[2022] KEHC 13458 (KLR)

Mary v Republic (Criminal Appeal E072 of 2021) [2022] KEHC 13458 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13458 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E072 of 2021

GMA Dulu, J

October 6, 2022

Between

Jane Mwongeli Mary

Appellant

and

Republic

Respondent

(Being an appeal from the original judgment of Hon. Mwaniki J. (C.) in Makueni Chief Magistrate’s Court Criminal Case No.E109 of 2020 pronounced on 15th July 2021)

Judgment

1. The appellant was charged with another in the magistrate’s court with two counts. Count I was for stealing contrary to section 268(1) as read with section 275 of the Penal Code.

2. The particulars of offence were that on May 21, 2020 at around 2145 hours while at Kathonzweni Market within Makueni County jointly with others not before court, fraudulently transferred Kshs 277,000/= from Safaricom line 0726xxxxxx registered under the name of Beatrice Mutindi Joseph to Safaricom line 0741xxxxxx registered under the name of Christopher Mutua Nzyoki the property of Beatrice Mutindi Joseph.

3. Under count II she was charged with another Baraka Ramadhan for stealing contrary to section 268(1) as read with section 275 of the Penal Code, the particulars of which being that on the same day at 1843 hours while at Kathonzweni market jointly with others not before court fraudulently transferred Kshs 4,500/= from Safaricom line 0726xxxxxx registered under the name Beatrice Mutindi Joseph to the Safaricom line 0791xxxxxx registered under the name Jane Mwongeli Mary property of Beatrice Mutindi Joseph.

4. The two were also charged with count III of conspiracy to commit a felony contrary to section 393 of the Penal Code, the particulars of which being that on May 21, 2020 between 1843 hours and 2201 hours while in Makueni County jointly with others not before court conspired together to commit a felony namely stealing Kshs 281,500/= from Beatrice Mutindi Joseph.

5. They denied all the three charges. After a full trial, the second accused Baraka Ramadhan was acquitted. The appellant, who was 1st accused, was acquitted on count III but convicted on counts 1 and II. She was fined to pay Kshs 277,000/= on count I and in default to serve 3 years imprisonment. With regard to count II she was fined Kshs 9,000/= and in default to serve one year imprisonment. The prison sentences to run consecutively, thus a total of 4 years imprisonment.

6. Dissatisfied with the conviction and sentence of the trial court, the appellant has come to this court on appeal, on the following grounds -1. That the trial magistrate erred in shifting the burden of proof to the appellant and ignoring the appellant’s defence.2. The trial magistrate erred in failing to observe that there was no substantive investigations by the investigating officer and failed to test the evidence of prosecution witnesses.3. The prosecution did not prove its case beyond reasonable doubt.4. The sentence imposed is harsh and excessive.

7. The appeal was canvased through filing of written submissions. In this regard, I have perused and considered the submissions filed by the appellant as well as the submissions filed by the Director of Public Prosecutions.

8. This being a first appeal, I am duty bound to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences see Okeno v Republic (1972) EA 32.

9. In proving their case, the prosecution called three (3) witnesses. PW1 was Beatrice Mutindi Joseph, whose evidence was that the appellant, together with another woman and a man, visited her club at Kathonzweni on May 21, 2020. On the next day when she went to buy M-pesa stock, she was told that there was no M-pesa in her account, and that the money had been transferred to the account of Jane Mwongeli, though she had never given Jane Mwongeli her M-pesa PIN number in her mobile phone 0726xxxxxx.

10. PW2 was Stephen Kioko an M-pesa agent at Kathonzweni market whose evidence was that on May 22, 2020 at 7am, Jane the appellant ,withdrew Kshs 23,000/= from his M-pesa shop. According to this witness, the appellant was in the company of another woman.

11. PW3 was PC Junior David Omollo the investigating officer, whose evidence was that on June 6, 2020, while on duty at Kathonzweni Police Station, the complainant Beatrice Mutinda reported that she had been defrauded of her money through M-pesa withdrawals from two phone numbers 0791xxxxxx of Jane Mwongeli and 0741xxxxxx of Christopher Mutua Nzyoki. According to her, the total money withdrawn was about Kshs 300,000/=.

12. He testified that on investigations, he found that on May 21, 2020 several transactions of withdrawals through M-pesa were done from the complainant’s phone number by Jane Mwongeli and Christopher Mutua. Several M-pesa deposits were also made to phone No 0798xxxxxx and 0791xxxxxx in the names of Jane Mwongeli. Consequently, the appellant was arrested and charged with Baraka Ramadhan, but other suspects Anne Mutindi, Sharon Mueni and Christopher Mutua were not arrested. He produced in court M-pesa printouts from Safaricom as exhibits.

13. When put on her defence, the appellant tendered sworn testimony. She stated that she was called by a friend to deliver a goat worth Kshs 4,500/= to a buyer Beatrice Mutindi the complainant, and that she did so and was paid through M-pesa. The following day, Christopher sent her Kshs 240,000/= to pay for some cows. She however, denied withdrawing money from the complainant’s phone. She stated that she knew Christopher, but did not know where he was presently. According to her, Christopher had sent her money to buy cows before.

14. From the evidence on record, in my view, count I of theft were not proved by the prosecution against the appellant beyond reasonable doubt. This is firstly, because no evidence was tendered in court to suggest that the appellant either withdrew money from the M-pesa account of the complainant, nor was there evidence tendered in court that she sent anybody, including Christopher to withdraw money from the M-pesa account of the complainant. Thus count I was not proved against the appellant. I will quash the conviction and set aside the sentence on count I.

15. With regard to count II however, in my view, the prosecution proved beyond reasonable doubt that the appellant obtained Kshs 4,500/= from the M-pesa telephone account of the complainant (PW1). Though she said in her defence that she sold a goat to the complainant to receive such money, the evidence of PW1 the complainant which is believable, was that no goat was sold to her to justify that payment. That being so, and the trial magistrate having seen both witnesses testify, and the appellant also testify in court to determine that demeanor, I come to the same conclusion reached by the trial magistrate that the complainant, an old woman of about 73 years was telling the truth. I will uphold the conviction on count II

16. With regard to sentence for count II, the appellant was granted the option of payment of a fine and in default imprisonment. The statute law provides for a prison sentence. The sentence was lawful. In my view the trial magistrate exercised his discretion in sentencing judicially. I will thus not interfere with the sentence imposed on count II.

17. Consequently and for the above reasons, I quash the conviction for count I and set aside the sentence therein. I however dismiss the appeal on count II, uphold the conviction for count II as well as the sentence of a fine of Kshs 9,000/= and in default (1) year imprisonment.It is so ordered.

DELIVERED, SIGNED & DATED THIS 6TH DAY OF OCTOBER 2022, IN OPEN COURT AT MAKUENI.………………………………….George DuluJudge