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JudgmentHamisi Mwarabu VS The Republic5 min read

Hamisi Mwarabu VS The Republic

High Court at Voi High Court · · George. Dulu


(From the conviction and sentence in Criminal Case No. E063 of 2021 at Taveta Law Court on 15th July, 2021 by Hon. C. L. Adisa - RM)

  1. The appellant was charged with three counts.  Count I was for burglary and stealing contrary to Section 304(2) of the Penal Code.  Count II was for stealing contrary to Section 268 as read with Section 275 of the Penal Code.  Count III was for handling stolen property contrary to Section 322 of the Penal Code.
  2. After a full trial, he was acquitted on Count I and II, but was convicted in count III for handling stolen property contrary to Section 322 of the Penal Code whose particulars were that on 2nd February 2021 at Russia Estate Taveta dishonestly handled black and white sports shoes knowingly or having reasonable grounds to believe them to have been stolen or unlawfully obtained.
  3. Consequent upon conviction, he was sentenced to fourteen (14) years imprisonment.
  4. Aggrieved by the decision of the trial court, the appellant has come to this court on appeal, and relied on the following amended grounds of appeal:-
  5. The learned trial Magistrate erred in failing to appreciate that there was no proof of the alleged recovery of the stolen property (black and white shoe) on the person of the appellant, ownership of the stolen property, the house from which the same was recovered hence the alleged doctrine of recent possession was not proved hence prejudice.
  6. The learned trial Magistrate erred in not appreciating that the matter was premised on a single uncorroborated evidence of PW4 and shoddy investigations which rendered a miscarriage of justice.
  7. The trial Magistrate erred in law and fact in not considering there was a material defect in the charge contrary to Section 214 of the Criminal Procedure Code.
  8. The appeal was canvassed through written submissions.  In this regard, I have perused and considered the submissions filed by the appellant as well as the submissions filed by the Director of Public Prosecutions.
  9. This being a first appeal, I have an obligation to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences – see Okeno =Versus= Republic (1972) EA 32.
  10. In proving their case, the prosecution called four (4) witnesses.  On his part, the appellant tendered unsworn defence testimony and did not call additional evidence.
  11. The appellant was convicted of handling stolen property under Section 322 of the Penal Code, which defines the offence and provides the maximum sentence of 14 years.  The ingredient of the offence have been addressed severally by courts, and it will suffice if I refer to the case of Tembere =Versus= Republic (1990) KLR 393 where the court stated as follows:-

“One of the important elements of the charge of handling is that the accused must know or have reason to believe that the goods were stolen…and another vital element of the charge of handling is that the accused must dishonestly receive or retain.”

  1. It is also important to state here that Section 4 of the Penal Code contains a comprehensive statutory definition of legal possession in relation to criminal matters.
  2. In the present case, two of the charges preferred against the accused person were dismissed, and the appellant was convicted on only the third count of possession of stolen property, that is open shoes.
  3. The evidence on the ownership of the shoe was that of PW1, PW2 and PW4.  In this regard PW1 Patrick Odipo stated that the items recovered included shoes (slippers) which belonged to a neighbour’s son.  As for PW2 Joyce Nduku, she stated as follows:-

“I checked at my house and found my shoes missing.  The shoes were recovered black and white in colour.  I was called by Odipo to go and confirm if the recovered shoes were mine.”

  1. PW4 PC Joshua Kiptoo the investigating officer, listed the items recovered, and testified to how and where recovered.  The recovered items included sports shoes black and white in colour, said to be belong to a neighbor of the house where they were recovered.
  2. With particular reference to the actual recovery of the items PW4 stated as follows:-

“On 11th February 2021 we received a report that a person was selling speakers and woofers in a house.  The owner of the house saw us and ran.  The owner of the house is Msafiri.  We went back and found Msafiri and Douglas.  Msafiri informed us that Douglas gave him the items so that he loans him Kshs. 1,000/=  Douglas is an Uncle of the accused who informed us that Hamisi Mwarabu is the one who brought the items.  He said he had been staying with the accused.  We recorded their statements and released them on bond.  Later Peter Kishara informed us that the accused had been found and we arrested him and he admitted.  He is the one in the dock.  He is Hamisi Mathias Mwarabu.”

  1. It is obvious from the above evidence on record that there is no description given by PW4 the investigating officer, on where or in whose possession or house the shoes were recovered.  In addition the crucial witnesses who are said to have informed the police about the involvement or handling of the shoes by the appellant Douglas and Msafiri, were not called to court to testify, thus the information on what they said became hearsay evidence, which could not be used against the accused person.
  2. In those circumstances in my view, possession of the shoe by the appellant was not proved as there was no proof that he was found in physical possession of the shoes, nor was there evidence to prove that he was in exclusive control of the place where the shoes were recovered.
  3. As a result, the prosecution did not prove the offence of handling stolen property against the accused person.  The appeal will thus succeed on that account.
  4. I note also that the Director of Public Prosecution has conceded that the sentence imposed was excessive.  I will however set aside the sentence as a consequence of quashing the conviction.
  5. For the above reasons, I allow the appeal, quash the conviction and set aside the sentence.  I order that the appellant be set at liberty unless otherwise lawfully held.

Dated, signed and delivered this 19th day of March 2024 in open court at Voi.


    Hamisi Mwarabu VS The Republic Hamisi Mwarabu VS The Republic