[2022] KEHC 2369 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

CRIMINAL APPEAL 27 OF 2019

(CORAM: F.M. GIKONYO J.)

(From the conviction and sentence by Hon. W. Juma (C.M) in Narok CMCR No. 1808 of 2014 on 6th May 2019)

SAMMY KASAINE OLE KANTAI.......................................................................APPELLANT

VERSUS

REPUBLIC..........................................................................................................RESPONDENT

JUDGMENT

[1]. On 6th May 2019; the Appellant was convicted for the offence of Stealing contrary to Section 268(1) as read with Section 275 of the Penal Code and was sentenced to serve 18 months’ imprisonment.

The Appeal

[2]. This appeal is against conviction and sentence. It cites 8 grounds in the petition of appeal dated 4th July 2019 whose cumulative effect is THAT:

The learned trial magistrate erred in law and in fact in holding that the prosecution proved its case beyond any reasonable doubt.

Submissions

[3]. The appeal was canvassed by way of written submission. Parties filed the following respective written submissions.

The appellant’s submissions

[4]. According to the appellant, he did not convert the money to his own use, thus, the essential element of the offence of stealing were not proved beyond reasonable doubt. He also urged that at there is no evidence to prove that the appellant fraudulently took the money or converted the money with a fraudulent intent.

[5]. The appellant submitted that the trial court made an erroneous finding that the appellant was to blame for the loss of Kshs. 372,000/=. That the evidence adduced before the trial court shows that the appellant refunded the exiting members (Rose Kemunto and Susan Wambui Mwangi) Kshs. 72,000/=. That there is an acknowledgement to that effect signed by Kiptoo advocate. That that was after the appellant took the surveyor to the ground but the surveyor failed to sub divide the group’s parcel of land.

[6]. It was the appellant’s submission that, contrary to the law, the learned trial magistrate shifted the legal burden and evidential burden to the accused to call Rose Kemunto and Susan Wambui Mwangi. He stated that the accused bears no duty to prove his innocence. He cited the cases of re vs attorney general ex parte Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001, Joseph Ndungu Kagiri V Republic [2016] eKLR, The Supreme Court of India in Rattiram V State of M.P, Peter Wafula Juma & 2 Others V Republic [2014] eKLR.

[7]. The appellant contended that no evidence was adduced before court to prove that the seller of the 5 acres refunded Kshs. 300,000 to the appellant.

[8]. Further argument; that failure to call Onduso Advocate and to present Mr. Sialala as the witnesses could be concluded that the evidence was detrimental to the prosecution’s case.

[9]. The appellant cited the cases of Nganga V Republic [1981] KLR 483 and Republic V David Kibet Kiplangat [2014] eKLR.

[10]. The appellant submitted that when a case rests entirely on circumstantial evidence, to found a conviction, such evidence must not only be cogently and firmly established but the exculpatory facts must also unerringly point to guilt and be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of his guilt. Suspicion however strong cannot provide a basis for inferring guilt and conviction can only be based on proven evidence. The appellant cited the case of Republic V Ahmad Abolfathi Mohammed & Another [2019] eKLR, and Bukenya and Others Vs Uganda [1972] EA 549.

[11]. The appellant submitted that the prosecution did not prove its case beyond reasonable doubt that the appellant was the perpetrator of the offence. The totality of the evidence leaves a reasonable doubt in the mind of the court as to whether the appellant stole the sum in question and this court is bound by law to resolve that doubt in favour of the appellant.

[12]. In conclusion, the appellant submitted that the conviction and sentence was not safe and that it should be quashed and set aside.

Respondent’s submissions

[13]. The Respondent opposed the appeal and submitted that indeed the sums of money were withdrawn by the appellant. That the evidence of PW1 showed that Kshs. 372,000 had been withdrawn from the group’s account held at cooperative bank in the statement for the period of 23/02/2012 to 9/07/2013 produced as P Exh 4 as well as the bank statement dated 28/01/2013 produced as P Exh 5.

[14]. The respondent submitted that it is impossible for Kshs. 72,000 to have been used for the surveyor’s fees and at the same time have been refunded to the two members. That the assertion by the appellant that the Kshs. 72,000 that he had withdrawn was used to refund two members is not supported by the evidence of PW3 and PW4. The said witnesses in their evidence stated that the appellant had proceeded to the house of pw4, the treasurer, seeking her to sign the cheque for Kshs 72,000. The appellant had informed the two that the monies were meant to pay the surveyor to subdivide an earlier plot purchased by the group.

[15]. The respondent submitted that the evidence adduced by DW2 –the vendor of the suit land as rightly observed by the trial court is a sham and it is meant to protect the appellant herein and hood wink the members of the group. That the vendor gave his evidence on 26th November 2018 a period of more than 5 years after the sale agreement was entered into between him and the group. It is surprising that DW2 had been patiently waiting for more than 5 years for the purchasers to make good the deal and pay the balance of one million and fifty thousand. That therefore this is not a behavior of a serious vendor who would allow himself to be handicapped by the purchaser who have failed to fulfill their contractual obligations. It would be impossible for the vendor to allow his land to remain idle for more than 5 years awaiting the completion of a land transaction.

[16]. The respondent submitted that the parties herein in this transaction were in habit of making payments without setting them down in writing and nothing could have been difficult for the seller to have refunded the sum of Kshs. 300,000 to the appellant without the same being set down in writing. That the appellant admitted that there were sums of money that had been paid to the seller that had reached a total of Kshs. 300,000 a close scrutiny of the sale agreement dated 3/01/2013 produced as P Exh 2 show that the deposit sum stated to have been received by the purchaser as at the date of its execution is Kshs. 200,000/=. The appellant and DW2 are in agreement that he had been paid kshs.300,000/=

[17]. The respondent submitted that the trial magistrate considered the evidence submitted by the prosecution as well as what the defence stated and concurred with the prosecution that there was enough circumstantial evidence that proved the appellant did in fact steal money from Muungano group.

[18]. In conclusion, the respondent urged this court to dismiss the appeal and uphold the conviction and sentence as passed by the trial court.

ANALYSIS AND DETERMINATION

[19]. As first appellate court, I will re-evaluate the evidence adduced before the Trial Court and arrive at my own conclusion but bearing in mind that I neither saw nor heard the witnesses. See Okeno vs. Republic(1972) EA 3

[20]. The offence with which the appellant was charged is stealing contrary to section 275 as read with section 268 of the Penal Code. Section 275 provides: -

275. Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years.

Issues

[21]. Did the prosecution prove beyond reasonable doubt that the appellant stole a sum of Kshs. 372,000 from Muungano Group? Does the evidence herein support a conviction the law?

Elements of offence

[22]. The elements of stealing is as set out in section 268 of the Penal Code below: -

268. (1) 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.

(2) A person who takes anything capable of being stolen or who converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say -

(a) an intent permanently to deprive the general or special owner of the thing of it;

(b) an intent to use the thing as a pledge or security;

(c) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;

(d) an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;

(e) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner;

and “special owner” includes any person who has any charge or lien upon the thing in question, or any right arising from or dependent upon holding possession of the thing in question.

(3) When a thing stolen is converted, it is immaterial whether it is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it; and it is also immaterial that the person who converts the thing in question is the holder of a power of attorney for the disposition of it, or is otherwise authorized to dispose of it.

(4) When a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the thing does not know who is the owner, and believes on reasonable grounds that the owner cannot be discovered.

(5) A person shall not be deemed to take a thing unless he moves the thing or causes it to move.

Alleged refund of purchase price

[23]. Pertinent question: Was any refund of the deposit made? And, if so, to whom?

[24]. An allegation of refund of the deposit of the purchase price was made but there was no evidence to show any refund was made to the appellant by the seller of the land. The available evidence from the seller himself, DW2 was that he has never made any refund of the deposit of the purchase price to the appellant or the group. The submissions by the respondent seems to suggest that there was no way that DW2 could have waited for over 5 years for the balance of purchase price. According to them, they assumed he must have refunded the money to the appellant. This kind of evidence could found a civil claim against the seller but is no basis of a criminal charge.

[25]. The allegation of refund to the appellant of the purchase price should have been the first order of business for the prosecution to establish. Thorough interrogation of the record does not reveal any cogent evidence speaking to this pertinent factual and essential element of this case.

The Deed of Revocation and survey fee

[26]. The Deed of Revocation and the utilization of a sum of Kshs. 72,000 herein to which the witnesses spoke only added to the obscurity.

[27]. Fathom for a moment. According to PW1: (i) the revocation deed does not bear the signature of the land seller; (ii) he did not witness the refund of Kshs. 300,000/=; (iii) he does not know if the Kshs. 72,000/= was for sub-division; (iv) he did not see the audit report; and (v) he did not participate in the negotiations of the purchase of land.

[28]. PW2 also confirmed that there was no signature of the seller on the revocation deed and he could not tell whether Kshs. 72,000/= was utilized for any group work.

[29]. Could the evidence by PW3 offer support to the crime of theft?

[30]. PW3 stated that she witnessed PW4 issuing the appellant with a cheque of kshs.72, 000/=. The said money was to be used for survey but she later learnt that it was not utilized for the intended purpose. She however, stated that no surveyor had complained of not being paid.

[31]. What a twist? PW4 stated that she recorded her statement at the police station under duress. She stated that the group had harmoniously worked together and had so far bought two shambas and were in the process of buying a third one. She confirmed that she issued a cheque to the appellant of Kshs.72, 000/= but she denied inviting PW3 to witness the transaction although she was present at her house on that particular day. She stated that Kshs 300,000/= was never returned or refunded to the appellant and if at all it was returned she should have been present to witness the return of the purchase price.

[32]. Another interesting bit. PW4 confirmed that Rose Kemunto and Susan Wambui Mwangi- group members- were paid Kshs. 40,500/= and Kshs. 31,000/= respectively by the appellant because they had written to the office. She however was not present when the refund was made.

[33]. The revocation agreement and refund of the purchase price is central to this trial. Wasn’t the mystery to have been unraveled by investigations?

[34]. PW5-the investigating officer- confirmed that the deed of revocation of agreement was not signed by the seller of the land. He did not however, interview the lawyer who drafted the revocation agreement. He did not, also, in his investigations, confirm that a cheque was issued to the appellant or check with the bank about the cheque. He did not inquire into why the treasurer signed the cheque when she had stepped down. He could not tell whether they were accomplices. He did not inquire if the surveyor was paid. He did not record statements of Rose Kemunto and Susan on whether they received the money as was claimed by the appellant and PW4. He did not call the two as witnesses or endeavor to establish the truth or otherwise of the allegation by the appellant that he refunded the money to the two exiting members of the group after they wrote to the group.

[35]. Juxtapose the foregoing inquisitive questions arising from the prosecution adventure in the criminal prosecution herein, with the defence evidence.

[36]. In his defence, the appellant (DW1) stated that on 3rd January, 2013 they bought 5 acres from Parsale Ole Sialala (DW2). They paid a deposit of Kshs. 300,000/= but they delayed payment of the balance. That together with another member of the group they went to their advocate Ochego Onduso to revoke the agreement. DW2 did not sign the revocation agreement because he was not present. The advocate told them that he will pursue DW2 to refund Kshs. 300,000/= and when he brings the money he will come and sign the revocation document. He stated categorically that DW2 had never refunded Kshs. 300,000/=

[37]. On the issue of Kshs. 72,000, DW1 stated that he did not steal Kshs. 72,000. He stated that the money was for sub division of the group’s parcel of land. The treasurer signed for him a cheque for Kshs. 72,000/= duly signed by the secretary and the appellant.

[38]. The appellant and the surveyor went to the ground to sub divide the land but the surveyor said that the land was out of the area to be sub- divided thus he did not pay the surveyor the said Kshs. 72,000/=. That some members of the group wanted their contribution refunded to them among those who wanted their money refunded was Rose Kemunto and Susan Wambui Mwangi. That out of the Kshs, 72,000, the appellant gave Rose Kemunto Kshs. 40,500/= and Susan Wambui Mwangi kshs. 31,000/=. The two signed an acknowledgement at the firm of Kiptoo & Company advocates. The remaining balance of Kshs. 500 was given to the advocate who drafted the acknowledgement. He stated that this is not a case of theft but disagreement among members of the group on how the disbursement of the money was done. He denied ever receiving any money from Mr. Sialala.

[39]. DW2 is the registered proprietor and the seller of the land in issue. He stated that he entered into a sale agreement with Muungano for the sale and purchase of 5 acres and received Kshs. 300,000 as a deposit. He further stated that he went to Ochiego Onduso advocate to sign the sale agreement but he has never gone to that office for revocation of the agreement. He stated categorically that he refunded Kshs. 300,000/= to Sammy Kantai (the appellant herein).

[40]. DW2 stated that he still wants the transaction to go on but Muungano is in breach of the agreement.

[41]. In her judgment, the learned trial magistrate convicted the appellant on the ground that Kshs. 72,000/= was used in unclear circumstances and Kshs. 300,000/= received by the appellant did not flow back to the group where it had come from.

[42]. The legal scale demand of proof beyond reasonable doubt in criminal cases. Whether the sum of Kshs. 72,000 initially meant for the survey work was used for the groups work was at the core of this case.

[43]. The trial magistrate held that the said sum of money was used in unclear circumstances. The prosecution witness- PW4- as well as the defence claimed that the said sum of money was used to refund two named exiting members of the group, namely, Rose Kemunto Kshs. 40,500/= and Susan Wambui Mwangi kshs. 31,000/=. It was claimed that the two signed an acknowledgement at the firm of Kiptoo & Company advocates. The appellant also stated that the remaining balance of Kshs. 500 was given to the advocate who drafted the acknowledgement. It is surprising the investigations officer neither recorded statements from nor called the two members and the advocate as witnesses. The evidence adduced was barely adequate and this is a perfect case to infer that the evidence of the uncalled witnesses would have been adverse to the prosecution’s case. See the Court of Appeal in the case ofBukenya vs Uganda, (1972) E.A 549(Lutta Ag. Vice President) in which it was held:-

“It is well established that the Director has a discretion to decide who the material witnesses are and whom to call, but this needs to be qualified in three ways. Firstly, there is a duty on the Director to call or make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent. Secondly, the court itself has not merely the right, but also the duty to call any person whose evidence appears essential to the just decision of the case. Thirdly, while the Director is not required to call a superfluity of witnesses, if he calls evidence that is inadequate and it appears that there were others witnesses who were not called, the court is entitled, under the general rule of evidence, to draw an inference that the evidence of those witnesses, if called, would have been or would have tended to be adverse to the prosecution case.If they had disappeared, the prosecution could easily have called evidence to show that reasonably exhaustive enquiries had been made to trace them without success…” [Underlining for emphasis mine]

[44]. There was reasonable doubt created as to whether the appellant stole this money- in law, such doubt is resolved in favour of the accused. The finding by the trial court that the money was used in unclear circumstances portend a doubt.

[45]. Of the part payment of purchase price of Kshs. 300,000/=; the evidence adduced before the trial court shows that the seller of the 5 acres Mr. Parsale Ole Siala (DW2) had not refunded the said sum of money to the appellant or the group. The seller categorically stated that he had not made any refund of the said money to the appellant. The advocate who did the transaction was not also called to shed light on the claim for refund of money.

[46]. The state of evidence did not prove beyond reasonable doubt the guilt of the appellant- that he stole the money herein. In sum, the prosecution miserably failed to prove its case beyond reasonable doubt. Accordingly, the trial court erred in law in finding that the prosecution proved its case, in convicting and sentencing the appellant. Such is a case which ought to have been pursued in a civil court and not through a criminal process.

[47]. Looking at the nature of the offence and the kind of evidence that was adduced, it is fair and reasonable to conclude that, the findings by the trial court were not based on evidence, or were as a result of misapprehension of the evidence, and were on the basis of wrong principles. See Republic v Silas Magongo Onzere alias Fredrick Namema [2017] eKLR.

[48]. In the upshot, I find that the appeal has merit and it is hereby allowed. The conviction against the appellant is quashed, and the sentences are set aside. Unless the appellant is otherwise lawfully held, he is to be set at liberty forthwith.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 15TH DAY OF FEBRUARY, 2022

----------------------

F. GIKONYO M.

JUDGE

IN THE PRESENCE OF:

1. APPELLANT

2. TOROSI FOR RESPONDENT

3. OLE KAMWARO FOR APPELLANT

4. KASASO - CA