Republic v Mbogo (Criminal Case 710 of 2011) [2014] KEMC 8 (KLR)

4. Both PW1, Erastus Kithika Nyorani, and PW3, Eunice Njeri Macharia, then contacted the defendant herein, who again promised that she was to surrender the money together with the receipt books, the next day, 23.03.2011. 5. On 23.03.2011, the defendant turned up and found the 2 witnesses, while with PW2, Margaret Gathoni Njuki, a fellow revenue collector (market attendant). 6. The evidence of the 3 witnesses was unanimous that the defendant informed them that she had again left the money at home. That the keys to their home was with their mother who had left to Nakuru and who had promised to send them through a courier service based at Nyahururu. That they proceeded to Nyahururu together with the defendant to collect the parcel. That the defendant then disappeared while at Nyahururu and did not come back to her place of work. They were however able to find some of the receipt books that had been issued to her which she had left in the vehicle that they were in. They did their calculations from the books and arrived at the non-surrendered amount which they deemed as having been stolen by the defendant herein. 7. According to PW3, Eunice Njeri Macharia, the two books led them to the figure of Kshs. 10,000/ as the non-surrendered amount. They took the books to Marmanet Police Station where they made the report. 8. The defendant herein was later on 28.03.2011 arrested by PW4, NO. 69679 PC Samson Okello. He informed the court that the witnesses herein led him to the residence of the defendant where he traced her and arrested her. He then charged her with the present ofience. 9. No record or exhibit was produced by the prosecution who voluntarily closed its case on 09.09.2014 after PW4's testimony. 10. There were impressive submissions from the learned counsel for the defendant, Mr. Nderitu, on no case to answer, the evidence herein and the 2nd count herein. I do hereby associate myself with most of the points raised herein. 11. It is trite law that the burden of proof is always on the prosecution to prove its case beyond reasonable doubt. The main issue at this stage is whether the prosecution, in discharging this burden, has established a prima facie case that requires me to call upon the defendant herein to make her defence as required by section 211 of the Criminal Procedure Code. 12. The case of Republic vrsKennedy Otieno & 6 Others(1998)eKLR1, gave a recent and simpler explanation of what constitutes a prima facie case. The High Court held that it is a case where there is suficient evidence upon which the court would convict the accused if no explanation is given.2 13. I have gone through the evidence tendered by the 4 prosecution witnesses herein. The defendant is alleged to have stolen Kshs. 10,100/=. That the money came into her possession by virtue of her employment. The witnesses were clear in their evidence that they were not sure of the amount that was collected by the defendant. That they relied on their records of the receipt books that were issued to the defendant from which the surrender was to be made by her; and some two receipt books that the defendant left them with when she disappeared. Some of these books were brought to court during PW1's testimony and were in fact identified by him. They were however not produced as exhibits herein. PW1, also confirmed in his evidence that there were some records where the defendant signed for the receipt books which she did not surrender. They were also not brought to court as exhibits. 1 Cited by the learned defence counsel in his submissions 2 See also Ramanlal T. Bhatt Vrs Republic (1957) E.A. 332 https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/8/eng@2014-12-02 2

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The inference in such instances where evidence that is available is not produced by the party who is expected to produce it is that the evidence is likely to be adverse to the interest of that party. 14. Applying the presumption herein; I do find that no receipt book was issued to the defendant herein from which some collections were to be made by her. I also do find that the defendant did not collect the sum of Kshs. 10,100/= as alleged in the charge herein; or Kshs. 10,000/= as stated by PW3. Otherwise the receipt books and the records of how they were issued to her would have been produced as exhibits herein for the court to draw its own conclusions directly from them. There was therefore no Kshs. 10.100/= to be stolen by the defendant herein. As correctly submitted by the learned counsel for the defendant, the issue of money having been received by the defendant on behalf of Laikipia County Council, in the absence of the receipt books and records, therefore appears speculative and lacks any substance and basis whatsoever. 15. Criminal courts do not rely on such speculations and suspicions to convict. As such no conviction can ensue if the defendant is called upon to make her defence against this kind of evidence. The omission by the prosecution to produce the records and receipt books that the witnesses herein allege to have relied on to conclude that there was money collected and non-surrendered, hence stolen by the defendant herein had left a huge gap that should not be cured by the defendant. What if she exercises one of her rights under section 211 of the Criminal Procedure Code and opts to remain silent. 16. The High Court in Republic v Kennedy Otieno & 6 Others, supra, addressed the point as follows:It must be remembered that at the close of prosecution case, an accused has a right to keep silent in his defence. An accused person is brought to court by the prosecution. It is upon the prosecution to prove a case against an accused person beyond reasonable doubt. An accused person is under no obligation to prove his innocence. The burden of proving his guilt lies on the prosecution. 17. Guided by the above decision, I do hereby find that no prima facie case has been disclosed to warrant the defendant herein to be called upon to make her defence in respect to count 1. I do therefore dismiss the same under section 210 of the Criminal Procedure Code. 18. In the second count, the defendant was charged with the ofience of Failing to Account for Receipt Books c/s 328(b)(iii) of the Penal Code. Just as I have already found herein, there was no evidence of the records to prove that the defendant was indeed issued with any receipt book. I have also checked on the provisions of Section 328(b)(iii) of the Penal Code which provides as follows: Any person who - (b) being a director, oficer or member of a corporation or company, does any of the following acts with intent defraud, that is to say - (iii) omits, or is privy to omitting, any material particular from any such book, document or account, is guilty of a felony ... 19. Again as correctly submitted by the learned counsel forth defendant, the provisions clearly contemplate a situation whereby an ofience is committed by a director, oficer or member of a corporation or company. Laikipia County Council was not a company or a corporation. It was a local government authority established under the former cap 265. 20. I do therefore also dismiss the charge in the second count under section 210 of the Criminal Procedure Code. 21. The upshot is that both counts have been dismissed under section 210 CPC. I consequently do hereby acquit the defendant of the ofiences of Stealing by Servant c/s 281 and Failing to Account for Receipt Books c/s 328 (b)(iii), both of the Penal Code, as charged in the 2 counts herein. https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/8/eng@2014-12-02 3

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DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN COURT THIS02nd DAY OF December, 2014 ALOYCE-PETER-NDEGE AG. PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Kangethe Court prosecutor: n/a Defence Counsel: Sigilai h/b Nderitu Defendant: Present https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/8/eng@2014-12-02 4

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