Flugence Otieno Kessa v Republic [2000] KECA 276 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a former bank employee's appeal, confirming his conviction for stealing from his employer through fake interest payments.
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, there was any basis for interfering with the concurrent findings of fact of the magistrate and the High Court, the appellant not contending that there was no evidence at all.
- 2.Whether the prosecution's failure to produce documents showing the alleged false entries was fatal to the three counts of fraudulent false accounting.
- 3.Whether, absent proof of the false entries, the conviction on the fourth count of stealing by a servant could stand.
- 4.Whether laying the three false-accounting charges under Section 330(a) instead of Section 330(b) of the Penal Code was a fatal defect or a curable irregularity.
- 5.Whether the concurrent sentences of six years' imprisonment on each count were lawful.
Key legal issues
#Scope of a second appeal - confinement to matters of law
A second appeal to the Court of Appeal is confined to matters of law; the Court is not concerned with facts as found by the trial magistrate and confirmed by the High Court unless it is argued that there was no evidence at all upon which a reasonable tribunal properly directing itself could reach those conclusions.
The Court noted that the appellant did not contend that there was no evidence at all supporting the conclusions of the two courts below. It therefore declined to revisit the findings that the appellant, as systems administrator, was responsible for making entries into the computer and for stripping accounts from it, stating there was no legal basis for interference because those findings were fully justified by the evidence.
Proof of fraudulent false accounting without production of the documents containing the entries
The prosecution does not fail merely because it does not produce the physical documents recording the false entries; the entries may be established by evidence of accounts credited with interest to which they were not entitled, and by the accused's dealings with the funds.
The Court accepted that no documents showing the entries were produced. It held the false entries were proved by the crediting of interest to closed accounts and to current accounts that had been stripped from the computer, on which cheques drawn by the appellant were honoured. The funds were traced to the accrual account, and the appellant's use of them for his own benefit proved both the entries and the fraud.
Charging under the wrong paragraph of the Penal Code - curable irregularity
Where the particulars of a charge disclose an offence under Section 330(b) of the Penal Code but the charge is laid under Section 330(a), the mistake is a curable irregularity under Section 382 of the Criminal Procedure Code provided it occasions no failure of justice.
The Court agreed with Hayanga J that the evidence was not at variance with the particulars or with Section 330(a). It held the three charges ought to have been laid under paragraph (b), but the mis-citation did not occasion a failure of justice; the position would have been different only if Section 330(b) did not exist at all.
Proof of stealing by a servant and of fraudulent intent
Fraudulent intent and the theft charged as stealing by a servant are made out where the accused, an employee, benefits from monies credited to accounts not entitled to them.
The Court found that the appellant used the monies in the irregularly credited accounts to pay his mechanic, his tailor, his landlord and his children's school fees. As an employee of the bank at the material time, his use of the funds in that fashion amounted to the theft charged in the fourth count.
Legal principles established
#- On a second appeal the Court of Appeal concerns itself only with matters of law and will not disturb concurrent findings of fact unless it is argued that there was no evidence at all upon which a reasonable tribunal properly directing itself could make the conclusions reached by the two courts below.
- A charge laid under the wrong paragraph of a statutory provision is a curable irregularity under Section 382 of the Criminal Procedure Code where the mistake occasions no failure of justice; the position differs only where the correct provision does not exist at all.
- False entries in a fraudulent false accounting charge need not be proved by production of the documents themselves; they may be established by evidence of accounts credited with interest to which they were not entitled and of the accused's benefit from the funds.
Court orders
#- 1.The appeal was dismissed in its entirety: 'This appeal wholly fails and we order that it be and is hereby dismissed.'
- 2.No interference with the sentences: the concurrent sentences of six years' imprisonment on each count were held lawful and left standing.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.CR.A. NO. 337 OF 1998
- Jurisdiction invoked
- Not expressly cited in the judgment; the matter reached the Court of Appeal as a second criminal appeal against conviction and sentence, which the Court confined to matters of law.
Relief refused
#Quashing of the convictions on all four counts (three of fraudulent false accounting and one of stealing by a servant)
The Court held the prosecution proved the charges beyond reasonable doubt; the false entries were established through interest credits to accounts not entitled to interest and the appellant's use of the funds.
Interference with the sentences of six years' imprisonment on each count ordered to run concurrently
The Court found the sentences lawful and declined to interfere.
Costs
No order as to costs was made 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.
This appeal wholly fails and we order that it be and is hereby dismissed.
This being a second appeal, we are not concerned with the facts as found by the magistrate and confirmed by the High Court, unless it be argued that there was no evidence at all upon which a reasonable tribunal properly directing itself could make the conclusions arrived at by the two courts below.
We think the three charges ought to have been laid under Section 330 (b) of the Penal Code and we understand the learned Judge to be saying that the mistake in laying the charges under paragraph (a) did not really occasion any failure of justice to the appellant and was a curable irregularity under Section 382 of Criminal Procedure Code. We agree with this proposition.
The answer must be that the false entries he made were to be found in the accounts he credited with interest when those accounts were not entitled to receive any interest.
Like the two courts below, we are satisfied the prosecution proved beyond any reasonable doubt the four counts brought against the appellant.
Normally the prosecution is bound by the particulars of the charge and looking at this case I do not see that the evidence given by the prosecution was at all at variance with those particulars or with section 330 (a) as provided in the Penal Code.
Issues in the judgment
#The sentence imposed by the magistrate was internally inconsistent on its face - six years on each count ordered to run concurrently, yet described in brackets as amounting to twenty-four years; the Court of Appeal treated the sentences as concurrent and lawful without expressly resolving the discrepancy.
The appeal is styled 'In the Court of Appeal at Mombasa', but the judgment is dated and delivered at Nairobi.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Flugence Otieno Kessa v Republic [2000] KECA 276 (KLR)", Case Analysis (2000). Criminal Appeal No. 80 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/276/eng@2000-08-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.