Doreen Wanja Sebastian & 1 other v Republic & 1 other

(3) That the learned Chief Magistrate erred in law and fact in failing to find that the evidence of the prosecution witnesses was full of gaping loopholes and inconsistencies to warrant a conviction. (4) The learned trial Magistrate erred in law and fact completely disregarding the appellant’s defence as the same contained more than mere denials. (5) The learned trial Magistrate erred in law and fact by failing to consider the judicial authorities which were cited and produced in court by the appellants. (6) The learned trial Magistrate erred in law and fact by imposing a harsh and excessive sentence against the appellants under the circumstances of this case. (7) The Judgment of the learned trial Magistrate is bad in law and the same is against the weight of evidence on record. 2. The appellant desires that the appeal be allowed. The sentence be quashed entirely and she be set at liberty. 2

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Background 3. The appellant was charged with stealing by servant contrary to Section 281 of the Penal Code. The particulars of the charge were that on diverse dates between the month of May 2019 and the month of February 2020 at Githongo Location in Imenti Central SubCounty within Meru County being a servant to Alex Musya Ayub, stole Kshs. 270,000/= the property of the said Alex Musya Ayub which came into her possession by virtue of her employment. The appellant pleaded not guilty to the charge. A full trial then followed and the conclusion of it the appellant was found guilty as charged and was convicted under Section 215 of the Criminal Procedure Code, Cap 75 Laws of Kenya. 4. The learned Magistrate called for a probation officers report and upon the report being placed before the court, the appellant agreed with the complainant whereby she was to refund the amount stolen and the costs. The total to be refunded was Kshs. 350,770/- (inclusive court costs of Kshs. 80,000/=). The amount was supposed to be settled within 6 months. The appellant was then sentenced to serve three years on probation. 3

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The Prosecution’s Case 5. PW1 Viginia Kawira, testified that she operates a business of distributor for Airtel in Nkubu Territory. The business is known as Vikaley Agencies and does the business which involves buying airtime, airtel Money registration of new line/customers. She had employed the appellant as a shop manager for her three shops which were at Nkubu, Mitunguu and Githongo. The business was for buying products from airtel at a price and then sell them. She had a business partner by name Alex Miu. 6. The appellant would operate the shop with a float of Kshs. 30,000/= per day and also sell airtime. At the end of the day she was supposed to retain a book of daily returns and keep a record of the stock. The money forming the proceeds of sale from the three shops would be banked in the same account with KCB Account No. 1253360057 Meru Branch. The appellant left employment and carried her record book. An audit was carried out for the period October 2019 to February 2020 and it was confirmed that the sum of Kshs. 270,000/= had lost at her Githongo shop. The appellant would fail to surrender some money and allege that she had given out goods on credit. 4

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7. In February 2020 she was told to desist from giving out goods on credit as that practice had gone on for three months. She was asked to come with the phone for airtel Money to ascertain the amount but she failed to show up. She sent the keys for the shop via Matatu and her phone was off. She later presented herself to the police and was arrested and charged. 8. PW2 Alex Musya testified that he is a business partner to PW1 and they own a business that sells airtel Products. The business is known as Virkalex Agencies. The appellant was their employee who used to run their shop at Githongo. The Pw2 realised that the appellant used to have credit meaning she was not selling products. He called a meeting but the appellant failed to show up and her phone was off. PW2 ordered an audit to be done. He then went to the shop and found it was cleared off everything. The appellant sent the keys via Matatu. The audit revealed that Kshs. 270,000/= was stolen by the appellant. 9. PW3 George Amolo a managing Partner A & G Kenya Company (Audit) which conducted the audit. He testified that the appellant was supposed to collect money from 5

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sale of airtime between 1/10/2019 and 29/02/2020. He did analysis from the sales book where the appellant used to record sales. The total sales were Kshs. 3,994,425.00 and the amount banked was Kshs .3,749,155/=. There was a variance of Kshs. 245,270.00. the appellant had also transferred Kshs. 25,500/= from Airtel Money account. The total loss was Kshs. 270,770/=. He produced the audit report as exhibit 5. 10. PW4 Irene Nkatha Kirimi was an employee of PW1 based at workmate Githongo Branch. The who based at was appellant Gthongo was her Branch. On 29/2/2020 there was stock taking which was supposed to be done at Nkubu Branch the appellant did not show up. She tried to call her but her phone was switched off. She testified that the appellant would ask for more stock but would fail to bank the proceeds of sale claiming there was no float in the agencies so she was unable to bank. PW4 reported to the director who informed her that stock taking would be done. 11. On 1/3/2020 she received a call from a taxi driver who told her to go and meet at Kenol Petrol Station and pick a parcel. PW4 went and met the taxi driver and he 6

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gave her keys and a phone. The phone belonged to the appellant. She informed the director. The director went to Githongo shop and found there was no stock. PW4 handed over the stock book to the auditor. After the audit, Kshs. 270,917.00 could not be accounted for. That during the period that the money was misappropriated, the appellant was working at Githongo shop. 12. PW5 Paul Macharia form Liason Office Airtel Kenya. He handles Liason matters which are of Criminal nature. On 13/10/2020 he was requested through a Misc. Application to provide the registration details of Telephone No. 0732447129 and A)0756360886. He was also requested to supply transaction statement of Airtel Money from 1/5/2018 – 1/3/2020. He keyed into the Data base and retrieved the following information. Line 0756360886 on 13/2/2020 at around 11.30 – 4.00am – 0732447129 sent Kshs. 252,200/= to line No. 0756360886 which is registered in the name of Doreen Wanja. 0732447429 is registered in the name of Virkalex Agencies by Virginia Kawira Mwiti. 13. PW6 Mary Magdalena Gatwiri is the Registrar of Persons Imenti Central. On 18/3/2021 she was requested 7

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to provide particulars of Identity Card No. 29668608 and ID No. 13252073. ID No. 29668608 belonged to Doreen Wanja Sebastian. ID No. 13252073 is for Virginia Gatwiri Mwiti. 14. PW6(7) PC Titus Bett is a Police Constable attached to DCI Imenti Central. He receipt the repot from the complainant and investigated the matter. The complainant was Vickalex Agencies and the complaint as against the appellant who was reported to have misappropriated while working for the complaiant. He investigated the matter. He obtained a letter of appointment showing that the appellant was employed on 1/5/2019 and dealt with airtel mobile money and deposits at KCB between 1/10/2019 – 29/2/2020. He obtained an audit report for the same period. The audit revealed that Kshs. 270,770.00 was misappropriated. The appellant was then charged. The prosecution closed its case and the appellant was put on her defence. Defence Case 15. The appellant gave a sworn defence and told the court that she was employed by Virginia Kawira and is not the person named on the charge sheet. That in February, Virginia called for stock taking and her records were okay. 8

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She told the court that she did not steal any money. The learned magistrate gave her Judgment and convicted the appellant. Analysis and Determination 16. I have considered the grounds of appeal, the proceedings and Judgment by the trial court and the submission. The issues that arise for determination are: (1) Whether the charge of stealing by servant was proved beyond any reasonable doubts. (2) Whether the learned Magistrate erred in law and fact in failing to find that the evidence of prosecution witnesses was full of gaping loopholes and inconsistencies to warrant a conviction. (3) Whether the learned Magistrate erred in law and fact by imposing a harsh and excessive sentence. (4) Whether the Judgment was against the weight of the evidence. 17. This is a first appeal. The duty of this court sitting as the 1st appellate court is settled by the line of authorities. In Okemo -vs- Republic 1972 E.A the court stated that the duty of the 1st appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself 9

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come up with its own conclusion on the evidence. However, it must leave room for the fact it did not have the benefit of seeking the witnesses when they testified and give allowance for that. 18. In David Njuguna Wairimu -vs- Republic (2010) eKLR, the Court of Appeal quoted the case of Okemo -vsR (Supra) with approval and stated as follows: “The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusion on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court, may, depending on the facts and the circumstances of the case, come to the same conclusions as those of the lower court. It may reverse those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.” 10

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19. The court of Appeal further stated that, an appellant court on a first appeal is entitled to expect that the evidence as a whole to be subject to a fresh and exhaustive examination, Podya -vs- Republic (1975) E.A 336 and to the appellate court’s own decision on the evidence. The appellate court must itself weigh the conflicting evidence and draw its own conclusions. In doing so it must make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter -vs- Sunday Post 1978 E.A 424. 20. (1) Whether the charge was proved beyond any reasonable doubts. The appellant was charged with stealing by servant contrary to Section 281 of the Penal Code (Cap 63 law of Kenya). The ingredients of the charge are: (i) That the accused person was an employee of the complainant. (ii) The accused stole property of the complainant with an intention to permanently deprive the complainant of it. (iii) That the property came into the possession of the accused person by virtue of his employment. 11

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21. The prosecution is supposed to prove these ingredients in order to secure a conviction. The term Stealing is defined under Section 268 of the Penal Code as follows: “Taking something capable of being stolen without claim of right, or fraudulently converting property to the use of someone other than the owner.” 22. The first consideration is whether the accused was a servant/employee of the complainant. The prosecution produced its exhibit -7, a letter from Virkalex Agencies dated 29/4/2019, showing that the appellant was employed by the complainant as shop attendant at its shop at Githongo. The letter is signed by Alex Musya Ayub and Virginia Kawira Mwiti who are the directors of the company. 23. The appellant did not deny the fact that she was an employee of the complainant although she stated that she was employed by Virginia not Alex Musya. The letter is dated 29/4/2019. It is clear that the appellant was an employee of the complainant at the time the offence was committed. There were two directors of the company and 12

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only one was named on the charge sheet. As a co-director Alex Musya or the company could be named on the charge sheet. Since Alex Musya is one of the directors, the charge sheet is not flawed. The learned magistrate treated it as a technicality and based on the evidence tendered it is a fact that did not cast any doubt on the prosecutor’s case and can be safely overlooked. 24. The second issue is whether appellant stole something capable of being stolen. The prosecution proved that he appellant stole the sum of Kshs. 270,770/=. According to PW1, PW2 & PW4, the appellant had failed to account for money for the sale of goods which she had received. She had also failed to bank money which she had received. The complainant decided to do audit after the appellant failed to attend a meeting of stock taking and could not be reached on phone. The audit was conducted by PW3 George Amolo a qualified accountant who holds a CPA (K) from KASNEB and a Bachelors of Commerce KCA University and had practiced for six years. He compiled the audit report which he produced as exhibit 5. The audit covered the amounts banked vis a vis the amounts received. 13

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25. PW4 testified that a shortfall of Kshs. 270,770/= which is the total loss that the complainant incurred. With the evidence of PW3 the prosecution discharged the burden to prove that the appellant stole something capable of being stolen, that cash Kshs. 270770/=. 26. Whether the money came into her possession by virtue of her employment. The prosecution proved that the appellant employee of the complainant. She would be supplied with goods for sale and receive airtel money which she was supposed to bank together with proceeds of sale. The appellant received these money by virtue of her employment. The learned magistrate held that the appellant stole the money which came to her possession by virtue of her employment. This is a finding of fact which was proved with overwhelming evidence. The prosecution discharged the burden to prove the charge as all the ingredients of the charge were disclosed. The law requires that the charge must contain a statement of the specific offence(s) with which the accused is charged and enough information to demonstrate the nature of the offence charged. Section 134 of the 14

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Criminal Procedure Code (Cap 75 Laws of Kenya) provides: “Every charge or information shall contain and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” 27. The charge sheet on record has disclosed the charge and the particulars as required under Section 137(a)(ii) of the Criminal Procedure Code, (Supra) by stating the correct Section of the law under which the appellant was charged and the particulars. 28. The prosecution adduced cogent evidence to support the charge. It was proved that the appellant was an employee of the complainant with the production of the letter of appointment. Pw1, 2 & 4 gave a well corroborated evidence that the appellant used to have credit and would fail to bank proceeds of sale alleging that she had given out gods on credit. She thereafter, failed to attend a meeting for stock taking and would not be reached on 15

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phone. An audit done by PW3 revealed that she had misappropriated some money from the employer. The evidence as sufficient and proved the allegation of theft. 29. The defence of the appellant was a mere denial and she confirmed that she started having problems with the employer and stock taking was done. The prosecution discharged the burden to prove that charge and the particulars beyond any reasonable doubts. 30. Whether the learned Magistrate erred in failing to find that the evidence of the prosecution had gaping loopholes and inconsistencies. The rule on loopholes and inconsistencies is that where they are minor they will be ignored while gave one may lead the court to reject the evidence as being in credible and unconvincing. In the case of Tnehangame Alfred vs- Uganda, Criminal Appeal No.139 of 2001 quoted with approval by the Court of Appeal in Onyango Ondang -vs- R (2014) (KECA) 523 (KLR) it was held that not every contradiction warrants rejection of evidence. In the case it was stated: “With regard to contradictions in prosecution’s case, the law as set out in numerous 16

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authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they lead to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.” 31. In this case the appellant submits that there was no direct evidence that the appellant stole. That suspicion cannot suffice. I find that the record shows that at first there was suspicion but the complainant carried out an audit which confirmed their fears. The conduct of the appellants points to guilty of the appellant as she closed the shop abruptly and would not present herself for stock taking. The Forensic Audit Report pins down the appellant as the perpetrator of the theft of the missing funds. The report states that the daily sales were not banked as required in the organization cash management policy leading to total cash lost within the period 1/10/2019 to 29/2/2020 amounting to Kshs. 270,770/=. The report at page five (5) states that the organization had entrusted 17

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sales and cash management to Doreen Wanja Sebastian ID No. 29668608. PW3 testified that he checked the amount banked by the appellant against the amounts of money which she had received from the sale of airtime and found a shortfall of Kshs. 245,425/= and also found that she had transferred Kshs. 25,000/= from Airtel Money to her Mpesa account. This gave he total amount of Kshs. 270,770/= which the appellant had stolen. 32. PW3 was an independent witness. He confirmed that there was a misappropriation. Figures don’t lie. The evidence was watertight and devoid of inconsistencies. I find no merit on this ground. The prosecution discharged the burden to prove that the appellant was responsible for the missing funds amounting to Kshs. 270,770/=. 33. Whether the Judgment was against the weight of evidence The appellant had based this ground on allegation of insufficient unreliable and incredible evidence. She also states that the evidence had discrepancies and inconsistences. I have dealt with the issues above. I have considered the evidence and evaluated it myself as required of me sitting as the first appellate court. I come to 18

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the conclusion that the charge against the appellant was well founded and was proved to the required standard beyond any reasonable doubts. The finding by the learned Magistrate was therefore sound. 34. Whether the sentence was harsh and excessive The appellant cited the Judiciary of Kenya Sentencing Policy Guidelines 4.1 where it stated that sentencing is expected to meet the following objectives: (a) Retribution – To punish the offender for his geminal conduct in a just manner. (b) Deterrence (c) Rehabilitation (d) Restorative Justice (e) Community Protection (f) Denunciation 35. The appellant also relied on S -vs- Malgas 2001(1) SACR 469 & CA Para 12 where it was held that: “A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived by it simply 19

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because it prefers it. To do so would be to wesurp the trial court…However, even in the absence of material misdirection, an appellate court may yet be justified in interfering imposed by the trial court.” 36. This is a persuasive decision which I find has well laid down the principles to be observed by an appellate court with regard to sentencing. It is trite law that sentencing is an exercise of discretion by the trial court and an appellate court will not normally interfere with the exercise unless it shown that the trial Judge acted on wrong principles or over looked some material factors. The court of Appeal in the case of Benard Kimani Gacheru -vs- Republic (2002) eKLR stated as follows: “It is now settled law, following several authorities by this court and the High Court, that sentences is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case on appeal, the appellate court will not easily interfere with sentences is the sentence manifestly unless, excessive in that the 20

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circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material or acted on a wrong principle. Even if the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, any one of the matters already stated exist.” 37. In Shadrack Kipkoech Kogo -vs-R Court of Appeal, Criminal Appeal No. 253 of 2003 Eldoret, the court stated: “Sentence is essentially an exercise of discretion by the trial court and for the court to interfere, it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence therefore an itself is so excessive error of principles must and be 21

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inferred (See also Sayeka -vs- R (1989 KLR 306).” 38. These are the principles and factors which this court has to consider when dealing with an appeal against the sentence. The appellant was charged with stealing by servant contrary to Section 281 of the Penal Code. Under the Section, upon conviction the offender is liable to imprisonment for seven years. What this means is that if the trial court decides to give a custodial sentence, it will pass any term of imprisonment that does not exceed seven years. 39. However, the trial court may exercise discretion ad pass any other form of sentence depending on the circumstances of the case. This include a fine as provided under Section 30 of the Penal Code, conditional discharge and suspended sentence. He court may also decide to pass a Community Service Order or place the person on Probation. The appellant was found guilty of the offence of stealing by servant. The trial court called for a probation officer’s report. In the meantime, the appellant agreed with the complainant on how she would refund the money. The 22

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learned trial magistrate placed the appellant on probation for three years. 40. I find that where the appellant would be sentenced to seven years, a none custodial sentence of three years is a walk in the park and cannot be termed to be excessive or harsh. The learned magistrate applied the principles of sentencing fairly and properly after taking into account all the circumstances of the case and guided by the social inquiry report filed by the probation officer and which had recommended a none custodial sentence. I find no reason to interfere with the sentence. This ground must fail. Conclusion 41. For the reasons stated above, I come to the conclusion that this Appeal is without merits and is dismissed. Dated, signed and delivered at Kitui this 14 th day of October, 2025. HON. LADY JUSTICE L. GITARI JUDGE 23

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