Katiwa v Republic (Criminal Appeal E006 of 2025) [2026] KEHC 9248 (KLR) (22 June 2026) (Judgment)

Katiwa v Republic (Criminal Appeal E006 of 2025) [2026] KEHC 9248 (KLR) (22 June 2026) (Judgment) Neutral citation: [2026] KEHC 9248 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E006 of 2025 DKN Magare, J June 22, 2026 Between Dennis Muinde Katiwa Appellant and Republic Respondent (Being an appeal from the judgement of the trial court, Hon. Susan Mwangi, Principal Magistrate in Murang’a CMCRC No. 101 of 2019) Judgment 1.This appeal arises from the judgement of the trial court, Hon. Susan Mwangi, Principal Magistrate in Murang’a CMCRC No. 101 of 2019. 2.The appellant was charged jointly with 2 others with conspiracy to defraud contrary to section 317 of the penal code. The particulars of the offence were that on diverse dates between 28.9.2018 and 9.1.2019 at Awali Tumaini Investment Total Petrol Station in Murang’a County, jointly with others not before court conspired to steal from Awali Tumaini Investment Total Petrol Station by use of Total Card Kenya S/No 13xxx5 in the name of Julius Ndunda Mutunga transferred credit from the manager’s Total card S/No 0003xxx5 and card S/No0 0000xxx3 issued to Awali Tumaini Investment which he used to defraud Mwihoti Service Station a total of Ksh. 91,070/=, Murang’a Total Service Station total sum of Ksh. 1,054,250/=, Ridgeways Total Station a total of Ksh. 774,050/=, Ngara Service Station a total of Ksh. 2,917,614/=, Machakos Total Service Station a total sum of Ksh. 1,313,141/=, Githunguri Total Service Station a total sum of Ksh. 21,620/=, Thika Total Service Station a total sum of Ksh. 515,209/=, Mutituni Total Service Station a total sum of Ksh. 124,344/=, Outering Road total service station a total of Ksh. 719,500/=, Embakasi Total Service Station a total sum of Ksh. 210,000/= all totalling to Ksh. 7,740,798/= being the property of Awali Tumaini Investment. 3.The appellant was also charged in count II with stealing by servant contrary to section 281 of the penal code. The particulars of the offence were that on diverse dates between 28.9.2018 and 9.1.2019 at Awali Tumaini Investment Total Petrol Station in Murang’a County, jointly with others not before court conspired to steal from Awali Tumaini Investment Total Petrol Station by use of total card Kenya S/No 13xxx5 in the name of Julius Ndunda Mutunga transferred credit from the manager’s total card S/No 0003xxx5 and card S/No0 0000xxx3 issued to Awali Tumaini Investment, which he used to defraud Mwihoti Service Station a total of Ksh. 91,070/=, Murang’a Total Service Station total sum of Ksh. 1,054,250/=, Ridgeways total station a total of Ksh. 774,050/=, Ngara Service Station a total of Ksh. 2,917,614/=, Machakos Total Service Station a total sum of Ksh. 1,313,141/=, Githunguri Total Service Station a total sum of Ksh. 21,620/=, Thika Total Service Station a total sum of Ksh. 515,209/=, Mutituni Total Service Station a total sum of Ksh. 124,344/=, Outering Road Total Service Station a total of Ksh. 719,500/=, Embakasi Total Service Station a total sum of Ksh. 210,000/= all totalling to Ksh. 7,740,798/= which came to his possession by virtue of his employment. 4.The appellant was arraigned on 25.1.2019 and he denied the charges. A plea of not guilty was consequently recorded. The trial court considered the case and rendered judgment on 9.1.2025. The court found the appellant guilty and convicted him on both counts. The appellant was sentenced to 3 years imprisonment for count 1. In count II, the appellant was sentenced to serve 7 years imprisonment. 5.The appellant, aggrieved, lodged this appeal. The petition of appeal challenged both conviction and sentence on the basis that the respondent failed to prove the case against the appellant beyond reasonable doubt. He set forth the following grounds:a.That the learned trial magistrate failed to test the evidence of the prosecution witnesses and caution the circumstances thereby convicting on flimsy, inconsistent and evidence that was not watertight enough;b.That the learned trial magistrate erred in matters of law and facts by failing to give sufficient cognizance to the appellant's reasonable defence and failing to consider that the defence raised reasonable doubt which would have led to his acquittal.c.That the learned trial magistrate erred in law and fact by passing a sentence without considering the time I spent in remand as elucidated under section 333(2) of the CPC.d.That the learned trial magistrate erred on both law and facts by meting a maximum, harsh, excessive and consecutive sentences without considering the appellant plausible mitigation that he was a first offender, offences took place concurrently and they are of good character there by contravening article 50(2)(q) of the constitution and provisions of the sentencing policy guidelines 2023 on fair sentencing.e.That the learned trial magistrate erred on both law and facts by meting a sentence without the option of fine and failed to give reasons for deviating from the provisions of section 2.7 of the Judiciary Sentencing Policy Guidelines 2023. 6.The grounds raise the following issues:i.The court erred in meting a maximum, harsh, excessive and consecutive sentences without considering the appellant plausible mitigation.ii.The court erred in not considering defence. Evidence 7.PW1, Simon Kiama Mungai, testified that he was the proprietor of Total Petrol Station. The appellant was his former employee and worked as a supervisor. John Munyeki served as the station manager, while Dennis Katiwa was a pump attendant. PW1 stated that he discovered an unexplained debit of Kshs. 7,740,798/= in the station's accounts. PW1 testified that there was a debit of Kshs. 510,000/= without a corresponding credit entry, prompting Total to conduct an audit. The audit confirmed a loss of Kshs. 7,740,798/=. According to PW1, John Munyeki, the station manager, had fraudulently created a fuel card in the name of Julius Ndunda Mutunga, which was used at other petrol stations to obtain cash through card swipes. On cross-examination, PW1 maintained that the card details were linked to John Munyeki, who, as station manager, had possession of the card PIN and the authority to operate it. 8.PW2, Michael Mbuta Musembi, testified that he worked at total petrol station on Outering Road between 2017 and 2019 and was serving as an acting supervisor. On 21 November 2018 at about 4.00 p.m., a cashier known as Julius Ndunda came to the station seeking to fuel his vehicle using a Bon Voyage Card. PW2 advised him to bring the vehicle for fueling, but Julius stated that he needed cash so that he could fuel the vehicle elsewhere. PW2 stated that a pump attendant, Philip, informed him that he had already given Julius Kshs. 38,500/= in cash. The card bore the name Julius Ndunda Mutunga. PW2 later learned that the card was not genuine and that the transactions in question occurred in November 2018. On cross-examination, he stated that he was seeing Julius for the first time and acknowledged that before any fueling transaction, the station was required to verify that a card was valid and had sufficient credit. 9.PW4 was Joy Olienda. She was the card account manager for 11 years. On 26.8.2018, she received a request for a card for an individual. Email xxxx.com was used. Required customer details were copies of ID, PIN and signature. Ksh. 1,000/= was paid through Mpesa. The card was produced. It was collected by Julius Munyeki on 24.9.2018. 10.PW5, Tecla Mbithe Maundu, testified that she and PW1 operated fuel stations in Murang’a. On 10.1.2019, while at the Total petrol station in Murang’a, she noticed a suspicious credit transaction of Kshs. 510,000/=. She contacted Beatrice and Stephen, the station managers at Mwihoti, who confirmed that the transaction was irregular. Further investigations revealed that several other transactions had been conducted using the same card. 11.On cross-examination, she stated that a supervisor had the ability to load a card and that every staff member had a unique seller code. She explained that although transactions were conducted daily, audits were carried out quarterly, which accounted for the delay in detecting the fraud. She further testified that the losses amounted to Kshs. 5,335,000/= at the Murang’a station and Kshs. 2,405,800/= at the Mwihoti Station. 12.PW6, Simon Wambui, testified that between 28.9.2018 and 9.1.2019, a customer known as John Munyeki visited Total station, Thika, claiming to be the transport manager for Julius Ndunda. John presented a Total Card and requested cash instead of fuel. PW6 stated that he gave him Kshs. 30,000/=, after which John gave him a Kshs. 6,000/= tip. He later learned that the transactions were fraudulent and was subsequently arrested in January 2019. On cross-examination, PW6 stated that the card was an open card, meaning it could be used to fuel any vehicle. 13.PW7, Julius Ndunda Mutunga, testified that he previously worked at Mwihoti Total Petrol station as a tyre attendant. He was arrested on 18.1.2019, after discovery of missing money linked to fraudulent transactions. He stated that his KRA PIN and ID details had been used to facilitate the theft. PW7 testified that he was informed the appellant, who was a supervisor, had been in possession of the card. 14.On cross-examination, he stated that the card was recovered from the appellant, who claimed that it had been given to him by John Munyeki. 15.PW8, Simon Mwangi Kamau was an Accountant and Auditor. He testified that he was instructed to audit Card No. 13xxx5 for the period 28.9.2018 – 9.1.2019. He found that the card had been debited and credited a total of Kshs. 7,740,798/=, and he produced an audit report to that effect. 16.On cross-examination, he confirmed that he was an external auditor who prepared his report based on account statements. He further stated that the card was used in the transactions under review and that the audit revealed fraudulent transactions had indeed occurred. 17.PW9, Kenneth Manyara, an investigating officer from the DCI Maragua, testified that he received a complaint from Tecla Mbithe regarding fraudulent transactions. He was provided with transaction details and particulars of the card used in the transactions. He recorded witness statements and oversaw the arrest and charging of three suspects. On cross-examination, it was confirmed that the card was registered in the name of Julius Ndunda. 18.The appellant was found with a case to answer and section 211 of the Criminal Procedure Code was complied with. The appellant opted to give sworn testimony. 19.The defence called John Munyeki (DW1), who testified that he had worked for Awali Tumaini from 2014 to May 2018. He stated that police officers arrested him at his home, and he did not understand the reason for his arrest. On cross-examination, he acknowledged that he had been dismissed in May 2018, which he attributed to illness that prevented him from continuing work. 20.DW2, Collins Bedi Lukunza, testified that although he was aware of fraud that occurred in September 2018, he had no authority to transact using the card. His role was limited to arranging shifts. He stated that Beatrice, the manager, verified shifts and was not arrested, and that Dennis Katiwa handled cash. He denied any involvement in the fraud and maintained that other staff, including Beatrice and supervisors such as Christine, Maggy, and Alex, who were not arrested, also worked at the station. On cross-examination, he stated his duties related mainly to station safety. 21.DW3, Dennis Muinde Katiwa (the appellant), testified that he worked as a customer attendant and later as a supervisor. He stated that any loss of money would be detected within 24 hours and that there was a need to establish who actually used the system. He denied having authority to allow use of the card and stated that no money was recovered from him. Submissions 22.The appellant filed submissions dated 2.10.2025. It was submitted that the ingredients of the offences of conspiracy to defraud and stealing by servant were not proved beyond reasonable doubt. It was submitted in this regard that conviction was based on suspicion, there was no common intention established, the defence was not considered and evidence was not corroborated. 23.The appellant also submitted that there was no compliance with sections 200(3) of the Criminal Procedure Code as there were no directions taken after taking over by new magistrate. This violated Article 50(2) of the Constitution. He cited Inter Alia Abdi Adan Mohamed v Republic (2017) E KLR. 24.He submitted further that sections 211 and 199 of the Criminal Procedure Code were not complied with and the procedure was thus flawed as submitted the appellant. 25.He also submitted that the charge sheet was defective as it duplicated facts and the particulars were unclear. He cited section 134 of the criminal procedure code. 26.It was also submitted that stealing by servant was not proved since though he was an employee, it was not proved the alleged amount came to his possession by stealing. He cited section 281 of the criminal procedure code. 27.The respondent filed submissions dated 20.1.2025. It was submitted that the offence was proved against the appellant beyond reasonable doubt. Reliance was placed on Okeno v Republic (1972) EA 32. 28.It was submitted that sections 211 of the criminal procedure code were complied with. It was submitted that the prosecution though it was not stated in the proceedings that section 200(3) was complied with, the right to recall witnesses ought to be balanced with the interest of justice and rights of the complainant. Reliance was placed on ODPP v Peter Onyango Odongo & 2 others (2015) E KLR. 29.It was submitted that the charge sheet was not defective and the defence was considered. Analysis 30.This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The court of appeal for Eastern Africa in Pandya Vs Republic [1957] EA 336 held as follows:On a first appeal from a conviction by a judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 31.On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [Supra], the East Africa court of appeal stated on the duty of the court on a first appeal:An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] e. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal m. Ruwala v. 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 findings and conclusions; 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 v. Sunday post, [1958] e. A. 424. 32.The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th edition, volume 17, paras 13 and 14:The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus, a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. 33.Brennan J addressed the standard of proof required in such cases, in the United States supreme court decision In re winship 397 US 358 {1970}, at page 36164 that:The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 34.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. Lord denning in Miller vs. Ministry of Pensions, [1947] 2 all er 372 had this to say: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. 35.The powers of this court are circumscribed by section 382 of the criminal procedure code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:382:subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. 36.Within these boundaries, the court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the court ensure that the appellant is afforded a full and fair reevaluation of the case. 37.The appellant was charged before the trial court with conspiracy to defraud contrary to section 317 of the penal code. A trial ensued at which the prosecution called a total of 9 witnesses and the appellant when put on his defence, elected to give sworn evidence but did not call a witness. 38.The summary of the respondent’s case was that the appellant as supervisor of PW1’s operated business namely Awali Tumaini Investment Total Petrol Stations in Murang’a County conspired with 2 others to steal and indeed stole Ksh. 7,740,798/= that came in their possession by virtue of their employment. The appellant was consequently charged with conspiracy to defraud and stealing by servant and the charges were said to have been carried out on ten petrol stations and were accomplished through fraudulent Total Card Serial Numbers 0003xxx5 and 000xx3. 39.On the issue of whether the prosecution proved the offence of conspiracy to defraud, it is worth noting that this offence is created under section 317 of the Penal Code Act where it is criminalized in the case where two or more persons agree to defraud another as follows:Any person who conspires with another by deceit or any fraudulent means to affect the market price of anything publicly sold, or to defraud the public or any person, whether a particular person or not, or to extort any property from any person, is guilty of a misdemeanour and is liable to imprisonment for three years.” 40.For the prosecution to establish commission of the offence of conspiracy the elements to be proved include existence of an agreement, consent or combination of two or more persons. In the case of Rebecca Nabutola & 2 others –vs- Republic Nairobi High Court Criminal appeal 232/2012, the court quoted Archibold’s criminal pleadings, evidence and practice 2010 (Sweet & Maxwell), at pages 3025 and 3026, and observed as follows:“The offence of conspiracy cannot exist without the agreement, consent or combination of two or more persons........ So long as a design rests in intention only, it is not indictable; there must be agreement... In order to prove an offence of conspiracy to defraud, the elements to be proved are the existence of an agreement and the intention to defraud.” 41.The common intention is also crucial and the prosecution must establish it. The appellant herein lamented that common intention to impute his involvement was not proved. In the case of Joseph Juma Nyapete & 2 Others v Republic [2016] KEHC 7415 (KLR), the court stated that:“Put together the two words imply that where a person is charged with conspiracy to defraud, it must be demonstrated that he, together with others, had a common intention by deceit to obtain something from another with the purpose of defrauding the owner. That is to say that it must be demonstrated that the accused together with others agreed by common mind to defraud the complainant. That inference must be made both from the actions of the accused and the evidence tendered in court. See the case of Gichanga vs Republic [1993] KLR, 143 (court of appeal at Nairobi criminal appeal no. 115 of 1991) in which the court of appeal held that: “with respect to the offences of conspiracy the crucial issue is whether the appellant and his fellow conspirators acted in concert with the intention that the board be induced to part with its money.”The concise oxford english dictionary, 10th edition, at page 304 defines conspiracy as:-“A secret plan by a group to do something unlawful or harmful.”While defraud is defined at page 376 as;“Illegally obtain money from (someone) by deception”.Put together the two words imply that where a person is charged with conspiracy to defraud, it must be demonstrated that he, together with others, had a common intention by deceit to obtain something from another with the purpose of defrauding the owner. That is to say that it must be demonstrated that the accused together with others agreed by common mind to defraud the complainant. That inference must be made both from the actions of the accused and the evidence tendered in court. See the case of Gichanga vs Republic [1993] KLR, 143 (court of appeal at Nairobi criminal appeal no. 115 of 1991) in which the court of appeal held that:“With respect to the offences of conspiracy the crucial issue is whether the appellant and his fellow conspirators acted in concert with the intention that the board be induced to part with its money.” 42.The synopsis of the case of the appellant was that he had no capacity to effect any registration of Bon Voyage Card and it was Dennis Mutie who had custody of all cash sales in the station. The alleged BV card was not in his possession and the prosecution had failed to connect him with the other accused persons. 43.The complainant produced account statements and audit report to confirm the allegations. The court has no doubt that monies left the complainant’s account to the appellant’s account. PW5 testified that the appellant was arrested with the controversial BV card that was fraudulently made to steal moneys from the complainant company. The appellant was linked to applying for and collecting the said card. This was the testimony of PW4. Julius Munyeki collected the card. 44.Having reviewed the evidence, I have no doubt that the respondent proved conspiracy among Julius Munyeki and the appellant Dennis Muinde. 45.The judgment was faulted by the appellant for failure to consider and apply section 200(3) of the criminal procedure code. The court of appeal declared as logic and rationale the philosophy behind section 200 of the CPC forty years ago in Ndegwa –vs- Republic [1985] KLR 534 where it held that;“ 1.The provision of section 200 of the criminal procedure code (cap 75) ought to be used very sparingly; and only in cases where the exigencies of the circumstances are not only likely but will defeat the ends of justice if a succeeding magistrate is not allowed to adopt or continue a criminal trial started by a predecessor. (2)The provisions of section 200 should not be invoked where the part heard trial is a short one and could be conveniently started de novo. Furthermore, it should not be invoked where witnesses are still available locally and the passage of time was short so as not to cause or produce any accountable loss of memory on their part, whether actual or presumed to prejudice the prosecution.(3)No rule of natural justice, statutory protection, evidence or of common sense should be sacrificed, violated or abandoned when it comes to protecting the liberty of the subject since he is the most sacrosanct individual in the system of our legal administration.(4)the statutory and time honoured formula that the magistrate making the judgment should himself see, hear and assess and gauge the demeanour and credibility of witnesses should always be maintained.(5)A magistrate who did not observe the evidence is not in a position to assess the position, credibility and personal demeanour of all the witnesses.” 46.The record shows that the trial magistrate, E.M. Nyaga left the case having rendered himself on the ruling for case to answer, finding a prima facie case. In the judgment, the court noted that it could not apply section 200(3) of the criminal procedure code since a ruling had been rendered on case to answer having come in after the respondent had closed its case. There was no request at that time for compliance of the said rule or an appeal in respect to that finding. At least the court explained the rule. There was no challenge on the court’s direction on section 200(3) of the Criminal Procedure Code. The supreme court [DK Maraga, CJ & P, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] in the case of Waswa v Republic (petition 23 of 2019) [2020] KESC 23 (KLR) (4 September 2020) (judgment), posited as follows:20.There was no provision in both the constitution and the criminal procedure code (CPC) for interlocutory criminal appeals. The constitution under article 50(2)(q) provided that every accused person had the right, if convicted, to appeal to, or apply for review by, a higher court as prescribed by law. Similarly, the CPC under sections 347 and 379(1) only allowed appeals by persons who had been convicted of an offence.21.The delay of over six years defeated the intention of the framers of the constitution and of parliament to have criminal trials concluded expeditiously. The guarantee to have a criminal trial conducted without undue delay related not only to the time by which a trial should commence but also the time by which it should end, judgment rendered and any applicable appeals or reviews completed.Therefore, although criminal trials were not time bound like election petitions, there was need to have them determined expeditiously in line with the constitutional prescriptions.22.The right of appeal against interlocutory decisions was available to a party in a criminal trial but should be deferred, and await the final determination by the trial court. A person seeking to appeal against an interlocutory decision had to file the intended notice of appeal within 14 days of the trial court’s judgment. However, exceptional circumstances could exist where an appeal on an interlocutory decision could be sparingly allowed, these included:1.Where the decision concerned the admissibility of evidence, which, if ruled inadmissible, would eliminate or substantially weaken the prosecution case;2.When the decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal; and3.Where the decision entailed the recusal of the trial court to hear the cause. 47.Secondly, the appellant did not raise the issue of section 200 in the petition of appeal, and therefore it was not properly before the court. The court cannot determine issues that were not included in the petition of appeal. Raising new grounds in submissions is not permissible, as submissions do not constitute pleadings. Mwera J, as he then was, posited as follows when postulating on what is the role of submissions. He stated that they are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim. In the case of Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC no. 36 of 1993 the court stated:“Indeed, and strictly speaking, submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So submissions are not necessarily the case.” 48.Submissions are not, strictly speaking, part of the case, the absence of which may do no prejudice to a party. Their presence or absence does not in any way prejudice a case, as held in Ngang’a & Another vs. Owiti & Another [2008] 1KLR (ep) 749, that:“As the practice has it and especially where counsel appears, a court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.” 49.The court of appeal was more succinct in that submissions cannot take the place of evidence when they addressed the question in the case of Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & another [2014] EKLR:“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.” 50.Therefore, I decline to address the question of section 200(3) of the Criminal Procedure Code as the same is not properly before the court. 51.After my own analysis, it is determined the trial court cannot be faulted on allegations of breach of section 211 of the criminal procedure code when the record shows the appellant and his accomplices answered saying they could give sworn or unsworn testimony and call or not call witnesses. What were they answering to if they were not informed of what they were obligated to do? An appellate court would only reverse the factual findings by a trial court where there is evidence of failure to consider the law and principles applicable or where the analysis of evidence is perfunctory and conclusions not supported by evidence on record or pervert such evidence. Accordingly, the finding that the appellant conspired with others to defraud was proved beyond reasonable doubt. 52.Section 211 does not need to be mentioned by name. The court only needs to explain to the parties the dictates of section 211. The said section provides as follows:(1)At the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as may be put forward, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused, and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross-examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence (if any).(2)If the accused person states that he has witnesses to call but that they are not present in court, and the court is satisfied that the absence of those witnesses is not due to any fault or neglect of the accused person, and that there is a likelihood that they could, if present, give material evidence on behalf of the accused person, the court may adjourn the trial and issue process, or take other steps, to compel the attendance of the witnesses. 53.The cardinal requirement for section 211 of the criminal procedure code is so that at the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as may be put forward, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused, and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross-examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence. 54.There is no requirement to read the section out. It is important that the section be complied with and even indicated. However, failure to name a specific section is a question of technicality. The court is thus satisfied that section 211 of the criminal procedure code was complied with. 55.Section 317 of the penal code provides as follows:Any person who conspires with another by deceit or any fraudulent means to affect the market price of anything publicly sold, or to defraud the public or any person, whether a particular person or not, or to extort any property from any person, is guilty of a misdemeanour and is liable to imprisonment for three years. 56.The particulars thus for conspiracy to defraud are:i.There must be two or more personsii.There must be deceit or any fraudulent meansiii.It must touch on the public or another personiv.To extort any property from any person 57.The fraud involved two or more persons. The same was procured by fraudulent means as the Bon Voyage Card was obtained in the name of PW7. The card was found in possession of DW2 and not PW7. PW7 was not shown to have participated in any way. PW7 testified in a very succinct manner that he supplied documents for use for employment. The appellant was at the centre of it all. 58.First, I find and hold that the elements, regarding a conspiracy to extort any money from the complainant was proved. The same involved two or more persons, that is the persons fueling, asking for cash refunds and crediting the BV card with amounts that are not supported by cash. This aspect was not contested by the appellant. 59.It was also shown that this was by deceit since the documents used belonged to PW7 whose documents, which he sent to request for promotion were used to steal and defraud. The property defrauded was that of Awali Tumaini Investment Total Petrol Station. None of the accused persons claimed that the lost property was theirs. 60.The only question remaining for determination was whether the state proved beyond reasonable doubt that the two or more persons that were involved were actually the appellant and or the other accused persons. The witnesses recognized to be the appellant as a person known to them. The appellant himself did not question the identification. Recognition was addressed in the case of Reuben Taabu Anjononi ,Benjamin Akisa Anjononi And Monya Anjononi v republic [1980] KECA 23 (KLR), where the court of appeal [ Madan, Law & Potter JJ a)] posited as follows:The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v the Republic (unreported). 61.The witnesses recognized the appellant as the person who used the card, at the centre of the case. The appellant was found in possession of the card. He did not offer any excuse on him having a card belonging to someone else. In that regard the appellant had special knowledge of the offence. Section 111 of the Evidence Act provides as follows:(1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the Law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or Facts exist: 62.The appellant was in possession of the impugned card. He had knowledge as to how the card was generated. Possession is defined in section 4 of the penal code as follows:i."be in possession of" or "have in possession" includes not only having in one’s own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person;ii.If there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them; 63.The appellant raised the question of inconsistencies. The inconsistencies, if found must be sufficiently explained otherwise, a huge magnitude of contractions, unless satisfactorily explained, will usually but not necessarily lead to the evidence of a witness being rejected. This was addressed in the case of Philip Nzaka Watu vs. Republic [2016] EKLR, where the court of appeal held that:The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question. 64.Consequently, it was the primary duty of the trial court to carefully analyze the contradictory evidence and determine which version of evidence, on the basis of judicial reason, it could prefer. In the current matter, the appellant did not point out contradictory evidence and I find none. In the case of Erick Onyango Ondeng’ vs. Republic [2014]EKLR, the court of appeal held that:The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honoured devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See Okeno vs Republic (1972) EA 32). It is in the above context that this court has said time and again that it will defer to and respect findings of fact by the trial court as affirmed by the first appellate court after due re-evaluation and analysis, because the second appellate court operates from the distinct advantage of not having seen or heard the witnesses. This court will therefore not interfere with findings of fact by the two courts below unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole, the courts below were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law. 65.The question of contradictions was addressed in the case of Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6:With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case. 66.The net effect is that the offence of conspiracy was proved as against the appellant herein. He was part of the conspiracy and the court below was thus correct in finding the case against the appellant as proved. The appeal on conviction is thus dismissed. 67.The ingredients of the second count are primarily two. They are:i.Proof of employment;ii.Proof of theft of the employer’s property which may have come into possession of the offender by virtue of the employment. 68.The theft occurred when the appellant was employed and only got access and access rights subject to employment. There was evidence against the appellant that was overwhelming. It is the evidence of PW7 and PW3 who placed the appellant in the locus in quo and saw the appellant committing the offence. I find no material on the error made by the court below. I dismiss the appeal on conviction in regard to count 2. 69.The second phase relates to sentence. The question of sentence will be dealt with in three parts, that is:i.Section 333(2) of the Criminal Procedure Codeii.Maximum and harsh sentenceiii.Consecutive sentence 70.Section 333(2) of the criminal procedure code. This aspect is a simple aspect that the courts should do well and apply the same. The court should just have a standard answer as provided in section 333(2) of the criminal procedure code. The period from the time of arrest to conviction must be considered subject only to the days the appellant was on bond. The only exception is set out in section 37 of the penal code as follows:Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence, other than a sentence of death, which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or any part thereof:Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence under subparagraph (i) of paragraph (c) of subsection (1) of section 28 or of any part thereof. 71.Therefore, if a convict is convicted again, the subsequent conviction shall be executed after the expiration of the former sentence. Unless of course the court orders otherwise. The courts therefore should always indicate that sentence shall be from the date of arrest less days the convict was on bond. This is in line with section 333(2) of the criminal procedure code, which provides as follows:(2)subject to the provisions of section 38 of the penal code (cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. 72.To that extent the court erred in failing to have regard to section 333(2) of the criminal procedure code. 73.The second issue was that the court meted out the maximum, harsh, excessive and consecutive sentences, without considering the appellant plausible mitigation that he was a first offender, offences took place concurrently and they are of good character. He was of the considered view that the court contravened article 50(2)(q) of the constitution. Lastly, he lamented that the court erred in failing to give an option of the fine. 74.To start off, the question of sentencing is now fairly settled. Sentence was addressed in the South African Case of S V Malgas (117/2000) [2001] Zasca 30; [2001] 3 all SA 220 (a); 2001 (2) SA 1222 (SCA); 2001 (1) SACR 469 (SCA) (19 march 2001). In that South African case, the supreme court of appeal of South Africa [harms, Marais, Cameron JJA Chetty et Mthiyane AJJA] held as follows:12.The mental process in which courts engage when considering questions of sentence depends upon the task at hand. Subject of course to any limitations imposed by legislation or binding judicial precedent, a trial court will consider the particular circumstances of the case in the light of the well-known triad of factors relevant to sentence and impose what it considers to be a just and appropriate sentence. A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate court is at large. However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”. It must be emphasized, that in the latter situation the appellate court is not at large in the sense in which it is at large in the former. In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned. No such limitation exists in the former situation. 75.Sentence is also exercise of discretion. In the Indian case Ramakant Rai vs. Madan Rai, CR LJ 2004 SC 36, the supreme court of India rendered itself thus on the issue of judicial discretion:“Judicial discretion is canalized authority not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed:“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not a yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ wide enough in all conscience is the field of discretion that remains”. 76.The appellant relied on article 50(2)(q) of the constitution, which provides as follows:If convicted, to appeal to, or apply for review by, a higher court as prescribed by law. 77.The section therefore deals with the right to appeal rather than a specific breach set out in the constitution. 78.The first count was conspiracy to defraud contrary to section 317 of the penal code. The sentence as hitherto stated as and is liable to imprisonment for three years. Liable to is provided for under section 26 of the penal code as follows:1.A sentence of imprisonment for any offence shall be to imprisonment or to imprisonment with hard labour as may be required or permitted by the law under which the offence is punishable.2.Save as may be expressly provided by the law under which the offence concerned is punishable, a person liable to imprisonment for life or any other period may be sentenced to any shorter term.3.A person liable to imprisonment for an offence may be sentenced to pay a fine in addition to or in substitution for imprisonment:Provided that-(i)Where the law concerned provides for a minimum sentence of imprisonment, a fine shall not be substituted for imprisonment; 79.On the second count, the offence of stealing by servant is created in section 281 of the penal code. The provision states as follows: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. 80.The court meted out the maximum sentences in both counts and directed that the sentences run consecutively. The first accused had mitigated that he was sick and had a family. The second accused mitigated that his wife is suffering from physical disability, is diabetic and is having depression. He stated that he was an orphan and had no job. 81.The appellant mitigated that he had chest problems and had an ailing mother who required care after the death of the father. 82.The first question I must deal with is the length of sentence. The court meted out maximum sentences. Both related to the same amount of sum of Ksh. 7,740,798/=. The appellant was a first offender. He indicated he had no job, though he is the one who caused its loss. He should not mourn the loss of job through his own actus reus. The court however, dismissed the mitigation in circumstances going to the guilt instead of the same being mitigation. The court therefore erred in failing to problematize, conceptualize and contextualize the mitigation given by the parties. 83.The sentencing policy guidelines provide as follows:4.5.1in determining the appropriate sentence, courts must assess a number of issues starting with the degree of both culpability and harm.4.5.2the assessment of culpability will be based on evidence of the crime provided through testimony where a trial has been conducted, or, where a plea is entered, through the prosecution summary of facts. Aggravating and mitigating features surrounding the offence may be advanced by the prosecution and the accused person (or his/her representative).4.5.3where an offence is committed by more than one offender a court shall ascertain the culpability of each of the offenders involved and render individual sentences commensurate to their involvement in the offence.4.5.4the assessment of harm may be based on testimony, or the summary of facts presented and also by a victim impact statement where that has been obtained.4.5.5mitigating factors refers to any fact or circumstance that lessens the severity or culpability of a criminal act and can also include the personal circumstances of the offender.4.5.8having heard all relevant submissions and considered any reports advanced by either prosecution or defence, or the probation or children’s officer (where applicable), and any victim impact statement, the court should:I. Decide as to whether a custodial or a non-custodial sentence should be imposed in line with these guidelines. 84.There was no decision whether the appellant was entitled to non-custodial sentence and or fine. Section 26 allowed for fine in respect of both counts. This ought to have been considered. This is thus the necessity of having a pre-sentence report. There is no hurry as the appellant had ten years ahead of him. A week or a month could not change much. Sentencing policy guidelines, 2023, provide for mitigating and aggravating factors as follows:4.8.20the sentencing court shall be guided by the sentencing principles and objectives set out in part I of these the guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:i.Age of the offender.ii.Being a first offender.iii.Whether the offender pleaded guilty.iv.Character and record of the offender.v.Commission of the offence in response to gender-based violence.vi.Remorsefulness of the offender.vii.The possibility of reform and social re-adaptation of the offender.viii.Any other factor that the court considers relevant.ix.Time already spent in prison by the convict.155x.Duress, provocation, less participation in the offence (including progressive provocation).xi.Any attempt to make reparation for the offence.4.8.21as in any sentencing hearing, proper investigations must address the above factors. This may be done by way of, for example, a pre-sentence report, completed by PACS, any victim impact statement, a witness protection report (where relevant), and a report from the prison where the convict was in custody.4.8.22finally, the sentencing court has a duty to ensure applications made are robust and present sufficient information in mitigation for there to be a true consideration of all the circumstances. The information to be presented includes but is not limited to:i.The circumstances under which the offence was committed.ii.If charged and convicted with others, the precise role the offender played in the commission of the offence and the overall impact of their role in the harm suffered by the victim.iii.The offender’s background.iv.The offender’s family. 85.The court did not consider any of the factors that are set out in the sentencing policy guidelines, 2023. The appellant had maximum culpability in the offence but had moderate to low harm. A loss of Ksh. 7,740,798/= was occasioned. The amount was however not refunded. This was however over time. Therefore, meting out a maximum sentence was excessive and harsh in the circumstances. The appellant shall thus be sentenced to 4 years imprisonment for count 2. 86.In respect to count 1 three years were excessive, given that he was a first offender. Mitigation was partly serious and partly self-inflicted. I therefore set aside the maximum sentence. I substitute the same with 2 years imprisonment. 87.The next question is whether they should run concurrently or consecutively. Section 27 of the penal code provide for sentences when cumulative, and when to be consecutive and when to be concurrent. The sentence is the discretion of the trial court. The question of consecutive is equally discretionary. However, the discretion is not arbitrary. The sentencing guidelines provide as follows:2.3.10on sentencing an offender for multiple offences, section 14 of the criminal procedure code sets out the general rule that sentences run consecutively unless otherwise directed by the court. There is need for the courts to address this matter explicitly and in a uniform way, hence the further guidance on totality of sentence provided herein. 88.Section 14 of the criminal procedure code referred therein provides as follows on sentences in cases of conviction of several offences at one trial:(1)subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefor which the court is competent to impose;And those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.(2)in the case of consecutive sentences, it shall not be necessary for the court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to impose on conviction of a single offence, to send the offender for trial before a higher court.(3)Except in cases to which section 7(1) applies, nothing in this section shall authorize a subordinate court to pass, on any person at one trial, consecutive sentences-a.Of imprisonment which amount in the aggregate to more than fourteen years, or twice the amount of imprisonment which the court, in the exercise of its ordinary jurisdiction, is competent to impose, whichever is the less; orb.Of fines which amount in the aggregate to more than twice the amount which the court is so competent to impose.(4)For the purposes of appeal, the aggregate of consecutive sentences imposed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence. 89.The sentences were for offences committed against the same complainant, over the same subject matter. I therefore find that the court did not exercise its discretion judiciously in ordering the sentences to run consecutively. I direct that the sentences do run concurrently. ORDERS 90.In the circumstances I make the following orders:a.This appeal on conviction lacks merit and is therefore dismissed.b.The appeal on sentence is allowed. The sentence for count I is set aside and substituted with 2 years’ imprisonment. The sentence for count II is set aside and substituted with 4 years’ imprisonment. The sentences shall run concurrently.c.The sentences shall commence on the date of arrest excluding the time the appellant was on bond, that is between 22.05.2019 and 09.01.2025, the date of conviction.d.14 days right of appeal.e.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 22ND DAY OF JUNE, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Appellant presentMr. Vincent Maina for the StatePC Bramwel at Kamiti MaximumPC Julius Mwangi at Murang’a PrisonCourt Assistant – Martin