[2022] KEHC 1585 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

CRIMINAL APPEAL NO. 14 OF 2020

(From original conviction and sentence in Criminal Case No. 4147 of 2016 of the Chief Magistrate’s

Court at Kitale delivered by Hon. V. Karanja – SRM on 17/2/2020)

EMMANUEL KOMBO ONTERI.......APPELLANT

VERSUS

REPUBLIC.....................................PROSECUTION

JUDGEMENT

The Appellant Emanuel Kombo Onteri was charged with the offence of Stealing by servantcontrary to Section 281 of the Penal Code. The Particulars of the offence were that on diverse dates between 22nd July 2015 and 24th February 2016 while being an employed as a cashier by the Kenya Seed Co. Ltd, at their Kitale seed shop, stole Kshs 4,269,984. 30, the property of the said Kenya Seed Co. Ltd. When the Appellant was arraigned before the trial Magistrate’s court, he pleaded not guilty to the charge. After full trial, he was found guilty as charged. He was sentenced to pay a fine of Kshs 800,000/= or in default serve Three (3) years imprisonment. The Appellant was aggrieved by his conviction and sentence. He filed an appeal before this court.

In his Petition of Appeal, the Appellant raised several grounds of appeal challenging his conviction and sentence. He was aggrieved that he was convicted on the basis of insufficient, unreliable and incredible evidence. He faulted the trial court for convicting him solely on the basis that he had the intention and opportunity to commit the offence that he was charged. He took issue with the fact that the trial court fail to resolve material discrepancies and inconsistencies that were apparent in the prosecution’s case instead of resolving it in the Appellant’s favour. The Appellant complained that the trial court failed to appreciate that the prosecution had not discharged its burden of proof to required standard since the particulars of the charge and the evidence adduced were at variance. He faulted the trial court for rejecting his defence without evaluating it. In the premises therefore, the Appellant urged the court to allow the appeal, quash the conviction and set aside the sentence that was imposed by the trial court.

Prior to the hearing of the appeal, both the Appellant’s counsel and the Prosecution presented to court written submission in support of their respective opposing positions. This court also heard oral submissions made by Mr.Ngeywa for the Appellant and Mr. Omooria for the State. Mr. Ngeywa submitted that the circumstances in which the inventory was taken and reconciliation done, raised suspicion that the same was done in the correct manner. The exercise was undertaken in the absence of the Appellant who at the time had been involved in a road accident which led to his long hospitalization. The Appellant was not satisfied with the manner in which it was conducted because, in his view, he was denied the opportunity to be present when the inventory and reconciliation was being done. Learned Counsel pointed out that there were other officers of the Company who had access to the safe at the time, and therefore the loss of the cash could not be solely attributed to him. He pointed out that the financial IT system in place at the time would have enabled any discrepancy between the stock sold and the cash received to be discovered within 24 hours. It was therefore inconceivable that he could be charged for an alleged loss that occurred within a period of over six months without the alleged fraud being detected.

The Learned Counsel for the Appellant reiterated that it was clear from the evidence adduced that the system in place at the time at the Kenya Seed Co. Ltd was liable to be manipulated by any knowledgeable staff who in the process could implicate others. He submitted that the trial court failed to properly evaluate the evidence which would have, in the circumstances, have led it to the conclusion that there were material discrepancies and inconsistencies which could not be reconciled by the witnesses called by the prosecution. It was wrong for the trial court not to resolve such discrepancies and inconsistencies in the Appellant’s favour. As regards the Appellant’s defence, Learned Counsel took issue with the manner in which the same was summarily dismissed and not considered by the trial court. He was of the view that the trial court’s attitude amounted to the shifting of the burden of proof from the prosecution to the defence. He urged the court to allow the appeal.

Mr. Omooria, in his submission, stated that the prosecution had established the charge brought against the Appellant to the required standard of proof beyond any reasonable doubt. The prosecution had adduced both oral and documentary evidence which established the fact that the Appellant received cash upon the sale of seeds but instead of banking the entire sum on a daily basis, banked less amount each day totaling to the amount that the Appellant was charged with. He denied the Appellant’s assertion that the system put in place at the Kenya Seed Co. Ltd at the time was liable to manipulation. He submitted that the prosecution had established that infact it was the Appellant who had tinkered with the system that enabled him to bank less money that he received for a long period of time without detection. He asserted that any discrepancies or contradictions did not go to the root of the prosecution’s case. They were immaterial and did not affect the strength of the prosecution’s case that was brought against the Appellant. He disagreed with the Appellant’s claim that his defence had been arbitrarily dismissed by the trial court. He pointed out that the same was considered in light of the evidence adduced by the prosecution witnesses and found to be without merit. He urged the court to dismiss the appeal.

This being a first appeal, it’s the duty of this court to re-consider and to re-evaluate the evidence adduced before the trial court and reach its own independent determination whether or not to uphold the conviction and sentence of the trial court. In doing so, this court is required to always keep in mind that it neither saw nor heard the witnesses as they testified and therefore give due regard in that respect (See Okeno -Vs- Republic [1972] EA 32). In the present appeal, the issue for determination by this court is whether the prosecution established to the required standard of proof the charge of theft by servant that was brought against the Appellant.

For the prosecution to prove the charge oftheft by servant, it must establish the following: that the Appellant was an employee of the complainant, that the Appellant stole the property of the employer that came to his possession in the course of the employment and finally that the appellant dishonestly appropriated the said property thereby depriving the employer of the same. In the present appeal, it was common ground that the appellant was an employee of the complainant. The Appellant had been employed as an assistant cashier. In the course of his duties, he came into possession of cash that was paid by customers when they purchased the complainant’s products. It was the prosecution’s case that between the month of July 2015 and February 2016, the complainant was upgrading its financial management system with a view to eliminating the loopholes that had resulted in cash leakage. According to the complainant, the Appellant took advantage of this migration to the new system, and instead of posting the sales into the system, he sold the products offline from the system. He then banked less cash than he had received. This could not be detected because actual audit of the sales receipts and cash vouchers was done after three months. Any discrepancy could be detected by the system within 24 hours if the sales and the cash received were posted in the system.

According to the prosecution, the complainant could not have discovered the theft earlier because of the migration to the new IT system. The Appellant would have continued with his theft had he not been involved in an accident on 28th February 2016 that resulted into his hospitalization for a long period of time. During his absence, the safe was opened and an audit done. It was then discovered that the Appellant had underbanked several sums amounting to Kshs 4,269,984. 30 within a period of seven months. The prosecution witnesses produced sale receipts and vouchers including statements and reconciliations which established to the required standard of proof that indeed the above sums were lost by the Appellant when was solely in charge of the sales at the Seed sales shop in the period in question.

On re-evaluation of the evidence adduced before the trial court, in light of the grounds of appeal placed before this court, this court cannot disagree with the trial court’s holding that:

“ It’s clear that the Kshs 4,269,984. 30 was lost. It was the accused person (Appellant) who was mandated by virtue of his employment to protect and secure his employer’s proceeds. It was lost over a duration of 9 months. It is confirmed that he had been transferred from Kisii to Kitale on 24/3/2015 and therefore the money was lost under his watch. I find his defence as mere denials, from the evidence there was no element of frame-up against him by his colleagues. If the accident had not occurred, it would have taken the company a long time to notice the variance as they indicated they normally take time before conducting audit. The accident led to the detection of the variance in the system which had more cash than the physical cash recovered from the safe.”

In the present appeal, this court agrees with the prosecution that the fact that there may have been discrepancies and inconsistencies in the testimony by the prosecution witnesses, was not material as to lead this court to conclude that the prosecution had not proved its case to the required standard of proof. This court agrees with the hold of the Court as held in Philip Nzaka Watu –Vs- Republic [2016] eKLR thus:

“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing in 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 recognized 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.

In DICKSON ELAI NSAMBA SHAPWATA & ANOTHER V. THE REPUBLIC, CR APP. NO. 92 OF 2007 the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows, a view we respectfully adopt:

“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor,or whether they go to the root of the matter.”

In the present appeal, any inconsistency and contradiction in the oral evidence adduced by the prosecution witnesses was resolved by documentary evidence which connected the Appellant to the theft.

It is clear from the foregoing that the appeal on conviction lacks merit. It is hereby dismissed. The appeal on sentence also lacks merit, it is similarly dismissed. The conviction and the sentence of the trial court is hereby upheld. It is so ordered

DATED AT KITALE ON THIS 17TH DAY OF MARCH 2022.

L. KIMARU

JUDGE