Ong’are Moguche v Republic [2019] KECA 323 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a small error in a charge sheet does not overturn a conviction unless it causes real injustice, and upheld a two-year sentence for stealing by agent.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the charge sheet was defective for omission of the year in which the offence was committed
- 2.Whether the charge sheet was defective for failing to specify the sub-section of Section 283 of the Penal Code under which the appellant was charged
- 3.Whether the prosecution proved the offence of stealing by agent beyond reasonable doubt
- 4.Whether the learned Judge considered and determined all the grounds of appeal urged before the High Court
Key legal issues
#Effect of omission of the year of the offence from the charge sheet
The omission was cured by Section 382 of the Criminal Procedure Code as no prejudice or failure of justice was occasioned
The evidence of PW1 and PW2 expressly fixed the offence on 7th April 2009 and the appellant himself in his defence referred to 7th April 2009 as the date of the transaction. There was no evidence whatsoever that the appellant was prejudiced by the omission. Section 382 bars reversal on account of error, omission or irregularity unless it has occasioned a failure of justice, and the court was satisfied no miscarriage of justice arose here.
Ingredients of the offence of stealing by agent
The ingredients are stolen property within Section 268, an agency relationship, and receipt of the property in circumstances enumerated in paragraphs (a) to (e) of Section 283; all were proved
Payment of Ksh. 281,000 to the appellant was proved by the testimony of PW1 and PW2 which the trial court believed, and the appellant did not dispute receipt. Both PW1 and the appellant accepted the relationship was not employer/employee, and there was no evidence of the partnership the appellant alleged. The appellant neither delivered the maize nor accounted for the proceeds, and his running away was a tell-tale sign of a guilty mind.
Whether contradictions between PW1 and PW2 undermined the prosecution case
Any inconsistency was minor and immaterial and did not dent the prosecution case
The material fact per the charge sheet was that PW1 gave the appellant Ksh. 281,000 to buy maize and the appellant neither delivered the maize nor accounted for the proceeds. That was not disputed. Minor inconsistencies and contradictions should be ignored unless they are deliberate untruths, and here there were no deliberate untruths casting doubt on the prosecution case.
Whether the High Court Judge considered all grounds of first appeal
The Judge identified the germane issues, re-evaluated the evidence and made findings on all the grounds urged
A reading of the impugned judgment showed the Judge identified two issues - whether the appellant was an agent of the complainant and whether the case was proved beyond reasonable doubt - and considered the effect of the civil suit. Upon re-evaluating the evidence she agreed with the trial magistrate's findings, and this Court was satisfied all grounds of appeal were considered and determined.
Legal principles established
#- On a second appeal the Court of Appeal's jurisdiction is limited to matters of law and will not interfere with concurrent findings of fact unless based on no evidence
- An appellate court determining the effect of a defective charge asks whether the conviction occasioned a miscarriage of justice resulting in great prejudice to the appellant
- A charge under Section 283 of the Penal Code must be read together with the definition of theft in Section 268, and its ingredients are stolen property, an agency relationship, and receipt of the property in circumstances enumerated in paragraphs (a) to (e) of Section 283
- Minor inconsistencies and contradictions in prosecution evidence should be ignored unless they are deliberate untruths
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The conviction of the appellant is affirmed
- 3.The sentence of two years' imprisonment is upheld
- 4.The bond pending appeal is cancelled and the appellant is to be taken to prison immediately to serve the balance of the two-year term
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisii
- Kisii H.C. Cr. A. No. 177 of 2010
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code - second appeal confined to matters of law only
Relief refused
#Quashing of the conviction on grounds of a defective charge sheet
No prejudice or miscarriage of justice was occasioned; Section 382 of the Criminal Procedure Code cured the omission
Finding that the prosecution case was not proved beyond reasonable doubt
Concurrent findings of the two courts below were supported by evidence; credibility of witnesses is not a good ground of appeal in a second appeal
Costs
No costs order made in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that we find this appeal has no merit and is hereby dismissed in its entirety. We affirm the conviction of the appellant and uphold the sentence of two years' imprisonment meted out to the appellant by the trial court and as upheld by the High Court.
We cancel the bond and direct that the appellant be taken to prison immediately to serve the balance of the two-year term of imprisonment.
A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of facts arrived at in the two courts below unless based on no evidence.
It is trite law that an accused person is convicted on the strength of the Prosecution case, and not on the weakness of the defence
The conduct of the appellant running away and disappearing from the complainant is a tell-tale sign of a guilty mind.
Issues in the judgment
#The charge particulars state 'On 7th day of April (sic)' with the year omitted, and the judgment itself notes a further internal date anomaly in the complainant's narrative (promises of payment in April 2009 recounted in sequence with events dated later); the judgment also refers to a civil suit 'Kisii CMCC No. 357 of 2008 (sic)' whose number predates the 2009 transaction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ong’are Moguche v Republic [2019] KECA 323 (KLR)", Case Analysis (2019). Criminal Appeal No. 57 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/323/eng@2019-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.