Kelvin Muli Kilonzo v Republic

and 13th October 2021 at Nguluni town within Machakos County, jointly with others not before court, knowingly altered 1,548 manually, Equity school and institutions’ fees deposit slips from the said period by inserting details of the pupils and money deposited without lawful authority. 5. Count IV; offence of forging a stamp contrary to Section 352(b) of the Penal Code. The brief particulars are that on diverse dates between 12th January 2017 and 13th October 2021 at Nguluni town within Machakos County, jointly with others not before court without lawful excuse knowingly had in his possession an instrument of making the impression of a stamp. 6. Count V; offence of accounting contrary to Section 330 (b) of the Penal Code. The brief particulars are that on diverse dates between 12th January 2017 and 13th October 2021 at Nguluni town within Machakos County, being the servant of Samuel Kitele Mutisya, with intent to defraud omitted from the cash books belonging to Samuel Kitele, material particulars that is to say Equity agent generated machine receipts amounting to Kshs.7,813,370/= 7. The Appellant pleaded not guilty to all the charges and the case proceeded to full hearing. The prosecution called 11 witnesses while the Appellant gave sworn evidence and called one witness. Upon conclusion the trial court in its judgment delivered on 27th March 2024, acquitted the Appellant on Count IV and found him guilty on Counts I, II, III and V and convicted him under Section 215 of the CPC and sentenced him as follows: - 8. a. Count I; Fine Kshs.1,000,000/= or 2 years in jail. b. Count II; Fine Kshs.300,000/= or 2 years in jail. c. Count III; Fine Kshs.300,000/= or 2 years in jail. d. Count V; Fine Kshs.300,000/= or 2 years in jail. The sentences were to run consecutively. The trial magistrate further directed the school to pursue a civil claim against the Appellant and Simland Electronic upon after expiry of the 14 days appeal period to recover the stolen amounts. The Appeal 9. 10. Being dissatisfied by the said judgment on both conviction and sentence, the Appellant has lodged the appeal herein vide an undated Petition of Appeal filed in court on 16th September 2024.The same raises 5 grounds as hereunder: 1. That the learned trial magistrate erred both in fact and in law by convicting the Appellant on evidence that didn’t meet the minimum threshold to uphold a conviction. 2. That the learned trial magistrate erred in matters of law and fact by failing to order that the sentence of 2 years for each count to run concurrently. 3. That the learned trial magistrate erred in both law and fact by not considering the Appellant’s sworn defence. 4. That the Appellant to be furnished with the trial proceeding records for more grounds to be adduced at the hearing of the appeal. 5. That the Appellant to be present during the hearing of the appeal. Grounds 4 and 5 are spent. On 13th November 2024, the Appellant confirmed to have been furnished with the typed proceedings of the trial court and had in fact filed submissions on 7th November 2024. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14350/eng@2025-02-25 2

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11. The appeal was disposed of by filing submissions. As indicated the Appellant filed his submissions which are dated 6th November 2024. 12. The Respondent did not file any response or submissions to the appeal despite being given an opportunity to do so on 13th November 2024 when they were granted 14 days to comply and a further 7 days on 11th December 2024 and therefore the appeal is unopposed. 13. The Appellant in his submissions, merged ground 1 and 2 and submitted that the Respondent lacked the requisite evidence to sustain a conviction and heavily relied on circumstantial evidence leading to a conviction. That the Appellant was faced with a multiplicity of charges and from the onset, neither charge was proved to the required threshold. He referred to page 15 of 23 of the record with regard to Count I that the magistrate simply averred “On the 1st issue, I have considered the evidence of PW1, PW2 and PW3 and their evidence of school losing Kshs.7,813,370 had been corroborated by PW5, PW6 and PW10 who analysed the receipts on behalf of Equity Bank. I find this issue has been established” That from the above and by dint of section 169 of the CPC, the trial magistrate misdirected herself to make an inference on a matter which she never deciphered any points for determination to come up with a conclusion to convict to the required threshold as her statement is rather superficial as to the offence of stealing. That neither the actus reus nor mens rea was proven by evidence was adduced. The fact the PW9 conceded that he had no proof of employing the Appellant herein whereas PW5 alluded to the sum of Kshs.710,000/= being the amount lost thereby contradicting the sum of monies the trial magistrate alluded to have been lost. This grey area should be resolved to the Appellant’s favour. 14. That from the proceedings on page 27 line 18-19, PW9 during cross examination stated that “problem started in 2017 when the other was present. He was the in charge” which was further corroborated by the witness that the Appellant and the former employee had worked together for a period of one year. On the foregoing, it is rather obvious that the Appellant is being used as the sacrificial lamb in a matter presumably the owner of the agency (PW9), may have had a hand in the loss and irrefutably absolved from any liability by the mere fact that he was a parent at the school. That PW6, (Auditor) in examination in chief depicted that he worked with the Appellant in filing KRA returns and hence this court should scrutinize if there could have been some conspiracy that the trial court was blind to and carried on with proceedings devoid of this fact and all criminal responsibility directed to the Appellant. 15. The Appellant submitted further that the Charge Sheet stated that the Appellant jointly with others perpetrated the offences but the Appellant was skewed as the scapegoat. 16. That Count II & III referred to charges that the Appellant altered (emphasis) a document with intent to deceive contrary to Section 357 (b) of the Penal Code. The Appellant reproduced the provisions of Section 357 (b) of the Penal Code which states: b. 17. Knowingly utters any document or electronic or writing so made, signed or executed by another person, is guilty of a felony and is liable to imprisonment for seven years. The said Section speaks of the term “utter” in great contrast to the term “alter” as used in the charge sheet. This is an issue that this court should examine if the words alter and utter mean the same and can be used interchangeably as this goes to the root of finding that the charge sheet was inelegantly drawn thus the charges in it were fatally defective by dint of Section 89(5) of the CPC. The Appellant invites this court to find that the offences he was charged with do not exist.,. The Appellant referred to the case of William Dubi Ikiwo v Republic (2001) eKLR . https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14350/eng@2025-02-25 3

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18. The Appellant also invited this court to examine how the Appellant may have uttered POS generated receipts an issue that was never proved to the required threshold as the prosecution did not procure the testimony of a forensic expert witness to ascertain the alterations that were declared as the only imminent misdemeanour from the Appellant was to over stamp the said receipts much as there exists many reasons for a transaction to be declined as explained by PW5 working for Equity Bank as the agency supervisor. That the Appellant never defaced the word “deposit declined” in the receipts and invites this court to consider the issue. 19. On the last Count of fraudulent accounting contrary to Section 330 (b) of the Penal Code, the Appellant submitted that, he was never an accountant to PW9 and all monies due from the agency business were under the custodian of PW9 as the norm would dictate. That the prosecution failed to prove what entries were made by the Appellant to commit the offence in question domiciled on the time frame that the alleged offence was committed and the different parties that could have had a hand in it. Under the vicarious liability principle, where is the line drawn on PW9’s liability an issue the Appellant warrants this court to address. 20. The Appellant submitted that the learned trial magistrate erred in matters of law and fact by failing to order that the sentences to run concurrently. He relied on the cases of Kennedy Indiema v Republic Criminal Appeal 344 of 2006; Owiti v Republic (1984) KLR 73 and Ngá ngá v Republic (1981) KLR 530 and argued that in the present case, the Appellant was faced with a myriad of charges connected in kind and time that irrefutably happened within the same locus. This having been established; it was rather undesirable for the trial court to meet out consecutive sentences when established rule of practice is that the sentences should run concurrently for offences committed in the same transaction. 21. On the ground of appeal that the learned trial magistrate erred in both fact and law by not considering the appellant's sworn defense, the appellant submitted that he was operating his own entity an issue which was corroborated by DW2 and neither had he been employed by PW9 who averred that he had nothing on record to prove the employment of the Appellant and as such he cannot place culpability to the Appellant in its entirety. 22. That the pundit magistrate in her judgement only relied on identification by prosecution witnesses in a bid to inform & satisfy herself on the culpability of the Appellant much as the prosecution never proved how the Appellant uttered documents. The Appellant referred to the case of Ezekiel Agwenye vs Republic Criminal Appeal No. 124 of 1999., it was held: “ To our minds it is one thing to say to the Police, a witness did recognize a suspect and it is quite another thing altogether to give to the Police either the name or the description of the suspect. In the event a witness said that he could identify the suspect if he saw him again, the Court would be interested in knowing the features by which the witness was able to identify the suspect. " Although the victim did know the Appellant before, the Prosecution did not conduct an Identification Parade. The Appellants identification therefore was Dock identification which is almost worthless. 23. The Appellant invited this court to find that in as much as the prosecution was hell bound to identify the Appellant as the perpetrator, the prosecution obfuscated the task of conducting an identification parade an issue that we warrant this Honorable court to fault the conduct of the lower court proceedings and resolve them to the favor of the Appellant as dock identification has no probative value as was the case herein. The standard of proof in this instant matter is wanting and in dire straits far below the required standard as the matter was decided upon on a balance of probability. It is therefore https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14350/eng@2025-02-25 4

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submitted that there were no proper investigations done in respect of the matter at hand. The same suffered from a serious malignant malady of proof. 24. That the Prosecution sought to shift the burden of proof to the Appellant contrary to the tenets of a fair trial and as espoused by Section 107 of the Evidence Act. As such, may this Honorable court be guided by the findings in the matter of Elizabeth Waithiageni Gatimu vs Rep and the wordings in Woolmington Vs DPP (1935) AE 462 where it was held that: “ If there is any reasonable doubt created by the evidence brought. forward by the prosecution, then the case for the prosecution is not proved and the prisoner is entitled to acquittal". 25. Lastly, the Appellant relied on the holding in Sekitoliko vs. Uganda (1967) EA 53: “ The prosecution has a duty to prove all the elements of the offence beyond reasonable doubt and that the conviction of the accused is depended upon the strength of the prosecution case and not the weakness of the defence case. " 26. The Appellant prayed that the conviction be quashed and sentence(s) be set aside and in lieu of the above and without prejudice, the court to award a non-custodial sentence to the Appellant. Evidence 27. This being a first appeal, it is the duty of this court to reconsider and re-evaluate the evidence adduced and the submissions made in the trial court so as to arrive at its own independent conclusion. In so doing, this court is required to always bear in mind that it neither saw nor heard the witnesses as they testified and must therefore give due allowance in that regard. (See Okeno v Republic (1972) EA 32). 28. To enable this Court, discharge the said duty, a brief look at the evidence becomes eminent. However, this Court will not reproduce that evidence. Instead, it will incorporate the evidence as captured by the trial court in its judgment by reference since the Court did it quite well. 29. In a nutshell, I have perused the proceedings and the prosecution availed several witnesses including Corporal David Mbugua (PW11), the investigating officer. 30. Sister Macleen Mugira (PW1) told the court that she is a teacher and the head teacher of St. Francis of Assisi (the school) and on 13th October 2021, Daniel Zakayo Mulwa (PW2), the deputy headteacher brought 2 receipts to her attention. PW1 stated that she looked at the receipts and noted they bore several stamps and she did not know their meaning. She sent one of the parents to the equity agent for authentication. The receipts were taken to Mr. Kitele and he could not explain why the receipts had several stamps. 31. PW1 stated that the following day, she went to Equity Bank and spoke to an official and after looking at the receipts, she was directed to produce the others. She went and returned with receipts dating 2017and receipts totaling Kshs.7,813,370/=could not be verified (Pexb.1-5). This is when she was awoken to the realization of theft despite the school having problems for years. She noted for the transaction where payment went to their account, the deposit slip was stamped once but where the transaction was declined, the code 55 was stamped severally and not visible. She reported the matter to the Tala police station. In cross-examination, PW1 told the court that parents paid school fees through Simland agents but they could use other agencies if based outside Tala. The receipts were handed over to the school's secretary and she would record them in the school book. She https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14350/eng@2025-02-25 5

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did not know the Appellant but he was arrested because he was an employee of Simland where all the receipts emanated from. 32. PW2 reiterated PW1's evidence and further stated that he was alerted of the issues by the secretary on 12th October 2021. The secretary doubted 2 receipts with double-layered stamps. He alerted PW1 who referred him to the agent, Mr. Kitele whom he met. Mr. Kitele could not explain the receipts and he reported back to PW1. PW2 told the court that PW1 verified the transactions were declined. The Appellant was the attendant in the agent's shop. The Appellant had worked in that shop for long and it is where the parents paid school fees. In cross-examination, PW2 stated that the parents paid school fees through Simland Electronics which is owned by Kitele Samuel and John Mutua. He had undertaken personal transactions in Simland and was attended to by the accused. The Appellant received money from the parents but failed to complete the transactions. 33. Leah Mbithi (PW3) told the court that she is a receptionist at the school and one of her roles was to receive bank deposit slips from the parents and she would keep them in a box after looking at them. In this case, she came across 2 receipts that had the word “declined". She brought the receipts to the attention of the head teacher. Later, she was informed the money had not been banked. She had been working in the school since 2017 and the deposit slips emanated from Simland Agency. She looked for the other receipts in the store room and she recorded a statement with the police. In cross-examination, she stated that the receipts from Simland were defaced. 34. Matilda Nzilani (PW4) stated that she paid school fees of Kshs.8,000/= through Simland agencies and she was issued with deposit slip which she took to the school. In October or November, she was summoned by the head teacher and told her deposit slip had a problem. She looked at the deposit slip and saw it was stamped severally but the transaction had been declined. She was given the receipt by the Appellant who worked at Simland and whom she knew as Kevo. 35. In cross-examination, she stated that she had seen the Appellant in Simland the previous year and he was the teller, and he had given her a receipt that was declined. 36. Musyoki Mulei (PW5) told the court that he worked for Equity Bank as the Agency Supervisor. He received PW1's complaint on 14th October 2021 and when he looked at the receipts, he noted that: where it shows whether the transaction was approved or declined was stamped to conceal it. He noted the receipts emanated from Simlan Agencies. PW5 told the court that the bank security was alerted and they went to the house of the Appellant to see whether recovery was possible but they did not recover any money. The agency belonged to Samuel Kitele whom he had recruited (Pexb.11). PW5 stated that they went to the agency where they found the accused but they did not talk to him but looked for Mr. Kitele who claimed he was informed of the problem by the school. They established the teller lied to the parents by keying the wrong pin and a decline receipt would be issued and he would cover the word “declined." PW5 stated that he had interacted with the Appellant for 4 years at Simland Agency, in crossexamination, PW5 stated that from their system, they established the school had lost over 7 million from 2017.Further, PW5 stated that beginner agents would make stamps for themselves since the bank had not standardized it. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14350/eng@2025-02-25 6

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37. CPA Phillip Wambua Mutuko (PW6) stated that PW1 summoned him on 25th October 2021 and gave him bank deposit slips and bank statements to reconcile. He did his analysis but the documents did not reconcile, and the deposit slips were defaced. He approached Mr.Kitele because all the defaced deposit slips emanated from Simland agencies. Mr. Kitele told him his clerk was entering the wrong PIN and declined receipts were being issued. The clerk would cover the word “declined" with the stamp. He told Mr. Kitele that his clerk was stealing from the parents. He knew the clerk as the accused because he had assisted him in doing KRA returns. In cross-examination, PW6 stated that he was the auditor for the school and he had not noted the problem. 38. Jackline Syokau (PW7) told the court that on 26th July 2021, she went to an agency where the Appellant worked and paid school fees of Kshs.8,000/=and she was given the deposit slip which she took to school and was given a receipt. After some months, she was summoned to school and was told the money had not reached the school's account. She looked at the receipt given to her by the accused and saw the transaction had been declined and over stamped (Pexb.12). She had not seen this. In crossexamination, PW7 stated that she was served the Appellant. 39. Beth Munyao (PW8) stated that on 20th September 2021, she went to Simland to pay school fees and met the Appellant who offered to fill out the form for her and she gave him Kshs.10,000/=. The Appellant gave her a deposit slip that was over stamped and she took it to school. On 12th November 2021, the head teacher summoned her to record a statement because the transaction was declined. The Appellant had told her he had over-stamped because the date was not clear. He knew the Appellant was employed in the agency by Mr. Kitele. 40. Samuel Kitele Mutisya (PW9) told the court that he was alerted of the issues by PW2 on 13th October 2021. He was asked to verify the issue from the clerk who worked for him. He met the Appellant and enquired, and the Appellant told him that sometimes, the bank issues similar receipts. 2 days later, the bank manager came to him with the same complaint PW9 told the court that he had hired the Appellant in 2016 and he underwent training for a year with the previous employee who left to join the university. He was told the declined receipts were from 2017 to 2021. These receipts had multiple stamps yet successful receipts had single stamp impressions. The Appellant was not recording the declined transaction in the book and his accounts were balanced at the end of the month. In crossexamination, PW9 stated that he had nothing to show the Appellant was his employee or that he was trained. 41. Doris Wambua (PW10) stated that she was sent to investigate Simland Agency, which was one of their Equity agents. She was given about 90 receipts which were machine-generated receipts and the transaction was declined. The Appellant might have been inputting the wrong PIN/code. PW10 stated that she was given the agency transaction book and noted the declined transactions were not captured therein. She looked at the school's bank account and the declined transaction did not reflect therein. She noted that fraud was taking place and she reported at Tala police station. PW1 gave her another batch of receipts and she did a further analysis and established Kshs.7,813,370/= were missing (Pexb.14). 42. In cross-examination, PW10 told the court that she interrogated the Appellant and he acknowledged working for Simland. The Appellant was also known to Mulei. 43. PW11 summed up the prosecution's case. Further, he stated that PW9 did not have proof of employing the Appellant. 44. The Appellant and Beth Mueni (Dw2), gave defence evidence on 7th February 2024. The Appellant stated that he operated a shop next to Simlan Equity Agency and it was where he did most of his https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14350/eng@2025-02-25 7

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transactions. In 2021, the police came to his shop and arrested him. His house was searched and the following day, he learned St. Francis school had lost money. He never worked for Simland and was not an accountant. 45. In cross-examination, the Appellant stated that he was never an Equity agent. He could not recall whether some receipts were recovered from his shop. 46. DW2 stated that the Appellant became sick in 2017 and she took over the operations of their shop. They closed the shop in 2022.The Appellant was not employed elsewhere except in their shop. 47. In cross-examination, DW2 stated that they were not operating an equity agency. Analysis 48. Having carefully and cautiously considered and analyzed the trial court’s record, the grounds of appeal and the Appellant’s submissions on the appeal the issue for determination is whether the Appellant has made a case for this court to interfere with the conviction and sentence imposed by the trial court. 49. Before I proceed to determine the above issue, I must first deal with a matter that the Appellant has raised in his submissions although the same was not raised before the trial court or as a ground of appeal. 50. The Appellant has submitted that Count II & III referred to charges that; the Appellant altered a document with intent to deceive contrary to Section 357 (b) of the Penal Code. The Appellant reproduced the provisions of Section 357 (b) of the Penal Code which states: b. Knowingly utters any document or electronic or writing so made, signed or executed by another person, is guilty of a felony and is liable to imprisonment for seven years. 51. It is the Appellant’s argument that the said Section speaks of the term “utter” in great contrast to the term “alter” as used in the charge sheet. That this is an issue that this court should examine if the words alter and utter mean the same and can be used interchangeably as this goes to the root of finding that the charge sheet was inelegantly drawn thus the charges in it were fatally defective by dint of Section 89(5) of the CPC. 52. Was the Appellant charged with a non-existent offence? My answer would be “NO”. It is not true that Appellant was charged of offences which did not exist at the time he was charged as alleged. 53. It is also not true that the offences in question do not exist under the Penal Code. The offences in question are those of knowingly altering a document with intent to deceive contrary to Section 357 (b) of the Penal Code. After the charge was read out and explained to the Appellant who was represented by Counsel, he pleaded not guilty. It is my view that before reading out the charge, it was incumbent upon the Appellant’s counsel to ensure that the charge as laid was properly framed or presented pursuant to the provisions of Section 89(5) of Criminal Procedure Code. 54. To me, the choice of words either utter or alter is merely semantic which does not change the status of the offence. In addition, the Appellant was presented by counsel throughout the trial but this issue was never raised. The same is therefore an afterthought. The Appellant was not represented by Counsel in this appeal unlike before the trial Court. 55. Now turning to the issue that I have identified above for determination in this appeal, I noted that the Appellant in his submissions, merged ground 1 and 2 and submitted that the Respondent lacked the requisite evidence to sustain a conviction and heavily relied on circumstantial evidence leading to a conviction. That the Appellant was faced with a multiplicity of charges and from the onset, neither charge was proved to the required threshold. He referred to page 15 of 23 of the record with https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14350/eng@2025-02-25 8

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regard to Count I that the magistrate simply averred “On the 1st issue, I have considered the evidence of PW1, PW2 and PW3 and their evidence of school losing Kshs.7,813,370 had been corroborated by PW5, PW6 and PW10 who analysed the receipts on behalf of Equity Bank. I find this issue has been established” That from the above and by dint of Section 169 of the CPC, the trial magistrate misdirected herself to make an inference on a matter which she never deciphered any points for determination to come up with a conclusion to convict to the required threshold as her statement is rather superficial as to the offence of stealing. That neither the actus reus nor mens rea was proven by evidence was adduced. The fact the PW9 conceded that he had no proof of employing the Appellant herein. 56. As regards the Appellant’s argument that PW5 did not prove employing the Appellant, it is my view that the argument is misplaced. The Appellant was not charged with the offence of Stealing by Servant contrary to Section 281 of the Penal Code where proof of employment is a necessary ingredient. In addition, the money that was stolen did not belong to PW9 but the school herein. 57. Further, the Appellant has raised an issue of vicarious liability principle. For this principle to apply, a person has to demonstrate that he/she acted on instructions of or with authority of his/her master. The Appellant did not demonstrate that whatever he did including the over stamping of the word “deposit declined” in the receipts was with the authority of PW9, Equity Bank or anyone else. 58. On whether the sum lost was Kshs.710,000/= as alluded to by PW5 or Kshs.7,813.377 which the trial court found to have been lost. I have considered the evidence on record touching on the monies lost in this case and no doubt, through the evidence tendered the school lost money to the tune of Kshs.7,813,370/=. There was not only documentary evidence in support, but also expert evidence of the PW5, Equity Bank Agent Supervisor and PW6, the Auditor that perfectly linked the Appellant with the questioned cash transactions. 59. In his defence, the Appellant stated that he operated a shop next to Simlan Equity Agency and it was where he did most of his transactions. In 2021, the police came to his shop and arrested him. His house was searched and the following day, he learned St. Francis school had lost money. He never worked for Simland and was not an accountant. In cross-examination, the Appellant stated that he was never an Equity agent. He could not recall whether some receipts were recovered from his shop. 60. DW2 stated that the Appellant became sick in 2017 and she took over the operations of their shop. They closed the shop in 2022. The Appellant was not employed elsewhere except in their shop. In cross-examination, DW2 stated that they were not operating an Equity agency. 61. The Appellant admitted to be operating a shop next to Simlan Equity Agency where he did most of his transactions. DW2 on the other hand admitted that the Appellant was operating their shop which was closed in 2022. The offences herein were allegedly committed on diverse dates between 12th January 2017 and 13th October 2021. The Appellant did not state what most transactions he did at Simlan Equity Agency. His allegations ran contra the evidence. The evidence was cogent and pointed to him as having unlawfully received the sums of money in issue likely in cohort with others who were not before court. 62. The cumulative evidence was overwhelming and well connected and just like the trial court, I am convinced that the evidence adduced was water tight to support the loss of Kshs.7,813,370/= through theft by the Appellant. Conviction 63. Accordingly, the conviction by the trial court is upheld. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14350/eng@2025-02-25 9

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Sentence 64. The Appellant herein was acquitted on Count IV and was fined on Counts I, 11, 111 & V and given respective default sentences. In that regard Section 28 (2) of the Penal Code provides that: (2) 'In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act (Cap 91) ordered by a court in respect of the non-payment of any sum adjudged to be paid for costs under section 32 or compensation under section 31 or in respect of the non-payment of a fine or of any sum adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale— Amount Maximum period 1. Not exceeding Kshs.500 14 days 2. Exceeding Kshs.500 but not exceeding Kshs.2,500 1 month 3. Exceeding Kshs.2,500 but not exceeding Kshs.15,000. 3 months 4. Exceeding Kshs.15,000 but not exceeding Kshs.50,000. 6 months 5. Exceeding Kshs.50,000. 12 months 65. In view of these provisions of Section 28 of the Penal Code the default period of twenty-four (24) months in Counts I, II, III and V 5 is incorrect, irregular, improper and unlawful and I therefore set it aside and substitute it with a default period of twelve (12) months on each Count. See Wanjiru v Republic (Criminal Revision E233 of 2022) [2023] KEHC 21515 (KLR) (28 July 2023) (Ruling) 66. The custodial sentences herein are in default of payment of the fines. Fine sentences do not run concurrently and neither does the default period. This is supported by the provisions of Section 37 of the Penal Code. The trial magistrate judiciously exercised his discretion on imposing the amounts of fines. 67. The upshot is that the appeal herein partially succeeds to the extent of setting aside the default sentences of 2 years imprisonment on Count I, II, III and V respectively and substituting therefor twelve (12) months imprisonment in each. (a cumulative term of 48 months imprisonment). The sentences are to run consecutively from the date of conviction by the trial court less any period the Appellant might have been in remand custody during trial pursuant to Section 333(2) of the CPC. 68. The sentences to run consecutively is lawful and legal in the circumstances of this case. 69. Right of appeal, 14 days 70. I so order. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14350/eng@2025-02-25 10

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JUDGMENT WRITTEN, SIGNED & DATED AT MACHAKOS THIS 25TH FEBRUARY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 25TH FEBRUARY 2025 In the presence of : In person............. for Appellant Ms. Agatha............ for Respondent Milly Grace.................... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14350/eng@2025-02-25 11

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