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Court of AppealDismissedCriminal Appeal (Court of Appeal, Nairobi)· [1993] KECA 78 (KLR)

Gichanga v Republic [1993] KECA 78 (KLR)

Court of Appeal of Kenya
16 July 1993
ACA.M CockarROR.S.C OmoloAAA.K. Akiwumi
3,943 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot escape criminal liability by hiding behind your company, and second appeals only cover legal errors.

What this practically means

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Executive summary

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The appellant was convicted by a Senior Resident Magistrate in Mombasa on two counts of conspiracy to defraud the National Cereals and Produce Board of Kshs 27 million and Kshs 24.9 million contrary to section 317 of the Penal Code, and one count of stealing by agent contrary to section 283(b). On first appeal, the High Court affirmed the conspiracy convictions (reducing the sentences from three to two and a half years concurrent) but acquitted him on the stealing-by-agent count. The appellant then appealed to the Court of Appeal on five grounds of law. The Court, constituted of Cockar, Omolo and Akiwumi JJA, reminded itself that under section 361(1) of the Criminal Procedure Code a second appeal lies on matters of law only. It held that the concurrent findings of fact by the two courts below - that the appellant falsely claimed ownership of over 2.9 million gunny bags, received over Kshs 18 million paid out on false purchase advices, and acted in concert with Board officials who certified non-existent deliveries - were supportable. It rejected the argument that the company, Mombasa Development Ltd, should have been charged instead, holding the appellant could not hide behind his company for his personal acts. It accepted that a body corporate is deceived through its agents acting in good faith. It further held that conspiracy may be inferred from concerted conduct without proof of a meeting, and that the acquittal on theft by agent, resting on different facts, could not undermine the conspiracy convictions. The appeal against convictions and sentences was dismissed in its entirety.

Key legal issues

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01

Scope of second appeal under section 361(1) Criminal Procedure Code

Holding

Second appeals lie on issues of law only; concurrent findings of fact by the two courts below, if supportable, are not open to reconsideration.

Reasoning

The Court reminded itself that section 361(1) limits appeals to this Court to issues of law only. The facts found by the trial court and independently found by the High Court could be supported on the record, so the appeal was properly confined to whether the convictions were soundly based in law on those facts.

p. 2
02

Whether conspiracy may be inferred without evidence of a meeting or express agreement

Holding

Conspiracy may be inferred from facts showing concerted action; no meeting or express agreement need be proved.

Reasoning

Relying on the High Court's reasoning adopted by this Court, the absence of evidence of a meeting was immaterial. The agreement was inferred from the fact that each participant fulfilled a part of the deception, following Ongodia v Uganda, so the section 317 conspiracy was established though no specific offence was mentioned in the section.

p. 6
03

Distinction between the conspiracy convictions and the acquittal on stealing by agent

Holding

Acquittal on theft by agent does not vitiate conspiracy convictions because the charges rest on different facts and the conspiracy was complete before payment.

Reasoning

The Court held that the basis and facts of the theft-by-agent charge, resting on the uncorroborated evidence of the accomplice Jennifer Gaya, were quite distinct from the conspiracy charges. The conspiracy was accomplished in time before any money was paid over, so the acquittal on theft by agent could not affect the conspiracy convictions.

p. 5

Legal principles established

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  • A second appeal to the Court of Appeal lies on matters of law only; there is no right of appeal on matters of fact.
  • A court will not disturb concurrent findings of fact by two lower courts where such findings can be supported.
  • An individual cannot shield behind corporate personality for his own personal criminal acts; conspiracy may be inferred from circumstantial evidence without proof of a meeting.
  • A body corporate such as the Board can be induced by false pretences where its servants or agents acting in good faith are so induced.
  • Conspiracy to defraud under section 317 is complete upon the deceitful agreement and is distinct from, and unaffected by acquittal on, a separate theft-by-agent charge.

Court orders

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  1. 1.The appellant's appeal against his convictions and sentences is dismissed
  2. 2.No interference with the sentences substituted by the High Court (two and a half years concurrent on the conspiracy counts)
On appeal from
High Court of Kenya
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code - second appeal on matters of law only

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gichanga v Republic [1993] KECA 78 (KLR)", Case Analysis (1993). Criminal Appeal (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1993/78/eng@1993-07-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.