GOWORA JA: After hearing counsel in this matter, we
dismissed the appeal against both
conviction and sentence. We indicated that our reasons would follow. These are they.
This is an appeal against the decision of the High Court, dated 13
September 2011, confirming the conviction of and sentence imposed upon the
appellant by the Magistrates'
Court. The appellant and one other were convicted of one count of contravening s
136 of the Criminal Law (Codification and Reform) Act [Cap 9:23],
(“the Code”) i.e. one count of
fraud involving the sum of USD 15 200. They were each sentenced to four (4)
years imprisonment, of which one year was suspended for five years on condition
of good behaviour. A further one year was suspended on condition that each paid
restitution to the complainant in the sum of USD 7 600 by 31 (sic)
February 2010.
The court a quo found that the evidence showed that the
appellant and her sister, one Mary Nyangari, were liable as co-perpetrators of
the offence in terms of s 195 of the Code. From the evidence led, the appellant
approached the complainant seeking foreign currency. It was agreed that the appellant would give the complainant the
equivalent in local currency which would be transferred into the complainant's creditors' accounts electronically. Between 25 and 27 September, the complainant
gave the appellant the sums of
USD 8 000, USD5
000 and USD 3 000.
The Magistrates'
Court found, and the High Court confirmed, that the appellant and her
co-accused, a supervisor within the Bank, used fake RTGS forms to dupe the
complainant into believing that the equivalent in local currency had been
transferred into the specified accounts.
In our view the evidence
before the Magistrates' Court clearly supported a finding of guilty and
the High Court cannot be faulted in upholding the conviction of the appellant.
As regards sentence, the appellant contended before us that the court a
quo erred in holding that a custodial sentence was the only
appropriate sentence and in disregarding the mitigatory circumstances advanced before the Magistrates' Court,
in relation to the
appellant's health. In that court no medical evidence was adduced to
establish the appellant's
medical condition and that of her child. In
this regard the court a quo cannot
be faulted for having
accepted the reasoning of the Magistrates' Court.
The second ground for challenging the sentence was that the court a quo erred in disregarding an order of
restitution coupled with a wholly suspended sentence as the appropriate
sentence in the circumstances.
In our view the authorities do not support the proposition advanced on
behalf of the appellant. An order for the payment of restitution does not
necessarily entail the imposition of a wholly suspended sentence.
Taking the sentence as a whole, we do not consider that it is so
manifestly excessive as to induce a sense of shock, having regard to the
gravity of the offence and the personal circumstances of the appellant. It
cannot therefore be said that the High Court misdirected itself in the exercise
of its sentencing discretion.
It was the unanimous view of the court that the appeal lacked merit in
its entirety and it was for this reason that the appeal against both conviction
and sentence was dismissed.
GWAUNZA JA: I agree
PATEL JA: I agree
IEG Musimbe &
Partners, first appellant's legal practitioners Messrs Masawi & Partners, second
appellant's legal practitioners Attorney
General's Office, respondent's legal practitioners
