DANI GITHINJI NJOGU vs REPUBLIC [2003] KEHC 844 (KLR)
- Citation
- [2003] KEHC 844 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Posture
- Criminal Appeal / Judgment
- Case number
- ? 686 of 2002
- Language
- English
More details
- Court
- High Court
- Posture
- Criminal Appeal / Judgment
- Case number
- ? 686 of 2002
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the appellant, as chief cashier, failed to report to duty, was responsible for a shortage in the safe, and admitted to giving out the missing money. His intention to refund the money was not a valid defence to the charge of theft by servant under section 281 of the Penal Code. The conviction was therefore proper and the sentence of two years imprisonment, though lenient, was upheld. The court declined to enhance the sentence as no notice had been served on the appellant regarding enhancement, in line with procedural fairness.
Court disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The conviction and sentence of two years imprisonment are upheld.
02
Material facts
Parties
Dani Githinji Njogu
AppellantRepublic
RespondentAmounts and remedies
- Amount Stolen: KES 2,500,000
- Sentence (years): 2
03
Procedural history
Posture
Criminal Appeal / Judgment
04
Questions and positions
Legal issues
- 01
Whether the conviction for stealing by servant under section 281 of the Penal Code was proved beyond reasonable doubt.
- 02
Whether the sentence imposed was appropriate and if it should be enhanced.
Party arguments
- Applicant
- The appellant argued that he intended to refund the money and thus should not be found guilty of theft. He did not dispute the shortage but sought to rely on his intention to make good the loss.
- Respondent
- The respondent maintained that the offence of stealing by servant was proved beyond reasonable doubt, as the appellant failed to report to duty, was found to have caused a shortage, and admitted to giving out the missing money. The respondent also requested enhancement of the sentence.
05
Court’s reasoning
Legal principles
- 01
Penal Code, section 281; general principles of criminal law
Intention to refund stolen money does not constitute a defence to a charge of theft.
- 02
Criminal Procedure Code; principles of natural justice
A sentence cannot be enhanced on appeal unless notice is served upon the appellant.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the appellant, as chief cashier, failed to report to duty, was responsible for a shortage in the safe, and admitted to giving out the missing money. His intention to refund the money was not a valid defence to the charge of theft by servant under section 281 of the Penal Code. The conviction was therefore proper and the sentence of two years imprisonment, though lenient, was upheld. The court declined to enhance the sentence as no notice had been served on the appellant regarding enhancement, in line with procedural fairness.
Obiter and limits
- The sentence of two years was lenient for the offence committed.
Court disposition
appeal dismissed
- The appeal is dismissed.
- The conviction and sentence of two years imprisonment are upheld.
Source and reliance status
High Court
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Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBICRIMINAL APPEAL NO.686 OF 2002
From Original Conviction(s) and Sentence(s) Criminal Case No.1823 of 1999 of the Resident Magistrate’s Court at THIKA DANI GITHINJI NJOGU…………………………………….APPELLANT
VERSUS REPUBLIC…………………………………………………..RESPONDENT
JUDGMENT The appellant was convicted of the offence of stealing by servant c/s 281 of the Penal Code and sentenced to serve two years imprisonment. This appeal arises from that conviction.
The appellant was employed by the Housing Finance Company of Kenya Limited as a Chief cashier. In the month of January, 1999 he failed to report on duty. He also did not spend a night at his home. This compelled his wife to take the keys to his office. However the appellant had duplicate keys. When the safe was opened the balances were checked and a shortage noted. This was confirmed by pw1 pw2 and pw3. After his arrest the appellant recorded a statement with the police and confirmed the missing money. He also mentioned several people to whom he gave kshs. 2. 5 million. His defence is instructive. He intended to refund the money. That is not a defence in a case of theft.
In my judgment the offence was proved beyond doubt. The sentence of 2 years was lenient. I have been asked to enhance the same. However, no notice was served upon the appellant. I decline to do so.
This appeal is accordingly dismissed. Order accordingly.
MBOGHOLI MSAGHA
JUDGE 19/2/2003
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