[2022] KEHC 3008 (KLR)

Murithi v Republic (Criminal Appeal E027 of 2020) [2022] KEHC 3008 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 3008 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E027 of 2020

EM Muriithi, J

June 16, 2022

Between

Dennis Muthomi Murithi

Appellant

and

Republic

Respondent

(Appeal against the conviction and sentence by Hon E.M Ayuka SRM in Nkubu Criminal case No. 578 of 2019 delivered on 1/12/2020)

Judgment

Introduction [1]The Appellant, Dennis Muthomi Murithi, was charged with the offence of stealing contrary to section 268 as read with section 275 of the Penal Code. The particulars were that on 10/7/2019 at about 1044 hours at Mwichiune market Igoki location in Imenti South Sub-County within Meru County, jointly with others not before court, he stole Ksh.88,102 (Eighty Eight Thousand, One Hundred and Two) the property of Stanley Gitonga Nkunja. He denied the charges but after a full trial, he was convicted and sentenced to 3 years imprisonment on 1/12/2020.

The appeal [2]On appeal from conviction and sentence, the appellant has now appealed to this court against both the conviction and sentence raising 6 grounds as follows:1. The trial court’s conviction was against the weight of the evidence on record as there glaring discrepancies, contradictions and blatant falsehoods in the evidence tendered by the prosecution witnesses.2. The trial court erred in law and fact in holding that the appellant was guilty of the offence of stealing contrary to section 268 as read with section 275 of the Penal Code, yet the prosecution had failed to prove its case beyond reasonable doubt.3. The trial court erred in law and fact in shifting the burden of proof to the appellant.4. The trial court erred in law and fact in holding that the appellant had not challenged the evidence of the prosecution witnesses.5. The trial court erred in law and fact in dismissing and/or failing to properly consider and apply the appellant’s defence before arriving at a conviction.6. The sentence of three (3) years imprisonment was manifestly excessive in the circumstances.

Submissions [3]The respondent in its submissions filed on 22/12/2021 urged that it had proved its case beyond reasonable doubt, as the evidence which was adduced by the prosecution witnesses was clear, consistent and corroborated, and relied on Daniel Muthami Sono v Republic (2019)eKLR. It denied the appellant’s allegation that the trial court had shifted the burden of proof to him, as the appellant was given ample time to cross examine the witnesses. It applauded the trial court for weighing the evidence of the prosecution against that of the appellant, and finding that the appellant stole from the complainant. It concluded that the sentence meted out to the appellant was per the law, taking into account the type of offence committed by the appellant and the amount stolen by him. It humbly prayed for the dismissal of the appeal and the conviction and the sentence of the trial court to be upheld.

[4].This Court, being the first appellate court is aware of its duty to evaluate the entire evidence on record bearing in mind that it had no advantage of seeing the witnesses testify and observe their demeanor. (see Okeno v R (1972) EA 32).

The Evidence [5].PW1 Stanley Gitonga, the complainant herein, testified that he lived in Uruku and he was unknown to the appellant. On 30/6/2019, he lost his phone and in July, he went to replace the line 0792785212 at an Mpesa shop at Thingithu market. After doing the replacement, the line showed that it had no network so he went to customer care. He was informed that the line had been damaged and the money totaling to Ksh. 88,100 in his M-shwari(Mpesa account) had been withdrawn by one Kenneth Mutwiri. Kenneth Mutwiri, an Mpesa agent said that it was the appellant who had been sending and withdrawing money from his phone. Safaricom told him that the money was being withdrawn from Kenneth Mutwir’s agent outlet. The statement from Safaricom customer care showed that Kenneth was the recipient of the money. He reported the matter at Nkubu police station and the appellant was arrested.

[6].On cross examination, he stated that he was unknown to the appellant prior to this case, and evidence from safaricom showed that it was the appellant who was sending money to Kenneth.

[7].PW2 Evangeline Mugambi, the complainant’s employer, stated that she was unknown to the appellant. She paid the complainant a monthly salary of Ksh.8,000 via Mpesa. On 30/6/2019, the complainant informed her that his phone had been lost and/or stolen, and she advised him to report to the police. When the complainant went to replace the Sim card, the new Sim card had no network and he sought help from Safaricom customer care. At the safaricom customer care, the complainant was informed that his money had been withdrawn from his M-shwari at Kigane area by Kenneth and another and he was given the statement. She escorted the complainant to Nkubu police station and the appellant was arrested. The complainant lost Ksh.86,000 and the appellant fulizad Ksh. 2,000 using the complainant’s phone.

[8].On cross examination, she stated that Safaricom issued a statement on how the money was withdrawn, and the investigations by the investigating officer connected the appellant to the theft.

[9].PW3 Kenneth Mutwiri Festus, an agent of Mpesa namely Del Nel Systems, testified that he knew the appellant, because on 9/7/2019, the appellant had replaced a Sim card using an Identity card of Stanley Gitonga. The following day, the appellant came to withdraw Ksh.40,000 using a phone registered under the name of Stanley Gitonga. The appellant then borrowed on Fuliza Ksh.2,000 in the name of Stanley Gitonga. He then gave the appellant the Ksh.40,000, Ksh.1030 received from Carren and the Fuliza money. In the evening, the appellant came again to replace the line but he declined, and the appellant left. The following day, he informed customer care via the phone that the appellant had withdrawn Ksh.40,000. He was called by the CID officers and he gave them a mini-statement of Mpesa transaction. His phone number was 0792194920 and the appellant had forwarded Ksh.2000 from Stanley Gitonga Nkunja’s number 0792785212. It was the appellant who had the complainant’s phone and he did not see the complainant at any given time.

[10].On cross examination, he affirmed that the appellant was the one who withdrew Ksh.40,000 using the complainant’s Identity Card, and the Fuliza transaction was that of the complainant. The appellant’s sister sent him Ksh.1030 in his phone and the appellant also borrowed Ksh.2000 on Fuliza facility.

[11].PW4 PC Hezna Nyub of Nkubu Police Station took over the case and the investigations on 23/12/2019 from PC Kyallo who was on transfer. He stated that on 12/7/2019, the complainant reported how the appellant had stolen Ksh.88,102 from his mobile phone and transferred it to his(appellant’s) Mpesa account. The appellant first transferred Ksh. 40,000 then he borrowed Ksh.2,000 on Fuliza and, lastly, he transferred Ksh.45,500. They recorded the witness statements, obtained the Mpesa statement which showed the transaction and arrested the appellant on 16/7/2019. He produced the complainant’s Mpesa statement and statement of account of Kenneth Mutwiri as exhibits PEXB. 1 and 2, respectively.

[12].On cross examination, he stated that the Mpesa statement showed that the appellant transferred the money from the complainant’s number. The appellant had used the Mpesa agent’s number and/or phone to fuliza the money and the Mpesa agent had also recorded a witness statement. The appellant did not transfer the money to his phone, but he sent it to a third party. The appellant transferred the money in bits and he did not know how the appellant had gotten the complainant’s details.

[13].In his sworn defence, the appellant, DW1 vehemently denied committing the offence or taking the money. He was arrested when he went to collect money sent to him from an Mpesa shop, using someone’s phone. The money was for his medication and he prayed for leniency because he had never done such a thing in life.

[14].On cross examination, he stated that he was at the material time aged 29 years and the money had been sent on Mpesa. He went to PW3’s shop, did a replacement of the line and withdrew the money.

Analysis and Determination [15].The issues for determination are whether the ingredients of the offence of stealing were proved beyond reasonable doubt; whether the evidence by the prosecution witnesses was contradictory and false thus rendering the conviction unsafe; whether the appellant’s defence was considered; and whether the sentence was manifestly excessive.

Whether the ingredients of the offence of stealing were proved beyond reasonable doubt [16].Section 268 (1) of the Penal Code states as follows:-“A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property.”

[17].In this case, the appellant, used the complainant’s Identity Card at PW3’s Mpesa shop in order to replace a Sim card he knew very well was not his. Soon thereafter, the appellant without any claim of right, proceeded to withdraw Ksh.40,0000 from the complainant’s M-shwari (Mpesa) account. He then transferred Ksh.2,000 to PW3 and Ksh.45,500 to Geoffrey Mbuga Mucege. After collecting the money from PW3, the appellant left only to return in the evening with a view of doing a second replacement of the complainant’s line, which PW3 declined to perform.

[18].In his sworn defence, the appellant admitted that he used someone else’s phone number to withdraw the money. He also admitted on cross examination that he had gone to PW3’s shop and done a replacement of a safaricom line. The Safaricom statement of account for the complainant shows that on 10/7/2019 at 10. 17 am, Ksh.50 was deposited into the complainant’s Mpesa account. At 10. 36 am, Ksh.2,000 was withdrawn from the complainant’s M-shwari account. At 10. 38 am, Ksh.86,000 was withdrawn from the complainant’s M-shwari account bringing the Mpesa balance to Ksh.88,102. 26. At 10. 44 am, Ksh.40,000 was withdrawn from the complainant’s phone at PW3’s Mpesa shop. At 10. 46 am, Ksh. 2,000 was transferred to PW3’s phone bringing the total Mpesa balance to Ksh.45,832. 26. At 11. 00 am, Ksh.45,500 was transferred to Geoffrey Mbuga Mucege bringing the Mpesa balance to Ksh.291. 26.

[19].The complainant testified that he lost his phone on 30/6/2019 and when he went to replace the Sim card in July, he discovered that Ksh.88,100 was missing from his M-shwari and/or Mpesa account. When he went to the service provider to get the Mpesa statement, he was informed that the money had been withdrawn from his phone by the appellant. The complainant’s testimony was corroborated by PW2 and PW3. The investigating officer, PW4 testified that the appellant transferred the money from PW1’s phone in bits to a third party.

[20].This court finds that the appellant, without any claim of right, withdrew Ksh. 40,000 which was something capable of being stolen, from the complainant’s Mpesa account. The appellant still without any claim of right, transferred from the complainant’s Mpesa account, Ksh.47,500 which was something capable of being stolen, to PW3 and Geoffrey Mbuga Mucege.

Whether the evidence by the prosecution witnesses was contradictory and false thus rendering the conviction unsafe. [21].The evidence of the complainant was consistent with that of PW2 and PW3. PW3, who was well known to the appellant prior to this incident, affirmed on cross examination that it was the appellant who had withdrawn the money using the complainant’s Identity Card. It is clear from the court record that the complainant had not sent the appellant to withdraw money from his phone on his behalf. The only inference that can be drawn from the appellant’s possession of the complainant’s Identity Card, which he subsequently used to withdraw the complainant’s money, is that he had stolen it.

[22].The appellant was well known to PW3 and the Mpesa statements linked him to the offence. This court is satisfied that it was the appellant who stole the complainant’s money, and therefore the prosecution proved all the ingredients of the offence of stealing, within the meaning of section 268 of the Penal Code, beyond reasonable doubt. The evidence led by the prosecution witnesses was consistent and corroborated, and, therefore, the appellant’s conviction by the trial court was safe.

Whether the appellant’s defence was considered [23].The appellant’s contention that his defence was not considered has no merit. His defence was a bare denial of either committing the offence or taking the money. The appellant albeit admitting going to the Mpesa shop to collect money which was allegedly sent to him, doing a replacement of a safaricom line and using someone else’s phone number to withdraw the money, still insisted that he was innocent of the charge of theft. He faults the trial court for shifting the burden of proof to him.

[24].It well settled that in criminal law, save in exceptional circumstances, the burden of proof always lies with the prosecution to establish each and every ingredient that constitutes an offence preferred against an accused person. (See Woolmington v DPP [1935] UKHL). Even if an accused person opts to keep quiet, the prosecution retains the legal burden to establish its case to the required standard of proof beyond any reasonable doubt.

[25].Having read the trial court’s judgment, this court does not find that the trial court shifted the burden of proof to the appellant. The trial court after due consideration of the prosecution’s case alongside the appellant’s defence of plain denial, as a whole in accordance with method of Okethi Olale v. R (1964) EA 555, correctly found that the offence had been proved beyond reasonable doubt.

Whether the sentence was manifestly excessive [26].It is trite law that the sentencing rests at the discretion of a trial court and an appellate court should only interfere where the trial court misdirected itself on principle or the sentence is manifestly excessive so as to cause an injustice. See Wanjema v. R (1971) EA 493, 494, where the Court of Appeal for East Africa held:“An appellate court should not interfere with the discretion which a trial court has exercised as to sentence unless it is evident that it overlooked some material factor, took int account some immaterial factor, acted on a wrong principle or the sentence is manifestly excessive in the circumstances of the case. The instant sentence merits this court’s interference with it on each of these grounds. No account was taken, as it should have been, of the fact that the appellant pleaded guilty: Skone (1967) 51 Cr. App. R. 165 and Godfrey (1967) 51 Cr. App. TR. 449. This admits no doubt because the magistrate awarded maximum sentence to the first offender, which of itself is unusual).”

[27].The Kenya Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR restated the principle as follows:“It is now settled law, following several authorities by this court and the High Court that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive on the circumstances of the case, or the trial court overlooked some material factor, or acted on a wrong principle. Even if, the Appellate Court might itself have not passed that sentence and feels that the sentence is heavy 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.”

[28].Section 275 of the Penal Code provides for the general punishment for theft as follows:“Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years.”

[29].During sentencing, the trial court, which had the advantage of observing the demeanor of the appellant, as noted in Okeno v R, said as follows:“I have considered the nature of the offence and mitigation of the accused. I have observed the demeanor of the accused. He is not remorseful at all. He does not regret his actions. In light of the above, I find that the accused deserves a deterrent sentence. The accused therefore sentenced to serve imprisonment for a period of three years.”

[30].The sentence meted out to the appellant was within what was prescribed by the provisions of section 275 of the Penal Code. This Court would not interfere even if it might itself have passed a lesser (or greater) sentence. (see Gacheru v. R, supra). However, the trial court clearly erred in principle by failing to take into account the material factor that the accused was a first offender and, consequently, passed an excessive sentence to the prejudice of the appellant.

[31].The Court of Appeal for Eastern Africa in Josephine Arissol v. R 1957 (EA) 447 at 449, in not so dissimilar circumstances of maximum penalty being imposed for a first offender held:“We have, however, come to the conclusion that the sentence of three year’s imprisonment, which is the maximum under the law for the offence of which she was convicted, is excessive. The appellant has hitherto been of excellent character, she is young and a first offender: all these are circumstances which normally are considered in mitigation of sentence. It is unusual to impose the maximum sentence on a first offender and it would be wrong to depart from that rule because, on the evidence, she might have been convicted for a greater offence.”

[32].This court feels that it would be wrong to depart from the rule on account of failure by the accused, as observed by the trial court, to show remorse. The rule in Arissol that it is unusual to impose the maximum sentence on a first offender was reiterated in latter case of Wanjema v R, supra. In the present case, the court must find that the sentence was excessive in the circumstances as the trial court failed to take into account the fact that the accused was a first offender and also, thereby, erred on principle. This court is, on the test in Wanjema v. R supra, entitled to interfere with the sentencing discretion of the trial court.

[33].In this case, failure to be remorseful and regret his actions of itself did not call for the maximum sentence of imprisonment for three years prescribed for the offence of theft under section 268 (1) as read with 275 of the Penal Code. This court considers that two thirds of the sentence would still have served the deterrent sufficiently to the satisfaction of the concern of the trial court that the accused was not remorseful at all.

ORDERS [34].Accordingly, for the reasons set out above, the Court makes the following Orders:1. The appellant’s appeal on conviction for the offence of theft contrary to section 268 as read with 275 of the Penal Code is dismissed.2. The appellant’s appeal on sentence is allowed, and pursuant to section 354 (3) (b) of the Criminal Procedure Code, the sentence of imprisonment for three years is set aside and substituted with a sentence of imprisonment for two (2) years from the date of sentence in the trial court.

[35].The appellant has been in custody since sentence on 1/12/2020 which is a period of 1 year six months, which is more than required for a two-year imprisonment sentence, with 1/3 remission.

[36].There shall, therefore, be an order, for the immediate release of the appellant unless his conduct in prison has disentitled him to the discretion of the Commissioner of Prisons to grant remission under section 46 of the Prisons Act, or he is otherwise lawfully held.Order accordingly.

DATED AND DELIVERED ON THIS 16TH DAY OF JUNE, 2022. EDWARD M. MURIITHIJUDGEAppearances:M/S Haron Gitonga & Co. Advocates for the Appellant.Ms. B. Nandwa, Prosecuting Counsel for the DPP/Respondent.