Venard Maruti v Republic [2013] KEHC 1823 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT  OF KENYA AT ELDORET

CRIMINAL APPEAL NO. 140 OF 2010

VENARD MARUTI  …................................................................  APPELANT

=VERSUS=

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

JUDGMENT

BENARD MARUTI, was convicted on two (2) counts of Burglary contrary to Section 304 (2) of the Penal Code, and Stealing contrary to section 279 (a) of the Penal Code.

The 2 sets of offences were committed  on 21st and 22nd March, 2010, respectively.  He was then sentenced to imprisonment for 5 years on each count.

In his appeal, the appellant raised a total of six (6) issues.  However, when canvassing the appeal, Mrs Khayo, the learned advocate for the  appellant abandoned 4  of those issues.

The appellant submitted that the case  against him was not proved  beyond any reasonable doubt.  He pointed out that P.W.1 failed to prove the ownernship of the television set which had allegedly been stolen from him.  The mark by which P.W.1 had identified the television set was only fixed on the item after it had been recovered.

Meanwhile, the son of P.W.1 did not testify, yet the beddings in issue had been used by him for about 10 years.  The  said beddings  were said to have been  stolen from the house where P.W.1's  son lived.  Therefore, the appellant submitted that P.W.1 was not  the owner.

As regards P.W.2, he had said that his 2 tables had been stolen.  Those  tables were  cream and brown, respectively.  However,  the tables exhibited in court were green and cream.

The  appellant submitted that the discrepancy was  vital, as the complainant   had identified his tables by their respective colours.

The  complainants were  faulted for failing to produce receipts to prove  their assertions of ownership.

Meanwhile,  the trial court was faulted for shifting the burden of proof to the appellant, by finding that the appellant did not  prove that he was the owner of the various items which he is alleged to have stolen.

Finally, the appellant submitted that the sentences were excessive.  As far as he was concerned,  he ought to have been given a non-custodial sentence.

In answer  to the appeal, Ms Ruto, learned State Counsel, submitted that the conviction was well founded.  It was the Respondent's  contention that the complainants  had properly identified the various items that had been stolen from them.

The  television is said to have had the initials of the complainant, whilst the  2 tables   had  the name of the complainant written under them.

On the issue of the sentences, the Respondent submitted that the same were reasonable.

Being  the first appellate court, I have re-evaluated all the evidence on record, and drawn my own conclusions.

P.W.1, REUBEN AMBETI SITINGO, was the complainant in count 1.  He said that at about 3. 00 a.m. on 21st March, 2010, his T.V.  And DVD  were stolen from his house.  A curtain and a table-cloth were also stolen.

When  P.W.1 checked  on his son's house, he found that a mattress, blanket and bedsheets were missing.  P.W.1 reported the incident at the Nangili Police Patrol Base.  Later, the T.V., mattress, Bed-sheet and blanket were  recovered from the house of the appellant, in Soy trading centre.

Although  P.W.1 did not have any receipt for those items, he identified the T.V. as his because he had inscribed the initials “A S” on the back of the T.V..  Contrary to the appellant's  contention, P.W.1  did not inscribe those initials after the T.V. was recovered.

I find that the said initials, which stand for “Ambeti Sitingo” is sufficient proof of ownership by P.W.1. The  mattress belonging to P.W.1's son was also identified  by P.W.1.   He was  able to do so because the mattress had been in  his custody for 10 years.  Similarly, P.W.1 identified the blanket and bed-sheets as they had been in his home for a considerable period of  time.

To my mind, there is  no legal requirement that ownership can only be proved through documentary evidence, such as receipts.  Whilst receipts may constitute the  easiest way to prove ownership, it is not the only medium through which ownership can be proved.  The initials of the  owner of the goods can constitute sufficient proof of ownership.

Similarly, if a person had used or owned any item for a considerable period  of time, he may prove  that he was the owner by simply pointing out any feature that enabled him to identify the item as belonging to him.

Thus, when  P.W.2 picked out the 2 tables which were  inscribed with his name, that was sufficient proof of ownership.   But what  colour were the tables?  The learned trial magistrate  indicated that they were  cream and brown.  But  P.W.2 appears to have identified one green table.

If the colours were different from the ones on the  tables  of P.W.2, and if P.W.2 identified the said tables by their respective colours, then there would  definitely be a problem.  However, it is important to note that P.W.2 identified the tables because each of them was inscribed with his names.

The items belonging to P.W. 1 and to P.W.2 were recovered from the house of the appellant, in Soy trading centre.  Neither  P.W.1 nor P.W.2 had seen the person or persons who stole from their respective  houses.  Thus, the only thing connecting the appellant to the two offences was the recovery of the stolen items, from the appellant's house.

When  the prosecution had closed its case, the learned trial magistrate directed  that the items be released to the 2 complainants, if  the appellant did not claim ownership of the same.  The appellant  told the trial court that none of the six (6) items belonged to him.

The  trial court ordered that the 2 tables be released to P.W.2, whilst the T.V., Mattress,  Bed-sheet and blanket were to be released to P.W.1.

Before giving those directions, the learned trial  magistrate was satisfied that those two complainants had proved their ownership of the respective items.

Having  re-evaluated the evidence, I am also satisfied that P.W.1 and P.W.2 had proved ownership to the respective items, which  were then released to them.

When the appellant was  put to his defence, he confirmed that the items  were recovered in his possession.  But  he then  said that he had bought the said items, and that  he therefore had receipts for them.  This  is what the appellant  added, during cross-examination;

“I  was arrested  by P.C. Shikuku (P.W.3).  Certain  items wererecovered in my possession.  I saw them produced in court”.

If there was any need for confirmation that the items which were stolen from P.W.1 and P.W.2, were recovered  from the house of the appellant, then the appellant personally confirmed  that position.

Curiously, however, he went on to say that the  said items were not recovered from his house.   I say that that is curious because  the appellant never challenged the evidence of the prosecution witnesses when all of them said that the exhibits were recovered from his house.

In any event,  the appellant expressly confirmed that the exhibits were found in his possession.  Therefore, whether or not the place where he had the items was his  house or not, would not be material.  As  the items were recovered whilst in the appellant's possession, some six (6) days after they were stolen  from their respective owners, the doctrine of  recent  possession was properly invoked by the learned trial magistrate.

Accordingly, I find no merit  on the appeal against conviction.   As regards the sentences, I note that under section 304 (2) of the Penal Code, the offence of burglary attracts the sentence of 10 years imprisonment.

Meanwhile, the offence  of stealing attracts the sentence of 14 years imprisonment, pursuant to section 279 (b) of the  Penal Code.

Those  legal provisions, coupled with the fact that the appellant was not a first offender, leads  me to hold that the sentences  of 5 years imprisonment on each of the counts was actually lenient.

I find no reason to justify the appellant's  contention, that he should have been given a non-custodial sentence.

In the result, the appeal is dismissed.  I  uphold both the conviction  and the sentences.

DATED, SIGNED AND DELIVERED AT ELDORET

THIS  23RD DAY OF OCTOBER, 2013.

FRED A. OCHIENG

JUDGE.