(Being an appeal against the judgment of the learned Honourable Principal Magistrate G Omotho in Kiambu criminal case number 2442 of 2016).
JUDGEMENT
The appellant in this case was convicted and sentenced for the offense of stealing contrary Section 268 as read with Section 275 of the penal code.
He has filed the appeal challenging both conviction and sentence through his petition dated 8th March 2021 setting out 11 grounds of appeal which I shall summarize as here under;
- The learned Honourable magistrate erred in law and fact by convicting the appellant against the weight of evidence.
- The learned Honourable magistrate shifted the burden of proof from the prosecution to the appellant.
- The learned Honourable magistrate erred in law and fact by failing to find that the complainant was not credible in his evidence.
- The prosecution witnesses were inconsistent and largely contradictory in their evidence.
- The learned Honourable Magistrate took in to account extraneous considerations which were not before the court.
- The learned Honourable Magistrate disregarded the appellant’s defense.
- The conviction was based on weak circumstantial evidence.
- The magistrate failed to appreciate, consider, and evaluate the evidence of crucial witnesses, namely the bank staff who withdrew funds from the complainants account and was properly identified through staff number in one of the documents relied on by the prosecution.
- The sentence was harsh and excessive in the circumstances.
The appeal proceeded by the way of oral submissions before me on the 5th of June 2024 with Mr. Muturi advocate for the appellant urging that the case against the appellant was not proved and that the conviction was not supported by evidence. According to Mr. Muturi, the conviction was based on pure suspicion as there was no proof of withdrawal of money by the appellant from the complainant’s account.
In support of that submission. Muturi referred this court to the evidence of one Antony Nyoti DW2 a Legal officer at Equity bank who testified in favor of the appellant.
Counsel submitted that the witness DW2 stated: -
’’there are 10 transactions in March and December from the statement there appears no transactions so we cannot say that there was withdrawal. I cannot explain how cash got lost without going through the statement”.
The witness upon further cross examination statement
“No transaction of Kenya shillings 1.8M on account statement’’.
It is this evidence that the appellant contends exonerates him from the offence and that the magistrate ought to have given him the benefit of doubt.
It is important to point out here that counsel for the appellant limited himself to commenting on that portion of evidence without delving into analysis of the entire evidence to demonstrate the alleged contradictions and inconsistencies of the prosecution’s evidence if any. As the First Appellate Court I understand my task to be the reevaluation, analysis, and exhaustive examination of the entire evidence in order to arrive at my own conclusion and findings.
In undertaking the analysis of the evidence, I am guided by the following decisions;
1. OKENO –V- REPUBLIC [1972] EA 32
2. KINYANJUI & ANOTHER –V- REPUBLIC [2004]2 KLR 364
3. KIILU & ANOTHER –V- REPUBLIC [2005]1 KLR 174.
This court unlike the trial court which had the opportunity to see and hear the witnesses, shall proceed to analyze the evidence fully cognizant of this fact.
Miss Kabutha, Counsel for the prosecution, submitted that all that the magistrate needed to be satisfied of in order to return a finding of guilt against the appellant was that;
- There was movement of money from the account of the complainant without his consent; and
- That the movement of the funds was by the appellant.
In my view, counsel failed in her submission to appreciate that the mere movement of money from the account would not ipso facto proof the offence of stealing without going further to lead evidence that the movement of the funds was intended to permanently deprive the owner of the use of the funds there of.
This is particularly important considering that this matter largely rests on circumstantial evidence as ably submitted by counsel for the appellant.
In order for a court to safely base a conviction on circumstantial evidence, the evidence must meet the test set out in Abanga alias Onyango vs Republic CR. App NO. 32 of 1990(UR) in which this court held as follows:
“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:
- the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established,
- those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
- the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”
The Court of Appeal dealing with the question of circumstantial evidence in Sawe vs Republic [2003] KLR 364, amplified on the above as follows: “In order to justify conviction on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused.
The jurisprudence on the circumstantial evidence is not unique to Kenya. Many other common law jurisdictions adopt a similar position when dealing with circumstantial evidence.
Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.’”
It is therefore necessary for this court to closely scrutinize the record and analyze the evidence with a view to establish whether the above-stated test was met by the prosecution’s evidence.
The prosecution in the present case adduced evidence through PW1 Njoroge Waweru who stated that he operated St. Jeremy Academy and Secondary schools in Langa Langa, Nakuru and that St. Jeremy Academy had Bank account with Equity Bank, Kariobangi branch, being Account No.0320298693768.According to the witness, he was called on 27th April 2013 at about 2.00pm while in church. The call was from mobile number 0735792281 and the caller identified himself Robert Kamangu. The witness went further to state that he had saved that number as Manager Equity. It was his evidence that he had known the caller before since all their churches bank with equity. Robert asked him to go to the bank but he could not do so at the time since he was in church and the service was ongoing.PW1 went to see Robert on 3rd May 2013 at about 10am at the Bank. It was then that he says the manager told him that there were some 12 plots for sale and pleaded with him to buy 6 of them as the manager would also buy 6plots.
PW1 went further to state that he told the Manager that he had no money and that is when the manager offered to give him an overdraft for Ksh.1.8M.
According to the witness, the Manager prepared the paper work as he waited somewhere. The overdraft was to be processed through the account of St. Jeremy Academy. The manager also told him that the owner of the plots was coming over there and this made him stay at the Bank from 10am to 5pm.However, the seller never turned up, so he left the bank.
The witness goes further to state on 5th May 2013, he was called by his secretary by the name Susan Njeri who told him that she had received a parcel from one Wanjama, Manager equity Bank.
PW1 later opened the parcel and found numerous land transaction documents that were all in original form for the plots he had been promised by the appellant.
The witness stated that he was taken to Kamae area by the appellant who showed him the land but advised him to wait for the surveyor to come and show him the exact plots. That was never to be.
In 2015, PW1 says he went to equity bank Kariobangi and was informed that the appellant had been transferred. He went looking for him so as to know the fate of his plots and when he traced him, the appellant allegedly told him to be patient.
After sometime, PW1 states that he tried calling the appellant’s number and the same was not going through then he decided to make a report to the police.
Evidence on record shows that Ksh.1.8M was credited into PW1 Account on 20th May 2013 and that PW1 signed for the overdraft never but never withdrew the money personally. Interestingly, the witness says there were some documents that he signed as the sole signatory to the account and the manager told him that he could withdraw the money and pay for the plots.
It is important to note that PW1 states that he never took away any documents that he prepared with the manager in the bank when he went to sign the overdraft. According to PW1, there was a cash withdrawal of Ksh.1.8M on 20th May 2013.
That is the summary of the prosecutions case in relation to the processing of the funds and the eventual loss thereof.
PW2, Susan Njeri Irungu corroborated the evidence of PW1 in regard to the parcel containing the documents handed over to her by Mr. Kamanja.
PW3 was the document examiner and he produced Pexh 20(a)-(d) which were specimen signatures and questioned documents marked exhibit B1-B4. In his opinion, the signatures appearing on the questioned documents were not similar to the specimen signatures collected from PW1.
PW4 a legal officer from equity bank while being cross examined, was shown Pexh 120 which was the transaction slip with teller details indicating there on as MM12709 but he could not tell the names of the alleged teller. He confirmed that the slip originated from the bank.
The prosecution’s case basically pointed at money being processed within Kariobangi Equity Branch by the complainant together within the appellant. The complainant was emphatic that He never withdrew the sum of KSH.1.8M, which sum was processed and approved at the instance of the appellant. He also stated that the appellant indicated he could withdraw the funds to pay for the plots.
I have no doubt in my mind that the narrative about the plots given to the complainant by the appellant was a carefully contrived scheme by the appellant to swindle the bank, through the complainants Account. It is clear he proposed the issue of buying plots and processed the fund towards purchase of the same. The plots were never bought but money advanced to the complainant at the instance of the appellant vanished from the complainant’s account in the bank where the appellant was the manager.
The evidence of PW1 exposes the appellant as a person who was utterly crafty in his dealings and executed the scheme to siphon the money from the bank using the complainants account to avoid detection. The overdraft having been advanced to the complainant; the funds thereof became the property of the complainant.
The withdrawal of the funds from the account could only be lawful if done by the complainant or his duly authorized agent for the purposes the complainant authorized. The complainant explicitly told the trial court that the manager could withdraw the funds and make payments for the plots.
The plots were never paid for and no titles delivered to the complainant or vacant possession. The irresistible conclusion that this court draws from that evidence is that the manager withdrew the funds under the guise of proceeding to make payments for the plots which he never availed to the complainant thus one can only say he simply stole the money. The totality of the circumstantial evidence in this file leads to only one hypothesis, that the appellant stole the money and no one else.
In his position as Manager, he controlled the funds within the branch, and owed a fiduciary duty to the complainant as a client to the bank.
The appellant made the complainant believe that he had acquired property since 2013 until 2015, when the complaint discovered he was holding on to nothing but useless sheets of paper handed over to him by the appellant through PW2 who was his secretary. The threshold of circumstantial evidence has been met contrary to the submission by counsel for the appellant that the evidence was weak.
I have also examined the record to ascertain whether there exists any material contradictions to vitiate the trial. This court did not find any material contradictions that go to the root of the matter. The appellant also alluded to shifting of the burden of proof by the magistrate. I am not persuaded by that argument either.
In regard to sentence, the magistrate was very considerate considering that the appellant did not only steal but also abused his position of trust as an agent of the bank. Banks and customers alike require protection from such elements in society. The appellant therefore deserved to be kept away from the society in order for him to reflect on the gravity of his actions and mend his ways.
I therefore find and hold that the appeal by the appellant is lacking in merit on both conviction and sentence. The appeal is hereby dismissed in its entirety.