the offence.  It  is also necessary to have facts which connect the accused person with the acts complained  about.

But that was not done in this case.

Furthermore, whilst the charge sheet cites one double-seater sofa set and two single-seater sofa set as the properties  which were missing from the complainant's  show-room, the facts presented  by The prosecution made reference to the recovery of 4 small tables and one single-seater sofa set.

As no tables were cited in the charge sheet, it is not  clear how they were connected to the offence.  In  the result, I find  that the Respondent was right to have conceded the appeal.  Accordingly, the appeal is allowed.  I  quash the conviction and set aside the sentence.

I  order that the Appellant be set at liberty forthwith unless he is otherwise lawfully held.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET,

THIS   20TH  DAY OF  MAY,  2014.

….............................................................

FRED A. OCHIENG

JUDGE.