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Court of AppealDismissedCriminal Appeal No 96 of 1983· [1985] KECA 13 (KLR)

Midika v Republic [1985] KECA 13 (KLR)

Court of Appeal
18 January 1985
2,679 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The appellant, the National Secretary General of the Kenya Union of Sugar Plantation Workers and MP for Nyando, was convicted of stealing by an agent contrary to section 283(b) of the Penal Code and sentenced to four years imprisonment by the senior resident magistrate, Kisumu. The High Court (Sachdeva and Porter JJ) dismissed his first appeal on August 10, 1983. On second appeal, his counsel abandoned the appeal against sentence, recognising that under section 361(1) of the Criminal Procedure Code the Court of Appeal could not interfere with it, and the appeal against conviction was confined to matters of law under section 361(a). The Court of Appeal (Kneller, Nyarangi JJA and Platt Ag JA) reviewed the evidence: the Miwani branch workers' Kshs 211,300 contribution was channelled through the mills' management to the union and Kshs 210,000 was handed to the appellant by the union's trustee and treasurer for presentation at the Nyando Constituency harambee for secondary schools. After the President banned harambee collections on January 11, 1982, the appellant neither followed the directive, returned the money, nor sought the workers' directions. His claim that he spent it on other harambees, and the defence that it was a personal gift, were rejected as false. The court declined to disturb the concurrent findings of fact, held the appellant was an agent who fraudulently converted the money, and declared that pocketing harambee collections is the crime of stealing by an agent. The appeal was dismissed.

Key legal issues

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01

Scope of a second appeal

Holding

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.

Reasoning

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.

p. 4
02

Entrustment and agency

Holding

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.

Reasoning

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.

p. 4
03

Fraudulent conversion constituting stealing by an agent

Holding

The appellant fraudulently converted the money; paying an equivalent sum into court later did not cure the conversion.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed
  2. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.