Appellant v Republic (Criminal Appeal from conviction on Counts 5 and 6 - stealing by servant)
The bottom line
#The court overturned the theft convictions because the prosecution failed to prove the loss and improperly used CCTV evidence.
What this practically means
#Executive summary
#Key legal issues
#Admissibility of CCTV electronic evidence without a Section 106B(4) certificate
The CCTV footage was wrongly admitted and of no consequence because no certificate under Section 106B(4) was produced; the purported certificate P.Ex 8(b) was never identified or produced by its purported maker or the investigating officer
PW1 did not explain how the footage was produced and referred to no certificate. PW3, the systems administrator who purportedly signed the certificate, never stated in court that he made or signed it, and PW5 did not produce it as an exhibit. The court could not trace how the document came to be marked as an exhibit, so no valid certificate existed.
Change of magistrates midstream and Section 200(3) of the Criminal Procedure Code
Failure to comply with Section 200(3) did not vitiate the trial because no injustice was occasioned; Hon. Nambafu took no evidence, and PW1 was recalled before Hon. Kipkorir and cross-examined by the defence
The court distinguished the mandatory-compliance authorities relied on by the appellant, holding that under Section 382 of the CPC an error or irregularity only warrants reversal where it has occasioned a failure of justice. Since PW1's evidence was re-taken and cross-examined, no failure of justice arose.
Right to be informed in advance of prosecution evidence under Article 50(2)(j)
The complaint failed as regards the treasury book, which was supplied and produced as P.Ex 5 with cross-examination; other requested documents were said to have been forwarded to the bank's headquarters and could not be found
The record showed Mr. Nandwa complained on 22/8/2017 of non-supply, but by 18/9/2017 the documents had been supplied and he cross-examined PW1 on them. The court treated the missing-documents complaint together with the sufficiency-of-proof question.
Proof of stealing by servant beyond reasonable doubt
The prosecution failed to prove Counts 5 and 6 beyond reasonable doubt; the documents produced showed only that money moved from the strong room to a teller, with no audit showing loss or what happened to the money
The trial magistrate relied on the wrongly admitted CCTV footage and on documents showing only movement of Kshs 5.4 million and 4.5 million to Seline Indara. No audit established whether she received the money, whether any money was lost, or how much was in the vault before the transactions. Discarding the CCTV evidence, the prosecution case was insufficient.
Legal principles established
#- Electronic evidence such as CCTV footage is inadmissible without a certificate under Section 106B(4) of the Evidence Act identifying the electronic record and signed by a person in a responsible position in relation to the device
- Non-compliance with Section 200(3) of the Criminal Procedure Code is curable under Section 382 where no failure of justice is occasioned, e.g. where the accused had opportunity to cross-examine the witness whose evidence was partly recorded by a predecessor
- A conviction for stealing by servant requires proof, by audit or documentary evidence, that money was actually lost and how much; suspicion or unexplained movements in accounts are insufficient
Court orders
#- 1.The conviction of the appellant on Counts 5 and 6 is quashed
- 2.The sentences entered on Counts 5 and 6 are set aside
- 3.The appellant is set at liberty forthwith
- On appeal from
- Magistrates' Court (trial court, Kakamega area)
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over conviction and sentence from the magistrates' court (Criminal Procedure Code)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Appellant v Republic (Criminal Appeal from conviction on Counts 5 and 6 - stealing by servant)", Case Analysis (2020). . Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.