[2018] KEHC 8488 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NO.129 OF 2015

(An Appeal arising out of the conviction and sentence

of Hon.Mutuku – SPM delivered on 7thJuly 2015

in Nairobi CMC. CR. Case No.808 of 2011)

JOSEPH KINYUA NDURU...........APPELLANT

VERSUS

REPUBLIC....................................RESPONDENT

JUDGMENT

The Appellant, Joseph Kinyua Nduru was charged with five (5) counts of issuing bad cheques contrary to Section 316A(1)(a) of the Penal Code as amended by Finance Act No.4 of 2004. The particulars of the offence were that on various dates between 27th May 2009 and 6th April 2011, the Appellant, with the intent to defraud issued cheques of various amounts drawn on Account No.[…] held at Equity Bank, Kariobangi Branch Nairobi and Account No. […] held at KCB Kipande House Branch Nairobi totaling Kshs.1,065,000/- knowing that the said accounts had insufficient funds. 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 on all the counts. He was sentenced to pay a fine of Kshs.100,000/- on each count or in default he was sentenced to serve 12 months imprisonment. The sentences were ordered to run consecutively. The Appellant was aggrieved by the decision. He has filed an appeal to this court against the conviction and sentence.

In his petition of appeal, the Appellant raised several grounds of appeal challenging his conviction and sentence. He was aggrieved that he had been convicted on the basis of contradictory, insufficient and unreliable evidence. He was aggrieved that he was convicted against the weight of evidence that was adduced by the prosecution. He took issue with the fact that he had been sentenced to serve an illegal sentence. In the premises therefore, he urged the court to allow the appeal, quash the conviction and set aside the sentence that was imposed upon him.

During the hearing of the appeal, the Appellant through counsel, Mr. Maraju submitted that the trial magistrate erred when she imposed the fine of Kshs.100,000/- for each count when the law provided that a maximum fine that ought to have been imposed on each count was Kshs.50,000/-. He was emphatic that the subsequent default sentence imposed was illegal. On the evidence, he submitted that the cheques the prosecution relied on to secure the conviction of the Appellant were not presented to the bank and therefore no finding could be made that there was insufficient funds in the respective accounts. Learned counsel further submitted that the Appellant issued the complainant with postdated cheques which could only be deposited once the complainant confirmed with the Appellant that there were funds in the account. He challenged the Section of the Penal Code that the Appellant was charged with. He submitted that the Appellant was ready to pay the lawful fines that shall be imposed should the court dismiss his appeal of conviction. He urged the court to take into account the fact that the Appellant had been in lawful custody for 8 months and 20 days as at the date the appeal was being argued and continued to suffer during such incarceration.

Ms. Aluda for the State opposed the appeal. She urged the court to be guided by the Sentencing Policy, the Victims Protection Act and the Constitution. She submitted that the Appellant failed to honour the agreement between himself and the complainant. The Appellant gave the complainant cheques which was to be deposited to settle a debt of Kshs.900,000/-. When the cheques were presented for payment, they were returned unpaid. She explained that since the charges were laid against the Appellant, he had always undertaken to settle the debt but had failed to do so. On sentence, she submitted that the trial court had the power to impose a fine to suit the circumstances of the case. In the case of the Appellant, the sentence imposed was commensurate with the loss that was suffered by the complainant.

This being a first appeal, it is the duty of this court to reconsider and to re-evaluate the evidence presented before the trial court so as to reach its own independent determination whether or not to uphold the conviction of the Appellant. In doing so, this court must be conscious of the fact that it neither saw, nor heard the witnesses as they testified and therefore cannot be expected to make any reference regarding the demeanour of witnesses.

In the present appeal, when the Appellant appeared before the court during the hearing of his appeal on 21st October 2015, he informed the court that he had entered into an agreement with the complainant whereby he was to pay the complainant Kshs.1. 1 million. This agreement was endorsed by the Director of Public Prosecutions. With a view to promoting reconciliation, this court released the Appellant on bail pending appeal so as to enable him settle the amount owed to the complainant. The case was listed for mention periodically before the court to confirm whether the Appellant had paid the complainant as he had promised. By 6th December 2016, the Appellant had paid the complainant Kshs.350,000/-. Unfortunately, that was the last time that the Appellant made any payment to the complainant. The bail pending appeal that was granted to the Appellant was cancelled by this court on 21st February 2017.

From what transpired in court during the pendency of the hearing of the appeal, it is clear that the appeal against conviction cannot be allowed. This is because, by entering into an agreement with the complainant, with the concurrence of the Director of Public Prosecutions, the Appellant admitted the offence. The court was prepared to exercise leniency on the Appellant if he kept his part of the bargain by paying the sum due to the complainant. That was not to be the case. Since the Appellant admitted that he had issued cheques to the complainant knowing that there were no funds in the accounts to settle the amounts appearing on the face of the cheques, his appeal against conviction lacks merit and is hereby dismissed.

On sentence, the Appellant is on firmer ground. Section 316A(1)(4) of the Penal Code provides as follows:

“A person who is guilty of a misdemeanour under this section is liable to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding one year or both.”

It was apparent that the Appellant was unable to pay the fine that was imposed by the trial court. He is serving a default sentence. Section 28(1) of the Penal Code provides as follows:

“where a fine is imposed under any law, then in the absence of the express provision relating to the fine in that law the following provision shall apply –

(a)…

(b)…

(c) in the case of an offence punishable with imprisonment as well as a fine in which the offender is sentenced to a fine with or without imprisonment, and in every case of an offence punishable with fine only in which the offender is sentenced to a fine, the court passing sentence may, in its discretion –

(i) direct by its sentence that in default of payment of the fine the offender shall suffer imprisonment for a certain term, which imprisonment shall be in addition to any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of sentence; ….”

Paragraph 11. 12 of the Sentencing Policy Guidelines issued by the Judiciary provides that “where a court imposes separate fines for individual offences, it must indicate a separate sentence in default of payment of its fine.”

In the present appeal, it was clear that the trial court fell in error when it imposed a fine Kshs.100,000/- for each offence instead of Kshs.50,000/-. That being the case, each fine of Kshs.100,000/- that was imposed is hereby set aside and substituted by a fine of Kshs.50,000/-. The default sentences of one (1) year imprisonment for each sentence were legal. The order that the sentences run consecutively instead of concurrent was also legal. However, in the interest of justice and taking into consideration that the Appellant has paid part of the sum due to the complainant, this court commutes the Appellant’s custodial sentence to the period served. He is ordered set at liberty forthwith unless otherwise lawfully held. It is so ordered.

DATED AT NAIROBI THIS 1ST DAY OF FEBRUARY 2018

L. KIMARU

JUDGE