[2022] KEHC 14379 (KLR)

Kioko v Republic (Criminal Appeal 22 of 2022) [2022] KEHC 14379 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14379 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal 22 of 2022

LM Njuguna, J

October 19, 2022

Between

John Musyoki Kioko

Appellant

and

Republic

Respondent

(Being an appeal against the sentence and conviction by Hon. T.K. Kwambai - SRM in CM’s Court in Embu Criminal Case No. 1605 of 2011 delivered on 01. 03. 2022)

Judgment

1. The appellant herein was jointly charged with his co-accused before the Chief Magistrate’s Court at Embu with the offence of stealing by servant contrary to Section 281 of the Penal Code. They were jointly sentenced to a fine of Kshs. 250,000/= in default to serve 4 years imprisonment.

2. The particulars of the offence were that on or before 27. 11. 2011 at Universal Traders Sacco Limited Embu Branch within Embu County, jointly with others before the court being employees of the said Universal Traders Sacco stole cash Kshs. 5,407, 075. 84 which came into their possession by virtue of their employment.

3. The appellant denied the charge and a full trial was conducted and wherein the prosecution called eleven witnesses to support its case. The trial magistrate after considering the facts and law and by a judgment delivered by the trial court, it reached a verdict that the appellant was guilty as charged.

4. The appellant was aggrieved by both the conviction and sentence. He proceeded to file this appeal on the following grounds:i.The learned magistrate erred in law and facts in arriving at a finding that was against the weight of evidence and further, not setting the issue for determination and stating the reasons for his findings.ii.The learned magistrate erred in law and facts in not finding that the prosecution never proved its case to the required standards as provided by the law.iii.That the learned magistrate erred in law and facts in not reaching a finding that there were serious doubts in the prosecution’s evidence and thus the same could have been decided to the benefit of the accused.iv.The learned magistrate erred in law and facts in not finding that the complaints against the appellant were driven by malice and bad faith.

5. Reasons wherefore the appellant prayed that the appeal herein be allowed and the sentence be set aside.

6. Directions were taken that the appeal be canvassed by way of written submissions and both parties submitted in compliance with the said directions.

7. The appellant submitted that the trial magistrate erred in law and facts in arriving at a finding against the weight of the evidence and not setting out the issues for determination and further, not stating the reasons for his findings. That the trial magistrate reached a determination not supported by evidence in that, the evidence adduced and the judgment by the trial court are not in conformity. It was his case that his defence was never considered by the court referring to the documents of the loans posted reports from the month of May, 2011; further that, the court did not request for the statements of those accounts to confirm the time the transactions took place. The appellant submitted that the editing on the said accounts were done after the appellant had already left the office. That there was no exhibit to confirm the person responsible for approving the transacted accounts as some of them were new.

8. It was further submitted that the ingredients of the offence were not proved in that despite the fact that he was employed by the complainant, he had not been given a job description outlining his duties and that the same was vital in determining whether he is liable or not. This was so since he was not in charge of the loans and as such, was not privy to information on whether a particular loan was acquired procedurally or not; he reiterated that his work encompassed posting already authorized transactions and further that, he had no system rights and that any system roles in credit as per his job description as an IT support, was to be directed on what to do or not to do. Reliance was placed on the cases of R v Kipkering arap Koskei (1949) EACA and Miller v Minister for Pensions (1947). That the prosecution relied on computer print outs and photocopies instead of relying on system generated report and against that backdrop, submitted that the prosecution’s goal should not simply be to obtain a conviction but to seek justice. In the end, the appellant urged this court to quash his conviction and set aside the sentence.

9. The respondent on the other hand submitted that the prosecution did prove its case against the appellant on the strength of the evidence adduced before the court. Reliance was placed on the case of Miller v Minister of Pensions (1947). It was submitted that the evidence of the prosecution witnesses proved the ingredients of the offence herein against the testimony of the appellant and his co accused. Further that, there were no contradictions in the evidence tabled by the prosecution and that the contention by the appellant that he worked in a different department from that of loan disbursement cannot hold water as it was inferred during the cross examination of PW10 to wit all the payments were disbursed through the IT system which the appellant was authorized to manage.

10. Further, the respondent submitted that the appellant’s defence that he was assigned to a different department from that of the loan disbursement was just a mere denial because he did not avail proof of the same. Further that the evidence of PW2, PW10 and PW11 was not rebutted as far as the same implicated the appellant. In the end, the respondent reiterated that it proved its case beyond any reasonable doubt.

11. This is the first appellate court and as such, I am guided by the principles set out in the case David Njuguna Wairimu v Republic [2010] eKLR where the court of appeal stated:“The duty of the first appellate court is to analyse the re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellant court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”

12. The appellant herein was charged with the offence of stealing by servant. Stealing is defined in the Black’s Law dictionary 8th Edition as:“To take (personal property) illegally with the intent to keep it unlawfully”.

13. The definition of stealing as found in Section 268 of the Penal Code Cap 63 is:“A person who fraudulently and without claim of right takes anything capable of being stolen on fraudulent converts to use of any person, other than the general or special owner thereof any property, is said to steal that thing or property.”

14. Section 281 of Cap 63, under which the appellant was charged qualifies the definition reproduced above found in Section 268 of Cap 63 by stating:“…the thing stolen is the property of his employer, or came into the possession of the offender on account of his employer, he is liable imprisonment of seven years.”

15. For the prosecution to prove the charge herein, it must establish the following: that the appellant was an employee of the complainant, that the appellant stole the property of the employer that came to his possession in the course of the employment and finally, that the appellant dishonestly appropriated the said property thereby depriving the employer of the same.

16. In the present appeal, it is common ground that the appellant was an employee of the complainant. The appellant had been employed as a control clerk and further, a computer personnel in charge of IT at the Embu branch. In the course of his duties, he came into possession of cash that was deposited by customers with the complainant.

17. It was the prosecution’s case as supported by PW1 that, the appellant herein was a control clerk and his duties encompassed checking activities of teller and confirming whether the system and balancing of figures were operating well. PW2, ICT manager of the complainant on the other hand testified that the complainant had an ICT Policy which required the staffs assigned a user name and password. That at branch level, there is an IT person who was mandated to give user rights if authorized by head office; and in this case, the IT person responsible for rights assignment at Embu branch was the appellant herein. That even the branch manager had access rights as assigned by the appellant who was the IT person. And in this case, the same rights were altered so that the branch manager could be able to authorize registered loans, appraise and to post loans which was not proper. That the IT person, the appellant herein improperly assigned the branch manager those rights in that he was required to seek approval from the head office before assigning the rights to the branch manager. Further, the appellant was the one responsible for editing of signature and photos on the affected accounts. The witness stated that the appellant herein allowed the branch manager to register, authorize and post loans without any authorization. The system thus showed the teller report and cashier summary were checked by John Kioko and George Mwema, the branch manager. [See Documents PEx 6,7,8].

18. PW8 testified that the appellant was in charge of IT at the branch; that if he wanted to view the system, he could do so as he had the powers. PW 11 equally testified that the appellant was the IT support officer Embu Branch but he never dealt in cash; it was her statement that the appellant was not diligent as he could have been able to detect the said transactions. That he could have been negligent or he conspired.

19. The appellant in his testimony stated that if he had to pay, then, he had to check if the account had money; check the signature in the voucher whether it tallies with the one on the system, withdrawals were to be done personally and physically. Further that, he shared his password with the 3rd accused when he was away and that he wrote a letter to that effect and it was known.

20. On whether the appellant connived with the other accused persons or he was negligent for the loss, the law permits an employer, where there exists credible and factual evidence and there is loss of money or property either through negligence or willful action of an employee to take action against that employee. [SeeLiech v Sameer Agricultural & Livestock (K) Ltd (now) Devyan Food Industries (K) Limited (Cause 7 of 2020) [2022] KEELRC 24 (KLR) (5 May 2022].

21. The appellant also challenged his conviction on the ground that the trial court erred in law for the judgment did not comply with Section 169(1) of the Criminal Procedure Code. Section 169 of the CPC provides as follows;“Every such judgment shall, except as otherwise expressly provided by this code, be written by or under the direction of the presiding officer of the court in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it.In the case of a conviction, the judgment shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted, and the punishment to which he is sentenced.In the case of an acquittal, the judgment shall state the offence of which the accused person is acquitted, and shall direct that he be set at liberty.”

22. The Court of appeal in the case of Hawaga Joseph Ansanga Ondiasa v Criminal Appeal No. 84 of 2001 held as follows:“It is true that the trial magistrate may be criticized for the perfunctory way in which he expressed himself in his judgment. However, even if we were to hold that he did not prepare his judgment strictly in accordance with section 169 of the Criminal Procedure, this would not, of itself mean that the conviction of the appellant was wrong or is to be invalidated.”

23. Similarly, in the case of Samwiri Senyange v R[1953] 20 EACA stated as follows;“Where there had not been a strict compliance with the provisions of Sections 168 and 169 of the Criminal Procedure Code that will not necessarily invalidate a conviction and the court will entertain an appeal on its merit in such a case if it can be done with justice to the parties.”

24. From the foregoing, this court is guided by the fact that failure to comply with Section 169 (1) does not render the judgment a nullity as technical failure of this nature does not vitiate the trial particularly because the evidence on record is sufficient to support the conviction for the offence with which the appellant herein was charged.

25. On the ground that the prosecution evidence was riddled with inconsistencies, this court agrees with the prosecution that the fact that there may have been discrepancies and inconsistencies in the testimony by the prosecution witnesses, the same was not material as to lead this court to conclude that the prosecution had not proved its case to the required standard of proof. This court agrees with the holding of the Court in Philip Nzaka Watu v Republic [2016] eKLR thus;“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing in the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.

26. In Dickson Elai Nsamba Shapwata & Another v The Republic, CR APP. NO. 92 OF 2007 the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows, a view we respectfully adopt:“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.”

27. In the present appeal, any inconsistency and contradiction in the oral evidence adduced by the prosecution witnesses was resolved by documentary evidence which connected the appellant to the theft.

28. In regards to the sentence, the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR restated that:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”

29. In this case the appellant was charged under Section 281 of the Penal Code which provides:-“If the offender is a clerk or servant, and the thing stolen is the property of his employer, or came into the possession of the offender on account of his employer, he is liable to imprisonment for seven years.”

30. The section states that the person is “liable to imprisonment for seven years”. Where the phrase liable appears, it gives court discretion to impose as fine or other form of none custodial sentence. In this case, the trial magistrate opted to give an option of a fine. The trial magistrate was in the circumstances bound to bring the sentence within the confines of Section 282 of the Penal Code. Cap 63 Laws of Kenya which deals with fines. Section 28 (2) of the Penal Code provides:-“In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act ordered by a court in respect of the non-payment of any sum adjudged to be paid for costs under section 32 or compensation under section 31 or in respect of the non-payment of a fine or of any sum adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale”

31. In this case the trial magistrate sentenced the appellant to pay a fine of Kes. 250,000/= in default to serve 4 years imprisonment. The mandatory provision of Section 28(2) of the Penal Code provides that when the fine imposed exceed Kshs. 50,000/= the default sentence is twelve (12) months. In line with the above authorities, I find no reason to interfere with the sentence of the learned trial magistrate as the default clause was in the tandem with the express provision of Section 28 of the Penal Code.

32. On the issue of compensation Section 31 of the Penal Code provides that a person who has been convicted may be ordered to pay compensation. The section provides:-“Any person who is convicted of an offence may be adjudged to make compensation to any person injured by his offence, and the compensation may be either in addition to or in substitution for any other punishment.”

33. The court has discretion to order compensation in addition to the punishment imposed or may be ordered as a substitution for any other punishment. It was therefore proper for the trial magistrate to order the appellant to pay compensation.

34. In the circumstances therefore, this court upholds the determination reached by the trial magistrate. The appeal is hereby dismissed.

35. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 19TH DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE.......................... for the Appellant.......................... for the Respondent