https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7546

Gichuhi v Republic (Criminal Appeal E082 of 2023) [2026] KEHC 7546 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7546 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E082 of 2023 SC Chirchir, J May 28, 2026 Between Ibrahim Nduati Gichuhi Appellant and Republic Respondent (Being an appeal from Judgment of the Hon. S.K. Nyaga, (SRM) delivered on the 30th day of June, 2023 at the Senior Resident Magistrate’s at Kenol in Criminal Case No. E206 of 2023) Judgment 1.The Appellant was charged with the offence of stealing by servant, Contrary to Section 281 of the Penal code. The particulars of the charge were that, on diverse dates between 2nd April 2021 and 22nd July 2022 at Farmers Fresh feeds Ltd in Muranga South Sub-county, within Muranga County, being a servant to Alfred Nganga Muchoki stole cash Ksh. 467,403 the property of the said Alfred Nganga Muchoki which came into his possession by virtue of his employment. The Appellant denied the charge and the case went through a full trial. He was convicted of the offence and sentenced to a fine of Ksh. 150,000 and in default, a prison term of one year. 2.However, he was aggrieved by both the conviction and sentence and proffered this Appeal. Petition of Appeal 3.The Appellant has listed the following grounds:1.That the Learned Magistrate erred in law and fact in finding that the prosecution had proved its case beyond reasonable doubt in spite of the glaring lack of evidence.2.That the Learned Magistrate erred in law and fact in failing to appreciate that the prosecution’s case was marred with inconsistencies.3.That the Learned Magistrate erred in law and fact by dismissing the evidence tendered in defence by the Appellant4.That the Learned Magistrate erred in law and fact by convicting the Appellant on contradictory evidence.5.That the Learned Magistrate erred in law and fact by failing to appreciate that crucial expert witnesses were not called by the prosecution.6.The Learned trial Magistrate erred in law and fact by ignoring the legal principles governing circumstantial evidence and when to convict on the basis of such evidence. 4.The Appeal was heard by way of Written Submissions Appellant’s Submissions 5.The Appellant while highlighting the ingredients of the offence which are that: the offender must be a servant or clerk; that he must have stolen property belonging to the employer; and finally, that the property must have come into the offender’s possession on account of the employer, submits that it is only the first condition that was proved in this case. 6.He further submits that the first and second conditions as set out above were not met. He further states that he was only a salesman; that a different person delivered the goods; while payments were made by either a Cheque, through a Till or through Equity. That the Appellant’s responsibility was simply to ensure that payments was made. He insists that he ought not to have been burdened with issues of unpaid debts, any monies paid to owners, or be held responsible for bounced Cheques. 7.On the last element it is submitted that the Appellant was not found with any money belonging to his employer. 8.It is the Appellant’s further submissions that although there were allegations that some payments were made to him, there was no customer who was called to testify that he/she deposited some money to the Appellant’s Mpesa Account. That on the authority of Bukenya & Others vs Uganda [1972] E.A 549 the alleged customers ought to have been called to testify. 9.It is finally submitted that that the trial Court failed to consider the Appellant’s defence. Respondent’s Submissions 10.The Respondent addressed two issues:Firstly, the question of whether the stolen property belonged to the employer. In this regard the Respondent has referred to an Audit report (PExb. 6) which show that a total of Ksh. 467,403 belonging to the employer, was unaccounted for. Secondly, is the issue of whether the funds came into the Appellant’s on Account of the Employer. The Respondent submits that by the Appellant’s own admission, the payments were made through Equity Bank, a till, Cheques and cash, and it was his responsibility to submit such payments whenever they were made to him. It is the Respondent’s final submission that the offence was proved beyond reasonable doubt. 11.Both parties have referred to some past decisions to buttress their submissions, and the same have been duly considered. Analysis and determination 12.An Appeal to the High Court from a Magistrates’ Court is by way of the trial and the role of this Court is therefore to review the evidence, do its own evaluation and arrive at an independent decision. However, due allowance must be made for the fact that the trial Court had the advantage of hearing and observing witnesses first-hard ( see: Okeno vs Republic[2024]KEHC 2894(KLR). 13.I have considered the grounds of Appeal and the respective submissions and am of the view that the grounds can be consolidated to just one issue, namely: whether the prosecution proved the offence of stealing by servant. 14.Whereas what constitutes stealing is defined under Section 268 of the penal code, section 281 of the code defines the specific theft for which the Appellant herein was charged with. 15.Section 268 of the penal code states as follows: “A person who fraudulently and without claim of right takes anything capable of being stolen on fraudulent converts to use of any person, other than the general or special owner thereof any property, is said to steal that thing or property.”While section 281 provides: “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.” 16.The relationship between the Appellant and the Complainant is not in dispute. It was an Employer – Employee relationship. Thus the first element of the offence as outlined under section 281 , was proved. 17.The last two elements are that the property must have been for the employer, and must have come to the offender on account of the employer, as aforesaid. 18.What I consider to have been critical for the prosecution in this case was to prove that the Appellant received funds, and which funds were never remitted to the Employer. 19.The Appellant admitted that, he was in charge of sales; that the sales were made through his Accounts that he was the direct link to the customers and not the Company, and finally that he was the one paying the Company, the proceeds of sale. 20.The prosecution produced the Appellant’s Mpesa statement showing receipts and payout from his Account. I have looked at the various receipts and remittance referred to by PW1. According to PW3 who testified that the Appellant was his employee, he stated that he had in his possession the Appellant’s Mpesa statement. However, there was no evidence or suggestion that the Appellant’s Mpesa Account was dedicated exclusively to the Employer’s transactions. Thus, whereas there is evidence of receipts and subsequent remittances to his employer, there was no evidence that the particular receipts by the Appellant was in respect of the sales. For instance, the Ksh. 16,600 received on 22/3/22 was from one Alfred Mwaura Wanyoike; the funds received on 1/5/2022 was from one Esther Githugo. However, there is no evidence that Esther and Alfred had purchased goods from the Employer through the Appellant. Any evidence of sale to these two persons or their testimony in court would have filled this gap. 21.The Mpesa statements further show that in respect of the above-named alleged purchasers, the funds were received and remitted to the Employer the same day. Thus, one can guess or suspect that the two payments were for sales because the funds were received and sent to the Employer in quick succession. However, guess work and suspicions are not evidence. In the Canadian case of R vsLifchus 1997}3 SCR 320 cited with approval by Justice Mativo in the case of Elizabeth Waithiegeni Gatimu Vs Republic (2015) KEHC 1136 (KLR), the court held: “ Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt.” 22.The Appellant testified about bounced Cheques and produced some. The fact that some cheques were returned unpaid was indeed admitted to by PW1, the Accountant at the Employer’s Company. Yet according to the sales register (PExb-2) which apparently reflects the aggregate of stolen funds, there was no distinction of what was paid though Cheques and those paid through the Appellant’s Mpesa Account. 23.Further though the Prosecution’s Witnesses testified that the Appellant was the only contact person between the Employer and the Customers, the Appellant produced a letter dated 03/07/2021 (DExb. 1). The letter demanded settlement of a debt of Ksh. 131, 750 from one Simon Maina. The letter was in the letter head of the Employer and signed by one Alfred Nganga Muchoki (PW3). What the letter suggests therefore is that the Company would sometimes deal with their customers directly and the Appellant herein was not the exclusive contact as alleged. 24.The Audit report (PExb.6) was not useful at all in proving the offence, and this is why: - The Auditor testified that the amount of Ksh. 467,403, was what was unaccounted for from the total invoices of Ksh. 1,424, 440. My understanding of this piece of evidence and report, is that the Auditor simply made a direct comparison of the sales as reflected in the invoices and the amount of money received. Her testimony was however silent on whether she excluded the amounts that was paid through cheques, which ended up being unpaid. Thus, I agree with the Appellant’s submission that he was apparently being held criminally liable for unpaid Cheques, which as he correctly argued, should not have been the case. 25.In a nutshell, there was no sufficient evidence to prove that an offence of stealing by servant was committed. The evidence was far below the threshold of proof in Criminal cases. 26.The burden placed on the prosecution in Criminal cases is high. It is beyond reasonable doubt. Where any doubt exists, it must be resolved in favour of the Accused person. In this regard I can do no more than to restate the decision of the court in Woolmington v DPP [1935] AC 462 where the court held:“Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to... the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner... the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained” 27.Closer home, in Elizabeth Waithiegeni’s case (supra) the Judge held held : “To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not as a matter of grace and concession, but as a matter of right”. 28.The conviction of the Appellant was unsafe. The conviction is hereby quashed and sentence set aside. The fine of Ksh. 150,000/= reported to have been paid by the Appellant, to be returned to him forthwith. DATED, SIGNED AND DELIVERED VIRTUALLY, AT ISIOLO, THIS 28TH DAY OF MAY, 2026.S. CHIRCHIR.JUDGE.In the presence of:-Roba Katelo -Court AssistantMr. Njoroge for the AppellantMr. Majale for the Respondent