[2014] KEHC 3263 (KLR)
The court found that the conviction for demanding property by written threats could not be sustained because the prosecution failed to produce certified transcripts from the service provider as required by law. The absence of this crucial evidence meant that the offence was not proved beyond reasonable doubt....
Source-derived case information.
- Citation
- [2014] KEHC 3263 (KLR)
- Parties
- Appellant: Joyce Nekesa Nafula; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 52 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed in part; conviction and sentence for count III quashed; convictions and sentences for counts I and II upheld.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Child Stealing, Theft by Servant, Demanding Property by Threats
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joyce Nekesa Nafula
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for demanding property by written threats was sustainable without certified transcripts from the service provider.
- 2 Whether the appellant was entitled to benefit from the period spent in custody during trial for counts I and II.
Ratio Decidendi
The court found that the conviction for demanding property by written threats could not be sustained because the prosecution failed to produce certified transcripts from the service provider as required by law. The absence of this crucial evidence meant that the offence was not proved beyond reasonable doubt. Consequently, the conviction and sentence for count III were quashed. The convictions and sentences for counts I and II were not challenged on appeal, and the court found no reason to interfere with them, considering the sentences imposed were lenient and within the statutory limits.
Court Disposition
Appeal allowed in part; conviction and sentence for count III quashed; convictions and sentences for counts I and II upheld.
Orders
- The conviction in respect of count III is quashed and the sentence of 5 years imprisonment set aside.
- The convictions and sentences in respect of counts I and II are upheld.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL NO. 52 OF 2012
JOYCE NEKESA NAFULA ……………………………..APPELLANT
VERSUS
REPUBLIC …………………………………………….......DEFEDANT
(From original conviction and sentence in criminal case Number 1599 OF 2010 in the Chief Magistrate’s court at Makadara – T. Mwangi (SRM) on 14/01/2013)
JUDGMENT
The appellant Joyce Nekesa Nafula was charged with three offences. In count I she was charged with the offence of child stealing contrary to Section 174 (1) (b) of the Penal Code. In count II she was charged with the offence of theft by servant contrary to Section 281 of the Penal Code. In count III she was charged with the offence of demanding property by written threats contrary to Section 299 of the Penal Code. She was convicted of all the three counts and sentenced to three years imprisonment each in count I and II and five years imprisonment in count III. Sentences were ordered to run concurrently.
She then lodged this appeal and when it came up for hearing she informed the court that her appeal was confined to the 3rd count, that is demanding money by written threats where she was sentenced to five years imprisonment. The evidence relating to that offence was tendered by P.W. 1 who testified that the appellant sent some text messages to him saying that he should pay some money or else he will never see his child.
During the trial the appellant asked for Safaricom records which were not produced in evidence. This she did for over one year and two months. Proof of such an offence requires that a certified transcript from the service provider be tendered in evidence and in absence of such evidence that offence cannot be sustained. That evidence was not produced and therefore the charge was not proved against the appellant. Her appeal against that count must therefore succeed. The conviction in respect of count III is therefore quashed and the sentence of 5 years imprisonment set aside.
The conviction and sentence in respect of counts I and II has not been challenged save that she was not given the benefit of the period she spent in custody during the trial. An accused person convicted of the offences in counts I and II is liable to imprisonment for seven years. The appellant was sentenced to three years imprisonment which I consider to be lenient in the circumstances of the case. I have no reason to interfere with the same. In any case, she has served that time and if not, is about to complete the sentence. Save as herein above stated the conviction and sentences with regard to count I and II are hereby upheld.
Orders accordingly.
SIGNED DATED and DELIVERED in court this 9th day of July 2014.
A.MBOGHOLI MSAGHA
JUDGE