John G. Nyakundi V Republic  EKLR
|Criminal Appeal 324 of 1993||29 Jul 1994|
Erastus Mwaniki Githinji
High Court at Kisumu
John G. Nyakundi v Republic
John G. Nyakundi v Republic  eKLR
Nyakundi v Republic
High Court, at Kisumu July 29, 1994
Criminal Appeal No 324 of 1993
(From original conviction and sentence in Criminal Case No 176 of 1991 of the Chief Magistrate’s Court at Kisumu C O Ong’udi, Esq C M:)
Evidence – standard of proof – where all evidence points to the guilt of the accused – where prosecution proves the case beyond any reasonable doubt – whether the conviction of the accused should be altered.
Criminal Practice and Procedure – sentencing – where an accused is a young person and committed crime with others not charged – whether this should be considered when sentencing.
The appellant was convicted of four offences of stealing by a person employed in the public service contrary to section 280 of the Penal Code. He was also convicted of the offence of willfully and unlawfully damaging a padlock contrary to section 339 (1) of the Penal Code. He was sentenced to a total of 4 years imprisonment and he lodged an appeal against conviction and sentence.
The appellant was a store clerk at Migori Depot of Nation Cereals and Produce Board when on 25.6.1991 stock taking was done and everything was found in order. On 6.9.1991 John Oketch (PW2) the Area Manager did some checking and found 530 bags missing. Later an auditor did stock taking and confirmed also that the same 530 bags of mixed wimbi was missing. There was substantial evidence that appellant, as store clerk was in charge. There was evidence the store was fenced, gate manned, and watertight recording system.
The appellant’s case seem to suggest the audit was not correct as there were purchases and sales that were not stopped before the audit.
1. There was evidence confirmed by the records that the appellant was on duty at the store throughout the period in question dates, and further there was no evidence that anybody else could have removed the produce from the store.
2. The appellant was a young man and it seems he committed the offence with other people, a fact which should have been given weight in assessing the appropriate sentence.
Appeal allowed against conviction & sentence in count 6.
Appeal dismissed against conviction in count 1, 2, 4, 5
Appeal dismissed against the sentence in count 1, 2, 4, 5
No cases referred to.
Penal Code (cap 63) sections 280, 339(1)