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Court of AppealDismissedCriminal Appeal 233 of 2009· [2010] KECA 102 (KLR)

David Kibet Chumba v Republic

Court of Appeal of Kenya
24 September 2010
MKM. Ole KeiwuaEGE. M. GithinjiAVAlnashir Visram
1,754 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that small date mismatches in a charge sheet won't overturn a theft conviction when the evidence clearly shows the crime.

What this practically means

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Executive summary

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This is a second appellate judgment of the Court of Appeal at Kisumu in a criminal appeal by David Kibet Chumba, a former Kenya Commercial Bank branch officer, against his conviction on count III for stealing contrary to section 275 of the Penal Code and the sentence of two years' imprisonment. At trial before the Chief Magistrate at Kisumu he was convicted on two counts of stealing by servant and acquitted of five counts of stealing; on first appeal the High Court (Mwera, J.) reversed those convictions for want of evidence that the stolen money reached his hands, but itself convicted him on count III and sentenced him to two years. Before the Court of Appeal the appellant, who had already been released under Presidential Amnesty, argued that the ingredients of theft were not proved, that the trial judge introduced a charge not in the particulars, and that the superior court failed properly to evaluate the evidence. The State maintained that the superior court acted under section 354 of the Criminal Procedure Code. The Court of Appeal noted concurrent findings that the appellant executed all documents facilitating the fraud and made no explanation of the entries in his own account; it held the inference of theft was reasonable. It further held that variance between the charge and the evidence as to time was immaterial under section 214(2) CPC, that no failure of justice was shown under section 382 CPC, and that the superior court had power under section 354(3)(ii) to alter the finding and sentence. The appeal was dismissed. The judgment binds subordinate courts on the immateriality of time variances between charge and proof and on the permissibility of inferring theft from unexplained account entries.

Key legal issues

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01

Whether fraudulent conversion of bank money through account entries constitutes theft under section 275 of the Penal Code

Holding

The court held there was ample evidence of fraudulent conversion of the bank's money, satisfying theft, and declined to interfere with the superior court's inference drawn from the unexplained account entries.

Reasoning

The court found ample evidence that over shs.6 million was stolen from the KCB Luanda satellite branch via fictitious debit vouchers. Both courts below made a concurrent finding that the appellant executed all documents facilitating the fraud. The appellant made no explanation in his defence of the entries in his own account, so the superior court's inference that he stole the money was reasonable and entitled to be upheld.

p. 3
02

Whether the mismatch between the dates in count III (1st October to 25th November 2004) and the account entries (18th December 2004 to 4th April 2005) vitiated the conviction

Holding

The variance as to time was immaterial under section 214(2) CPC, and no failure of justice was shown to justify disturbing the finding under section 382 CPC.

Reasoning

The court acknowledged the particulars charged theft of Kshs.180,000 between 1st October and 25th November 2004 while the account entries fell between 18th December 2004 and 4th April 2005. Relying on section 214(2) CPC it held time variances immaterial, and under section 382 CPC no error occasioned a failure of justice.

p. 3
03

Whether the superior court had power to substitute a conviction for stealing under section 275 of the Penal Code after acquitting on the theft-by-servant counts

Holding

Section 354(3)(ii) CPC empowered the superior court to alter both the finding and the sentence of the trial court.

Reasoning

Counsel for the State submitted, and the court accepted, that the High Court on first appeal had statutory power under section 354(3)(ii) of the Criminal Procedure Code to alter the trial court's finding and sentence, thereby sustaining the substituted conviction on count III.

p. 3

Legal principles established

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  • A variance between the charge and the evidence with respect to the time at which an alleged offence was committed is not material
  • An error or defect in a charge is not fatal unless it has occasioned a failure of justice
  • The High Court on first appeal has power under section 354(3)(ii) of the Criminal Procedure Code to alter both the finding and the sentence of the trial court

Court orders

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  1. 1.The appeal against conviction and sentence on count III is dismissed
On appeal from
High Court of Kenya at Kisumu
H.C.CR.A. NO. 42 OF 2009
Jurisdiction invoked
Second appellate criminal appeal under the Criminal Procedure Code (Section 354 CPC)

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, "David Kibet Chumba v Republic", Case Analysis (2010). Criminal Appeal 233 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/102/eng@2010-09-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.