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|Case Number:||Criminal Appeal 18 of 1988|
|Parties:||David Mbua Kagiri v Republic|
|Date Delivered:||01 Jul 1989|
|Court:||Court of Appeal at Malindi|
|Judge(s):||Johnson Evan Gicheru, Richard Otieno Kwach, Joseph Raymond Otieno Masime|
|Citation:||Kagiri v Republic eKLR|
|Case History:||(An appeal from a Judgment of the High Court at Mombasa, Bosire J) dated 30th day of October 1987, in High Court Criminal Appeal No 59 of 1987)|
|History Docket No:||Criminal Appeal No 59 of 1987|
|History Judges:||Samuel Elikana Ondari Bosire|
Kagiri v Republic
Court of Appeal, at Mombasa
Masime, Gicheru & Kwach JJA
Criminal Appeal No 18 of 1988
Criminal Practice and Procedure – charge – duplicity of charge – charge of obtaining money by false pretences relating to various sums of money obtained by different persons over a period of time - whether charge bad for duplicity.
Criminal Practice and Procedure – restitution – restitution not to be ordered where property in issue cannot be easily traced or restored - Criminal Procedure Code (cap 75) section 178(2)(ii).
The appellant was convicted by the subordinate court of the offence of obtaining money by false pretences contrary to section 313 of the Penal Code (cap 63).
The appellant and another were alleged to have opened an account with Bank of Credit and Commerce International where a forged cheque of Kshs 422,980 was paid and against which they drew several cheques drawing virtually all the money in the account.
However, an appeal to the High Court the conviction was quashed on the basis that no individual at the bank was alleged to have been deceived and the court substituted therefor a conviction for theft contrary to section 275 of the Penal Code. The conviction was however based on the omnibus figure of Kshs 421,000 being the total of several cheques drawn by the appellant and his accomplice on the account.
He appealed against the conviction contending that the conviction was based on a duplex charge. The court further ordered for restitution of the stolen money. It however transpired that several transactions have occurred and the money changed several hands.
1. The charge of obtaining false pretences related to a sum of money representing the total of various monies withdrawn from the bank by different persons on six different occassions. The various sums of cash should have been charged in seperate counts. The omnibus charge was duplex, fatally defective and it could not be sustained.
2. The conviction for theft substituted by the superior based on Kshs 421,000 was equally be duplex, defective and not supportable.
3. It had been established that the appellant was involved in the fraud. This court would quash his conviction for theft of Kshs 421,000 and substitute therefor a conviction of theft contrary to section 275 of the Penal Code of the sum of Kshs 180,000 on 16th September, 1983.
4. Under the Criminal Procedure Code (cap 75) section 178(2)(ii), an order of restitution should be made where the very property stolen or the proceeds of its disposition are traceable and can be easily restored to the complainant. This was not a proper case for ordering restitution.
5. In the circumstances of this appeal various transactions had occurred in relation to the stolen negotiable instrument and issues of liability for the complainant’s loss may require to be sorted out between various parties in a civil suit.
Appeal allowed in part.
Makupe v Republic  KLR 523
1. Penal Code (cap 62) sections 275, 313
2. Criminal Procedure Code (cap 75) sections 177, 178
|Case Outcome:||Appeal allowed in part.|
|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|
IN THE COURT OF APPEAL
(Coram: Masime, Gicheru & Kwach JJA)
CRIMINAL APPEAL NO 18 OF 1988
DAVID MBUA KAGIRI................. APPELLANT
(An appeal from a Judgment of the High Court at Mombasa, Bosire J) dated 30th day of October 1987,
High Court Criminal Appeal No 59 of 1987)
July 1989, the following Judgment of the Court was delivered.
In their judgments both the trial court and the High Court on appeal concurred in finding that the appellant, David Mbua Kagiri, using an alias as David Mwai Waweru with another person not before the court opened a bank account with the Bank of Credit and Commerce International Ambalal House Branch, Mombasa in the firm name of Kwake Enterprises.
The courts further found that a forged cheque for Shsh 422,980 was paid into that account and that the appellant and his co-proprietor of Kwake Enterprises drew several cheques whereby virtually all that money was withdrawn when they had no right to it. On the basis of these findings the trial court convicted the appellant of the offence of obtaining money by false pretences contrary to section 313 of the Penal Code. However on appeal the High Court quashed that conviction arguing that as no specific individual at the bank was alleged to have been deceived the conviction could not stand and substituted therefor a conviction for theft contrary to section 275 of the Penal Code. The trial court sentenced the appellant to serve eighteen months imprisonment and the High Court did not disturb that sentence.
In the present appeal the appellant put forward four grounds of attack on the findings of the two lower courts. Of these the only matter of law is the issue of the appellant’s identification as the David Mwai Waweru who with another opened the Bank account in the name of Kwake Enterprises at the Bank of Credit and Commerce International. The other grounds relate to matters of the evidence and findings of fact which, since this is a second appeal, this court need not be concerned with. Both the trial and the first appellate court set out in detail the evidence which linked the appellant with his alias David Mwai Waweru and the transactions of opening the Kwake Enterprises Bank account and withdrawals of Shs 421,000, the proceeds of the stolen and forged cheque which was unlawfully used to obtain money from the complainant, Associated Motor Vehicle Assemblers Limited. We have ourselves scrutinized this evidence in view of the appeal and are satisfied that the concurrent findings and reasoning of the two lower courts cannot but be correct. It follows that we find no merit in the appellant’s persistence in challenging the finding that he was involved in the fraud.
It remains, however, to make one clarification. The appellant was acquitted of the counts charging him with the theft of the cheque leaves, the forgery and the uttering of the forged cheque; and, no finding was made on count 5 charging him with theft of the sum withdrawn from the bank using the cheque for Shs 32,800 which was paid to the second accused in the trial court. He was only convicted on count 6 which had charged obtaining Shs 421,000. When it is remembered that this sum was the total of sums withdrawn from the bank by different persons on six different occasions, that omnibus charge at once becomes duplex and fatally defective so that it could not be sustained. In Horace Kiti Makupe v Republic Mombasa Criminal Appeal No 98 of 1983 this court said:
“Obtaining by false pretences contrary to section 313 of the Penal Code includes an obtaining with intent to defraud by a false pretence and a model of such a charge and its particulars is provided in the second schedule to the Criminal Procedure Code.
It is not one of the offences for which it is sufficient to specify the gross amount of property in respect of which the offence is alleged to have been committed or the dates between which the offence is alleged to have been committed without specifying particular times or exact dates: Section 137 (j) Criminal Procedure Code ...
The various sums of cash ... etc should have been charged in separate counts. The appellant might have wished to plead guilty to one or more and not to the others but as it was he had to plead guilty or not guilty to everything lumped together in one count.”
By the same token the conviction substituted by the superior court based on the said sum of Shs 421,000 would be equally duplex, defective and not supportable. We therefore quash the conviction of the appellant by the High Court of the offence of theft of Shs 421,000. We substitute therefor a conviction of theft contrary to section 275 of the Penal Code of the sum of Shs 180,000 on 16th September, 1983. We do not wish to disturb the sentence which in any case has already been served.
Finally, the order of restitution made by the trial court was confirmed by the High Court. Provisions for orders of restitution are made in sections 177 and 178 of the Criminal Procedure Code where:
(a) any property is taken from an accused upon his apprehension; (section 177) or
(b) a person is convicted of any of the offences relating to property in Chapters XXVI to XXXI of the Penal Code (section 178).
As regards the latter situation two provisions are made the second of which is relevant in the present case:
“Section 178 (2) (ii) – nothing in this section shall apply to the case of valuable security which has been in good faith paid or discharged by a person liable to the payment thereof, or, being a negotiable instrument, has been taken or received in good faith by transfer or delivery by a person for a just and valuable consideration without notice or without reasonable case to suspect that it has been stolen.”
These provisions suggest that an order of restitution should be made where the very property stolen or the proceeds of its disposition are traceable and can be easily restored to the complainant. In the circumstances of this appeal various transactions have occurred in relation to the stolen negotiable instrument and issues of liability for the complainant’s loss may require to be sorted out between various parties in a civil suit. In the circumstances, we do not consider that this is a proper case in which restitution should have been ordered. We therefore set aside the order made by the trial court and confirmed by the superior court for restitution of the sum of Shs 422,980. To this limited extent only the appellant succeeds otherwise we order his appeal to be dismissed.
Dated and delivered at Mombasa on July 1989
JUDGE OF APPEAL
JUDGE OF APPEAL
JUDGE OF APPEAL
I certify that this is a true copy of the original.