[2017] KEHC 1869 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CRIMINAL APPEAL NO.292 OF 2011

(An appeal from original conviction and sentence of Kisii CMC’s Case No. 2148 of 2007 by Hon. A.CA.A.A. ONGINJO (CM) – Chief Magistrate dated 28th December, 2011)

ANDREW KIPKURUI BETT....................APPELLANT

VERSUS

REPUBLIC............................................RESPONDENT

JUDGMENT

1. The appellant herein ANDREW KIPKURUI BETTwas charged with 6 counts of stealing by servant contrary to Section 281 of the Penal Code and 5 counts of Fraudulent False Accounting contrary to Section 330 (b) of Penal Code according to the charge sheet that was substituted by the prosecution on 29th September 2009.

2. In count 1 the appellant was charged with the offence of stealing by servant contrary to section 281 of the Penal Code the particulars being that on or about 28th December 2005, at Kenya Commercial Bank in Kisii Central District within Nyanza Province he stole a Kenya Commercial Bank Banker’s cheque Number 0019650 drawn for Kshs. 432,915/10 the property of Pensions Department which came into his possession by virtue of his employment.

3. Count 2 was the charge of fraudulent false accounting contrary to Section 330(b) of the Penal Code and the particulars were that on 14th November 2006 at Kenya Commercial Bank Kisii being a clerk to the said Bank with intent to defraud, was privy to making false entries into suspense account No. [Particulars withheld] of Kenya Commercial Bank purporting to show that a sum of Kshs. 106,000/= was genuinely transferred to account No. [Particulars withheld] of Florence Chepkurui Bett.

4. Count 3 was in respect to the offence of stealing by servant wherein it was alleged that on 14th November 2006 at the Kenya Commercial Bank Kisii he stole Kshs. 106,000/= the property of Kenya Commercial Bank, which came into his possession by virtue of his employment.

5. On count 4 the accused faced the charge of fraudulent false accounting the particulars being that on 14th May 2007 at Kenya Commercial Branch at Kisii being a clerk to the said bank with intent to defraud, was privy to making false entries into suspense account No. [Particulars withheld] at the Bank purporting to show that a sum of Kshs. 90,968/25 was genuinely transferred to account No. [Particulars withheld] of Florence Chepkurui Bett.

6. Count 5 was a charge of theft by servant whose particulars were that on 14th May 2007 at Kenya Commercial Bank Kisii he stole Kshs. 90,968/25 property of Kenya Commercial Bank which came into his possession by virtue of his employment.

7. Count 6 was in respect to the charge of fraudulent false accounting and it was alleged that on 14th May 2007 at Kenya Commercial Bank Kisii with intent to defraud was privy to making false entries into suspense account No. [Particulars withheld] of Kenya Commercial Bank, purporting to show that a sum of 405,000/= was genuinely transferred to account No. [Particulars withheld] of Florence Chepkurui Bett.

8. Count 7 referred to another charge of theft by servant with particulars to the effect that on 31st July 2007 at Kenya Commercial Bank Kisii he stole 405,000/= the property of Kenya Commercial Bank which came into his possession by virtue of his employment.

9. Court 8 was the charge of fraudulent false accounting contrary to section 330 (b) of the Penal Code and the particulars were that on 31st July 2007 at Kenya Commercial Bank – Kisii being a clerk to the said bank with intent to defraud was privy to making false entries into suspense account No. [Particulars withheld] of Kenya Commercial Bank, purporting to show that a sum of Kshs. 120,000/= was genuinely transferred to account No. [Particulars withheld]of Florence Chepkurui Bett.

10. On count 9 it is alleged that on 31st July 2007 at Kenya Commercial Bank- Kisii he stole 120,000/= the property of Kenya Commercial Bank which came into his possession by virtue of his employment.

11. Count 10 was the charge of fraudulent false accounting the particulars being that on 31st July, 2007 being a clerk to Kenya Commercial Bank with intent to defraud, was privy to making false entries in Transmara Roads account No. [Particulars withheld] purporting to show that a sum of Kshs. 275,645/25 was genuinely transferred to account No. [Particulars withheld] of Andrew Kipkurui Bett.

12. Lastly count 11 was in respect to the offence of stealing by servant and the particulars were that on the same day and place he stole Kshs. 275,645/25 the property of Kenya Commercial bank which came into his possession by virtue of his employment.

13. The appellant, who was throughout the proceedings, represented by Mr. Minda advocate, pleaded not guilty to all the eleven counts and a trial ensued in which the prosecution tendered the evidence of a total of 11 witnesses and at the close of the prosecution’s case, the trial court found that a prima facie case had been established against the appellant thereby requiring him to make his defence. At the close of the defence case, the trial court acquitted the appellant on counts 2 and 3 but found that the charges in count 1, 4, 5, 6, 7, 8, 9, 10 and 11 were proved beyond reasonable doubt and convicted the appellant before sentencing him to serve 3 years imprisonment on each count with a rider that the sentences were to run concurrently. The appellant was however acquitted on counts 2 and 3.

14. Aggrieved by both the conviction and sentence, the appellant filed the instant appeal and set out the following grounds of appeal in his petition of appeal:

1. The trial magistrate erred in law and fact in convicting the Appellant even when the case against the Appellant was not proved beyond reasonable doubt.

2. The trial magistrate erred in law and facts in placing great reliance on journal reports and statement of accounts bearing computer extracts even when the primary (source) documents to wit cheques and vouchers were not produced in court.

3. The trial magistrate misapprehended the evidence placed before her on the transactions relating to suspense accounts and consequently entered a finding that they were unauthorized without having the benefit of seeing or perusing source (primary) documents.

4. The trial magistrate used extraneous and other matters not placed before her to explain away the reason why the original copies of the cheques and vouchers used in the transactions involved in the case were not produced and consequently erroneously entered a finding that those documents were not necessary.

5. The trial magistrate failed to make any finding on count 7 of the charges facing the Appellant and thereby erred in law.

6. There was no evidence to support convictions on counts 1, 4, 5, 6, 8, 9, 10 and 11 and yet the trial magistrate made a finding that the evidence was sufficient and proceeded to convict the Appellant.

7. The judgment of the honorable trial magistrate was not reasoned and only gave a critique of the Appellant’s submissions tendered in court. No reasons were given for the trial magistrate’s findings.

8. The trial magistrate in her evidence made findings that tended to shift the burden of proof to the Appellant and thereby miserably erred in law.

9. The trial magistrates failed to appreciate and hold that the evidence tendered by the Appellant and the documentary exhibits relied on sufficiently rebutted the evidence tendered against the Appellant to warrant an acquittal.

10. The trial magistrate relied on weak circumstantial evidence to convict the appellant thereby erred in law and fact.

11. The trial magistrate relied wholly on documents downloaded from a computer on entries purportedly made therein from primary documents. The trial magistrate ought to have cautioned herself that in the absence of primary source documents entries in computers are prone to hacking, manipulation et al, so as to find that sufficient doubt existed for her to find in favor of the Appellant.

15. Both the appellant and respondent canvassed the appeal by way of written submissions.

Appellant’s submissions

16. M/s Bosire Gichana advocates for the appellant submitted on each count on which the appellant was convicted and as follows:

17. On count 1, the appellant stated that no evidence was adduced by the prosecution to prove the particulars on the charge sheet as no register was produced to prove that the appellant received the cheque that he was accused of fraudulently and falsely accounting for. It was the appellant’s submission that no complainant was availed from the pensions department to prove that the said department lost any money due to the alleged fraud or false accounting.

18. The appellant also took issue with the differences in the particulars of the charge in count 1 according to the charge sheet and the particulars stated by the trial court in its judgment and argued that the trial magistrate misapprehended the evidence on the particulars of the offence thereby arriving at the wrong decision.

19. On count 2 the appellant submitted that the original documents from which the journal report (Pexhibit 23) was generated and especially the relevant cheques were not produced so as to demonstrate to the court how the said suspense accounts were operated and therefore, the charge was not proved beyond reasonable doubt. The appellant added that counts 1 and 2 were duplicated and hence defective due to the duplicity of charges.

20. The appellant argued that the particulars on counts 3 and 4, 5 and 6, 7 and 8 were similar in all aspects and therefore also defective because of duplicity.He contended that the said counts were not proved beyond reasonable doubt and that he was able to produce form 1144 as Dexhibit 5 to show that no money was lost by the bank as the reconciliation did not show that there was any outstanding money. The appellant faulted the trial court for shifting the burden of proof to him.

21. The appellant submitted that counts 9, 10 and 11 were not proved to the required standards and faulted the prosecution witnesses for giving evidence that was inconsistent, inadequate and contradictory. He also faulted the trial magistrate for failing to take into account the cogent evidence tendered by the defence thereby basing her decision on mere suspicion. He reiterated that the mix-up in the particulars in count 1 on the charge and e count 1 as shown in the judgment amounted to a mistrial as the inconsistency went to the root of the case.

22. The appellant cited the case of Okethi Okale & Others vs Republic (1965) EA 55 in which the court held that there was a mistrial where the counts as set out in the judgment by the trial court are not the same as the manner in which the counts are set out in the charge sheet. In this regard, the appellant maintained that according to the judgment, the appellant was acquitted on counts 2 and 3 which was not the case according to the charge sheet. He added that the mix-up in the counts as set out in the charge sheet and as set out in the judgment was a fundamental flaw that could not be cured and added that the same mix-up could be seen in all the counts all the way to count 11. He further stated that while the charge sheet contained only 11 counts, the judgment had 12 counts which in any event were defective due to duplicity.

23. On her part, M/s Mbelete, counsel for the state, submitted that the prosecution tendered sufficient evidence that proved the guilt of the appellant beyond reasonable doubt. She relied on the case of R vs Kipkering Arap Koske & Another (1946) 16 EACA 135 in which it was held:

“In order to justify the inference of guilt, the exculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than his guilt.”

24. She further relied on the decision in Erick Odhiambo Okumu vs Republic [2015] eKLR and submitted that the circumstantial evidence that the trial court relied on unerringly pointed to the appellant as the perpetrator of the offence. The respondent outlined the conditions under which circumstantial evidence can be relied upon, as were outlined in the case of Abanga alias Onyango vs Republic CR. APP NO.32 OF 1990as follows:

i. The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

ii. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

iii. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else.

25. The respondent reiterated that the trial court rightly held that the appellant was guilty on all the 9 counts on which he was convicted and submitted that the counts were not duplicated. The respondent’s case was that there was no misunderstanding between the counts set out in the charge sheet and those set out in the judgment as all the 11 counts were fully addressed in the judgment.

26. As the first appellate court, this court is under an obligation to re-consider and analyze the evidence tendered before the trial court afresh with a view to arriving at its own independent confusions while bearing in mind the fact that it neither heard nor saw the witnesses testify.(See Okeno vs R (1972) EA 32).

Prosecution’s case

27. The prosecution tendered the evidence of 11 witnesses as follows:

28. PW1, JOSEPH KIBOR, the branch manager of Kenya Commercial Bank (hereinafter “KCB” or “the bank”) testified that he was on 17th September 2007 carrying out recoveries to an ATM ( Automated Teller Machine) suspense account No. [Particulars withheld] when he discovered anomalies on the appellant’s account no. 076-149438091 and on the appellant’s wife’s account No. [Particulars withheld] after which he called the appellant over the same and that the appellant apologized for the withdrawals and refunded the overdrawn sum. He stated that the appellant, who was then the bank’s employee resigned from his job with effect from 15th September 2007 and that on 18th September 2009, he reported the anomalies he had noted on the appellant’s account to KCB operations manager one Mr. Kiarie who then went through the appellant’s account’s statements and discovered other suspicious entries and that one such anomaly was a transaction dated 7th July 2007 in respect to the appellant’s wife’s account which had Kshs. 405,000/= and another entry of Kshs 90,968/25 dated 14th May 2007. Reference was made to MFI-8 and MFI-9 respectively for the 2 entries.

29. PW1 testified that a further scrutiny of the appellant’s accounts revealed that on 31st July 2007, there was a transfer of Kshs. 275,645/25 from Transmara Account No. [Particulars withheld] to the appellant’s account No. [Particulars withheld] and that a cheque for that amount had been received at Kilgoris KCB branch.

30. On cross examination PW1 confirmed that the appellant held a staff account with KCB and that any deposit exceeding Kshs. 100,000/= that was made to any staff account had to get authorization of the manager –operations and further that transfer from a suspense account to any other account could not happen without the authority of the manager operations. He added that the authorization would be done through the signing of a voucher and through the use of a secret password in the computer which were cross checked the following day. He further stated that a register had to be signed by the person in charge of a section and the manager operations before any transactions could be posted.

31. PW2, CHARLES KIPRONO KORIRI, a cashier at the same bank testified that he, in November 2005, prepared a banker’s cheque No. 19650 in the sum of Kshs. 432,915/10 payable to the Pensions Department which cheque was signed by one Joyce Wambani (PW3). He stated that the cheque was then sent to the Director of Pensions but that it was sent back to Kisii KCB branch because it did not have the pensioners’ respective numbers. On cross examination PW2 confirmed that the appellant did not deal with the said cheque in any manner. He also stated that the letter sent by the Pensions Department returning the cheque to the bank was received by Joyce Wambani (PW3) and that he did not know if the Director of Pensions ever complained about the pensioners not receiving their money.

32. PW3 was JOYCE WAMBANI. She testified that she authorized the return of pensions by signing a voucher (MFI-13) for Kshs. 432,000/= and that the actual cheque was sent to the beneficiary who was the Director of Pensions through a covering letter dated 21st December 2005 which was sent by registered mail for which a certificate of postage No. 8168-8171 (MFI-16) was issued. She however stated that she was not aware if the said cheque reached its destination. On cross examination, she stated that she did not have the copy of the said banker’s cheque in court and did not know where it was. She confirmed that the appellant did not participate in any way in the drawing of the cheque and that she expected that the cheque reached its destination as she had the evidence of its postage.

33. PW4 YONA RAMHALA ANGIE was a revenue officer with Kenya Revenue Authority (KRA). His evidence was that on 30th June 2007 he received a VAT 32 from the District Accountant Transmara having made the payment at KCB Kisii for the sum of Kshs. 275,645. 25 as reflected in the VAT return (MFI-18). He explained that the money was paid by the Ministry of Finance to KRA and that the District Commissioner (DC) was an agent of KRA for VAT for purposes of withholding money from contractors accountants, consultants or anybody they gave work to do and that as far as he was concerned, he was not aware of any anomaly or complaint from the Commissioner for VAT over the loss of any money.

34. PW5, AYUB MWANGI KIARIE, was the Operations Manager of KCB in Kisii Branch during the period in question. He confirmed that the appellant was employed by KCB from April 1994 to September 2007 when he resigned. He recalled that PW1 reported to him on 17th September 2007, that the appellant had overdrawn money from his (appellant’s) account No. [Particulars withheld] held at Sotik Branch and that the report prompted him to investigate the appellant’s accounts wherein he discovered many irregular transactions from the banks suspense account to the appellant’s account which he enumerated as follows:

On 7th July 2007, the appellant posted Kshs. 405,000/= to a joint account held with his wife being No. 07614937**** and that this money was from a suspense account waiting to be posted to the correct account.

On 14th May 2007 the appellant posted Kshs 90,968. 25 from a suspense account No. [Particulars withheld] to credit the same joint account No. [Particulars withheld].

On 3rd March 2007, appellant posted Kshs. 432,915. 10 from suspense account No. [Particulars withheld]to the same joint account and that the money was credited to all two accounts, twice to one account whereby acc. No. [Particulars withheld] received Kshs. 172,194. 10 and Kshs. 200,000/= while current account No. [Particulars withheld] received Kshs. 60,721 as shown in the activity report marked MFI-23.

On 31st July 2007, the appellant posted Kshs. 120,000/= from the suspense account to the same joint account that he held with his wife as shown in the general ledger (MFI-25) and statement of account (MFI-26).

Kshs. 275,645. 25 was withdrawn from a cashier’s account no. [Particulars withheld] and credited to KRA account No. [Particulars withheld] and then transferred to account No., [Particulars withheld] and that some of this money was used to offset the appellant’s loan account No. [Particulars withheld] held at KCB, Moi Avenue (MFI-27) while Kshs. 95,000/- was paid to the loan, a further Kshs. 100,000/= and 65,700/= was also paid and the loan closed on 31st March 2007. He added that the money was not recovered and that it is the bank that paid a total of Kshs. 295,000/= to KRA.

35. On cross examination, PW5 stated that his job was to oversee the smooth running of the branch, allocate staff assignments and ensure smooth monthly reconciliation of accounts. He conceded that he did not have the reconciliation for the suspense account. When shown a document marked defence MFI-4 from central reconciliation center in Nairobi in respect to Kisii Branch as at 23rd August 2007, he confirmed that the reconciliation did not capture the questioned transactions because the money had been moved from the suspense account to the appellant’s account as the last removal had been on 9th August 2007. He also stated that reconciliation reports for the period in question may have been destroyed and that cashiers did not have to consult operations managers for every transaction. He testified that the money moved from suspense account No. [Particulars withheld] on 31st July 2007 (MF1-26) to the appellant’s joint account with his wife was posted like a cheque deposit that was given direct clearance but that there was no cheque because a genuine cheque transaction will always capture the cheque voucher in the narration and that in this case, the cheque purported to have been deposited was non-existent because for a cheque to clear there is a specific account to clear it and not the general suspense account that was used in this case.

36. On further cross examination, PW5 stated that he did not have a duty register or any document to show where the appellant worked at any given time and added that even though reconciliations were done at the end of every month, no reports were prepared and that the court could not therefore tell what was outstanding from the bank’s records.

37. He explained that for every withdrawal or deposit there were vouchers for transferring money from a suspense account to any other account and vice versa, but that in the case of the sum of Kshs. 405,000/= there was no such voucher. He also stated that the transaction of Kshs. 90,968. 25 and Kshs 432,915. 10 had no vouchers or documents even though all transactions had to be documented.

38. He conceded that at the end of the day, one could not tell if something went wrong and added that a person could post wrong figures in the computer. On internal audits of the operations data, he stated that such an audit would look at the risk areas but that he did not have a copy of any audit report in respect to the period under scrutiny. He confirmed that the appellant resigned from the bank in September 2007 and was issued with a certificate of service on dated 29th November 2007 (DMFI-3).

39. PW6 DENNIS MUNERIA recalled having received cheque no. 736 in the sum of Kshs. 275,645. 25 from the Ministry of Finance, Kilgoris payable to VAT Commissioner which cheque he forwarded to the branch manager at Kisii KCB Branch after which, he admitted, he could not tell what happened to the cheque. He also confirmed that the transfer of money from a suspense account to any other account required the signing of relevant supporting primary documents such as vouchers.

40. PW7, JOSEPH OLONCHOKI, the Kilgoris KCB Branch Manager testified that PW6 gave him all the cheques and vouchers for the day, which included cheque no. 00736 for 275,645. 25 payable to commissioner for VAT by ministry of roads Transmara which he sent to Kisii KCB Branch. He added that the cheque was received in Kisii vide SN. SPL 07477 (MFI-29) but that he later learnt that the cheque did not reach the beneficiary.

41. PW8, SAMUEL KIPSIELE KOSGEY, a District Accountant testified that he, on 30th June, 2007, raised a cheque for Kshs. 275,645/25 payable to the commissioner VAT which was banked at KCB Kilgoris and was cleared on 31st July 2007 as shown in a statement marked MFI-30, but that in October 2007 he learnt that the money never reached the intended recipient and that the cheque was not traced. On cross examination, he stated that the commissioner VAT did not complain to him about the loss of any money.

42. PW9, JOB NYANGWESO MOMANYI, an accountant with Ministry of Finance Pensions Department testified that they had pensioners’ accounts in all commercial banks from where they would receive returned pensions cheques. He confirmed that he came across records of a cheque for Kshs. 432,915. 10 received form Kisii KCB Branch in respect to returned pensions but that the cheque was returned to Kisii KCB branch as it did not have details of the pensioners. On cross examination, he stated that he did not have any proof of postage of the cheque back to bank and could not confirm if the cheque was received by the bank.

43. PW10, ALOISE OKARI OMBUI, an internal security investigator testified that he, on 19th September 2007, received a call from PW5 regarding a claim that the appellant had defrauded the bank of Kshs. 1. 3 million through fraudulent debits to bank books and customers’ accounts after which he launched investigations but that he was not shown any of the vouchers that were allegedly used to debit the bank books and that the only document availed to him were online statements showing the name of the person who did the transactions and his user name.

44. His testimony was that his investigations revealed that on 14th May 2007, the appellant being user No. 13 at KCB Kisii branch debited general suspense account No.[Particulars withheld] with Kshs. 90,968/25 which credited account no. [Particulars withheld] in the name of Florence Kipkurui Bett who was the appellant’s wife (MFI-24 and 25).

45. He further stated that on 31st July 2007, the appellant debited account no. [Particulars withheld] with the sum of Kshs. 120,000/= which he also posted in his wife’s account No. [Particulars withheld] and further that on 3rd March 2007 the appellant’s user 13 debited account No. [Particulars withheld] with a sum of Kshs. 432,915/10 and credited account no. [Particulars withheld] which was the banks suspense account and at the same time debited the same bank’s account and credited his wife’s account no. [Particulars withheld] with Kshs. 172,194/10 and 200,000/= while Kshs. 69,721/= was posted to the appellant’s account No. [Particulars withheld] as shown in MFI-32. He added that the Kshs. 432,915/10 was eventually posted into the appellant’s loan account no. [Particulars withheld] on 3rd March 2007 in bits of Kshs. 95,000/=, 100,000/= and 65,700 as shown in MFI-23 and 27 and further, that on 7th July, 2007 Kshs. 405,000/= was debited to KCB suspense account no. [Particulars withheld] and posted to account no. [Particulars withheld] in the name of Florence Kipkurui Bett as shown in MFI-25 and MFI-9.

46. On cross examination, PW10 stated that he got the information he had tendered in court from bank files which he however did not produce in court and further, that the information was retrieved from the computer which is fed by the user number password. He added that it is the information from a voucher, as a primary document, that is fed into a computer. He explained that a voucher must have 3 signatures, that is, of the person raising it, the person checking it and the one authorizing it. It was his testimony that without the vouchers he could not tell whether the transactions in question were authorized or not and that the manager operations was the custodian of all the documents. He also stated that it took the bank about 1 year to discover that money was missing even though reconciliation should have been done on a monthly basis. He did not avail the reconciliation documents in court but explained that the fraud was discovered after an audit whose report was also not produced in court.

47. He stated that some of the stolen money was for the benefit of Pensions Department even though they did not receive any complaint from the said department and neither did they receive any complaint from commissioner for VAT. He reiterated that all the primary documents relating to the alleged fraudulent transactions were missing but confirmed that the appellant’s resignation from KCB was accepted after which he was paid all his dues amounting to Kshs. 963,772 through cheque number 777 dated 17th January 2008 long after he had resigned in September 2007 and after the alleged fraud investigations had commenced. He however denied the allegation that the bank generated documents from the computer so as to implicate the appellant in the case.

48. PW11, WILSON ODUOR, was an officer from the Criminal Investigations Department seconded to banking Fraud Unit of the Central Bank of Kenya. His testimony was that he investigated the case involving the overdraft in the appellant’s accounts which led to the discovery that a cheque No. 019659 in the sum of Kshs. 432,915/10 payable to the Director of Pensions Department by KCB Kisii was processed by the appellant and paid to his personal accounts and wife’s account as shown in statements marked MFI-24 and 32. He also discovered other suspicious transactions involving Kshs. 90,968/25 (MFI-24) 106,000 (MFI-24) and 405,000/= as shown in MFI-34. He further stated that on 3rd March 2007, the appellant transferred Kshs. 95,000/=, 100,000 and 65,000/= to his loan account (MFI-27).

49. He also testified that his investigations established that cheque no. 006736 for Kshs. 275,645/= drawn by Transmara District Roads in Kilgoris and payable to VAT was not paid to the recipient but was deposited in the appellant’s account (MFI-1). He however did not produce credit or debit vouchers in respect to the said alleged fraudulent transactions. He confirmed that he did not get the original cheques Nos. drawn in favor of the Pensions Department and the Commissioner of VAT but established that a crime had been committed. He produced the documents marked at the hearing as exhibits 1-37.

50. On cross examination he confirmed that no transactions could take place without authorization by senior bank officials and that if the vouchers had been availed, he would have known who had authorized the transactions.

51. In a sworn statement in his defence, the appellant testified that he was employed by KCB in 1994 where he worked in various capacities before resigning in September 2007 which resignation was accepted by the bank after which he was duly issued with a certificate of service. He produced his resignation letter and certificate of service as Dexhibit 1 and 2 respectively.

52. He denied the charge on count 1 and stated that the prosecution did not produce a register to show that the received the cheque in question and further stated that there was no complaint from the Pensions Department regarding the alleged lost money.

53. On count 2 he stated that it was not an offence to use a suspense account as long as one was given the authority to do so by the manager operations or the branch manager and that in all the instances that he used the suspense account, he did so with the authority from the branch manager and manager operations through the duly signed suspense vouchers that were thereafter kept by the manager operations. He further explained that suspense accounts could be used to clear cheques, pay salary advances or give credits before cheques are cleared. He faulted the bank for failing to produce the suspense vouchers in respect to counts 2, 4, 6, and 8.

54. In respect to count 2, he explained that he used the suspense account to get the cash immediately. He produced a sample suspense voucher as Dexhibit 4. He also faulted the bank for failing to produce a suspense register in which all the transactions relating to the suspense account were entered.

55. On count 3, he stated that the bank did not explain how the money came into his possession as there was no proof that he acknowledged having received it and further, there was no indication if the bank took any disciplinary action against him for the alleged loss through the production of form 1144 which is the relevant bank document that highlights such a loss. Similarly, he stated that the bank did not produce form 1144 in respect to counts 3, 5, 7, 9 and 11. He produced a sample of form 1144 as Dexhibit5.

56. The appellant explained, in detail, the banks practice that requires that there must be source documents such as cheques, deposit slips, cash deposits slips and suspense vouchers for every entry in the computer printout which source documents were not produced by the prosecution authenticate the computer printouts.

57. He further stated that a reconciliation of all his accounts was done at the time he left the bank which did not show that there were any sums of money outstanding. He produced as Exhibit D-7, a reconciliation done is at 23rd august 2007 which did not indicate any anomalies and maintained that the prosecution did not produce its own reconciliation to show that the sums of money he was charged with stealing were due and outstanding. He also faulted the prosecution for producing statements that were not originals and produced a copy of an original statement (Exhibit D-8) to court for comparison purposes.

58. On the use of password, he stated that there was a user assignment register to show who was given a particular password at any given time which register was not produced by prosecution to confirm their claim that he used his password to transfer money into his various accounts. He further testified that all the accounts that he held with the bank were staff accounts which were closely monitored by the branch manager and stated that all large credit or debit entries had to be probed, authorized and reports produced at the end of each day.

59. In respect to exhibit P24, He denied the allegation that he held a joint account with one Florence Chepkurui Bett whom he faulted the prosecution for failing to include in the case.

60. He explained that after his resignation in 2007, the bank was on 16th April 2010 paid a salary arrears of Kshs. 286,086/95 (Exhibit D-9) and that on 22nd January 2008, Pension Liaison KCB paid him a cheque of Kshs. 963,772/= (Exhibit D (a) and (b)) after which he signed an indemnity form (Exhibit B-D 11) to show that he did not owe the bank any money and neither did they owe him any dues. He maintained that all loan repayments required the authorization of the loans manager and the Branch manager, and that it was not possible for him to settle his loans without detection.

Analysis and determination

61. I have carefully considered the record of appeal and the submissions of both the appellant and the respondent. I note that the issues for determination are as follows;

a) Whether the case against the appellant was proved to the required standards.

b) Whether the trial court misapprehended the evidence on the particulars in count 1 thereby arriving at a wrong decision that amounts to a mistrial.

c) Whether there was duplicity of charges in most if not all the counts thereby rendering the said charges fatally defective.

62. On the question of whether or not the charges as drafted were duplex, I refer to Section 134 of the Criminal Procedure Code which stipulates as follows:

“134. Offence to be specified in charge or information with necessary particulars

Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

63. Section 135 (1) and (2) of the Criminal Procedure Code on the other hand provides for instances where joinder of counts in a charge or information is allowed and they stipulate as follows:

“135. Joinder of counts in a charge or information

(1) Any offences, whether felonies or misdemeanors, may be charged together in the same charge or information if the offences charged are founded on the same facts, or form or are part of a series of offences of the same or a similar character.

(2) Where more than one offence is charged in a charge or information, a description of each offence so charged shall be set out in a separate paragraph of the charge or information called a count.”

64. From the above provisions, it is correct to state that duplicity of charges would occur in instances where more than one offence is charged in one count. In such a case, an accused would be presented with difficulty as he would not be in a position to know exactly what charge to plead to or defend. This scenario was well expounded by the Court of Appeal for Eastern Africa in the case of Cherere son of Gukuli vs Republic (1955) 22 EACA 478 where it was stated as follows:

“Where two or more offences are charged to the alternative in one count, the count is bad for duplicity contravening Section 135(2) of the Criminal Procedure Code; the defect is not merely formal but substantial. Where an accused is so charged, it cannot be said that he is so prejudiced because he does not know exactly with what he is charged, and if he is convicted he does not know exactly of what he had been convicted.”

65. Reverting to the instant case, a look at all the separate counts that the appellant was charged with does not show if any of the counts contained more than one offence and for that reason, I find that the appellant’s argument that counts 1 and 2, 3 and 4, 5 and 6, 7 and 8 had similar particulars did not per semake the said counts duplex as each count disclosed a distinct and separate offence.

66. Turning to the question on whether the trial court misapprehended the evidence tendered in respect to count 1 thereby arriving at a wrong decision, I find that the trial court properly analyzed the evidence tendered in respect to each count separately before arriving at her decision. The particulars of count 1 were that:

“On 28th December 2005 at KCB in Kisii Central District within Nyanza Province he stole a Kenya Commercial Bank Banker’s cheque Number 0019650 drawn for Kshs. 432,915/10 the property of Pensions Department which came into his possession by virtue of employment.”

67. I find that in her judgment, the trial court considered, at length, the evidence tendered by various witnesses and exhibits in support of the charge. The trial court tracked the movement of the alleged stolen cheque right from the time it was drawn by the bank before being sent to the Pensions department after which it was returned to the bank for lack of particulars of the pensioners on whose behalf it drawn. This court cannot therefore find any fault or a mistrial in the manner in which the trial court handled the evidence tendered before it.

68. Turning to the first issue for determination, which I find to be the main issue for determination in this appeal, is whether the prosecution proved its case against the appellant beyond reasonable doubt. It is a well-hackneyed legal principle that the burden of the prosecution in criminal cases is to establish its case beyond reasonable doubt (See Republic Vs Derrick Waswa Kwoba [2005] eKLR). A determination of whether or not the prosecution’s case was proved beyond reasonable doubt calls for a scrutiny of the evidence on record and the examination of the defence, if any, tendered by the appellant.

69. In the instant case, the appellant was acquitted under Section 215 of the Criminal Procedure Code on counts 2 and 3 and therefore, my judgment will focus only on the convictions on counts 1, 4, 5, 6, 7, 8, 9, 10 and 11.

70. It was not disputed that the appellant was an employee of KCB in various capacities from 1994 up to September 2007 when he tendered his resignation to the said bank after which he was paid all his dues, to wit, salary arrears and pension in the sum of Kshs. 286,086/95 and Kshs. 963,772/= respectively before he was issued with a certificate of service. It was also not in dispute that all the charges filed against the appellant were in respect to crimes allegedly committed during his stint as the bank’s employee with some of the offences alleged to have occurred as far back in the year 2005 and 2006 and further, that investigations into the said crimes commenced soon after the appellant left his said employment with the bank.

71. It was further not disputed that all the transactions that were the subject of the instant case involved the appellant’s staff bank account and the bank’s suspense account which required the authorization of other players within the bank, apart from the appellant, in order to be executed. PW1 stated as follows in his evidence in chief:

“A staff account is owned by a member of staff working with KCB. Any amount exceeding Kshs. 100,000/= deposited to a staff account requires authority of manager operations. Transfer from suspense account to any other account requires authority of the manager operations.”

72. In his sworn testimony in court, which evidence was not disputed by the prosecution, the appellant stated as follows:

“It is not an offence to use a suspense account. You can use it to clear cheques. It is an account which (sic) you put money where account is not known. It is like a storage account. You use it to give salary advance, give credit before the cheque is cleared. I was authorized to use a suspense account.

Authority is given by the manager operations or the bank manager. You use a suspense voucher. It has signatures of the manager operations and the branch manager or any other designated official who is authorized. The manager operations keep the suspense account voucher. You know if authority was given by looking at the actual voucher number.”

73. PW5, the manager operations, had the following to say on the issue of authorization and vouchers:

“For one to withdraw, there is a voucher. The same with deposits. One fills an internal voucher when transferring money from a suspense account to any other account or vice versa. We have a suspense account register.”

74. From the above extracts of testimonies of both the appellant and the prosecution witnesses, it is clear that all the bank transactions involving transfer of money had to be accompanied by vouchers which were the primary documents that were also used in making entries in the computers. This court however finds it quite unusual that the prosecution only produced computer print-outs of the appellant’s account’s statements but did not furnish the court with any of the primary documents that could have enabled the court to determine whether or not the transactions in dispute were authorized. The impression one gets, while perusing and analyzing the evidence tendered by the prosecution before the trial court, is that the appellant operated like a ‘one man show’, while working at the bank and was able to move huge amounts of money almost with reckless abandon, without being detected. My finding is that this could not have been the correct state of affairs going by the prosecution witnesses’ testimonies that all money transfers had to be accompanied by vouchers that were signed/authorized by at least two other signatories.

75. To a casual observer, the prosecution’s case may appear solid going by the numerous documents and witnesses that they presented to the trial court, however, as the saying goes, ‘the devil is always in the details’. In this case I find that there was more than meets the eye in all the charges leveled against the appellant as there were several unanswered questions that make me conclude that the case was not proved beyond reasonable doubt. I will highlight a few of the said questions as follows:

76. Firstly and as I have already stated in this judgment, the prosecution’s theory that the appellant was able to act unilaterally and without any checks or balances through authorization by his supervisors and managers contradicted their own evidence that all money transfer transactions required the authorization by more than one officer. The big question that was unanswered was therefore how that appellant was able to pull off the various heists undetected and more so, how the appellant was able to credit his staff account with sums of money way beyond the minimum limit without authorization or detection.

77. Of critical importance was the lack of explanation as to why the vouchers/primary documents relating to the said transactions were not produced in court even though it was the prosecution’s case that the said transactions could not be passed without the said vouchers which were then kept in the custody of the manager of operations. My take is that cheques, vouchers, and other accountable documents are expected to be kept in the banks safe custody for accounting and audit purposes. Banks, as custodians of public funds are expected to be meticulous in their record keeping systems and I find the alleged “free for all” manner in which the transactions that are the subject of this case were conducted to be impossible to believe. Needless to say, the bank did not give any satisfactory explanation as to why the all-important documents could not be availed in court and this leading to the logical conclusion that there could have been an attempt to withhold vital information from the court thereby making the bank guilty of non-disclosure of material facts. I find that it was quite curious that not even a single primary document was presented in court by the prosecution to buttress their case and that instead, only computer print-outs and journal reports were presented in support of the case. This court is alive to the fact that computers are prone to manipulation through hacking and other ways of access thereby making the production of primary documents mandatory. My take is that this was not the type of case that could be determined based on guess work, conjecture or circumstantial evidence. It is apparent that the trial court let the prosecution off the hook lightly on the issue of their failure to produce the primary documents and did not probe this failure or address it adequately in her judgment wherein she had the following to say:

“As for the production of the vouchers and cheques none were traced and so none could be produced as one cannot produce what they do not have.”

78. From the above extract of the trial court’s judgment, the burning question still remains why the bank did not deem it fit to produce documents which they were the only custodians. It was also worthy to note that the bank did not produce any audit report or a reconciliation report that could have showed whether or not it lost any money. Courts have severally held that they would be reluctant to grant orders in favor of a party who is guilty of non-disclosure of material facts. In the case of Johnson Kimeli vs. Barclays Bank of Kenya Ltd Kisumu HCCC No. 171 of 2003 it was held:

“Where the plaintiff is seeking a remedy from court he must show a good account of himself for the Court would be reluctant to extend its hand to a person with dirty and unclean hands for he would soil the hands of justice. Secondly a Court would not allow a person to benefit from his own wrong for that would amount to judicial treason…The failure to make a candid disclosure of all material and essential facts would militate against the person concealing that evidence or facts from the Court… The courts would be strict on non-disclosure of material facts by a party seeking a remedy more so when he has concealed important material from the Court at the first instance.”

79. Even though the above cited case was in respect to a civil suit, I find the reasoning therein relevant to this case more so because the level of proof in a criminal case is higher than that of a civil suit. In the case of Jane Wambui vs Stephen Mutembei & another [2006] eKLR the court had the following to say;

“Under section 67 of the Evidence Act, Cap 80, documents must be proved by primary evidence except in cases set out in section 68 of the Act where secondary evidence may be given of the existence, condition, or content of a document. The definition of primary evidence is to be found in section 65 of the same Act. Generally speaking, primary evidence means document itself produced for the inspection of the court”

80. Secondly, the prosecution did not call the witnesses responsible for the said authorization or safe custody of the vouchers to explain whether or not they authorized the said transactions. In the case of Bukenya vs Uganda (1972) EA 549, it was held that failure to call a crucial witness by the prosecution entitles the court to make an adverse conclusion against the prosecution’s case and acquit the accused person. In the said case the court expressed itself thus:

“The prosecution is duty bound to make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent with its case.”

81. Thirdly, in respect to count 1, 10 and 11 it was alleged that the appellant stole the sum of Kshs. 432,915/10 and Kshs. 275,645/25 that were in respect to cheques nos. 0019650 and 076-249970708 belonging to the Pensions Department and Commissioner VAT respectively. What was however most baffling was the fact that neither the Pensions Department, nor the Commissioner of VAT were complainants in the case before the trial court. PW10 was categorical that the bank did not receive any complaint from the Pensions Department or the Commissioner of VAT regarding the lost funds. KCB did not prove that they repaid the alleged stolen money to the intended recipients or that there was any claims made by them. This further compounds in the question of whether or not any money was lost in the absence of a complainant.

82. On count 11, the charge sheet shows that sum of Kshs. 275,645/25 that was allegedly stolen was the property of KCB yet in evidence it was claimed that the said money was due to the commissioner of VAT thereby yet again raising the question of who the actual complainant was, if any.

83. On counts 4, 6, 8 and 10, the particulars were that funds were fraudulently transferred from the suspense account to the appellant’s and his wife’s account. Once again I reiterate my findings in this judgment that whether or not the transfers were genuine or not was not proved beyond reasonable doubt as only the duly signed primary documents could have proved the claims. I find it hard to believe that a bank of KCB’s standing and reputation could operate in the manner the prosecution witnesses claimed that it did. What is apparent from the entire prosecution’s case was that there may have been a cover up in some of the dealings in which the appellant, who had already resigned from the bank’s service, was being used as the fall guy.

84. Compounding the intrigues surrounding the prosecution’s case is the fact that despite the appellant being a main suspect in the loss of huge amounts of money to the tune of Kshs. 1. 3million, the bank did not have any problem with clearing him from service by issuing him with a certificate of service and paying him all his dues. One would have expected a prudent organization such as KCB, to withhold the appellant’s dues or to recover the lost monies, if any, from the said dues. This was not the case and it leads to the irresistible conclusion that the charges were an afterthought or a witch-hunt going by the fact that the charges were initiated long after the appellant had resigned from the bank.

85. This court could go on and on over the glaring gaps and discrepancies surrounding the prosecution’s case, but the bottom-line is that the inconsistencies create serious doubts on the viability of the prosecution’s case that makes this court entertain doubts on whether the case met the threshold of proof set for criminal cases.

86. In sharp contrast to the prosecution’s case was the appellant’s sworn testimony which I find to have been credible, consistent and not shaken even upon stinging cross examination by the prosecution. The appellant went to great lengths to shed light on the bank’s practices and operations which clearly showed that it was not possible for him to single handedly carry out the unlawful transactions that he was accused of before the lower court.

87. In conclusion and having found that the prosecution’s case was not proved beyond reasonable doubt, I find that the instant appeal is merited and I hereby allow it by quashing the conviction on counts 1, 4, 5, 6, 7, 8, 9, 10 and 11 and setting aside the sentence imposed by the trial court with the result that the appellant shall be set free forthwith unless he is otherwise lawfully held.

Dated, signed and delivered in open court this 9th day of November, 2017

HON. W. A. OKWANY

JUDGE

In the presence of:

Mr. Otieno for the State

Appellant in person

Omwoyo court clerk