[2022] KEHC 13820 (KLR)

Ngumi v Republic (Criminal Appeal 227 of 2019) [2022] KEHC 13820 (KLR) (Crim) (4 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13820 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 227 of 2019

DO Ogembo, J

October 4, 2022

Between

John Samuel Ngumi

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence of the Hon. M. Nanzushi, PM, in Milimani Chief Magistrate’s court Criminal Case Number 1779 of 2017, dated 23. 9.2019)

Judgment

1. The appellant herein, John Samwel Ngumi was charged before the subordinate court with upto 10 counts as follows:-Count Istealing contrary to section 268(1) as read with section 275 of the Penal Code. that on September 14, 2017, at KCB, Bank, Eastleigh Branch, he stole Kshs 200,000, the property of the said KCB.Count IIstealing contrary to section 268(1) as read with section 275 of the penal code. that on September 19, 2017, at KCB, Eastleigh branch, he stole Kshs 800,000/= the property of the said Kenya Commercial Bank.Count IIIStealing contrary to section 268(1) as read with section 275 of the Penal Code. that on September 27, 2017 at KCB, Eastleign branch, he stole Kshs 420,000/= the property of the said Kenya Commercial Bank.Count IVStealing contrary to section 268(1) as read with section 275 of the Penal Code. that on October 9, 2017 at KCB Eastleign branch, he stole Kshs 450,000/= the property of the said Kenya Commercial bank.Count VAttempted stealing contrary to section 389 as read with section 275 of the Penal Code. That on October 19, 2017 at KCB Eastleign branch, he attempted to steal Kshs 420,000/= the property of the said Kenya Commercial bank.Count VIForgery contrary to section 345 as read with section 349 of the Penal Code. That on or before September 14, 2017 at unknown place within the republic of Kenya, with Intent to defraud, jointly with others not before the court, forged a certain document namely National Identity card No xxxx, serial No xxxx in the name of James Mishek Kinyua Njeru, purporting it to be a genuine identity card issued by the National registration Bureau.Count VIIPersonation contrary to section 382(1) as read with section 36 of the Penal Code. That between September 27, 2017 and October 9, 2017, at KCB, Eastleigh branch, with intent to deceive, he falsely presented himself to Fawzia Hassan Abukar, a teller at the said bank to be James Misheck Kinyua Njeru, a holder of account No xxxx, a fact he knew to be false.Count VIIIPersonation contrary to section 382(1) as read with section 36 of the Penal Code. That on September 14, 2017, at KCB, Eastleigh branch, with intent to deceive, he falsely presented himself to Mohamed Osman Mohamed, a teller at the said bank to be James Misheck Kinyua Njeru, a holder of account No xxxx, a fact he knew to be false.Count IXPersonation contrary to section 382(1) as read with section 36 of the Penal Code. That on September 19, 2017, at KCB, Eastleigh branch, with intent to deceive, he falsely presented himself to John Mwangi Wambugu, a teller at the said bank to be James Misheck Kinyua Njeru, a holder of account No xxxx, a fact he knew to be false.Count XUttering a false document contrary to section 353 of the Penal Code. That between September 14, 2017 and October 14, 2017 at KCB, Eastleigh branch, with intent to defraud, he knowingly and fraudulently uttered a certain false document, namely, National Identity Card No xxxx, serial number xxxx in the name of James Misheck Kinyua Njeru and withdrew Kshs 1,870,000/= from account No xxxx,held at the said Kenya Commercial Bank.

2. The case of the appellant went through full hearing. He was eventually convicted and sentenced to pay fines and in default to serve various prison terms. He has appealed against the said conviction and sentences. He has listed the following grounds of appeal filed herein on November 14, 2019. 1.That the learned trial magistrate erred in law and in fact in failing to observe that the alleged document reflecting the portrait in the actual account owner produced to the bank teller reflect did not reflect the appellant physical appearance thus defeating logic how the money alleged changed hands without detection.2. That the learned trial magistrate failed to consider the fact that the prosecution had adduced insufficient and uncorroborated evidence which was incapable of sustaining a conviction.3. That the learned trial magistrate erred in both law and fact by acting upon unsubstantiated expert’s opinion produced by a non-expert witness.4. That the learned trial magistrate erred in both law and fact by failing to observe that essential witnesses were not available to shed light to the court.5. That the learned trial magistrate erred in both law and fact by acting upon circumstantial evidence which did not irresistibly point to appellants’ involvement to the heinous crime.6. That the learned trial magistrate erred in both law and fact by failing to give the appellant adequate time and facility to prepare his defence.

3. The appellant has prayed that both the conviction and sentence be set aside. This appeal is opposed by the respondent, who has urged the court to dismiss this appeal.

4. This appeal was canvassed by way of written submissions. This was by consent of the parties. Both parties accordingly complied and filed their set of submissions.

5. In the submissions filed by the appellant, the appellant has filed an amended grounds of appeal. Of course this was filed without leave of court having been first sought and granted. I will however consider the submissions as filed.

6. It was submitted by the appellant that the duty of the appellate court is to review the evidence upon which the order appealed against is founded and to come to its own conclusion. That the trial lacked fair hearing and led to an infringement of the rights of the appellant under Article 50 of theConstitution. That he was never informed of his constitutional right and that he had been detailed in police custody for 4 days and not 24 hours as is required. Relying on Evans Wanjala Siibi Versus Republic (Citation not given), he submitted that the charges were not even explained to him.

7. The appellant also submitted that the offences of stealing were not supported by any evidence. That a charge sheet is not disclosed by evidence is defective. (Yongo Versus Republic (1983)KLR, 319). The appellant, further submitted that under section 268(5) of the penal Code, a thing cannot be taken unless the accused person has moved it or caused it to be moved. That evidence on record shows that the appellant entered the bank to inquire for a loan and not to steal money. He also questioned the fact that the trial court relied absolutely on the bank withdrawal slips contrary to the provisions of section 37 of the Evidence Act (Cap 80), that such statements shall not alone be sufficient evidence to charge any person with liability.

8. The appellant also relied on the case of Republic Versus Elizabeth Anyango Ojwang (2018)eKLR where Wakiaga J held:'In a case depending largely on circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of innocence of the accused. When the important link goes the chain of circumstances get snapped and the other circumstances cannot in any manner establish the guilt of the accused beyond any reasonable doubt.'

9. That in this case, the prosecution failed to directly connect the appellant with the alleged incident as they failed to avail any lost or recovered money. That this evidence was necessary in connecting the appellant with the crime.

10. Further, submitting on sections 70, 71, 72, 76, and 77 of the Evidence Act, the appellant submitted that the absence of a handwriting expert in this case brings the conviction to a nullity. And on the issue of identification of the appellant, the appellant relied on the case of Abdalla Bin Wendo Versus Republic (1953)20 EACA 166, and Samwel Gichuru Matu Versus Republic, Criminal Appeal No 88 of 2000 V/R, that while a conviction may be based on the evidence of identification by witnesses, the court must be satisfied that the conditions under which identification took place were favourable and eliminated the possibility of mistaken identity. That in this case, whereas the offences took place at the bank during the day, the witnesses did not give any special identifying features and no identification parades were held. He referred to the case of Karanja and Another Versus Republic (2004)2 KLR, 140 and Cleophas Otieno Wamunga Versus Republic, Criminal Appeal No 20 of 1989 (Kisumu), on the dangers of replying on visual identification.

11. On proof, the appellant submitted that proof must be beyond any reasonable doubt. He maintained that he offered a cogent defence which created a doubt in the prosecution’s case. That his defence of alibi raises such doubt in the prosecution’s case.

12. On the issue of sentence, it was submitted that the sentences meted out for counts I to III and VII to X are ambiguous and invalid. That the sentence has been interpreted adversely by the prisons to the detriment of the appellant.

13. The appellant also challenged that the arresting officer was not summoned and thereby rendering the case of the prosecution prejudicial. He relied on Kambo Versus Republic (2005)KLR, it was further submitted that the case of the prosecution lacked corroboration as the figures mentioned do not match with the amount mentioned on the charge sheet i.e 1,850,880/= and 1,870,000/=. In his submissions, the bank tellers knew the person they issued the money to, not the appellant, and the appellant ought to be acquitted.

14. Lastly, replying on John Kariuki, Gikonyo Versus republic (2019)eKLR, the appellant submitted against his case being referred for retrial as this could only enable the prosecution to fill in the gaps in its evidence.

15. The Respondent (Prosecution), on its part, submitted that under section 143 of Evidence Act,'No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.'

16. It was submitted that the prosecution witnesses properly identified the appellant and that the charges were proved beyond any reasonable doubt. That expert witnesses also testified. Even the finger print officer confirmed that the print on the forged document belonged to the appellant. That the appellant had no right or authority to withdraw funds from the account of deceased husband of PW4. It was maintained that the convictions were safe.

17. Counsel relied on the known case ofBernard Kimani Gacheru Versus Republic (2002)eKLR on the issue of sentence and Okeno Versus Republic (1972)EA32 on the jurisdiction of the 1st appellant court. It was pleaded that this appeal be dismissed.

18. I have considered the 2 sets of submissions. As rightly submitted, the decision in Okeno Versus Republic (1972)EA 32, aptly defines the jurisdiction of the 1st appellate court, thus;'An appellant on a 1st appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court’s own decision on evidence. The 1st appellate court must itself weigh the conflicting evidence and draw its own conclusion. It is not the function of a 1st appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusion, it must make its own finding and conclusion; it must make its own findings and draw its own conclusions. in doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.'

19. It is therefore imperative that this court do evaluate fully the evidence as was submitted before the trial so as to enable the court make its findings.

20. From the proceedings of the trial court, the evidence of the prosecution commenced with the testimony of PW1, Mohamed Osman Mohamed. His evidence was that he is a teller at the KCB, Eastleigh branch. That on September 14, 2018, he was teller No 3 when a customer came and requested to withdraw Ksh 200,000/=. He asked for his ID card. He was James Meshack Kinyua Njeru of account No xxxx. The witness went on to confirm the ID number, physical appearance and signature. He went on to pay the customer. In court, he identified the withdrawal slip (MFI – 1) copy of the ID card (MFI-2). That it was later discovered that the owner of the account who lived in Embu was deceased. He identified the death certificate (MFI-3). In further testimony, the witness went on that the accused had insisted that the account belonged to him, only to change and state that he had collected the card form the roadside and that the account did not belong to him. He confirmed that the man is the appellant (accused before trial court.

21. PW2 John Mwangi Wambugu, also a teller at the same branch, recalled that on September 19, 2017 a customer requested to make a withdrawal, presenting ID card No xxxx for James Kinyua Njeru, for a sum of Ksh 800,000/=. He confirmed the account on the system and signed the deposit slip. That the accused told him he was a retired teacher and was putting up a building. He proceeded to pay him the sum of Ksh 800,000/=. He identified the relevant withdrawal form (MFI-5). He went on that on October 19, 2017, the accused attempted to withdraw Ksh 420,000/= but was stopped and arrested. The witness confirm that it was the appellant (accused) who withdrew the money.

22. And PW3 Fauzia Hassan, also a teller at the branch, recalled that on September 27, 2017, Mr James Meshack came with ID card No xxxx and requested to withdraw slip Kshs 420,000/=. He presented withdrawal slip dated September 27, 2017 (MFI-6). And that on October 9, 2017, he again came to withdraw Ksh 450,000/= (MFI-7). The witness only later learnt that the appellant was a fraudster and not the owner of the account. She did not detect any anomalies during the transactions. She identified the appellant as the one who made the withdrawals.

23. The next witness was Marjoree Njeru (PW4), a farmer at Embu. Her evidence was that she was approached by one Mr Mureithi, the manager of KCB Embu branch. That Mureithi asked her if she was the wife of Meshack Kinyua and she answered in the affirmative. Her testimony was that her late husband had an account with KCB, Embu branch No xxxx, and that her husband died in 2016. That she was told someone had withdrawn money from the account in 2017. She did not know the person who was withdrawing money from the account. And PW5, Ali Wako, manager of operations, KCB, Eastleigh branch, recalled that on September 14, 2017, the accused/appellant withdrew Ksh 200,000/= from their branch. On September 19, 2017, he again withdrew Ksh 800,000/=. That the cashier then told him that he suspected that the accused was not the real account holder. He proceeded to interrogate the accused. He noticed that his face was not similar to that of the account holder, but nonetheless approved the withdrawal. That on September 27, 2017, again the appellant withdrew Ksh 400,000/= served by Fauzia Hassan. But that when he came again on October 9, 2017 to withdraw Kshs 450,000/= they became suspicious of the accused who was then arrested by police.

24. On cross examination, the witness went on that appellant had an ID card with the correct number, but which was fake.

25. PW6, Bernard Wanjau, a finger prints officer at the National Registration Bureau, testified that on February 9, 2018, he received a letter from the Banking Fraud Investigations Unit on which was attached a form P20 with finger print impression. He was requested to make an identification. He was also given an ID card for identifation and authenticity of the same. That on examination, he found out that the finder belongs to John Samwel Ngumi of ID card Number xxxx. It was card number xxxx which was held by James MK Njeru according to the records. In his evidence, the card was false and not issued by his organization. He produced the documents as exhibits 8, 9, 10, 11, 11A and 12. Also the ID card as Exh 2. The appellant had no questions to this witness.

26. PW4 was recalled and her short testimony was that her husband’s ID card had not been lost.

27. PW7 Ali Tunga a KCB internal investigator in the Forensics Department, recalled that on October 19, 2017, while in the office, he received a call from a branch manager called Jollo that they had detained a suspect who had attempted to transact on a customer’s account. That the accused No xxxx, domiciled in Embu was of James Meshack Njeru. That 4 previous transactions had been carried out on the account. That on making inquiries, he learnt that the owner of the account was deceased. He obtained a statement from the wife of the deceased (Exh 13).

28. On being asked, he answered that he arrested the appellant while in possession of a bank card with the account details and an ID card bearing the names of the deceased. That the appellant had been paid 4 times before he was arrested and that the appellant did not have an account with the bank.

29. PW8 Inspector Caroli Omuyo of the Banking Fraud Investigations Unit. He investigated the case. In his analysis, the appellant stole Kshs 1,870,000/=. He produced all the exhibits.

30. The appellant chose to give a sworn defence in which he stated that on October 19, 2017 at about 11:30am, he had been walking home to Kairiobangi when he saw a bank which had advertised to give business loans. And that when he entered to inquire, he was told to wait outside. That as he waited someone tapped him on the back before leading him to the office of manager. He was searched and asked for his ID. That he was then charged in court. He confirmed on cross-examination that his name is John Samwel Ngumi. He otherwise denied signing any KCB slips, nor withdrawing any money.

31. I have considered the evidence as narrated above. In my view, the facts of this case are fairly straight forward and are uncontroverted. That on various dates as charged, the appellant presented himself to PW1, PW2 and PW3, all cashiers at the KCB, Eastleigh branch. That on each occasion, he presented him as James Mishek Kinyua Njeru, holder of account no xxxx, domiciled in Embu. That on presenting filled withdrawal slips, he was paid, Kshs 200,000/=, Kshs 800,000/=, Kshs 420,000/= and Kshs 450,000/= respectively. That all this time the appellant presented an identification card in the name of the account holder, who on investigations was discovered to be deceased. Further investigations showed that the identity card the appellant presented to the back to facilitate the withdrawals was forged. In effect therefore, the uncontroverted case of the prosecution was that the appellant personated the deceased and using the forged identity card, withdrew the various sums of money noted on the charge sheet from the account of the deceased.

32. It was further an uncontroverted evidence of the prosecution that the appellant was in fact caught inside the bank when he presented another withdrawal slip of Kshs 420,000/= from the same deceased’s account. This was now the 5th occasion the appellant was in the bank seeking withdrawal from the same account. And were it not for PW3 who now suspected the appellant and reported his suspicion to his boss (PW5), the appellant would probably have successfully made the withdrawal.

33. PW4 Marjoree Njeru, gave evidence that her husband, the owner of this account passed on in 2016 and that his ID card was not lost. She did not know the appellant. This evidence tallies with that of PW6, that in fact the ID card used by the appellant was forged and had not been issued by the National Registration Bureau. PW6, further gave material evidence that on examination of the fingerprints impressions on the ID card presented by the appellant, it was discovered that the same were on John Samwel Ngumi, not the deceased. The appellant has in fact admitted in his defence that he is John Samwel Ngumi, not James Michek Kinyua Njeru.

34. From the evidence of the various prosecution witnesses (PW1, 2, 3, 5), and even the defence, these transactions were conducted during the day at the bank. As bank tellers, PW1, 2 and 3 worked in direct contact with the appellant face to face and closely. For PW3, it was at least on 2 occasions, September 27, 2017 and October 9, 2017. I am in the circumstances convinced that this was a case of recognition and not visual identification as claimed in the submissions of the appellant in any case, the appellant was caught and arrested inside the bank as he attempted to make a 5th withdrawal. I also do not agree that it was necessary in this case to conduct an identification parade.

35. The appellant in his defence, denied the charges and testified that he had gone to the bank to inquire about a loan only for him to be falsely arrested and charged in court. With respect, this defence is unbelievable. I do not see or discern a possibility of someone being arrested inside a bank in such a manner as claimed by the appellant. He must have been arrested after he presented himself for the intended 5th withdrawal. The defence of the appellant also was a mere denial when he stated that he never signed any withdrawal slips when in fact he was arrested as he presented one such slip. The appellant, otherwise, conceded in his defence that his name is John Samwel Ngumi, same as determined by PW6 upon examination of the fingerprints on the forged identity card.

36. I sincerely do not find any merit in the defence of the appellant and I dismiss same. I am in the circumstances convinced that the prosecution discharged its burden and proved all the counts against the appellant beyond any reasonable doubt as required by the law and as guided by the authority of Woolmington Versus DPP (1935)AC 462. I accordingly dismiss the defence of the appellant.

37. On sentence, I have considered the sentence proceedings of the court. It is clear in passing the sentence, the learned trial magistrate did not specifically indicate the sentence on each count or whether the sentences would run concurrently or consecutively. This, the court ought to have done. There is also no sentence on court X(10).

38. Section 354 of the Criminal Procedure Code spells out the powers of this court as an appellate court. At section 354(3)(ii) this court may;'Alter the finding, maintain the sentence or with or without altering the findings, reduce or increase the sentence.'At subsection 6;'Nothing in this cub-section (11) shall empower the High Court to impose a greater sentence than might have been imposed by the court tried the case.'

39. In the circumstances, and to correct the error in the sentence, I hereby revise the sentence herein. The appellant is sentenced as follows;-Count IFined Ksh 25,000/= or in default to serve 6 months imprisonmentCount IIFined Kshs 25,000/= or in default to serve 6 months imprisonment.Count IIIFined Kshs 25,000/= or in default to serve 6 months imprisonment.Count IVFined Kshs 25,000/= or in default to serve 6 months imprisonment.Count VFined Kshs 25,000/= or in default to serve 6 months imprisonment.Count VIFined Kshs 25,000/= or in default to serve 6 months imprisonment.Count VIIFined Kshs 30,000/= or in default to serve 6 months imprisonment.Count VIIIFined Kshs 30,000/= or in default to serve 6 months imprisonment.Count IXFined Kshs 30,000/= or in default to serve 6 months imprisonment.Count XFined Kshs 30,000/= or in default to serve 6 months imprisonment.

40. These sentenced shall run consecutively from the date of sentence on September 23, 2019. It is so ordered.

D. O. OGEMBOJUDGE4TH OCTOBER 2022Court:Judgment read out in (online) in the presence of the appellant (Kamiti Medium), and Mr. Kiragu for the stateD. O. OGEMBOJUDGE4th OCTOBER 2022. Mr. Kiragu:We pray for certified copy.Court:Certified copy of the judgment to be prepared and supplied.D. O. OGEMBOJUDGE4th OCTOBER 2022. ‘O’FROM: HIGH COURT APPELLATE SIDETO: @G.K. NAIROBI REMAND AND ALLOCATION MAXIMUM PRISONINFO: PHQ.27TH JULY 2022HCCR REVISION. NO. E418 OF 2021HIGH COURT CRIMINAL REVISION NO. E418 OF 2021 ORIGINATING FROM THE CHIEF MAGISTRATE’S COURT AT MILIMANI CRIMINAL CASE NO. 1144 OF 2019. APPLICANT NBA1752/2021/LS ALI MUTANO LIBAN AND NBA/1754/2021/LS ABNASIR WALDE HAILECOUNT I FINED KSH.25,000/= OR IN DEFAULT TO SERVE 6 MONTHS IMPRISONMENTCOUNT II FINED KSHS.25,000/= OR IN DEFAULT TO SERVE 6 MONTHS IMPRISONMENT.COUNT III FINED KSHS.25,000/= OR IN DEFAULT TO SERVE 6 MONTHS IMPRISONMENT.COUNT IV FINED KSHS.25,000/= OR IN DEFAULT TO SERVE 6 MONTHS IMPRISONMENT.COUNT V FINED KSHS.25,000/= OR IN DEFAULT TO SERVE 6 MONTHS IMPRISONMENT.COUNT VI FINED KSHS.25,000/= OR IN DEFAULT TO SERVE 6 MONTHS IMPRISONMENT.COUNT VII FINED KSHS.30,000/= OR IN DEFAULT TO SERVE 6 MONTHS IMPRISONMENT.COUNT VIII FINED KSHS.30,000/= OR IN DEFAULT TO SERVE 6 MONTHS IMPRISONMENT.COUNT IX FINED KSHS.30,000/= OR IN DEFAULT TO SERVE 6 MONTHS IMPRISONMENT.COUNT X FINED KSHS.30,000/= OR IN DEFAULT TO SERVE 6 MONTHS IMPRISONMENT.THESE SENTENCED SHALL RUN CONSECUTIVELY FROM THE DATE OF SENTENCE ON 23. 9. 2019. IT IS SO ORDERED.DEPUTY REGISTRAR