[2008] KEHC 948 (KLR)
The court found that the appellant, as a salesman entrusted with beer and responsible for sales proceeds, failed to return to his employer after the sales round and absconded with the day's sales. The evidence, including testimony from loaders and company staff, established that the appellant was in control of the...
Source-derived case information.
- Citation
- [2008] KEHC 948 (KLR)
- Parties
- Appellant: Joseph Murage Mugo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 31 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; conviction and sentence upheld
- Legal Topics
- Stealing by Servant, Burden of Proof, Evaluation of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Murage Mugo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for stealing by servant was supported by credible and sufficient evidence.
- 2 Whether the trial magistrate erred in relying on allegedly contradictory prosecution evidence.
- 3 Whether the appellant's alibi defence was properly considered.
Ratio Decidendi
The court found that the appellant, as a salesman entrusted with beer and responsible for sales proceeds, failed to return to his employer after the sales round and absconded with the day's sales. The evidence, including testimony from loaders and company staff, established that the appellant was in control of the money and that a substantial sum was missing. The court held that the prosecution evidence was overwhelming and credible, and that the trial magistrate was correct in finding the case proved beyond reasonable doubt. The appellant's grounds of appeal, including alleged contradictions in evidence and the alibi defence, were found to lack merit. The conviction and sentence were...
Court Disposition
appeal dismissed; conviction and sentence upheld
Orders
- The appeal is dismissed.
- The conviction and sentence of five years imprisonment are upheld.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Criminal Appeal 31 of 2007
JOSEPH MURAGE MUGO…………………………………APPELLANT
VERSUS
REPUBLIC……..…………………………………………..RESPONDENT
JUDGMENT
This is an appeal against conviction and sentence in Baricho Criminal Case No. 1478 of 2006 in which the Appellant was charged tried and convicted of the offence of stealing by servant contrary to Section 281 of the Penal Code. The Appellant was sentenced to serve five (5) years imprisonment.
Appellant has filed 7 grounds of appeal saying:-
1. That the Trial Magistrate erred in relying on the prosecution evidence which was contradictory and not water tight.
2. That the Trial Magistrate overlooked that there was no documentary evidence was produced to support their mere words.
3. That the evidence which was not free from errors should not be relied upon.
4. The trial Magistrate disputed alibi defence which was the truth.
5. That the evidence lacked merit.
6. That the Trial Magistrate failed to consider mitigation of the appellant.
The appellant relies on his grounds of appeal and the written submissions be submitted to court. The facts of the case were that the appellant was a salesman with G.K. Kamuri & Sons Ltd a beer distributor in Kirinyaga. On 30/7/2006 the appellant was allocated duties to distribute beer around Ngurubani area in a motor vehicle KXJ 952 an Isuzu lorry. He was in control of the vehicle as driver and salesman and was accompanied by Harrison and Symon who were loaders. He was expected to return at about 4. 30 p.m. but he did not. Later the vehicle was on Sagana road by the roadside. The appellant and the two loaders were not present. Then the police from Sagana Police Station came and towed the vehicle to the depot. PW1 who found the vehicle never saw the accused again but the two loaders Harrison and Simon came to the scene with police officers. There was still some beer when the vehicle was found valued at Shs.469,704. 70. The matter was reported to police the following day. The cash missing was Shs.281,662. 40 according to the charge sheet. The manner of operation in the company was explained by PW2 who was working as Stock Controller with the Company.
An eye witness was PW3 one of the loaders in the lorry. He testified as to how they sold the beer and how later the appellant decided to visit his home near Kangaru dispensary. He parked the vehicle at home and entered and stayed for about 25 minutes. He finished and the three of them sitting in the driver’s cable drove off. Then along the road the vehicle swerved off and hit a fence and stopped in a ditch among the bushes. Many people came at the scene and the accused disappeared from the scene. The accused is the one who was handling the money throughout. The other loader also gave evidence as PW4.
PW5 was the cashier at the company. He testified that the money missing in this incident was Shs.281,662. 40. The appellant gave evidence under oath which was on how he was arrested on 21/8/2006. He admitted having left employment in the month of June 2006. He denied the charge.
I have perused the evidence against the Appellant and the Judgment of the Trial Court. There is no doubt that the appellant was issued with beer which he transported in lorry KXJ 982 as a salesman to sell accompanied by two loaders Simon and Harrison and that he did sell some of the beer. Documentary evidence of the allocation of the beer were exhibits signed by the appellant. There is no doubt that the Appellant driving the said vehicle it swerved from the road and landed into a ditch where it was recovered still loaded with some bottles of beer. There is no evidence that the beer was vandalized by members of public. And it is confirmed that the Appellant never returned to the depot of his employer but was arrested on 21/8/2006 after the incident. There is overwhelming evidence here indicating that the Appellant had run with the sales for that day. That is why he never returned to his place of work. It is clear the prosecution evidence was overwhelming against the appellant and the Trial Magistrate was right in finding the case proved beyond reasonable doubt.
I do not see any merit in this appeal and the same is dismissed.
Dated this 12th June, 2008.
J. N. KHAMINWA
JUDGE
12/6/2008
Khaminwa- Judge
Njue- Clerk
State Counsel.
Read in open court.
J. N. KHAMINWA
JUDGE