[2020] KEHC 7404 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

(CORAM: CHERERE-J)

CRIMINAL APPEAL NO. 42 OF 2019

BETWEEN

DANSON BUSAKA SAVA……………………………..........…..APPELLANT

AND

REPUBLIC ……………..…………………………….……….RESPONDENT

(Appeal against conviction and sentence in Criminal Case Number 197 of 2013 in the Chief Magistrate’s Court at Kisumu by Hon. R.K.Ondieki (SPM) on 29th July, 2019)

JUDGMENT

1. DANSON BUSAKA SAVA,the Appellant was charged with stealing by servant contrary to Section 281 of the Penal Code. The particulars of the charge are that:

On diverse dates between 29. 11. 12 and 16. 04. 13 at Kamas and Otonglo Petrol Filling Stations in Kisumu County being an employee of Wooblers Investments Limited stole the sum of Kshs. 4,359,922. 40 the property of Wooblers Investments Limited which came to his possession by virtue of his employment

2. The prosecution called five (5) witnesses in support of the charges. PW1 Grace Anyango Odhiambo, described herself as a managing director of the complainant stated that the Appellant had been employed to manage petrol stations one in Kamas and the other in Otonglo. It was her evidence that the Appellant failed to bank collections for 24th to 26th December, 2012 which he claimed had been stolen by a cleaner that he had sent to the bank. It was her evidence that an auditor revealed that Kshs. 4,359,922. 40 was missing and the Appellant was arrested and charged.

3. PW2 Gilbert Otieno Nyanjomstated that he used to fuel at Kamas Kenol Petrol Station and pay in cash and was surprised when PW1 claimed that he had not paid. He identified 10 receipts issued to him by the Appellant and the debtors book that he signed upon making payment in respect thereof.

4. PW3 Omuse Veronica Osiko, an auditor testified that he conducted an audit of movement of cashWooblers Investments Limited for the period 29. 11. 12 and 16. 04. 13 and found that out of the total summary of sales amounted of Kshs. 24,056,181/- only Kshs. 22,248. 182/- was banked leaving an unbanked sum of Kshs. 1,807,99. 40. He further stated that of the credit sales of Kshs. 3,437,142/- only Kshs. 885,219/- was paid leaving an uncollected sum of Kshs. 2,551,923/-. According to his report PEXH. 7, a total of Kshs. 4,359,922. 40 was unaccounted for.

5. PW4 Omondi Ariedo Jared, stated that he was employed by PW1 as a pump attendant at Kenol Kamas Petrol Station. It was his evidence that the Appellant who was the manager used to handle cash and make sales payable by K-Card.

6. PW5 Danson Wangila, the investigating officer stated that he took over the case long after the Appellant was charged. He produced black book PEXH. 1 which contains opening and closing balances of fuel and a top up list PEXH. 2 of cash deposited by smart card holders.

7. In his sworn defence, the Appellant denied the offence. He stated that he was a record keeper and one Fredrick Chacha was the manager. He stated that he worked for the complainant from June to September, 2012 when he resigned. He stated that he was recalled in October, 2012 after the manager was arrested for misappropriating funds. He recalled that on 27. 12. 12, he banked Kshs. 525,000/- from Otonglo Petrol Station and sent one a cleaner one Ochudi to bank Kshs. 833,000/- collected from Kenol Kamas Petrol Station but he disappeared and did not bank the funds. It was his evidence that PW1 sometimes used to collect money from the petrol stations and did not sign for it.

8. In a judgment dated 29th July, 2019,the Appellant was convicted and sentenced to serve 3 years’ imprisonment.

The Appeal

9. Being dissatisfied with the conviction and sentence, the Appellant lodged the instant Appeal on 07. 08. 19 raising the following grounds of Appeal THAT:

1. Section 200(3) of the CPC was not complied with

2. The charge was defective

3. The prosecution case was not proved

3. The sentence was manifestly harsh and excessive

Analysis

10. The duty of the 1st appellate court was explained by the Court of Appeal in the case of Kariuki Karanja Vs Republic [1986] KLR 190 that:

''On first appeal from a conviction by a judge or magistrate, the appellant is entitled to have the appellate court's own consideration and view of the evidence as a whole and its own decision thereon. The court has a duty to rehear the case and reconsider the material before the judge or magistrate with such materials as it may have decided to admit.''

11. I have carefully considered the appeal in the light of the evidence on record and submissions filed on behalf of both parties. Although the grounds raised by the Appellant are important questions, I am of the view that the ground on Section 22 of the Criminal Procedure Code deserves my full consideration given its novelty before dealing with the grounds proffered by the Appellant.

12. The transition of criminal cases from a magistrate or judge who has ceased to have jurisdiction to the one succeeding him or her remains a matter of concern. As much as it is practically possible it is highly desirable that the trial magistrate or judge must hear the case to conclusion and ultimately render judgment as it is important for the final arbiter to be in a position to weigh the evidence taken together with his or her observation of the demeanour of witnesses (See Abdi Adan Mohamed v Republic [2017] eKLR).

13. Section 200, on the other hand provides, in pertinent areas that;

“200. (1) Subject to sub-section (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may—

(a) deliver a judgment that has been written and signed but not delivered by his predecessor; or

(b)where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or re-summon the witnesses and recommence the trial.

(2) …..

(3) Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and re-heard and the succeeding magistrate shall inform the accused person of that right.

(4) …..”

14. Section 200 envisages two situations in a trial that is incomplete at the time the trial magistrate ceases to exercise jurisdiction. The trial magistrate will have either recorded the whole or part of the evidence. Where judgment has been written and signed by the former magistrate, the succeeding magistrate is only required to deliver it. Where all the witnesses have been heard and the trial magistrate is transferred, no issue arises. The succeeding magistrate may act on the recorded evidence. But the succeeding magistrate may also recommence the trial and resummon witnesses.

15. Because of the importance of having a trial conducted from commencement to conclusion by the same magistrate or judge, Section200(4) provides that:

"Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.”

16. The court record reveals that prior to his transfer, Hon. Obutu heard the evidence of three witnesses. On 22. 03. 17 the case was taken over by Hon. Yalwala and after Section 200 (3) of the Criminal Procedure Code was explained, accused requested that the 3 previous witnesses be recalled for the reason that he had not been supplied with statements when they testified. The court after being informed by the prosecutor that PW1 could not be traced directed that PW2 and PW3 be recalled. On 11. 05. 17 after the court was informed that PW1 could be traced, it directed that the three previous witnesses be recalled. On 02. 11. 17, the court was informed that the witnesses could not be found since they had relocated from Kisumu to Homabay. Thereafter, the court proceeded with the evidence of the two remaining witnesses and the prosecution closed its case.

17. The learned trial magistrate having specifically made an order pursuant to the provisions of Section 200 of the Criminal Procedure Code to have witnesses recalled rightly changed his mind upon application by the prosecution that witnesses could not be traced and adopted previously recorded evidence under the provisions of Section 34 (1) of the Evidence Act which provides that:

Evidence given by a witness in a judicial proceeding is admissible in a subsequent judicial proceeding or at a later stage in the same proceeding, for the purpose of proving the facts which it states, in the following circumstances—

(a) where the witness is dead, or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or where his presence cannot be obtained without an amount of delay or expense which in the circumstances of the case the court considers unreasonable, and where, in the case of a subsequent proceeding—

(b) the proceeding is between the same parties or their representatives in interest; and

(c) the adverse party in the first proceeding had the right and opportunity to cross-examine; and

(d) the questions in issue were substantially the same in the first as in the second proceeding.

(2) For the purposes of this section—

(a) the expression “judicial proceeding” shall be deemed to include any proceeding in which evidence is taken by a person authorized by law to take that evidence on oath; and

(b) a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused”.

18. On the material presented before the court, it has not been demonstrated that the Appellant was prejudiced by failure to recall witnesses or that his rights to a fair trial as provided for under Article 50(1) of the Constitution were violated.

19. The Appellant complained that the charge sheet was defective but failed to place material before the court to expound in what manner it was defective. I consequently find that ground not proved.

20. The Appellant complains that the prosecution did not prove that he made the records that the prosecution relied upon in support of its case. PW3 Omuse Veronica Osiko, an auditor testified that he conducted an audit of movement of cashrecords and bank records for Wooblers Investments Limited for the period 29. 11. 12 and 16. 04. 13 and found that a total of Kshs. 4,359,922. 40 was unaccounted for.

21. The only records produced by PW5 Danson Wangila, the investigating officer produced a black book PEXH. 1 which contains proceeds from fuel and a top up list PEXH. 2 of cash deposited by smart card holders.

22. The prosecution case and the auditor’s report was founded on the allegation that the Appellant made the said records which disclosed that a total of Kshs. 4,359,922. 40 was unaccounted for. The Appellant denied the offence and stated that the complainant used to collect money which was not accounted for. He also blamed the prosecution for not calling the document examiner and for not availing the bank statements and records of expenditure.

23. Section 70 of the Evidence Act provides that:

If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.

In his defence, the Appellant did not deny that he made the records that the auditor relied upon in compiling his report and it was therefore not necessary to call the document examiner.

25. The foregoing notwithstanding, the burden of proof is always on the prosecution. The Court of Appeal in the case of Festus Mukati Murwa V Republic (2013) eKLR reiterated this principle when it held that:

The standard of proof required is “proof beyond reasonable doubt”. In reference to this Lord Denning in MILLERV MINISTRY OF PENSIONS, [1947] 2 ALL ER 372 stated: “That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

26. It is evident from the evidence on record that although the auditor alleges in his report to have considered financial statements, the said statements were not produced before the court to demonstrate that the cash alleged to have been stolen was indeed not banked. To that extent, I find that the prosecution case as stated in the auditor’s report did not prove that any money collected by the Appellant as an employee of lost complainant was lost.

27. Stealing is defined under Section 268 of the Penal Code as:

(1) 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, any property, is said to steal that thing or property.

28. Appellant conceded that he collected Kshs. 833,000/- from Kenol Kamas Petrol Station on 27. 12. 12. He claimed to have given the said cash to a cleaner one Ochudi to bank and who he alleged disappeared and did not bank the said cash. The Appellant did not however tender any evidence to support his assertion that Kshs. 833,000/- which he admitted collecting was given to Ochudi. In the absence of evidence that the Appellant gave the said cash to Ochudi, the court finds that he did not offer a reasonable explanation concerning the Kshs. 833,000/- and makes a finding that he converted it to his own use which amounts to stealing.

29. On the issue of sentence, Section 281 of the Penal Code which is the penalty section for offences of the offence of stealing by clerks and servants provides that:

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.

30. The Appellant was sentenced to serve 3 years’ imprisonment on the ground that the prosecution had proved theft of Kshs. 4,359,922. 40. Whereas the sentence is lawful, I am persuaded to interfere with it having found that the prosecution proved a lesser sum other than the sum for which he was charged with stealing.

31. Under the powers conferred on this court by Section 354 (3)(b) of the Criminal Procedure Code, I am persuaded to interfere with the sentence imposed on the Appellant. The sentence of 3 years is substituted with a sentence of 18 months. The sentence will run from the date of conviction which is 29th July, 2019.

DATED AND DELIVERED IN KISUM THIS 12th DAY March 2020

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant- Amondi/Okodoi

Appellant - Present in person

For the Appellant - Mr. Onsongo

For the State - Ms. Gathu