[2023] KEHC 19376 (KLR)

Bahadul v Republic (Criminal Appeal E097 of 2021) [2023] KEHC 19376 (KLR) (27 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19376 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Appeal E097 of 2021

A. Ong’injo, J

June 27, 2023

Between

Abdul Rasul Bahadul

Appellant

and

Republic

Respondent

(Being an appeal against the decision of Hon. David Odhiambo (RM), on 4th October 2021 in Shanzu Senior Principal Magistrate’s Court Criminal Case No. 819 of 2017, Republic v Abdul Rasul Bahadul)

Judgment

Background 1. The Appellant, Abdul Rasul Bahadul, was charged with the offence of stealing contrary to Section 268(1) as read with Section 275 of the Penal Code.

2. The Particulars of the offence are that Abdul Rasul Bahadul on diverse dates between 17th of August 2012 and 4th April 2016 at Mombasa within Mombasa County stole a total of Kshs. 22,000,000 the property of Shanne Abbas Mustafa Kanani.

3. The appellant was found guilty and convicted for the offence of stealing and sentenced to 3 years imprisonment.

4. The appellant being aggrieved by the conviction and sentence, he preferred the appeal herein on the following grounds: -1. That the learned trial magistrate erred in law and fact by failing to notice that essential ingredients/elements of the offence as charged were not proved.2. That the learned trial magistrate erred in law and fact and misdirected himself by wholly relying on the evidence of prosecution witness (PW1) which was not supported by evidence.3. That the learned trial magistrate erred in law and fact and misdirected himself by considering the evidence of prosecution witness (PW1) as truthful while he had admitted on oath he knowingly and willingly made false declarations while filing the transactions.4. That the learned trial magistrate erred in law and fact and misdirected himself by injecting himself into the arena of trial by varying the mounts stated in the charge sheet from Kshs. 22,000,000 to Kshs. 32,000,000 while the same had not been amended.5. That the learned trial magistrate erred in law and fact and misdirected himself by failing to consider that PW4 being the investigating officer admitted that he did not conduct any investigations with regard to the charges levelled against the accused person.6. That the learned trial magistrate erred in law and fact and misdirected himself by failing to properly account for the monies disbursed by the accused person was Kshs. 21,000,000 and not Kshs. 13,320,777. 50. 7.That the learned trial magistrate erred in law and fact when he failed to put into consideration the evidence adduced in court by DW1 was not dislodged.8. That the learned trial magistrate erred in law and fact by failing to appreciate the evidence of DW2 that he witnessed the complainant receiving USD 80,000 from the accused.9. That the learned trial magistrate erred in law and fact by misapprehending the law and finding that the prosecution had met its burden of proof beyond reasonable doubt.

5. The Appellant sought that the conviction in judgment delivered on 4th October 2021 be quashed and the sentence passed on 27th October 2021 be set aside.

Prosecution’s Case 6. The prosecution’s case was that PW1, Mustapha Shane Abbas, the complainant, who was residing and working in Zambia sent to the appellant Kshs. 22,000,000 in small lots because they had a plan to put the money in the appellant’s fixed deposit account. He said that he sent the money for purposes of investment and he sent it in small lots because he wanted it to pile up. He produced bank statements for his accounts in Zambia which showed the transactions that were made while sending the money to the appellant’s accounts in Imperial Bank and Diamond Trust Bank in Kenya.

7. The complainant testified that at one point, he paid for his air ticket to Zambia so that they could discuss his proposal to open a business for mitumba worth Kshs. 20,000,000 and get returns of 5% per month. The complainant testified that in August 2016 when he returned to follow up on the investment, the appellant told him that the man was in Dubai and that he was going to send it to the complainant in one month’s time. That after one month the appellant stopped picking his calls and blocked him. The complainant stated that he had given the appellant USD 128,000 but on 24th June 2015, the appellant deposited only USD 126,000 in his Diamond Trust Bank account.

8. The complainant also testified that he gave the appellant USD 25,000 through his Imperial Bank account as a loan for the appellant’s brother in Morogoro which loan was to be paid in two years with an interest of USD 30,000. That amount was not paid as the appellant claimed that the brother’s business had collapsed. The complainant further alleged that the appellant was to purchase some property for him in Nyali worth Kshs. 10,000,000 and he did all the payments amounting to Kshs. 10,000,000 by way of bank transfers and cash.

9. The complainant testified that he discovered that two other properties in Tudor and Nyali had not been purchased and the appellant stopped picking his calls. That he returned to the country in June 2017 and reported the matter to Nyali Police Station where the appellant was arrested after one week. He said that in total the appellant took Kshs. 32,500,000 from him without doing any investment.

10. In cross examination, the complainant said he was not in partnership with the complainant, that he did not have any agreement with him and he was just paying him on commission basis. He said they did not register the investment business and that he was not a signatory to the account where monies were being sent. He also admitted that when he was sending the money to the appellant’s account, the reasons he gave were not for buying a house or any type of investment. In the contrary, he said that the money was for transport charges, for medical purposes, and for loan repayments. He said that he made false declarations and that he did not have an agreement to invest the money in a fixed deposit account.

11. In re-examination, the complainant said he trusted the appellant and did not see the need of having an agreement. He said he was not demanding for the money that the appellant used for buying him a vehicle. He said he was sending money in bits so as to fool the Zambian government.

12. PW2, Ezekiel Kaigo Gongolo, produced statements for the appellant’s account held at Diamond Trust Bank Shimanzi in respect to the monies deposited therein by the complainant. He said that amounts above USD 10,000 must be declared. PW2 also said that it is an offence for one to make false representation.

13. PW3, Naijim Anthony Fernandes, produced the account opening documents and statements for the appellant at Imperial Bank between 4th January 2012 and 13th August 2015. He said that the transactions in the statements did not indicate whether the money was for investments and the purpose for the money could not be known.

14. PW4, No. 238099, IP Joseph Nyamai was at Nyali Police Station on 15th June 2017 when the complainant reported a case of stealing against the appellant. PW4 investigated the claim of Kshs. 22 million and arrested the accused person and arrested the accused person and charged him. PW4 obtained bank statements to the appellant’s account at Imperial and Diamond Trust Bank which reflected the amounts that the complainant had sent to the accounts. IP Nyamai said that the complainant did not specify the kind of investment that the money was supposed to be applied to as it was a gentleman’s agreement between the appellant and the complainant.

Defence Case 15. DW1, the appellant in his defence admitted that the complainant was known to him and that they went to the same school and that in 2011 he worked in a spare parts shop where the complainant was the director before he went to Zambia. He said that after the complainant relocated to Zambia, he used to send money to his accounts in Imperial and Diamond Trust Bank. He said that part of the money he used to buy the complainant a house opposite Ratna at Kshs. 10,000,000. He also said he bought a car for the complainant and the complainant’s father and paid the employees. The appellant said that the money that was sent to his account was for numerous purposes and part of the money was sent to the complainant’s aunt Mariam Khanua in India. That he also sent Kshs. 480,000 to the complainant as per Exh-8 dated 15. 10. 2015 and deposited Kshs. 427,500 on 27. 3.2013 and Kshs. 55,000 on 31. 7.2013 into the account of Muhamud Mustapha Kanani as per Exhs 10 and 11 respectively. He said that the complainant also entrusted him with payment of rent for a house his family was occupying in Kizingo and that he used to give the complainant’s mother cash for house expenditure.

16. He testified that at one time while in the company of his brother-in-law in Dar-es-salaam he gave the complainant USD 80,000 in cash which he had withdrawn from his account and that when the complainant sent him USD 70,050 on 12th May 2015 and USD 80,050 on 13th May 2015, he got suspicious and sent the money back on 14th May 2015 having added USD 900 on top as per Exh-19(b). The appellant accounted for Kshs. 20,974,357 which he said he spent. He said that when he refused to be in trouble and backed out, the complainant reported him and he was arrested. He said that his community people cautioned him that he was transacting a lot of money and that he would land in trouble.

17. DW2, Mohamed Khimi, a brother-in-law to the appellant. He said that in 2015, he witnessed the appellant giving the complainant USD 80,000 but he did not know what the money was for. He said that the complainant had come from Zambia.

18. This appeal herein was canvassed by way of written submissions.

Appellant’s Written Submissions 19. The appellant’s submission was that the monies sent into the appellant’s account in Diamond Trust Bank and Imperial Bank were not for investment purposes but for purpose in the documents tendered in evidence by PW2 and PW3. It was submitted that the complainant made false declarations when transferring the monies and the investigating officer PW4 was unable to substantiate if there was any agreement between the complainant and the accused.

20. It was submitted that the appellant returned Kshs. 50,000,000 when he realized the complainant was not genuine and the transactions were not legitimate but he used the rest of the money for various purposes as per instructions of the complainant. It was submitted that the appellant was able to account for Kshs. 21,000,000 by producing receipts and account transaction details which had similarly been relied on by the prosecution.

21. The appellant submitted that the prosecution did not discharge the onus that he was guilty and that he ought to have been acquitted. He relied on the holding in the case of Miller v Minister of Pensions (1947), Walter v Republic (1969) and Oketch Okale v Republic (1965) EA 555 to support the submission that the burden of proof in criminal cases is always on the prosecution to prove an accused is guilty beyond reasonable doubt.

22. On the other hand, it was submitted that the appellant’s sworn testimony was credible, consistent and unshaken upon cross examination by the prosecution. It was further submitted that if there was any dispute between the accused and the complainant the same is purely a civil matter in respect to rendering accounts to monies advance and which lay squarely within the jurisdiction of the civil court. That was the holding in Criminal Appeal No. 152 of 2015, Juma Okhala Oparanya v Republic as follows: -“After considering all the facts and circumstances, I am of the view that trial court erred in convicting the appellant of theft. It was not proved that he had converted the money to his own use. There was a dispute about the sale which had not yet been resolved. It would have been only after the resolution of the dispute one way or the other that he could be accused of unjustly holding on to PW1’s money. In any event, the dispute was purely a civil one, and the police ought not to have been involved in a pure civil dispute between citizens. The relief available to PW1 lay with moving the Environment and Land Court appropriately to recover the land that the appellant was selling to him, or the High Court or the subordinate courts to recover the sale price paid if he had chosen to treat the sale as having failed or having been abandoned.”

23. The appellant argued that the prosecution failed to prove its case beyond reasonable doubt and that the appeal should be allowed.

Respondent’s Written Submissions 24. The Respondents in their submissions filed on 26th January 2023 was argued that the essential ingredients/elements of the offence of stealing were proved as the evidence tendered demonstrated a pure state of fraudulent conversion of PW1’s property an act constituting the offence of theft/stealing. They argued that they had established the existence of the property, ownership and fraudulent conversion thereof.

25. For ground 2, it was argued that PW1’s evidence was cogent, consistent and unshaken and supported by documentary evidence proving that he had transferred fund to the appellant’s bank account, a fact that is not disputed.

26. For ground 3, the Respondent submits that no evidence was laid by the defence to controvert that the monies sent to the appellant’s account was not meant for investment but for purposes indicates in the bank transfer document. That failure by the complainant to declare the purpose for which money was sent to the appellant’s account did not negate the fact that the appellant received the money and fraudulently converted it to his own use.

27. On the issue that the trial magistrate descended on the arena of the dispute, the Respondent submitted that analysis and evaluation of evidence does not equate the court to descending to the arena of trial. That the court was within its jurisdiction to interrogate the evidence before it and no injustice will be occasioned since the elements of the offence are the same and the sentence will more or less be the same.

28. On whether or not PW4 conducted investigations, it was submitted that PW4 interrogated the complainant and the appellant, obtained statements from Diamond Trust Bank and Imperial Bank, analysed the statements and obtained statements of the witnesses before charging the appellant.

29. In regard to ground No. 6, the Respondent argued that the appellant included sums of money that were not in contention and that the complainant had clarified that the same was used as directed or returned.

30. In regard to ground No. 7, the appellant chose to highlight transactions that were not in contention. The Respondent also said that DW2’s evidence was vague as he did not give any date or place of the alleged transaction. The Respondent argued that the prosecution had met the threshold which is beyond reasonable doubt and that the appeal should not be allowed.

Analysis and Determination 31. This being the first appellate court, it is guided by the principles in David Njuguna Wairimu v Republic [2010] eKLR where the court of appeal held: -“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”

32. After considering the grounds of appeal, records of the trial court and the submissions, issues for determination are as follows: -1. Whether the prosecution proved the offence of stealing beyond all reasonable doubt.2. Whether Kshs. 40,000,000, Kshs. 32,000,000 or Kshs. 22,000,000 was sent to the appellant.3. Whether PW4 conducted any investigations with regard to the charges levelled against the appellant.4. Whether the trial magistrate misdirected himself by varying the mounts stated in the charge sheet from Kshs. 22,000,000 to Kshs. 32,000,000 while the same had not been amended5. Whether the court considered the evidence of DW2 that he witnessed the complainant receiving USD 80,000 from the accused

Whether the prosecution proved the offence of stealing beyond all reasonable doubt 33. The question that this court begs to ask is whether PW1’s evidence was sufficient to find the appellant guilty. There was no dispute that PW1 sent money to the appellant’s account and the appellant utilized as per the instructions of PW1. The court is not able to ascertain that the appellant did not follow instructions in the absence of specific written authority considering the declaration in transactions in the bank. PW1 sent money but the instructions were not specific or written and this court can only speculate whether what the appellant did was as per their oral or unwritten instructions or contrary to the instructions. PW1 said he told the appellant to help his family in Kenya and this court cannot establish the extent in the absence of specific instructions. The claim by PW1 is his word against the appellant’s word and can go either way for or against any one of them. It stands in the balance and not to the standard of beyond reasonable doubt.

Whether Kshs. 40,000,000, Kshs. 32,000,000 or Kshs. 22,000,000 was sent to the appellant 34. Account by PW1 is not the issue. The issue is how the money was used and whether there were instructions on how to use the said money.

Whether PW4 conducted any investigations with regard to the charges levelled against the appellant 35. PW4 conducted investigations when the complainant reported.PW4 obtained search warrants and secured statements of the appellant’s bank accounts at Diamond Trust Bank and Imperial Bank and established the remittances by PW1. He confirmed that PW1 did not provide evidence that the said remittances were meant for investment either for buying property or fixed deposit.

Whether the trial magistrate misdirected himself by varying the mounts stated in the charge sheet from Kshs. 22,000,000 to Kshs. 32,000,000 while the same had not been amended 36. The charge sheet shows the appellant did not account for Kshs. 22,000,000. The trial magistrate in his analysis said the complainant that the appellant received Kshs. 32,00,000 and he said that considering the exchange rate, that would be Kshs. 32,786,200. In evaluating the appellant’s defence, he said that the appellant had accounted for Kshs. 13,320,771. 50. There are three different figures in the trial court file/record and considering that Kshs. 13,320,771. 50 out of Kshs. 22,000,000 has been accounted for, it cannot be said that the applicant stole Kshs. 22,000,000. What is not accounted for would be Kshs. 8,679,222. 50. It was therefore erroneous for the court to find that the charge against the appellant for the theft of Kshs. 22,000,000 had been proved beyond all reasonable doubt.

Whether the court considered the evidence of DW2 that he witnessed the complainant receiving USD 80,000 from the accused 37. The appellant said that he took USD 80,000 to the complainant in the company of his brother-in-law while in Dar-es-salaam. DW2 the brother-in-law testified as much and there was no challenge of the allegation even after the prosecution sought time because the appellant introduced the name of the brother-in-law. The complainant did not deny the appellant bought him a house, cars for himself and his father, deposited the money in his brother’s account severally, paid rent for the family house in Kizingo, paid employees, sent money to the aunt in India, gave money to his mother for upkeep and a myriad of other errands. Their agreement was oral and open ended and the court erred in limiting it to mean that the appellant had specific instructions.

38. In conclusion, this court finds that the appeal has merit and is allowed. Orders accordingly.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 27ND DAY OF JUNE 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for the RespondentMr. Amadi Advocate for the Appellant presentAppellant present in personHON. LADY JUSTICE A. ONG’INJOJUDGEMr. Amadi:We pray for copy of the judgment and discharge of security.Order:Certified copy of judgment to be supplied on payment of copying charges. Security deposited to be released to surety.HON. LADY JUSTICE A. ONG’INJOJUDGE29. 6.2023