[2023] KEHC 26287 (KLR)

John v Republic (Criminal Appeal 13 of 2022) [2023] KEHC 26287 (KLR) (6 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26287 (KLR)

Republic of Kenya

In the High Court at Kisii

Criminal Appeal 13 of 2022

KW Kiarie, J

December 6, 2023

Between

Omweno Nyambane John

Appellant

and

Republic

Respondent

(From the original conviction and sentence in Criminal case NO. 2313 of 2019 of the Senior Principal Magistrate’s Court at Ogembo by Hon. P. Biwott– Senior Principal Magistrate)

Judgment

1. Omweno Nyambane John, the appellant herein, was convicted of the offence of stealing by an agent contrary to section 283(b) of the Penal Code.

2. The particulars of the offence are that on diverse dates between July 18, 2018 and February 9, 2019 at Consolidated Bank Nakuru Branch in Nakuru South sub-County within Nakuru County, being an agent of Abel Ondieki Omaiyio, stole cash one million five hundred shillings (Kes 1,000,500/=) the property of the said Abel Ondieki Omaiyio which had been entrusted to him for retention in safe custody in his bank account number 10161****01791.

3. The appellant was fined Kes 50,000/= in default to serve twelve months imprisonment. He was aggrieved and filed this appeal against both conviction and sentence. He was represented by the firm of Bwondika & Company Advocates. He raised grounds of appeal as follows:a.That the learned magistrate erred in law and facts by convicting the appellant for an offence of stealing by agent while there was instructively no sufficient evidence to sustain the particular offence.b.That the learned magistrate erred in law and facts by shifting the burden of proof to the accused person.c.That the learned magistrate erred in law and facts by convicting the appellant for an offence of stealing by a trustee an offence he was not charged with.d.That the trial magistrate erred in law in failing to find that the essential ingredient for the offence of stealing by agent under section 283(b) of the Penal Code were not proved and that the particular charge before the court could not be upheld.e.That the trial magistrate erred in law in failing to find that the glaring discrepancies in the evidence tendered by the prosecution incapable of sustaining the offence of stealing by agent as per the charge.f.The trial magistrate erred in law by convicting the appellant on the basis of prosecution evidence that was of no relevance and or probative value in respect of the particular charge against the appellant.g.That trial magistrate erred in law in convicting the appellant for the offence of stealing by agent where evidently there were clear indication that the alleged money was deposited by the appellant into his own account and not by the complainant as held by the court.h.That the trial magistrate erred in law in failing to find that there was no intention and that the appellant had not in any way committed the alleged offence.i.That the trial magistrate erred in law in convicting the appellant whereas there was evidence tendered clearly indicating that the appellant had not committed the alleged offence of theft.j.That the trial magistrate erred in law in failing to find that there was neither sufficient, proper nor conclusive evidence to sustain an offence of stealing by agent for the specific charge before the trial court.k.The learned trial magistrate erred in law in misdirecting himself that the complainant deposited any money into the appellant’s bank account at consolidated bank, thereby arriving at the wrong conclusions, conviction and sentence.l.That the trial magistrate erred in law in either failing and or omitting to find that the appellant had his own source of income and did not steal money from his own account and thereby wrongly convicting and sentencing the appellant.m.That the trial magistrate erred in law by either failing and or neglecting to reasonably consider the averments and submissions of the defence because had he done so he would have concluded and come to the finding that the appellant was not guilty of the particular offence before the court.n.The sentence passed/meted against the appellant by the learned trial court was manifestly draconian, excessively punitive, and unfairly oppressive considering the facts and circumstances of the alleged offence.

4. The appeal was opposed by the state through Mr Ochengo, learned counsel. His grounds were as follows:a.That the offence of stealing by agent was proved.b.That the sentence was legal and proper.c.That the appeal lacks merit.

5. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno v Republic [1972] EA 32.

6. Section 283 (b) of the Penal Code provides as follows:If the thing stolen is any of the things following, that is to say—(b)property which has been entrusted to the offender either alone or jointly with any other person for him to retain in safe custody or to apply, pay or deliver for any purpose or to any person the same or any part thereof or any proceeds thereof;the offender is liable to imprisonment for seven years.

7. The ingredients of the offence of stealing by agent were stated by the Court of Appeal in the case of Ong’are Moguche v Republic (2019) eKLR as follows:The ingredients of the offence of stealing by agent include:(i)There must be a property that is stolen within the definition and meaning of stealing as per section 268 of the Penal Code.(ii)There must be an agency relationship between an accused person and the complainant.(iii)The property stolen must have been received by the accused person in any of the circumstances enumerated under paragraphs (a) to (e) of section 283 of the Penal Code.

8. The complainant testified that the appellant was his cousin. The two agreed that the appellant was to open a bank account through which a loan he had applied was to be channeled. This he did and a loan of Kes 1,000,000/= was deposited in July 2018. The appellant, however, converted the money to his use. Deposit documents were exhibited for Kes 1,000,500/= in the Consolidated Bank Account number 10161****01791.

9. The appellant denied having been given any money by the appellant. He however did not explain under what circumstances the complainant deposited Kes 1,000,500/= in his Consolidated Bank account number 10161****01791.

10. PC Daniel Mutua, the investigating officer, testified that when he investigated this case, he established that the complainant deposited Kes 1,000,500/= in the account of the appellant. When the appellant was purchasing a motor vehicle, he realized that the money had been converted.

11. The complainant involved the family to intervene in the matter and when he thought all was well and entrusted the appellant to purchase a vehicle for him, he later realized that he (the appellant) had registered it in his name. He was arrested on allegations of using another person’s vehicle. It would appear after investigations; the appellant was charged.

12. In his defence, the appellant contended that he got the money from the sale of motorcycles and his timber business but this did not displace the evidence against him.

13. The upshot of the foregoing analysis of the evidence on record is that the appeal lacks merit and is hereby ordered dismissed.

DELIVERED AND SIGNED AT HOMA BAY THIS 6THDAY OF DECEMBER 2023KIARIE WAWERU KIARIEJUDGE