Michael Macharia Gatimu v Republic [2015] KEHC 5322 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 22 OF 2012

MICHAEL MACHARIA GATIMU  ………………..………….APPELLANT

-VERSUS-

REPUBLIC ………………………………………………...RESPONDENT

(Appeal from the original conviction and sentence in Criminal Case Number 1224 of 2011 in the Senior Principal Magistrate’s Court at Kerugoya – HON. K.K.CHERUIYOT  (SRM)

JUDGMENT

MICHAEL MACHARIA GATIMU,  has appealed  to this court  against both  the conviction  and sentence meted out against  him 17th October, 2012 by Honourable K.K. Cheruiyot –Senior Resident Magistrate  in Kerugoya –Senior Principal Magistrate’s Court Criminal Case NO. 1224 of 2011.

Before the trial court the appellant had been charged together  with one JOHN EDWIN KARIUKI  with the offence  of stealing  by servant  contrary to Section 281  of the Penal Code.  The particulars  given  in the charge sheet  indicated that  the appellant  on 7th and 16th November, 2011  stole a total of kshs 40,000/- which monies  belonged to Jamii Trust Ltd  his employee and which monies  came to his possession by virtue  of his employment.  The appellant after trial  was convicted  and sentenced to pay a fine of kshs 50,000/- and in default  12 months  imprisonment.  The appellant  was aggrieved  and  filed this appeal citing seven grounds  in his petition  which are as follows:

That the learned magistrate erred in law  and in fact in failing  to find that the prosecution had not proved the charge  of stealing  by Servant contrary to Section 281 of the Penal Code beyond reasonable doubt as required by law.

That the trial learned magistrate erred in law  and in fact by finding that the appellant has stolen property  belonging to Jamii Trust Ltd yet there was no proof that the alleged stolen property belonged to Jamii Trust Ltd thereby showing outright  bias in the case.

That learned magistrate  erred in law and in fact by finding that  the appellant had stolen property belonging to Jamii Trust  Ltd, yet there  was no proof that Jamii Trust property  had lost such propertyas there was no audit report produced to show it.

That the learned magistrate erred in law and fact by shifting the burden of proof from the prosecution to the defence thereby occasioning miscarriage of justice.

That the learned magistrate erred in law in fact  by dismissing  the appellant’s  evidence and submissions without giving good reasons thereto.

That the learned magistrate erred in law  and fact in imposing  a severe sentence  in the light of the charge against  the appellant and  circumstances  surrounding the offences.

That the learned magistrate erred in  law and fact by convicting  the appellant  without clear, uncontroverted  and admissible evidence present to court.

The appellant through Wangechi her counsel in this appeal made submissions  before this court and mainly  emphasized  on ground  three  of this appeal.  The  appellant has contended that  there was no evidence tendered  to show that the money stolen belonged to the complainant  and in support of this contention he pointed out  the absence of an audit report from Jamii Trust Ltd during trial proving that the money had been lost. The appellant further submitted that the mobile phone used to show that transactions took place between PW1 and the appellant was personal and there was nothing to connect the same with the complainant.   It  was submitted that the prosecution at the trial failed to  produce vouchers  or statements  to show how PW1 obtained the money from  the complainant or its agents  and that there  was no prove that the appellant stole  the money.

The appellant has also pointed out that the prosecution witnesses contradicted  themselves  and gave  the example of PW2 who said  that a total of kshs 52,080/- got lost while PW4  said the  total amount stolen was kshs 52,090/-.

The State through Mr Omayo opposed this appeal stating that the prosecution adduced overwhelming  evidence against the appellant at the trial court.  Mr Omayo pointed out  PW1 adduced sufficient  evidence showing how she sent  the money to the appellant herein and the same  was supported by P. exhibit 1.  He also  pointed out the appellant  was an employee to the complainant as demonstrated by exhibits  marked as         P. exhibit  3a,b and c and it is that employment  that the state submitted  was used by  appellant to steal from  the complainant its employee.  He contended  that all the witnesses summoned corroborated one another  and their evidence  were consistent contrary to the appellant’s view that there were contradictions.

On the ground  that the appellant’s  defence  was not considered, the state submitted that the defence  put forward  by the appellant was not credible  as there was no corroboration provided by witnesses to prove  that the appellant  was being paid proceeds for his personal business.

I have considered the appellant’s submissions  and I  have also considered  the submissions  made by Omayo representing the state.  My work as an appellate court is to evaluate  the evidence tendered and determine whether  the same was sufficient  enough  to discharge the burden normally placed  upon the prosecution  to prove their case beyond  reasonable doubt and also  whether  the trial  was correct to  make the decision it did  based  on the evidence presented before it.

It is uncontested that the appellant herein was an employee  of the complainant.  The existence of the complainant as a limited liability  company duly incorporated is also not in doubt. The prosecution produced sufficient exhibits  which I have had occasion to see to prove the same.  PW1 told the trial court that she was also an employee of the Jamii Trust Ltd  or the complainant and that the appellant  was her boss.  The appellant  appeared not to have disputed  this fact as he described her in his defence  as  a “colleague“ meaning they were  working together for the complainant .  PW1 in her evidence explained to the trial court how she  was instructed  to send money by the appellant  to him via mpesa .  She told the trial court that she sent a total of kshs 40,000/- to the appellant directly and kshs 12,000/- to the appellant’s co-accused JOHN EDWIN KARIUKI  who was discharged  by the trial court  pursuant to Section 210 of the Criminal Procedure Code.

The prosecution in my view adduced sufficient evidence to corroborate the evidence of PW1. The exhibits produced by PW4 particularly P. exhibit 4  which is mpesa statement  of PW1 and P. exhibit 6 the mpesa statement  belonging to the appellant  are consistent  with what PW1 told the court.   The same  is also consistent  with the offence  under which the appellant was charged.  He was charged with stealing kshs                     35, 000/- on 7th November 2011 and kshs 5000/- on 16th November 2011.  The transaction  exhibited on the mpesa statement  on the respective dates  are captured .  The  trial court observed  the demeanor of  PW1 when  testifying  in court and I find  that the observations made  by the trial court  in his judgment  shows that the witness  was credible  and due weight  on her evidence was placed by the learned magistrate.  In  my evaluation I find that  the trial court  was correct.

The appellant in his  defence admitted  that he  received kshs 40,000/- via mpesa from PW1.  However  he told the trial court that the money  was meant for his personal business and called two witnesses  to corroborate  the evidence.  The trial  court however was not persuaded and rejected  the same.  I have not found, from the evidence  adduced by the defence any basis  to fault  the trial magistrate on this score.

The appellant has pointed out the absence of audit  report  from the  prosecution case to show that the complainant lost  money.  The question  that I pose  on this aspect  is whether  theft  by servant  can only be proved by audited accounts.  My answer is in the  negative .  It  is my considered  view that sufficient  evidence of whatever nature requires to  be placed before  court of law  and it suffices if in the opinion of court, the same is  sufficient to establish beyond  reasonable doubt that an offence took place  and that there is a direct connection of the offence to the accused .  In the case  before the trial court  the learned magistrate  was satisfied  based on the evidence  adduced that the prosecution had proved  their case beyond  reasonable doubt.  I agree  with Mr Omayo for state  that the four witnesses called by the prosecution  gave consistent  evidence that proved  their case  beyond reasonable doubt.  I am not persuaded by the sentiments  expressed  by the appellant  that the figures   stated  by PW2  were different  from the figures  stated by PW4.    However,  in so far as the prosecution  case is concerned the material particulars   on the case facing the appellant  was that on the two cited occasions he  stole a total  of Kshs 40,000/- belonging to  the complainant.  That is the amount that appellant  was charged for stealing and  that is the offence for which he was convicted.

The prosecution in  my view adduced sufficient evidence  before the trial court  and the trial court  was correct  to find that the onus of proof  had been discharged  by the prosecution.

On the sentence, I find that the provisions of Section 281 of the Criminal Procedure Code  provides a sentence of  7 years  imprisonment  upon conviction.  The appellant  herein was handed  a non-custodial  sentence of kshs 50,000/- or 1 year imprisonment in default.  The sentence  cannot be termed excessive  in my view.

In view  of the reasons aforesaid  I do not find merit  on this appeal. I find no basis to interfere with the finding of the trial court either  on conviction  or sentence .   The  same is upheld.  The appeal  is dismissed.

R.K. LIMO

JUDGE

DATED, SIGNED AND DELIVERED IN KERUGOYA THIS 29TH DAY OF APRIL 2015in the presence of

M/S Wangechi counsel for appellant

Mr Omayo for State

Mbogo Court Clerk