IN THE COURT OF APPEAL

AT MOMBASA

(Coram: Masime, Gicheru & Kwach JJA)

CRIMINAL APPEAL NO 18 OF 1988

BETWEEN

DAVID MBUA KAGIRI................. APPELLANT

AND

REPUBLIC.................................RESPONDENT

JUDGMENT

(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)

******************************

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that the appellant and his co-proprietor of Kwake Enterprises drew several cheques whereby virtually all that money was withdrawn when they had no right to it.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

J.R.O. MASIME

................................

JUDGE OF APPEAL

J.E. GICHERU

................................

JUDGE OF APPEAL

R.O. KWACH

................................

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR