The Republic VS KENNEDY EBOSO AND CHRISTINE AZENGA IMBAIKA

Introduction

1. The prosecution appeals against the decision of the trial court in acquitting the respondents herein Kennedy Eboso and Christine Azenga Imbaika on all charges of stealing (both respondents), stealing goods in transit (Kennedy), stealing goods by agent (Kennedy), handling stolen goods (Christine) and obtaining money by false pretences (Kennedy) of certain imported goods being various brands of cloth material namely Kijana, Samet, Derec materials and sweater materials belonging to Justina Wamucii Nduhiu (the complainant).
2. Some of the goods were recovered at the respondents’ store. The 1^st respondent Kennedy Eboso was the clearing agent for the goods. He was thus charged with obtaining money by false pretences from Justina Wamucii Nduhiu in relation to the clearing of the goods.

The Charges

1. The charges against the respondents were as follows:
   1. Count 1 jointly: (1). Kennedy Eboso (2). Christine Azenga Imbaika:

Stealing contrary to section 268(1) as read with section 275 of the Penal Code that on diverse dates between 1^st March 2018 and 11^th February 2019 at Chumbex Warehouse Embakasi in Nairobi Nairobi within Nairobi County with others not before court stole Kijana branded materials, Samet branded materials, sweater materials and Derec branded materials all valued at KShs 23,430,725/= the property of Justina Wamucii Nduhiu.

• 1. Alternative charge against Christine Azenga Imbaika:

Handling stolen goods contrary to section 322(1)(2) of the Penal Code that 17^th July 2019 at Linsey Agencies Limited, Jogoo road plaza second floor in Nairobi within Nairobi County otherwise in the course of stealing dishonestly assisted in the retention of 129 pieces of Freeze sweater materials, 158 bales of Kijana branded materials, 74 rolls of Kijana branded materials, 168 rolls of Samet branded materials and 88 bales of Samet branded materials for the benefit of Linsey Agencies Ltd knowing or having reason to believe them to be stolen.

• 1. Count 2 jointly: (1). Kennedy Eboso (2). Christine Azenga Imbaika:

Stealing of goods in transit, contrary to section 279(c) of the Penal Code that on diverse dates between 1^st March 2018 and 11^th February 2019 at Chumbex Warehouse Embakasi in Nairobi within Nairobi County with others not before court stole Kijana branded materials, Samet branded materials, sweater materials and Derec branded materials all valued at KShs 23,430,725/= the property of Justina Wamucii Nduhiu from Chumbex Cargo Warehouse while the same property was on transit from Vimal International India to Hebrew Creations Shop within Ngara.

• 1. Count 3: Kennedy Eboso:

Stealing by agent contrary to section 283(b) of the Penal Code that on diverse dates between 1^st March 2018 and 11^th February 2019 at Chumbex Warehouse Embakasi in Nairobi within Nairobi County being an agent of Justina Wamucii Nduhiu stole Kijana branded materials, Samet branded materials, sweater materials and Derec branded materials all valued at KShs 23,430,725/= the property of Justina Wamucii Nduhiu.

• 1. Count 4: Kennedy Eboso:

Obtaining money by false pretences contrary to section 313 of the Penal Code that on diverse dates between 1^st March, 2018 and 11^th February, 2019 at unknown place within the Republic of Kenya obtained KShs 7,400,000/= (Seven million four hundred thousand shillings from Justina Wamucii by falsely pretending that he would clear goods belonging to the said Justina Wamucii Nduhiu.

The Evidence

Prosecution case

1. A summary of the evidence at trial was that the complainant PW 1, Justina Wamucii Nduhiu was in the business of importing and supplying cloth material by the brand names Kijana, Samet, Derec as well as fleece materials for making sweaters or jackets. The imports were from Vimal International Company, India and she was dealing directly with Jitendra Bohra from that company.
2. Kennedy, the 1^st respondent is a clearing agent operating a clearing and forwarding company known as Noah’s Ark Enterprises. Christine, the 2^nd respondent is Kennedy’s wife. Kennedy together with Christine together with Jitendra and one Ronald Mwambia started another company for the business of supplies known as Linsley Agencies Ltd. In this business of supplies, they import cloth materials similar to the ones imported by the complainant and they also source from Vimal Enterprises in India since October 2018. Among the cloth materials are Sameet, Derec materials for games, suiting materials, fleece materials for jackets and decoration materials called fine knit.
3. PW 2 Alexander Wagura Wanyoike is the owner of Chumbex Warehouse in Embakasi, Nairobi where the imported goods the subject of this case herein were stored upon being released from the port.
4. These four people, the complainant, Kennedy, the 1^st respondent, Alexander and Jitendra know each other well because of what the business of importing the cloth materials entails. Even then, Kennedy said he had only transacted corresponded with the complainant on phone and they had never met. The complainant was not quite clear on whether or not she had met with Kennedy in person before. What she said was that Kennedy was one of them, that is, involved in the business of import. That he was introduced to her by Jitendra as a clearing agent and became part of the business. That on 19/8/2017 they had a meeting three of them Jitendra, Kennedy and the complainant and they planned for business. This is an indication that according to the complainant and contrary to what Kennedy said, in fact they had met in person. Thus far from 2015 they had been doing business quite well. The complainant and Jitendra had subsequent meetings but it is not clear whether Kennedy was present.
5. On 17/2/2018 the complainant and Jitendra met in person and the complainant made an order for 11 containers of derec, kijana and samet cloth materials and 340 rolls of fleece materials. Jitendra went back to India and on 20/6/2018 he sent the complaint on Whatsapp messaging service an invoice totaling KShs 23,430,725/= with a breakdown for each brand of the materials ordered as follows:
   1. Sameet and Kijana materials     KShs      9,018,065/=
   2. Fleece materials             KShs   5,153,229/=.
   3. Derec materials             KShs   9,259,431/=.

        Total                     KShs 23,430,725/=.

1. The complainant said that she would make all relevant payments to the company Vimal International right from the factory to the last one before she receives the containers.
2. Meanwhile, between 17/2/2018 when she placed her order and 20/6/2018 she had made payments for the goods as follows:
   1. 06/04/2018 USD 45,409/=
   2. 13/04/2018 USD 19,002/=
   3. 15/05/2018 USD 52,527/=
3. When Jitendra sent her the invoice he told her that she had to clear the entire amount before receiving the goods. The complainant said that she called Kennedy and asked for the goods she had paid for but both Kennedy and Jitendra refused.
4. It is apparent that at this point she had not completed payment for the goods. But by asking Kennedy, the clearing agent for the goods, it would appear that the goods had already been shipped into the country.
5. The complainant then made effort and continued to pay for the goods as follows:
6. 18/07/2018     USD 19,780/=.
7. 13/09/2018     USD 98,700/=.

        Total paid     USD 235,418/=

1. The complainant’s position is that having made these payments, she had cleared the invoice amount. It appears that the prosecution did not establish from her what the rate of exchange for the Shilling and USD was at the time in order to confirm that the sum of KShs 23,430,725/= had been cleared with the USD 235,418/=. However,  rough calculation gives an exchange ratio of KShs 99.50 to the USD and I find that to be a fair approximation given the rate of exchange at the time.
2. The complainant also made payments into the 1^st respondent’s account as clearance fees as follows:
   1. 27/04/2018      KShs 1,250,000/=
   2. 22/05/2018      KShs 1,250,000/=
   3. 14/06/2018     KShs 2,900,000/=
   4. 21/07/2018     KShs 1,000,000/=
   5. 25/07/2018     KShs 1,000,000/=

        Total         KShs 7,400,000/=

1. According to the complainant, she cleared all the payments as required. However, the materials were never delivered to her. She reported the matter to the DCI on 29/5/2018 and 14/6/2018.
2. She then received information from her clients that some of her materials branded HB were circulating in the market. She was led to Eastleigh where she found two gentlemen with 4 bales of her HB branded materials. She alerted police who interrogated the two young men who led them to where they had sourced the materials from at Jogoo road Plaza, 2^nd floor where part of her materials were stored with some bales empty.
3. The 2^nd respondent was found at the shop. The materials found were recovered and taken to DCI headquarters. They were produced in court as exhibits.
4. The particulars of the charges of theft herein indicate that the offences were committed at Chumbex Warehouse in Embakasi, Nairobi. Chumbex Warehouse or Chambex Cargo Ltd belongs to PW 2, Alexander Wagura Wanyoike. The complainant said that her imported cloth materials from India would be offloaded at the said warehouse.
5. PW 2, Alexander Wagura Wanyoike on his part said that between 30/4/2018 and 23/10/2018 he received containers from Jitendra who was his client for many years. He was introduced to him by the Kennedy. Kennedy was a clearing agent for Jitendra and they had dealt before. He had also dealt with the complainant before. Jitendra’s main client was the complainant. The contents were textile goods packaged in bales. Jitendra did not tell him the owners of the consignment. The containers remained in their stores for longer than usual. The goods were kept at his warehouse once they were cleared from the port. He released some of the containers to Christine, the 2^nd respondent upon instructions from Jitendra. There were two delivery notes for two consignments, one for 94 rolls and the other for 95 rolls making a total of 189 rolls which were delivered to the respondents through a driver called Sammy driving a truck registration number KAZ 182G on 25/1/2019 who signed the delivery notes but Christine was also present in person.
6. In re-examination, PW 2 reiterated that the goods belonged to Jitendra and he would wait for his instructions on how to release them.
7. PW 2 said in cross-examination PW 2 said that their dealings were on mutual understanding and trust. That on 23/2/2018, he received 10 containers from Jitendra and released 9 of them to the 2^nd respondent under instructions of Jitendra and the last consignement released was in April, 2018. On various other dates, he released various goods of the same description to various clients among them Jitendra himself who had come from India at the instructions of Jitendra.
8. In cross-examination, PW 2 said that he did not have any documents to show that he received the consignment of the goods at his warehouse. He was not aware that they would be required in evidence. But he was instructed by Jitendra to release the goods. He also said that he never received any items from the complainant.
9. PW 3, Philip Otakwa is a businessman in cloth materials. He used to source them from the respondents’ store.  On 17/7/2019 he purchased Kijana and Sameet materials from the respondents’ store but was subsequently arrested by police officers who asked him to lead him to where he had purchased the items. He led them to the respondents’ store. The 2^nd respondent refunded him the KShs 150,000/= he had paid for the items.
10. PW 4, Festus Mbura Okonda said he is a friend of PW 3 and he accompanied him to purchase the materials from the respondents’ store when the incident of arrest happened.
11. PW 5, PC Paul Ochieng is from the Digital Forensic Unit, DCI headquarters. He extracted mobile phone communication data from Whatsapp messaging service between mobile phone IMEI No. 864324025135437 and another from India country code. The report captures conversations between the two numbers.
12. PW 6, Anthony Nyota a legal officer from Equity bank produced the bank statement from that bank for Kennedy Eboso the 1^st respondent.
13. PW 7, David Kanyi Mwau, transported the rolls of textile material for the 2^nd respondent on 25/1/2019 from a godown to her store. He signed the delivery notes. He also said that the complainant Justina was known to her as he had done for her similar work before.
14. PW 8, CIP Catherine Lomaira is a forensic laboratory analyst at DCI headquarters. She extracted SMS and Whatsapp message communication between various phone numbers and prepared a report of the communications between phone numbers:
    1. 0720791927 and +919909911663
    2. 0720791927 and 0721169010
    3. 0720791927 and 0734811065.
15. PW 9, Cpl Teresia Thirakwa from the DCI headquarters Homicide section documented by way of photos assorted fabrics recovered at the respondents’ stores at Jogoo road plaza on Jogoo road.
16. PW 10, CIP Geoffrey Ndatuo of the DCI headquarters SCU was the investigating officer in the case. He said the complainant recorded her complaint at the DCI on 29/5/2019. He said the items recovered at the respondents’ stores were:
    1. 129 pieces of fleece sweater materials.
    2. 158 bales of Kijana branded materials.
    3. 74 rolls of Kijana branded materials.
    4. 165 rolls of Sameet branded materials.
    5. 88 bales of Sameet materials.
17. PW 10 established that the complainant had paid for the goods ordered from Vimal International Company, India through its agent, Jitendra Kumar Bodhra, who was a sales executive for the company and whom he said was an accused person in the case. They had requested the DPP to initiate extradition proceedings against him. According the KRA records the goods were sent to Kenya as the containers were cleared through the Simba system. The goods were to go to Cuzelberg Forwarders Ltd, Nairobi.
18. In cross-examination PW 10 said that the goods were not released to the complainant because of conspiracy between the both respondents and the Jitendra.
19. PW 10 also said that the goods were released from the warehouse on permission of the owner, Jitendra. Those released were 189 rolls.
20. PW 10 maintained that it cannot be asserted that the goods had not passed to the complainant because she had paid for them. They were therefore in transit to her but never reached their destination.

Defence case

1. In defence, the 1^st respondent said that he operates a clearing and forwarding company known as Noah’s Ark Enterprises and also operates a supplies company known as Linsley Agencies Ltd. In his business of supplies, he imports cloth materials from Vimal Enterprises in India since October 2018. Among the cloth materials are sameet, derec materials for games, suiting materials, fleece materials for jackets and decoration materials called fine knit.
2. With respect to the clearing and forwarding business, he said he was the agent for Jitendra who was an exporter. Jitendra showed him the warehouse where to store the goods once cleared and his role ends there.
3. The 1^st respondent said that he had never met the complainant in person but they spoke on phone. She was among the customers that Jitendra had. He conceded that the complainant deposited money into his account but said it was upon the instruction of Jitendra. This was normal practice where Jitendra would instruct his clients to do so then instruct the 1^st respondent on what to clear. He cleared many containers for Jitendra and his clients and sometimes he would combine the containers for various clients. He said that the complainant never engaged him directly. However, he cleared 5 containers for her which she received. At times, she would delay payment for the clearance and he would pay storage charges of up to KShs 2 million.
4. At some point, the complainant asked him to go to her shop at Ngara on two occasions but did not find her. Jitendra came to Kenya on 3 occasions and missed to get the complainant. On the last occasion of his visit, she promised to pay his money through Bank of India but she never honoured the promise. He left disappointed and decided to sell the goods to pay his company. He asked the 1^st respondent to get a buyer. They were unable to get one at once and Jitendra asked him to get space to keep the goods. He came to Kenya and took the goods and placed them in the shop. He then helped the 1^st respondent to get customers.
5. The 1^st respondent later started importing directly from Vimal Company and his wife, the 2^nd respondent was in charge of the business. Jitendra Bohra was included in the business in order to secure his interests after the experience he went through.
6. The 1^st respondent produced various documents including payments made from 22/10/2018 to 23/5/2019 showing the various transactions and payments done by his company Linsley Agencies Ltd.
7.   The 2^nd respondent said that on the evidence that the goods found in his shop bore the initials HB, Jitendra had said that this was the way he used to initial the goods destined for the complainant who had failed to pay for them.
8. The 2^nd respondent termed the charges against him as malicious and said he wished to take possession of the goods that were recovered from his shop.
9. In cross-examination the 2^nd respondent conceded that he received KShs 7.4 million from the complainant. He said that he cleared some goods that belonged to Jitendra which were to be supplied to Jitendra’s clients among them the complainant and he discharged his duties of forwarding them. He said Jitendra was the owner of the goods since he paid for the warehouse.
10. Jitendra came to Kenya at a time when the goods he wanted to sell were almost being auctioned by KRA in a container. The 2^nd respondent used money to clear them.
11. The 2^nd respondent said that some of the goods recovered from their shop belonged to Jitendra and they were taken to her shop by Jitendra who instructed them to sell  because the person to whom he intended to sell the goods did not meet the terms of purchase. The others were imported by and belonged to her company. Jitendra wrote them a letter to confirm that the goods belonged to them.

Trial Court Decision

1. Upon considering that evidence and the submissions by learned counsels for the parties, the learned trial magistrate found and held that the prosecution had not proved its case on any of the charges against either of the accused persons beyond a reasonable doubt and acquitted them under section 215 of the CPC.

The appeal

1. Dissatisfied with the decision of the trial court the prosecution filed the present appeal through a petition of appeal dated 8/6/2022 praying that the appeal be allowed and the judgment of the trial court be set aside, the order of acquittal of the respondents be reversed and be substituted with a conviction, and that the respondents be sentenced accordingly. The appeal is based on five grounds indicating that the learned trial magistrate erred in law and in fact by:
   1. failing to consider the evidence presented by the prosecution against the respondents.
   2. acquitting the respondents under section 215 of the Criminal Procedure Code despite the overwhelming evidence in support of the prosecution case.
   3. failing to prove the appellant had proved its case to the required standard.
   4. failing to dismiss the defence by the respondents which could not stand in light of the uncontroverted evidence by the prosecution witnesses.
   5. relying on extraneous matters not in evidence in reaching its decision.
2. This appeal was disposed of by way of written submissions filed by both parties.
3. On a first appeal this court is required to subject the entire evidence adduced before the trial court to a fresh evaluation and analysis and draw its conclusions, but remaining alive to the fact that it neither saw nor heard any of the witnesses and so cannot comment on their demeanor. In the case of Okeno vs. Republic (1972) EA 32 where the Court of Appeal for Eastern Africa stated that:

“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya V R [1975] E.A. 336)) and to the appellate Court’s own decision on the evidence.  The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala V. R [1957] E.A. 570).  It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported.  In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see (Peters V Sunday Post [1978] E.A. 424).”

1. I have considered the grounds of appeal, the submissions by both parties and the evidence tendered at the trial of the respondents. This court will consider and determine the substance of each of the grounds of appeal and then finally determine:
   1. Whether or not the prosecution proved its case against the respondents beyond a reasonable doubt so that the trial court’s acquittal of the respondents should be reversed.
   2. Whether the trial court weighed the evidence before it properly in arriving at the decision to acquit the respondents of the charges.
   3. If the decision to acquit is reversed, what would be the appropriate sentence to met out to the respondents on each of the charges.
2. Three offences were alleged against the respondents being stealing, handling stolen goods and obtaining by false pretences. Stealing was charged in three variants of general stealing, stealing goods in transit and stealing by agent. All these variants of theft bear the same particulars that the offence was committed on diverse dates between 1^st March 2018 and 11^th February 2019 at Chumbex Warehouse Embakasi in Nairobi County with others not before court stole Kijana branded materials, Samet branded materials, sweater materials, Derec branded materials all valued at KShs 23,430,725/= the property of Justina Wamucii Nduhiu. I do not understand the propriety of filing multiple principal charges of the same offence bearing the same particulars against the same accused person. However, the respondents did not raise any objection to the same at the trial and so I will not delve into the issue further.
3. The offence of stealing is provided for under Section 268(1) of the Penal Code as follows:

“268. (1) A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property.

(2) A person who takes anything capable of being stolen or who converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say –

• 1. an intent permanently to deprive the general or special owner of the thing of it;
  2. an intent to use the thing as a pledge or security;
  3. an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;
  4. an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;
  5. in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner; and

“special owner” includes any person who has any charge or lien upon the thing in question, or any right arising from or dependent upon holding possession of the thing in question.

(3) When a thing stolen is converted, it is immaterial whether it is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it; and it is also immaterial that the person who converts the thing in question is the holder of a power of attorney for the disposition of it, or is otherwise authorized to dispose of it.

(4) When a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the thing does not know who is the owner, and believes on reasonable grounds that the owner cannot be discovered.

(5) A person shall not be deemed to take a thing unless he moves the thing or causes it to move.”

Section 275 of the Penal Code provides for the punishment of the offence of theft.

1. Arising from the above statutory provision, the elements of the offence of stealing would be:
   1. identity of the accused person,
   2. fraudulently and without claim of right (in this case in terms of sub-section 2 an intent permanently to deprive the general or special owner of the thing of it),
   3. taking,
   4. anything capable of being stolen.

alternatively

1. identity of the accused person,
2. fraudulently converting to the use of any person, other than the general or special owner thereof,
3. any property.
4. In order for the prosecution to establish theft each of the elements must be proved beyond a reasonable doubt. In other words, theft can simply be defined as the fraudulent taking of property belonging to another with an intention of permanently depriving the other of it. With respect to the charges of stealing goods by agent and stealing goods in transit the prosecution must respectively show that the accused person was an agent of the complainant and that the goods were in transit.
5. With respect to the charge of handling stolen property the prosecution must prove the salient elements of the offence as were summarized in the case of Tembere v Republic [1990] KLR 393 as follows: -

“One of the important elements of the charge of handling is that the accused must know or have reason to believe that the goods were stolen ..... Another vital element of the charge of handling is that the accused must dishonestly receive or retain etc.”

Charges of stealing

1. For the charges of stealing, two elements, these are, the respondents being the alleged culprits and the identity of the property alleged to have been stolen, being the various types of cloth materials outlined in the charge sheet are not in contest.
2. The issues in contest fall on the fraudulent taking or fraudulent conversion. It is important to distinguish these two forms of theft because in the case of fraudulent taking the prosecution has to prove that the respondents gained possession of the property by fraudulent means while for fraudulent conversion it means the respondents having gained the property lawfully but later dealt with it in a manner inconsistent with the rights of the complainant herein. Another sub-element on the issue of fraudulent taking or conversion in this case is proof that the property belonged to the complainant.
3. The prosecution case is based on the first set of elements, that is, the fraudulent taking since it is alleged that the goods were stolen from Chumbex Warehouse belonging to PW 2. The prosecution alleges that the respondents stole goods worth KShs 23,430,725/= meaning, the entire consignment of goods ordered by the complainant from Vimal International since she said that was the much she paid for the goods. Indeed, the complainant said that she never received any portion of those goods at all. She said the consignment consisted of 340 rolls of fleece sweater materials and 11 containers Kijana, Derec and Sameet cloth materials. The 1^st respondent was the clearing agent for these goods and he conceded that indeed he received the consignment of goods and they were deposited at the warehouse. He said that was the end of his assignment. He also insisted that he was doing the clearing for Jitendra and not the complainant.
4. PW 2 also said that indeed he stored those goods on behalf of Jitendra and not the complainant. There is no indication that the goods were stored elsewhere other than with PW 2 at Chumbex Warehouse. Jitendra then instructed him to release the goods to various persons whom PW 2 named in his evidence. Jitendra himself received some when he came to Kenya. The respondents received 189 rolls of the cloth materials from PW 2 at the instruction of Jitendra. It is apparent that 189 rolls cannot account for the 11 containers and 340 rolls that the complainant had ordered from Vimal International. There is also no evidence that more of the goods were recovered from Chumbex Warehouse. This means, the rest of the goods were released to other people other than the respondents.
5. The fundamental question that arises at this point is, did the ownership of goods ever pass from Jitendra, read Vimal International, to the complainant? The question is important because it is apparent that the complainant never took possession of the goods even as they were under the custody of PW 2. Stealing is an offence essentially against possession more than ownership as such. So when PW 2 says that he stored the goods for Jitendra and not the complainant, the issue of whether or not ownership of the goods had passed from Jitendra to the complainant becomes complex for the criminal court to resolve because it requires delving into the terms of the contract between Vimal International and the complainant which obviously the criminal court is not best suited to do. The issue is not to be taken superficially as the prosecution seems to have treated it herein. There are huge stakes involved in this transaction and the issues involve need to be unraveled for one to determine who the owner of the goods between Jitendra and the complainant was.
6. According to PW 2, Jitendra instructed him to release the goods to several named people. The respondents were just part of the recipients of the consignment. They were handed only 189 rolls of materials by PW 2 out of a consignment of 11 containers and 340 rolls. The evidence of PW 2 that he released these goods to the respondents at the instructions of Jitendra was not challenged by the prosecution.
7. The question that arises is, could the release of the goods to the respondents under those circumstances fit the definition of fraudulent taking?  There is no allegation of embezzlement or applying any form of tricks or deceipt upon PW 2 by the respondents to obtain the goods. Both PW 2 and the respondents assert that they took the goods at the instruction of Jitendra.
8. The goods were stored in PW 2’s warehouse. It is from here that they were released to various persons. If indeed by the time the goods were in Chumbex Warehouse they were the property of the complainant, why did she not maintain charges of theft against PW 2 or Chumbex Warehouse for that matter and instead went for the respondents whom PW 2 concedes he handed over the goods? Secondly, why didn’t’ the complainant pursue the other people to whom other goods in that consignment were released and only stick to the respondents even as it is clear that what the respondents received was a very small quantity of the consignment of goods that the complainant allegedly purchased from Vimal International? PW2 named all the other receipients of the goods and their addresses. Could it be that it was out of the bitterness of having paid the 1^st respondent a substantial sum of KShs 7.4 million for clearance yet for whatever reason she could not get the goods? Was he the easier target she found easily available to direct her wrath upon yet her target was Jitendra whom she says declined to release the goods to her until she completed payment for the purchase?
9. It is only after the respondents had collected the 189 rolls from PW 2 that she started pursuing them. Although the evidence by the prosecution has been presented to appear as if it was a mere coincidence for the complainant to learn that her goods were on sale, it is clearly apparent that it was a well-arranged script for PW 3 and PW 4 to get the goods from the respondents so as to create more evidence that the respondents were selling the goods. But the respondents have not denied selling the goods. It is their position that they were selling with instructions of Jitendra.  I find so because the complainant knew well that her goods were at PW 2’s warehouse because PW 2 said he had dealt with her for a long time. The driver who collected and transported the goods from the warehouse to the respondents’ store knew the complainant quite well. PW 3 and PW 4 equally knew her well as they had been doing business with her. In short, all these people involved in this case, other than the police officers, form a circle of persons well known to one another due to their business dealings in supply and purchase of the cloth materials.
10. The question then is, when the respondents took possession of the goods who was the owner thereof, the complainant or Jitendra?
11. The prosecution’s case is that the goods belonged to the complainant because she had paid for them and therefore any dealing in the goods in a manner adverse to her rights therein without her consent amounted to fraudulent taking or conversion.
12. The respondents on their part maintained that the ownership of the goods had not passed from Jitendra to the complainant as the complainant failed to complete payment for the goods. Indeed, the complainant confirmed in her evidence that she never received the Bill of Lading from Vimal which formed the contract between her and Vimal.  Moreover, the investigating officer, PW 10 confirmed in evidence that the complainant had delayed payment for the goods to Jitendra. He further said that the goods were released from Chumbex warehouse at the instructions of the owner, Jitendra. Jitendra released the goods to the respondents for disposal in order to recover the balance of the amount owing to Vimal International and the complainant confirmed that there was correspondence between him and her over this issue.
13. The issue of who was the owner of the allegedly stolen goods is central to this case. According to the complainant, the goods belonged to her as she had paid Vimal International for them. However, the evidence she tendered in court showed that she had an outstanding balance of KShs 3,492,728/= to pay. She said in evidence that according to her business practice with Vimal International the goods would not be released to her until she cleared the payment.
14. The learned trial magistrate further found that the complainant had ordered for 11 containers. She was to use proceeds of 3 containers to clear the remaining 8.
15. The learned trial magistrate found that the complainant did not prove that she had paid the said balance and although she said she had cleared the balance on 13/9/2018 because she had been unable to pay earlier, this was way after she had reported the matter to the DCI that her goods had been stolen by Jitendra and the respondents. She also failed to prove that she had paid the demurrage charges amounting to KShs 2 million.
16. A central person in this case was Jitendra whom without his evidence the prosecution would not establish ownership of the goods allegedly stolen by the respondents.
17. Evidence by both the prosecution and the defence leads to the conclusion that Jitendra is the fulcrum upon which the entire case swings. Where his weight falls is where the scale tilts for reasons that the said goods originated from Vimal International in India where he was based. Unfortunately, neither the prosecution nor the defence found it appropriate to make Jitendra available to testify in the case. But the burden to prove the case beyond a reasonable doubt is upon the prosecution. Therefore, the failure to call Jitendra as a prosecution witness calls for an adverse inference against the prosecution that if called he would give evidence unfavourable to the prosecution. This is so where it is apparent that neither ownership of the goods nor even possession thereof ever passed to the complainant.
18. The respondents were found in possession of some goods which the appellant contends that were in fact her goods which she had imported from Vimal International. She identified these goods by the label HB. Although the complainant wanted to give the impression that these labels were uniquely hers, it came out in evidence that in fact, those were not labels on the particular materials but labels placed on the bales carrying the materials in order to identify the goods destined for the appellant from those of others.
19. Consequently, I find in agreement with the learned trial magistrate that there was no fraudulent taking of the complainant’s goods as alleged in all the three charges of theft. For more clarity, the prosecution failed to prove beyond a reasonable doubt that the goods belonged to the complainant whether by ownership or possession. There is very clear doubt on whether the property in the goods had passed to the complainant at the time they were being released to various people, among them the respondents.
20. Having failed to prove that the goods were stolen, it follows that the charge of handling must also fail.
21. The charge of obtaining by false pretenses is not difficult to dispose of. The High Court, Mativo, J. (as he then was) after considering a number of authorities summarized the ingredients of this offence in the case of Gerald Ndoho Munjuga v Republic [2016] eKLR as follows:

“The offence of obtaining by false pretence means knowingly obtaining another person\'s property by means of a misrepresentation of fact with intent to defraud. For the offence of obtaining by false pretences to be committed, the prosecution must prove that the accused had an intention to defraud and the thing is capable of being stolen. An inducement on the part of an accused to make his victim part with a thing capable of being stolen or to make his victim deliver a thing capable of being stolen will expose the accused to imprisonment for the offence.”

1. The evidence by the prosecution and the defence in this case was clear that the 1^st respondent performed his part of the bargain by clearing goods sent by Jitendra and meant for the complainant once the complainant had sorted out her payment issues with Jitendra. The prosecution and the defence all agreed that the goods were cleared and placed under the custody of PW 2 at the warehouse. As asserted by the 1^st respondent, his duty ended there. There is no evidence that he had to ensure that the goods are delivered at the complainant’s shop, Hebrew Creations in Ngara.
2. I find that there was no proof of a misrepresentation of fact with an intention to defraud by the 1^st respondent upon the complainant. There is no doubt that clearance of the goods from the port was for the benefit of both Jitendra as seller and the complainant as buyer and the 1^st respondent duly discharged his duty. Ownership of the goods while at the warehouse was an issue between Jitendra and the complainant and not the clearing agent. According to the 1^st respondent whose evidence was supported by PW 2, the ownership of the consignment remained with Jitendra.
3. I therefore find that the learned trial magistrate was correct in her finding that the prosecution had not proved this charge against the 1^st respondent and was correct to dismiss it and acquit the 1^st respondent thereon.
4. On evaluating the evidence on record, I find that the prosecution did not adduce sufficient evidence to warrant a conviction of either of the respondents on any of the charges laid against them.  I have ultimately come to the conclusion that this appeal is bereft of merit and the same is dismissed in its entirety. It is so ordered.

Written, dated and signed at Kiambu on the Virtual Platform, Teams this 18^th day of September 2024.

In the presence of:

Ndeda (Ms) for the Appellant.

N/A for the Respondent.

Njue (Ms) for the Complainant.