Leonard Juma v Republic [2014] KEHC 5927 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT KITALE.

CRIMINAL APPEAL NO. 57 OF 2013.

LEONARD JUMA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT.

VERSUS

REPUBLIC:::::::::::::::::::;:::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT.

(Being an appeal from the original conviction and sentence of R.M. Washika – AG. PM in Criminal Case 55 of 2013 delivered on 6th May, 2013 at Kapenguria.)

J U D G M E N T.

The appellant, Leonard Juma, appeared before the Principal Magistrate at Kapenguria charged with stealing by agent, contrary to section 283 (b) of the penal code, in that on diverse dates between March, 2011 and 1st November, 2012, at Lelan area West Pokot County, being an a gent to Musa Bashane Khalid, stole Ksh. 187,000/= which had been entrusted to him to buy and deliver assorted pieces of timber.

After trial, the appellant was convicted and sentenced to serve four (4) years imprisonment.

Being dissatisfied with the conviction and sentence, the appellant preferred this appeal on the basis of the grounds contained in the petition of appeal filed herein on 14th May, 2013, by the firm of Risper Arunga & Co. Advocates.

Learned Counsel, M/s. Arunga, appeared for the appellant at the hearing of the appeal and submitted that the trial court erred in convicting the appellant without evidence proving that the appellant was given money to purchase timber.  That, there was nothing to show that money was given to the appellant for purposes of purchasing timber and that the money could have been for anything else or could have been the appellant's salary.

On sentence, the learned counsel, contended that the same was excessive.

In opposing the appeal, the Learned Prosecution Counsel, Mr. Chelashaw, submitted that the appellant was employed by the complainant and was given money to purchase timber.  That, the offence was not denied by the appellant who even made an offer to refund the money given to him.

On sentence, the Learned Prosecution Counsel contended that it was lawful and urged this court to dismiss the appeal.

Having considered the submissions by both the appellant and the respondent in the light of the appellant's grounds of appeal, the duty of this court is to re-consider the evidence and draw its own conclusions bearing in mind that the trial court had the advantage of seeing and hearing the witnesses.

In that regard, this court has considered the evidence by four (4) prosecution witnesses including the complainant Musa Bashare Khalid (PW1), a timber dealer, Omar Mwangi Kinuthia (PW2), another timber dealer, Jacob Kibet Magare (PW3), and the investigating officer, P.C. Samwel Kalinga (PW4).

The court has also considered the unsworn statement given by the appellant in his defence.

From the evidence, it is apparent to this court that the appellant accepted having received money from the complainant (PW1) for purposes of purchasing timber but failed to fulfill the obligation.  This fact is clearly indicated in his defence in which he went further to suggest a refund of the money by way of instalments.

Since the appellant was given the money and did not purchase timber or refund it to its owner, a strong presumption arose that he used the money for his own purposes and without the consent of the complainant thereby committing the offence of theft.

What was not made clear by the prosecution was whether the appellant received the money as an agent or employee of the complainant.

The evidence by the complainant suggested that the appellant was his employee.  Therefore, the appropriate charge would have been theft by servant contrary to section 281 of the penal code rather than theft by agent under section 283 of the penal code.

Consequently, the appellant's conviction for theft by agent is hereby quashed and substituted with a conviction for theft by servant contrary to section 281 of the penal code.

Both section 283 (b) and section 281 of the penal code carry a sentence of seven (7) years imprisonment.  Therefore, the sentence imposed upon the appellant by the learned trial magistrate was lawful but may be and is hereby reduced to two (2) years imprisonment in view of the appellant's mitigating factors and that he was a first offender.

Other than the foregoing alterations to the charge and the sentence, the appeal is dismissed.

[Delivered and signed this 19th day of March, 2014. ]

J.R. KARANJA.

JUDGE.