[2023] KEHC 26871 (KLR)

Republic v Chitechi (Criminal Appeal 7 of 2020) [2023] KEHC 26871 (KLR) (11 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26871 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal 7 of 2020

RE Aburili, J

December 11, 2023

Between

Republic

Appellant

and

Geoffrey Atitwa Chitechi

Respondent

(An appeal against the ruling by the Hon. M. Agutu delivered on the 5th February 2020 in the Chief Magistrate’s Court in Kisumu in Criminal Case No. 241 of 2018)

Judgment

Introduction 1. This is an Appeal against the acquittal in respect of Chief Magistrate’s Court at Kisumu in Criminal Case No. 241 of 2018, Republic v Geoffrey Atitwa Chitechi wherein the respondent was found to have no case to answer and was acquitted of the charge under section 210 of the Criminal Procedure Code.

2. The respondent herein had been charged with the charge of stealing by servant contrary to section 268(1) as read with section 281 of the Penal Code, the particulars being that on diverse dates between 4th June 2016 to 19th June 2016 at Kabianga Diaries Limited Branch in Kisumu town within Kisumu County, being an employee of Kabianga Diaries Limited as sales person stole Kshs. 1,017,272, the property of Kabianga Dairies Limited which came to his possession by virtue of his employment.

3. Aggrieved by the ruling of the trial court, the Appellant herein filed a Petition of Appeal dated 17th February 2020 in which the following grounds were raised:i.The learned trial magistrate erred in reaching a finding that the respondent had no case to answer against the weight of the evidence presented on behalf of the appellant.ii.The learned trial magistrate erred in law and in fact by failing to appreciate arguments and the evidence adduced by the appellant’s witnesses.iii.That the learned trial magistrate erred in law and fact by finding that the prosecution did not establish a prima facie case against the respondent.iv.The learned trial magistrate failed to apply judicially and to adequately evaluate the evidence and exhibits tendered by the appellant and thereby arrived at a decision unsustainable in law.

4. The Appellant prays that the court be pleased to quash the trial court’s decision of acquitting the Respondent and order that they be placed on their defence and the matter proceed to its logical conclusion.

5. The parties agreed to dispose of the appeal by way of written submissions however the respondent did not file anything in the virtual platform.

The Appellant’s Submissions 6. The appellant submitted that a prima facie case was made out against the respondent sufficient enough to put him on his defence pursuant to the provisions of section 211 of the Criminal Procedure Code as evidence was tendered by the prosecution witnesses to the effect that the respondent was an employee of the complainant and that there were some financial losses in the company.

7. It was submitted that in order to establish a prima facie case, a prosecutor needs only to offer credible evidence in support of each element of a crime and not on a standard of beyond reasonable doubt.

8. The appellant submitted that th trial magistrate confused the ambit and scope of a ruling under section 210 of the CPC with a decision contemplated under section 215 of the CPC by proceeding to consider the merits of the evidence on the innocence or guilt of the respondent instead of satisfying herself to th narrow question as to whether the prosecution had tabled sufficient evidence to warrant putting the respondent on his defence.

9. It was submitted that the learned magistrate dangerously determined the ingredients of the offence as opposed to addressing her mind to what constitutes a prima facie case and thus she occasioned a grave miscarriage of justice.

Role of the Court 10. As first appellate court; I should re-evaluate the evidence afresh and arrive at own independent conclusions. I am however reminded to bear in mind that I neither saw nor heard the witnesses and give due regard for that. See Okeno v R. (1972) E.A. 32.

Evidence at the Trial Court 11. PW1, a supervisor at Kabianga Dairies testified that the respondent never remitted reports and money received in regard to sales made on 4. 6.2016, 6. 6.2016 and from 11th to 19th June 2016. It was his testimony that his duties involved picking sales persons from their residences to the company yard early in the morning after which the sales persons would bring their assigned vehicles to the storage room and he would load the vehicles with milk crates.

12. PW1 testified that he would then issue them with delivery notes that the sales persons were supposed to sign confirming that the sales person had taken the milk and that in the afternoon at 2pm he would receive empty crates from the sales men that he had loaded in the morning.

13. PW1 testified that the respondent never signed the delivery notes because he, PW1, trusted him. He further testified that the respondent was a hardworking staff who never had any disciplinary issues in their 5 years of working together.

14. In cross examination PW1 admitted that he did not have the report forwarded to th accountant as to the number of crates returned and that at times the sales person, including the respondent, would come back to the yard with milk unsold.

15. PW2 Anop Shidah, the accountant at Kabianga corroborated PW1’s testimony regarding the respondent’s failure to remit reports and monies received in regards to sales made on the 4. 6.2016, 6. 6.2016 and from 11th to 19th June 2016.

16. PW2 testified that on inquiry, the respondent informed him that he had given the money and relevant documents for the missing days to his turn boy Moses Pasapasa for onward remittance to PW2. PW2 further testified that when he asked the respondent to come to his office so as to reconcile the missing reports the respondent never turned up despite numerous reminders. He further testified that on inquiry he found out that the respondent had not shown up to work from 21. 6.2016.

17. In cross-examination PW2 admitted that the ETR reports produced were generated by on Ogolla and further that the delivery notes and reports adduced did not relate to the date in question.

18. In re-examination PW2 testified that the respondent had the ETR machine and that he brought it after 30. 6.2016 and thus it was not possible for the company to alter the ETR machine.

19. PW3 CPA Patrick Kinyua Njeri testified that he was a partner at G.S. Patel & Co. who were approached by Kabianga to conduct investigations in regard to sales deliveries carried out by the respondent.

20. It was his testimony that in the course of his investigations he found some discrepancies in some days where the sales were made and crates returned to the cold room but cash was not delivered and the respondent would carry the cash forward. PW3 testified that the respondent owed the company Kshs. 1,052,014.

21. PW3 further testified that most of the procedures within the sales department were not documented and that some documents were not signed on creation e.g. delivery notes.

22. In cross-examination PW3 stated that the delivery notes were incomplete but that one could rely on them though indicate the same in the final report. He admitted that payments were not all done in the same day and that all the sales could not have been made on the same day.

23. PW4 Moses Pasapasa testified that he worked as a turn boy at Kabianga Dairies. It was his testimony that on the 5. 7.2016 he got a report from PW2 that there were some reports and monies which could not be accounted for. He testified that the respondent was the one to avail the said reports though there were times when the respondent would give him the reports to hand over to PW2. It was his testimony from th 21. 6.2016 the respondent did not sign the reports as he had taken leave.

24. In cross-examination PW4 stated that he never witnessed the respondent fail to hand over the sales report and that this was the first instance he had witnessed such an occurrence. He further stated that he was surprised that reports and monies from 240 clients whom he and the respondent dealt with could not be accounted for.

25. PW5 No. 86272 Sergeant Sophia testified that she took over the case in November 2016 from Corporal Shuna and that after going through the documents presented before them covering the month of June 2016 concluded that an amount of Kshs. 1,017,272 could not be accounted for by the respondent.

26. In cross-examination PW5 stated that she had delivery notes that proved that sales were made, goods taken and amount to be remitted.

27. PW6 No. 71614 Corporal Boniface Mukala testified that in 2018 he received the file in this case from PW5 who was proceeding for a promotional course. He produced documents relied on by the prosecution in support of their case as exhibits.

28. Only the appellant state filed written submissions. the respondent was given the opportunity to challenge this appeal but did not file any submissions.

29. The appellant laments that the evidence adduced by the prosecution witnesses was sufficient to establish a prima facie case against the respondent accused person herein being placed on his defence and that therefore the trial court erred in law and fact when she acquitted him under section 210 of the Criminal procedure Code. It was submitted relying on several case law that the prosecution is not expected to have proved its case beyond reasonable doubt at that stage of the close of its case and that the trial court confused the different standards of proof provided for in law and misconstrued the law as to the tests for determining what constitutes a prima facie case, by determining fully the innocence of the accused at that stage which occasioned a miscarriage of justice. The appellant prayed that the order of acquittal be set aside and that this court substitutes that order with an order that a prima facie case was made against the respondent to warrant him to be placed on his defence by the lower court.

Analysis and Determination 30. I have examined the evidence tendered by all the prosecution witnesses. This court as an appellate court is being called upon to overturn a finding of no case to answer to a positive finding of a case to answer.

31. The main issue for determination in this appeal is whether the trial magistrate erred by concluding that no prima facie case was established.

32. In the instant case, the /Respondent accused is facing a charge of stealing by servant contrary to Section 281 of the Penal Code. What is stealing by servant in law? Under Section 281, it is defined as: -“If the offender is a 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.”

33. However, Article 50 (2) (a) of the Constitution provides that an accused person is presumed to be innocent until the contrary is proved. The evidence Act Cap 80 of the Laws of Kenya at section 107 (1) provides thus:“whoever desires any court to give judgement as to any right or liability dependent on the existence of facts which he asserts, must prove those facts exist.”

34. In light of the above, Miller v Minister of Pensions [1947] 2 ALL ER 372 – 373 on what constitutes the burden of proof beyond reasonable doubt states as follows: -“That degree is well settled. It needs not reach certainly, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of doubt. The law would prevail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility of his favour which can be dismissed with the sentence of course it is doubt but nothing short of that will suffice.”

35. The burden of proof of an accused guilt rests solely on the prosecution throughout the trial save where there are admissions by the accused person. Therefore, at the close of the prosecution case under Section 211 of the Criminal Procedure Code the prosecution must satisfy by way of the evidence presented so far that a prima facie case exists to warrant the accused person to be called upon to answer.

36. PW1 and PW2 all testified on the procedure of how milk is disbursed from the factory to the various vendors and how the money collected by the sales persons was supposed to be returned back and surrendered to the factory. PW2 also testified that on noticing that there was a discrepancy in the monies surrendered by the respondent, he invited the respondent on numerous occasions to reconcile the same but the respondent never turned up.

37. PW3, the accountant brought in to specifically audit the transactions undertaken by the respondent testified how after carrying out his investigations he concluded that there was a shortfall of Kshs. 1, 052,014 that the respondent had not surrendered to the company.

38. PW4 the turn boy who worked with the respondent testified that that on the 5. 7.2016 he got a report from PW2 that there were some reports and monies which could not be accounted for, which reports and monies the respondent was to avail. In cross-examination he testified that he was surprised that reports and monies from 240 clients whom he and the respondent dealt with could not be accounted for.

39. As earlier herein stated, the burden of proof lies on the Prosecution throughout the trial to prove their case against the accused person. That burden does not shift to the accused person. This is so because the accused person’s constitutionally guaranteed rights include the right to remain silent, the right to adduce and challenge evidence and the right not to give any incriminating evidence. However, at that stage, following closure of the prosecution’s case, the prosecution is not expected to have proved their case against the accused person beyond reasonable doubt. The measure is for a prima facie case to be established.

40. Having considered the testimonies of the six (6) prosecution witnesses, the question is whether the evidence tendered established a prima facie case against the respondent, or whether the respondent had a case to answer.

41. In Republic v Abdi Ibrahim Owi [2013] eKLR, the court defined a prima facie case as follows:“Prima facie’ is a latin word defined by Black’s Law Dictionary 8th Edition as, “sufficient to establish a fact or raise presumption unless disapproved or rebutted”. ‘Prima facie’ is defined by the same dictionary as “the establishment of a legally required rebuttable presumption.”

42. In simple terms, prima facie means the establishment of a rebuttable presumption that an accused person is guilty of the offence he/she is charged with. In Ramanlal Trambaklal Bhatt v R [1957] E.A 332 at 335, the court stated as follows:“Remembering that the legal onus is always on the Prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution’s case, the case is merely one in which on full consideration might possible be thought sufficient to sustain a conviction.”This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather, hopes the defence will fill the gaps in the Prosecution case. Nor can we agree that the question ...there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough; nor can any amount of worthless discredited evidence.It may not be easy to define what is meant by a, “prima facie case”, but at least it must mean one on which a reasonable, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence”.

43. From the above detained holding by the court, can this court on the basis of the evidence tendered by the Prosecution, and assessed by this court properly directing itself to the law and evidence convict if the respondent chose not to give any evidence?

44. In Ronald Nyaga Kiura v Republic [2018] eKLR, the court held:“It is important to note that at the close of the Prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie case has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code...”

45. The trial court is however cautioned that at this stage, it should not make definitive findings should it conclude that the accused has a case to answer.

46. In Festo Wandera Mukando v Republic [1980] KLR 103, the court held:“...we draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the court and, and an extreme case, may require an appellate court to set aside an otherwise sound judgment. Where a submission of “no case” to answer is rejected, the court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is the end to the case or the count or counts concerned.”

47. Examining the testimonies of the prosecution witnesses and without delving into the depths of their testimonies, I am satisfied that the Prosecution established a prima facie case against the respondent to warrant him to be placed on his defence.

48. It is for that reason that I totally disagree with the trial magistrate that there were loopholes sufficient to warrant acquittal of the respondent at that stage. The prosecution evidence taken cumulatively in my view is sufficient to put the respondent on his defence.

49. I therefore allow this appeal, set aside the trial court’s finding and ruling dated 5th February 2020 and substitute it with a finding that the respondent herein Geoffrey Atitwa Chitechi has a case to answer and he is therefore placed on his defence.

50. The file is thus returned to the trial court for purposes of the respondent being placed on his defence and the trial court as is required explaining to him his rights and options on the mode of defence that he will proffer.

51. This file is closed.

52. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 11TH DAY OF DECEMBER, 2023R.E. ABURILIJUDGE