[2003] KEHC 844 (KLR)
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...
Source-derived case information.
- Citation
- [2003] KEHC 844 (KLR)
- Parties
- Appellant: Dani Githinji Njogu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 686 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Stealing by Servant, Penal Code Section 281, Criminal Sentencing, Appeal Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dani Githinji Njogu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for stealing by servant under section 281 of the Penal Code was proved beyond reasonable doubt.
- 2 Whether the sentence imposed was appropriate and if it should be enhanced.
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.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The conviction and sentence of two years imprisonment are upheld.
Full Case Text
Judgment text and source record
7 paragraphs
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