Republic v Oyugi (Criminal Case 452 of 2013) [2013] KEMC 108 (KLR) (19 November 2013) (Judgment)
Neutral citation:
[2013] KEMC 108 (KLR)
Republic of Kenya
Criminal Case 452 of 2013
PA Ndege, Ag. PM
November 19, 2013
Between
Republic
Prosecutor
and
Duke Nyakundi Oyugi
Defendant
Judgment
1.The Defendant herein, Duke Nyakundi Oyugi, was on 19/08/2013 charged with the offence of Stealing by Servant c/s 281 of the Penal Code. He denied that on 08.08.2013 at Isebania Township in Kuria West District within Migori County being a servant to Helen Kerubo John, he stole from the said Helen Kerubo John cash Kshs. 7,320/= which came into his position by virtue of his employment.
2.It is common ground herein that the Defendant herein at all material times herein was an employee, and hence a servant, of the complainant herein, PW2, Helen Kerubo John.
3.According to the evidence for the prosecution, the defendant was employed as a counterman at the complainant's bar. The evidence adduced by the two prosecution witnesses, PW1, Peter Onyancha, a supervisor at the bar, and PW2, Helen Kerubo John, the complainant herein, is that the defendant herein was in charge of the daily sales while at the counter.
4.PW2, Helen Kerubo John, stated that on the material day, she had planned to redeploy the defendant herein elsewhere in the bar, because she sensed that he was not being honest and could not therefore trust him with manning the counter and the sales. That she had also detected some deficit in the sales that were being declared and/or surrendered by the defendant herein.
5.Both PW1, Peter Onyancha and PW2, Helen Kerubo John, confirm that the defendant and the complainant, PW2, Helen Kerubo John failed to agree on the figures when doing the accounting. That the complainant, PW1, Helen Kerubo John, then instructed the defendant to carry out his own independent audit before he verifies with hers. That the defendant was accordingly left to proceed with his audit as the complainant waits at the veranda to the bar.
6.They thereafter realised that the defendant was absent having possibly left through the rear entrance.
7.The complainant, PW2, Helen Kerubo John, and PW1, Peter Onyancha, went and conducted their own stock taking on a piece of paper and audit which revealed, according to them, a deficit of Kshs. 7,320/= as in PEXH. No. 1.
8.Further evidence for the complainant, PW2, Helen Kerubo John, is that the defendant could not be reached on phone for several days thereafter until when she later reported the matter to Isebania Police Station. He was later arrested and charged.
9.The defendant when called upon to make his defence denied in DW1, that he did not steal as alleged herein. He stated that he cleared the audit on the material day and decided to go home for his breakfast. That while at home, he decided to quit the employment all together because he had disagreed with the complainant herein, PW2, Helen Kerubo John, over his efficiency.
10.There were some brief but concise submissions from the defendant herein after the close of hearing.
11.He mainly submitted on the books of accounts or the business records that he was alleged to have either left with, as per PW2, or left at the bar, as stated by PW1. That the prosecution's evidence on the same is therefore contradictory and hence unreliable. He also wondered why other witnesses indicated in the charge sheet including one Gideon and the police officers were not called as witnesses.
12.The prosecution were on 13/11/2013, ordered to close their case for having failed to present the other witnesses in time. No witness was bonded by them since 24/09/2013 when PW2 testified herein.
13.I however do not see any prejudice to the prosecution's evidence; or any adverse inference or effect caused by the failure to call any other witness herein including the police officer.
14.The relevant witness herein is the complainant. She at one point confirmed that the deficit herein were accrued over a period of time throughout the defendant's employ. This case therefore involves figures.
15.It was confirmed that the figures were entered in some books of accounting or simply business books which were being used in the audit. This court is however not sure where the books or records are, given that they were not produced in court. The prosecution's evidence of whether the defendant went away with them or not is also contradictory and hence unreliable.
16.If according to PW1, the defendant left the books there, then the same were to be brought to confirm the figures. PW1 confirmed that the books are the Receipt and counter books. The same were not brought to court as evidence of the deficit or short which the defendant is alleged to have disappeared with. There was no need to bring PEXH. No. 1, a sheet of paper that was scribbled on the day after the defendant had quit to improve the deficit or the unaccounted for sum, when there is evidence that there were other reliable records.
17.If according to PW2, the defendant disappeared with the records, then the investigations could have involved a search on his residence or any other place where he stays as I do believe that such a theft cannot be proved without records.
18.PW1 confirmed them to be the counter and receipt books. PEXH. No. 1 cannot prove when the deficit were incurred and by whom.
19.I find the evidence herein not to have proved the theft against the defendant herein to the required standard of beyond reasonable doubt and I consequently do hereby find him not guilty.
20.I do hereby acquit him u/s 215 Criminal Procedure Code of the offence of Stealing by Servant c/s 281 of the Penal Code.
DATED, SIGNED AND DELIVERED AT KEHANCHA IN OPEN COURT THIS19TH DAY OF NOVEMBER, 2013ALOYCE-PETER-NDEGEAG. PRINCIPAL MAGISTRATEIn the presence of;Court interpreter: MagigeCourt prosecutor: CIP MachariaDefendant: Present