[2013] KEHC 1988 (KLR)
The court found that the conviction of the appellant for stealing by servant was not safe, as the evidence did not directly implicate him in the theft. The testimony of the document examiner established that the accused was not the author of the cheques in question, and there was evidence that other individuals had...
Source-derived case information.
- Citation
- [2013] KEHC 1988 (KLR)
- Parties
- Appellant: Vincent Gitamo Okioga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 277 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- GO Shikwe
- Legal Topics
- Stealing by Servant, Criminal Appeal, Conviction Safety, Sentence Quashing
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Gitamo Okioga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for stealing by servant was safe and supported by the evidence.
- 2 Whether the appellant's involvement in the theft was proved beyond reasonable doubt.
- 3 Whether the sentence imposed should be upheld or set aside.
Ratio Decidendi
The court found that the conviction of the appellant for stealing by servant was not safe, as the evidence did not directly implicate him in the theft. The testimony of the document examiner established that the accused was not the author of the cheques in question, and there was evidence that other individuals had access to the cheque books. The prosecution failed to take specimen signatures of the directors, further weakening its case. The state conceded the appeal, acknowledging the insufficiency of the evidence. Consequently, the court quashed the conviction and set aside the sentence, ordering the appellant's release unless otherwise lawfully held.
Court Disposition
appeal_allowed
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 277 OF 2013
VINCENT GITAMO OKIOGA…......…..................................….. APPELLANT
VERSUS
REPUBLIC ……….……....................................................…RESPONDENT
(From original Conviction and Sentence in Criminal Case No. 677 of 2009 of the Chief Magistrate's Court at Mombasa – Hon. Odenyo - SPM)
JUDGMENT
The Appellant was Sentenced to two years imprisonment on Count III for the offence of stealing by servant contrary to section 281 of the Penal Code.
The particulars are that on the 3rd day of February, 2009 at CFC Bank along Digo road in Mombasa County being the accountant to Savings Tea Brokers Ltd, jointly with others not before the Court stole Ksh. 482, 740/= the property of the said Savings Tea Brokers Ltd. which came into his possession by virtue of his employment being an accountant.
In the first Count in which he was acquitted he had been charged with stealing by servant contrary to section 281 of the Penal Code. In that he had stolen cheque leafs Nos. 004449, No. 00482 and No. 004425, the property of Savings Tea Brokers Ltd.
The Second Count is also in respect to the offence of stealing by servant contrary to section 281 of the Penal Code in that being an accountant for the Complainant he stole Ksh. 476, 260/= the property of the Complainant which came into his possession by virtue of his employment and in the fourth Count he was charged with attempted stealing contrary to section 275 as read with section 389 of the Penal Code.
In respect to the third Count this is what the trial magistrate observed,
“ on the issue of stealing of Ksh. 482,740, I have reached the conclusion that the charge has been proved directly against the Accused. PW 6 who was an assistant to the Accused person said she received a call from CFC Bank asking her to confirm if cheque No. 4449 was valid. That she told the caller that she does not deal with cheques. That eventually accused came and she told him about the call and just as that time a second call from the Bank came and Accused received it. This evidence well corroborated by the evidence of PW 7 who said that he called and spoke to Ruth (PW 6) who transferred the call to the Accused who okayed the payment of Ksh. 482, 740/= to the payee named in that cheque”
As earlier pointed out the Appellant was absolved of the theft of the cheque leaves. It is in evidence that apart from the appellant there were other people who had access to the cheque books.
The document examiner testified to the effect that the Accused was not the author of the cheques. The specimen signatures of the directors were not taken.
This appeal is conceded by the state.
I do find that the Conviction was not safe.
The Conviction is quashed and Sentence set aside.
The Appellant is set at liberty unless otherwise lawfully held.
Judgment delivered dated and signed this 4th day of October, 2013.
….............
M. MUYA
JUDGE
4TH OCTOBER, 2013
In the presence of:-
Learned state Counsel Ms. Ogweno
Learned Counsel absent
Court clerk Musundi