https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10675

Kilui v Republic (Criminal Appeal E014 of 2026) [2026] KEHC 10675 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEHC 10675 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E014 of 2026 DR Kavedza, J July 15, 2026 Between Peter Kaloki Kilui Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered on 27th January 2026 at Kibera Chief Magistrate’s Court Criminal Case No. E1750 Republic vs Peter Kaloki Kilui) Judgment 1.The appellant was charged and after full trial convicted by the Subordinate Court on offence of stealing by servant contrary to section 281 of the Penal Code. The particulars of the offence are on the diverse dates between the months of April 2020 and January 2022 at Jibuco Kenya Limited stole Kshs. 13,433,910 which came to his possession by virtue of his employment. He was sentenced to pay a fine of Kshs. 500,000 in default to serve 12 months imprisonment. 2.Being aggrieved, he filed an appeal challenging his conviction and sentence. In his petition of appeal, the appellant challenged the totality of the prosecution’s evidence against which he was convicted. He urged the court to quash his conviction and set aside the sentence imposed. 3.This is the first appellate court and in Okeno v. R [1972] EA 32, the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence which was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify. 4.The prosecution's case was that PW1, Galen Welsch, a Director of JibuCo Kenya Limited, testified that the appellant was employed as the company's accountant and was authorised to operate the company's M-Pesa till numbers. In September 2021, the company discovered financial irregularities after suppliers demanded payment for invoices which the company's records showed had already been settled. An internal audit established that the appellant had transferred Kshs. 13,433,910 from the company's M-Pesa till accounts to his personal mobile money account without authority. 5.PW2, Maureen Adhiambo Hariego, the Country Director and the appellant's immediate supervisor, testified that in October 2021, while reviewing the company's QuickBooks records, she discovered that transactions from 2020 had been posted in 2021, raising concerns of financial impropriety. Upon reconciling the accounting records with the company's bank and M-Pesa statements, she identified discrepancies and reported the matter to the Chief Executive Officer. S 6.he testified that the appellant, as Finance Manager, was the only officer authorised to transfer funds from the company's M-Pesa till numbers to the company's bank account. Instead, he transferred substantial sums to his personal mobile money account contrary to company procedures. 7.PW2 identified the impugned transactions from the M-Pesa statements and stated that, after the irregular transfers were detected, the company froze the till numbers and sought an explanation from the appellant, which was not forthcoming. She maintained that the appellant's authority was strictly limited to transferring funds from the company tills to the company's bank account and did not extend to transferring the funds to his personal account. 8.During cross-examination, PW2 confirmed that she was not an accountant by profession and that some JibuCo branches operated independently, including the Syokimau branch, which had been franchised in 2020. She acknowledged that supplier payments required her approval and that the appellant was authorised to operate the company's till numbers and transfer funds to the company's bank account. 9.She further admitted that she had not produced the till account opening documents, monthly reconciliation reports, documents supporting the QuickBooks entries or the summons allegedly issued to the appellant. She also conceded that the M-Pesa statements covered a period beyond the appellant's resignation and that he continued assisting the company for some time after leaving employment. She nevertheless maintained that the appellant continued transferring company funds to his personal mobile account despite no authority to do so. 10.PW3, PC Hudson Nyongesa, the investigating officer attached to DCI Langata, testified that he received a complaint that the appellant had diverted company funds to his personal mobile money account. He obtained court orders to investigate the relevant M-Pesa till accounts and the appellant's mobile money account. He produced the company's registration documents, employment records, change of nominee forms, M-Pesa statements, email correspondence and certificates under section 106B of the Evidence Act. His investigations established that between 1st January 2020 and 31 January 2022, Kshs. 13,433,910 had been transferred from the company's till accounts to the appellant's personal mobile number. 11.PW3 testified that upon concluding the investigations, he forwarded the file to the Director of Public Prosecutions, leading to the appellant's prosecution. During cross-examination, he acknowledged that although he had obtained the till account opening forms, he did not produce them in evidence and instead relied on the change of nominee forms. 12.He further stated that he participated in computing the alleged loss from the M-Pesa statements and confirmed that the appellant was the designated officer authorised to operate the company's till accounts. He conceded, however, that he had not been provided with documents expressly defining the scope of the appellant's mandate and that the alleged repayment agreement was unsigned. On re-examination, he maintained that the appellant was authorised to operate the till numbers in his capacity as the company's accountant and custodian of the relevant records. 13.In his sworn defence, the appellant denied stealing the company's funds. He testified that he was employed as an accountant from 19th December 2019 until 30th November 2021 and resigned voluntarily after serving the requisite notice, remaining briefly to facilitate a proper handover. 14.He stated that his responsibilities included financial management, reconciliations, tax compliance and processing payments that had already been approved by management. He maintained that he was duly authorised to operate the company's M-Pesa till numbers and that some of the tills were linked to his personal mobile number with the company's knowledge, particularly during the COVID-19 period. He further explained that one of the disputed till numbers had been transferred to a franchisee while retaining the same payment number for operational continuity. He denied unlawfully appropriating any company funds and maintained that all the impugned transactions were undertaken within the scope of his authorised duties. 15.After a full trial, the appellant was convicted and sentenced accordingly. 16.The appeal was canvassed by way of written submissions. I have carefully considered the respective submissions together with the record of appeal. It is unnecessary to reproduce them in detail. 17.The appellant was convicted of stealing by servant contrary to sections 268 and 281 of the Penal Code. Section 268(1) of the Penal Code defines stealing 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."Section 281 of the Penal Code provides:“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." 18.To sustain a conviction under section 281 of the Penal Code, the prosecution was required to prove beyond reasonable doubt that: first, the appellant was a servant or employee of the complainant; secondly, the property belonged to the employer or came into the appellant's possession by virtue of his employment; thirdly, the appellant fraudulently appropriated or converted the property without claim of right; and lastly, that the appropriation was accompanied by an intention to permanently deprive the employer of the property. 19.On the first ingredient, PW1 and PW2 testified that the appellant served as the company's accountant and was responsible for managing its financial transactions. PW3 produced the appellant's employment records during the investigations, while the appellant himself admitted in his sworn defence that he was employed by the company from 19th December 2019 until 30th November 2021. His employment and position were therefore not contested. I am satisfied that the prosecution proved beyond reasonable doubt that the appellant was a servant of the complainant within the meaning of section 281 of the Penal Code. 20.As regards the second ingredient, PW1 and PW2 testified that the appellant was authorised to operate those till numbers solely for the purpose of transferring funds to the company's bank account. The M-Pesa statements and electronic records produced by PW3, together with the certificates under section 106B of the Evidence Act, traced the movement of funds from the company till accounts to the appellant's personal mobile money account. 21.The appellant admitted that he was the designated officer operating the till numbers. The funds therefore belonged to the complainant and came into the appellant's possession solely by virtue of his employment. The evidence established that the M-Pesa till numbers belonged to JibuCo Kenya Limited and were used to receive payments from customers. This ingredient was proved beyond reasonable doubt. 22.The third ingredient concerns whether the appellant fraudulently appropriated the funds without any lawful claim of right. The prosecution adduced evidence that between 1st January 2020 and 31 January 2022, the appellant transferred Kshs. 13,433,910 from the company's till accounts directly to his personal mobile money account. PW1 testified that company policy did not permit transfers from the till accounts to an employee's personal account and that all legitimate payments, including salaries and reimbursements, were processed through authorised channels. 23.PW2 similarly confirmed that the appellant's mandate was limited to transferring funds from the tills to the company's bank account. Although the appellant asserted that some till numbers were linked to his personal mobile number with the company's knowledge, he did not produce any documentary authority permitting him to divert company funds to his personal account or demonstrating that the impugned transfers were authorised. The evidence of the prosecution remained consistent, credible and was supported by the documentary records. I therefore find that the prosecution proved beyond reasonable doubt that the appellant fraudulently converted the complainant's funds to his own use without any lawful claim of right. 24.The final ingredient is whether the appellant intended permanently to deprive the complainant of its property. Intention is ordinarily inferred from the conduct of the accused and the surrounding circumstances. The evidence established that substantial sums belonging to the company were transferred into the appellant's personal mobile money account over an extended period. The appellant offered no satisfactory explanation accounting for those transfers or demonstrating that the funds were subsequently remitted to the company. 25.The financial loss only came to light following an internal audit prompted by unpaid supplier invoices. The appellant's conduct in diverting the funds to his personal account, without authority and without accounting for them, is inconsistent with an innocent or authorised transaction. The only reasonable inference arising from the evidence is that he intended permanently to deprive the complainant of its money. Accordingly, this ingredient was also proved beyond reasonable doubt. 26.Having independently re-evaluated the evidence on record, as this court is required to do on a first appeal, I am satisfied that the prosecution proved each of the essential ingredients of the offence of stealing by servant contrary to 281 of the Penal Code beyond reasonable doubt. The conviction entered by the trial court was sound and supported by both the oral and documentary evidence, and I find no basis for interfering with it. 27.On sentence, the appellant was fined Kshs. 500,000, in default to serve one year's imprisonment. The record shows that the trial court considered the appellant's mitigation, his status as a first offender and the relevant sentencing principles before exercising its discretion. The sentence imposed was lawful and neither harsh nor excessive in the circumstances. 28.In the result, the appeal lacks merit. Both the conviction and sentence are upheld, and the appeal is hereby dismissed in its entirety.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 15TH DAY OF JULY 2026__________________D. KAVEDZAJUDGEIn the presence of:Appellant PresentMutuma for the RespondentKarimi Court Assistant