[1999] KEHC 50 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA Criminal Appeal 61 of 1999

(From the original conviction and sentence in criminal case No. 443of 1998 of the Chief Magistrate's Court at Mombasa) WILLIAM MWAKANONGO SOWA..................................................... APPELLANT VERSUS REPUBLIC.......................................................................................... RESPONDENT JUDGEMENT

The Appellant was convicted for the offence of stealing byServant contrary to Section 281 of the Penal Code and was sentencedto serve/10 months imprisonment on 25. 2.99. Soon after on 12. .3. 99he filed a Petition of Appeal through his Advocates challenging theconviction but not the sentence. The Appellant had already servedthe sentence when this Appeal was argued.

The Appellant was a Clerical Officer with the Moi Airport TaxiSACCO. As such clerk it was alleged that the Sacco funds werecollected, recorded, secured and banked by him on behalf of theSacco. Between 14. 11. 96 and 30. 6.97, it was alleged that someKsh.658,410 came into his possession but was never accounted for,hence the charge laid that he stole the amount.

The Learned Senior Principal Magistrate found as proved beyonddoubt that the Appellant was such employee. He further believed the evidence of the seven Prosecution Witnesses called to prove the charge and in particular the Auditor commissioned by the Sacco to investigate the Accounts of the Sacco, who testified as PW 6, David Gachanja. He delivered himself on such evidence as follows:-

"Mr. Gachanja who did audit told the courtthat he covered the period November 1996 toSeptember 1997. He found out that the amountcollected was Ksh,1,318,000/-.Kshs.557,850 /- was booked. There werevoucher payments of Kshs.318,530/-. He alsonoted fictitious overpayment of Ksh.241,190/-.He found the accused could not account forKshs.650,410/-.

Accused did not explain anything about theabove figure since he is the one who wascollecting cash and this money could not beseen then obvious he misappropriated it. Hemust have stolen it".

A finding of guilty was made,

The grounds of Appeal, laid and argued by the Appellant's

Counsel Mr. Gakuhi are these:-

1. That the learned trial Magistrate erred in lawand fact in convicting the Appellant againstthe weight of evidence.

2. That the learned trial Magistrate erred in lawand fact in failing to find that there was noevidence to connect the Appellant with thealleged theft.

3. That the Learned trial Magistrate erred in lawand fact in failing to find that the auditreport (Exhibit 3) covered the period up to3rd September, 1997 whereas the Appellant hadstopped working in April 1997.

4. The learned trial Magistrate erred in law andfact in failing to find that whereas theAppellant was charged with the theft ofShs.656,410/- the investigating officer in hisevidence stated that the amount stated was Shs.83,410/-.

5. The learned trial Magistrate erred in law infailing to require the Appellant to plead tothe charge that was amended on 2,7. 98. Hefurther erred in amending the charge withoutany. application for the same by theprosecutor.

6. The learned trial Magistrate erred in law andfact in convicting the Appellant on the basisof an incomprehensive and inconclusive report of the auditor.

7. The learned trial Magistrate erred in law infinding that "since he (the Appellant) is theone who was collecting the cash and this money could not be seen then obvious he misappropriated it."

He combined grounds 1,2,4,6 and 7 and argued them together, and argued grounds 3. and 5 separately.

In essence, Mr. Gakuhi submitted that the learned trial Magistrate wholly relied on the evidence of the Auditor and ignored other prosecution evidence. Such evidence shows that the Executive Committee through PW 1 found, some 500,000/- missing upon checking some documents. In the same breath, the same witnesses said the money collected by the Appellant was Shs.145,650. The Treasurer of the Sacco also testified as PW 2 and said he did not notice anything wrong upon checking the books. He had worked with the

Appellant for 3 years. The Chairman was also called as PW 3 and said the Treasurer could authorise the Appellant to use Sacco money. It was his evidence that the Audit report showed a shortage of Shs. 683,110/- which is different from the one in the charge sheet.

Another society Chairman testified as PW 4 and said he was the one who had stopped the Appellant from working on 15. 9.97. But hewas not involved in the investigations on the missing funds nor didhe know anything about the Audit which was done.

Then there was the Secretary of the Sacco PW 5 who handled allcorrespondence until January, 1998. He did not know if the wholeaudit was done or how much was stolen, if any, by the Appellant.

In view of such evidence by all those Sacco officialsMr. Gakuhi submitted it was doubtful that the case was proved tothe standard required in law.

As for grounds 3 he submitted that the period covered by theAudit report given by PW 6 was 1. 11. 96 to 3. 9.97 but the chargesheet shows the period as 14. 11. 96 to 30. 6.97. The period between1. 7.97 and 3. 9.97 is therefore irrelevant to the charge.

There was no. evidence to : show the amount lost within thatperiod, if any. The Accounts, books relied on to compile the reportwere not produced and particularly cash vouchers. The Auditorfurther found that the shortage was Shs.442,220 but added some241,190 which he called unauthorised payments which no otherwitness in the Committee had referred to. The investigatingofficer PW 7 did not receive a report on unauthorised payments butof stolen money. There were therefore no unauthorised payments bythe Appellant.

Finally, Mr. Gakuhi submitted on Ground 5 that the charge wasamended on 2. 7.98 on application by the prosecution. Theysubstituted the figure of 656,460/- with 658,410/-. That was afterthree prosecution witnesses had testified. But after the application was allowed the Appellant was not asked to plead afreshto the amended charge as by law required. In his submissiontherefore S.214 Criminal Procedure Code was flouted and all theproceedings thereafter were a nullity.

Senior State Counsel Mrs. Mwangi defended the assessment ofthe evidence and the conclusions reached by the learned SeniorPrincipal Magistrate. In her submissions, the evidence of themembers of the Sacco Committee, past and present as represented byPW 1, PW 2, PW 3,, .PW 4 and PW 5 was considered in that they all

Testified that the Sacco offices were locked up for non-payment ofrent which action triggered off an Audit inspection authorised bythe General Body of Members. That some of those witnesses talkedabout different figures does not detract from the fact that therewas prima facie evidence of misappropriation of Sacco funds whoseexact amount could only be ascertained through an Audit. PW 6 wasthe expert and his evidence was therefore correctly relied upon.That the Auditor covered a period of Audit in excess of that statedin the Charge Sheet did not cause any prejudice to the Appellant who was still in employment throughout the period covered by theAuditor.

As for the amendment of the Charge Sheet there was nothing substantial about the amendment since only the figure was varied slightly. There was therefore no failure of justice in omitting to take a second plea from the Appellant. The omission was curable under S. 382 of the Criminal Procedure Code.

I have carefully re-evaluated the evidence as I am "bound to do on a first Appeal. I have also considered the submissions of both Counsel. First the technical objections raised under grounds 5 and 3.

It is correct as pointed out by learned Counsel Mr. Gakuhithat the court has the power to alter the charge by amending orsubstituting a new charge if from the nature of the evidencetendered and before closure of the prosecution case, it is founddefective in form.; or in substance. That is the wording of S.214 ofthe Criminal Procedure Code. It is only done if the court thinksit is necessary to meet the circumstances of the case. There areprovisos to that section that the Accused person shall be calledupon to plead to the altered charge and may at his discretiondemand the recall of witnesses for cross-examination. That was notdone in this case. The submission made is that all proceedingsthereafter between 2. 7.98 and 25. 2.99 when 5 more witnessestestified and judgement was delivered were a nullity and theconsequential order would be a retrial.

The alteration made in this case was the substitution of afigure with another, between them a difference of Shs.1,950/-. Itwas made on application by the prosecution in open court and in thepresence of the Appellant. No objection was raised then or at anystage thereafter. The omission to require him to plead afresh tothe amendment must therefore be weighed against the provisions ofS.382 of the Criminal Procedure Code which saves suchirregularities if they do not occasion a failure of justice. I amof the view that it did not since the Appellant had all along denied involvement in the crime whatever figures were thrown athim. That ground of Appeal fails.

Ground 3 also covers variance between the charge and theevidence. It relates to the period stated in the Charge Sheet andthe period covered in the Audit report. The specific complaint isthat the period covered, was up to 3. 9.97 whereas the Appellant had stopped working in April 1997. But there is no evidence that theAppellant, stopped working in April 1997. The prosecution evidencethrough PW 4 is that he was ordered to stop working on 15. 9.97 toawait a decision of a General Meeting of the Sacco members. Hehimself stated in evidence that he was stopped from working on11. 9.97.

The period covered by the Audit report did therefore cover theperiod within which the Appellant was engaged in his duties as theSacco Clerk. There is no merit in the complaint.

As for the other grounds which were argued as one, I agreewith Mrs. Mwangi that the evidence of the Sacco officials whotestified was considered. That the officials' evidence or actualfigures varied did not -detract from their evidence which wasconsistent, that the Sacco offices were locked up due to non-payment of rent and a casual check on the available books and otheraccountable documents showed a possible misappropriation of theSacco funds. They all pointed at the Appellant as the personresponsible for collection, recording and banking of the funds.They further confirmed a general meeting having been held toresolve the crisis and a resolution being made for the appointment of an Auditor. The Auditor's was expert evidence and I do notfault the learned trial Magistrate for accepting his opinion. TheAuditor may only be faulted for including in the amountsmisappropriated, the figure of Shs.241,190/- which he termed asunauthorized payments. There was no evidence of unauthorisedpayments from the Treasurer. PW 2, who according to the ChairmanPW 3 had that authority. I see no merit in those grounds of Appealalso.

The upshot is that the Appeal is dismissed in its entirety.

Dated at Mombasa this day of 26th November 1999

P. N WAKI JUDGE