[2023] KEHC 19379 (KLR)

Chesula v Republic (Criminal Appeal E090 of 2022) [2023] KEHC 19379 (KLR) (30 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19379 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E090 of 2022

DK Kemei, J

June 30, 2023

Between

Ernest Walucho Chesula

Appellant

and

Republic

Respondent

(An appeal from the conviction and sentence by Hon P.N Gesora (C.M) in original Bungoma C.M. C’s Criminal Case No. 2650/2015 delivered on 3/11/2022])

Judgment

1. The appellant was charged with the offence of stealing contrary to section 275 of the Penal Code with the particulars being that on diverse dates between August 11, 2014 and January 27, 2015 at Cooperative Bank Bungoma Branch in Bungoma town within Bungoma County, jointly with others not before court stole a sum of Kshs 714,902/- the property of St. Johns Litungu Secondary School.

2. The appellant denied the charges and after trial, the trial court found him guilty and sentenced him to one-year imprisonment in default of paying a fine of Kshs 1 million. The appellant, being aggrieved filed the instant appeal raising the following amended grounds of appeal.a.The learned trial magistrate erred when he convicted the appellant without sufficient evidence to support a conviction.b.The learned trial magistrate erred when he relied on evidence that was contradicting.c.The learned trial magistrate erred when he took into consideration irrelevant facts in convicting the appellant.d.The learned trial magistrate erred when he disregarded the appellant’s defence without reasonable grounds.e.The learned trial magistrate erred when he meted out an excessive sentence in the circumstances.f.The learned trial magistrate was biased as against the appellant.

3. The appeal was canvassed by way of written submissions. Both parties duly filed and exchanged their submissions.

Analysis and determination 4. My duty as a first appellate court is as was stated in Kiilu & another v Republic (2005)1 KLR 174, where it was stated;An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.

5. Pw1 was Leonard Wamalwa Kasami testified that he was the deputy principal and that on 15/9/2014 he was informed by the appellant to make arrangements and prepare for tendering ICT equipment as the Government had forwarded to the school Kshs 1, 004, 902/. He convened a preliminary meeting of the tender committee comprising of Marin Lithu, Tom Maloba, Jane Nasimiyu and himself and thereafter placed a tender notice which received four responses with Future Tech Computer Solutions as the successful bidder and were to supply 11 computers, 11 UPS, 11CD projector, 1 laptop and two switches all of which were supplied on November 11, 2014 at a quotation price of Kshs 9807, 500/. He added that parents invaded the school and ejected the appellant on allegations of finance impropriety and not stealing.On cross-examination, he confirmed that he was the one who issued the tender and that minutes were taken by the Board secretary while the LPO was prepared by the appellant and the school bursar. He also confirmed that he was the one who was taking notes on behalf of the appellant during Board meetings. He stated that it was the Board which was in a position to know or tell whether the appellant stole the sums in question.

6. Martin Likuli Lithu (PW2) testified that he was one of the members of the tender committee and that he prepared the LPO and handed it over to PW1 who was the chairman. He stated the successful bidder was paid from a different account and ought to have been from the projects account which had been credited with the sum of Kshs 1,004, 902/ whose signatories were the Board chairman, Mary Wamwana and the appellant as its secretary. On cross-examination, he stated that the appellant did not sit in the tender committee.

7. PW3 was Michael Tumo who testified that he won the tender to supply ICT equipment to the appellant’s school at a cost of Ksh 987, 500/ and that he duly supplied the items to the school but was only given a part payment and that later the police informed him about the turn of events. On cross-examination, he stated that he duly delivered the goods and that the new head teacher had made some payments.

8. W4 was Thomas Litubi Shiundu stated the he advised the appellant to acknowledge receipt of the funds by issuing a receipt to the Principal Secretary. He stated that his team visited the school and confirmed that the funds had been received and that subsequently the director initiated an audit which revealed the problem.

9. Vitalis Wekesa (PW5) was the area chief and member of the Board and who stated that he received information that parents had chased away the appellant from the school on allegation of mismanagement of school funds and it had been alleged that the appellant had been seen withdrawing monies at Cooperative bank Bungoma. He stated that he contacted the DEO who advised him to do a letter of complaint. On cross-examination, he stated that he was not aware if a tender committee had been set up.

10. Benard Makatiani (PW6) stated that he took over control of the school on 5/3/2015 from the appellant. He added that he found the school in a crisis. He confirmed that the school had received funds from the Government for purchase of ICT equipment but that despite the items being supplied, the supplier was only paid Kshs 290, 000/ out of the demand for Kshs 987,500/ in the invoice. On cross-examination, he stated that the appellant could not have been the sole signatory to the school accounts.

11. No 231663 CIP Daniel Gutu (PW7), a forensic documents examiner, testified that his department received several documents for analysis which comprised of questioned documents, specimen signatures of the appellant, specimen signatures of Humphrey Nangofwafula, specimen signature of Mary Consolata. He conducted the analysis and formed the opinion that the respective questioned documents had been made by the same hand.

12. PW8 was No 63933 CPL Victor Jumamosi who investigated the matter. He obtained the requisite documents and signatures of the appellant plus the Board chairman and a Board member regarding the operation of the account into which the sum of Kshs1, 004, 902/ was deposited. He established that several cheques were drawn in favour of the appellant who withdrew a huge chunk of the monies. He subjected the documents to analysis and later preferred charges against the appellant. He added that the other signatories went at large. On cross-examination, he stated that he took action against the accused because the other signatories fled from the area. He also stated that he could not confirm that no other transaction could have been made from the subject account.On re-examination, he stated that another sum was paid into the subject account on the 27/1/2015 which monies had no relation with the money for computers. He added that there had to be Board minutes to sanction any dealing with computer money.

13. Felix Ochieng Oketch (Pw9) was the branch manager Cooperative bank Bungoma. He stated that there were several withdrawals from the subject operations account with the last transaction being payment to the computer supplier of Kshs 290, 000/. On cross-examination, he stated that the account was an operations account. He added that the appellant was the recipient of most of the monies.

14. The trial court established that the appellant had a case to answer and thus placed him on his defence. He tendered a sworn testimony. He stated that he school received the sum of K Shs 1,000, 400/ for purchase of computers and installation of internet from the ministry and that the same was banked into the school’s operation account number 01139049928301. He added that there were three signatories to the said account and that two out of the three could sign the cheques for any transaction to go through. He stated that no money was deposited into his account and that other transactions were for the day to day running of the school such as payment of bills, salaries and suppliers. On cross-examination, he confirmed that he was the principal when the money was received and which was to be channeled to ICT installation. He added that the Board of management could decide to use the money from one vote head to another and that he had been authorized to do so. He stated that the school used the money to pay salaries.

15. The appeal was canvassed by way of written submissions. Both parties duly filed and exchanged submissions.

16. I have given due consideration to the appeal as well as the rival submissions. The issue for Determination is whether the Respondent proved its case beyond reasonable doubt. From the outset and the exhibits produced, it is not in doubt that the appellant indeed withdrew monies on several days from the operations account into which the money meant for the ICT equipment had been deposited. The appellant in his defence stated that he used the monies to pay for bills, suppliers and salaries with the sanction of the Board of management of the school. The investigating officer (Pw8) stated that he did not manage to trace the chairman of the Board and one member both of whom were the signatories to the account and they thus remained at large until the conclusion of the trial. The said witness further confirmed that the initial complaint was to do with misappropriation of funds by the appellant. The said witness further stated that he did not investigate the appellant’s personal account nor the directors of Marvick Emporium which was one of the beneficiaries of the withdrawals.

17. The defence of the appellant merited consideration by the trial court in that he did not deny withdrawing monies from the subject account but that he had used the same for other purposes in running the school such as paying bills, suppliers and salaries. The investigating officer ought to have gone a step further and follow the money trail all through the school records and establish whether the monies so withdrawn were indeed used for the purposes as claimed by the appellant. In the absence of such evidence, then it became doubtful whether there was theft of the money by the appellant. The appellant also claimed that the Board sanctioned the use of money from one vote head to another. This was confirmed by the bank manager (Pw9) who stated on cross-examination that a deposit of Kshs 535, 292/ was deposited into the subject account long after the appellant had left the school. This seems to bolster the appellant’s contention that the subject account was for operations of the school. It would appear to me that the Board ought to have opened a separate account for the purposes of the ICT monies. Had that been done then the appellant could not have banked the cheque in the operations account.

18. It seems the trial court convicted the appellant based on circumstantial evidence namely that he had withdrawn the monies but nobody knows where the same was spent. It was incumbent upon the prosecution to have conducted thorough investigations so as to leave no doubt that indeed the appellant had stolen the money and not used the same for purposes other than the ICT equipment. His defence therefore did cast some doubt upon the evidence of the prosecution. The appellant was convicted by the trial court on suspicion regarding the several withdrawals yet the evidence did not meet the threshold even circumstantially. In the case of Rvs Kipkering Arap Koske & 2others {1949] EACA 135 the court held that in order to justify a conviction on circumstantial evidence on the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt and that the burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused.

19. A perusal of the respondent’s submissions shows that the respondent has conceded this appeal. I find that from the totality of the evidence herein, the respondent has rightly conceded to the appellant’s appeal. I am inclined to agree with the respondent that the offence of theft was not proved satisfactorily to the required standard of proof. Consequently, I find that the finding on conviction by the learned trial magistrate must be interfered with.

20. The upshot of the foregoing observations is that I find merit in the appeal. The same is allowed with the result that the conviction and sentence arrived at by the trial court is hereby quashed and set aside. The same is hereby substituted with an order that the appellant be and is hereby acquitted of the charge of stealing contrary to section 275 of the Penal Code. He is hereby ordered to be set at liberty forthwith unless otherwise lawfully held. Any fines already paid shall be returned to the appellant or rightful depositor.

21Orders accordingly.

DATED AND DELIVERED AT BUNGOMA THIS 30TH DAY OF JUNE 2023. D.KEMEIJUDGEIn the presence of :Ernest W Chesula AppellantKomora for Agenga for AppellantAyekha for RespondentKizito Court Assistant