[2022] KEHC 14620 (KLR)

William & 2 others v Republic (Criminal Appeal E047 of 2021) [2022] KEHC 14620 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14620 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E047 of 2021

GMA Dulu, J

October 19, 2022

Between

Daniel Nguthi William

1st Appellant

Rose Kayai David

2nd Appellant

Eunice Musenya Nzungi

3rd Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence of Hon Sagero in Makueni Chief Magistrate’s Court Criminal Case No.551 of 2018 pronounced on 27th July 2022)

Judgment

1. The three appellants were charged in the magistrate’s court with two substantive counts and one alternative count.

2. Count I was for stealing stock contrary to section 278 of the Penal Code. The particulars of offence were that on November 17, 2018 at Ukia location, Mukuyuni Sub-County within Makueni County, jointly with others not before court stole five cattle valued at Kshs 90,000/= and six goats valued at Kshs.30,000/= all valued at Kshs.120,000/= the property of Joseph Maithya Mutiku

3. Under count II they were charged with stealing contrary to section 268 as read with section 275 of the Penal Code. The particulars of offence were that on the same date and at the same place jointly with others not before the court stole 6,000 litre jumbo tank valued at Kshs.38,000/= the property of Joseph Maithya Mutiku.

4. In the alternative to both count I and II, they were charged with handling stolen goods contrary to section 322 (1) (2) of the Penal Code, the particulars of offence being that on the same date and place, otherwise than in the course of stealing dishonestly undertook the removal of 6,000 litres jumbo tank knowing or having reason to believe to be stolen goods.

5. They denied all the charges. After a full trial, they were convicted of main count I and II, and sentenced to pay a fine of Kshs.100,000/= on count I and in default 2 years in jail, and a fine of Kshs.20,000/= on count II in default 6 months imprisonment. The sentences to run concurrently.

6. Dissatisfied with the conviction and sentence of the trial court, the three appellants have come to this court in a single appeal, filed through counsel Kithi & Company advocates on the following grounds –1. The learned magistrate erred in convicting the appellants when there was no evidence to support the charge of stealing stock contrary to section 278 of the Penal Code.2. The magistrate erred in convicting the appellants when there was no evidence to support the charge of stealing contrary to section 268 as read together with section 275 of the Penal Code.3. The learned magistrate erred in failing to appreciate that the evidence tendered in support of the charges purely disclosed a matter that fell within the ambit of a civil claim and was therefore not criminal in nature.4. The trial magistrate erred by narrowly framing the issues before him thereby resulting in the wrong decision.5. The trial magistrate erred in failing to take into consideration the points of law set out in the appellants’ submissions.6. The learned magistrate erred in law and fact as the judgment of the court was against the weight of the evidence.7. The learned magistrate erred by clearly ignoring the inconsistencies raised by the prosecution in their case and the clear lack of evidence on the prosecution’s part.8. The learned magistrate’s judgment is erroneous and based on wrong principles.9. The learned magistrate erred in convicting the appellants without the evidence tendered being beyond reasonable doubt.10. The learned trial magistrate erred in law and in fact by convicting the appellants when it was clearly unsafe to convict them.11. The learned magistrate erred in law and fact in imposing a sentence that was too harsh in the circumstances.

7. The appeal was canvassed through filing of written submissions. In this regard, I have considered the submissions filed by Kithi & Company advocates for the appellants and the submissions filed by the Director of Public Prosecutions for the respondent.

8. This being a first appeal, I have to be guided by the principles restated in several cases on the obligations of a first appellate court to re-evaluate the evidence on record and come to its independent conclusions. In this regard, in the case of Isaac Nganga alias Peter Nganga Kahiga–vs- Republic – Criminal Appeal No. 272 of 2005, the Court of Appeal stated as follows“In the same way, a court hearing a first appeal also has a duty imposed on it by law to carefully examine and analyse afresh the evidence on record and come to its own conclusion on the same but always observing that the trial magistrate court had the advantage of seeing the witnesses and observing their demeanor and so the first appellate court should give allowance of the same. There are now a myriad of case law on this but the well-known case of Okeno –vs- Republic (1972) E.A 32 will suffice.

9. I have reconsidered the evidence on record, and perused the judgment of the trial court. The uncontroverted evidence is thatall the appellants were employees of Ken-Rep a financial services organization.

10. The son of Pw1 Joseph Maithya Mutiku the complainant, one Emmanuel Maithya, who at one time worked for that organization, procured a loan therefrom which failed to service. From the record, Pw1 stated that his said son infact informed him about the loan and the default.

11. The evidence further was that, subsequent to the default, demand letters were sent for recovery of the loan and intended sale of the livestock and water tank which the son had portrayed to be his property, but the money was not paid. Thus on the day in question the appellants while on duty went into the compound of the complainant Pw1 in broad daylight, and took the items in the absence of Emmanuel Maithya, but in the presence of the complainant (Pw1) and managed to sell the livestock. However, criminal proceedings were commenced against them before the water tank was sold, and it was then released to the complainant.

12. In criminal cases, the burden is always on the prosecution to prove their case against the accused beyond any reasonable doubt. An accused person has no burden to prove his innocence. Did the prosecution prove the two stealing charges herein against the appellants beyond any reasonable doubt?

13. For the offence of theft to be proved, an item has to be moved. In my view, all the items alleged to have been stolen were physically removed by the appellants.

14. The second element of the offence is proof of ownership of the items by the complainant. In my view, in the present case, the prosecution did not prove beyond reasonable doubt that the items in the charge sheet belonged to the complainant. In my view, the fact that someone is in possession of something is not per se proof of ownership. It is a rebuttable presumption and in this present case, in all probability the items belonged to his son, who was never called by the prosecution to testify

15. In my view, with the evidence on record in the present case, the prosecution should have availed Emmanuel who appears to have been the only wage employee in his family, to show that he did not represent to his former employer that he was the owner of the cows and water tanks, because he infact lived in the same compound. The absence of this crucial witness without explanation did not help the prosecution case, and an adverse inference have been made by the magistrate against the prosecution case, that his evidence might contradict that of Pw1. See Bukenya –vs- Uganda (1973) E.A. I make that adverse inference herein.

16. Since an accused person has no burden to prove his innocence, the failure by the prosecution to call this crucial witness created a gap in their case, whose benefit should have been given to the appellants and I do so.

17. The last element of the offence of theft is that the taker or remover of the items alleged to be stolen, should have no colour of right. In the present case, the evidence on record is that the witness who was not called by the prosecution – Emmanuel, admittedly a former employee of K-Rep, had informed Pw1 that he had defaulted in loan repayment. The evidence is that the same Emmanuel identified these items as his own. It was also the evidence of the defence on record, that the same Emmanuel had disappeared with the company loan documents, which would have disclosed the security he provided for the loan, and was not challenged. The appellant’s defence also was that Emmanuel identified the items taken as the security for the loan.

18. In those circumstances, it cannot be said that the appellants or their employer did not have a reasonable claim or colour of right to the items listed in the charge sheet, even if it was a mistaken claim. Thus the prosecution did not prove that the appellants did not have colour of right to the items.

19. With the evidence on record therefore, I find that the prosecution did not prove beyond reasonable doubt, the elements of the offence of stealing against any of the three appellants. Their convictions will thus be quashed and sentence set aside.

20. Lastly, I want to observe that in framing the issues for decision, in the case, the magistrate did not frame relevant issues to the criminal offences of stealing, but framed issues related to a contract between Emmanuel Somba and Mukuyuni Financial Services Association. That in my view, was an error, as none of those two mentioned legal persons had come to court to pursue a claim of breach or enforcement of contract. Instead, it was the Director of Public Prosecutions who brought the appellants to court on criminal charges, alleging that they had stolen the properties of Pw1 Joseph Maithya Matiku.

21. Consequently and for the above reasons, I find merits in the joint appeal. I allow the appeal and quash the conviction of each of the three (3) appellants on both counts, and I set aside the sentences imposed on each of the three appellants. If the fines were paid, they be refunded. If imprisoned, each of the three appellants should be set at liberty unless otherwise lawfully held.

DELIVERED, SIGNED & DATED THIS 19TH DAY OF OCTOBER 2022, IN OPEN COURT AT MAKUENI.....................................GEORGE DULUJUDGE