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JudgmentKELVIN MULI KILONZO VS The Republic10 min read

KELVIN MULI KILONZO VS The Republic

High Court at Machakos High Court · · Hon.Lady Justice Noel Adagi

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL DIVISION

CRIMINAL APPEAL NO. E077 OF 2024

KELVIN MULI KILONZO…….………..............….……APPELLANT

VERSUS

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

(Being an appeal from the judgment on conviction and sentence delivered on 27th March 2024 by Hon. D. Sure (SRM) in Kangundo Chief Magistrate Criminal Case No. E2257 of 2021)

JUDGEMENT

Introduction

  1. The Applicant was arraigned before the Senior Resident Magistrate’s Court at Kangundo charged vide Criminal Case No. E2257 of 2021, with Five counts.
  2. Count I was the offence of stealing contrary to Section 275 of the Penal Code Cap 63 of the Laws of Kenya. The brief particulars were that on diverse dates between 12th January 2017 and 13th October 2021 at Nguluni town within Machakos County, jointly with others not before court, stole Kshs.7,813,370/= belonging to St. Francis Assisi School, Nguluni.
  3. Count II was the offence of knowingly altering a document with intent to deceive contrary to Section 357 (b) of the Penal Code. The brief particulars were that on diverse dates between 12th January 2017 and 13th October 2021 at Nguluni town within Machakos County, jointly with other not before court, with intent to deceive knowingly altered the word “deposit declined” in Equity agent machine-generated receipts to mean successfully from the said dates amounting to Kshs.7,813,370/= which had been made by Equity bank without authority.
  4. Count III; Offence of knowingly altering a document with intent to deceive contrary to Section 357 (b) of the Penal Code.  The brief particulars were that on diverse dates between 12th January 2017 and 13th October 2021 at Nguluni town within Machakos County, jointly with others not before court, knowingly altered 1,548 manually, Equity school and institutions’ fees deposit slips from the said period by inserting details of the pupils and money deposited without lawful authority.
  5. Count IV; offence of forging a stamp contrary to Section 352(b) of the Penal Code. The brief particulars are that on diverse dates between 12th January 2017 and 13th October 2021 at Nguluni town within Machakos County, jointly with others not before court without lawful excuse knowingly had in his possession an instrument of making the impression of a stamp.
  6. Count V; offence of accounting contrary to Section 330 (b) of the Penal Code. The brief particulars are that on diverse dates between 12th January 2017 and 13th October 2021 at Nguluni town within Machakos County, being the servant of Samuel Kitele Mutisya, with intent to defraud omitted from the cash books belonging to Samuel Kitele, material particulars that is to say Equity agent generated machine receipts amounting to Kshs.7,813,370/=
  7. The Appellant pleaded not guilty to all the charges and the case proceeded to full hearing. The prosecution called 11 witnesses while the Appellant gave sworn evidence and called one witness. Upon conclusion the trial court in its judgment delivered on 27th March 2024, acquitted the Appellant on Count IV and found him guilty on Counts I, II, III and V and convicted him under Section 215 of the CPC and sentenced him as follows: -
  8. Count I; Fine Kshs.1,000,000/= or 2 years in jail.
  9. Count II; Fine Kshs.300,000/= or 2 years in jail.
  10. Count III; Fine Kshs.300,000/= or 2 years in jail.
  11. Count V; Fine Kshs.300,000/= or 2 years in jail.
  12. The sentences were to run consecutively. The trial magistrate further directed the school to pursue a civil claim against the Appellant and Simland Electronic upon after expiry of the 14 days appeal period to recover the stolen amounts.

The Appeal

  1. Being dissatisfied by the said judgment on both conviction and sentence, the Appellant has lodged the appeal herein vide an undated Petition of Appeal filed in court on 16th September 2024.The same raises 5 grounds as hereunder:
  2. That the learned trial magistrate erred both in fact and in law by convicting the Appellant on evidence that didn’t meet the minimum threshold to uphold a conviction.
  3. That the learned trial magistrate erred in matters of law and fact by failing to order that the sentence of 2 years for each count to run concurrently.
  4. That the learned trial magistrate erred in both law and fact by not considering the Appellant’s sworn defence.
  5. That the Appellant to be furnished with the trial proceeding records for more grounds to be adduced at the hearing of the appeal.
  6. That the Appellant to be present during the hearing of the appeal.
  7. Grounds 4 and 5 are spent. On 13th November 2024, the Appellant confirmed to have been furnished with the typed proceedings of the trial court and had in fact filed submissions on 7th November 2024.
  8. The appeal was disposed of by filing submissions. As indicated the Appellant filed his submissions which are dated 6th November 2024.
  9. The Respondent did not file any response or submissions to the appeal despite being given an opportunity to do so on 13th November 2024 when they were granted 14 days to comply and a further 7 days on 11th December 2024 and therefore the appeal is unopposed.
  10. The Appellant in his submissions, merged ground 1 and 2 and submitted that the Respondent lacked the requisite evidence to sustain a conviction and heavily relied on circumstantial evidence leading to a conviction. That the Appellant was faced with a multiplicity of charges and from the onset, neither charge was proved to the required threshold. He referred to page 15 of 23 of the record with regard to Count I that the magistrate simply averred “On the 1st issue, I have considered the evidence of PW1, PW2 and PW3 and their evidence of school losing Kshs.7,813,370 had been corroborated by PW5, PW6 and PW10 who analysed the receipts on behalf of Equity Bank. I find this issue has been established” That from the above and by dint of section 169 of the CPC, the trial magistrate misdirected herself to make an inference on a matter which she never deciphered any points for determination to come up with a conclusion to convict to the required threshold as her statement is rather superficial as to the offence of stealing. That neither the actus reus nor mens rea was proven by evidence was adduced. The fact the PW9 conceded that he had no proof of employing the Appellant herein whereas PW5 alluded to the sum of Kshs.710,000/= being the amount lost thereby contradicting the sum of monies the trial magistrate alluded to have been lost. This grey area should be resolved to the Appellant’s favour.
  11. That from the proceedings on page 27 line 18-19, PW9 during cross examination stated that “problem started in 2017 when the other was present. He was the in charge” which was further corroborated by the witness that the Appellant and the former employee had worked together for a period of one year. On the foregoing, it is rather obvious that the Appellant is being used as the sacrificial lamb in a matter presumably the owner of the agency (PW9), may have had a hand in the loss and irrefutably absolved from any liability by the mere fact that he was a parent at the school. That PW6, (Auditor) in examination in chief depicted that he worked with the Appellant in filing KRA returns and hence this court should scrutinize if there could have been some conspiracy that the trial court was blind to and carried on with proceedings devoid of this fact and all criminal responsibility directed to the Appellant.
  12. The Appellant submitted further that the Charge Sheet stated that the Appellant jointly with others perpetrated the offences but the Appellant was skewed as the scapegoat.
  13. That Count II & III referred to charges that the Appellant altered (emphasis) a document with intent to deceive contrary to Section 357 (b) of the Penal Code. The Appellant reproduced the provisions of Section 357 (b) of the Penal Code which states:
  14. Knowingly utters any document or electronic or writing so made, signed or executed by another person, is guilty of a felony and is liable to imprisonment for seven years.
  15. The said Section speaks of the term “utter” in great contrast to the term “alter” as used in the charge sheet. This is an issue that this court should examine if the words alter and utter mean the same and can be used interchangeably as this goes to the root of finding that the charge sheet was inelegantly drawn thus the charges in it were fatally defective by dint of Section 89(5) of the CPC. The Appellant invites this court to find that the offences he was charged with do not exist.,. The Appellant referred to the case of William Dubi Ikiwo v Republic (2001) eKLR .
  16. The Appellant also invited this court to examine how the Appellant may have uttered POS generated receipts an issue that was never proved to the required threshold as the prosecution did not procure the testimony of a forensic expert witness to ascertain the alterations that were declared as the only imminent misdemeanour from the Appellant was to over stamp the said receipts much as there exists many reasons for a transaction to be declined as explained by PW5 working for Equity Bank as the agency supervisor. That the Appellant never defaced the word “deposit declined” in the receipts and invites this court to consider the issue.
  17. On the last Count of fraudulent accounting contrary to Section 330 (b) of the Penal Code, the Appellant submitted that, he was never an accountant to PW9 and all monies due from the agency business were under the custodian of PW9 as the norm would dictate. That the prosecution failed to prove what entries were made by the Appellant to commit the offence in question domiciled on the time frame that the alleged offence was committed and the different parties that could have had a hand in it. Under the vicarious liability principle, where is the line drawn on PW9’s liability an issue the Appellant warrants this court to address.
  18. The Appellant submitted that the learned trial magistrate erred in matters of law and fact by failing to order that the sentences to run concurrently. He relied on the cases of Kennedy Indiema v Republic Criminal Appeal 344 of 2006; Owiti v Republic (1984) KLR 73 and Ngá ngá v Republic (1981) KLR 530 and argued that in the present case, the Appellant was faced with a myriad of charges connected in kind and time that irrefutably happened within the same locus. This having been established; it was rather undesirable for the trial court to meet out consecutive sentences when established rule of practice is that the sentences should run concurrently for offences committed in the same transaction.
  19. On the ground of appeal that the learned trial magistrate erred in both fact and law by not considering the appellant's sworn defense, the appellant submitted that he was operating his own entity an issue which was corroborated by DW2 and neither had he been employed by PW9 who averred that he had nothing on record to prove the employment of the Appellant and as such he cannot place culpability to the Appellant in its entirety.
  20. That the pundit magistrate in her judgement only relied on identification by prosecution witnesses in a bid to inform & satisfy herself on the culpability of the Appellant much as the prosecution never proved how the Appellant uttered documents. The Appellant referred to the case of EZEKIEL AGWENYE VS REPUBLIC CRIMINAL APPEAL NO. 124 OF 1999., it was held:

"To our minds it is one thing to say to the Police, a witness did recognize a suspect and it is quite another thing altogether to give to the Police either the name or the description of the suspect. In the event a witness said that he could identify the suspect if he saw him again, the Court would be interested in knowing the features by which the witness was able to identify the suspect. "

Although the victim did know the Appellant before, the Prosecution did not conduct an Identification Parade. The Appellants identification therefore was Dock identification which is almost worthless.< >< >< >< >

  1. The Appellant invited this court to find that in as much as the prosecution was hell bound to identify the Appellant as the perpetrator, the prosecution obfuscated the task of conducting an identification parade an issue that we warrant this Honorable court to fault the conduct of the lower court proceedings and ><>>> ></><><>'></><><>>></></><><>"></><><>></><><>></><><>><>> (>).</><>><>><>><>></><>><><>>> ></><>><>><><>></><>><><>><>><>></><>>“></><>><><>><>><>><>><>><>><>><>><>><>><>></><><>></><><>><>><>>> ><><>> ><> >“> >> ><>><>><>>>>> ><>><>“></><> </><><>>> ></><> </><><>></><> </>>> >> ><>><>>“> ><>><>><>><>><>></><><>></><><>></><><>></><><>></><><>(></><><><><><>< id>Amount

    Maximum period

    1. Not exceeding Kshs.500

    14 days

    1. Exceeding Kshs.500 but not exceeding Kshs.2,500

    1 month

    1. Exceeding Kshs.2,500 but not exceeding Kshs.15,000.

    3 months

    1. Exceeding Kshs.15,000 but not exceeding Kshs.50,000.

         6 months

    1. Exceeding Kshs.50,000.
    1. onths
    1. In view of these provisions of Section 28 of the Penal Code the default period of twenty-four (24) months in Counts I, II, III and V 5 is incorrect, irregular, improper and unlawful and I therefore set it aside and substitute it with a default period of twelve (12) months on each Count. See Wanjiru v Republic (Criminal Revision E233 of 2022) [2023] KEHC 21515 (KLR) (28 July 2023) (Ruling)
    2. The custodial sentences herein are in default of payment of the fines. Fine sentences do not run concurrently and neither does the default period. This is supported by the provisions of Section 37 of the Penal Code. The trial magistrate judiciously exercised his discretion on imposing the amounts of fines.
    3. The upshot is that the appeal herein partially succeeds to the extent of setting aside the default sentences of 2 years imprisonment on Count I, II, III and V respectively and substituting therefor twelve (12) months imprisonment in each. (a cumulative term of 48 months imprisonment). The sentences are to run consecutively from the date of conviction by the trial court less any period the Appellant might have been in remand custody during trial pursuant to Section 333(2) of the CPC.
    4. The sentences to run consecutively is lawful and legal in the circumstances of this case.
    5. Right of appeal, 14 days
    6. I so order.

    JUDGMENT WRITTEN, SIGNED & DATED AT MACHAKOS THIS 25TH FEBRUARY 2025  

        NOEL I. ADAGI

                   JUDGE

    DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 25TH FEBRUARY 2025

    In the presence of :

    In person............. for Appellant

    Ms. Agatha............ for Respondent

    Milly Grace.................... Court Assistant

    KELVIN MULI KILONZO VS The Republic KELVIN MULI KILONZO VS The Republic