[2002] KEHC 388 (KLR)
The court found that while it was established that fake receipts were issued and money belonging to the Municipal Council was stolen, there was no direct evidence linking the appellant to the making of the forged receipts. No handwriting samples were compared, and no evidence showed the appellant was aware the...
Source-derived case information.
- Citation
- [2002] KEHC 388 (KLR)
- Parties
- Appellant: Ronald Wanje; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 588 of ??
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Making Document Without Authority, Stealing by Servant, Forgery of Receipts, Burden of Proof, Evidence Evaluation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ronald Wanje
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was the author or participant in the making of fake receipts without authority.
- 2 Whether the appellant stole money belonging to the Municipal Council as a servant.
- 3 Whether the evidence adduced was sufficient to support the conviction.
Ratio Decidendi
The court found that while it was established that fake receipts were issued and money belonging to the Municipal Council was stolen, there was no direct evidence linking the appellant to the making of the forged receipts. No handwriting samples were compared, and no evidence showed the appellant was aware the receipts were fake when he issued them. The investigation was found to be inadequate, leaving loopholes that created reasonable doubt as to the appellant's guilt. Consequently, the conviction and sentence could not stand and were set aside.
Court Disposition
appeal_allowed
Orders
- The conviction and sentence against the appellant are set aside.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
CRIMINAL APPEAL NO. 588 OF 2000
(From Original Conviction and Sentence in Criminal Case No. 1129 of 1999
of the Chief Magistrate’s Court at Mombasa -B. Malomba –S.R.M.)
RONALD WANJE …..………………………………………. APPELLANT
VERSUS
REPUBLIC ………………………………………………… RESPONDENT
J U D G E M E N T
The Appellant RONALD WANJE was the original 1st Accused in the main trial where he was charged together with two others with the 3 counts of making a document without authority contrary to Section 357 (a) and one count of stealing by servant contrary to Section 281 of the Penal Code. They were all convicted on all counts and Sentenced to Serve 2 years imprisonment on each count.
He then preferred the appeal herein and cited 12 grounds. At the time of the hearing of the appeal he was out on Bail.
The brief facts are that on the 29th March, 1999, WAITER SEIF an Auditor with the Municipal Council of Mombasa discovered that some fake receipts were in issue and reported the matter to the police who after investigations recovered various fake receipts numbers T.747687, T747695 and 747986. Some of the receipts were in possession of RAMADHANI MWAHANJI (PW2) who had gone to pay for licence and refuse collection fees on behalf of his employer PWANI OIL PRODUCTS. The other receipts were recovered through KASIM SALIM (PW4) who in his evidence said he made the payments to the appellant who in turn issued him with the receipts.The receipts were confirmed to be fake by MILLIE MOHAMED WANDE (PW6) a cashier with the Municipal Council who confirmed she had not issued the receipts, her signature had been forged and that the receipts were not the genuine ones she has been issuing on behalf of her Employer. This position was also confirmed by SP. EMMANUEL LENGA (PW7) who is a document examiner.
IP. GIDEON NYALE MUNGA (PW9) was the investigating officer and had recovered some fake plain receipts in the printing office where the appellant worked. The appellant denied knowledge of the same saying there were several employees in that office and everyone could have left them on the table. He was arrested and charged with the offences.
In his defence, he gave an unsworn defence and repeated what he had told PW7 during his arrest. In her judgement the learned magistrate found that the Appellant was involved in the making of the receipts as well as stealing from his employer.
The State Counsel did not support the conviction and charge on the ground that the evidence adduced did not proof the Appellant was the maker of the documents.
I have read both the proceedings and judgement and heard the argument in support of the Appeal. From the evidence there is no doubt the receipts were indeed fake and that consequently money belonging to the Municipal Council was stolen. The question is whether the Appellant was the author or participated in the commission of this crime?
The main evidence has been analyzed and no evidence did point to the Appellant as the author of the forged receipts. No handwriting samples from Appellant were compared to those on the receipts. However there was evidence that it was him who received the money and handed over the receipts to PW2 and PW4. No evidence was adduced to show that the Appellant at that stage was aware the receipts were fake and Revenue was lost.
There is a possibility that he indeed was aware. However with due respect the investigation into the offences herein was not conducted to it’s best and as a result loopholes left open can only be to the benefit of the Appellant. I do not however hesitate to warn him that he may not be so lucky next time round if he was in anyway involved.
In the circumstances the Appeal shall succeed. The Conviction and Sentence are set aside.
Dated and delivered at Mombasa this 26th day April, 2002.
P.M. TUTUI
COMMISSIONER OF ASSIZE