https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10996

Kiamburi v Republic (Criminal Appeal E046 of 2025) [2026] KEHC 10996 (KLR) (20 July 2026) (Judgment) Neutral citation: [2026] KEHC 10996 (KLR) Republic of Kenya In the High Court at Thika Criminal Appeal E046 of 2025 NM Orina, J July 20, 2026 Between Wilson Kimotho Kiamburi Appellant and Republic Respondent (Being an appeal against conviction and sentence in Criminal Case number 1051 of 2020 of Hon. JHS Wanyanga (PM) delivered on 21 October 2025 at Thika Law Courts) Judgment 1.The Appellant was found guilty of committing the offence of stealing by servant contrary to Section 281 of the Penal Code. The particulars of the offence are that the Appellant on diverse dates between 1 January 2014 and 10 March 2020 at Chania Feeds Manufacturers Limited in Thika West Sub County within Kiambu County being a servant to Chania Feeds Manufacturers Limited stole Kshs. 29,178,765.00 the property of Chania Feeds Manufacturers Limited which came into his possession by virtue of his employment. Upon conviction, the Appellant was sentenced to serve five (5) years’ imprisonment. 2.Aggrieved by the conviction and sentence, the Appellant has preferred an appeal to this court through an amended petition of appeal dated 28 October 2025 on the following grounds of appeal:a.That the learned trial magistrate erred in law and facts in convicting the Appellant without proof beyond reasonable doubt that he dishonestly appropriated any money belonging to the complainant contrary to Section 281 of the Penal Code;b.That the prosecution failed to establish an employer-employee relationship within the meaning of Section 281 as the only document produced was an appointment letter without NSSF/NHIF contributions or control and supervision;c.That the trial court erred by treating the appointment letter as conclusive proof of employment contrary to the principles in Everret Aviation Ltd vs KRA [2013] eKLR where the court held that control and payment not title, determine employment;d.That the prosecution failed to prove that the alleged amount of Kshs. 29,178,765.00 was ever received, handled, or converted by the Appellant;e.That the trial court erred in relying on an unsigned, unverified audit report without supporting accounting ledgers, reconciliations or forensic analysis linking specific shortfalls to the Appellant;f.That the learned magistrate misapplied the law on circumstantial evidence by convicting the Appellant despite alternative explanations consistent with innocence contrary to Sawe v. Republic (2003) KLR 364 and R v. Kipkering arap Koske (1949);g.That the Prosecution evidence was contradictory and unreliable particularly regarding who handled payments, issued receipts and performed reconciliations;h.That the handwriting expert’s opinion was admitted and relied upon without proper authentication of specimen signatures or proof of chain of custody contrary to Section 77 of the Evidence Act;i.That the trial court unlawfully shifted the burden of proof to the Appellant by requiring him to explain deposits in his accounts contrary to Article 50(2)(a) of the Constitution;j.That the alleged theft figure of Kshs. 29,178,768.00 was never substantiated through documentary or testimonial evidence and was therefore speculative;k.That the trial court ignored the defence evidence which provided a reasonable alternative explanation – that the Appellant conducted legitimate brokerage and sales activities independent of the complainant’s accounts;l.That the prolonged investigation and trial period (2020-2025) amounted to unreasonable delay contrary to Article 50(2) of the Constitution and rendered the proceedings unfair;m.That the learned trial magistrate failed to appreciate that if any offence existed it would fall under stealing by agent (Section 283) and not stealing by servant (Scetion 281). Whereas the evidence on record disclosed, at most, an agency or commission based relationship thereby rendering the charge defective and the conviction unsafe and unlawful;n.That the trial court’s finding that the Appellant earned Kshs. 60,000.00 per month was not supported by any prosecution or defence evidence;o.That the continued freezing of the Appellant’s bank accounts since 2020 has caused extreme financial hardship and violated the Appellant’s rights to property and fair administrative action under Articles 40 and 47 of the Constitution and there was no forfeiture order;p.That the learned trial magistrate erred in law by failing to order the release of the frozen accounts upon conclusion of trial despite the absence of a forfeiture order;q.That the conviction was against the weight of evidence based on suspicion, speculation and uncorroborated testimony;r.That the entire judgment and conviction were unsafe, unlawful, and contrary to the Criminal Procedure Code and Constitution of Kenya.s.That the learned trial magistrate erred in law and facts in relying on the auditor’s report which could not establish the guilt of the Appellant and ascertain that 29,000,000.00 (sic) was lost and that it was the Appellant who stole the said amount;t.That the learned trial magistrate erred in law and facts in relying on the testimony of the accountant who was not qualified without considering other factors that could have led to the loss of the money and therefore it could not be the Appellant who was wholly responsible for the said loss;u.That by wholly relying on the auditor’s report, the learned magistrate erred in law and facts by ordering that all the monies in the accounts of the Appellant belonged to the complainant hence should be recovered; andv.That trial magistrate erred in law and fact by convicting the Appellant based on conjecture and subjective reasoning. 3.In these lengthy, repetitive and longwinded grounds of appeal, the Appellant seeks the quashing of the conviction and the setting aside of the subsequent sentence. Alternatively, the Appellant seeks a retrial before a different magistrate. 4.As a first appellate court, I am obliged to evaluate all the evidence presented before the trial court afresh and to draw my own independent conclusions. This duty is, however, undertaken with awareness that I neither saw nor heard the witnesses first hand. [see, Okeno v Republic [1973] EA 32]. Evidence at Trial 5.In support of its case, the Prosecution called eight (8) witnesses who testified while the Appellant testified under oath but did not call any witnesses. PW1 (Geoffrey) testified under oath that he is a director of the complainant company which has been in operation for more than 25 years. It was his testimony that the Appellant was employed by the company as a salesman on 23 March 2012. The Appellant’s duties included visiting customers and collecting money from them. This was either in cash or bank slips. The Appellant would issue receipts upon collection. Upon collection of the money, the same could be handed over to the cashier and company accountant together with copies of the receipts. The salesman would give one receipt to the customer, the second receipt to the cashier, a third one to accounts office and a fourth one was a book copy. In this case, the witness testified, the original and second receipts would have the correct amount but the third and fourth receipts would have different details from the originals. The witness further testified that one of the accountants, Mary Wanjeri, discovered that there was an anomaly on 6 March 2020 indicating an unaccounted for sum of Kshs. 6,800,000.00. This anomaly was reported to the police at Makongeni police station and subsequently the Appellant was arrested. Thereafter, the company contracted an auditor who revealed that a sum of Kshs. 29,178,765.00 for the period between the years 2014 and 2020. The Appellant’s employment letter as P-Exh. 2. 6.On cross-examination by Mr. Namule, PW1 testified that the audit covered the period 2012-2020 and the audit exercise was done in 2020. He further testified that the cashier had been receiving fake receipts with wrong amounts and these anomalies were noted by the accountant. 7.PW2 (James Kibe Mugo) testified that he had been a customer of the complainant company where he bought chicken feeds which would be delivered by Karanja and Njoroge at his home in exchange for cash. He would then be given a receipt. The witness testified that Kimotho subsequently asked him to be sending the money to him through M-pesa instead of giving him cash. He complied kept sending money to Kimotho through M-pesa until the company informed him not to do that anymore but to send to a bank account. 8.On cross-examination by Mr. Wainaina for the Appellant, the witness testified that the feeds would be delivered on time and he personally had no problem with Kimotho because the feeds were delivered. He further stated that he couldn’t recall the phone number he used to send the money to but the same would be deposited by an agent and Kimotho would confirm receipt. 9.PW3 (Virginia Wangari Gichoya) testified that she is a chicken farmer and she would get chicken feeds from the complainant company through Kimotho. It was her testimony that she would deposit money at an M-pesa agent near Shem (guka)’s home. Shem is the one who had introduced her to Kimotho. She would get supplies every Thursday upon depositing the money and informing Shem and Kimotho. One day she received a call from mary who informed her that she had arrears of Kshs. 35,000.00. she denied having any arrears and volunteered to provide her M-pesa statement showing her weekly payments. She went to the M-pesa agent and received a statement. She had worked with Kimotho (the Appellant) for four years. 10.On cross-examination by Mr. Wandugi, the witness testified that he had approached Guka when she started rearing chicken and it is Guka who had guided her to deposit money at the M-pesa agent. She testified that the agent never gave her receipts and never informed her who the money was deposited to. She testified that although the Appellant came once to check on her chicken rearing business, she never instructed her to deposit money at the M-pesa agent. She, however, testified that she would call Kimotho every Wednesday to inform him that she had made payments. She couldn’t recall his phone number and the same was not indicated in her statement. 11.PW4 (Mary Wanjeri Mwangi) testified that she had been an accountant with the complainant company since 2003. She had noted in 2020 that the company was unable to meet its obligations and this prompted her to check the books and receipts. When she noted discrepancies with receipts she informed one of the directors who suggested that an audit for one year be done, upon auditing 2019-2020, it was noted that the Appellant’s receipts were having different amounts. The Appellant would give the customer and accountant a correct receipt (white and blue copy) but the copy given to the cashier (pink copy) together with cash would be a different amount. From this audit, it was discovered that a total sum of Kshs. 6,800,000.00 was missing. The witness showed several receipts with discrepancies. In one instance, a receipt for John Njenga (blue copy) showed an amount of Kshs. 40,000.00 while the pink copy which had the same receipt number (0715) showed an amount of Kshs. 2,800.00. this receipt had been signed by the Appellant. The receipt for Nancy Njenga (no. 0716) showed an amount of kshs. 44,000.00 in the blue copy while the pink copy showed an amount of Kshs. 500.00. she produced the bundle of receipts as P-Exh. 3(a)-(g). 12.The witness testified that she informed the director about the results of this audit and the matter was reported to the police. The company decided to continue the audit from 2019 backwards and more anomalies were noted. It was discovered that the Appellant started forging receipts in 2014 and a total of approximately Kshs. 29,000,000.00 had been stolen from the company. It was her testimony that the Appellant exploited a weakness in the system which did not link the cashier’s account with the accounts. 13.On cross-examination by Mr. Namule, the witness testified that sales were high and it was difficult to note that some cash wasn’t received. The initial suspicions had been that customers were not paying. She also stated that her involvement in unearthing this wasn’t an audit per se but a check which revealed some anomalies prompting escalation to the director. 14.PW5 (Joyce Njeri Nyambura) testified that in 2017 she was approached by one Shem Kibe who gave her a number to be depositing money to one Wilson Kimotho to pay for feeds. The number was 0719536105 registered in the name of Wilson Kimotho Kibui. Mr. Kibe would give her money which she could send to Wilson Kimotho through her phone. She was also introduced to Virginia Wangari Gichoya who could remit money the same way through her to Wilson Kimotho. This later changed in 2020 when she was visited by Mary an accountant of the complainant company who instructed her to pay directly to the company account at Equity bank. The witness further testified that she knew the Appellant who would visit her shop at Uthiru when delivering feeds to customers. She was later informed that the money she had deposited to the Appellant’s phone number had not reached the complainant. She produced M-pesa statements for the phone in question which was registered in her mother’s name – Janet Nyambura Kuria. The exhibit was produced as P-Exh. 7. 15.On cross-examination by Mr. Obuli, the witness testified that she used to deposit money to her phone number before sending to the Appellant. She couldn’t tell the exact amount she had transacted on behalf of Kibe and Virginia but indicated that it was a lot. 16.PW6 (No. 236993 - CIP Kiplagat Kimaiyo) testified that he is a document examiner attached to DCI headquarters. He had received various exhibits from Makongeni police station marked as A1-A7 2014-2020 files containing receipts, questioned documents containing disputed signatures and handwriting M1-M7 containing known handwriting of Wilson Kimotho Kibue. In his analysis, he confirmed that the handwriting and signatures were made by the same author – Wilson Kimotho Kibue. He produced his report as P-Exh 6. 17.On cross-examination, he testified that he didn’t get the Appellant’s specimen signature but he was supplied with his known signature. 18.PW7 (Christopher Kioi) testified that he was contacted by the complainant company to investigate misappropriation of funds and his report showed that a sum of Kshs. 29,178,765.00 had been misappropriated from January 2014 to March 2020. He testified that the records had been manipulated. He produced the audit report as P-Exh 3. 19.On cross-examination by Mr. Obuli and Mr. Namule, the witness testified that he had conducted a forensic audit by examining 100% of the record. He also indicated that this was a specific audit so it did not have comparative figures. 20.PW8 (No. 68063 – PC Kiama Nderitu) testified that he was the investigating officer of the case. He testified that a report was made by one Geoffrey Kenneth Waiharo, a director of the complainant company of a suspected theft by servant by the Appellant. He testified that he had been granted orders to investigate the Appellant’s bank accounts held at Equity Bank, KCB Bank, Unaitas bank and National bank of Kenya. He testified that the said bank accounts had a total sum of kshs. 16,321,146.00 at the time of freezing. The accounts showed that there were only deposits between 31 July 2018 and 4 March 2020. He produced the court orders and the Appellant’s bank statements obtained pursuant to those orders. It was his testimony that the deposits on the Appellant’s accounts were questionable considering his job. Upon being questioned, the Appellant offered no answer. He further testified that various customers’ Safaricom statements indicated that money was being paid directly to the Appellant. 21.On cross-examination by Mr. Muhanji, the witness testified that he did not establish if the accused had business outside his employment and he had not enquired about his monthly salary as a sales manager. He further stated that one Joyce Njeri used to receive money on behalf of the Appellant to deposit in the Appellant’s personal account. He also testified that there was no conclusive investigation to establish the trail of stock in and stock out with the cash comparisons but the delivery notes had confirmed the losses. 22.The Appellant was placed on his defence upon the finding by the trial court that a prima facie case had been established against him. He testified as DW1 and did not call any witnesses. He admitted that he worked for the complainant company but denied stealing from the company. It was his testimony that the money in his accounts was from a business he was running being the selling of maize germs. The income from this business, he testified, was paid through M-pesa then it was transferred to his bank accounts. He testified that his M-pesa statement for the period 1 October 2014 to 28 February 2015 (which he produced as D-Exh.1) shows that one Pheris Karimi sent him Kshs. 50,000.00 on 29 December 2014 and he subsequently made a deposit to his Equity bank account of Kshs. 45,000.00 on 30 December 2014. This amount, he averred, was payment for maize germ supplied to Pheris Karimi. He also testified that he had several other customers from whom he had earned brokerage fees. He also asserted that the prosecution witness was never a customer of the complainant but rather his personal customer. 23.With this testimony, the defence closed its case. Analysis and Determination 24.When considered alongside the trial record and evidence at trial, the issues arising from the grounds of appeal are twofold. First, whether the evidence presented at trial discharged the burden of proof – beyond a reasonable doubt that the offence was committed by the Appellant. Second, this analysis will consider whether the order of forfeiture made by the trial court was proper. 25.The offence of stealing by servant is created under Section 281 of the Penal Code which states as follows:If the offender is a clerk or servant, and the thing stolen is the property of his employer, or came into the possession of the offender on account of his employer, he is liable to imprisonment for seven years. 26.There are two key ingredients to this offence which must be satisfied being; proof of employment; and proof of the theft of the employer’s property which may have come into possession of the offender by virtue of the employment. 27.On the first ingredient of the charge, it is a fact that the Appellant was an employee of the Claimant company. An appointment letter was adduced in evidence and the same was not challenged. The letter produced as P-Exh. 2 is dated 3 March 2012 and indicates that the Appellant was appointed to a fulltime position with a gross salary of Kshs. 30,000.00. The Appellant himself admitted to have been an employee of the complainant company in his testimony. I am satisfied, therefore, that there was conclusive proof of the Appellant’s employment. On whether theft was proved, evidence demonstrates that the company conducted an audit report that brought to light discrepancies in numerous receipts, amounting to Kshs. 29,178,765.00. The evidence adduced before the trial court further demonstrated that the discrepancies were attributable to the Appellant’s sales. Further, cogent evidence including witness testimonies of PW2, PW3 and PW5 demonstrated that while the Appellant was conducting sales on behalf of the complainant, the payments were made directly to his M-pesa number rather than the company account. 28.The Appellant has impugned the handwriting expert’s evidence in challenging the evidence against him. This court takes note that the specimen signatures of the Appellant were not taken. However known signatures of the Appellant were produced and used against the questioned documents. This, in the court’s view did not cause any prejudice to the Appellant as the findings only stated that the questioned documents were authored by the same person who signed the known signatures and that person is the Appellant. 29.In his defence, the Appellant alleged to have been running a business that sells maize germs to as the source of the money deposited in his accounts. This evidence did not displace the cogent evidence against him that he manipulated the company receipts when undertaking the sales on behalf of the company and deposited money meant for the company in his personal accounts. Further, the Appellant did not adduce any other evidence of this alleged business other than the single transaction he referred to in his testimony. 30.Section 108 of the Evidence Act Cap 80 (Laws of Kenya) provides that, “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” Further, Section 109 of the Evidence Act stipulates that, “The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person." 31.The Appellant also contends that the trial court misapplied the law on circumstantial evidence by convicting him despite there being alternative explanations. Having considered the evidence as a whole, I am satisfied that the same forms one unbreakable chain that the Appellant who was employed by the complainant acquired property belonging to the complainant in the course of his employment by falsifying receipts upon receiving payments directly to his account for the chicken feeds he was selling on behalf of his employer. It is my finding that the trial court was right in convicting on the basis of this evidence and the conviction did not offend the rule on circumstantial evidence which was stated as follows in Sawe v Republic [2003] KECA 182 (KLR) as follows:22…In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden, which never shifts to the party accused. 32.This court, therefore, finds that the evidence adduced before the trial court sufficiently established the Appellant’s guilt and there were no other co-existing circumstances that weakened that evidence. Further, it is my finding that the trial court did not shift the burden of proof to the Appellant as alleged by the Appellant. The finding of guilt by the trial court was not based solely on the statements of account belonging to the Appellant but rather a chain of evidence that established his guilt. 33.The Appellant has also alleged that the prolonged investigation and trial period rendered the proceedings unfair and violated his rights under Article 5(2). I do not find any substance to this allegation. First, the trial record demonstrates that the prolonged trial period was occasioned by the Appellant who changed advocates more than five times. Whereas an accused has a right to counsel and the trial court should respect their choice, the exercise of such a right should not be used to delay proceedings. The trial court indulged the Appellant on several occasions and recalled witnesses when appropriate. Second, I have not encountered in the trial record any instance of prejudice suffered by the Appellant during the trial. It is my finding that there was no substantial delay in the trial that would have occasioned an injustice to the Appellant. In any case, an injustice arising out of a delayed investigation or trial is one where the accused is not able to access sufficient facilities or witnesses to defend himself due to passage of time. That was not the case here. 34.On whether the order for forfeiture was proper, Section 178 of the Criminal Procedure Code bestows upon a trial court the power to order restitution of stolen property. In the trial court’s sentencing ruling dated 7 November 2025 upon convicting the Appellant, the court ordered for restitution of the sum of Kshs. 12,404,388.00 from the Appellant’s accounts which were frozen. This order was legal and the same shall not be interfered with. 35.The sentence imposed by the trial court of five (5) years’ imprisonment is also supported by Section 281 of the Penal Code which provides for a maximum penalty of seven (7) years for the offence. In imposing this sentence, the trial court noted that the Appellant had contemptuously withdrawn a sum of Kshs. 4,000,000.00 from his accounts which were frozen in an attempt to defeat justice. I have no reason to interfere with this sentence. 36.In conclusion, this appeal is devoid of merit and the same is hereby dismissed. The conviction was safe and the sentence was lawful. JUDGMENT DATED AND DELIVERED VIRTUALLY THIS 20TH DAY OF JULY 2026________________NABIL M. ORINAJUDGEIn the presence of: The AppellantMs. Koech for the RespondentLinda – Court Assistant