[2017] KEHC 1796 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

CRIMINAL APPEAL NO. 6 OF 2017

DAVID KAUNDA OSORO......................................APPELLANT

VERSUS

REPUBLIC..........................................................RESPONDENT

(Appeal against Conviction and Sentence imposed in Criminal Case

Number 571 of 2012 in theChief Magistrate’s Court at Kisumu

delivered on 31. 1.17 by Hon. J.Ng’arng’ar (CM)

JUDGMENT

Background

1. The Appellant herein David Kaunda Osorowas charged with 8 counts. In counts 1, 3 to 8, he was charged with stealing by servant contrary to section 281 of the Penal Code Cap 63 Laws of Kenya while in the 2nd count he was charged with fraudulent false accounting contrary to section 330 of the Penal Code.

2. The prosecution called a total of eleven (11) witnesses in support of its case. At the close of the prosecution case ,the appellant was ruled to have a case to answer and was placed on his defence. He gave an unsworn defence in which he denied the charges. On31. 1.17,thelearnedtrialmagistratedeliveredajudgmentinwhichheconvictedthe appellant was acquitted of counts 5, 7 and 8 and was sentenced to serve 4 years in the 1st count and 3 years each in the 2nd, 3rd, 4th and 6th counts. The learned trial magistrate also directed that the sentences run consecutively.

The Appeal

3. Aggrieved by this decision, the appellant lodged the instant appeal. In his Petition of Appeal filed on 3rd February, 2017, the appellant set out 10 grounds of appeal to wit: - THAT

1. The charge sheet and particulars set out thereof are defective to the extent that they cannot form a basis for a competent trial

2. That the learned trial magistrate erred in law and in fact in failing to appreciate the glaring contradictions in the evidence by the prosecution witnesses

3. That the trial court erred in law and in fact in failing to appreciate that the evidence tendered by the prosecution was insufficient to sustain a sound conviction

4. That the trial magistrate erred in law and in fact in failing to appreciate that the evidence of identification was wanting, insufficient, weak and not to the required standards

5. The trial court shifted the burden and instance of appeal

6. That the trial court erred in law and in fact in making conclusions, decisions and drawing inferences which are not based on evidence on record

7. The trial court failed to address, analyze and evaluate evidence

8. The learned trial magistrate did not comply with section 169 of the Criminal Procedure Code in writing the judgment herein

9. The judgment of the subordinate court is against the weight of evidence

10. The sentence imposed on the appellant is manifestly harsh and excessive in the circumstances

4. When the appeal came up for hearing on 11th July, 2017, Mr. Onsongo, learned counsel for the appellant and Ms. Wafula, learned counsel for the state agreed to dispose it off by way of written submission which they dutifully filed.

Analysis

5. Thisbeingacourtoffirstappeal, I am expected to subject the entire evidence adduced before the trial court to a fresh evaluation and analysis while bearing in mind that I neither saw nor heard any of the witnesses and have to give due allowance. I am guided by the Court of Appeal’s decision in the case of IssacNg'ang’a Alias Peter Ng'ang'aKahiga V Republic Criminal Appeal No. 272 of 2005 which held as follows:-

“in the same way, a court hearing a first appeal (i.e. a first appellate court) also has duty imposed on it by law to carefully examine and analyze afresh the evidence on record and come to its own conclusion on the same but always observing that the trial court had the advantage of seeing the witnesses and observing their demeanor and so the first appellate court would give allowance of the same.

6. There are now a myriad of case law on this but the well-known case ofOkeno v Republic (1972) EA 32 will suffice. In this case, the predecessor of the Court of Appeal stated:-

The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. R. (1957) E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses (See Peters Vs. Sunday Post, (1958) EA 424)

The prosecution’s case

7. PW1 Doreen AkothOgolo testified that appellant sent to herscanned copies of receipt No. 393126 dated 5. 5.12 and No. 393114 dated 1. 9.12 payable to Nation Media Group from Municipal of Kisumu for Kshs. 58,928/- and for Kshs. 272,832/- respectively. That when appellant failed to offer an explanation, she reported the matter to the chief accountant Mr. John Wanjohi.

8. PW2 Alfred Kiilu, an accountant with Nation Media Group testified that he carried out a reconciliation of accounts using receipt books at the Kisumu office where appellant was working and found that Kshs. 15, 664,450. 51 was not accounted for and appellant was subsequently arrested and charged.In cross-examination by Mr. Onsongo for the appellant, the witness conceded that he did not have evidence to prove that the receipt books in issue were received by the appellant.

9. PW3 Leah Wanjiru, a head cashier with Nation Media Group confirmed that she did not deliver the receipt books in issue personally to the appellant but sent them to Kisumu office by courier services.

10. PW4 ChristansusMachezo, in charge of audit at Nation Media Group, stated that he carried out an audit of accounts at the Kisumu office and found that Kshs. 15,937,353. 51 was not accounted for and appellant was subsequently arrested and charged. In cross-examination by Mr. Onsongo for the appellant, the witness conceded that appellant did not issue all the disputed receipts.

11. PW5EllyMutimbaOkoti of Nation Media Group planning department explained that advertisements are paid for before an advertisement is placed in the newspaper.

12. PW6DanelOtienoofficer in charge of Nation Media Group Kisumu Bureau testified that appellant used to work with him and that his duties included receiving fees for advertisement costs from clients.

13. PW7 AssumptaWambui, an accountant with Nation Media Group, produced as an exhibit emails with copies of receipts that she received from the appellant. She said she cleared advertisements that were referred to in the emails since the emails showed that they had been paid for.

14. PW8 Ezekiel Otieno recalled that he paid Kshs. 1,750/- to one Osoro for advertisement in the Nation Newspaper of the loss of his receipts. He stated that due to lapse of time, he could not recall if the receipt was issued by appellate or not.

15. PW9 Esther WambuiKuria, a cashier with Nation Media Group, produced as exhibits correspondence and receipts received from appellant who was working in Kisumu office.

16. PW10 PC John Mutinda of CID HQs Cyber Crime Unit produced as PEXH.48 a report showing emails and accompanying receipts for the period 1. 2.11 to 30. 9.12 retrieved by adosoro@ke.nationmedia.com.

17. PW11 Hillary Ingwe Okero a sales executive with Nation Media Group, Kisumu office, stated that in year year 2012, he received money for advertisements, issued receipts and gave the collected cash to appellant. In cross-examination by Mr. Onsongo for the appellant, the witness conceded that he had access t the receipt books and that he did not have any other evidence to prove that he gave the money collected to the appellant.

18. PW12 Vincent Martin Otieno, operations manager Standard Chartered Bank Kisumu stated that account number 01002985-44900 was opened by and he produced account opening documents in support thereof.

19. PW13Charles IrunguWanyoike, a private forensic investigator stated that he analysed emails and 21 receipts from appellant’s account adosoro@ke.nationmedia.com and prepared a report as PEXH. 36 in respect thereof.

20. PW14 CIP Jacob Oduor, a forensic document examiner stated that he received appellant’s known and specimens handwritings and after comparing them with questioned documents found that they were named by the same hand. He produced appellant’s known handwriting as PXH. 36 a) to c); specimen handwritings as PXH. 37 a) to c); his report as PEXH. 39 and the exhibit memo form as PEXH. 40.

21. PW15 PC Winnie Lelei, testified that on 9. 10. 12, he went to appellant’s office in Kisumu and collected a lap top Pro Book HP 65506 Serial No. CHUO 49199BH which she submitted to CID Cyber Crime Unit. That she latter obtained appellant’s Mpesa statement for cell phone number 0713464426 PEXH. 43; account opening documents for account 13000010618 from NIC Bank in the name of the appellant PEXH. 45 and statements of account from the same bank for the period 3. 9.12 to 30. 9.12 as PEXH. 46 showing that the money collected between 16. 2.11 to 30. 9.12 and 3. 9.12 to 30. 912 was not banked.

22. PW16 Sgt Samson Chepotibin, the investigating officer stated that he charged the appellant for not accounting for money received on behalf of his employer.

Defence case

23. Appellantgaveunsworndefenceinwhichhedeniedthecharges. He denied receiving receipt books from the Nairobi office or using the same to stael money from his employer.

24. I have considered the appeal in the light of the grounds of appeal and submissions for the appellant and for the state. In dealing with this appeal, I will separately consider the charges as hereunder.

a. Count one- Stealing of Kshs. 10,205,027/- between 1. 2.11 to 31. 12. 11

25. Evidence on record shows that that Kshs. 10,205,027/-collect at the complainant’s office in Kisumu using official receipt books submitted from complainant’s office in Nairobi was not banked. Evidence on record further shows that other that the appellant, his co-workers used to collect money and issue receipts. Their evidence that they handed over all the money collected to the appellant was not supported by handing over notes.

26. Of the many receipts used to collect money in 2011, only 3 were submitted for examination. The said receipts for Kshs. 18,500/-, 21,050/- and 11,250/- were marked as Exhibits 36 9a), (b) and (c). The document examiner confirmed that the receipts were written in appellant’s handwriting. The bank statements show that the total sum of Ksh. 50,800/- was not banked and since appellant did not offer any reasonable explanation as to the whereabouts of Kshs. 50,800/-, I find that count 1 was proved in the sum of Kshs. 50,800/- and not Kshs. 10,205,027/- on the charge sheet.

Count two- Fraudulent false accounting

27. No evidence was tendered in support of falsification of the receipt books listed in count number 2.

Count three- Stealing of Kshs. 5,459,423/- between 1. 1.12 to 30. 9.12

28. Appellant did not deny that he sent emails and 21 receipts contained in a report marked PEXH. 36 from his account adosoro@ke.nationmedia.com. The receipts thereof which are for the sum of Kshs. 324,040/- bear the appellant’s name. He did not deny issuing the aid receipts nor did he explain the whereabouts of the cash collect in respect thereof. I therefore find that count 2 was proved in the sum of Kshs. 324,040/- and not Kshs. 5,459,423/-on the charge sheet.

Count four- Fraudulent false accounting

29. No evidence was tendered in support of falsification of the receipt books listed in count number 4.

Count six- Stealing of Kshs. 1,750/- on 14. 7.12

30. The sum of Kshs. 1,750/- forms part of the sum in count number 3. The conviction of appellant on count number 6 infringes the rule of Double Jeopardy.

Sentence

31. Section 37 of the Penal Code sets out the general rule that sentences run consecutively unless otherwise directed by thecourt. In the event that a personis convicted of more than one offence, the sentences imposed for each of the offences run consecutively except where the court directs that they run concurrently. Where the offences emanate from asingle transaction, the sentences should run concurrently. However where the offences are committed in the course of multiple transactions and where there are multiple victims,the sentences should run consecutively. From the foregoing; I find that the trial magistrate acted judiciously when sentencing the appellant to consecutive sentences since the offences were committed in the course of multiple transactions.

Decision

32. The upshot of the foregoing is that the appeal in allowed in so far as it relates to counts number 2, 4 and 6 and the conviction and sentences thereof are set aside. Appellant was sentenced to serve 4 years imprisonment and 3 years imprisonment in counts 1 and 3 respectively. Considering the amounts that the prosecution established, this court under the powers granted to it bySection 354 (3) (b) of the Criminal Procedure Codeupholds the appellant’s conviction and reduces the sentences in counts 1 and 3 to one (1) year imprisonment each. And from what is stated herein above, the sentences will run consecutively from the date of sentence.

DATED AND DELIVERED THIS9thDAY OFNovember, 2017

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant - Felix

Appellant - Mr Onsongo

For the State - Mr Mobaya