REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT GARISSA CRIMINAL APPEAL NO. 67 OF 2013 DENNIS MUSYA ..............................APPELLANT VERSUS REPUBLIC...................................RESPONDENT (FROM ORIGINAL CONVICTION AND SENTENCE IN CRIMINAL CASE NUMBER 94 OF 2012 IN THE PRINCIPAL MAGISTRATE’S COURT AT KYUSO - B. M. MARARO (PM) ON 2 ND MAY, 2013) JUDGMENT The Appellant, Dennis Musya was the 3rd Accused in Kyuso Principal Magistrate’s Court Criminal Case No. 94 of 2012. Daniel Mathembe was the 1st Accused and Mutya Meru was the 2nd Accused. They were charged with breaking into a building and committing a felony contrary to Section 306(a) of the Penal Code; the particulars of the offence being that on the night of 6 th and 7th June, 2012 at Kimu Trading Centre in Kyuso District within Kitui County they jointly broke into a building namely the shop of Jane Mumbe and committed therein the felony of theft by stealing cash kshs.7,300/= and assorted shop goods all valued at Kshs.9,000/= the property of the said Jane Mumbe. The 1st and 2nd accused persons were each faced with an alternative charge of handling stolen goods contrary to Section 322(2) of the Penal Code. When the matter was placed before the magistrate for plea the 1 st Accused pleaded guilty and was convicted and sentenced accordingly. In the course of the trial the complainant applied and was allowed to withdraw the complaint against the 2nd Accused. The case against the Appellant proceeded to full trial after which he was found guilty and sentenced to serve four years imprisonment. He now appeals against both conviction and sentence. In summary, the Appellant attacks the decision of the magistrate on the ground that his conviction was not supported by the evidence adduced by the prosecution witnesses. When the appeal came up for hearing on 17 th October, 2013 Mr. Mulama for the state conceded the appeal on the ground that there was indeed no evidence connecting the Appellant with the offence. I have reviewed the evidence adduced before the trial Court and note that the complainant (Mumbe Mwendwa) who testified as PW1 told the Court that she did not witness the break-in and the Appellant was arrested because he had been named by the 1st Accused.
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PW2 James Mutua told the Court that he was present when the complainant’s stolen items were recovered from the house of the 1st Accused who then informed them that he had committed the crime with the 2 nd Accused and the Appellant. On cross-examination by the Appellant he stated that nothing stolen from the complainant was recovered from the Appellant at the time of his arrest. PW3 Peter Musili and PW4 John Mutemi Muthengi gave evidence similar to that of PW2. PW5 Police Constable Kennedy Kimathi who arrested the Appellant informed the Court that nothing was recovered from the Appellant at the time of his arrest. The Appellant called the 1st Accused as his witness. The 1st Accused told the Court that he committed the crime alone. Looking at the said evidence, I agree with the counsel for the state that there was indeed no evidence to connect the Appellant with the offence with which he was charged. The learned magistrate in his judgment indicated that in pleading guilty the 1st Accused had stated that he had committed the offence with the 2nd Accused and the Appellant. The learned trial magistrate ought to have considered the fact that at that time the 1st Accused was not under oath. In any case whatever the 1st Accused told the Court ought to have been treated with caution since his was the evidence of an accomplice. In short, the conviction of the Appellant was not based on any evidence and was thus erroneous. The appeal therefore succeeds and I set aside the conviction and sentence. The Appellant is therefore set free unless otherwise lawfully held. Orders are issued accordingly. Prepared, Dated and signed this 27th November 2013 W. KORIR, JUDGE OF THE HIGH COURT Dated and delivered on 2nd day of December, 2013 S.N.MUTUKU JUDGE OF THE HIGH COURT
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