[2003] KEHC 368 (KLR)
The court found that the appellant, as a bank manager, transferred the funds in the course of his official duties and there was no evidence to prove that he acted fraudulently or conspired with the bank officials at Barclays Bank Meru. The staff at the Meru branch were either negligent or acted fraudulently in...
Source-derived case information.
- Citation
- [2003] KEHC 368 (KLR)
- Parties
- Appellant: Paul Mutunga Musau; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 373 of 2001
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be set at liberty
- Judges
- JK Mitey
- Legal Topics
- Stealing, Forgery, Elements of Offence, Banking Fraud
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Mutunga Musau
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was properly convicted of stealing under section 275 of the Penal Code.
- 2 Whether the evidence established the elements of stealing as defined in section 268 of the Penal Code.
- 3 Whether the appellant's actions constituted theft or were within the scope of his duties as a bank manager.
Ratio Decidendi
The court found that the appellant, as a bank manager, transferred the funds in the course of his official duties and there was no evidence to prove that he acted fraudulently or conspired with the bank officials at Barclays Bank Meru. The staff at the Meru branch were either negligent or acted fraudulently in paying out the money, but this did not implicate the appellant in theft. The prosecution failed to prove the essential elements of stealing as defined under section 268 of the Penal Code. Consequently, the conviction was unsafe and could not be sustained.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be set at liberty
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CRIMINAL APPEAL NO. 373 OF 2001
(ORG CR. C. 305/01 (KRT
PAUL MUTUNGA MUSAU ………………………….. APPELLANT
VERSUS
REPUBLIC …………………………………………….. RESPONDENT
JUDGMENT
The Appellant was charged in the Resident Magistrate’s court Karatina in two counts of forgery c/s 349 of the Penal Code and in two counts of stealing c/s 275 of the penal code.
He was acquitted on the charges of forgery and convicted on the charges of stealing. He was sentenced to serve 2 years imprisonment in each count. The sentences are to run concurrently. This appeal is against both conviction and sentence. The forgery charges related to contain transfer of money letters purportedly written and signed by the Jua Kali infrastructure Project signatories. The first letter dated 24/5/99 authorised the appellant to transfer Kshs.600,000/- to Meru Branch of Barclays Bank and to be paid to one BEN JERMYN MUROKIH in identification. The second letter 2/6/99 authorised the appellant to transfer Kshs.350,000/- to the same destination and to the same person.
It is apparent from the proceedings that the members of staff at Barclays Bank Meru did not follow the instructions regarding the paying out of the money. In his judgment the learned trial magistrate found that the members of staff who paid out the money at Barclays Bank Meru were either negligent or acted fraudulently. If the bank officials did not follow the instructions given by the appellant how can it be ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,that the appellant stole the money unless it is proved that there was a conspiracy between the appellant and the bank officials in Meru? It is clear that the appellant transferred the money in the course of his duties as a Bank Manager.
Stealing is defined in S. 268 of the penal code was not proved. The learned state counsel conceded the appeal. I allow the appeal. I quash the conviction and set aside the sentence. The appellant be set at liberty.
Dated this 9th day of January 2003.
J.K. MITEY
JUDGE