Kamande v Republic (Criminal Appeal 113 of 2023) [2026] KEHC 9972 (KLR) (8 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MURANG’A** **HCCRA. NO. 113 OF 2023** **STANELY NJORENGE KAMANDE………………………..APPELLANT** **-V-** **REPUBLIC…………………………………….………….RESPONDENT** **JUDGEMENT** 1. The Appellantwas charged with the offence of stealing by servant contrary to Section 281 of the Penal Code. The particulars are that on diverse dates between 2nd March 2022 and 1st May 2022 in Nyakinga village, Gitungano Sub Location, Gikindu Location within Muranga County, being a servant to Patrick Mugo Kangee stole: 1. 20 iron sheets worth Kshs.20,000/- 2. 3 ½ bed worth Kshs.5,000/- 3. 3 ½ mattress worth Kshs.6,000/- 4. 5 goats worth Kshs. 35,000/- 5. 10 geese worth Kshs.40,000/- 6. 1 turkey worth Kshs.4,000/- 7. 1 bull worth Kshs. 25,000/- 8. Chuff cutter worth Kshs.36,000/- 9. 4 ducks worth Kshs. 4,000/- 10. 4 plastic silage drums worth Kshs.72,00/- 11. 4 sacks of maize worth Kshs.12,000/- all values at Kshs.185,200/- the property of Patrick Mugo Kangee which came into his possession by virtue of his employment. 12. In challenging the judgment, he raised the following grounds of appeal; i. THAT the learned trial court magistrate erred in both law and fact when convicting and sentencing me without considering the inconsistencies and contradictions inherent in the prosecution case. ii. THAT the learned trial court magistrate erred in both law and fact by failing to consider that the whole evidence of the prosecution was incredible and nonetheless watertight to warrant the conviction and the harsh sentence. iii. THAT the trial court magistrate erred in both law and fact when convicting and sentencing me while having been denied of some crucial and important documents which the prosecution witnesses relied upon. iv. THAT the learned trial court magistrate erred in both law and facts when shifting the burden of prove to the appellant. v. THAT the learned trial court magistrate erred in both law and fact by failing to fully analyze the prosecution evidence and instead relied on my unproven culpability. 1. The respondent vehemently opposed the appeal through the submissions.According to the respondent, the appellant stole the complainant’s property which had been entrusted upon him in his capacity as the complainant’s servant. 2. The respondent called witnesses including the complainant to prove that the appellant was the complainant’s employee. 3. It is the respondent’s case that the conviction and sentencing were legal and that the appeal should be dismissed. **Analysis and determination;** 1. In determining this appeal, this court is guided by the case of **K. Anbazhagan v. State of Karnataka and Others**, as follows; *“The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is* the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely.....The appellate *court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind - sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.”* 1. In dealing with the deficiency of the witnesses, the appellant raised a concern that the prosecution failed to call crucial witnesses. 2. Section 143 of the Evidence Act provides that: No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. 1. I am guided by the case of **Mwangi vs. R [1984] KLR 595 where this Court stated:** *“Whether a witness should be called by the prosecution is a matter within the discretion of the prosecution and the court will* *not interfere with that discretion unless it may be shown that the prosecution was influenced by some oblique motive.”* 11. The prosecution is not duty bound to call all persons involved in the transaction and his failure to call them is not necessarily fatal unless the evidence adduced by him is barely sufficient to sustain the charge. 12. This ground fails and it cannot form the basis of setting aside the impugned judgment. 13. The next issue that this court addresses its mind to is whether the appellant was employed by the complainant.Section 2 of the Employment Act defines casual employees as: *"Casual employee means a person the terms of whose engagement* *provide for his payment at the end of each day and who is not engaged for a longer period than 24 hours at a time."* 14. The appellant invited the court to make a finding that he was a casual laborer of PW 2. 15. He testified that they used to pass through the narrow gate on the lower part of the farm and he couldn’t see what was in PW 2 s house. 16. He submits that the complainant used to employ him as a casual shamba boy and release him. 17. He submits that if work was a lot, then the complainant would ask him to come with more workers and he would pay him to pay them. 18. The court is satisfied that the appellant was employed as a servant by the complainant. 19. There was a relationship of a master and servant. Work was done and a payment was made by way of daily wages. This was a master and servant relationship capable of creating a platform where an offence of theft by servant could take place like in the instant case. 20. PW-1 testified during cross examination that he did not know when the appellant was employed. This confirms there was an employee employer relationship. I am satisfied that the appellant was an employee of the complainant. 22. The court will now look at the question whether there was something capable of being stolen. The offence cannot be completed with the establishment of the master servant relationship on its own. The prosecution has to go above and beyond that by proving that there was something capable of being stolen and that the same belonged to the complainant. 24. The respondent produced receipts to prove that his property was stolen. 25. It is this court’s holding that there is no clear way to tell whether the items existed.The items that are in the receipt could have been taken to the complainant’s other farm. 26. A picture of the empty cow shed or the chicken coop for instance would have demonstrated and established that the animals that were capable of being stolen existed. 27. The doubt is escalated by PW 1 who testified that he did not know what was at the complainant’s place. 28. The Respondent should have in the least tendered evidence at the minimum a dairy milk delivery point register or a document for eggs delivery center or perhaps pesticides purchase receipts from an agrovet. None was produced. 29. The respondent would have called the vendor’s delivery personnel to prove that the goods were delivered to the scene of crime. A delivery note would have created the nexus of the existence of the property at the complainants home. 30. The court is not satisfied that the stolen items and animals ever existed at the scene of crime and that the appellant was accused of stealing. The foregoing creates a doubt in the mind of the [court. It](http://court.it) is this court’s finding that the offence was not proven beyond reasonable doubt. 31. The court shall now address its mind to the issue whether the accused was furnished with the exhibits by the prosecution. 32. It is the appellant’s case that he was denied access to the complainant’s Mpesa statement and the receipts. 33. The court has looked at the proceedings and noted that on 10.8.23 the State counsel supplied him with a copy of the investigation diary, 4 witness statements, 3 receipts and the mpesa statement extract. 34. The court notes from the proceedings that the appellant raised a concern that though he received the said documents he did not know how to read. The trial magistrate thereafter proceeded to take the evidence of PW 1 and totally disregarded the accused persons illiteracy plea. 35. It is this court’s finding that this threatened, infringed and violated the appellants right to a fair hearing as guaranteed under Article 50(2)(b) of The Constitution. This also took away his right to access to justice as guaranteed under Article 48 of The Constitution. 36. The appellant's capacity to conduct a meaningful cross examination of the prosecution witnesses and his capacity to use the exhibits to advance his case was compromised by this [omission.](http://ommission.in/) 37. [In](http://ommission.in/) so holding I have looked at the nature of the cross examination that the appellant mounted from where I note that the appellant did not make use of the exhibits that he had indicated that he couldn’t read effectively. 38. When the appellant informed the court that he couldn’t read the exhibits then the trial magistrate should have taken appropriate measures to ensure that the appellant understands or appreciates the contents of the documents. 39. Exhibits that the appellant could not read were of no relevance or value in helping him to effectively defend himself. 40. Even if the court looked at the mpesa statement in isolation, the prosecution would have called for and produced the Mpesa statements of the [appellant so as to prove the completion of the money sending transaction. It](http://appellant.it/) did not. 41. The investigating officer did not even bother to investigate the appellants phone so as to satisfy himself that there was money sent by the complainant to the appellant’s number which in any event was not been given nor produced in the court as evidence. 42. The conviction and the resultant sentencing are vitiated by the said lapses and I so hold. 43. On another front, the appellant raised a ground that the trial court did not conduct an analysis of the evidence that was tendered in court. 44. The court has looked at the record and notes that the trial magistrate carried out an analysis. Each court has its own way and style of conducting an analysis of evidence in the process of writing a judgment. There is no set analysis template that all courts [adopt. It](http://adopt.it) is fully discretionary. 45. At the end I find that the conviction is not based on quicksand in the circumstances as analysed herein above. 46. A sentencing that is predicated on an illegal conviction cannot stand. I do hereby set it aside. **Determination;** 47. The appeal has merit. **Order;** The appeal succeeds. The conviction and sentencing are set aside. **Dated, Signed and Delivered in court at Eldoret this 8th Day of July 2026.** **…………………………………** **JOHN CHIGITI (SC)** **JUDGE**