Wesley Kirui v Republic [2017] KEHC 275 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BOMET

CRIMINAL APPEAL NO. 27   OF 2015

WESLEY KIRUI...........................APPELLANT

-VERSUS-

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

(Being the appeal from the original conviction and sentence in Criminal Case No. 928 of 2012 Bomet PMs court Hon. Kiage - RM)

JUDGMENT

The  appellant  herein was convicted and sentenced to a fine of Kshs.80,000/=/- in default two years imprisonment for a charge of stealing stock C/S 278 of the penal code.

The particulars were that on the night of 20th and 21st December 2012 at Kaboleseno he stole one heifer of the value of Kshs.40,000/= the property of Cheruiyot Langat.

In his judgment, the learned trial magistrate did observe (and correctly so) that no prosecution witness saw the accused steal the cow in question and that the evidence before him was circumstantial in nature.

The prosecution in this case concedes to the appeal on the grounds that there was no proper description of the thing that was stolen.  The charge sheet refers to an heifer.  No colour was given.

PW1 who is the complainant describes his cow as an Asian heifer.  PW2 description of the cow was merely that it had no horns.

PW3 did not give the description of the cow at all.

PW4 gave the description of the cow as an Asian one.  I am in agreement with prosecution counsel that there was no proper description  of the stolen cow.  Nobody saw the accused steal the cow.  If the cow was slaughtered no efforts appear to have been made to recover the skin which could have helped in identification. This case was not proved beyond reasonable doubt.  The appeal has merit and its allowed.

The conviction is quashed and sentence set aside.

The appellant is set at liberty unless otherwise lawfully held.

Judgment delivered dated and signed this in the presence of learned counsel for the prosecution Mr. Barasa, the appellant in person court assistant.

M. MUYA

JUDGE

3/11/17