[2008] KEHC 1632 (KLR)
The court found that the absence of cheque counterfoils, which were critical to corroborate the prosecution's case regarding the alleged alterations, created reasonable doubt as to whether the amounts on the cheques matched those on the counterfoils. Since the appellant was not an authorized signatory and the...
Source-derived case information.
- Citation
- [2008] KEHC 1632 (KLR)
- Parties
- Appellant: David Wainaina Mubea; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 90 of 2005
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- MM Kasango
- Legal Topics
- Stealing by Clerk, Forgery of Cheques, Altering Documents, Burden of Proof, Evaluation of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Wainaina Mubea
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved beyond reasonable doubt that the appellant stole by clerk, altered cheques, and made documents without authority.
- 2 Whether the absence of cheque counterfoils created reasonable doubt as to the appellant's guilt.
- 3 Whether the appellant, not being an authorized signatory, could be held liable for the alleged offences.
Ratio Decidendi
The court found that the absence of cheque counterfoils, which were critical to corroborate the prosecution's case regarding the alleged alterations, created reasonable doubt as to whether the amounts on the cheques matched those on the counterfoils. Since the appellant was not an authorized signatory and the prosecution failed to produce the counterfoils despite inquiries, the court held that the benefit of doubt must be exercised in favour of the appellant. Consequently, the conviction could not stand, and the sentence was set aside.
Court Disposition
appeal_allowed
Orders
- The appellant's conviction in the lower court is quashed.
- The sentence imposed by the lower court is set aside.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Criminal Appeal 90 of 2005
DAVID WAINAINA MUBEA ..…...………... APPELLANT
Versus
REPUBLIC ………………….……………. RESPONDENT
(Being an appeal from the conviction and sentence of
R.N. Muriuki – Senior Resident Magistrate in the Resident Magistrate’s Criminal Case No. 522 of 2003 at KANGEMA)
JUDGMENT
The appellant was charged with various counts in the lower court. He was charged with stealing by clerk contrary to section 281 of the penal code. He is also charged with altering the crossing on cheques contrary to section 356 (a) of the penal code. Finally he was charged with making documents without authority contrary to section 357(a) of the penal code. The appellant was employed as an accounts clerk of the complainant. After hearing of the case the learned magistrate convicted him as charged. He has brought this appeal against his conviction and sentence. The documents that were used at the trial were numerous relating to cheques that allegedly were altered by adding figures to argument the amount to be withdrawn. It is alleged that the appellant was the person who altered those cheques and the document to support the cheques. As the first appellant court there is a responsibility to reevaluate the evidence of the lower court and also consider the question of law and fact relating to the charge. I have gone through the many exhibits relied upon by the prosecution and I have found that amongst the documents there is no counterfoil of those cheques. It should be noted that the appellant was not the authorized signatory to the cheques. It is therefore vital for this court to reevaluate the evidence to consider those counterfoils and confirm that that amount reflected thereon did not tally with the cheques that were draw. Inquiries have been made by this court to the lower court with a view to having those counterfoils produced and to date they have not. Bearing that in mind I find that the doubt this court entertains whether indeed the alterations on the cheques did not marry with the counterfoil must be exercised in favour of the appellant. On that basis alone this appeal will be allowed and the appellant’s conviction at the lower court is hereby quashed and the sentenced is hereby set aside. The appellant shall be set free unless otherwise lawfully held.
Dated and delivered at Nyeri this 24th day of September 2008.
MARY KASANGO
JUDGE