[1990] KECA 32 (KLR)
The court found that although the particulars of the charges overlapped, the appellant's acts constituted a continuous taking of funds from his employer. The authorities establish that duplicity in charges does not necessarily result in prejudice if the accused is not embarrassed or prejudiced in his defence. The...
Source-derived case information.
- Citation
- [1990] KECA 32 (KLR)
- Parties
- Appellant: Kangethe; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 61 of 1989
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Stealing by Clerk, Duplicity of Charges, Continuous Offence, Prejudice in Criminal Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kangethe
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was prejudiced by the duplicity of charges in the indictment.
- 2 Whether the evidence established the offence of stealing by clerk against the appellant.
- 3 Whether the acts constituted a continuous offence justifying the charges as framed.
Ratio Decidendi
The court found that although the particulars of the charges overlapped, the appellant's acts constituted a continuous taking of funds from his employer. The authorities establish that duplicity in charges does not necessarily result in prejudice if the accused is not embarrassed or prejudiced in his defence. The evidence demonstrated that the appellant, as a cashier, received money on behalf of his employer and failed to account for substantial sums, which were found missing upon audit. The court concluded that the appellant was not prejudiced by the manner in which the charges were framed and that the offence of stealing by clerk was proved beyond reasonable doubt.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
CRIMINAL APPEAL NO 61 OF 1989
Kangethe..........................................................appellant
v
Republic......................................................respondent
Judgment.
The appellant in this case was charged before the chief magistrate’s court Nairobi, in two counts with stealing by clerk contrary to section 281 of the Penal Code. The particulars of the first count alleged that:
Between 10th May, 1986 and 10th December, 1986, being a cashier with Co-operative Insurance Ltd. stole cahs Kshs.32,262. 25 which came to his possession on account of his employer, Co-operative Insurance Ltd.
For the second count, the claimed particulars stated that:
Between 11th August, 1986 and 5th December, being a cashier with Cooperative Insurance Ltd. Stole cash Kshs.82,816. 20 which came to his possession on account of his employer Co-operative Insurance Ltd.
There can be no doubt that the appellant who was employed as a cashier received money from his employer’s customers and was expected to bank the money and make petty cash payments out of the funds he received. When the books and entries therein were inspected and scrutinized by a Senior Accountant (PW1) and an Internal Auditor (PW2) it was found that between May 10, 1986 and December 15, 1986, the appellant had a shortage of Kshs.32,262. 75.
A subsequent and final checking disclosed a total shortage of Kshs.114,000 and there was overwhelming evidence that the appellant received the further sum of Kshs.82,618. 25 between the period mentioned in the particulars of the second count.
In this appeal Mr Muchiri for the appellant has submitted strenuously that the appellant was prejudiced by the duplex charges preferred against him.
Mr Chung, the DPP contended that the separate unlawful acts of the appellant are so inter-related as to constitute a continuous taking. Even if there be duplicity, argued Mr Chunga, it is curable – on the evidence on record. We are unable to agree with some of the view of Mr Muchiri. It is clear that the particulars were bad in so far as the particulars of the second counts overlapped. It is clear that there was a continuous taking by the appellant. On the authorities as they now stand Republic v Mongella s/o Ngui(1934) 1 EACE 152, Ngidipe Bui Kapriram & Another v R. (1939) 6 EACA 118 and Attorney- General v Onyango Oludhe & Another, (1954) 21 EACE 238 – the question of prejudice is not available to the appellant as he was not in fact embarrassed or prejudiced in his defence. The appellant committed the offence of which he was arraigned.