Case Metadata |
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| Case Number: | Criminal Appeal 2 of 1993 |
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| Parties: | John Mwendo Nzungi v Republic |
| Date Delivered: | 13 Apr 1994 |
| Case Class: | Criminal |
| Court: | High Court at Nairobi (Milimani Law Courts) |
| Case Action: | Judgment |
| Judge(s): | Samwel Odhiambo Oguk |
| Citation: | John Mwendo Nzungi v Republic [1994] eKLR |
| Advocates: | Mr Mwoki for the Appellant Miss Kamau for the Respondent/State |
| Case History: | (From original conviction and sentence in Criminal Case No 996 of 1992 of the Senior Resident Magistrate’s Court at Nairobi: U P Kidula (Mrs)) |
| Court Division: | Criminal |
| County: | Nairobi |
| Advocates: | Mr Mwoki for the Appellant Miss Kamau for the Respondent/State |
| History Docket No: | Criminal Case 996 of 1992 |
| Case Summary: | Nzungi v Republic High Court, at Nairobi April 13, 1994 Oguk J Criminal Appeal No 2 of 1993 (From original conviction and sentence in Criminal Case No 996 of 1992 of the Senior Resident Magistrate’s Court at Nairobi: U P Kidula (Mrs)) Evidence – standard of proof – where evidence relied on is insufficient to support the offences charged – where a case has not been proved to the required standard – whether conviction should stand. The appellant, John Mwendo Nzungi was convicted after trial by learned Senior Resident Magistrate, Nairobi, on a charge comprising two counts – of stealing by servant contrary to section 281 of the Penal Code and forgery contrary to section 349 of the Penal Code. He was sentenced to pay a fine of Shs 10,000 or serve 6 months imprisonment in default, in count 1 and a fine of Shs 5,000 or in default to serve 3 months imprisonment in count 2. He therefore appealed. The charges rendered around the purchase of a motor vehicle Reg No KRP 780, a Peugeot 304 in the name of the appellant and not of the employer who had provided the finances. The employer is said to have provided funds for the purchase of the motor vehicle. The appellant bought and registered the same under his name. A disagreement later arose between him and his employers who wanted to take back the car and actually repossessed the car but the appellant resisted and took away the car. The appellant’s contention was that his employers acted as the financiers for the purchase of the car which for all intents and purposes, remained his property, and that his employers were entitled to no more than recovery of the balance of the money advanced. Held: 1. The evidence relied upon was insufficient to support the offences that were laid against the appellant. 2. Police ought to have left the parties to sort out this case in a civil suit. Appeal allowed. Cases No cases referred to. Statutes Penal Code (cap 63) sections 281, 349 Advocates Mr Mwoki for the Appellant Miss Kamau for the Respondent/State |
| History Magistrate: | U P Kidula |
| History Advocates: | Both Parties Represented |
| History County: | Nairobi |
| Case Outcome: | Appeal Allowed. |
| Disclaimer: | 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 |
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL NO. 2 OF 1993
JOHN MWENDO NZUNGI.......................................................APPELLANT
VERSUS
REPUBLIC..............................................................................RESPONDENT
(From original conviction and sentence in Criminal Case No 996 of 1992 of the Senior Resident Magistrate’s Court at Nairobi: U P Kidula (Mrs) )
JUDGMENT
The appellant, John Mwendo Nzungi was convicted after trial by the learned Senior Resident Magistrate, Nairobi, on a charge comprising two counts namely: stealing by servant contrary section 281 of the Penal Code (count 1); and forgery contrary to section 349 of the Penal Code (count 2). Upon this conviction, he was sentenced to pay a fine of Shs 10,000/- or in default to serve 6 months imprisonment in respect of count 1; and to a fine of Shs 5,000/- or in default to serve 3 months imprisonment in respect of count 2. His appeal to this Court is against conviction and sentence.
The facts leading to the charges that were preferred against the appellant are well set out in the judgment of the court below. The charges revolves around the purchase and subsequent registration of motor vehicle Reg No KRP 780, a Peugeot 304 in the name of the appellant and not in the name of his employer who had provided the finances for the purchase of the said vehicle. The evidence shows that the employers of the appellant found it necessary that he should have a vehicle as field sales representative to enable him to discharge his duties quickly and effectively than when he was using public transport. They then permitted him to look for a vehicle and he found motor vehicle Reg No KRP 780 from M/S Electrical Rewinders. He negotiated the price with them and reported back the position to his employers who confirmed the position with the owners of the vehicle. Funds were then made available to the appellant for the purchase of the said vehicle, and it was thereafter registered in his own name and insurance cover was taken out and paid for by his employers in his own name. Thereafter he started using the vehicle for his official duties and also as a private car for his own purposes. A disagreement later arose between him and his employers who now wanted to take back the car and actually repossessed the car but the appellant resisted and took away the car. His contention was that his employers only acted as the financiers for the purchase of the car which for all intent and purposes remained his own property and that his employers were entitled to no more than recovery of the balance of the money advanced.
Basically, the appellant was laying a claim of right over the said car which he was alleged to have stolen from his employers and fraudulently caused to be registered in his own name. The issues in dispute between the appellant and his employers, the complainants, appears to have been of a civil nature, which at best, could have been referred to a civil Court for determination. Both the learned state counsel and counsel for the appellant are of the view that this was a civil dispute I respectfully agree.
Upon my own consideration and evaluation of the recorded evidence, I am satisfied that the evidence relied upon was insufficient to support the offences that were laid against the appellant. I am satisfied that his guilt was not proved beyond all reasonable doubts. This was a case which, I believe the police ought to have left to the parties themselves to sort out in a civil suit. Intent to steal was not proved.
For reasons given, I allow this appeal. I quash the conviction of the appellant in respect of count 1 and 2 and set aside the sentences that were imposed. I order that he shall be set free and be released forthwith unless otherwise lawfully held. If any fines were paid, the same shall be refunded. It is so ordered.
Dated and Delivered at Nairobi this 13th day of April 1994.
S.O.OGUK
JUDGE
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