https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6830

Muthoni & another v Republic (Criminal Appeal E022 of 2025) [2026] KEHC 6830 (KLR) (20 May 2026) (Judgment) Neutral citation: [2026] KEHC 6830 (KLR) Republic of Kenya In the High Court at Nanyuki Criminal Appeal E022 of 2025 AK Ndung'u, J May 20, 2026 Between Alice Nyambura Muthoni 1st Appellant Pilly Wairimu Macharia 2nd Appellant and Republic Respondent (Being an Appeal from the conviction and sentence by Hon. E. Ngigi (S.P.M) in Rumuruti SPMCRC No. E037 of 2023 delivered on 11th October 2024) Judgment 1.The Appellants were charged jointly with a first count of Stealing by Agent contrary to Section 283(b) of the Penal Code. The particulars were that on diverse dates between 9th January 2017 and 1st April 2019, in Laikipia County within the Republic of Kenya, being agents of Alice Nyawira Kamau, stole cash Kshs: 3,920,600/-. the property of the said Alice Nyambura Kamau, which had been entrusted to them for her, to jointly retain in safe custody. 2.The 1st Appellant faced a 2nd count of a similar nature the particulars of which were that on diverse dates at the same place, between 14th March 2018 and 28th October 2020, being an agent of Alice Nyawira Kamau, stole cash Kshs: 3,032,336/-, the property of the said Alice Nyawira Kamau, which had been entrusted to her for her, to retain in safe custody. 3.The 1st Appellant faced a 3rd Count of a similar nature. The particulars were that on diverse dates, between 1st January 2021 and 15th January 2021, at Rumuruti Township, in Laikipia County, within the Republic of Kenya, being an agent of Alice Nyawira Kamau, stole US Dollars 7000, the property of the said Alice Nyawira Kamau which had been entrusted to her to retain in safe custody. 4.Both accused pleaded not guilty and the matter proceeded to trial. Upon considering the testimonies and the evidence, the trial court convicted the Appellants on all counts and sentenced them to 3 ½ years’ imprisonment for each of the counts which were to run concurrently. 5.Being dissatisfied with the conviction and sentence, the Appellant instituted this Appeal vide a Petition of Appeal dated 10th June 2025 premised on the following grounds;1.That the Learned Trial Magistrate erred in law and in fact in convicting the Appellants when the prosecution did not prove their case to the required standards thereby occasioning the Appellants a miscarriage of justice.2.That the Learned trial Magistrate erred in Law and in fact in convicting the Appellants where the essential ingredients of the charge of stealing by agent had not been proved by the prosecution.3.That the Learned Trial Magistrate erred in Law and in fact by drawing adverse inference against the Appellants thus shifting the burden of proof contrary to the law of evidence.4.That the Learned trial Magistrate erred in law and in fact in failing to consider the defence evidence and submissions.5.That the Judgment is not well reasoned and it is based on guess work and speculations.6.That the Learned Trial Magistrate erred in law and in fact in basing his judgment on Inconsistent, Incredible and contradictory evidence of the prosecution witnesses.7.That the learned trial magistrate erred in law and in fact in basing his Judgment on assumption and suspicion thus arriving at a finding which was contrary to evidence on record.8.That the Learned Trial Magistrate erred in Law and in fact in meting an excessive sentence and fading to be guided by the judiciary sentencing policy guidelines. 6.The Appeal was canvassed by way of written submissions. Appellants’ submissions 7.Counsel for the Appellants urged that Grounds 1-7 touch on conviction and they shall be argued together. Counsel reproduced the evidence of PW1, PW2 and PW3. 8.Counsel cited the case of Ong’are Moguche vs Republic (2019) KECA 323 KLR on the ingredients of the offence of stealing by agent. Counsel submitted that it’s worth noting that no auditor's report was produced in Court to confirm the theft and this was necessary noting that the complainant's claim was that not all the amounts sent to the Appellants formed part of her complaint as some of the amount was for the Appellants' maintenance. 9.Counsel urged that the Appellants introduced other authorized expenditures to include renovation of the complainant's houses at Rumuruti and Nakuru and payment of school fees for the complainant's dependants called as DW3 - DW5. An audit on all the amounts purported to have been sent to the Appellants to include the authorized expenses was necessary to prove the theft of the amounts reflected in the Charge Sheet. Further, that the complainant did not tender any evidence to prove that there existed an agency relationship between her and the Appellants and that part of the amount sent was for safe keeping for her use upon her return to Kenya. 10.Counsel urged that the records/documents relied on by the Court to make a finding of guilt and produced as Pexh 1 - 5 were inadmissible for non-compliance with the mandatory provisions of Section 65(8) of the Evidence Act. Further, that the source of PExhibit 1, a statement from sendwave was undisclosed and unverified. No report was prepared by an expert to connect the amounts referred to in PEXH NO. 1 to the bank accounts held by the Appellants as per the statements produced as PEXH 2-5. 11.That the bank statements from Equity Bank were not certified as true copies of the original and they contained a disclaimer confirming that the statements were for personal use and not for production in Court. Counsel urged that the Court relied heavily on those documents in convicting the Appellants and cited the case of Lucy Nyambura Marubu vs Republic – Nairobi Criminal Appeal No. 94 of 2015. 12.The court was faulted for shifting the burden of proof to the Appellants instead of analyzing the evidence of the prosecution to confirm whether indeed an offence had been committed. Reliance was placed on the case of Philip Muiruri Ndaruga v R – Criminal Appeal No. 76 of 2012 at Nyeri. 13.Counsel urged that the Appellants introduced doubts in the case when they gave an explanation on oath on how the amounts were spent. There being no evidence of safe keeping the amount for future use, the Court ought to have decided the doubt in the Appellants' favour noting that the case was a criminal case and not a civil case. That the evidence on record was the complainant's word of mouth against that of the Appellants. 14.It is urged that the evidence in Count III was full of contradictions on the dollars that were alleged to have been stolen. According to PW1, she gave the 1st Appellant 10,000 dollars and 2900 dollars were recovered. The Charge sheet stated that 7,000 dollars were stolen. That the police stole part of the recovered dollars as they only returned 2,700 dollars to the complainant and a sum of Kshs. 20,000/- before they were produced as exhibits and without a Court Order. The trial Court did not address this unlawful act. 15.Counsel submitted that the 2nd Appellant's role in the offence was unexplained noting that money was alleged to have been sent to the 1st Appellant. It is also interesting to note that the Appellants were found guilty on the 3 counts whereas Count II and III referred to the 1st Appellant alone. The 2nd Appellant was convicted and sentenced in Count II and III for offences she was not charged with. 16.The evidence of PW1 did not support the particulars of the Charge sheet. That things were made worse by the Court where it found that 6,000 dollars were stolen. This finding was not supported by the evidence on record and its source is unknown. Counsel posited that suspicion alone no matter how strong cannot form a basis for a conviction and we pray for the judgment to be set aside. 17.Counsel urged that if by any chance the appeal on conviction shall fail, they pray for the sentence to be set aside. That the Court did not call for a pre-sentence report before sentencing the Appellants to a custodial sentence of 3 ½ and their mitigation was not taken into consideration. 18.Counsel cited the case of Chepkech vs Republic (Criminal Appeal 34 of 2019) KEHC 23344 (KLR) (12 October 2023) (Judgment) and urged that the Appellants are young mothers with young children at home and they have been in prison since the 11/10/2024. They prayed that they be released or alternatively they be placed on probation for the remaining term. Respondents’ Submissions 19.Counsel urged that the prosecution proved its case beyond reasonable doubt and also based on admissions by the Appellants. 20.Counsel cited Section 283 of the Penal code and the case of Ong’are Moguche v Republic [2019] KECA 323 (KLR), on the elements of the offence. Counsel urged that in their understanding of the phraseology of Section 268(1) of the Act above, an act of so much as to use the property of another for such purpose other than that of the owner thereof is theft. 21.Counsel submitted that money is property that is capable of being stolen within the meaning of Section 268 of the Penal Code. On whether the Appellants received the sums as stated by the Complainant in respect of Counts 1, 2 and 3, we urge the Court to note that there was no contention on this point. During cross-examination of PW1 there was no attempt at an attrition of the sums stated by the Complainant by the Appellant’s counsel. 22.Counsel submitted that at no point did they dispute receipt of any of the sums stated by PW1. Neither did they state that what they received was a lesser sum than what PW1 told the Court. Counsel submitted that for the purpose of Count 3, the 1st Appellant conceded that she indeed received 9900 Dollars from PW1 and that when she was arrested, she handed back 2900 Dollars to the police. This left the sum of 7,000 Dollars as unaccounted for as indeed stated by PW1 and as per Count 3 of the Charge Sheet. Therefore, the question of receipt of the funds from PW1 to the Appellants jointly for the purpose of Counts 1and 2 was unchallenged hence common ground. Further, the receipt of Dollars for the purpose of Count 3 by the 1st Appellant was also admitted by the 1st Appellant. 23.Counsel submitted that it is in the purpose for which the funds were to be utilized that lies the diversion. PW1 was categorical that she had distinguished monies for the Appellants’ personal use as opposed to sums that were to be deposited in safe custody awaiting her return. PW1 testified that she had advised the Appellant’s that any funds sent as Kshs 20,000/- and below were for the Appellants’ upkeep while any funds sent in excess of Kshs 20,000/- were to be deposited in the Appellant’s joint accounts for safe custody awaiting her return. PW 1 was also succinct that she had no issue with the sums she sent for the Appellants’ upkeep as she had taken it upon herself as the Appellants’ guardian. It was the sums that she had ticked on the Sendwave Statement that she claimed from the Appellants. As a measure of forthrightness, PW1 had indicated by way of asterisk the sums she had sent to the Appellants for their own upkeep and which sums she had no claim against as they were for the Appellants’. 24.Counsel submitted that though there is no dispute that the funds were received by the Appellants she compared PExhibit 1 and PExhibit 4 to show the money trail. 25.Counsel urged that whereas the Appellants submit that the documents were improperly admitted in Court for various reasons, they urge that this submission must be disregarded as at the point of production during trial, the Appellants who had the benefit of learned counsel did not object to their production. The documents were therefore placed on record through the Appellants’ implicit, if not express consent. 26.The issue of admissibility of the documents was not raised before the trial Court for it to make a determination on the same. It cannot therefore form the basis of an appeal. Reliance was placed on Japheth Mwambire Mbitha v. R [2019] eKLR. Further, that the documents were duly certified in line with Section 68 of the Evidence Act. The documents and their contents were admitted by the Appellants. 27.Further on the effect of unreserved admissions by the Appellants that PW1 sent them money, Counsel urged the Court to consider the provisions of Section 17 of the Evidence Act on ‘Admissions’ and Section 24 of the Evidence Act that creates estopel when there have been admissions. Simply put, the Appellants who admitted receiving money from PW1 are now estopped from denying receipt of the same on appeal. 28.Counsel cited Section 175 of the Evidence Act on the effect of improper admission or rejection and urged that it mattered not whether the documents showing the above transactions were rejected or admitted. Their rejection or admission would not have varied the decision of the trial Court. This is for the reason that the Appellants admitted receiving money without any reservations. Counsel cited Republic v Mohammed & another (Petition 39 of 2018) [2019] KESC 48 (KLR). 29.Counsel submitted that now that the Appellants admitted in open Court during defence that they received sums of money from PW1, without qualifying that admission, PW1’s evidence that she sent the sums to the Appellants jointly and severally for the purpose of Counts 1, 2 and 3 respectively was uncontroverted. The only controversy that remains was whether the Appellants utilized the funds for their own purpose as opposed to that of PW1. 30.It is contended that the 1st Appellant told the Court that the Complainant’s money was used to renovate her Nakuru two-bedroomed house and their own house in Rumuruti. And that the renovations for the Nakuru house cost Kshs 4,000,000/- while their Rumuruti house renovations costed Kshs 2,400,000/-. These allegations cannot hold true and were not factual as the Appellants provided no material to prove that indeed the houses had been renovated as claimed. There were no receipts whatsoever to show purchase of material for renovations. Obviously, if indeed there had been renovations, the Appellants would have bought the renovation material at a hardware. 31.Counsel urged that in her cross examination, the 1st Appellant stated that she paid for the material and labor for renovations through Mpesa. She did not bother to avail any Mpesa statements showing such transactions, if any. Further, the claim that any works had been done at PW1’s Nakuru house were rejected by PW 3 who stated that he had visited the house and noted no works had been done on it as claimed. If there were to be renovations, it would be farfetched to argue that such renovations would consume Kshs 4,000,000/- for PW1’s two bedroom house at Nakuru and 2.4Million for the Appellants’ Rumuruti house as stated by the 1st Appellant. 32.That when it comes to the Defence Exhibits produced by the Appellants in form of photos, ostensibly showing renovations to the Nakuru house, the Court will note that at no point were these photos shown to any of the prosecution witnesses during their cross-examination for them to acknowledge or deny. Counsel urged that they were brought for the first time during defence because they were an afterthought. 33.Other than being an afterthought, the photos themselves were unauthenticated. They lacked a certificate confirming who took the photos, how and when they were processed, and whether they had been retouched or otherwise. This offended the mandatory provisions of Sections 78A and 106B of the Evidence Act. 34.That even assuming for a moment that the photos were to be admitted, they had no nexus with PW1’s Nakuru house. During cross-examination, the 1st Appellant conceded that there was nothing showing the photos were for the Nakuru house. 35.Regarding Count 3, the 1st Appellant agreed that she received 9900 Dollars from PW1 when the latter came back to Kenya. At Page 44 Lines 19 and 20, it is recorded that the 1st Appellant told the Court that they went with PW1 to Nakuru and since the Nakuru house was incomplete that PW1 authorized the deposit of some of the dollars and that the rest would be utilized for construction of the Nakuru house. That she deposited 6000/- in the Equity Bank Dollar account. This was both an afterthought and a self-serving statement. There was no bank statement produced by the 1st Appellant to prove that she had deposited the 6000 Dollars as claimed. These were facts and material within the Appellants’ knowledge and possession hence the burden was on them as per Section 111 of the evidence Act. 36.Counsel submitted that indicative of fabrications was a contradiction in the 1st Appellant’s own evidence. That the 1st Appellant told the Court that she deposited 6000 Dollars in Equity dollar account No. 1013xxxxxx83, then she negated the same by stating that the 6000 Dollars were not in her account. Further contradicting herself, the 1st Appellant stated that she deposited 659 Dollars and not 6000 Dollars as initially stated. The 2nd Appellant’s defence mirrored that of the 1st Appellant, just less detailed. She alleged that the 1st Appellant was the one who did almost everything. She also had no documentation to support any of their averments about renovations. 37.It was counsel’s submission that the judgement was proper to wit, that a holistic reading of the entire Judgement of the Court shows that the Court was assessing the evidence against each Accused person with reference to the amounts received by them. Counsel cited Isaack Makoli v Republic [2020] eKLR and the case of Samwiri Senyange V R [1953] 20 EACA. 38.Counsel urged that an error in the Judgement is only incurable when it has occasioned prejudice. There was no prejudice occasioned against the 2nd Appellant by the Court for not distinguishing what count each Appellant was being convicted of. The offence was the same in all the Counts, regarding the same Complainant, with the same sentence prescribed in law. The offences in all the three counts were part of the same continuing transactions in which both Appellants were involved at different stages, hence they satisfy the Similar Transaction Test. 39.It is urged that under the Doctrine of Common Intention and for the purpose of Counts 1 and 2, both Appellants were liable. The only Count that the 2nd Appellant was free of was Count 3, but the sentence was the same either way and the offences were part of the same continuing transaction. 40.Counsel submitted that the Court considered the amounts involved in Counts 1 and 2 and the trust relationship between the parties as the aggravating factors and not the number of counts the Appellants were facing. Nowhere did the Court mention the number of Counts in sentencing as an aggravating factor. There is therefore no indication that the 2nd Appellant would have been sentenced differently for the simple reason that she was not charged with Count 3. 41.It is urged that sentencing is an exercise of discretion by the trial Court. Just like any other discretionary exercise, the Court can only interfere when there is evidence that the discretion was exercised injudiciously, or that the sentence was manifestly harsh, was illegal, or that the court considered extrinsic factors to sentence, or omitted to consider material factors. That none of these factors have been urged. 42.Counsel further submitted that it is also not mandatory that a Court must call for a probation sentence before sentencing. He cited Section 4(6) of the Probation of Offenders Act in this regard. Further, that the prayer to serve the remainder of their term through probation is not open to the Court on appeal to interfere with discretionary exercise even when it would have preferred a different sentence. Counsel cited Mokela vs. The State (135/11) [2011] ZASCA 166 and urged the court to dismiss the Appeal. Analysis & Determination 43.As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions, bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses. (See Okeno vs. Republic [1972] E.A 32). 44.I shall now recount the evidence at the trial court. 45.PW1 was Alice Nyawira Kamau who testified that she brought up the accused persons and continued to take care of their upkeep even when she relocated to the United States for work. She directed them to open a KCB account with instructions that any amount she would send under Kshs. 20,000/- was for their upkeep and anything above that was to be saved for her use upon her return. When she returned on 6th December 2020, she had 10,000 USD in her possession and she gave it to the 1st accused to deposit but the 1st accused disappeared and was unreachable. A search was conducted at her house and 2900 USD was recovered. The rest of the funds were never recovered. 46.PW2 was Samson Mutua who participated in the search at 1st Accused’s house and recovered 2900 US dollars from the house. The dollars were in her bedroom. The search had been ordered by the OCS. 47.PW3 was Snr Sgt Patrick Muriuki who testified that from January 2017 to 2019 the complainant had sent Kshs. 3,920,000 to the accused persons to be deposited in KCB Bank. A sum of 10,131.06 USD was also deposited directly by the complainant and another sum of Kshs. 2,335,000 sent to the 1st accused’s phone. Additionally, the complainant deposited a sum of 267000 in an account run by the 1st accused. He produced Sendwave statements, Equity dollar account statements, Kshs. Account statements and the KCB Bank and Mpesa statements. It was his testimony that the accused persons received a total of Kshs. 7,365,846 for the purpose of saving and securing in a bank account on behalf of the complainant. 48.On being placed on their defence both Appellants gave sworn Statements. DW1 was Alice Nyambura Muthoni (1st Appellant) who stated a brief history of the support by the complainant and stated that in 2019 she sent her 317,008 directing them to open an account which they did. She instructed them to renovate her two bedroom house in Nakuru which cost Kshs. 4,000,000/- and that another 2,4000,000/- had been used to repair the house. She admitted being given 9900 USD by the complainant and that she was directed to use the 6000 USD in her Equity account so as to complete renovations with the 2900 that was recovered. She denied disappearing or having been instructed to save the money for the complainant. 49.DW2, Pilly Wairimu Macharia, confirmed DW1’s evidence and stated that the funds were used in accordance with the complainants’ instructions. 50.DW3, Stephen Macharia, stated that the complainant paid his fees through the 1st accused who was sent money. He confirmed seeing the renovations. 51.DW4, Martha Muthoni Wanjiru, stated that the 1st accused catered for her fees and upkeep while DW5, Peter Murei was a stone mason who confirmed that there were repairs at the house and that the renovation cost 4,200,000-. 52.Having considered the record and the submissions, the germane issue for determination is whether the prosecution proved its case beyond reasonable doubt. 53.Section 283(b) of the Penal Code provides as follows;“If the thing stolen is any of the things following, that is to say:-“property which has been entrusted to the offender either alone or jointly with any other person for him to retain in safe custody or to apply, pay or deliver for any purpose or to any person the same or any part thereof or any proceeds thereof………………………………”the offender is liable to imprisonment for seven years." 54.In the case of Ong’are Moguche v Republic [2019] eKLR, the Court of Appeal laid out the following ingredients to be met for an offense of stealing by agent to be established;(i)There must be a property that is stolen within the definition and meaning of stealing as per section 268 of the Penal Code.(ii)There must be an agency relationship between an accused person and the complainant.(iii)The property stolen must have been received by the accused person in any of the circumstances enumerated under paragraphs (a) to (e) of section 283 of the Penal Code. 55.Section 268 of the Penal Code provides 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. 56.The property capable of being stolen in this regard was the money that was sent by the complainant through various means to the Appellants. The Appellants admitted that they received the sums on various occasions when they testified in court. Their only contention was as to the purpose of the funds they received. The 1st accused even admitted to having been given 9900 USD of which 2900 was retrieved from her house. Additionally, they conceded that they both opened a joint account upon the instructions of the complainant, for purposes of receiving money from the complainant. 57.I have weighed the evidence herein. The prosecution evidence as laid down by PW1 remains firm, coherent and unshaken. The evidence revealed that the money was sent to the Appellants for purposes of saving and there were other sums that were for their personal use, based on the amounts that were sent. She even marked these sums on P-Exhibit 1 which corroborated her sequence of explanations. The denial in the defence raised fell short of displacing the same. 58.The evidence on record further brings into operation Section 17 of the Evidence Act, Cap 80 Laws of Kenya, which defines an admission as a statement, oral or documentary, which suggests an inference as to any fact in issue or relevant fact and which is made by the persons specified under the Act. I am alive to the fact that an admission is not a confession (see R vs Mohammed & another (Petition 39 of 2018) (2019) (KESC 48 (KLR). 59.In the present case, both Appellants expressly admitted having received money from the complainant which she remitted from the United States of America for safe custody on her behalf. That admission was not peripheral but went to the very core of the prosecution case regarding possession and control of the complainant’s funds. Having admitted receipt of the money, the evidential burden shifted to the Appellants to give a plausible and credible account as to the manner in which the money was dealt with or expended. Their mere denial of criminal liability, without satisfactorily explaining the whereabouts of the funds entrusted to them, could not sufficiently rebut the prosecution evidence. The court is therefore entitled to treat the admissions made by the Appellants as strong evidence corroborating the prosecution case that the money had indeed been entrusted to them in the capacity alleged by the complainant. 60.The Appellants challenged the propriety of the documentary evidence produced. They contended that the documentary evidence by the Complainant was inadmissible. However, during the pendency of the case, they never objected to the production of the documents at that stage. It is my considered view that the objection raised at the appellate stage is not sustainable. The same amounts to trial by ambush. The trial court was denied the opportunity to make a finding on that objection. 61.Upon re-evaluation of the evidence, what is clear is that the two Appellants readily admitted having received substantial sums of money from the complainant while she was residing and working in United States. The central dispute was not whether the monies were received, but rather the purpose for which they were remitted. The complainant’s evidence was that the monies were entrusted to the Appellants for safe custody pending her return to Kenya, with occasional smaller sums being sent for their upkeep and personal use. The Appellants on their part contended that the monies were intended for their own use and for renovation of the complainant’s house. 62.It is true that there was no formal written agreement setting out the terms of the arrangement between the parties. However, the absence of a formal agency agreement does not, in itself, negate the existence of an agency relationship. The evidence on record demonstrates that the relationship between the complainant and the Appellants was one founded on close familial ties, trust and confidence. The complainant had taken in the Appellants following the demise of their mother and looked after them. It is therefore unsurprising that the arrangement between them was informal and largely unwritten. In many family settings, transactions of trust are seldom reduced into formal contracts. The law must therefore look at the conduct of the parties and the surrounding circumstances. 63.The conduct of the parties strongly supports the complainant’s account. Indeed, upon her return to Kenya, the complainant entrusted the 1st Appellant with a further sum of USD 10,000 for safe custody. The evidence shows that the 1st Appellant thereafter disappeared and only resurfaced after police intervention, by which time only USD 2,900 was recovered from her house. Such conduct is wholly inconsistent with a clean conscience. It instead points irresistibly to an entrusted fiduciary arrangement which was subsequently breached. 64.I appreciate that in law the Appellants had no duty to prove their innocence. It is trite law that the burden of proof in criminal proceedings rests throughout upon the prosecution and never shifts to the accused person. However, once the prosecution has established a prima facie case and the accused is placed on his defence, the court is entitled to weigh the defence tendered against the totality of the prosecution evidence. In such circumstances, it is not sufficient for an accused person merely to assert that he bears no duty to prove his innocence while offering no evidence to rebut, discredit or cast doubt upon a clear, cogent and consistent prosecution case. While the legal burden remains with the prosecution, there exists an evidential responsibility upon an accused person who elects to give evidence to address the incriminating facts placed before the court and, at the very least, raise reasonable doubt thereon. 65.This responsibility ought not to be confused with the incidence of the burden of proof. A prima facie case, as is well settled, is one upon which a reasonable tribunal properly directing itself on the law and the evidence would convict if the accused elected to remain silent. Consequently, where the prosecution evidence remains firm, coherent and unshaken, and the defence does not poke holes in the prosecution case or raise any reasonable doubt, the court is entitled to find that the prosecution has proved its case beyond reasonable doubt. 66.The defence advanced by the Appellants was, in my view, preposterous and incapable of belief. Their assertion that approximately Kshs. 4 million had been expended in renovating a modest two-bedroom house was not supported by any tangible evidence whatsoever. No receipts, invoices, labour records, building materials records, contractor testimony or any other evidence was availed to substantiate the alleged renovations. The trial court was entitled to reject that explanation as false. Even absent a bill of quantities, a court is perfectly entitled, under section 60 of the Evidence Act, to take judicial notice of matters of common notoriety and contemporary economic realities. Taking into account prevailing costs of labour and construction materials at the material time, the suggestion that such colossal sums would have been exhausted on renovation of a house of that magnitude was plainly far-fetched. 67.The Appellants maintain that the prosecution evidence on count 3 was riddled with contradictions in respect of the dollars alleged to have been stolen. Discrepancy in the amount in the charge sheet and in the amount stated by PW1 as the amount stolen are said to differ. 68.The law on the question of contradictions and inconsistencies in evvidence has now been well settled by the superior courts. In MW V Republic [2019] eKLR,the court stated that:“The law as regards the issues of contradictions and discrepancies is very crystal clear. It is trite law that inconsistencies unless satisfactorily explained would usually but not necessarily result in the evidence of a witness being rejected. 69.Similarly, in the case of Philip Nzaka Watu v Republic (2016) CR APP 29 OF 2015, the court stated as follows:“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to 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.” 70.Again the Court, in Joseph Maina Mwangi versus Republic Criminal Appeal No. 73 of 1993, held, inter alia, that: -“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies, must be guided by the wording of section 382 of the criminal procedure code viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentences” 71.Finally on the matter, a useful guide is found in the Court of Appeal decision in Erick Onyango Odeng’ v. Republic [2014] eKLR citing with approval the Uganda Court of Appeal case of Twehangane Alfred v. Uganda Criminal Appeal No. 139 of 2001, [2003] UGCA, 6 in which it was held as follows:“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution case.” 72.Given that the duty of this court as a first appellate court is to re- evaluate the evidence at trial and make its own findings based on the evidence, it is a natural role of the court in evaluating, assessing and reconciling the evidence to determine whether the said contradictions, discrepancies and/ or inconsistencies go to the root of the case. 73.I have considered the alleged inconsistencies in the prosecution case. The contradictions pointed out by the Appellants were minor, peripheral and inconsequential. As seen above, it is settled law that not every inconsistency or contradiction is sufficient to vitiate a conviction. Only material contradictions that go to the root of the prosecution case and create doubt as to the guilt of an accused person would warrant interference by an appellate court. The inconsistencies herein did not affect the substance of the prosecution evidence which consistently established receipt of the monies by the Appellants, the existence of an entrustment arrangement, and the subsequent misappropriation of the funds. 74.Having re-evaluated the evidence in its entirety, I am satisfied that the prosecution proved beyond reasonable doubt that the monies were entrusted to the Appellants to hold on behalf of the complainant and that they fraudulently converted the same to their own use. The agency in this matter may not have arisen from a formal written instrument, but it was nonetheless an agency borne out of familial trust and confidence — trust which the Appellants ultimately abused. I therefore find no basis to interfere with the conviction entered by the trial court. The conviction of the Appellants was proper and safe. The Appeal against conviction fails. 75.The next issue for consideration is the propriety of the sentence imposed. I note that the trial court proceeded to sentence the 2nd Appellant on counts 2 and 3 notwithstanding the fact that she had neither been charged nor convicted on those counts. A sentence can only lawfully flow from a specific charge and a corresponding conviction. To impose sentence upon an accused person in respect of counts for which she was not called upon to answer was a manifest error apparent on the face of the record and an illegality that cannot be allowed to stand. 76.Sentencing is a judicial function that must strictly conform to the charge sheet, the conviction entered and the law applicable to the offence proved. The sentence imposed against the 2nd Appellant in respect of counts 2 and 3 was therefore unlawful and irregular. This alone constitutes sufficient and adequate ground for this court to interfere with the sentence. 77.Accordingly, while I uphold the conviction of the 2nd Appellant in respect of count 1, I set aside the sentences imposed upon the 2nd Appellant in respect of counts 2 and 3. The sentence shall be confined only to the count upon which the 2nd Appellant was properly charged and convicted. I set aside the sentences of 3 ½ years imprisonment imposed against the 2nd Accused in respect of count 2 and 3. 78.The Appellants were sentenced to 3 ½ years on all counts to run concurrently whereas the offence attracts a sentence of up to 7 years. 79.The parameters upon which a court can interfere with the sentence meted out by a trial court were stated by the Court of Appeal in Kipkoech Kogo v R. Eldoret Criminal Appeal No.253 of 2003 thus;“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka v R. (1989 KLR 306)” 80.A Similar position was stated by the court of appeal in Bernard Kimani Gacheru vs. Republic [2002] eKLR where it was stated 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 states is shown to exist.” 81.The trial court expressed itself clearly on its consideration of the mitigation by the Appellants and the aggravating factors. The court did not consider irrelevant factors. Neither did it fail to consider a relevant factor. The court did not act on a wrong principle. The sentence was not harsh or excessive. Indeed, given the sentence provided in law, the sentence was lenient. 82.The Appellants have not shown that there is any reason for the court to interfere with the exercise of discretion of the trial court. 83.In the circumstances, the sentences are upheld save for the moderation alluded to above to the extent that;1)The 1st Appellant’s sentences in respect of count’s 1,2,and 3 are upheld.2)The 2nd Appellant’s Sentence is set aside in respect of Count 2 and 3 and substituted thereof with a sentence of 3 ½ years imprisonment in respect of Count 1 to run from the date of sentence at the trial court. 84.With the result that the appeal lacks merit and is dismissed in its entirety save for the correction of the error in the sentencing of the 2nd Appellant. DATED SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF MAY 2026A.K. NDUNG’UJUDGE