REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYANDARUA

CRIMINAL APPEAL NO. 94 OF 2023

ANDREW OBAE OMUNDO…….……………………….………...............APPELLANT

VERSUS
REPUBLIC……………………………………………………..………… RESPONDENT

JUDGEMENT

1. The Appellant was charged with 3 offenses namely: - Count I identity theft and

impersonation contrary to Section 29 of the Computer Misuse and Cyber Crimes

Act, Count II unauthorized access contrary to Section 14 of the Computer Misuse

and Cyber Crimes Act and Count III access with intent to commit an offense

Section 15 (1) of the Computer Misuse and Cyber Crimes Act.

2. The circumstances are that on diverse dates between 27 th July 2018 and 11th May

2022 at an unknown place within the republic of Kenya, the Appellant

fraudulently used electronic identification at KCB Agent to withdraw Kshs.

732,033/- from Inua Jamii ATM cards account number 1254849875, 123429905,

1235199924, 1233642364, 1230001107 and 1235690371.

3. During the trial, the prosecution called a total of 5 witnesses to prove their case,

eventually, the Appellant was found guilty on all counts and was sentenced to

serve 2 years imprisonment on count I and II- and 5 years imprisonment on count

iii. The court ordered the sentences to run consecutively.

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4. Being dissatisfied and aggrieved with the aforesaid judgment, the Appellant

preferred the instant appeal against the conviction and sentence on the following

grounds: -

I. That the learned trial magistrate erred in law and fact by convicting the
Appellant yet failed that his defense was cogent and believable.
II. That the learned trial magistrate erred in law and fact in failing to appreciate
that the prosecution had failed to establish their case to the required standard
i.e. beyond a reasonable doubt.
III. That the prosecution failed to call other witnesses who were on appellant side
thus caused a miscarriage of justice since the witnesses had different opinions
about the commission of the offense and that would have accorded him a
chance to be acquitted.
5. Reasons wherefore the Appellant prays that the appeal be allowed and the conviction

quashed, the sentence be set aside and the Appellant be set at liberty.

6. Appellant’s Written Submissions

7. The Appellant submitted that the trial court having received his mitigation, he was

sentenced to serve a very harsh sentence and that being a first offender the

sentence was not proportionate with the charges against him. He pleads with the

court to order his sentence to run concurrently.

8. It was asserted that the learned trial magistrate did not comply with Section 333(2)

of the Criminal Procedure Code because he was arrested on 13/05/2022 and

convicted and sentenced on 15/11/2022 showing that he spent 6 months in

remand. He prayed that this court consider the same in each count and reduce his

sentence in accordance with the Judiciary Sentencing Policy Guidelines.

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9. In conclusion, the Appellant prayed that the court order his sentence to run

concurrently, reduce his sentence, and consider 6 months in each count that he

spent in remand.

10. Respondent’s Submissions

11. The respondent submitted that the elements that the prosecution needed to prove

were: -

I. Whether the Accused was in possession of the ATM cards

II. Whether the Accused knowingly transferred or used another person’s identity
III. Whether the Accused had lawful authority to use another person’s identity
IV. Whether the Accused had withdrawn Kshs. 732,032/-
V. Whether the Accused had an intention to commit, aid, or abet unlawful activity
through the use of another person’s identity
12. As to the first question, it was asserted that PW2 stated that the Accused on 10 th

May 2022 went to her shop in possession of 3 ATM cards. PW2 became

suspicious when the Accused managed to withdraw money from 3 cards yet the

program supported one person per card and reported the matter and the Accused

was arrested. It has been established that the Accused had in his possession 10

ATM cards.

13. On the second issue, the respondent stated that the Accused used his fingerprint to

withdraw the said amount from the accounts which became a cause for alarm as he

was not the holder of the said accounts. On the third issue, pw1 stated that he is

registered for cash transfer for the elderly, and also since he supported an orphan,

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 he had also registered for government support for the orphaned girl and was to

receive the funds through Equity Bank.

14. When he went to the bank to get money for the elderly, he was informed that he

had also received money for orphan support but upon checking his account, the

money was missing yet there was someone who was withdrawing money using his

card and ID. PW1 stated that he did not know the Accused and he had never asked

him to withdraw money on his behalf at any point.

15. On the fourth issue, PW4 produced a bank statement for 10 cards that were in

possession of the Accused and they showed that Kshs. 732,033 has been

withdrawn from 27th July 2018 to 11th May 2022. On the fifth issue, the Accused

testified that a bank official by the name of Julius used to send him to look for

elderly people and get their names and IDs for registration then once registration

was done, he would use the Accused’s fingerprint so that the transactions would

go through showing that there was no doubt that the Accused knew his actions

constituted fraudulent acts and that he had the intention to defraud the society.

16. On the sentence passed, the respondent contended that the sentence passed was

within the law and it has not been demonstrated that the trial magistrate committed

any illegality, impropriety, or mistake in sentencing the Appellant. Further, the

sentence imposed will deter the Appellant from committing a similar offense

subsequently as well as discourage others from committing a similar offense. In

conclusion, the Appellant prayed that the court dismiss the application and uphold

the sentence.

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17. Analysis and Determination

18. This is a first appeal. The law is well settled that the first appellate court has a duty

to re-evaluate the evidence adduced before the trial court, analyze it, and come up

with its independent findings. The court is however supposed to make allowance

for the fact that the trial court had the benefit of seeing and hearing the witnesses

to assess their demeanor. (See Kiilu & Another vs. Republic [2005] 1KLR 174

and Okeno vs. Republic [1972] EA 32)

19. As stated above the Appellant was charged with 3 counts as follows: -

 Count I identity theft and impersonation contrary to Section 29 of the Computer

Misuse and Cyber Crimes Act,
 Count II unauthorized access contrary to Section 14 of the Computer Misuse and
Cyber Crimes Act and;
 Count III access with intent to commit an offense Section 15 (1) of the Computer
Misuse and Cyber Crimes Act
20. Section 29 of the Computer Misuse and Cyber Crimes Act, provides that: -

A person who fraudulently or dishonestly makes use of an electronic signature,

password, or any other unique identification feature of any other person

commits an offense.

21. Section 14 of the Computer Misuse and Cyber Crimes Act, provides that: -

A person who causes whether temporarily or permanently, a computer

subsystem to perform a function, by infringing security measures with intent to

gain access and knowingly such access is unauthorized, commits an offense.

22. Section 15 (1) of the Computer Misuse and Cyber Crimes Act, provides that: -

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 A person who commits an offence under section 14 with intent to commit a

further offence under law, or to facilitate the commission of a further offence by

that person or any other person, commits an offence.

23. Having thoroughly gone through the trial record, Samuel Karanja Nganga, PW1,

enrolled for the Inua Jamii cash transfer program registering himself and his

granddaughter. As elaborated by the trial magistrate, Inua Jamii is a cash transfer

program for vulnerable Kenyans whose aim is to cushion them and improve their

standard of living. To aid this, the government incorporates the account-based

model system due to its security features and to enable the elderly to access

banking services of their choice with ease.

24. PW1 testified that he was summoned to the police station and shown a card bearing his

name, Pexh. 3 which he was unfamiliar with as he had his card. He stated that he used

to withdraw money from Equity Bank and at one time, he was informed that an

orphan’s money had been deposited into his account but upon withdrawal, he was told

that there was no money. He stated that he was not aware of any withdrawals made

via KCB Bank as he had only been using Equity Bank. He was then given a

temporary card and later informed that two people had been withdrawing money from

his account using his identity card. He was then summoned to the police station and

informed that a suspect had been arrested and that the money had been withdrawn

either 3 times or within 3 years.

25. PW2 testified that on 11th May 2022, the Appellant went to her shop and told her he had

been sent from KCB Bank. At the time, she was giving out cash for the elderly and

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 orphans. The Appellant had 3 cards. She requested his ID card and inserted it into the

biometric machine. The Appellant placed his fingerprint and the system approved the

transactions and receipts came out. She gave him a total of kshs. 24,000/- but was

concerned as to how he had done 3 transactions at a go on different cards so she

resorted to report to Wanjohi Police Station. The Appellant was arrested on the

following day when he had come with 7 more cards to withdraw. PW3 who was

PW2’s employer corroborated her testimony.

26. PW4, PC Victor Muchana testified that he had recovered several cards from the

Appellant after he had been arrested by Wanjohi Police Station. He went to the

social service office and he was given a list of 10 cards belonging to several

people including PW1 although he could not establish if the other beneficiaries

were alive or dead because their telephone numbers were not going through. He

went to KCB Bank where he established that the withdrawals from the cards were

made from 2018 to 2022.

27. On the other hand, the Accused in his defense submitted that on the material day,

he was in Nakuru when he decided to go home and address some family issues. He

decided to pass through Naivasha but diverted to Wanjohi to take water. He

entered a shop and bought a charger. He wanted a sim replacement and the shop

owner referred him to PW2’s shop who told him to wait but shortly after, she

returned with the police and was arrested. The police took his ID card, Huduma

number, NHIF charger, and phone.

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28. In cross-examination, he denied having withdrawn money from PW2’s shop and

narrated that in 2018, he assisted the elderly in maintaining a queue during

registration, Julius Munene used to work at KCB Bank and he assigned him

fieldwork, to look for the elderly and take their names and ID numbers. That

another KCB Bank official namely Vionna used to give him cards for destruction.

29. Accordingly, I find that the prosecution proved their case against the Appellant

beyond reasonable doubt on all 3 counts. The evidence of PW2 proved that the

Appellant went to her shop and withdrew money from 3 ATM cards. The ID

numbers and mobile phone numbers recorded in respect to those transactions tally

with the Appellant’s ID numbers. Further, the Appellant was arrested while at

PW2’s shop where I believe he had gone to procure similar transactions seeing as

he had 7 more cards with him. Further, I find that the Appellant’s defense is far

from the truth. PW4 produced bank statements for the 10 cards and in total Kshs.

732,033 had been withdrawn from 27th July 2018 to 11th May 2022. The cards in

question were found in possession of the Appellant and not the named

beneficiaries.

30. Additionally, the Appellant used his fingerprint impression in withdrawing the

money as proved by PW2 and PW3. PW2 stated that the machine required the ID

card of the beneficiary and his thumbprint. In this case, she inserted the ID card for

the Accused who placed his fingerprint, and the transaction was approved for the 3

cards. PW3 corroborated her testimony. Further, she led to the Appellant’s arrest

after she reported her suspicions to the police concerning the dubious transactions.

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31. I concur with the trial magistrate that the Appellant intended to defraud and did

defraud the ultimate beneficiaries owing to the testimony that implicated him. I

also agree with the trial magistrate’s finding that the prosecution established its

case to the required standards and find that the actions of the Appellant were

extremely unlawful considering that the government is using taxpayer’s money

and donor funding to make the lives of vulnerable Kenyans bearable.

32. I therefore uphold the conviction of the Appellant on all three counts as held by

the trial court. Therefore, the appeal on conviction fails.

33. The trial magistrate proceeded to sentence the Appellant as follows: -

 Count 1: fine of Kshs. 200,000/- or 2 years in prison
 Count 2: fine of Kshs. 200,000/- or 2 years in prison
 Count 1: fine of Kshs. 3,000,000/- or 5 years in prison
34. The sentences were to run consecutively.

35. However, Section 14(1) of the Criminal Procedure Code, also allows the trial

magistrate in the exercise of discretion to authorize the sentences to run concurrently.

It provides:-

(1) “Subject to subsection (3), when a person is convicted at one trial of

two or more distinct offenses, the court may sentence him, for those
offenses, to the several punishments prescribed therefore which the
court is competent to impose; and those punishments when consisting
of imprisonment shall commence the one after the expiration of the
other in the order the court may direct unless the court directs that the
punishments shall run concurrently.”
36. In Muthangya Mutembei v Republic [2019] eKLR the court held as follows:-

Where a trial judge or magistrate is faced with multiple charges or offences an

appropriate decision on the aggravating and mitigating factors has to be borne
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 in mind in each distinct sentence. Where an offender has been charged and
convicted with two or more counts involving the same transaction in a charge
sheet or information as provided under Section 135 (1) and (2) of the Criminal
Procedure Code at the trial, the practice is to direct that the sentences should
run concurrently.
37. From the record, the Appellant had been charged with three offences with every

charge comprising the same transaction. The offenses the Appellant was charged

with flow from each other and appear to constitute a single transaction connected.

The Court of Appeal has defined the phrase ‘same transaction rule’ in the case of

Republic v Saidi Nsabuga S/O Juma & Another [1941] EACA and revisited it in

Nathan v Republic [1965] EA 777 where the court stated as follows:

“If a series of acts are so connected by proximity of time, criminality or criminal intent,
continuity of action and purpose, or by relation of cause and effect as to constitute one
transaction, then the offenses constituted by these series of acts are committed in the
course of the same transaction.”
38. In Muthangya Mutembei v Republic [supra] the court stated that:-
The one transaction rule requires that where two or more offenses are committed in the
course of a single transaction the sentencing court should consider an order for
concurrent instead of consecutive sentences. In applying the above principle to the
instant case, one has to be satisfied that the offenses committed fall under the sequence
of a single transaction.
39. Consequently, it is my considered opinion that where the Appellant has committed

more than one offense in the same transaction, the sentence imposed should run

concurrently. In Sawedi Mukasa S/o Abdullah Aligwaisa 1946 13 E.A.C.The

court considered the issue of consecutive as opposed to concurrent sentences and

held the view that it was good practice to impose concurrent sentences where a

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 person commits more than one offense at the same time and in the same

transaction save in very exceptional circumstances.

40. The Judiciary of Kenya Sentencing Policy Guidelines, 2016-page 15 paragraph

4.1, lists the objectives of sentencing as follows:
Sentences are imposed to meet the following objectives:

i. Retribution: To punish the offender for his/her criminal conduct in a just manner.
ii. Deterrence: To deter the offender from committing a similar offense subsequently as
well as to discourage other people from committing similar offenses.
iii. Rehabilitation: To enable the offender to reform from his criminal disposition and
become a law-abiding person.
iv. Restorative justice: To address the needs arising from criminal conduct such as loss
and damages. Criminal conduct ordinarily occasions victims’, communities’ and
offenders’ needs and justice demands that these are met. Further, it promotes a sense
of responsibility through the offender’s contribution towards meeting the victims’
needs.
v. Community protection: To protect the community by incapacitating the offender.
vi. Denunciation: To communicate the community’s condemnation of the criminal
conduct.

41. Further, in No.T.13 the guidelines state as follows:-

(1) “Where the offense emanates from a single transaction, the
concurrently. However, where the offenses are committed in the
course of multiple transactions and where there are multiple victims,
the sentence should run consecutively.”
42. As stated earlier, the offenses charged were committed in the same transaction

and therefore I find in the circumstances of this case the trial court erred in

imposing consecutive sentences. Taking all these into account, I set aside the

order that the sentence should run consecutively and substitute thereof with an

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 order that the sentence meted should run concurrently, which will take into

account the period already served by the Appellant.

43. In the end, the court makes the order;

(i) Appeal on conviction is dismissed and conviction upheld.

(ii) The appeal succeeds partially to the extent, that the sentence meted
out shall run concurrently, which will take into account the period
already served by the Appellant.

DATED SIGNED AND DELIVERED AT NYANDARUA THIS 6th DAY OF MAY 2024

…………………………………..
CHARLES KARIUKI
JUDGE

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