https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1643

Mathenge v Republic (Criminal Appeal E044 of 2024) [2026] KECA 1643 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1643 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Appeal E044 of 2024 PO Kiage, JM Ngugi & RB Ngetich, JJA July 31, 2026 Between Benson Wahinga Mathenge Appellant and Republic Respondent (Being an appeal from a conviction and sentence of the High Court of Kenya at Nairobi (Wakiaga, J.) on 7th October, 2020 in HCCRA No. 5 of 2020) Judgment 1.This is a second appeal arising from the conviction and sentence of the appellant, Benson Wahinya Mathenge, the appellant, for the offence of stealing by servant contrary to section 281 of the Penal Code. The appellant was charged before the Chief Magistrate’s Court at Nairobi with the allegation that, on 24th June, 2016, while employed by Equity Bank at its Kilimani Branch as a Clearing Officer, he stole Kshs. 5,000,000, being money belonging to his employer and which had come into his possession by virtue of his employment. 2.Upon a full trial, the appellant was convicted and sentenced to pay a fine of Kshs. 1,000,000 and, in default, to serve one-year imprisonment. Being dissatisfied with both conviction and sentence, he appealed to the High Court. In a judgment delivered on 7th October, 2020, the High Court (Wakiaga, J.) dismissed the appeal in its entirety and upheld both conviction and sentence. 3.It is against that backdrop that we turn to the procedural history of the matter and the path the litigation has taken through the trial court and the High Court before reaching this Court. 4.As aforesaid, the appellant pleaded not guilty, and the matter proceeded to a full trial. The prosecution called two witnesses in support of its case, while the appellant gave sworn testimony in his defence. 5.The first prosecution witness, PW1, Charles Gitonga Ndungu, was the Branch Manager at Equity Bank, Kilimani Branch, at the material time. He testified on the general operations of the branch and the cheque- clearing process. He explained the workflow for processing cheque deposits and the responsibilities assigned to officers in the clearing department, including the appellant. His evidence was directed at showing that the appellant was the officer who handled the impugned transactions and that the six cheques, with a cumulative value of Kshs. 5,000,000, were intended for credit into the account of Tandu Alarm Systems but were instead posted into account number 02xxxxxxxxxx0 associated with Excel Petroleum. PW1 also produced banking records relating to the impugned transactions, including cheque images, deposit slips, and transaction statements. 6.The second prosecution witness, PW2, Nicholas Chaw, was a security officer attached to Equity Bank and part of the bank’s internal investigations team. He testified on the bank’s internal inquiry into the irregular postings. His evidence was that the correct account number for the intended beneficiary was clearly indicated on the reverse side of the cheques and in the accompanying deposit documentation. He further testified that, following the wrongful crediting of the six cheques into the Excel Petroleum account, the funds were subsequently withdrawn through transactions processed after internal approvals. PW2 produced the documentary records generated during the internal investigations, including account profiles and transaction records relating to both the intended beneficiary account and the Excel Petroleum account. 7.The thrust of the prosecution case, therefore, was that the appellant, in his capacity as the clearing officer who processed the six cheques, deliberately caused the funds to be credited into the wrong account and thereby facilitated the alleged theft. 8.Notably, however, although investigations were evidently undertaken into the transaction and the alleged theft, the prosecution did not call the Investigating Officer as a witness. The prosecution, therefore, closed its case without leading direct evidence on the broader investigative trail concerning, among other matters, the persons behind the beneficiary account; the movement and ultimate destination of the funds after withdrawal; or any evidentiary nexus between the appellant and the owner of the account or the ultimate recipient of the diverted funds. 9.At the close of the prosecution case, the learned trial magistrate found that the prosecution had established a prima facie case requiring an answer from the appellant. The appellant was accordingly placed on his defence. 10.In his sworn defence, the appellant denied stealing the money and maintained that he did not benefit from the impugned transaction. His case was that the erroneous posting of the six cheques into the Excel Petroleum account was an honest mistake committed in the course of his duties as a clearing officer. He explained that the clearing department handled numerous cheque transactions daily and that, given the volume and pace of work, data-entry errors, though unfortunate, were possible. 11.The appellant further denied that he had exclusive control over the cheque-processing chain. His evidence was that the clearing process involved multiple layers of oversight and verification, including supervisory review by senior officers. It was, therefore, his position that the prosecution had oversimplified the operational structure of the bank in attributing to him the sole responsibility for the impugned (mis)postings. He also denied any relationship, connection, or dealings with the holder of the Excel Petroleum account into which the funds were credited. He maintained that the prosecution had failed to demonstrate any nexus between him and the beneficiary account or to prove that he received or benefited from any portion of the diverted funds. 12.Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the charge beyond reasonable doubt. The trial court found it significant that the account number into which the funds were posted bore no meaningful similarity to the account number appearing on the six cheques and corresponding deposit slips. The court reasoned that such a discrepancy could not reasonably be explained as a mere typographical or clerical error. 13.The trial court further held that the circumstances surrounding the posting of the cheques pointed irresistibly to deliberate diversion rather than honest mistake. In particular, the learned magistrate considered the appellant’s explanation unsatisfactory, especially because he did not offer a convincing account of how he came to input the Excel Petroleum account number instead of the correct account number appearing on the transaction documents. 14.Consequently, the trial court rejected the appellant’s defence, convicted him of the offence of stealing by servant contrary to section 281 of the Penal Code, and sentenced him to pay a fine of Kshs. 1,000,000/= and, in default, to serve one-year imprisonment. 15.Aggrieved by both conviction and sentence, the appellant appealed to the High Court in Criminal Appeal No. 5 of 2020. Before the High Court, he challenged both the factual findings and legal conclusions reached by the trial court. His appeal raised several complaints, including that the prosecution had failed to prove all the essential ingredients of the offence; that the burden of proof had been impermissibly shifted to him; that crucial witnesses had not been called; that his right to a fair trial had been violated by late disclosure of witness material; and that his defence had not been properly considered. 16.Sitting as a first appellate court, the High Court correctly acknowledged its duty to subject the entire evidence to fresh and exhaustive re-evaluation and to draw its own conclusions, while bearing in mind that it had neither seen nor heard the witnesses testify. 17.Upon re-evaluation of the record, the High Court dismissed the appeal in its entirety. The learned Judge agreed with the core reasoning of the trial court and found no basis for disturbing either the conviction or sentence. The High Court accepted that the appellant was the officer responsible for processing the six cheques and agreed that the posting of the funds into the Excel Petroleum account could not reasonably be explained as mere inadvertence or operational error. 18.On the complaint that the prosecution had failed to call crucial witnesses, including the Investigating Officer, the High Court was not persuaded that any prejudice had been occasioned to the appellant. The court held that the witnesses who testified sufficiently established the prosecution’s case and that the omission to call additional witnesses did not fatally weaken the prosecution’s evidentiary foundation. 19.On the argument concerning the burden of proof, the High Court likewise found no merit. It agreed with the trial court that once the prosecution had demonstrated that the appellant processed the transactions and entered the incorrect account number, an evidentiary burden arose requiring the appellant to offer a plausible explanation as to how the erroneous entry occurred. 20.The High Court also rejected the appellant’s complaint that his right to a fair trial had been infringed by late disclosure of witness statements. The learned Judge held, in substance, that no sufficient prejudice had been demonstrated to warrant upsetting the conviction on that basis. 21.In the final analysis, the High Court upheld both conviction and sentence in their entirety. Dissatisfied with that determination, the appellant lodged the present second appeal before this Court. 22.This being a second appeal, the jurisdiction of this Court in such appeals is circumscribed by section 361(1)(a) of the Criminal Procedure Code, which limits our mandate to matters of law only. The section provides, in relevant part, that a party to an appeal from a subordinate court to the High Court may appeal to this Court “on a matter of law, and not on a matter of fact.” 23.The jurisprudence on the scope of second appeals is now settled. This Court does not ordinarily interfere with concurrent findings of fact made by the trial court and affirmed by the first appellate court unless it is demonstrated that such findings were based on no evidence at all, were founded on a misapprehension of the evidence, or were arrived at through the application of wrong legal principles. In Njoroge v Republic [1982] KLR 388, this Court stated that on a second appeal it will not interfere with concurrent findings of fact unless those findings are not based on evidence. Similarly, in Kaingo v Republic [1982] KLR 213, the Court reiterated that interference is justified where the findings are perverse or are unsupported by the evidence on record. 24.The rationale for this limitation is straightforward. The trial court enjoys the singular advantage of seeing and hearing witnesses testify and is, therefore, best placed to make primary factual findings, especially on credibility and demeanor. The first appellate court, in turn, bears the duty of subjecting the entire evidence to fresh and exhaustive re-evaluation. By the time a matter reaches this Court on second appeal, the law expects a high degree of deference to factual determinations concurrently reached by both courts below. 25.That said, the distinction between questions of fact and questions of law is not always neat or self-executing. Certain issues that may initially appear factual may, upon closer examination, implicate legal standards and, therefore, fall squarely within the jurisdiction of a second appellate court. This includes situations where the complaint is that the lower courts misapprehended the legal ingredients of an offence, applied the wrong standard of proof, shifted the burden of proof, or drew legal inferences unsupported by the established facts. 26.In David Njoroge Macharia v Republic [2011] eKLR, this Court observed that whether a conviction is supported by evidence is, in certain circumstances, a question of law, particularly where the complaint concerns whether the evidence on record meets the legal threshold required to sustain conviction. Likewise, whether the prosecution proved all the essential ingredients of a criminal charge beyond reasonable doubt is not merely factual; it ultimately implicates the legal sufficiency of the evidence. 27.In the present appeal, the appellant raises six grounds of appeal. Some of those grounds are framed in factual terms but when carefully examined, the core complaints before us are properly legal in character. 28.First, the appellant contends that the prosecution failed to prove all the essential ingredients of the offence of stealing by servant. That complaint necessarily raises a question of law because it requires the Court to identify the constituent legal elements of the offence under sections 268 and 281 of the Penal Code and determine whether the evidence on record satisfied those elements. 29.Second, the appellant contends that both courts below impermissibly shifted the burden of proof to him by requiring him to explain how the wrong account number came to be entered into the system. Whether the burden of proof was shifted contrary to the presumption of innocence guaranteed under Article 50(2)(a) of the Constitution is quintessentially a question of law. 30.Third, the appellant complains that the prosecution failed to call crucial witnesses, particularly the Investigating Officer. Although the decision whether to call a witness is ordinarily a matter of prosecutorial discretion, the legal effect of failing to call a witness whose evidence may be central to proving a critical ingredient of the offence may raise a question of law concerning evidentiary sufficiency. 31.Fourth, the appellant raises a fair trial complaint grounded on Article 50 of the Constitution, alleging late disclosure of witness statements. Whether constitutional fair-trial guarantees were violated is plainly a question of law. 32.Accordingly, while this Court remains mindful of the limits imposed by section 361 of the Criminal Procedure Code, we are satisfied that the present appeal raises substantial questions of law properly falling within our jurisdiction as a second appellate court. It is, therefore, to the parties’ arguments on those questions that we now turn. 33.At the plenary hearing of this appeal, the appellant was represented by Mr. Omari, learned counsel, while the respondent was represented by Ms. Proscovia Vitsengwa, learned Prosecution Counsel, appearing on behalf of the Director of Public Prosecutions. Learned counsel for both parties briefly highlighted their written submissions and emphasized the principal arguments contained therein. 34.The appellant’s case before us is that both courts below fell into error in law by upholding a conviction that was not supported by evidence meeting the threshold of proof beyond reasonable doubt. In written submissions filed on his behalf, the appellant advances several interrelated complaints touching on evidentiary sufficiency, burden of proof, fair trial rights, and treatment of his defence. 35.The appellant’s primary argument is that the prosecution failed to prove all the essential ingredients of the offence of stealing by servant. While conceding that he was an employee of Equity Bank and that the six cheques in question were processed and misposted in the course of his duties, he argues that the prosecution failed to establish the critical element of fraudulent appropriation or conversion. In particular, he contends that no evidence was led to demonstrate that he received, withdrew, shared in, or otherwise benefited from the Kshs. 5,000,000/= that was credited into the account of Excel Petroleum. 36.The appellant submits that the prosecution proved, at most, that an erroneous posting occurred while he was processing the cheques. However, he argues that wrongful posting, without proof of fraudulent intent or appropriation, does not suffice to establish the offence of stealing by servant. His position is that the misposting was a result of operational error and not criminal theft. Central to the appellant’s case is the complaint that the prosecution failed to call crucial witnesses, particularly the Investigating Officer. According to the appellant, the Investigating Officer was the witness best placed to establish the investigative trail regarding the beneficiary account, including the identity of the persons who accessed or withdrew the funds, and whether any nexus existed between the him and the beneficiary account. Counsel submitted that in the absence of such evidence, the prosecution failed to prove a critical ingredient of the charge. 37.The appellant further argues that both courts below impermissibly shifted the burden of proof onto him. He takes issue with the two courts’ reasoning that because he processed the transactions and entered the wrong account number, he bore the burden of explaining how the erroneous entry occurred. In his submission, that approach offended the presumption of innocence guaranteed under Article 50(2)(a) of the Constitution by effectively requiring him to prove his innocence or explain away suspicious circumstances. 38.Relatedly, the appellant disputes the finding that he exercised exclusive control over the cheque-processing chain. He points to evidence suggesting that the clearing process involved multiple operational and supervisory layers, including oversight by senior officers such as the Branch Manager. He, therefore, contends that both courts below erred in law by drawing adverse inferences from an oversimplified understanding of the bank’s internal processes. 39.On the fair trial complaint, the appellant submits that his rights under Article 50(2)(j) of the Constitution were infringed because one of the prosecution witness statements - specifically that of PW2 - was supplied to him only on the day of the hearing. He argues that this amounted to trial by ambush and undermined his right to adequate preparation. 40.Finally, the appellant also faults both courts below for failing to properly consider his defence. He maintains that his explanation - that the erroneous posting was an honest mistake committed during the processing of high volumes of transactions - was not fairly evaluated. He submits that the courts below dismissed his defence prematurely and without sufficient engagement with the operational realities of his work environment. 41.The respondent opposes the appeal in its entirety and urges this Court to dismiss it. The respondent’s starting point is jurisdictional: this being a second appeal, the Court’s mandate is limited to questions of law. The respondent submits that the appellant’s complaints are, in substance, invitations to revisit factual findings concurrently made by the trial court and the High Court, contrary to section 361 of the Criminal Procedure Code. 42.On the merits, the respondent argues that the prosecution proved all the ingredients of the offence of stealing by servant beyond reasonable doubt. The respondent submits that it was undisputed that the appellant was an employee of Equity Bank and that the funds in question came into his possession by virtue of his employment. The respondent further submits that the evidence clearly established that the appellant processed the six cheques and entered the wrong account number into the bank’s system, thereby causing the funds to be diverted to the account of Excel Petroleum. 43.The respondent places considerable emphasis on the fact that the correct account number was clearly indicated both on the reverse side of the cheques and on the deposit slips. It is submitted that the Excel Petroleum account number bore no similarity to the correct account number and that the entry of that account number, therefore, could not reasonably be explained as a typographical or clerical error. In the respondent’s view, the circumstances admitted of only one reasonable inference: deliberate and fraudulent diversion. 44.On the complaint regarding failure to call the Investigating Officer, the respondent submits that the prosecution is not obliged to call a superfluity of witnesses and that the witnesses called sufficiently proved the case. The respondent argues that no prejudice was occasioned by the omission to call the Investigating Officer because the evidence on record already established the appellant’s role in the diversion of the funds. 45.The respondent rejects the argument that the burden of proof was shifted to the appellant. It is submitted that the prosecution discharged its legal burden by proving a prima facie case. According to the respondent, once the prosecution established that the appellant entered a wholly different account number despite the correct account number appearing on the transaction documents, an evidentiary burden arose under sections 109 and 111 of the Evidence Act requiring the appellant to explain facts especially within his knowledge - namely, how he came to enter the Excel Petroleum account number. 46.Regarding the fair trial complaint, the respondent submits that no violation of Article 50 occurred. The respondent points out that when PW2 testified, counsel for the appellant indicated to the trial court that he was ready to proceed, raised no objection regarding disclosure, and proceeded to cross-examine the witness extensively. The respondent, therefore, contends that the complaint of late disclosure is unsupported by the record. 47.Finally, the respondent submits that both courts below properly considered and rejected the appellant’s defence. In the respondent’s view, the defence of honest mistake was implausible and incapable of raising reasonable doubt, particularly because the appellant did not provide a credible explanation as to how he came to input the account number of Excel Petroleum. 48.We have carefully considered the record of appeal, the judgments of the two courts below, and the submissions by counsel. Although the appellant’s memorandum of appeal contains six grounds, and the parties have framed the dispute through multiple evidentiary and constitutional lenses, it appears to us that the appeal ultimately turns on a narrower set of legal questions. 49.In our view, the issues arising for determination may be distilled into three principal questions. 50.First, and most centrally, whether the prosecution proved all the essential ingredients of the offence of stealing by servant contrary to section 281 of the Penal Code beyond reasonable doubt. Embedded within that first issue is a more pointed question concerning the legal significance of the prosecution’s failure to call the Investigating Officer; and whether the missing testimony left a critical evidentiary gap that fatally undermined proof of an essential ingredient of the offence. 51.Second, whether the two courts below impermissibly shifted the burden of proof to the appellant in a manner inconsistent with the constitutional presumption of innocence and established criminal law principles in their application of sections 109 and 111 of the Evidence Act to the facts of this case. 52.Third, whether the appellant’s right to a fair trial was violated by the alleged late disclosure of PW2’s witness statement and, if so, whether such violation occasioned prejudice sufficient to vitiate the conviction. Closely related to this issue is the complaint that the appellant’s defence was not properly considered by the two courts below. 53.In truth, however, the latter two issues are largely ancillary. As became apparent during the hearing and from our review of the record, the appeal substantially turns on the first issue: whether the evidence on record was legally sufficient to sustain a conviction for stealing by servant. Put differently, the pivotal question before us is not whether suspicious circumstances existed. They plainly did. Nor is it whether the appellant processed the transactions that resulted in the diversion of funds. He evidently did. The decisive question is whether the prosecution proved, beyond reasonable doubt, the crucial inferential step from suspicious conduct and erroneous posting to criminal stealing as defined by law. 54.We begin with the first and central issue: whether the prosecution proved all the essential ingredients of the offence of stealing by servant beyond reasonable doubt. 55.The appellant was charged under section 281 of the Penal Code. That section provides:“If the offender is a clerk or servant, and the thing stolen is the property of his employer, or came into the possession of the offender on account of his employer, he is liable to imprisonment for seven years.” 56.Section 281 does not create a wholly independent offence detached from the general law of theft. Rather, it criminalizes theft committed in the special context of an employment relationship. Accordingly, to properly understand the offence of stealing by servant, one must read section 281 together with section 268 of the Penal Code, which defines stealing. Section 268(1) provides:“A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, is said to steal that thing.” 57.The statutory text makes two things immediately clear. First, stealing is not established merely by showing that property moved from one account, place, or person to another. Second, and more importantly for present purposes, theft requires proof of a mental element: the taking or conversion must be fraudulent. It is that fraudulent appropriation, the animus furandi, rather than mere irregular handling of property, that transforms suspicious conduct into criminal theft. 58.The essential ingredients of the offence of stealing by servant may, therefore, be stated as follows:i.First, that the accused was a servant or employee of the complainant;ii.Second, that the property in question belonged to the employer or came into the possession of the accused by virtue of employment; andiii.Third, that the accused fraudulently took or converted that property to his own use or to the use of another person without lawful justification. 59.In the present case, the first two ingredients were substantially undisputed. There was no controversy that the appellant was an employee of Equity Bank and specifically served as a Clearing Officer at the material time. Nor was there serious dispute that the six cheques whose cumulative value was Kshs. 5,000,000 came into his possession in the course of his employment. The real contest concerns the third ingredient: whether the prosecution proved fraudulent taking or conversion. 60.The offence of stealing by servant is not established until the prosecution demonstrates that the property in question was fraudulently converted by the accused person for his own benefit or for the benefit of another person connected with him. This is what supplies the mens rea for the offence. A person may mishandle property, process it negligently, or even act recklessly in relation to it without necessarily committing theft by servant. Criminal law does not punish carelessness as theft merely because it leads to loss. The prosecution must prove that the accused acted with the requisite fraudulent intent. 61.It follows that the decisive question before us is not whether the six cheques were wrongly posted. That fact is not contested. The decisive question is whether the prosecution proved beyond reasonable doubt that the appellant’s misposting constituted fraudulent conversion of the funds. 62.Both courts below answered that question in the affirmative. Their reasoning, distilled to its essentials, proceeded thus: the appellant processed the six cheques; the correct account number was clearly indicated on the cheques and deposit slips; the funds were instead posted to the Excel Petroleum account; the Excel Petroleum account number bore no resemblance to the intended account number; therefore, the posting could not have been accidental and must have been deliberate. 63.At first blush, that reasoning is not without logical force. Indeed, the respondent presses the same argument before us. Counsel submitted that the wrong account number was so fundamentally different from the correct one that the entry could not plausibly be explained as a typographical error. The respondent, therefore, urges us to treat deliberate and fraudulent diversion as the only reasonable inference. 64.As we said above, there is undeniable evidentiary force in that submission. The circumstances surrounding the erroneous posting are highly suspicious. We readily accept that the prosecution proved circumstances raising serious suspicion regarding the appellant’s conduct. But it is trite that suspicion, however strong, is not itself proof beyond reasonable doubt. That principle is deeply embedded in our criminal jurisprudence. Courts have repeatedly cautioned that suspicion, even strong suspicion, cannot form the basis of conviction unless supported by evidence proving every essential ingredient of the offence. Suspicion may justify investigation; it may even justify prosecution. However, suspicion, however strong, cannot substitute for proof. 65.The difficulty we encounter with the reasoning of the two courts below is that the inferential chain appears to stop one step too soon. The evidence established that the appellant processed the transactions and entered the wrong account number. That may strongly suggest deliberate misposting. However, deliberate misposting, without more, does not automatically establish fraudulent appropriation. Put differently, even if one were to accept, for purposes of argument, that the wrong posting was deliberate rather than accidental, the prosecution was still required to prove a further and indispensable fact: that the appellant fraudulently converted the funds either to his own use or to the use of another person acting in concert with him. That is an essential ingredient of the offence charged. 66.That evidentiary bridge is where, in our respectful view, the prosecution case encountered serious difficulty. The prosecution led no evidence identifying the beneficial owner or operator of the Excel Petroleum account beyond the bare fact of its existence. More importantly, the prosecution led no evidence demonstrating any connection between that account and the appellant. No evidence was presented showing communication, financial dealings, familial relationship, business relationship, conspiracy, or any other nexus linking the appellant to the account holder. 67.Equally significant, the prosecution did not lead evidence tracing what happened to the Kshs. 5,000,000 after it was credited into the Excel Petroleum account. There was no evidence regarding whether the money was withdrawn, transferred, shared, frozen, recovered, or dissipated. There was no evidence showing whether the appellant ever accessed or benefited from the funds directly or indirectly. 68.In our view, these are not peripheral matters. They go to the very heart of the offence charged. Indeed, this is precisely the point at which the absence of the evidence of the Investigating Officer becomes critical. The respondent argues that the prosecution is not obligated to call a multiplicity of witnesses and that the witnesses called were sufficient. That proposition, as a general statement of law, is uncontroversial. The prosecution is not required to call every witness mentioned during investigations. What the law requires is that the prosecution call sufficient witnesses to prove the charge beyond reasonable doubt. 69.The governing principle was stated in Bukenya & Others v Uganda [1972] EA 549, where the former East African Court of Appeal held that while the prosecution need not call a superfluity of witnesses, it must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent. The Court further stated that where essential witnesses are not called, and the evidence adduced appears barely adequate, the court may draw an adverse inference that the uncalled evidence would have been adverse to the prosecution. 70.We are alive to the caution that Bukenya does not create an automatic rule that failure to call a particular witness is fatal. The question is always contextual: whether the missing witness was necessary to prove a material ingredient of the charge. In the circumstances of this case, we are persuaded that the Investigating Officer was not a mere formal witness. The Investigating Officer was the witness best positioned to connect the evidentiary dots between the suspicious transaction and the alleged theft. 71.It was the Investigating Officer who would have testified regarding the investigative trail: who owned the Excel Petroleum account; who operated it; who withdrew or accessed the funds; whether statements from that account were obtained; whether any communication existed between the appellant and the beneficiary; whether forensic or digital evidence linked the appellant to the diversion; and whether the investigations yielded evidence of personal benefit or collusion. Yet none of that evidence came before the trial court. 72.The omission left a conspicuous evidentiary vacuum. The prosecution invited the courts below to infer fraudulent intention and theft solely from the suspicious nature of the posting and the appellant’s role in processing the transactions. However, without evidence establishing appropriation, benefit, or nexus, the prosecution effectively asked the courts to infer the final and most crucial ingredient of theft from suspicion alone. With respect, that inferential leap was too large in a criminal case. 73.We, therefore, find ourselves unable to agree with the conclusion reached by the two courts below that the prosecution proved fraudulent conversion beyond reasonable doubt solely on the basis of the erroneous posting and the appellant’s inability to satisfactorily explain it. 74.Our concern regarding evidentiary sufficiency is reinforced by the manner in which both courts below dealt with the burden of proof. The appellant argues that the trial court, and subsequently the High Court, impermissibly shifted the burden of proof to him by reasoning that once the prosecution proved that he processed the transactions and entered the wrong account number, he bore the burden of explaining how he came by the Excel Petroleum account number. The respondent resists that argument and invokes sections 109 and 111 of the Evidence Act. 75.It is useful to begin with first principles. In criminal proceedings, the legal burden of proving the guilt of an accused person rests throughout on the prosecution and never shifts, save in narrowly circumscribed statutory exceptions. This is both a common law principle and a constitutional imperative. Article 50(2)(a) of the Constitution guarantees every accused person the right to be presumed innocent until the contrary is proved. 76.The classic statement of the principle remains that in Woolmington v Director of Public Prosecutions [1935] AC 462, where Viscount Sankey memorably described the presumption of innocence as the “golden thread” running through the criminal law. That golden thread remains embedded in our criminal jurisprudence. The prosecution must prove every essential ingredient of the offence charged beyond reasonable doubt. 77.This does not mean, however, that no evidentiary burden may ever arise on the part of an accused person. Sections 109 and 111 of the Evidence Act recognize limited circumstances where an accused may bear an evidentiary burden in relation to facts especially within his knowledge. Section 109 of the Evidence Act provides:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person.” 78.Section 111(1) of the Evidence Act provides:“When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or qualification to the operation of the law creating the offence with which he is charged, and the burden of proving any fact especially within the knowledge of such person, is upon him.” 79.These provisions, however, must be interpreted carefully and consistently with the constitutional presumption of innocence. They do not relieve the prosecution of its obligation to prove the charge beyond reasonable doubt. Nor do they permit courts to convert suspicion into proof by requiring an accused person to explain away gaps in the prosecution case. Indeed, this Court has repeatedly cautioned that sections 109 and 111 of the Evidence Act create only a limited evidentiary burden and not a legal burden to prove innocence. In Kiarie v Republic [1984] KLR 739, the Court stated that an accused person assumes no burden of proving his innocence and that any statutory burden placed upon him must be narrowly construed so as not to undermine the prosecution’s primary obligation. 80.The difficulty we perceive in the reasoning of the two courts below in this case is that sections 109 and 111 of the Evidence Act were invoked precisely at the point where the prosecution’s case remained incomplete on an essential ingredient of the offence: fraudulent conversion. The prosecution proved that the appellant entered the wrong account number. It also proved that the wrong account number corresponded to the Excel Petroleum account. However, the prosecution did not prove how that account number came to be selected; whether the appellant had prior knowledge of it; whether he had any relationship with its owner; whether he communicated with the beneficiary; or whether he benefited from the diverted funds. 81.Instead of requiring the prosecution to prove those missing links, both courts below treated the appellant’s inability to satisfactorily explain how he came by the Excel Petroleum account number as strengthening the prosecution case to the point of proof beyond reasonable doubt. We think, with respect, that approach inverted the burden of proof. The question was not whether the appellant satisfactorily proved his innocence. The question was whether the prosecution proved his guilt beyond reasonable doubt. 82.That distinction is fundamental in criminal law. To say that the appellant failed to explain how he came by the Excel Petroleum account number may justify suspicion. It may justify skepticism toward his defence of honest mistake. However, it cannot, without more, prove fraudulent appropriation. The proper role of sections 109 and 111 of the Evidence Act is to require an accused to explain facts peculiarly within his knowledge after the prosecution has laid a sufficiently complete evidentiary foundation. Those provisions cannot be used to cure a failure by the prosecution to prove a critical element of the offence. 83.In the present case, the critical missing element was not merely how the wrong account number was entered. The missing element was whether the appellant fraudulently converted the funds to his own use or to the use of another person acting in concert with him. That fact was not peculiarly within the appellant’s knowledge alone. The prosecution had ample investigative tools to establish it through bank statements; account-opening documents; withdrawal records; forensic investigation; digital communication records; and testimony from the Investigating Officer or the account holder. Yet that evidence was not presented. Instead, the prosecution required the Appellant to supply that information. That, with respect, is impermissible shifting of the burden of proof to the appellant to explain the evidentiary gap. 84.The upshot is that, in our respectful view, both courts below, therefore, misdirected themselves in law by treating the appellant’s inability to explain suspicious circumstances as proof of the missing ingredient of fraudulent conversion. Once that misdirection is corrected, it becomes clear that the conviction in this case was not safe. 85.In light of our conclusions on the first two issues, the remaining complaints can be dealt with more briefly. The appellant argued that his right to a fair trial under Article 50(2)(j) of the Constitution was violated because the statement of PW2 was supplied to him only on the day of hearing. Article 50(2)(j) guarantees every accused person the right “to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.” 86.The right to prior disclosure is an important component of fair trial guarantees. Its purpose is to ensure that an accused person is not subjected to trial by ambush and has adequate opportunity to prepare his defence. As this Court observed in Thomas Patrick Gilbert Cholmondeley v Republic [2008] eKLR, the prosecution is under a duty to provide an accused person, in advance of trial, with all relevant material, including witness statements and documentary exhibits intended to be relied upon at trial. Disclosure, therefore, is not a matter of prosecutorial grace but a constitutional entitlement grounded in the right to a fair trial. 87.That said, not every procedural irregularity in disclosure automatically vitiates a conviction. The question is whether the irregularity occasioned real prejudice to the accused or materially undermined the fairness of the trial. In the present case, having reviewed the record, we are not persuaded that the appellant demonstrated prejudice of a magnitude sufficient, standing alone, to invalidate the proceedings. The record indicates that the defence informed the trial court that they were ready to proceed; and, indeed, proceeded to robustly cross-examine PW2 and did not seek an adjournment or otherwise demonstrate inability to respond to the evidence. In the circumstances, while we reiterate the importance of timely disclosure, we are not persuaded that this ground independently succeeds. We also note that the defence had been supplied with a list of witnesses, who included PW2 and it behooved them, at the very least, to make a request for the witness statements when the case was scheduled for hearing. 88.We are, likewise, unpersuaded by the appellant’s argument that the courts below entirely failed to consider the appellant’s defence. Both the trial court and the High Court addressed the defence of honest mistake and expressly rejected it. The difficulty, however, is not that the defence was ignored. The difficulty is that it was evaluated against an evidentiary framework affected by the burden-shifting misdirection already discussed. Once the prosecution failed to prove the critical evidentiary links regarding appropriation, benefit, or nexus between the appellant and the beneficiary account, the appellant’s defence of mistake did not need to persuade the court of its truth. It needed only to raise a reasonable doubt or to underscore the incompleteness of the prosecution case. 89.The upshot is that having carefully reconsidered the totality of the evidence, while we find the appellant’s wrongful posting of six cheques worth Kshs. 5,000,000 into a wholly unrelated account was a serious irregularity and highly suspicious, we conclude that the prosecution, by failing to call the Investigating Officer, failed to prove a critical ingredient of the offence of stealing by servant: that the appellant fraudulently appropriated the funds to his own benefit or to the benefit of another person acting in concert with him. That omission could not be cured by reliance on sections 109 and 111 of the Evidence Act. That missing link was not peripheral; it went to the core of the offence charged. Consequently, in the absence of evidence establishing the investigative trail of the funds, the identity and operation of the beneficiary account, or any nexus between the appellant and the ultimate beneficiary, we are unable to conclude that the offence of stealing by servant was proved beyond reasonable doubt. 90.We, therefore, find that the conviction was unsafe. Accordingly, we allow the appeal, quash the conviction for the offence of stealing by servant contrary to section 281 of the Penal Code, and set aside the sentence imposed by the trial court and affirmed by the High Court. If the fine imposed by the trial court has already been paid, the same shall be refunded to the appellant forthwith. 91.Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY,2026.P. O. KIAGE………………………JUDGE OF APPEALJOEL NGUGI………………………JUDGE OF APPEALR. NGETICH………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR