[2002] KEHC 462 (KLR)
The court found that there was no concrete evidence establishing an employment relationship between the appellant and the complainant, which is a necessary element for the offence of stealing by servant under section 281 of the Penal Code. Furthermore, the evidence that the appellant received Kshs.77,000 from the...
Source-derived case information.
- Citation
- [2002] KEHC 462 (KLR)
- Parties
- Appellant: Josphat Milo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 210 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Stealing by Servant, Elements of Offence, Employment Relationship, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josphat Milo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether an employment relationship existed between the appellant and the complainant sufficient to sustain a charge of stealing by servant.
- 2 Whether there was sufficient evidence to prove that the appellant received Kshs.77,000 from the complainant through PW2.
- 3 Whether the conviction was safe in light of the evidence presented.
Ratio Decidendi
The court found that there was no concrete evidence establishing an employment relationship between the appellant and the complainant, which is a necessary element for the offence of stealing by servant under section 281 of the Penal Code. Furthermore, the evidence that the appellant received Kshs.77,000 from the complainant through PW2 was not independently corroborated, and no statement or admission by the appellant was produced in court. The court concluded that the conviction was unsafe as the prosecution failed to discharge its burden of proof beyond reasonable doubt. Consequently, the appeal was allowed and the conviction and sentence set aside.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The appellant is to be set free forthwith unless held for other lawful reasons.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLANT SIDE
CRIMINAL APPEAL NO. 210 OF 2002
(From Original Conviction and Sentence in Criminal Case No. 515 of 2002 of the District Magistrate’s Court at Mombasa G. Oyugi
JOSPHAT MILO ……………………………………………APPELLANT
VERSUS
REPUBLIC………………………………………………… RESPONDENT
J U D G E M E N T
The appellant was charged and convicted for the offence of stealing by servant contrary to section 281 of the penal code and sentenced to serve 12 months imprisonment. He preferred an appeal and cited 5 grounds which attack the courts finding that an employment relationship did exist between the appellant and complainant and that the appellant had indeed received Kshs.77,000 through one Meshack Makau Mwanzui, PW2. The other point raised was that the court erred by relying on the evidence of Meshack Makau, PW2 who should have been a complainant as opposed to a witness.
The brief facts of the case are that PW1, TERESIA WAIRIMU CHEGE was in a business relationship with MESHACK MAKAU MWANZUI of buying coconut fruit and selling at Taita Taveta. To facilitate the same they decided to engage the services of the appellant who was to buy the coconuts from Kaloleni and arrange for transport to Taita Taveta. PW1, said she didn’t know the appellant before he was introduced to her by PW2 and therefore she used to hand over all the money required to PW2 who would in turn hand-over to the appellant.For the performance of the said work PW1 gave PW2 Kshs.77,000 to hand over to appellant and in consideration, appellant was to receive Kshs.7,000 for his salary.
Appellant however disappeared and PW2 embarked on a search exercise and when he finally caught up with him, he handed him over to the police. According to all the 4 witnesses, appellant is said to have admitted receipt of Kshs.77,000 from PW1 and had promised to refund the same.
However throughout the evidence and cross-examination the issue of the Appellant having been in the employment of PW1 is denied. In his sworn defence, the Appellant denied the same as well as having received any money from PW1 and PW2.
The state counsel supported the conviction and sentence. From the evidence which I have evaluated, there is no concrete evidence to show that an employment relationship did exist between PW1 and appellant. This becomes even difficult to establish because apart from the evidence by PW1 and PW2, there is no independent evidence to proof the appellant did receive kshs.77,000 from PW1 through PW2. Even the police officers evidence did not improve the situation as not even a statement by appellant admitting receiving the money as alleged to was produced.
I do agree with the counsel Mr. Makau that in the face of the evidence on record a conviction could not safely be reached. The appellant may have received the money from PW1 but the matter was poorly handled and evidence cannot support a safe conviction. In the circumstances, the appeal is allowed. The appellant is to be set free forthwith unless held for other lawful reasons.
Dated and delivered this 26th day of September 2002.
P.M. TUTUI
COMMISSIONER OF ASSIZE