1. Enock Mogire Moocha, the appellant, was convicted of burglary and stealing in seven counts contrary to sections 304 (2) and 279 (b) of the Penal Code.
2. The particulars in count one state that on the night of the 5th day of May 2022 at Rigena location Nyamache sub-county of Kisii County, jointly with others not before the court, he broke and entered into the dwelling house of Mellen Nyaboke Ontiri with intent to steal and did steal from therein two mattresses, irrigation pipes, one 20litres pan, and one blanket all valued at Kshs. 28,600/= the property of Mellen Nyaboke Ontiri.
3. The particulars in count one state that on the night of the 27th day of May 2022 at Rigena location Nyamache sub-county of Kisii County, jointly with others not before the court, he broke and entered into the dwelling house of Kennedy Joseph Nyamweya with intent to steal and did steal from therein one gas cylinder, two iron sheets, one mattress, two thermos flasks, seven cushions, and two plastic drums all valued at Kshs. 13,850/= the property of Kennedy Joseph Nyamweya.
4. The particulars in count three state that on the night of the 20th day of May 2022, at Rigena location, Nyamache sub-county of Kisii County, jointly with others not before the court, he broke into and entered the dwelling house of Naomi Naliaka Kimani with intent to steal and did steal from therein six cushions and assorted clothes, all valued at Kshs. 7,100/= the property of Naomi Naliaka Kimani.
5. The particulars in count four state that on the night of the 18th day of July 2022 at Rigena location Nyamache sub-county of Kisii County, jointly with others not before the court, he broke and entered into the dwelling house of Samwel Nyakondo with intent to steal and did steal from therein one gas cylinder and generator all valued at Kshs. 20,000/= the property of Samwel Nyakondo.
6. The particulars in count five state that on the night of the 8th day of June 2022 at Rigena location Nyamache sub-county of Kisii County, jointly with others not before the court, he broke and entered into the dwelling house of Grace Monyangi Morang’a with intent to steal and did steal from therein thirty cushions, four tables, two gas cylinders, three beds, three hoes, one machete, one hammer and assorted utensils all valued at Kshs. 55,850/= the property of Grace Monyangi Morang’a.
7. The particulars in count six state that on the night of the 6th day of July 2022, at Rigena location, Nyamache sub-county of Kisii County, jointly with others not before the court, he broke and entered the dwelling house of Vivian Abuga with intent to steal and did steal from therein one sub hoofer radio, one machete, one power extension, and one memory card, all valued at Kshs. 6,450/= the property of Vivian Abuga.
8. The particulars in count seven state that on the night of the 13th day of May 2022 at Rigena location Nyamache sub-county of Kisii County, jointly with others not before the court, he broke and entered into the dwelling house of Abel Morang’a Ototo with intent to steal and did steal from therein two and a half bags of maize valued at Kshs. 10,000/= the property of Abel Morang’a Ototo.
9. The appellant was sentenced to two years imprisonment on each count and ordered to run consecutively. He appealed against both the conviction and the sentence.
10. He raised grounds of appeal as follows:
a) That the learned trial magistrate failed in both law and facts by convicting the appellant to serve 14 years imprisonment without observing that the offence of burglary and stealing was not proved beyond any reasonable doubt.
b) That the learned trial magistrate equally erred in both law and facts by convicting the appellant despite the gravity of the contradictions.
c) That the learned trial magistrate acted incorrectly by pronouncing the sentences to run consecutive instead of running concurrently for the seven counts of stealing.
d) That the fourteen years imposed is too harsh and punitive considering the circumstances of the offence.
e) That the trial magistrate faulted in both law and facts by imposing fourteen years despite the shoddy and scanty investigation.
f) That the trial magistrate failed in both law and facts by imposing 14 years despite the shoddy and scanty investigation conducted by the prosecution side.
g) That the sentence of 14 years imprisonment is harsh and excessive.
11. The state opposed the appeal but did not file its submissions despite Mr Kimanthi informing the court on the 30th day of April 2024 that it had done so.
12. This is the first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court afresh and drawn my conclusions, bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs Republic [1972] EA 32.
13. The evidence of the recoveries connected the appellant to the offences. In his defence, the appellant contended that the chief released a suspect when he paid a bribe, but since he did not have any money, he was charged.
14. Samwel Nyakondo (PW2) testified that the appellant led them to a home where his gas cylinder and a generator were recovered. The home's owner ran away after seeing them. The question begging for an answer was how the appellant knew the items were in that home unless he was a co-perpetrator with the homeowner who ran away.
15. Abel Morang’a Ototo (PW6) testified that they suspected the appellant when his items went missing. They searched his home, and his maize and many other items were recovered.
16. The area assistant chief (PW7) testified that they recovered many items, including maize. The owners identified them at the police station. PW1, PW3, PW4, PW5, and PW8 testified that when they went to the police station, they identified some of their stolen items.
17. PC Emmanuel Ketinyi (PW9) said that when PW7 called them, they found many recovered items, and an angry mob was about to lynch the appellant.
18. The defence the appellant tendered was an afterthought. He did not confront the assistant chief with the allegation of bribery.
19. There was no direct evidence that the appellant was seen breaking into the houses of the complainants. Therefore, this case was apt for invoking the doctrine of recent possession. In the case of Isaac Ng'ang'a Kahiga alias Peter Ng'ang'a Kahiga vs Republic Criminal Appeal No. 82 of 2004, the principles of the doctrine of recent possession were laid as follows:
... It is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first: that the property was found with the suspect, secondly that the property is positively the property of the complainant; thirdly, that the property was stolen from the complainant and lastly, that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. In order to prove possession, there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view, any discredited evidence on the same cannot suffice no matter how many witnesses.
20. In the instant case, the appellant was found in possession of the items stolen from the complainants. The burden was on him to show how he came into his possession of these items. In Malinga v R [1989] KLR 225, Bosire, J (as he then was) expressed himself thus on page 227:
By the application of the doctrine, the burden shifts from the prosecution to the accused to explain his possession of the item complained about. He can only be asked to explain his possession after the prosecution have proved certain basic facts. Firstly that the item he had in his possession had been stolen; it had been stolen a short period prior to the possession; that the lapse of time from the time of its loss to the time the accused was found with it was, from the nature of the item and circumstances of the case, recent; that there are no co-existing circumstances which point to any other person as having been in possession of the item. The doctrine being a presumption of the fact is a rebuttable presumption. That is why the accused is called upon to offer an explanation in rebuttal, which if he fails to do an inference is drawn that he either stole it or was a guilty receiver.
21. I agree with the learned trial magistrate that the appellant's defence amounted to mere denial, and his explanation was an afterthought. His defence was considered before it was dismissed.
22. Sections 279 (b) of the penal code provide as follows:
If the theft is committed under any of the circumstances following, that is to say—
(b) if the thing is stolen in a dwelling-house, and its value exceeds one hundred shillings, or the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house;
…
…
the offender is liable to imprisonment for fourteen years.
23. Section 304 (2) of the penal code provides as follows:
If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years.
24. Instances when an appellate court would interfere with the discretion of a trial court on the issue of sentence were clearly defined by the Court of Appeal in the case of in the case of Ogalo Son of Owuora vs Republic (1954) 21 EACA 270 as follows:
The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence, and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James vs Rex (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor! To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R vs. Shershewsity (1912) C.CA 28 T.LR 364.
25. The sentence in the instant case cannot be described as harsh. The offences were committed on diverse dates and cannot be said to have been committed in the same transaction.
26. I, therefore, find that the appeal lacks merit and is dismissed.
2. The particulars in count one state that on the night of the 5th day of May 2022 at Rigena location Nyamache sub-county of Kisii County, jointly with others not before the court, he broke and entered into the dwelling house of Mellen Nyaboke Ontiri with intent to steal and did steal from therein two mattresses, irrigation pipes, one 20litres pan, and one blanket all valued at Kshs. 28,600/= the property of Mellen Nyaboke Ontiri.
3. The particulars in count one state that on the night of the 27th day of May 2022 at Rigena location Nyamache sub-county of Kisii County, jointly with others not before the court, he broke and entered into the dwelling house of Kennedy Joseph Nyamweya with intent to steal and did steal from therein one gas cylinder, two iron sheets, one mattress, two thermos flasks, seven cushions, and two plastic drums all valued at Kshs. 13,850/= the property of Kennedy Joseph Nyamweya.
4. The particulars in count three state that on the night of the 20th day of May 2022, at Rigena location, Nyamache sub-county of Kisii County, jointly with others not before the court, he broke into and entered the dwelling house of Naomi Naliaka Kimani with intent to steal and did steal from therein six cushions and assorted clothes, all valued at Kshs. 7,100/= the property of Naomi Naliaka Kimani.
5. The particulars in count four state that on the night of the 18th day of July 2022 at Rigena location Nyamache sub-county of Kisii County, jointly with others not before the court, he broke and entered into the dwelling house of Samwel Nyakondo with intent to steal and did steal from therein one gas cylinder and generator all valued at Kshs. 20,000/= the property of Samwel Nyakondo.
6. The particulars in count five state that on the night of the 8th day of June 2022 at Rigena location Nyamache sub-county of Kisii County, jointly with others not before the court, he broke and entered into the dwelling house of Grace Monyangi Morang’a with intent to steal and did steal from therein thirty cushions, four tables, two gas cylinders, three beds, three hoes, one machete, one hammer and assorted utensils all valued at Kshs. 55,850/= the property of Grace Monyangi Morang’a.
7. The particulars in count six state that on the night of the 6th day of July 2022, at Rigena location, Nyamache sub-county of Kisii County, jointly with others not before the court, he broke and entered the dwelling house of Vivian Abuga with intent to steal and did steal from therein one sub hoofer radio, one machete, one power extension, and one memory card, all valued at Kshs. 6,450/= the property of Vivian Abuga.
8. The particulars in count seven state that on the night of the 13th day of May 2022 at Rigena location Nyamache sub-county of Kisii County, jointly with others not before the court, he broke and entered into the dwelling house of Abel Morang’a Ototo with intent to steal and did steal from therein two and a half bags of maize valued at Kshs. 10,000/= the property of Abel Morang’a Ototo.
9. The appellant was sentenced to two years imprisonment on each count and ordered to run consecutively. He appealed against both the conviction and the sentence.
10. He raised grounds of appeal as follows:
a) That the learned trial magistrate failed in both law and facts by convicting the appellant to serve 14 years imprisonment without observing that the offence of burglary and stealing was not proved beyond any reasonable doubt.
b) That the learned trial magistrate equally erred in both law and facts by convicting the appellant despite the gravity of the contradictions.
c) That the learned trial magistrate acted incorrectly by pronouncing the sentences to run consecutive instead of running concurrently for the seven counts of stealing.
d) That the fourteen years imposed is too harsh and punitive considering the circumstances of the offence.
e) That the trial magistrate faulted in both law and facts by imposing fourteen years despite the shoddy and scanty investigation.
f) That the trial magistrate failed in both law and facts by imposing 14 years despite the shoddy and scanty investigation conducted by the prosecution side.
g) That the sentence of 14 years imprisonment is harsh and excessive.
11. The state opposed the appeal but did not file its submissions despite Mr Kimanthi informing the court on the 30th day of April 2024 that it had done so.
12. This is the first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court afresh and drawn my conclusions, bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs Republic [1972] EA 32.
13. The evidence of the recoveries connected the appellant to the offences. In his defence, the appellant contended that the chief released a suspect when he paid a bribe, but since he did not have any money, he was charged.
14. Samwel Nyakondo (PW2) testified that the appellant led them to a home where his gas cylinder and a generator were recovered. The home's owner ran away after seeing them. The question begging for an answer was how the appellant knew the items were in that home unless he was a co-perpetrator with the homeowner who ran away.
15. Abel Morang’a Ototo (PW6) testified that they suspected the appellant when his items went missing. They searched his home, and his maize and many other items were recovered.
16. The area assistant chief (PW7) testified that they recovered many items, including maize. The owners identified them at the police station. PW1, PW3, PW4, PW5, and PW8 testified that when they went to the police station, they identified some of their stolen items.
17. PC Emmanuel Ketinyi (PW9) said that when PW7 called them, they found many recovered items, and an angry mob was about to lynch the appellant.
18. The defence the appellant tendered was an afterthought. He did not confront the assistant chief with the allegation of bribery.
19. There was no direct evidence that the appellant was seen breaking into the houses of the complainants. Therefore, this case was apt for invoking the doctrine of recent possession. In the case of Isaac Ng'ang'a Kahiga alias Peter Ng'ang'a Kahiga vs Republic Criminal Appeal No. 82 of 2004, the principles of the doctrine of recent possession were laid as follows:
... It is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first: that the property was found with the suspect, secondly that the property is positively the property of the complainant; thirdly, that the property was stolen from the complainant and lastly, that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. In order to prove possession, there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view, any discredited evidence on the same cannot suffice no matter how many witnesses.
20. In the instant case, the appellant was found in possession of the items stolen from the complainants. The burden was on him to show how he came into his possession of these items. In Malinga v R [1989] KLR 225, Bosire, J (as he then was) expressed himself thus on page 227:
By the application of the doctrine, the burden shifts from the prosecution to the accused to explain his possession of the item complained about. He can only be asked to explain his possession after the prosecution have proved certain basic facts. Firstly that the item he had in his possession had been stolen; it had been stolen a short period prior to the possession; that the lapse of time from the time of its loss to the time the accused was found with it was, from the nature of the item and circumstances of the case, recent; that there are no co-existing circumstances which point to any other person as having been in possession of the item. The doctrine being a presumption of the fact is a rebuttable presumption. That is why the accused is called upon to offer an explanation in rebuttal, which if he fails to do an inference is drawn that he either stole it or was a guilty receiver.
21. I agree with the learned trial magistrate that the appellant's defence amounted to mere denial, and his explanation was an afterthought. His defence was considered before it was dismissed.
22. Sections 279 (b) of the penal code provide as follows:
If the theft is committed under any of the circumstances following, that is to say—
(b) if the thing is stolen in a dwelling-house, and its value exceeds one hundred shillings, or the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house;
…
…
the offender is liable to imprisonment for fourteen years.
23. Section 304 (2) of the penal code provides as follows:
If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years.
24. Instances when an appellate court would interfere with the discretion of a trial court on the issue of sentence were clearly defined by the Court of Appeal in the case of in the case of Ogalo Son of Owuora vs Republic (1954) 21 EACA 270 as follows:
The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence, and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James vs Rex (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor! To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R vs. Shershewsity (1912) C.CA 28 T.LR 364.
25. The sentence in the instant case cannot be described as harsh. The offences were committed on diverse dates and cannot be said to have been committed in the same transaction.
26. I, therefore, find that the appeal lacks merit and is dismissed.