(Being Appeal against the whole Judgement delivered by the Principal Magistrate’s Court at Mombasa Hon. D.O. Odhiambo on 22nd October 2024 in MOMBASA MCCR/E2340 OF 2021)
1. The appellant was charged and convicted of the offence of stealing by servant contrary to Section 281 of the Penal Code by Hon. D.O. Odhiambo on 24th October 2024. He was sentenced to 3 years imprisonment. He filed his Memorandum of Appeal dated 4th November 2024 on 5th November seeking to challenge the conviction and sentence made on 27th November 2024 and it is on this basis that we wish to respond as follows.
The Law
2. It is settled law that the duty of a first appellate court is to evaluate the evidence adduced before the trial court to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
3. This is a first appeal, and this court has a duty to analyse and evaluate the evidence which was adduced before the trial court and produce its own independent finding.
4. The appellant has a legitimate expectation that the evidence will be subjected to an exhaustive evaluation by the appellate court and the appellate court’s own independent finding. This principle has been considered in various decisions of this court and those of the Court of Appeal.
5. The leading authority on the subject is Okeno - Versus - Republic (1972) EA 32. In this case the court stated-
“The duty of the first appellate court is to analyse, reevaluate the evidence which was before the trial court and itself produce its own conclusion on the evidence. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that.”
6. The Court of Appeal in the case of David Njuguna Wairimu Versus Republic (2010) while citing with approval the case of Okeno Versus Republic Supra, stated as follows: -
The duty of the first appellate court is to analyse, re-evaluate the
evidence which was before the trial court and itself produce its
own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellant court may depend on the fact and the circumstances of the case, come to the same conclusion as those of the lower court. It may reverse 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.”
The court of appeal further stated that – “an appellant on a first appeal is entitled to expect the evidence as whole to be subjected to a fresh exhaustive examination (Padya Versus Republic 1975 EA 336) and that the appellate court’s own decision on the evidence. the appellate court must itself weigh the conflicting evidence and draw its own conclusions.
7. In doing so, it must make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter’s Versus Sunday Post 1978 E.A 424”.
8. In the case of Gabriel Kamau Njoroge – Versus - Republic,
Criminal Appeal No.149 of 1986 [1987] eKLR Court of Appeal in
Nairobi, Platt & Apaloo, JA. A. and Masime Ag. J.A reiterated.
the duty of a first appellate court as follows:
“As this court has constantly explained, it is the duty of the first.
appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court.”
9. It is, therefore, the duty of this court in this case to re-evaluate the
evidence adduced by the prosecution in support of the charges and by the defence, and to make its conclusion.
10. For the offence of stealing by servant the following ingredients must be proven as espoused in the Penal Code Section 281, Stealing by clerks and servants.
“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.”
Duty of Appellant
11. In this matter it is not conflicted that the appellant was an employee of the complainant in matter. It has also not been rebutted that the items got lost while in custody of the appellant who was an employee of the complainant. PW 1 Shujaa Huddin Aboo the General Manager of Sifa Investments Ltd testified that on 18th November 2021, he received a report from a client in Uganda who reported that their cargo had a shortage of 8 to 10 tons in each of the three containers. He stated that they followed up and found out that it was the accused who had delivered the cargo from Mombasa to Kampala using motor vehicle Reg. No. KBD 999K. He stated that the accused was their employee (Exh. 1) and had been with them for over two years. He stated that they obtained weigh bridge tickets (Exh.3a, b & c) for the trucks on various dates and that the driver was always alone. He added that the trucks were sealed and tracked along the way.
12. On cross-examination by Mr. Yose for the accused. PW 1 stated that he received the report about the shortage three months after the cargo was delivered. He stated that they did not receive any report of a seal breakage, and he was not present when the cargo was offloaded. He stated that from the KENHA weighbridge slips, he found out that there had been a deficit between Webuye and Gilgil. He stated that the trucks were not taken through the private weighbridge in Changamwe as the driver had forgotten to pass by. He stated that the container weighed 34.300t at Mlolongo, same as Mariakani, and those two other containers had a shortage of cargo.
13. PW 2 Amir Abdalla Mtawa, a clearing and forwarding agent from Hass Agencies Ltd testified that on 8th August 2021 he received container SN MSKU2168914 loaded with coffee carried by Sifa transport company from Uganda using motor vehicle Reg. No. KBD 999K. He stated that the container was taken for scanning before loading onto the ship for export. He stated that on 1st September 2021 the same truck came with container SN MSKU5049137 carrying coffee and it went through the same procedure. Again, on 10th November 2021, another container SN TCKU3863393 was brought by motor vehicle Reg. No. KBF 501S which was scanned but the driver did not take it for weighing as the driver had left. He stated that he informed Sifa and the client. Upon being weighed the container was found to be 15.640kg instead of 22.400kg. He was then told that the previous containers also had a shortage which he confirmed after opening them. He then informed the client to report the matter to the police and KRA. After, the driver for motor vehicle Reg. No. KBD 999K was arrested while the other drivers escaped.
14. PW 3 Juma Chirudi Mwangome testified that he is a claims officer at Sifa Investments Ltd. The accused had been their employee for ten months until the cargo got lost. He stated that the accused was assigned motor vehicle Reg. No. KBD 999K which he was driving from Mombasa to Kampala. He added that drivers are always paid mileage allowances, and the accused was paid on 22nd July 2021 and 12th August 2021 using a voucher (Exh. 1). He stated that he was informed that a client had complained about receiving half of his goods which were transported using motor vehicle Reg. No. KBD 999K on 8th August 2021 and 10th November 2021 from Kampala to Mombasa. He stated that container SN TCKU 3863393 carried on motor vehicle Reg. No. KBF 501S was driven by one David Juma Wanjala who disappeared. It was his testimony that the first container lost 7.95tons: the second container lost 7.95 tons: and the third container lost 8.146 tons. He added that the driver would always be issued with consignment notes (Exh.2a, b & c) from the port of loading. He recorded his statement then the accused was arrested.
15. PW 4 Cpl. Charles Mainya (67042) from DCI Changamwe was the Investigation Officer. He stated that he arrested the accused who was the driver of the truck that delivered less tonnage of cargo. He produced his letter of employment showing he was employed by Sifa Investment Ltd and obtained KENHA weighbridge slips showing the variance in weights. He stated that the value of the lost coffee was Kshs.2,200,000.
16. It is apparent that the charge is a non-starter for failure to match with the particulars of offence. It has come out clearly that while the accused is allegedly charged for the theft that took place between 1st and 25th of November 2021, the evidence availed point at an alleged offence purportedly committed in April, August and September 2021. On this ground alone, the prosecution has failed to link the accused person with the charge.
17. The Investigating Officer in his written statement indicates that a report was made at the station for goods stolen in September 2021 but not in November 2021 as indicated in the charge sheet.
18. Much of the documents that were relied upon by the prosecution to support its case for the months of April, August and September 2021. There are no documents for the month of November 2021 as alleged in the present charge.
19. The accused person was not present when investigations were carried out. He was not afforded an opportunity to examine which documents were used during investigations. As it turns out, this was largely done by the complainants who may have not had the best interests of the accused person at heart.
20. There were no indications of tampering with the seals fitted to the truck. This evidence came out clearly from all the witnesses. Further, the driver was cleared when he arrived at the port and offloaded the consignment. At least, if there were problems with the consignment, the KRA officials at the port would have depicted it.
21. There are several discrepancies on the actual weight of the consignment purportedly stolen. While some witnesses said it was only eight tons, some said it was ten tons, others said it was 24.1 tons while others said it was thirty tons yet on the charge sheet it is said it was twenty tons. In the case of Pius Arap Maina vs Republic [2013] eKLR (Criminal Appeal No. 247 of 2011), court noted that:
“It is gainsaid that the prosecution must prove a criminal charge beyond reasonable doubt. As a corollary, any evidential gaps in the prosecution’s case raising material doubts must be in favour of the accused.”
The complainants acted upon the agitation of their client and the investigating officer relied on the complainants to feed him with information and documents. This leaves a lot to be desired in the prosecution’s case.
22. I note that the trial court noted these discrepancies and even indicated that the charge sheet ought to have been amended.
23. The discrepancies were however, overlooked as the Magistrate relying on an authority in Philip Nzaka Watu vs Republic (2016) eKLR and Eliai Nsamba Shapwata and another Cr. Appl. No. 92 of 2007. They were dismissed as minor issues.
24. I, however, find that there are not minor discrepancies.
25. They spoke to the substance of the matter. What was stolen and when it was stolen. They also touch on documentary evidence. The two authorities refer to one minor discrepancy based on the human ability to percive and recollect phenomena in the exact same style.
26. In this case, I note that the people who loaded the goods did not testify. Even those who offloaded them did not testify. We did not get any certification of the weighbridge where the discrepancies were allegedly noted.
27. Accordingly, the conviction was not right, and it is hereby quashed and the sentence set aside.
28. The Appeal accordingly succeeds on the aforementioned grounds and the accused person may be set free forthwith.
Dated, signed, and delivered in Open Court/online through MS TEAMS,
this ……30th…………day of ……………April……………2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
Appellant
MR Ngiri for the state
Bebora- Court Assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE