Joseph Wambua & 1 other v Republic

chewing gumI packet of diclofenac5 pieces of toss soap12 packets of glucose5 packets of PK chewing gum14 pieces of netwire washing powder28kg of rice10 packets of sweets1 dozen backing powder16 pieces of steel woo5 pieces of baby care jellypiece of Valon jelly3 pieces of Kaza jelly18 packets of Eden tea leaves11 pieces of drinking chocolate12 packets of Kensalt17 packets of Tuzo milkAll value Kshs.22,675/=-Pexb.1 5. The 1st accused led the police to the other suspects' village at Kithangaini which is within Kathiani SubCounty. Items were recovered from the 2nd accused (1st Applicant) as follows1 kg of maize flour1/4 piece of bar soap.1 kg of sugar6 packets of tea leaves2 sunlight hand wash soap10 packets of sweets2 [packets of royco2 packets of glucoseI black radio-ST 5400All valued at Kshs.2,980/= - Pexb.2 6. The police went to the home of 3rd Accused (2nd Applicant) and recovered the following:1 black sub hoofer -VitronElectrical extensionsAll valued at Kshs.4,000/= - Pexb.3. 7. They were taken to the police station and charged with the ofiences before court. 8. The facts were read out to them and the Applicants stated that facts were true. The Applicants were convicted on their own plea of guilt. The trial court then sentenced them to serve for Count I: 4 years imprisonment and Count II: 3 years imprisonment. The sentences were to run concurrently. 9. The 1st and 2nd Applicants herein (the 2nd and 3rd Accused persons before the trial court) filed the instant undated Notice of Motion on 18th January 2024 against the sentence inviting this court to exercise its unlimited original jurisdiction to hear and determine the application and review the consecutive sentences of four (4) and three (3) years imprisonment and order the same to run concurrently based on Article 165 (3) (a), (7) of the Constitution of Kenya, 2010. 10. The prosecution opposes the application on the ground that under section 348 of the Criminal Procedure Code the Applicants can only challenge the severity of the sentence - that the maximum sentence for the ofience they were charged with is 7 years and therefore the 4 years imposed on the Applicants is neither severe nor excessive. The prosecution argue that the Applicants are barred from seeking review of sentence from this court. Reliance is placed on Section 364 (5) of the Criminal Procedure Code which provides that: “ When an appeal lies from a finding, sentence or order and no appeal is brought, no proceedings by way of revision shall be entertained at the instant of the party who could have appealed” 11. Upon considering the application and the parties’ submissions on record, the issue that comes up for determination is what would be the appropriate sentence. However, I cannot do that without examining the charges despite the plea of guilty whose process the Applicants are not challenging. 12. First it is clear that the Appellants were not represented. They were charged in Count I under Section 306(a) of the Penal Code which states: Breaking into building and committing felonyAny person whoa. breaks and enters a schoolhouse, shop, warehouse, store, office, counting-house, garage, pavilion, club, factory or workshop, or any building belonging to a public body, or any building or part of a building licensed for the sale of intoxicating liquor, or a building which is adjacent to a dwelling-house and occupied with it but is not part of it, or any building used as a place of worship, and commits a felony therein; or https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14381/eng@2025-06-17 2

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13. The charge sheet under Count I speaks about jointly breaking and entering the shop (Highway shop) of Jonathan Mithunga with intent to steal therein. 14. In Count II, the Applicants were charged under Section 268 as read with Section 275 of the penal code which states: 268(1) A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property. 275 provides for General punishment for theft Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years. 15. The charge under Count II speaks about jointly stealing goods as per the attached inventories respectively all valued at Kshs.30,000/= the property of Jonathan Muthinga. 16. In the alternative charge, the Applicants were charged with handling stolen goods contrary to Section 322 (1)(2) of the penal code which states: 322. Handling stolen goods (1) A person handles stolen goods if (otherwise than in the course of the stealing) knowing or having reason to believe them to be stolen goods he dishonestly receives or retains the goods, or dishonestly undertakes, or assists in, their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so. (2) A person who handles stolen goods is guilty of a felony and is liable to imprisonment with hard labour for a term not exceeding fourteen years. 17. The particulars of the alternative charge were that the Applicants jointly otherwise than in the cause of stealing, dishonestly retained goods as per the attached inventories respectively knowing or having reasons to believe them to be stolen goods. 18. The prosecution did not produce the supporting evidence for the charges in Count I for jointly breaking and entering the shop (Highway shop) of Jonathan Mithunga with intent to steal therein and Count II of jointly stealing goods as per the attached inventories respectively all valued at Kshs.30,000/ = the property of Jonathan Muthinga. From the facts I note that the total value of items recovered from the Applicants was Kshs.6,980/=. 19. The fact of the Applicants’ admission of the charges notwithstanding. If indeed the Applicants broke and entered into the shop and stole goods valued at Kshs.30,000/= - this evidence was not placed before the court. Even where the Applicants has pleaded guilty, and especially when they were unrepresented, the prosecution is bound to place before the court all the supporting evidence for that charge. The risk of not doing so is that innocent persons can end up pleading guilty to ofiences they have not committed because the drawing of charges is technical and they may sound the same to a lay person. Only the complete facts and supporting evidence can be said to establish the charge against the accused. This is what the prosecution should strive to achieve in all cases regardless of how minor the ofience is. In the end the liberty of a person is at risk. 20. Article 50(2) (p) provides for the right of an accused person to the benefit of the least severe of the prescribed punishments for an ofience, the justice of each case can be achieved by the prosecution https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14381/eng@2025-06-17 3

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looking at the facts as presented by the investigating officer keenly and establishing whether those facts support a severe or a less severe charge, always keeping in mind that more often than not the person facing the charge is a lay person without the benefit of legal counsel. See Kyalo v Republic (Criminal Appeal E005 of 2023) [2023] KEHC 22596 (KLR) (22 September 2023) (Judgment) 21. True the Applicants admitted to the ofiences – but the part about breaking and entering into the shop and stealing was not established in the facts, neither was the value of the alleged stolen items proved. If they were recovered from the Applicants, it was not clear and in any event no photos of the scene were produced - the facts were incomplete - and as far as the record goes, they only established that the Applicants were found with the complainant’s items and the rest of the items they had were not on the list of inspection done by the complainant. 22. In my humble view the only charge that the prosecution proved was the alternative charge of handling stolen goods contrary to Section322 (1) (2) of the penal code. Some of the items that were stolen from the complainant’s shop were found with the Applicants following investigations. The 1st Applicant was found with 10 packets of sweets, 1 kg of maize flour and 1 kg of sugar while the 2nd Applicant was found with a black sub hoofer -vitron which were items stolen from the complainant. 23. The other charges of alleged joint breaking and stealing were not established by the facts. 24. Accordingly, I proceed to alter the trial court’s finding by substituting the charges in Count I and Count II with the alternative charge of handling stolen goods in accordance with the facts as established. 25. In conclusion, I find that the appeal is merited, albeit partly only in respect to conviction and sentence for burglary and stealing in Counts I and II which are quashed and set aside. 26. The Applicants stand convicted on the alternative charge of handling stolen goods contrary to Section 322(1)(2) of the penal code and are hereby each sentenced to four (4) years’ imprisonment. The sentence to run from the date of arrest of each of the Applicants. 27. Orders accordingly. File closed. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 17TH JUNE 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 17TH JUNE 2025 In the presence of: In person....................................... for Appellant Ms. Agatha................................. for Respondent Milly................................... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14381/eng@2025-06-17 4

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