[2023] KEHC 25295 (KLR)

Mathenge v Republic (Criminal Appeal E013 (57) of 2020) [2023] KEHC 25295 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25295 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal E013 (57) of 2020

AC Mrima, J

November 16, 2023

Between

John Muriithi Mathenge

Appellant

and

Republic

Respondent

Judgment

Introduction and Background 1. John Muriithi Mathenge, the Appellant herein, was jointly charged with one Caren Jepkoech Korir with two counts in Kitale Chief Magistrates Criminal Case No. 895 of 2015 (hereinafter referred to as ‘the criminal case’). The offences were Stealing by Servant contrary to Section 281 of the Penal Code and Attempting Stealing by Servant contrary to section 389 of the Penal Code.

2. The particulars of the offence of stealing by servant were as follows: -On diverse dates between 4th day of September 2014 and 28th day of October 2014 at Kenya Seed Company Limited Headquarters in Kitale within Trans Nzoia County, being servants to Kenya Seed Company Limited, jointly stole Kshs. 472,500/= the property of the said Kenya Seed Company Limited which came into their possession by virtue of their employment.

3. On the charge of Attempted theft, the particulars were as follows: -On diverse dates between 27th day of October 2014 and 30th day of October 2014 at Kenya Seed Company Limited Headquarters in Kitale within Trans Nzoia County, being servants to Kenya Seed Company Limited, jointly attempted to steal Kshs. 172,500/= the property of the said Kenya Seed Company Limited which came into their possession by virtue of their employment.

4. The then accused denied the charges. Later, the charges against Caren Jepkoech Korir were dropped and she was treated as a State witness.

5. The Appellant was subsequently tried. He was found guilty and convicted of the offence of stealing by servant. He was sentenced to a fine of Kshs. 500,000/= or in default to serve a prison term of four years. He was acquitted on the second charge of Attempted theft by a servant.

6. The Appellant served quite a substantial part of the sentence. He was, however, released by this Court on a personal bond with 13 days to complete serving the entire prison sentence. He, however, opted to pursue the appeal since he was dissatisfied with the decision.

7. The Appellant was not represented by Counsel in this appeal unlike before the trial Court.

The Appeal: 8. In a Petition of Appeal dated 23rd December, 2020, the Appellant preferred 6 grounds of appeal. Needless to say, most of the grounds were in a repetitive manner. In essence, the Appellant decried that the prosecution case was not proved.

9. By the directions of this Court, the appeal was heard by way of written submissions. Both parties duly complied. Parties referred to several decisions in support of their rival positions.

Analysis: 10. This being the Appellant's first appeal, the role of this Court, as the first appellate Court, has been discussed in various decisions. In Okemo vs. R (1977) EALR 32 and in Mark Oiruri Mose vs. R (2013)eKLR, the Court of Appeal restated the role of this Court as being duty-bound as to revisit the evidence tendered before the trial Court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial Court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and that this Court ought to give allowance for that.

11. To enable this Court, discharge the said duty, a brief look at the evidence becomes eminent. However, this Court will not reproduce that evidence. Instead, it will incorporate the evidence as captured by the trial Court in its judgment by reference since the Court did it quite well.

12. In a nutshell, the prosecution called a total of 16 witnesses in a bid to prove its case. PW1 was the Finance Manager at Kenya Seed Company Limited (hereinafter referred to as ‘the Company’) Headquarters in Kitale. He was Daniel Matara. PW2 was the then Manager in-charge of the Pasture and Sunflower Department of the Company. She was Joyce Aleyo Agufana. PW3 was the Company’s Basic Seed Unit Manager one Leonard Kiptum Kosgei. Winnie Ngulati testified as PW4. She was the Company’s Senior Accountant during the period in issue.

13. An Accounts Intern in the Company’s Finance Department, one Caren Jepkoech, who was initially charged alongside the Appellant, testified as PW5. PW6 was Lazarus Kipng’etich who was a Cashier. The Company’s Chief Accountant testified as PW7. He was John Kiplagat- Serem. PW8, PW9, PW10 and PW11 were all employees of the Company who allegedly applied for imprests during the period in issue. They, however, denied making such applications.

14. PW12 was the Company’s employee who was sent by PW5 to collect some money from a Cashier. She did so and handed over the same to PW5 who was in an office together with the Appellant. PW13 was Nelly Kotut who testified that she used to be given imprests forms by the Appellant to fill which she did under the Appellant’s supervision. She would then collect the money and hand it over to PW5. She had left the Company, but the Appellant and PW5 would call and threaten her against disclosing what transpired. PW12 eventually decided to inform her former Supervisors. The Internal Auditor, one Benjamin Chelimo, testified as PW15.

15. PW14 was a Document Examiner from the Department of Criminal Investigations and the Investigating Officer was one No. 234597 CIP Jonathan Munywoki from the DCI Headquarters in Nairobi. He testified as PW16.

16. The offence of Stealing by Servant is created in Section 281 of the Penal Code. The provision states as follows: -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.

17. The ingredients of this offence are primarily two. They are: -i.Proof of employment;ii.Proof of theft of the employer’s property which may have come into possession of the offender by virtue of the employment.

18. This Court will deal with the said issues in seriatim.

19. On the first issue, there is no doubt that the Appellant was employed by the Company. A Letter of Employment was produced in evidence. Further, the Appellant equally admitted to being the Company’s employee.

20. On the issue of theft, there is also no doubt that, through the evidence tendered, the Company lost money to the tune of Kshs. 472,500/=. The cumulative evidence was overwhelming and well connected. There was not only documentary evidence in support, but also expert evidence of the Document Examiner that perfectly linked the Appellant with the questioned cash transactions.

21. The Appellant did not prove that he was legally entitled to receive the said sums. He, instead, alleged that he was on leave when the transactions took place and that the charges were planted on him by members from one ethnic background.

22. But, his allegations ran contra the evidence. The evidence was congent and pointed to him as having unlawfully received the sums of money in issue in cohort with others whom the trial Court ordered for their prosecution.

23. It was also undisputed that the money came into the possession of the Appellant by virtue of his employment with the Company.

24. The offence of Stealing by Servant was, therefore, properly so, proved. The Appellant was rightly found guilty and convicted.

25. There was, however, an allegation by the Appellant that the evidence was riddled with contradictions. This Court has carefully perused the record. As this Court has repeatedly stated, contradictions in evidence cannot be totally ruled out when parties testify. The reason being that people perceive and narrate same events differently. Therefore, unless the contradictions go to the root of the matter and prejudices the accused, such are reconcilable and not fatal to the case.

26. The alleged contradictions did not, however, go to the root of the case. They were easily reconcilable and did not prejudice the Appellant or at all.

27. Deriving from the above, and as stated, this Court is satisfied that the charge of stealing by servant was duly proved and the Appellant properly convicted. The appeal against the conviction is, hence, unsuccessful.

28. This Court also notes that the Appellant served almost the entire prison term. He, therefore, ought to be set at liberty.

Disposition: 29. On the basis of the above, the following final orders do hereby issue: -a.The appeal against the conviction is hereby dismissed.b.The appeal against the sentence succeeds to the extent that the sentence is reviewed to the period already served.c.The Appellant is, hence, set at liberty unless otherwise lawfully held.d.File is hereby marked as CLOSED.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KITALE THIS 16TH DAY OF NOVEMBER, 2023. A. C. MRIMAJUDGEJudgment delivered in open Court and in the presence of: -John Muriithi Mathenge,the Appellant in person.Miss Kiptoo, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Respondent.Chemosop/Duke – Court Assistants.