Midika v Republic [1985] KECA 13 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that pocketing harambee donations meant for a good cause is stealing by an agent, a serious crime.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether on a second appeal the Court of Appeal could disturb the concurrent findings of fact of the two courts below
- 2.Whether the Kshs 210,000 handed to the appellant was entrusted to him as agent of the union's Miwani branch for delivery at the Nyando Constituency harambee
- 3.Whether the appellant fraudulently converted the money so as to constitute stealing by an agent under section 283(b) of the Penal Code
Key legal issues
#Scope of a second appeal
The appeal was confined to matters of law; the court would not disturb the concurrent findings of fact of the magistrate and the High Court.
Under section 361(1) and (a) of the Criminal Procedure Code, a second appeal lies only on matters of law. The magistrate had the advantage of seeing and hearing the witnesses, and the High Court judges meticulously weighed the recorded evidence. The Court of Appeal found their assessment of credibility correct and declined to disturb the concurrent findings that the appellant could not account for the Kshs 210,000.
Entrustment and agency
The Kshs 210,000 was entrusted to the appellant as agent of the union's Miwani branch to deliver to the guest of honour at the harambee for its purpose.
The workers' contributions were channelled through the branch and mills' management to the union, then handed to the appellant by the trustee and treasurer expressly for presentation at the Nyando Constituency harambee for secondary schools. That made him an agent of the contributors, not a recipient of a personal gift. The defence of gift was rejected as against all the believable evidence.
Fraudulent conversion constituting stealing by an agent
The appellant fraudulently converted the money; paying an equivalent sum into court later did not cure the conversion.
When the harambee was banned the appellant neither followed the President's directive to deposit collections, nor returned the money to the union, nor sought directions from the workers. He claimed to have spent it on other harambees, an explanation rejected as false. Payment of the equivalent into court was not restitution of the identical money entrusted to him. This satisfied section 268 and section 283(b) of the Penal Code.
Legal principles established
#- On a second appeal the Court of Appeal is confined to matters of law and will not disturb concurrent findings of fact of the two lower courts unless plainly wrong.
- Money collected by a politician from contributors for a harambee or good cause is held on trust for that purpose; converting it is the crime of stealing by an agent, and a politician may not pocket it even if the event does not take place.
Court orders
#- 1.The appeal is dismissed
- 2.The conviction for stealing by an agent and the sentence of four years imprisonment imposed by the senior resident magistrate, Kisumu, and upheld by the High Court, stand
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- Jurisdiction invoked
- Section 361(1) and 361(a) of the Criminal Procedure Code (cap 75) - second appeal confined to matters of law
Relief refused
#Interference with the concurrent findings of fact of the two lower courts
A second appeal is confined to matters of law and the court was not persuaded to disturb the concurrent findings
Acceptance of the defence that the money was a personal gift from the union members
The defence evidence was against all the other believable evidence and was rejected
Return of the Kshs 210,000 produced in court to the appellant
It was not the same money entrusted to him; he had fraudulently converted it
Costs
No order as to costs is recorded in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The appeal is dismissed.
We do not accept this. It is not allowable under the law. It is the crime of stealing by an agent. No one would contribute to harambees or other good causes otherwise.
So his appeal was against that decision of the High Court in its appellate jurisdiction and therefore confined to matters of law (section 361(a) (ibid).
There can be no reasonable doubt the Union’s Kshs 210,000 was entrusted to the appellant to deliver for the union’s branch at Miwani to the guest of honour at that harambee for the purpose of the harambee. He was its agent.
Issues in the judgment
#The judgment gives two slightly different accounts of when the cheque was credited and drawn, first describing events of January 12 then stating 'And it was on the same day, January 11'
Typographical error in the judgment ('distrurb' for 'disturb')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Midika v Republic [1985] KECA 13 (KLR)", Case Analysis (1985). Criminal Appeal No 96 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/13/eng@1985-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.