https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11823

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **HIGH COURT CRIMINAL APPEAL NO. E003 OF 2024** **PETER MUCHANGI NJUE ......................................................................APPELLANT** **VERSUS** **ODPP ................................................................................................RESPONDENT** **JUDGMENT** This is an appeal from the judgment by Hon. Z. Abdul – Principal Magistrate on 19th October, 2023 in Milimani Criminal Case No. 2069 of 2019. The appellant was charged with the offence of theft under section 268(1) as read with section 275 of the penal code and an alternative charge of handling stolen goods under section 322 (1)(2) of the penal code. The particulars being that on the 19th day of January, 2019 at unknown place in the Republic of Kenya the appellant stole Ksh. 20,000,000 being the property of family bank limited using pre-paid card No. 4592530700199985. He was also charged with the offence of unauthorized access to a computer system under section 14(1) of the computer misuse and cybercrimes Act 2018. He was acquitted of the primary charges and convicted on the alternative charge of handling stolen goods based on circumstantial evidence primarily that the funds were credited to the accused ATM card. This is the first appellate court. Being such, it has the duty to examine afresh the evidence on record so as to arrive at its own independent conclusion but bearing in mind that unlike the trial court, it did not have the opportunity to observe the demeanour of the witnesses. Republic vs. Okello 1972 EALR. **Brief Facts** In the month of January, 2019 the appellant was issued with a pre-paid card No. 4592530100199985 by PW1 *Lovisa Achingo Otuoma* at family bank KTDA branch. On 19th January, 2019 this card was discovered to have transacted Ksh. 20,000,000 (twenty million) The same card was found to have made withdrawals of Ksh. 9,891,160 leaving a balance of Ksh. 10,108,840. The withdrawals done at ATMs were for Ksh. 762,160 and those made at point of sale machines were in the sum of Ksh. 9,129,000. PW3 *Musili Fredrick* is a chief inspector of police attached at DCI Forensic Laboratory. He is a certified Ethical Hacker dealing with computers and mobile phones. He received from the bank; * Laptop think Pad paired with mobile Wifi with Telcom Sim card. * Network fire wall logs. * prepaid card activity Audit log. He was requested to retrieve all relevant system information. Under Cross-examination by Counsel for the accused he stated that it was not possible for a stranger to access a computer remotely and credit his account as it was not easy for a stranger to penetrate the bank system. PW6 *Antony Chesuro* is the chief information Risk officer previously working with family bank. It was reported to him that the banks card system had been hacked. After investigations the cause of the attack was identified as a rogue laptop which was found connected to the banks network at the 2nd floor. Upon interrogating the logs, it was discovered that funds had been transferred to 22 cards amounting to Ksh. 234,000,000. On 18th and 19th January, 2019 the matter was reported to DCI for further investigations. The laptop did not belong to the bank but it had been directly connected to the bank’s card system on 18th January, 2019 between 2.00am and 3.00am. Instructions were given to the systems to load money into the 22 prepaid cards. Upon examination by Counsel for the accused the witness stated that the laptop was found on the 2nd floor at a desk belonging to one of the Sacco staff who had since disappeared. One person had been arrested while withdrawing money using a pre-paid card No. 45935301000250101. This card had been allocated to one of their customers who was also in custody. When the accused was interrogated he produced a police abstract dated 25th January, 2019 which was after the heist. In his defence the accused testified that he had applied for a pre-paid card which was later issued to him. Four (4) days later he went to Embu to pick his child after finishing school. While there he noticed that his identification card and other documents were missing. On 25th January, 2019 he went to Kamukunji police station where he made a report of the missing items and he was issued with an abstract receipt. He went to Kariokor and applied for an identity card and paid Ksh.100 and was issued with a receipt. He had no money in the account. He went to Equity bank to check his account there. He was arrested and told that some money had been stolen at family bank. He denied having stolen any money. He denied knowledge of the person who credited his account with 20,000,000 (twenty million) which he was not aware off. He stated to have applied for the card on 12th January, 2019 and the incident of theft is said to have taken place on 19th January, 2019. What transpires from the prosecution evidence adduced is that on the night of 18th and 19th January, 2019 Family banks systems were hacked by the use of a laptop housed at the 2nd floor of KTDA branch. Only staff members had access to the 2nd floor of the house. The accused was not a member of the staff. The member of staff who was occupying the Desk the laptop was found had allegedly disappeared at the time of the discovery. It is not denied that Ksh. 20,000,000 (twenty million) were debited to his account on the night of 18th and 19th January, 2019. There is no evidence to the effect that he was privy to the crediting of funds to his account. It is not denied that some Ksh. 9,891,160 was withdrawn by the use of his card through ATM’s and point of sale machines. There is no evidence to the effect that he is the one who made those withdrawals or knew those who did it. There is no evidence to the effect that the accused was seen or placed near any of the banks ATM’s or point of sales machines. There were 22 prepaid cards which were used to steal funds from the bank. They were all collected from the KTDA Family bank branch. There is no evidence that the accused/appellant was among those who collected them. The trial magistrate acquitted the appellant on the primary charges of theft under section 268(1) as read with section 275 of the penal code. This was after it was established that the rogue lap top that was used in the hacking of the bank systems was placed on second floor and it was not accessible to non-staff members. The appellant was convicted on the alternative count of handling stolen property because some funds were credited to his account. All in all, some Ksh. 294,800,003 were stolen from the bank. This undoubtedly was an inside job. **Issues for Determination** 1. Whether the trial court properly arrived at its conclusion upon cogent evidence adduced before it. 2. Whether there was proof that the appellant had knowledge of the credit of funds to his account. **The Law** In the case of Omar Mzungu Chimera vs. Republic Criminal Apppeal No. 56 of 1998 the court had this to observe; ‘‘It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests; i) The circumstances from which an inference of guilty is to be drawn must be cogently and firmly established. ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. iii) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else’’. Evidence from PW2 *Emily Nyatich* is to the effect that the appellants card transacted Ksh. 20,000,000 (20 million) on 19th January, 2019. The moneys had been transferred to this card through internal transfer top-up. There was an internal software for top-up purposes. The card made withdrawals of Ksh. 9,891,160 leaving a balance of Ksh. 10,108,840. The witness stated that the user of the card was the appellant *Peter Muchangi*. This is the name which came up in the transactions. According to the evidence of PW7 who was the investigating officer the funds were withdrawn from ATM’s and point of sale machines belonging to *Rikowell Kenya Ltd* and *Manchester Enterprise*. These transactions happened at night with the money being received at 10.03pm and withdrawals starting at 10.05pm. Within 17 minutes, some Ksh. 9,891,190 had already been withdrawn. The witness testified that the appellant had told them that his identity card, prepaid card got lost. When he was asked for an abstract he said that he had not reported the loss to police. He had collected the card on 12th January, 2019 and the theft took place on the 19th January, 2019. In his defence he slated to have reported the loss of his identity card and prepaid card on 25th January, 2019. Under cross-examination he testified that he never shared his pin with anybody else. He did not report the loss of the pin. There is ample evidence to the effect that the name of the appellant was indicated in the transactions for withdrawals from point of sale machines. It is the card belonging to the appellant that was used in those transactions. He is the one who had the pin number which is a secret number. I am satisfied that he did handle stolen property as charged in the alternative. The court did properly arrive at the right conclusion. He could not have withdrawn the funds if he didn’t know that his account had been credited with the amounts. The conviction was found and its upheld. The court notes that he had been treated as a first offender. The court also notes that this was all inside job and the masterminds were bank staff. On 1st November, 2023 he was sentenced to 5 years imprisonment. I consider the time served in jail as adequate punishment. The term of five (5) years is hereby and accordingly reduced to the term served already. **JUDGMENT DELIVERED** this 5th day of June, 2026. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **MARTIN M. MUYA** **JUDGE** **In the Presence of:** Tama for the Appellant Mr. Muia for the ODPP Court Assistant – Isaack Molu