1. The appellant, Benson Macharia Muhoro was charged and convicted of the offence of stealing by servant contrary to section 281 of the Penal Code.
2. The particulars were that on diverse dates between 16th April 2020 and 4th August 2020 at Merimera Sub-location in Muguru Location, Kangema Sub-County within Murang’a County, being a servant to Mount Kenya Food Industries Limited, he stole goods valued at Kshs 310,915, the property of Mount Kenya Food Industries Limited which came into his possession by virtue of his employment.
3. Upon his conviction, he was sentenced to pay a fine of Kshs 500,000 in default to serve three (3) years imprisonment.
He was aggrieved by his conviction and sentence hence this appeal.
4. In his petition of appeal dated 13th June 2023, the appellant relied on five grounds of appeal in which he principally complained that the learned trial magistrate erred in law and fact by: convicting him on evidence which was marred by contradictions and inconsistences which was insufficient to sustain a conviction; relying on inadmissible evidence as the prosecution witnesses did not have locus standi; failing to take into account his defence; and; imposing a default sentence which was contrary to Section 28 of the Penal Code.
5. The appeal was prosecuted by way of both written and oral submissions.
The appellant, who appeared in person filed his written submissions on 17th October, 2023 while those of the respondent were filed on 6th March 2024.
The submissions were highlighted before me on 12th March 2024.
6. It is important at this juncture to give a brief summary of the evidence presented before the trial court.
The court record shows that in support of its case, the prosecution called a total of four witnesses. PW1, PW2 and PW3 were all employees of Mount Kenya Food Industries limited (hereinafter the company), the appellant’s former employer while PW4 was the investigating officer.
PW1, PW2 and PW3 all testified that at the material time, the appellant was employed by the company as a Sales and Marketing Executive. The company was trading in animal feeds known as Lisha Unga Maize Flour, Maize Jam and Rice Jam. The appellant’s appointment letter dated 1st April 2020 (P Exhibit 26) spelt out the duties and terms of his employment. Part of his duties included marketing the Company’s products and following up on the sales process from beginning to end.
7. According to the evidence of PW1, PW2 and PW3, the appellant was the link between the company and its customers. He would make orders on behalf of customers, deliver the ordered goods to the customers, receive payment on behalf of the company which he was required to either deposit in the Company’s bank account or remit cash to the company’s Accounts Department. He was also required to return to the company any unsold or rejected product.
8. The three witnesses testified that between 16th April 2020 and 4th August 2020, the appellant made a total of twelve (12) orders for two different products on behalf of customers namely, order Nos. 3624,3625,3961,4026,4049,4051,4109,4137,4154,4160,4167 and order No. 4190 which products were released to him by PW2 for delivery to customers.
After taking possession of the goods, the appellant did not fully account for them at the end of each day. He instead made partial payments as per the receipts issued by PW3, the company’s cashier. When payments received and goods returned were reconciled with the value of the goods the appellant had ordered and received, it was discovered that the appellant had not accounted for goods worth Kshs 310,915.
9. According to the evidence of PW1, after the deficit was discovered, the appellant was summoned to attend a meeting to explain the shortfall but he failed to show up. The matter was then reported to PW4 Sgt. Nicholas Mburugu at Kangema Police Station.
10. In his evidence, PW4 recalled that in the course of his investigations, he recovered all orders representing the goods which had been issued to the appellant for onward transmission to customers and all receipts issued to him by the company acknowledging payments received. From these documents which he produced as P Exhibits 2 to P Exhibit 29, he established that the appellant had stolen goods worth Kshs 310,915 from the company.
He then arrested and charged him with the offence for which he stands convicted.
11. When placed on his defence, the appellant elected to give a sworn statement and did not call witnesses. In his evidence, he admitted having been employed as a Sales and Marketing Executive by the company but denied having stolen its goods as alleged. He claimed that the company made a false and malicious complaint against him after learning that he had been employed by a rival company namely, Graiden Millers Limited which was its competitor in the Mount Kenya Region
12. On being cross-examined by the prosecution, the appellant admitted that he was responsible for placing orders on behalf of customers, organizing for delivery of the ordered goods, returning unsold or rejected goods but denied that it was his duty to receive payments from customers on behalf of the company as alleged by the prosecution.
13. This being the first appellate court, it is my duty to re-evaluate and thoroughly scrutinize all the evidence adduced before the trial court to arrive at my own independent conclusion on whether the appellant was correctly convicted and sentenced.
This duty has been enumerated in many authorities but for purposes of this Judgment, it will suffice to cite the case of David Njuguna Wairimu V Republic [2010] eklR in which the Court of Appeal relying on the celebrated case of Okeno V Republic [1972] EA 32 stated as follows:
“ In Okeno V R [1972] EA 32, the Court of Appeal for East Africa, laid down what the duty of the first appellate is. Its duty is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.’’
14. Having the above duty in mind, I have carefully considered the grounds of appeal as well as the parties rival written and oral submissions as well as the authorities cited.
I have also read and understood the evidence on record and the Judgment of the trial court.
Having done so, I find that only three key issues emerge for my determination, namely;
i. Whether the evidence adduced by witnesses who were employees of the company was admissible in evidence;
ii. Whether the prosecution proved its case against the appellant beyond any reasonable doubt.
iii. Whether the sentence imposed on the appellant was illegal.
15. Starting with the first issue, the appellant, relying on the persuasive authorities of Pascal Musyoka Mutua V Republic[2020] eKLR and Humphrey Wachira Karimi V Republic[2019] eKLR argued that since the complainant was a company which was a juristic person, the evidence of PW1,PW2 and PW3 was inadmissible in evidence as they had not been formally authorized by the company to testify on its behalf; that without such formal authorization, the prosecution witnesses lacked locus standi and this means that there was no complainant in this case.
16. The respondent in its response relied on yet another persuasive authority, namely, Republic V Judith Achola Mulala[2019] eKLR in which Musyoka J held that a complaint within the meaning of Section 89 of the Criminal Procedure Code does not refer to the information received by the police from the victim of a crime but to information laid before a court by a person initiating a criminal case before the court and consequently, the word complainant refers to the person who initiates the case in court through a complaint.
17. It was the respondents case that in all criminal cases, the complainant is the state through the Office of the Director of Public Prosecutions (ODPP) which after instituting a prosecution has a duty of lining up witnesses in support of its case; that PW1, PW2 and PW3 were called as prosecution witnesses in support of its case in the lower court against the appellant and they did not therefore need authorization from the company to testify.
18. On my part, after a thorough scrutiny of the Criminal Procedure Code, I find that although the word complainant is not defined therein, Section 2 defines the word complaint as “ an allegation that some person known or unknown had committed or is guilty of an offence’’.
The Blacks Law Dictionary 10th Edition defines a complaint to mean the initial pleading that starts an action in Civil cases and in Criminal cases; the formal charge accusing a person of an offence.
19. A close reading of Section 89 of the Criminal Procedure Code (CPC) which deals with the institution of criminal proceedings shows clearly that a complaint can be made either orally or in writing and that it is a complaint which forms the basis or initiates criminal prosecution. In my view therefore, the word complainant which is obviously derived from the word “ complaint’’ would no doubt refer to the person who makes a complaint as envisaged in Section 89 of the Criminal Procedure Code.
20. Under the Kenyan criminal justice system, criminal prosecutions are initiated and conducted by the Director of Public Prosecutions on behalf of the state. Article 157(6)(a)(b) and (c) speaks to the prosecutorial powers of the Office of the Director of Public Prosecutions.
The Article provides as follows:
‘’ The Director of Public Prosecutions shall exercise state powers of prosecution and may;
(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;
(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and
(c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).
21. From the foregoing, it is clear that a complaint within the context of Section 89 of the CPC does not refer to information made to the police reporting suspected criminal activity but to a formal charge laid before a court which initiates criminal prosecution against a person suspected of having committed an offence.
22. Given the foregoing, it is also clear that a complainant is the person who initiates the prosecution who as demonstrated above is the State through the ODPP and not the victim of a crime. This is why criminal cases are instituted in the name of the Republic against the person accused of having committed an offence. See: Roy Richard Elimena & Another V Republic [2003] eKLR.
23. The victim of crime becomes the state’s primary witness together with
witnesses who have knowledge of how the offence in question was committed. This explains why they are described as prosecution witnesses. In this case, although PW1, PW2 and PW3 were employees of the company, they gave evidence as prosecution witnesses in support of the charge preferred against the appellant by the ODPP. The company was just the victim of the crime alleged not the prosecutor or complainant. It’s employees, being prosecution witnesses, did not consequently require its authority to testify against the appellant.
It is thus my finding that PW1, PW2 and PW3’s evidence was admissible in evidence and the learned trial magistrate was perfectly entitled to rely on it.
24. Having dealt with the first issue, I now turn to consider the second issue which is whether the prosecution proved the charge preferred against the appellant beyond any reasonable doubt.
To establish the charge of stealing by servant, the prosecution was required to prove beyond doubt the following key ingredients of the offence;
i. That the appellant was an employee of the victim company.
ii. That the appellant stole property belonging to the company.
iii. That the stolen property came into his possession by virtue of his employment.
25. In order to prove theft, the prosecution had the onus of proving that the appellant fraudulently and without any colour of right converted the goods in question to his use with the aim of permanently depriving the company of the same.
26. In this case, it is not disputed as this was admitted by the appellant that at the material time, the appellant was employed by the company as its Sales and Marketing Executive.
It is also not disputed that in this capacity, he used to make orders for supply of a variety of animal feeds on behalf of customers and would also organize for delivery of the feeds to the customers.
What was disputed was whether the appellant was the one responsible for collecting payment from his customers and remitting the same to the company either through cash or bank deposits.
27. PW1, PW2 and PW3 were clear in their evidence that once the appellant placed orders on behalf of customers, the goods ordered would be released to him for delivery to customers and he was required to receive payment and remit the same to the company; that the appellant only made partial payments for some orders and in others he did not remit any payment nor did he return the goods back to the company. He did not also offer an explanation for the goods he had not accounted for since he failed to attend a meeting called for that purpose.
28. The testimonies of PW1 to PW3 was materially corroborated by the documentary evidence they identified in court in the form of invoices, receipts and goods return notes which were produced as exhibits by PW4, the investigating officer.
A perusal of these documents show that indeed the appellant failed to account for goods worth Kshs 310,915 which had been entrusted to him for onward transmission to customers.
As the appellant did not return the goods back to the company and he did not remit their sale proceeds or otherwise account for them, it can only be concluded that he took them with the intention of permanently depriving the company of their use which amounted to theft from his employer.
29. Regarding the appellant’s complaint that evidence of his previous conviction was wrongly admitted during the trial, I agree with the appellant that such evidence which obviously amounted to evidence of bad character was inadmissible during the trial by virtue of Section 57(1) of the Evidence Act unless it fell within the exceptions provided for in Section 157(1) (aa), (a) (b), (c) and (d) but it was admissible after conviction for the purpose of determining the appropriate sentence to be imposed in the case in which the evidence was admitted.
30. In this case, it is clear from the court record that the appellant’s record of previous conviction was first introduced in court on 6th December 2021 by a person who was not a witness, one Patrick Gaete Muhoro who described himself as the appellant’s brother long before PW4 testified.
The information was given to explain the appellant’s failure to attend court on the hearing date. The evidence of PW4 regarding the appellant’s past criminal record was given under cross examination by the appellant. It is not clear which questions PW4 was responding to and if they related to establishment of the appellant’s character, the evidence may have been admissible under Section 57(1) (b) of the Evidence Act.
31. Another argument made by the appellant is that the prosecution failed to call vital witnesses to testify in this case, namely, the Company’s Sales Manager and Human Resources Manager and the Company’s customers. According to the appellant, the company managers would have shed light on why it took them so long to ask him to account for the sale proceeds whereas the customers would have explained how they paid for their orders and to who; that failure to call these witnesses was fatal to the prosecution case.
32. My short response to this argument is that the law is clear as stipulated in Section 143 of the Evidence Act that no particular number of witnesses is required to prove a fact. Where the prosecution has adduced sufficient evidence to prove its case, failure to call additional witnesses cannot entitle the court to draw an inference that had such witness been called, their evidence would have been adverse to the prosecution case. Such an inference would only be made if the evidence called by the prosecution was scanty and hardly sufficient to prove its case.
33. In this case, I am satisfied that the evidence adduced by the prosecution through the testimonies of PW1 to PW4 was clear and straightforward and adequately proved it’s against the appellant to the required legal standard. In the premises, failure to call the additional witnesses referred to by the appellant was not fatal to the prosecution case.
34. Lastly, contrary to the appellant’s assertions, I did not find any material contradictions in the evidence adduced by the prosecution witnesses. Where they existed, they were minor and they did not go to the root of the prosecution’s case.
35. A reading of the trial court’s judgment shows that when convicting the appellant, the learned trial magistrate carefully and elaborately interrogated all the evidence presented before her including the defence offered by the appellant. She considered at length the defence given by the appellant and rejected it as incredible after comparing it with the evidence adduced by the prosecution.
36. After my own independent analysis of the evidence on record, I find no reason to fault the trial court’s finding that the prosecution had proved its case against the appellant beyond any reasonable doubt. I have no doubt in my mind that both the oral and documentary evidence tendered by the prosecution proved beyond doubt that the appellant committed the offence as charged.
I am thus satisfied that the appellant was properly convicted and his appeal against conviction fails.
37. On the appeal against sentence, the offence of stealing by servant attracts a maximum penalty of seven (7) years imprisonment. The learned trial magistrate in the exercise of her discretion decided not to mete out a custodial sentence on the appellant but instead settled for a non-custodial sentence of a fine of Kshs. 500,000 in default to serve three (3) years imprisonment.
It is important to note that whereas a trial court has discretion to impose any sentence authorized by the law, that discretion must be exercised judiciously and in accordance with the law.
38. In this case, although the amount of fine imposed on the appellant was lawful since it was dependent on the trial court’s discretion, I agree with the appellant that the sentence passed in lieu of payment of that fine was illegal as it violated Section 28 of the Penal Code which prescribes a maximum period of twelve (12) months imprisonment in default of payment of fines exceeding Kshs. 50,000.
In the premises, it is my finding that the sentence imposed by the trial court was illegal.
39. Taking into account the plea in mitigation offered by the appellant in the trial court; the nature of the offence and the fact that the appellant is not a first offender, I find that an appropriate sentence in this case would be three years imprisonment.
The sentence imposed by the lower court is consequently set aside and is substituted with a sentence of three (3) years imprisonment. The sentence shall take effect from the date sentence was pronounced by the trial court and shall take into account the period of about eight months that the appellant had spent in remand custody prior to his sentence.
It is so ordered.
DATED, SIGNED and DELIVERED at Murang’a this 26th day of June, 2024.
C.W. GITHUA
JUDGE
In the presence of:
The appellant
Ms. Muriu for the respondent
Ms. Susan Court Assistant
2. The particulars were that on diverse dates between 16th April 2020 and 4th August 2020 at Merimera Sub-location in Muguru Location, Kangema Sub-County within Murang’a County, being a servant to Mount Kenya Food Industries Limited, he stole goods valued at Kshs 310,915, the property of Mount Kenya Food Industries Limited which came into his possession by virtue of his employment.
3. Upon his conviction, he was sentenced to pay a fine of Kshs 500,000 in default to serve three (3) years imprisonment.
He was aggrieved by his conviction and sentence hence this appeal.
4. In his petition of appeal dated 13th June 2023, the appellant relied on five grounds of appeal in which he principally complained that the learned trial magistrate erred in law and fact by: convicting him on evidence which was marred by contradictions and inconsistences which was insufficient to sustain a conviction; relying on inadmissible evidence as the prosecution witnesses did not have locus standi; failing to take into account his defence; and; imposing a default sentence which was contrary to Section 28 of the Penal Code.
5. The appeal was prosecuted by way of both written and oral submissions.
The appellant, who appeared in person filed his written submissions on 17th October, 2023 while those of the respondent were filed on 6th March 2024.
The submissions were highlighted before me on 12th March 2024.
6. It is important at this juncture to give a brief summary of the evidence presented before the trial court.
The court record shows that in support of its case, the prosecution called a total of four witnesses. PW1, PW2 and PW3 were all employees of Mount Kenya Food Industries limited (hereinafter the company), the appellant’s former employer while PW4 was the investigating officer.
PW1, PW2 and PW3 all testified that at the material time, the appellant was employed by the company as a Sales and Marketing Executive. The company was trading in animal feeds known as Lisha Unga Maize Flour, Maize Jam and Rice Jam. The appellant’s appointment letter dated 1st April 2020 (P Exhibit 26) spelt out the duties and terms of his employment. Part of his duties included marketing the Company’s products and following up on the sales process from beginning to end.
7. According to the evidence of PW1, PW2 and PW3, the appellant was the link between the company and its customers. He would make orders on behalf of customers, deliver the ordered goods to the customers, receive payment on behalf of the company which he was required to either deposit in the Company’s bank account or remit cash to the company’s Accounts Department. He was also required to return to the company any unsold or rejected product.
8. The three witnesses testified that between 16th April 2020 and 4th August 2020, the appellant made a total of twelve (12) orders for two different products on behalf of customers namely, order Nos. 3624,3625,3961,4026,4049,4051,4109,4137,4154,4160,4167 and order No. 4190 which products were released to him by PW2 for delivery to customers.
After taking possession of the goods, the appellant did not fully account for them at the end of each day. He instead made partial payments as per the receipts issued by PW3, the company’s cashier. When payments received and goods returned were reconciled with the value of the goods the appellant had ordered and received, it was discovered that the appellant had not accounted for goods worth Kshs 310,915.
9. According to the evidence of PW1, after the deficit was discovered, the appellant was summoned to attend a meeting to explain the shortfall but he failed to show up. The matter was then reported to PW4 Sgt. Nicholas Mburugu at Kangema Police Station.
10. In his evidence, PW4 recalled that in the course of his investigations, he recovered all orders representing the goods which had been issued to the appellant for onward transmission to customers and all receipts issued to him by the company acknowledging payments received. From these documents which he produced as P Exhibits 2 to P Exhibit 29, he established that the appellant had stolen goods worth Kshs 310,915 from the company.
He then arrested and charged him with the offence for which he stands convicted.
11. When placed on his defence, the appellant elected to give a sworn statement and did not call witnesses. In his evidence, he admitted having been employed as a Sales and Marketing Executive by the company but denied having stolen its goods as alleged. He claimed that the company made a false and malicious complaint against him after learning that he had been employed by a rival company namely, Graiden Millers Limited which was its competitor in the Mount Kenya Region
12. On being cross-examined by the prosecution, the appellant admitted that he was responsible for placing orders on behalf of customers, organizing for delivery of the ordered goods, returning unsold or rejected goods but denied that it was his duty to receive payments from customers on behalf of the company as alleged by the prosecution.
13. This being the first appellate court, it is my duty to re-evaluate and thoroughly scrutinize all the evidence adduced before the trial court to arrive at my own independent conclusion on whether the appellant was correctly convicted and sentenced.
This duty has been enumerated in many authorities but for purposes of this Judgment, it will suffice to cite the case of David Njuguna Wairimu V Republic [2010] eklR in which the Court of Appeal relying on the celebrated case of Okeno V Republic [1972] EA 32 stated as follows:
“ In Okeno V R [1972] EA 32, the Court of Appeal for East Africa, laid down what the duty of the first appellate is. Its duty is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.’’
14. Having the above duty in mind, I have carefully considered the grounds of appeal as well as the parties rival written and oral submissions as well as the authorities cited.
I have also read and understood the evidence on record and the Judgment of the trial court.
Having done so, I find that only three key issues emerge for my determination, namely;
i. Whether the evidence adduced by witnesses who were employees of the company was admissible in evidence;
ii. Whether the prosecution proved its case against the appellant beyond any reasonable doubt.
iii. Whether the sentence imposed on the appellant was illegal.
15. Starting with the first issue, the appellant, relying on the persuasive authorities of Pascal Musyoka Mutua V Republic[2020] eKLR and Humphrey Wachira Karimi V Republic[2019] eKLR argued that since the complainant was a company which was a juristic person, the evidence of PW1,PW2 and PW3 was inadmissible in evidence as they had not been formally authorized by the company to testify on its behalf; that without such formal authorization, the prosecution witnesses lacked locus standi and this means that there was no complainant in this case.
16. The respondent in its response relied on yet another persuasive authority, namely, Republic V Judith Achola Mulala[2019] eKLR in which Musyoka J held that a complaint within the meaning of Section 89 of the Criminal Procedure Code does not refer to the information received by the police from the victim of a crime but to information laid before a court by a person initiating a criminal case before the court and consequently, the word complainant refers to the person who initiates the case in court through a complaint.
17. It was the respondents case that in all criminal cases, the complainant is the state through the Office of the Director of Public Prosecutions (ODPP) which after instituting a prosecution has a duty of lining up witnesses in support of its case; that PW1, PW2 and PW3 were called as prosecution witnesses in support of its case in the lower court against the appellant and they did not therefore need authorization from the company to testify.
18. On my part, after a thorough scrutiny of the Criminal Procedure Code, I find that although the word complainant is not defined therein, Section 2 defines the word complaint as “ an allegation that some person known or unknown had committed or is guilty of an offence’’.
The Blacks Law Dictionary 10th Edition defines a complaint to mean the initial pleading that starts an action in Civil cases and in Criminal cases; the formal charge accusing a person of an offence.
19. A close reading of Section 89 of the Criminal Procedure Code (CPC) which deals with the institution of criminal proceedings shows clearly that a complaint can be made either orally or in writing and that it is a complaint which forms the basis or initiates criminal prosecution. In my view therefore, the word complainant which is obviously derived from the word “ complaint’’ would no doubt refer to the person who makes a complaint as envisaged in Section 89 of the Criminal Procedure Code.
20. Under the Kenyan criminal justice system, criminal prosecutions are initiated and conducted by the Director of Public Prosecutions on behalf of the state. Article 157(6)(a)(b) and (c) speaks to the prosecutorial powers of the Office of the Director of Public Prosecutions.
The Article provides as follows:
‘’ The Director of Public Prosecutions shall exercise state powers of prosecution and may;
(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;
(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and
(c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).
21. From the foregoing, it is clear that a complaint within the context of Section 89 of the CPC does not refer to information made to the police reporting suspected criminal activity but to a formal charge laid before a court which initiates criminal prosecution against a person suspected of having committed an offence.
22. Given the foregoing, it is also clear that a complainant is the person who initiates the prosecution who as demonstrated above is the State through the ODPP and not the victim of a crime. This is why criminal cases are instituted in the name of the Republic against the person accused of having committed an offence. See: Roy Richard Elimena & Another V Republic [2003] eKLR.
23. The victim of crime becomes the state’s primary witness together with
witnesses who have knowledge of how the offence in question was committed. This explains why they are described as prosecution witnesses. In this case, although PW1, PW2 and PW3 were employees of the company, they gave evidence as prosecution witnesses in support of the charge preferred against the appellant by the ODPP. The company was just the victim of the crime alleged not the prosecutor or complainant. It’s employees, being prosecution witnesses, did not consequently require its authority to testify against the appellant.
It is thus my finding that PW1, PW2 and PW3’s evidence was admissible in evidence and the learned trial magistrate was perfectly entitled to rely on it.
24. Having dealt with the first issue, I now turn to consider the second issue which is whether the prosecution proved the charge preferred against the appellant beyond any reasonable doubt.
To establish the charge of stealing by servant, the prosecution was required to prove beyond doubt the following key ingredients of the offence;
i. That the appellant was an employee of the victim company.
ii. That the appellant stole property belonging to the company.
iii. That the stolen property came into his possession by virtue of his employment.
25. In order to prove theft, the prosecution had the onus of proving that the appellant fraudulently and without any colour of right converted the goods in question to his use with the aim of permanently depriving the company of the same.
26. In this case, it is not disputed as this was admitted by the appellant that at the material time, the appellant was employed by the company as its Sales and Marketing Executive.
It is also not disputed that in this capacity, he used to make orders for supply of a variety of animal feeds on behalf of customers and would also organize for delivery of the feeds to the customers.
What was disputed was whether the appellant was the one responsible for collecting payment from his customers and remitting the same to the company either through cash or bank deposits.
27. PW1, PW2 and PW3 were clear in their evidence that once the appellant placed orders on behalf of customers, the goods ordered would be released to him for delivery to customers and he was required to receive payment and remit the same to the company; that the appellant only made partial payments for some orders and in others he did not remit any payment nor did he return the goods back to the company. He did not also offer an explanation for the goods he had not accounted for since he failed to attend a meeting called for that purpose.
28. The testimonies of PW1 to PW3 was materially corroborated by the documentary evidence they identified in court in the form of invoices, receipts and goods return notes which were produced as exhibits by PW4, the investigating officer.
A perusal of these documents show that indeed the appellant failed to account for goods worth Kshs 310,915 which had been entrusted to him for onward transmission to customers.
As the appellant did not return the goods back to the company and he did not remit their sale proceeds or otherwise account for them, it can only be concluded that he took them with the intention of permanently depriving the company of their use which amounted to theft from his employer.
29. Regarding the appellant’s complaint that evidence of his previous conviction was wrongly admitted during the trial, I agree with the appellant that such evidence which obviously amounted to evidence of bad character was inadmissible during the trial by virtue of Section 57(1) of the Evidence Act unless it fell within the exceptions provided for in Section 157(1) (aa), (a) (b), (c) and (d) but it was admissible after conviction for the purpose of determining the appropriate sentence to be imposed in the case in which the evidence was admitted.
30. In this case, it is clear from the court record that the appellant’s record of previous conviction was first introduced in court on 6th December 2021 by a person who was not a witness, one Patrick Gaete Muhoro who described himself as the appellant’s brother long before PW4 testified.
The information was given to explain the appellant’s failure to attend court on the hearing date. The evidence of PW4 regarding the appellant’s past criminal record was given under cross examination by the appellant. It is not clear which questions PW4 was responding to and if they related to establishment of the appellant’s character, the evidence may have been admissible under Section 57(1) (b) of the Evidence Act.
31. Another argument made by the appellant is that the prosecution failed to call vital witnesses to testify in this case, namely, the Company’s Sales Manager and Human Resources Manager and the Company’s customers. According to the appellant, the company managers would have shed light on why it took them so long to ask him to account for the sale proceeds whereas the customers would have explained how they paid for their orders and to who; that failure to call these witnesses was fatal to the prosecution case.
32. My short response to this argument is that the law is clear as stipulated in Section 143 of the Evidence Act that no particular number of witnesses is required to prove a fact. Where the prosecution has adduced sufficient evidence to prove its case, failure to call additional witnesses cannot entitle the court to draw an inference that had such witness been called, their evidence would have been adverse to the prosecution case. Such an inference would only be made if the evidence called by the prosecution was scanty and hardly sufficient to prove its case.
33. In this case, I am satisfied that the evidence adduced by the prosecution through the testimonies of PW1 to PW4 was clear and straightforward and adequately proved it’s against the appellant to the required legal standard. In the premises, failure to call the additional witnesses referred to by the appellant was not fatal to the prosecution case.
34. Lastly, contrary to the appellant’s assertions, I did not find any material contradictions in the evidence adduced by the prosecution witnesses. Where they existed, they were minor and they did not go to the root of the prosecution’s case.
35. A reading of the trial court’s judgment shows that when convicting the appellant, the learned trial magistrate carefully and elaborately interrogated all the evidence presented before her including the defence offered by the appellant. She considered at length the defence given by the appellant and rejected it as incredible after comparing it with the evidence adduced by the prosecution.
36. After my own independent analysis of the evidence on record, I find no reason to fault the trial court’s finding that the prosecution had proved its case against the appellant beyond any reasonable doubt. I have no doubt in my mind that both the oral and documentary evidence tendered by the prosecution proved beyond doubt that the appellant committed the offence as charged.
I am thus satisfied that the appellant was properly convicted and his appeal against conviction fails.
37. On the appeal against sentence, the offence of stealing by servant attracts a maximum penalty of seven (7) years imprisonment. The learned trial magistrate in the exercise of her discretion decided not to mete out a custodial sentence on the appellant but instead settled for a non-custodial sentence of a fine of Kshs. 500,000 in default to serve three (3) years imprisonment.
It is important to note that whereas a trial court has discretion to impose any sentence authorized by the law, that discretion must be exercised judiciously and in accordance with the law.
38. In this case, although the amount of fine imposed on the appellant was lawful since it was dependent on the trial court’s discretion, I agree with the appellant that the sentence passed in lieu of payment of that fine was illegal as it violated Section 28 of the Penal Code which prescribes a maximum period of twelve (12) months imprisonment in default of payment of fines exceeding Kshs. 50,000.
In the premises, it is my finding that the sentence imposed by the trial court was illegal.
39. Taking into account the plea in mitigation offered by the appellant in the trial court; the nature of the offence and the fact that the appellant is not a first offender, I find that an appropriate sentence in this case would be three years imprisonment.
The sentence imposed by the lower court is consequently set aside and is substituted with a sentence of three (3) years imprisonment. The sentence shall take effect from the date sentence was pronounced by the trial court and shall take into account the period of about eight months that the appellant had spent in remand custody prior to his sentence.
It is so ordered.
DATED, SIGNED and DELIVERED at Murang’a this 26th day of June, 2024.
C.W. GITHUA
JUDGE
In the presence of:
The appellant
Ms. Muriu for the respondent
Ms. Susan Court Assistant