Midika v Republic [1985] KECA 13 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that pocketing harambee donations meant for a good cause is stealing by an agent, a serious crime.
What this practically means
#Executive summary
#Key legal issues
#Scope of a second appeal
The appeal was confined to matters of law; the court would not disturb the concurrent findings of fact of the magistrate and the High Court.
Under section 361(1) and (a) of the Criminal Procedure Code, a second appeal lies only on matters of law. The magistrate had the advantage of seeing and hearing the witnesses, and the High Court judges meticulously weighed the recorded evidence. The Court of Appeal found their assessment of credibility correct and declined to disturb the concurrent findings that the appellant could not account for the Kshs 210,000.
Entrustment and agency
The Kshs 210,000 was entrusted to the appellant as agent of the union's Miwani branch to deliver to the guest of honour at the harambee for its purpose.
The workers' contributions were channelled through the branch and mills' management to the union, then handed to the appellant by the trustee and treasurer expressly for presentation at the Nyando Constituency harambee for secondary schools. That made him an agent of the contributors, not a recipient of a personal gift. The defence of gift was rejected as against all the believable evidence.
Fraudulent conversion constituting stealing by an agent
The appellant fraudulently converted the money; paying an equivalent sum into court later did not cure the conversion.
When the harambee was banned the appellant neither followed the President's directive to deposit collections, nor returned the money to the union, nor sought directions from the workers. He claimed to have spent it on other harambees, an explanation rejected as false. Payment of the equivalent into court was not restitution of the identical money entrusted to him. This satisfied section 268 and section 283(b) of the Penal Code.
Legal principles established
#- On a second appeal the Court of Appeal is confined to matters of law and will not disturb concurrent findings of fact of the two lower courts unless plainly wrong.
- Money collected by a politician from contributors for a harambee or good cause is held on trust for that purpose; converting it is the crime of stealing by an agent, and a politician may not pocket it even if the event does not take place.
Court orders
#- 1.The appeal is dismissed
- 2.The conviction for stealing by an agent and the sentence of four years imprisonment imposed by the senior resident magistrate, Kisumu, and upheld by the High Court, stand
- On appeal from
- High Court at Nairobi
- Jurisdiction invoked
- Section 361(1) and 361(a) of the Criminal Procedure Code (cap 75) - second appeal confined to matters of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Midika v Republic [1985] KECA 13 (KLR)", Case Analysis (1985). Criminal Appeal No 96 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/13/eng@1985-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.