DANIEL CHARO KARANI VS The Republic DANIEL CHARO KARANI VS The Republic

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

CRIMINAL APPEAL NO. E046 OF 2023

DANIEL CHARO KARANI ………………………………………........….………...APPLICANT

VERSUS

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

(An Appeal arising out of the conviction and sentence by Hon. Onalo J. K. Olga SRM delivered on 3.3.23 in Malindi Criminal Case No. 112 of 2017)

JUDGMENT

The Appellant was charged and convicted of the offences of arson, contrary to Section 332(a) of the Penal Code and stealing by servant, contrary to Section 281 of the Penal Code. The particulars of the first offence are that on 13.1.17, at Tamani Jua area in Malindi Sub-county within Kilifi County wilfully and unlawfully set fire to building namely a dwelling house and garage both valued at Kshs. 3,000,000/= the property of Daniela Malanchini (the Complainant). The particulars of the second offence on the same date and in the same place, being a servant of the Complainant, fraudulently and without claim of right took 1 Dayliff generator, 3 gas cylinders of 13kgs each, 1 Armco microwave, 1 stand fan, 2 Samsung fridges, 1 dog, 1 Airtel router 1 32” Samsung TV, all valued T Kshs. 305,272/=, the property of the Complainant, which came into his possession by virtue of his employment.
Following a full hearing, the Appellant was convicted and sentenced to 5 years and 2 years imprisonment respectively. Aggrieved by the decision of the trial court, the Appellant filed the appeal against both the conviction and sentence raising the following grounds:
The Learned Judge erred and misdirected herself in both fact and law by failing to appreciate that the Petitioner’s claim was purely a Constitutional Petition which was not governed under the National Land Commission Act.
The Learned Magistrate erred in law in failing to consider the fact that the Prosecution failed to prove both Counts at the standard of proof required by law in criminal charges thereby occasioning discourage of Justice against the Appellant.
The Prosecution failed to show any link between the fire that burnt the Complainant’s house and the Appellant herein thereby creating doubt which ought to have been resolved in favour of the Appellant.
The Learned Trial Magistrate erred in law and facts when she failed to sufficiently analyse and study the evidence brought forth by the Prosecution, which evidence was in any event inconclusive and unreliable that could not sustain a conviction.
The Learned Magistrate erred in law and fact when she failed to find that the evidence against the Appellant neither disclose the offence of Arson or stealing by servant hence the charges preferred against the Appellant had not been proved, and it was therefore a travesty of justice to convict the Appellant based on such faulty evidence.
The Learned Magistrate erred in law and fact when she involved herself in speculative, conjectures, drew irrelevancies and arrived at conclusions not supported by evidence on record and thus her decision was pre-determined, arbitrary and indefensible, biased and has occasioned a serious miscarriage of justice to the Appellant.
The Learned Trial Magistrate erred in law and fact when she declined the Appellant to exercise his right to election under Section 200 of the Criminal Procedure Act.
It is a travesty of justice that the Learned Trial Magistrate omitted to consider the Appellant had presented an alibi defence, which defence was corroborated by the Prosecution witnesses. As such it was not to say that the Appellant was the one who burnt the complainant’s house.
The Learned Trial Magistrate erred in law and fact when she failed to appreciate the Prosecution evidence which demonstrated that the fire that gutted the house was ferocious and that because of its intensity, the items the Appellant I said to have stolen are the one that were completely burnt to debris and ashes.
It was neither desirable nor open in law for the Learned Trial Magistrate to fail to appreciate and give due regard to the lapse of time from the time the house got burnt to the time personnel from Kenya Power came to the scene to prepare a report on the fire which demonstrates that in no way was Kenya Power and Lighting Company would implicate its system for the fire breakout.
The Learned Trial Magistrate erred in Law and fact by not giving any or any adequate consideration and rejecting, ignoring and not appreciating the sworn and unchallenged evidence of the Appellant and not considering the defence of the Appellant judiciously and in its totality.
The Learned Trial Magistrate erred in Law and fact in not addressing herself the evidence tendered by the Appellant in the form of sworn statement which was not displaced even when the Appellant was cross-examined by the State Counsel.
Therefore, it is neither desirable nor open in law that the Trial Magistrate would find it prudent to convict the Appellant on weak circumstantial evidence and that no matter how strong suspicion is, it cannot form the basis for conviction.
That the evidence adduced by the Prosecution was not sufficient to warrant the conviction of the Appellant.
That the decision of the Trial Magistrate was against the weight of evidence and has resulted in miscarriage of justice.
That the Learned Trial Magistrate erred in not establishing that the Prosecution had not proved its case against the Appellant beyond reasonable doubt.
That the sentence handed to the Appellant was too harsh and manifestly excessive in the circumstances of the case.
In totality, the Learned Trial Magistrate erred in law and fact in admitting and relying solely on the Complainant’s evidence while completely ignoring or disregarding the evidence of the Appellant.
In the circumstances of this case and bearing in mind the submissions tendered by counsel for the Appellant but disregarded by the Trial Magistrate, the sentence imposed is manifestly excessive.
The Appellant urged the Court to allow the Appeal, quash the conviction and set aside the sentence.
The Respondent opposed the Appeal vide written submissions dated 25.1.24
As a first appellate Court, I am required to subject the evidence adduced before the trial Magistrate to a fresh analysis and evaluation, while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32 and Kariuki Karanja v Republic [1986] KLR 190).

In support of its case, the prosecution called 8 witnesses.
The Complainant testified that the Appellant, was the housekeeper of her house in Malindi since 1999 or 2000. She had been in Italy for 9 months and was to return on 21.1.17. On 13.1.17, her neighbour Lucy called her and told her that her house was on fire. When the Complainant arrived at her house, she found that the fire was only in the garage, store in the house and the upstairs bedroom. The kitchen was not affected by the fire. The vehicle in the garage was destroyed. Further that 2 full gas cylinders, generator, some furniture, fridge, Airtel router, fridge and television were all missing. The incident was reported to Kenya Power and Malindi Police Station. She stated that she suspected the Appellant because the property is fenced all around and he is the only one who has access to the house, while her other employee Thomas Bahati had keys to the gate. She stated that the missing items were stolen as there were no fragments of the same. The Complainant further stated that the Appellant had in November 2016 asked her for Kshs. 350,000/= because he was in trouble. She did not send it to him and he was not happy. She paid for him rent of Kshs. 180,000/= and left Kshs. 150,000/= for house needs.
PW1 Bahati Thomas Karani stated that he worked for the Complainant as a night watchman for 20 years and the Appellant was the houseboy who worked during the day. On 13.1.17, the Appellant went for him at 6pm and told him the house was on fire. He went and found people trying to put off the fire but the Appellant was not there. The fire was in the garage and the vehicle in it was completely burned, the store attached to the garage was badly burnt. The fire was also in the sitting room and top room. The fire brigade came. On 15.1.17, he recorded his statement. On cross examination, PW1 stated that he was called at 1pm by Kaipali, a neighbour who informed him that the house was on fire. When he got there, he found the Appellant was not there and tried to call him. He came later and started putting out the fire also. The vehicle, mattresses, chairs and beds were burnt.
In his testimony, PW3, Ralph Edward Diaper, stated that on 30.1.17, his gardener David Mwachilambe alerted him that the house of his neighbour the Complainant, was on fire. The Complainant was away in Italy at the time and the Appellant was in charge of the house in her absence. He went there while his wife called G4S who came with the fire brigade and the police. He found the garage and 2 room downstairs on fire. The vehicle in the garage was completely destroyed. PW3, the group from G4S, his househelp made efforts to put out the fire. They had no access as the doors were locked and the Appellant had the keys. They broke the windows fetched water from the swimming pool which they threw into the house to put out the fire. They then discovered that the room upstairs was also on fire. The Appellant was not at the premises when PW3 got there and came later and opened the house. and the fire was put out completely. The bed in the room that had not caught fire had a pile of mosquito net which was wet with petrol or paint thinner, something flammable. The police came and took photographs.
When PW3 called the Complainant to tell her about the fire, she asked him to check for a generator, a large refrigerator in the kitchen store, 2-3 gas cylinders in the garage and a small fridge and telly upstairs. These items including a microwave and oven were missing and there were no remains of the same. He further state that on Saturday, PW1 visited him and expressed concern that the gas cylinders were missing from the garage. On 15.7.17, they went to the police station where PW1 recorded a statement. PW3 recorded a statement later.
PW4 Rashid Ali Mwatere a technician with Kenya Power testified that following a complaint on 23.1.17 that an electricity meter at the Complaint’s house had burned, he and Wycliffe Obura visited the premises. They found the Appellant who told them that he was not present when the fire started but that the same started around the garage. The debris had not been removed from the scene. They observed that the meter and appliances within the meter were burnt but that those of surrounding customers and supply cable were intact as was the service cable from the pole. They concluded that the fire could not have started from an electrical fault.
David Msuko, PW3, stated that he worked as a gardener for PW3. On the material day at around 1pm, as he was going to the shop, he saw the Complainant’s garage and main house on fire. He returned and informed his bosses who called G4S and the fire brigade. Together with G4S, his bosses went into the compound but he remained at the gate to ensure that no one went in. The Appellant arrived later. PW3 later recorded his statement at the police station.
Nelson Karisa Mwandire, PW6 testified that he did causal work at the Complainants’ shamba or house. Before the Complainant left for Italy in 2016, she called him, the Appellant and PW1 to show them items to pack in the garage. The items included 4 rolls of electric wire, pvc pipe and gas cylinders. They placed the gas cylinders in the store in the garage. In December, he had seen a generator but other items were in the store to which he had no access. It was the Appellant who informed him that the house had burned down and when he went there on 15.1.17, he found the house and garage had burned. The Complainant instructed him to clean the house. The Appellant was in charge of the house.
PW7, No. 78316 Cpl Mugendi from DCI, testified that he and inspector Gatende went to the complainant’s house. They found the garage area on fire and the fire brigade was putting it out. He took photographs of various parts of the house and garage and prepared a report which indicated that there was arson. He produced the photographs and the report in court.
No. 235637 Chief Inspector Charles Gatende stated in his testimony that he and Cpl. Mwita went to the Complainant’s house and found fire fighters and G4S trying to put out the fire. In the garage was a motor vehicle which was on fire and the remains of a refrigerator. Some items were burnt and they could not see the remains. In the main house, items in living room and store had been burnt. He did not see the remains of a generator and fridge that the Complainant alleged was in the home. He requested Kenya Power to assist in establishing cause of fire. From the gathered evidence it was confirmed that the fire was not caused by electric fault. He stated that it was not possible for the generator and gas cylinder to burn completely without leaving any remains and further that the Appellant, the only person with access to the house, had not made any report of theft of the items. He thus concluded that the Appellant was responsible for torching the house and garage and for the missing items. He proceeded to charge the Appellant.
At the close of the prosecution case, the Appellant was placed on his defence. In his sworn statement, he stated that on the material day, he went to work at 6 am and found that PW1 had already left. He did his work and then went to Kenya Power to pay the electricity bill. Thereafter while at the market buying food for the cat, he received a call from PW3’s wife who informed him that the house was on fire. Upon arrival, he found many people trying to put out the fire. He denied burning the house or stealing from the Complainant, for whom he had worked for over 18 years. He accused the Complainant of trying to cover up for wronging him. He accused her and PW1 of taking away land that he had bought and forced him to sign an agreement for sale. He stated that the generator and gas cylinders were there in the morning. There were also 2 fridges, air woofer and Samsung TV in the house. Further that if anything was stolen then he and PW1 would be responsible as they were in charge of the house. He further stated that he was the only with access to the house.
Parties filed their written submissions as directed by the Court.
The Appellant urged the Court to disregard ground 1 which was an error. On ground 2, The Appellant submitted that the evidence adduced by the prosecution witnesses raised a lot of doubt on his culpability and fell short of the required standard in criminal trial. He faulted the trial Magistrate for failing to appreciate that the prosecution did not prove the charges against him beyond reasonable doubt. The Appellant urged the Court to consider that prior to the incident, he had worked for the Complainant for more than 18 years with no issues and that differences arose when the Appellant expressed his willingness to quit employment.
On grounds, 3, 4, 5, 6 and 8, the Appellant submitted that the prosecution failed to show any link between him and the fire that broke out at the Complaint’s house while she was away. It was asserted that the Appellant’s alibi defence was never displaced but corroborated by the prosecution witnesses. The Appellant contended that the offence of arson was not proved and further that nothing was recovered from him when he was arrested. Additionally, that the prosecution evidence was circumstantial. Reliance was placed on the case of Joseph Ndungu Kimanyi v Republic [1979] eKLR.
Turning to ground 7, the Appellant submitted that he suffered prejudice by the trial court declining his request to have the case started de novo following the transfer of the presiding trial magistrate. Further that the first 3 witnesses were crucial to the trial. Lastly that had the trial Magistrate agreed to hear their testimony afresh she would have observed their demeanour, and would have arrived at a different decision.
On ground 9, the Appellant submitted that according to the testimony of the witnesses, the fire was so intense that it consumed everything that caught fire. Further that PW3 had testified that the fire was so ferocious and intense that everything that caught fire was consumed. He thus argued that that intensity of the fire was such that the items listed in the charge sheet could not have been spared and were reduced to ashes. As such the said items cannot form the basis of count 2 against him.
As regards ground 10, the Appellant submitted that KPLC personnel visited the premises on 21.1.17 after the debris was cleared from the scene and house cleaned. His contention is that there is no way they could have implicated their system for the fire.
The Appellant further contended that from her testimony, the Complainant did not accuse the him or believe he was culpable. He argued that this can be deduced from the fact that when she arrived in the country on 21.1.17, it was business as usual between them. The Complainant started repairing the house with his assistance. He asserted that it was when he asked to be paid his money so he could leave, that the Complainant went to the police and implicated him. Further, that his lack of a guilty mens rea is demonstrated by the fact that he at no time left the Complainant’s premises. He maintained that the charges against him were as a result of sour grapes as he declined to apologise for something he was not responsible for. The prosecution thus failed to establish mens rea on the part of the Appellant
To conclude his submissions, the Appellant contended that the sentence meted out on him is manifestly excessive. He further submitted that after he was convicted on 6.4.23, the trial court went on leave and that it was not until 9.6.23 that he was sentenced. He asserted that the unexplained 2 months between conviction and sentencing resulted in a miscarriage of justice.
On failure by the trial Magistrate to start the case de novo and to hear the first 3 witnesses afresh, the Respondent submitted that it is not mandatory that a case should start afresh where a succeeding magistrate takes over a matter. Reliance was placed on the case of Joseph Kamau Gichuki v Republic [2013] eKLR.
In order to make a determination on this issue, it is necessary for the court to consider the applicable legal provisions. Section 200 of the Criminal Procedure Code provides:
Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may—
deliver a judgment that has been written and signed but not delivered by his predecessor; or
where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or resummon the witnesses and recommence the trial.
Where a magistrate who has delivered judgment in a case but has not passed sentence, ceases to exercise jurisdiction therein and is succeeded by a magistrate who has and exercises that jurisdiction, the succeeding magistrate may pass sentence or make any order that he could have made if he had delivered judgment.
Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.
Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.
The law is that where a magistrate ceases to exercise jurisdiction in a trial for whatever reason, a succeeding magistrate may continue with a case and proceed on the basis of the evidence recorded by his predecessor. The succeeding magistrate may also opt to resummon witnesses and recommence the trial.
The record shows that the first 3 witnesses testified before Hon. Wandia, RM. When Hon. Onalo, the succeeding Magistrate took over the matter, the Appellant asked that the trial start afresh and that PW1, PW2 and PW3 be recalled. The court declined to have the matter start afresh but recalled PW3 who testified afresh. It is noted that during the hearing of the testimony of PW1 and PW2, the Appellant was represented by an advocate.
Section 200(4) of the Act provides:

Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.

It is evident from the foregoing that where an accused person is convicted on evidence that is not wholly recorded by the convicting magistrate, as in the present case, this Court may if it forms the opinion that the accused person was prejudiced, set aside such conviction and may order a new trial.
In the present case, the Appellant submitted that the first 3 witnesses were crucial to the trial and that had the succeeding Magistrate heard their testimony afresh so as to observe their demeanour, she would have arrived at a different decision. As stated herein, the record shows that PW3 was recalled. AS regards PW1 and PW2, the Appellant has not stated what in their demeanour would have changed the finding of the trial Magistrate. He has also not demonstrated any prejudice that he may have suffered for failure by the trial court to recommence the trial or recall PW1 and PW2. In any event Section 200 of the Criminal Procedure Code is not couched in mandatory terms and the decision to start a trial de novo is discretionary.
This Court thus finds that the trial Court did not err in declining to recommence the trial or to recall the witnesses. In this regard, I am guided by the decision in the case of Joseph Kamau Gichuki v Republic (supra), where the Court of Appeal considered the import of Section 200 of the Criminal Procedure Code and stated:

This Court has previously held that section 200 of the Criminal Procedure Code should be invoked sparingly and only in cases where the ends of justice will be defeated if a succeeding magistrate does not continue a trial commenced by his predecessor. Some of the considerations to be borne in mind before invoking section 200 include whether it is convenient to commence the trial de novo, how far the trial had proceeded, availability of witnesses who had already testified, possible loss of memory by the witnesses, the time that had lapsed since the commencement of the trial and the prejudice likely to be suffered by either the prosecution or the accused.

On the contention that the Appellant was convicted on circumstantial evidence, the Respondent submitted that the Appellant admitted in cross examination that he was the only one who had the key to the Complainant’s house and that he is the one who opened the house to enable people gain entry thereto. Additionally, that the evidence showed that the fire was lit from the inside the house and did not spread from a certain room to others. The Respondent argued that this points to the fact that someone had to enter the house in order to light the fire and only the Appellant had access to the house.
Relying on the cases of Neema Mwandoro Ndunya vs. Republic CRA 466 of 2007 and Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR the Respondent argued that from the evidence presented in the trial court by the prosecution, the circumstances pointed to the Appellant as the only one who could have accessed the Complainant’s house to the exclusion of any other suspect. Further that the chain formed was so strong that that the court could not come to any other conclusion other than it was the Appellant who burned the Complainant’s house. It was added that there were no co-existing circumstances which could weaken or destroy the inference of guilt. The Respondent contended that the trial court safely convicted the Appellant of the offence of arson and that the conviction ought to be upheld.
As regards the stole items, the Respondent countered the Appellant’s argument by contending that the listed items were there and some had disappeared before the fire began. Further, that the Appellants explanation that the items could have been reduced to ashes by the fire was not enough to rebut the prosecution case but actually strengthened it. The Respondent further submitted that the Appellant had in his defence, acknowledged that the said items were there and that if anything was missing then he and PW1 would be held responsible. The Respondent argued that the prosecution evidence formed a chain so strong that the court could come to no other conclusion other than it was the Appellant who had stolen the items.
In her judgment, the trial Magistrate noted and correctly so, that there was no direct evidence connecting the Appellant to the act. She relied on the case of Benson Limantees Lesimir & Anor. vs. Republic Criminal Appeal NO. 102 &103 of 2002 where the Court of Appeal stated:

In the circumstances, then the evidence tendered by the prosecution does not irresistibly point to the appellants to the exclusion of all others within the meaning of R. vs Kipkering Arap Koske & Another 16 EACA 135 where it was inter alia held that:

“In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.”

The trial Magistrate stated:

In reference to the above cited case, a hypothesis would be that someone else other than the accused caused the fire, the question that then begs is, he alone had access to the key of the main house, the prosecution witnesses stated that there was no one in the compound when the fire broke out, how would one have got into the house and managed to set up a fire in the different rooms yet only the accused had the key, and how else was the supposed else (sic) to know that the accused had left the house as to then go and set up a fire.

The learned Magistrate added:

Thus I state, that the evidence tendered by the prosecution is not only cogent and sufficiently corroborated but it also does irresistibly point to the accused and no other co-existing circumstances are there to the contrary of his guilt.

The trial Magistrate further stated that all items in the garage were reduced to nothing by the fire yet there were no remains of the generator, fridge gas cylinders etc. She concluded that these items were stolen before the fire. The trial Magistrate went on to state:

The inculpatory facts point to the guilt of the accused, whichever angle we are to look at it, in fact, the accused averred that the items were indeed there that morning.

This Court notes, and it is not disputed, that the prosecution did not present any direct evidence connecting the Appellant to the setting on fire the Complainant’s house or stealing the items listed in Count 2. The Appellant was convicted purely on circumstantial evidence. The Court must therefore determine whether the circumstantial evidence was adequate to sustain the conviction.
It is well settled that circumstantial evidence is as good as any evidence when properly evaluated. In the case of Ahamad Abolfathi Mohammed & another v Republic (supra), the Court of Appeal considered the probative value of circumstantial evidence and expressed itself thus:

However, it is altruism (sic) that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence, which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form as strong a basis for proving the guilt of an accused person just like direct evidence. Way back in 1928 Lord Heward, CJ, stated as follows on circumstantial evidence in R v. Taylor, Weaver & Donovan [1928] CR. App. R. 21:

“It has been said that the evidence against applicant is circumstantial. So it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of Mathematics. It is no derogation from evidence to say that is circumstantial.”

(See also Musili Tulo v. Republic Cr. App. No. 30 of 2013).

Before circumstantial evidence can form the basis of a conviction, however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the accused person, and to no other person, as the perpetrator of the offence. In Abanga alias Onyango v Republic, Cr. App No. 32 of 1990 this Court set out the conditions as follows:

“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

(See also Sawe v. Republic (supra) and GMI v. Republic, Cr. Ap. No. 308 of 2011.

In addition, the prosecution must establish that there are no other co-existing circumstances, which would weaken or destroy the inference of guilt.

The uncontested facts are that the Appellant was an employee of the Complainant and had worked for her for about 18 years as the caretaker for her house. He worked during the day and had the keys to the house. PW1 was the watchman and worked at night and had the key to the gate, but no access to the house. When the fire incident took place on 13.1.17, the Complainant had been away in Italy for 9 months and was to return a few days later on 21.1.17. The fire incident took place at around 1:30 pm. The Appellant who ought to have been in the house was absent. It was neighbours, PW1 and G4S security officers who went to the house to put out the fire. The evidence shows that the fire was started from the inside the house yet the Appellant the only person who had the key, was away and only came later and unlocked the house. Notably, he had been in the house earlier.
The Court has carefully looked at the record including the testimony of PW3 and the photographs produced. Relevant to the stolen items, PW3 stated in the garage, the car was completely burnt as was a cooker but that there were no remains of the generator; the electric kettle was burnt but there was no microwave; there was a photo of extension cables but no television; paraffin lamps in the store were burnt but the fridge was missing. PW3 further stated that on Saturday, PW1 asked him to go back and see that 2 or 3 gas cylinders were missing and he was worried that he would be blamed.
After carefully considering the testimony of the witnesses, none created an opinion in the mind of the Court that they were not candid or raised any suspicion as to their credibility. None can be said to be an unreliable witness. In this regard I am guided by the decision in the Joseph Ndungu Kimanyi case (supra), where the Court of Appeal stated:

In our opinion the evidence of the complainant does not come up to the minimum standard which we require before upholding a conviction in a criminal case. We lay down the minimum standard as follows. The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the Court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.

The photographs produced in the trial court show the extensive damage caused to the house and the items therein. Although badly burned, one can still make out the items such as the car, cooker, remote controls and cables, electric kettle and even paraffin lamps. It is unlikely that items such as the ones listed as stolen could have been burnt to such an extent that there would be no remains at all. Even if it were the case that the fridge, television, microwave, gas cylinders, etc had been burned to ashes, it would still have been possible to see heaps of ashes of the same and the Appellant would have been in a position to point out the remains of each item. None could be seen in the photographs. The only conclusion that can be drawn is that the said items were not there at the time the fire broke out. The question is, where did they go?
The fire in question was began inside the house. It is only the Appellant who had the key to access the house. He was however absent, when the fire broke out. Was this by design? The Appellant has not denied that the missing items were in the premises before the fire and did in fact state in his defence that the same were there in the morning. All these factors taken together cumulatively form a chain so complete that the only inference that can be drawn is that the offences were committed by the Appellant and no one else. The circumstantial evidence herein is inconsistent with the innocence of the Appellant. The Court is thus satisfied that the facts are such as to be inconsistent with any other rational conclusion than that the Appellant was the perpetrator. In light of this, there is no reason to find fault in the finding of the decision of the trial court.
On sentence, Section 332 of the Penal Code provides that a person convicted of the offence of arson is liable to imprisonment for life. As regards, the offence of stealing by servant, Section 281 provides that upon conviction, a person shall be liable to imprisonment for 7 years. The trial Magistrate exercised her discretion and sentenced the Appellant to 5 years and 2 years imprisonment respectively.
Sentence is a matter of discretion and appellate courts must exercise restraint when called upon to interfering with the exercise of judicial discretion. In the case of Bernard Kimani Gacheru V Republic [2002] eKLR, the Court of Appeal had this to say:

It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.

The sentences of 5 years out of a possible life sentence and 2 years out of a possible 7 years cannot be said to be excessive. Further, nothing has been placed before to demonstrate that the trial Magistrate in exercising her discretion misdirected herself in some matter and overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle as a result of which arrived at a wrong decision. I therefore decline to interfere with the discretion of the trial Magistrate on sentence.
In the end, after re-evaluating the evidence, my finding is that the Appellant was properly convicted and sentenced. Accordingly, both the conviction and sentence are upheld and the Appeal being devoid of merit is hereby dismissed.

DATED SIGNED and DELIVERED in MALINDI this 8^th day of November 2024

_____________________

M. THANDE

JUDGE