JUDGMENT
April 25, 1988, Platt, Gachuhi and Apaloo JJA delivered the following Judgment.
It is often the case that charges under section 308 of the Penal Code cause trouble, and this case is no exception.
The appellant was one of two persons charged with an offence contrary to section 308(2) of the Penal Code. The charge was:-
“being in a building at night with intent to commit a felony contrary to section 308(2) of the Penal Code.”
Richard Waweru Kamau and Morgan Ndungu:
“On the night of 2nd day of May 1985 at Narok Township of Narok District etc jointly were found in a building namely shop of Haji Issa with intent to commit the felony namely stealing therein.”
Thus, as the learned High Court judge said on first appeal the wrong section was quoted in the charge. He found it to be an offence under section 308(3)(b) which provides that any person who is found in any building whatever by night with intent to commit a felony therein is guilty of a felony.
The punishment provisions are to be foun…