JOHN ANDITI V. REPUBLIC

JUDGMENT

Madan JA The appellant was convicted by the Resident Magistrate, Nairobi, of burglary contrary to Section 304(2), and stealing from a dwelling house contrary to Section 279(b), of the Penal Code. His appeal to the High Court was dismissed. He appealed again, to us.

We allowed the appeal, quashed the convictions and set aside the sentences. We now give the reasons for our judgment.

The house of Peterson Njoroge was broken into on the night of January, 21, 1981, and a good deal of his property worth about Kshs 6,000 stolen therefrom.

A neighbour, Willibroda deposed that she saw the appellant by the street lights coming out of Njoroge’s house with a suitcase at 7.30 pm. When Willibroda spoke to him and asked him what he was doing, he pushed the gate which hit her. The appellant then dropped the suitcase and ran off. The suitcase contained several articles, the property of Njoroge which he identified.

Willibroda deposed that she saw the appellant again with another man coming towards …