Caroline Mumbi Ngondi & John Kariuki Ireri v Republic [2018] KEHC 6248 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL NO. 41 OF 2017

(Consolidated with HCRA NO. 42 OF 2017)

CAROLINE MUMBI NGONDI...................1ST APPELLANT

JOHN KARIUKI IRERI..............................2ND APPELLANT

VERSUS

REPUBLIC .......................................................RESPONDENT

J U D G M E N T

1. The appellants were aggrieved by the judgment of Embu Senior Resident Magistrate in CM Criminal Case No. 591 of 2014 delivered on 23rd March 2017. The first appellant who was the second accused was charged separately with count I with the offence of fraudulent false accounting contrary to Section 330(b) of the Penal Code. In count II the two appellants were jointly charged with the offence of stealing by servant contrary to Section 281 of the Penal Code.

2. In count III, count VI, count IX and count XII, the second appellant was separately charged with separate offences of forgery contrary to Section 349 of the Penal Code. In count V, VIII and XI the second appellant was charged with separate offences of stealing by servant contrary to Section 268(1) as read with 281 of the Penal Code. In counts IV, VII and X the second appellant was charged with separate offences of fraudulent false accounting contrary to Section 330(b) of the Penal Code.

3. The appellants were convicted of all the counts as charged.  In counts I  the 1st appellant was sentence to seven (7) years imprisonment while in Counts II, both appellants were sentenced to serve seven (7) years imprisonment.  In Counts III, VI, IX and XII, the appellants were sentenced to serve three (3) years imprisonment on each count.  In Counts IV, V, VII, VIII, X and XI, the 2nd appellant was sentenced to serve seven (7) years imprisonment on each count.

4. The sentences were ordered to run concurrently.

5. The first appellant raises several grounds of appeal which can be summarized as follows:-

a) That the case against her was not proved beyond  any reasonable doubt and that the evidence  consisted of errors, contradictions, and that some   witnesses were not called to testify.

b) That Article 50(2a) of the Constitution was violated  in that the appellant was charged with similar    cases in different files whereas the same witnesses   were called to testify.

c)  That her alibi defence was not considered by the   trial magistrate.

6. The second appellant cited several grounds of appeal  condensed as follows:-

a)  That his case was not proved to the standards  required in criminal cases.

b)  That some crucial witnesses were not summoned    to  give evidence.

c) That the trial magistrate rejected the evidence of the complainant and gave the prosecutor a chance to go and coach him.

d) That the documents produced in evidence including payment slips were not reliable and that books of account were not produced.

e)  That the appellant was remanded in custody for more than 24 hours without being arraigned before    the court.

7.  The prosecution called fourteen witnesses in this case. The evidence of PW1 was that he worked with Alexander Mugo M'Tetu a distributor of Keroche Breweries products based in Embu town. At the time of the incidents, PW2's business had been in operation for about nine years. He said that the 1st appellant was an employee serving as a cashier while the 2nd appellant was the depot manager.

8. It was PW1's further evidence that he was tasked by the company to check on business stocks at the Mutunduri depot due to some loss of funds that had been detected. Later PW1 was questioned by CID Embu on five banking slips for stock suspected to be fake. The 2nd appellant was the manager who was tasked with the duties of maintaining the stock register. The slips in question had a forged signature resembling that of the witness. PW1 denied having banked the amounts contained therein as follows:-

i)    Ksh.156,000/- dated 08/08/2013 by Siakago “A”.

ii)   Ksh.176,400/- dated 24/08/2013 by Jenaro

iii)  Ksh.179,150/- dated 11/09/2013 by Jenaro

iv)   Ksh.156,000/- dated 04/11/2013 by Mwaniki

v)   Ksh.162,000/- dated 16/11/2013 by Mwaniki

9. It was PW1's evidence that the forged banking slips were all for the period the second appellant worked as the manager and the first appellant as the cashier.

10. PW2 testified that he was a super distributor of Keroche Breweries products. He produced his business licence  and distributor agreement in evidence. He said  payments by customers are done through banking in the  company's account at Barclays Bank Embu. PW2 said that he learnt from his watchman that his employees were stealing and selling stock at night. He conducted  investigations which revealed that the 2nd  appellant was involved in the malpractice including making fake  banking slips.

11. PW3 testified that he sold Keroche products which he obtained from PW2’s company and banked the money for purcase of stock in PW2's business account at   Barclays Bank Embu. He said he was surprised when  PW2 called him and informed him that he had not paid  the company Ksh.93,000/- for purchase fo stock. He was  also shown a banking slip of Ksh.176,400/- allegedly   banked by him on 24/08/13 whose funds had not been  traced in the bank. PW3 denied having banked the said slip.

12. PW4 told the court that he distributes Vienna products   at Gachoka and that he purchases his stocks from Alex    Mugo Depot in Embu. The mode of payment was  depositing funds in the depot’s business account at   Embu Barclays Bank. The practice was that the banking  slips were presented to the Embu depot at the time of   collecting the beers.

13. PW5 was a customer of PW1 at his Embu depot. He was a distributor of Keroche products and paid for them in   cash or through banking in the account of PW1 at   Barclays Bank Embu in the year 2013. He recalls that on   4/04/2014 he was called to Embu CID office where he  was  shown two banking slips of Ksh.156,000/= and   Ksh.162,000/- in his name “Mwaniki” as the depositor.    He denied making the said deposits. He identified the  banking slips in court.

14. PW6 conducted bank reconciliation for Alexander Mugo  M’tetu.  He was Chief accountant of the firm at the  material time. He found discrepancies between the   bankings slips, stock registers and bank statements.  The following bank slips were not reflected in the bank  statements for the relevant period:-

i.  Ksh.176,400/- dated 24/8/13

ii.  Ksh.179,150/- dated 11/09/13

iii. Ksh.156,000/- dated 4/11/13

iv. Ksh.162,000/- dated 16/11/13

The stock books reflected entries for the said pay slips entered on the dates indicated as those of the disputed bankings. PW6 concluded that some money in the business had been lost.

15. PW7 said he sells Keroche products at Siakago and he is known as “Councillor” or “MCA”. He testified that he   used to buy the products from PW2's depot through banking the cash in the business account at Embu Barclays Bank. The name of the depositor was indicated as “Councillor”    or “MCA” on the reverse. He denied that he banked Ksh.160,500/= on 22/07/2013 and    Ksh.156,000/= on 8/08/2013  in Alexander Mugo’s   business account.

16. PW8 testified that he used to deliver beer to one Robert Ngari at Runyenjes using his pick-up registration No KAW 851 D. On 2/03/14, the second appellant went to the sales depot and demanded to be given Ksh.168,000/= which had already been paid to him at  Embu depot by PW8 and a slip raised.

17. PW9 worked at the Embu depot and used to be sent by the second appellant to bank cash. He confirmed with the bank that the slips were fake for the money had not been banked on the account as the second appellant   claimed to have done. The slips indicated that the  depositor was one Mwaniki from Runyejes depot. Investigations revealed that Mwaniki who is PW5 had  paid the money in cash to the second appellant who was     in charge of receiving and banking cash. He denied    having banked the amounts indicated on the disputed    banking slips.

18. PW10 was an auditor who was tasked to conduct a   special audit on sales and banking transactions by PW1   in his business for the period between 1st May 2013 to  3rd March 2014. He was given documents including bank    statements, banking slips and sale ledgers covering the   period under investigation. He found some  discrepancies in the records. Some banking slips were   not reflected in the bank statements for the period    between 4th June to    August 2013 as follows:-

a)  Slip for Ksh.130,000/- dated 2nd May 2013

b)  Slip for Ksh.14,400/- of 12th July 2013

c)  Slip for Ksh.162,000/- for 14/02/13

A payment from Siakago depot of Ksh.854,800/= for the period covering 23rd August to 9th September 2013.

A payment of Ksh.335,550/= for the month of January   2013.

A payment of Ksh.964,500/= for the period from 2nd November 2013 to 22nd March 2014 from Mwaniki.

The witness prepared and handed over his report to PW1 which showed that a total of Ksh.2,608,280/= could not be accounted for. The report was produced as an exhibit.

19.  PW11 the Operations Manager with Barclays Bank Embu testified that the banking slips particulars of  which were contained in a letter from the bank dated 8/04/2014  (Ex.20) were not genuine. He said the amounts  indicated therein were not banked in A/c No. 2023177512 for Alexander Mugo M’Tetu as shown in the  documents. The rubber stamps used No. 4 and No. 8    were fake and   had never been used by the cashiers at   the bank. According to him, the paper quality of the slips   in question was poor as compared to genuine bank slips issued by the bank.

20. He showed the court the genuine stamps of the bank which differed from the ones on the disputed slips. The   amounts allegedly banked were not reflected in the   bank statements issued by the bank for the relevant  periods.

21.  PW12 the document examiner compared the specimen   handwriting of the second appellant with that on the banking slips and found that they were made by the same author. He also examined stock records with the   specimen handwriting of the first appellant and found  them to have been made by the same author. He  produced his report in evidence.

22. The case was investigated by PW13 of CID Embu who  charged the two accused persons with the offence. His investigations were based on documents including stock registers, bank statements, banking slips and ledgers   provided to him by PW1. He sent specimen signatures and hand writings of the appellants together with the  disputed documents to the document examiner and   received the report which was positive.

23. PW13 is the one who sent the 17 banking slips to the   bank for Verification. The bank confirmed that the amounts purported to have been banked in the account  No. 2023177512 had not been banked. The slips were    fake and the sums in question could not be accounted  for.

24. The defence of the first appellant was that she was an   employee of Keroche depot Embu from 1st July 2013 to 27th February 2014. She worked as a cashier at the depot and was normally assisted by PW7 to deposit the  sale   proceeds. She said that she did her work as  required but has been framed. She denied all the allegations against  her.

25. The second appellant told the court that he worked for   PW2 as the manager of the Keroche Depot Embu from   2010 to 2013. His duties involved overseeing running of  the depot. Any banking slips were handed over to the    accountant who also used to check and take stocks   and verify any    payments made. It was the duty of the  salesmen to bank the money and avail banking slips.  He denies having stolen any funds from the complainant.

26. The issues for determination in this appeal are identified   as follows:-

i) Whether this case was proved to the standards required in criminal cases,

ii) Whether the constitutional rights of the 1st appellant  were violated by being charged with two  cases with similar charges.

27. The 1st appellant attached the court proceedings in  Embu Criminal Case No. 593 of 2014 where she was  jointly charged with twelve (12) counts the 2nd appellant   and   convicted of five (5) counts. The charges were of   stealing by servant contrary to Section 268(1) as read   with  Section 281 of the Penal Code; fraudulent false  accounting contrary to Section 330 (b) of the Penal Code  and forgery contrary to Section 349 of the Penal Code.

28.  I have looked at the charges in that case and in Embu   Criminal case no. 591 of 2014 which gave rise to this appeal. I note that in each of the twelve counts in both  cases reflect different amounts of money allegedly stolen on different dates. The charges of forgery and  fraudulent false accounting relate to the relevant  document supporting the offence of stealing. I see no    duplicity of charges in any of the files.

29. It was held in the case of PETER OCHIENG VS   REPUBLIC [1985] eEKLRcited with approval in the    case ofOtieno Kopiyo Gerald Vs Republic [2010]   eKLRthat:

It is undesirable to charge an accused person with so many counts in one charge sheet. That alone may occasion prejudice.  It is proper for a court to put the prosecution to its election at the inception of the trial as to the counts, upon which it wishes it to proceed.  Usually, though not invariably, no more than twelve counts should be laid in one charge sheet.  The others can be withdrawn under Section 87(a) of the Criminal Procedure Code (cap 75)

30. I believe this is the principle that guided the investigations officer. It is my finding that the     constitutional rights of the 1st appellant were not   violated.

31. The issue of being remanded for over 24 hours was not raised by the 2nd appellant during the trial. However, the   court will nevertheless address it at this stage.

32. Article 49 of the Constitution provides:-

(1) An arrested person has the right—

(a) to be informed promptly, in language that the person  understands, of —

(i) the reason for the arrest;

(ii) the right to remain silent; and

(iii) the consequences of not remaining silent;

(b) to remain silent;

(c) to communicate with an advocate, and other persons whose assistance is necessary;

(d) not to be compelled to make any confession oradmission that could be used in evidence against  the person;

(e)  to be held separately from persons who are serving a sentence;

(f) to be brought before a court as soon as reasonably possible, but not later than—

(i)   twenty-four hours after being arrested; or

(ii)  if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary  court day, the end of the next court  day;

(g) at the first court appearance, to be charged or informed of the reason for the detention  continuing, or to be released; and

(h) to be released on bond or bail, on reasonable  conditions, pending a charge or trial, unless there  are compelling reasons not to be released.

(2) A person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.

33. I have gone through the submissions of the 2nd appellant  and note that he has not indicated the date of arrest   and the date he was arraigned in court.  From the court   file it appears that the date of plea was 17/04/2014. The charge sheet gives 3/04/2014 as the date of arrest  and 7/04/2014 as the date the accused was arraigned in       court.

34. It is trite law that where an accused person's rights have  been violated under Article 49 of the Constitution, he   has a right to sue the state for damages.

35. The Court of Appeal held in the case of JULIUS KAMAU MBUGUA VS REPUBLIC Criminal Appeal No. 5 of 2008which was cited with approval in the case of John Mwangi Wachira Vs Republic [2016] eKLRthat extra-judicial incarceration has no relation to the criminal trial process and each process must be dwelt  with  separately.  The court pointed out the provisions of  Section 72(6) of the repealed Constitution that allowed victims of such incarceration to seek compensation  through a civil process.

36. The 2nd appellant herein has a right to seek a civil  remedy for damages. The prosecution adduced  evidence to demonstrate that the two appellants were employees of the complainant. Alexander Mugo M'Tetu  based at the main office in Embu.

37. The first appellant was the cashier while the second  appellant was the company manager. The company was  carrying out business of distribution of Keroche Breweries products and had several depots outside Embu town. The letters of appointments were produced and supported by the evidence of PW1 and PW2.

38. It was explained that the customers used to bank  money in the company account No. 2023177512 at  Barclays    Bank Embu and present slips to the office as they collected their stocks. The practice was that  customers rarely paid for stock purchases. Any cash  paid was    received by the cashier and subsequently  banked. Some  malpractices in handling cash, stealing  stock and cash was discovered by the company. This theft was covered using fake banking slips purportedly  showing that the amount had been banked in the   account.

39. In count I PW1, PW7 and PW confirmed that the banking   slip of Ksh.156,000/- was fake. The amount was not  banked in PW2's bank account. This evidence was   supported by a letter from the manager of Barclays  1stappellant made a false entry in the stock register that  the said amount was banked by PW7 who denied it in his evidence.

40. In count II, the banking slip of Ksh.156,000/= dated 8/03/2013 was found to have been prepared by the 1st  appellant. The evidence of the document examiner   PW12 corroborated that of PW1, PW6 and PW11 proving   that the money indicated in the banking slip was stolen.

41. The 1st appellant made the false entry in the stock records while the 2nd appellant prepared the banking slip. This is evidence of theft in that the money was not banked in the business bank account. As the learned magistrate rightly found, the prosecution proved that the appellants jointly stole Ksh.156,000/= from their  employer on the date of 8/08/2013.

42. Count III is supported by the evidence of PW1, PW6,  PW10, 11 and PW12. The banking slip in question was  made by the 2nd appellant and was used to steal funds of the company. The prosecution established that the two   appellants made the document without authority and  with intent to defraud. With the handwriting and  signature having been confirmed to be that of the 1st   appellant, the denial in the defence was not plausible.

43. In regard to count IV PW1 testified that some signatures  had been forged in the fake banking slip of  Ksh.176,400/= purporting that other people including  himself had banked the money.  PW3 testified that he   did not bank the money for purchase of stock. PW11 confirmed that the money was never banked in PW2's  account on the 28/3/13. The so called official stamp of  the bank was found to be fake. The bank statements for   the relevant period showed that there was no such banking done.

44. The 2nd appellant made a false entry in the register with an intent to defraud the complainant of the said sum. He also made the fake banking slip. He was the depot manager charged with overseeing the running of the  complainant's business. The funds under his care was not accounted for.

45. The document examiner PW12 confirmed that forgery  and   fraudulent false entries in the stock registers had  been made by the 2nd appellant.

46. It is my considered opinion that the prosecution established that the offences in counts IV, V and VI  against the second appellant.

47. In count VII the second appellant was charged with  making fraudulent entries that Ksh.179,150/- had been  banked by PW3 on 11/09/2013. The evidence of PW3  was that he never made the banking of the said   amount. The document examiner corroborated the   evidence of PW1 and PW11 that the second appellant  had forged the   slips  and made a false entry in the stock  register with intent to defraud.

48. PW7 testified that the bank did not receive the funds in  the business account on the 11/09/2013. The funds   were not traced and the 2nd appellant was responsible   from the evidence adduced.

49. I find the evidence of PW1, PW6, PW11 and PW12 overwhelming in respect of counts VI, VII and VIII.

50.   In count IX, the second appellant faced the charge of fraudulent false accounting in regard to Ksh.156,000/=  The banking slip dated 04/11/13 was found to be forged  from the evidence of PW11 by PW12. It was established that the second appellant had prepared the slip and with intent to defraud his employer. The evidence of PW1,PW6, PW10, PW11 andPW12 supported the charge of        fraudulent false account in the register, the forgery of  the banking slip and the fact that the funds were not accounted for.

51. This evidence was overwhelming in support of counts IX, X and XI against the second appellant. His defence did   not shake the prosecution's evidence.

52. In counts XII the second appellant is charged with forging banking slip for Ksh.162,000/- on 16/02/13.  PW11 testified that the banking slip was fake as  detected from the fake official stamps and in  comparison with he bank statements. This evidence corroborated that of PW2, PW3, PW10, PW11 and PW12.

53. I have considered the defences of appellants and find that they are not plausible. The learned magistrate rightly them rejected as mere denials. This case was strongly backed by documentary evidence which was   not shaken by the denials of the appellants.  I find that  the convictions in counts I, II, III, IV, V, VI, VII, VIII, IX, X, XI and XII were supported by cogent evidence and are  safe. I hereby uphold the convictions in all the said     counts.

54. The sentences provided for the offence of fraudulent false accounting contrary to Section 330(b) of Penal Code is a maximum of seven (7) years imprisonment.  For the offence of stealing by servant contrary to Section 268(1) as read with Section 281, the maximum sentence  provided is seven (7) years imprisonment. The  maximum sentence for the offence of forgery  contrary to Section   349 of the Penal Code is three (3)  years imprisonment.

55. The appellants were sentenced to seven years  imprisonment for the offences of fraudulent false  accounting and for stealing by servant on each count. For the offences of forgery, the two appellants were  sentenced to three (3) years imprisonment for each   count. The sentences in all the counts were to run concurrently.

56. The appellants were first offenders at that time. The   second appellant said he was married with children   while the first appellant said she was a mother of a two  year  child.

57. The sentences meted out were not excessive and were  within the law. However, I am of the considered opinion  that the mitigation of the appellants ought to have been taken into consideration during sentencing.

58. For this reason I hereby review the sentences in counts I, II, IV, V, VII, VIII, X and XI from seven (7) to four (4) years imprisonment.

59. In respect of counts III, VI, IX and XII the sentence is reviewed from five (5) to two (2) years imprisonment for  each count. The sentences will run concurrently as   ordered by the   trial court.

60. The appeal is hereby dismissed save for the review of    the sentences.

61. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 30TH DAY OF MAY, 2018.

F. N. MUCHEMI

J U D G E

In the presence of:-

Appellants

Mr. Mate for Respondent