PAUL WACHIRA MURIGU & another v REPUBLIC [2009] eKLR 2. That according to all the evidences (sic) adduced before the court, nobody testified how she was aware (sic) of the alleged phone and they (sic) explained the serial numbers of their stolen phones and none was relevant to mine. 3. That the learned trial magistrate erred when convicting me relying that I failed to produce a receipt of the cell phone of which I claimed that the receipt got lost at the remand. 4. That the learned trial magistrate erred when rejecting; my sworn defence of which I stated very well how the phone was mine. She failed to explain properly why she rejected my defence failing the provisions of law under section 169 (2) of C.P.C. Miss Ngalyuka, the learned State Counsel conceded to the appeal by Justus Gachara Macharia, the 2nd appellant on the basis that there was no evidence to show that the 2nd appellant was found with the stolen mobile phone. She further argued that the 2nd appellant’s evidence that the mobile was his property was credible hence it shouldn’t have been dismissed. Miss Ngalyuka, however opposed the appeal by Paul Wachira Murigu, the 1st appellant herein. It is her argument that the 1st appellant was identified by P.W.1 hence he was placed at the scene of crime. We have carefully considered the grounds raised by the 2nd appellant in this appeal. It is important to note that Justus Gachara Macharia the 2nd appellant was convicted for the offence of having suspected stolen property contrary to section 323 of the Penal Code. According to the trial magistrate, the 2nd appellant was implicated by the evidence of Sgt George Shikandi (P.W.6) and that of P.C. Musa Kiptoo (P.W.7). According to the trial magistrate, P.W.6 and P.W.7 gave an account of how they recovered Motorola C117 phone from the 2nd appellant. The learned Principal Magistrate proceeded to state that the 2nd appellant had failed to rebut the evidence of P.W.6 and P.W.7. We are unable to comprehend how the learned Principal Magistrate expected the 2nd appellant to rebut the evidence of P.W.6 and P.W.7 yet there is evidence to show that the 2nd appellant had stated that the mobile phone was his property. The prosecution did not tender any evidence to show that the same was stolen or illegally obtained. We are convinced that the 2nd appellant set up a plausible defence. We are satisfied that the learned Principal Magistrate improperly dismissed the 2nd appellant’s defence. We are convinced that the state correctly conceded to this appeal. We allow the same by quashing the conviction and set aside the sentence. The 2nd appellant Justus Gachara Macharia is hereby set free forthwith unless lawfully held. We now wish to consider the 1st appellant’s appeal. It is the submission of Miss Ngalyuka that the appeal should be dismissed because the 1st appellant was identified by the daughter to P.W.1 who gave the police the 1st appellant’s physical description. P.W.2 is said to have picked the 1st appellant in an identification parade. The appellant was of the view that his conviction was unsafe because the trial magistrate relied on the evidence of a single identifying witness without warning herself. We have carefully considered the evidence of P.W.1 and P.W.2. It is the evidence of J.W.M (P.W.1) that on 6/6/2007 at midnight there was a knock at her door. She peeped through her window whereupon she saw seven people outside her house. P.W.1 and her daughter P.M.M (P.W.2) screamed. Those people cut the window mesh and grill with an axe to gain entry into P.W.1’s house. P.W.1. hid under http://www.kenyalaw.org - Page 3/5