[2017] KEHC 9803 (KLR)

REPUBLIC OF KENYA

IN THE HIGH OF KENYA AT NYERI

HIGH COURT CRIMINAL APPEAL NO. 118 OF 2013

ANN WAIHUINI MATHENGE.............................APPELLANT

VERSUS

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

(Appeal against conviction and sentence in Nyeri CMCRC. No. 118 of 2010 delivered on 24/09/2013 by Hon. V.O. Nyakundi RM)

RULING

FACTS

1. The appellant, Ann Waihuini Mathenge, was charged with the offence of fraudulent disposal of mortgaged goods contrary to Section 291of the Penal Codeas read withSection 36of the Penal Code.

2. The particulars of the charge was that on diverse dates between 12th January, 2009 and 27th April, 2010 at Diary Village in Kieni West District within Central Province jointly with another not before the court being mortgagors of three cows, one bull, four sheep, one sofa set and one wall unit mortgaged goods with intention to defraud KWFT of Ksh.100,000/- disposed of the mortgaged goods without the consent of KWFT.

3. The appellant was convicted and sentenced to a term of eighteen (18) months imprisonment.

4. Being aggrieved by the conviction and sentence, the appellant filed a Petition of Appeal and the Grounds of Appeal are as summarized hereunder:-

(i) The prosecution failed to prove beyond reasonable doubt that the appellant had fraudulently disposed of mortgaged goods;

(ii) There were discrepancies in the Charge Sheet and inconsistencies and contradictions in the evidence adduced by the prosecution;

(iii) Crucial witnesses were not called to testify;

(iv) That the trial court did not exhaustively analyze all the evidence on record and hence arrived at a wrong finding;

5. At the hearing of the Appeal the appellant was unrepresented and Mrs. Gicheha was the Prosecuting Counsel for the State; the appellant relied on her written submissions whereas the State made oral submissions; hereunder is a summary of the respective presentations;

APPELLANTS SUBMISSIONS

6. The appellant submitted that;

(i) The Charge Sheet indicates that the appellant defrauded KWFT but the prosecution evidence indicates the complainant as Edith Wangeci (PW1) who was not an employee of the Bank nor its agent; that the property was mortgaged to KWFT and yet it was not the complainant; therefore the trial was a nullity;

(ii) The evidence of PW1 was that all the property was sold by the appellants husband in her absence and that he then disappeared; and therefore the prosecution failed to prove that it was the appellant who sold off the mortgaged property to the desired threshold;

RESPONDENTS SUBMISSIONS

7. In response Prosecuting Counsel for the State submitted that;

(i) The appeal was against conviction and sentence; the appellant was a member of a self-help group going by the name CHARITY GOOD HOPE SELF HELP GROUP;consisting of women who contributed money so as to obtain loans from KWFT;

(ii) Members guaranteed the appellant in the sums Kshs.20,000/- and Kshs.60,000/- which she faithfully repaid; in July, 2008 the appellant obtained another loan in the sum of Kshs.100,000/- and offered her livestock and furniture as security for the loan; her husband signed as her witness;

(iii) She repaid a total sum of Kshs.20,000/- loan from the months of July to December and then defaulted and disappeared for a period of 1 ½ years; the guarantors endeavored to search for her but to no avail; they approached her husband who informed them that the mortgaged assets had all been sold off; he then promised to pay off the loan but failed to do so and the guarantors were then tasked with the repayment of the loan;

(iv) When the appellant resurfaced on 27/04/2010 she was arrested and charged; her contention was that the members/guarantors were not employees of KWFT and had no locus to have her arrested;

(v) Counsel submitted that the members/guarantors had a right to do so as they stood guaranty for her and had been forced to pay the loan in the sum of Kshs.116,000/- on her behalf; and had she not sold the mortgage security KWFT would have had the option of selling the property; therefore the charges against the appellant were rightfully before this court;

(vi) The appellant argues that no one looked for her; but the evidence of PW1 and PW5 was that they had looked for the appellant all over; and that she was not attending meetings and also not servicing her loan; when she re-surfaced she gave no explanation on the whereabouts of the secured property nor did she give reasons as to why she had disposed of the assets;

(vii) The appellant claims to have repaid the loan but tendered no evidence in support; she contended that the members had lodged a civil claim against her to recover the monies; and therefore to file this criminal case was an abuse of process; but in response Counsel submitted that there was no law barring the civil case and that both cases could run concurrently and there was no abuse of due process;

(viii) That the appellants intention was to defraud KWFT and the guarantors as she had made no effort to service the loan; she did not provide the secured items nor had she given an explanation as to her whereabouts for 1 ½ years; that the members who had guaranteed her were greatly prejudiced as they were unable to obtain future loans.

(ix) Counsel prayed that the court upholds the findings of the subordinate court; that the appeal be dismissed; and the conviction and sentence be upheld.

ISSUES FOR DETERMINATION

8. After taking into consideration the rival submissions made by the appellant and those of the Counsel for the State, these are the issues framed for determination;

(i) Whether the prosecution proved there was a debt for which the appellant was liable;

(ii) Whether the evidence adduced by the prosecution was inconsistent with the particulars of the charge; which defect renders the charge as being defective and the trial a nullity;

(iii) Whether the prosecution proved that the appellant evaded her obligation and that she disposed of the mortgaged property;

(iv) Whether the prosecution proved its case to the desired threshold;

ANALYSIS

9. The evidence of PW1 was that the appellant was a member of the group known as Charity Good Hope Women; and that the appellant applied for a loan in the sum of Kshs.100,000/- from KWFT which loan was guaranteed by particular members of the group; the appellant gave livestock and furnishings and fittings as security for the loan;

10. This court framed the above mentioned issues and when embarking on the writing of the judgment noted that the original exhibits together with the Exhibit List were missing from the court record; these exhibits are very central to the appellants case and the court record being incomplete this court has no documents to peruse so as to enable it make a judicial determination on the merits of the case;

11. This courts presumption is that the documents may have been released to the group members to enable them pursue their civil claim against the appellant; and not that the documents may have been removed so as to derail the appeal; in any event even if the documents are not found it does mean that there will be an automatic quashing of the conviction and setting aside of the sentence; depending on the circumstances under which the documents went missing the respondent can still persuade this court to grant an order for retrial;

12. All in all the interest of justice as a whole for both parties must be considered; it would therefore be in order for this court to accord the respondent an opportunity to avail the documents to this court;

13. The appellant is out on bail pending appeal and will suffer no prejudice; after all these documents could be beneficial to her appeal as it may demonstrate that the trial court that convicted her did so in error.

DETERMINATION

14. The deputy registrar and the respondent are directed to expedite the process of availing the missing exhibits;

15. Mention on the for purposes of fixing a judgment date.

Orders accordingly.

Dated, Signed and Delivered at Nyeri this 12th day of October, 2017.

HON.A.MSHILA

JUDGE