|Criminal Appeal 68 of 1995
|Mutinda Mutisya Kyale v Republic
|22 Nov 1995
|Court of Appeal at Kisumu
|Akilano Molade Akiwumi, Abdulrasul Ahmed Lakha, Richard Otieno Kwach
|Mutinda Mutisya Kyale v Republic  eKLR
|(Appeal from a decision of the High Court of Kenya at Kakamega (Mr. Justice B. K.Tanui) dated 18th July, 1995 in H. C. CR. APPEAL NO. 156 OF 1995)
|Individual v Government
|History Docket No:
|H. C. CR. APPEAL NO. 156 OF 1995
|Barabara Kiprugut Tanui
Kyale v The Republic
Court of Appeal, at Kisumu
November 22, 1995
Kwach, Akiwumi & Lakha, JJ A
Criminal Appeal No 68 of 1995
Criminal practice and procedure- charge- amendment of- procedure to be followed by court on amendment of charge- Section 214 –Criminal Procedure Code.
Criminal practice and procedure-charge-amendment of-appellant indicating to court that trial may proceed after amendment of the charge without recalling witnesses-whether appellant can subsequently challenge the trial as contrary to Criminal Procedure Code.
The appellant who was an Inspector of Police and was convicted on the alternative charge of stealing by a person employed in the public service contrary to Section 280 of the Penal Code and ordered to serve two years suspended sentence. His appeal to the superior was dismissed as lacking in merit. On second appeal, his counsel on two principal grounds: first, he submitted that Section 214 (1) (ii) of the Criminal Procedure Code, Cap. 75 had not been complied with and, secondly, that the charge was defective and contravened Section 280 of the Penal Code, Cap. 63 in failing to state whose property it was that the appellant stole.
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE COURT OF APPEAL
(CORAM:KWACH, AKIWUMI & LAKHA, JJ A)
CRIMINAL APPEAL NO 68 OF 1995
MUTINDA MUTISYA KYALE ................………APPELLANT
(Appeal from a decision of the High Court of Kenya at Kakamega (Mr. Justice B. K. Tanui) dated 18th July, 1995)
H.C.CR. APPEAL NO. 156 OF 1995)
JUDGMENT OF THE COURT
The appellant was an Inspector of Police and was convicted by the Principal Magistrate’s Court at Kakamega on June 8, 1995 on the alternative charge of stealing by a person employed in the public service contrary to Section 280 of the Penal Code, Cap 63. He was to serve two years suspended sentence. His appeal to the superior court against conviction only was heard on July 4, 1995 and by its judgment delivered on July 18,1995 the learned judge dismissed the appeal. He now appeals to this Court and his appeal was heard on November 20, 1995. Such is the speed with which our courts have dealt with this case.
This being a second appeal it lies only on points of law and Mr. Menezes for the appellant argued the appeal on two principal grounds: first, he submitted that Section 214 (1) (ii) of the Criminal Procedure Code, Cap. 75 had not been complied with and, secondly, that the charge was defective and contravened Section 280 of the Penal Code, Cap. 63 in failing to state whose property it was that the appellant stole.
We now turn to consider these grounds. As to the first, Section 214 (1) of the Criminal Procedure Code provides as follows: -
“214. (1) Where, at any stage of a trial before the close of the case for the prosecution it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case:
Provided that –
In the instant case after the court had allowed an amendment of the charge the appellant’s then advocate is recorded to have indicated that the trial may proceed without recalling the witnesses and the appellant was called upon to plead to the altered charge. We do not, therefore, agree that there was non compliance with Section 214 (1) (i) (ii) of the Criminal Procedure Code as was urged by Mr. Menzes. In any event, the appellant was not convicted on the altered charge. This ground of appeal fails.
Secondly, Section 280 of the Penal Code, Cap. 63 provides that –
280. If the offender is a person employed in the public service and the thing stolen is the property of the Government, or came into the possession of the offender by virtue of his employment, he is liable to imprisonment for seven years.”
It will at once be noted that there are two limbs to this section. The appellant here was charged with the second or later limb of the section, namely, that the thing stolen came into the possession of the offender by virtue of his employment. We do not see that the charge is in any way defective of that it contravenes Section 280 of the Penal Code.
Accordingly and, for reasons we above stated, the appeal against conviction is dismissed. We cannot, however, refrain from making two observations. First, we are simply outraged by the lenient sentence imposed by the Principal Magistrate at Kakamega. The offence with which the appellant was convicted and the large sum of money involved make the offence a serious and grave one and to impose a two year suspended sentence is, in our judgment, a farce and raises considerable suspicion.
It I unfortunate that no notice of such an intention on the part of the State had been given to the appellant. If the State, however, were serious in its intentions we have no doubt that it could have ensured that appropriate steps were taken to serve such a notice upon the appellant. In the result, the appellant received no sentence proportionate to the gravity of the offence with which he was convicted.
Dated and delivered at Kisumu this 22nd day of November, 1995.
R. O. KWACH
JUDGE OF APPEAL
A. M. AKIWUMI
JUDGE OF APPEAL
A. A. LAKHA
JUDGE OF APPEAL
I certify that this is a true copy of the original.