Republic v Wanjiku (Criminal Case 1555 of 2016) [2016] KEMC 4 (KLR)

The Charge and Procedure 6. The defendant has been charged with the ofience of Stealing by Servant contrary to section 281 of the Penal Code. He has denied that on 25.06.2016 at about 7.30 am in Bridge area of Oljoro-orok location within Nyandarua County, being servant of Joesph Kihagi Muchemi, he stole cash money Kshs. 11,000/= and eight sheep valued at Kshs. 41,000/= all totalling Kshs. 52,000/= the property of Joseph Kihagi Muchemi which came into his possession by virtue of his employment. 7. The defendant initially pleaded guilty to the charge, but on 04.07.2016, changed his plea while mitigating when he denied that he did not steal the sheep. He has persisted in the denial throughout the trial herein including when he was cross-examining the prosecution witnesses and in his defence. 8. Hearing of the prosecution's case commenced on 17.08.2016 and closed on 31.08.2016. On 13.09.2016, I called upon the defendant herein to make his defence, which he promptly did and closed his case. He did not make any submissions after the close of hearing and this matter has therefore been pending for this judgment whose delivery has been slated for 08.11.2016. All the adjournments and the reasons therefor have well been captured in the record of proceedings herein and do not therefore require further explanation herein. 9. The defendant herein could not raise the bond terms fixed herein and has therefore been in remand custody throughout the period of the trial herein. He was unrepresented. Substantive Facts of The Case 10. The facts of the case are basically as per the introduction hereinabove. The defendant in his statement stated that he received the money from the complainant but alleges that he mistakenly thought that the same was part of his salary which he insists was due at the time. That he decided to go to Nakuru to attend to some of his businesses after being given his 'salary'. That because he had wanted to quit service due to poor terms and he could not therefore inform the complainants, his employers, because they were not in good terms at the time. That while on his way to Nakuru, his phone cells dried out which made it to go ofi. That he could not therefore be reached on phone as claimed by the complainants. That upon switching on his phone, he found so many missed calls. His mother, who was a neighbour to the complainants, then called him and informed him that it was being alleged that he had disappeared with the money and the sheep. That on 27.06.2016, he decided to travel back to Oljoro-orok after clearing his businesses at Nakuru. He went to the police station where the complainants confirmed that part of the money was his salary. That the complainant nevertheless insisted that he informs them where the sheep were before they could forgive him. He denied that he stole the sheep. He insists that the sheep were lost and not stolen as alleged. Issues, Burden and Standard of Proof 11. There is no dispute that the defendant herein was an employee, hence a servant, of the complainants herein. He was in charge of the sheep that were reported lost and, some of them, later recovered. He was on the material day given the money herein. He however immediately disappeared with the money at the same time when the sheep were found missing. Whereas it is clear that he disappeared with the money without informing the complainants, he denies that he stole the sheep. He however insists that the money was part of his salary. The issue herein is therefore whether he stole the sheep together with the money as charged? https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/4/eng@2016-11-08 2

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12. The burden of proving the same lies with the prosecution as I do not see any fact whose burden of proof shifts to the defendant herein. The standard of proof on the part of the prosecution is beyond reasonable doubt. Determination 13. The complainants confirmed that the sheep that are alleged to have been stolen by the defendant herein were later recovered while abandoned at a farm where they were grazing. Those who recovered the sheep were however not called as witnesses. In fact, the investigating oficer confirmed that he was not even aware of their recovery. He did not therefore factor that in his investigations herein. The defendant insists that the sheep were not stolen, but were lost. The complainants were also not sure whether the sheep were stolen or lost. Given the high standard of proof herein, I do hereby find that it cannot be held to a standard of beyond reasonable doubt that the defendant herein, by merely disappearing with the money herein at the same time when the sheep were found missing, did actually steal the sheep as alleged herein. The complainants confirmed that the defendant had noted some signs that the sheep were not safe a few days before their loss and further investigations ought to have been done on the circumstances under which some of the stolen sheep were later found while grazing at the farm where they were found. These sheep could have gone missing of lost under other circumstances and not necessarily by the defendant herein. 14. The sudden disappearance of the defendant herein would have however been more because of the money herein, rather that the theft of the sheep. He had no reason to disappear with the money that the complainants confirmed that was given to him to take to the milk transporter and not for his own consumption or salary as alleged by him. The month had not ended by then and he could not have assumed that the amount was part of his salary. I find that he appropriated the money which was not meant for him. He therefore acted fraudulently as defined in section 268(2)(e) of the Penal Code. The sections define fraudulent intent, an essential element of the ofience of theft, as follows: 15. (2) A person who takes anything capable of being stolen or who converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say - ... (e) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner; ... I accordingly find the defendant herein not guilty of the ofience of theft of the sheep, but guilty of the ofience of theft of the Kshs. 11,000/= money. He was however charged with stealing both. The prosecution was therefore supposed to prove the charge as framed, that is, for the defendant to be found guilty of the charge herein, the prosecution was supposed to prove that the defendant herein stole the sheep and the money. This charge therefore collapses as the prosecution has failed to prove all its particulars. The provisions of sections 179(1) as read with 191 of the Criminal Procedure Code, however, allows me to convict for the minor ofience of the theft of the money herein even though the defendant was charged with the serious ofience of theft by servant herein. Section 179(1) of the code as follows: When a person is charged with an ofience consisting of several particulars, a combination of some only of which constitutes a complete minor ofience, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor ofience although he was not charged with it. https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/4/eng@2016-11-08 3

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16. I accordingly find that the theft of Kshs. 11,000/= component of the charge has been proved and, applying the above provisions, I do hereby convict the defendant herein of the minor ofience of Theft contrary to section 275 of the Penal Code. Conclusion 17. Pursuant to the provisions of sections 215, 179(1) and 191 of the Criminal Procedure Code, I do hereby convict the defendant herein of the minor ofience of theft contrary to section 275 of the Penal Code. I shall hereinafter receive the evidence and material relevant to sentencing as provided for in section 216 of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN COURT THIS 08TH DAY OF NOVEMBER, 2016 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Tiktik Prosecution: Chelangat Defendant: Present Victim: n/a https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/4/eng@2016-11-08 4

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