[2003] KEHC 342 (KLR)
The court held that once Kenya Women Finance Trust approved and disbursed the loan to the women group, it ceased to be the owner of the money. The Trust's only remaining interest was in the repayment of the loan, not in the ownership of the funds. Therefore, it lacked locus standi to file a criminal complaint for...
Source-derived case information.
- Citation
- [2003] KEHC 342 (KLR)
- Parties
- Appellant: Jemimah Wangui Kihara; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 444 of ??
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside
- Legal Topics
- Theft by Servant, Ownership of Property, Locus Standi, Criminal Liability, Employee Misconduct
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jemimah Wangui Kihara
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant, as an employee, stole Kshs. 600,000 from Kenya Women Finance Trust.
- 2 Whether Kenya Women Finance Trust had locus standi to file a criminal complaint after disbursing the loan to the women group.
- 3 Whether breach of internal rules by the appellant constituted a criminal offence.
Ratio Decidendi
The court held that once Kenya Women Finance Trust approved and disbursed the loan to the women group, it ceased to be the owner of the money. The Trust's only remaining interest was in the repayment of the loan, not in the ownership of the funds. Therefore, it lacked locus standi to file a criminal complaint for theft of the money. Furthermore, any breach of internal rules by the appellant did not amount to a criminal offence, as such rules were not in force at the time of the transaction and, in any event, were not criminalized. The existence of a civil suit by the Trust against the women group further confirmed the civil, rather than criminal, nature of the dispute. Consequently, the...
Court Disposition
appeal allowed; conviction quashed; sentence set aside
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL ON. 444 OF 2000
(From original conviction and sentence in Criminal
Case No.1405/2000 of the Principal Magistrate’s
Court at NYAHURURU - C. M. SIFUNA (R.M.)
JEMIMAH WANGUI KIHARA…………………...………….APPELLANT
VERSUS
REPUBLIC…………………………………………………..RESPONDENT
JUDGMENT
The appellant Jemimah Wangui Kihara was convicted of the offence of theft by servant c/s1 of the Penal code and sentenced to two years imprisonment. It had been alleged in the particulars of ht e charge that she, together with her co-accused, stole kshs. 600,000 the property of Kenya Women Finance trust who was her employer.
Aggrieved by the said conviction, the appellant lodged this appeal. The evidence adduced showed that he appellant was an employee of Kenya Women Finance Trust and at the same time the chairlady of a women Group that applied for a loan form that trust. The said load was duly processed, cheque issued and banked into the women group’s account, some withdrawals were infact made from that account.
Some evidence was led as to the existence of two women groups known as “Rainbow sea” and “Rainbow C” respectively. The tow had different officials but the issue remained clouded even at the end of the trial as the trial court id not resolve the same. That however is not material because the main issue here is whether the prosecution proved that the appellant stole the money belonging to the complainant.
Once the Trust approved and paid out the money to the women group as a loan, it (the trust) ceased to be the owner of that money. The women group was at liberty to use the money for the intended purpose and the only interest the Trust retained was to see that the loan was repaid.
The Trust had no locus to file a complaint as it was not the owner of the money. It cannot be sustained therefore to claim that the trust is a complainant. The women group did not file any complainant against the appellant.
It also transpired that employees of the Trust were not allowed to belong to any groups that would apply for financial assistance form Trust. Such Rules and regulations were introduced but that was after the transaction complained of came into effect. Whatever the case, breach of the rules is not a criminal offence
Finally, there was evidence that The Kenya Women fiancé Trust had field a civil case against the Women group that had been advanced the money again confirming that there was nothing criminal in the matter.
The learned counsel for the republic concedes this appeal and with respect, rightly so. It follows that this appeal must succeed.
Accordingly, this appeal is allowed, conviction quashed and sentence set aside. The appellant is out on bail pending the determination of this appeal. The terms of her release are now vacated and surety discharged.
Orders accordingly.
Dated and delivered at Nairobi this 17th day of March, 2003.
MBOGHOLI MSAGHA
JUDGE