Can a wife steal from a husband and vice versa?
This is the question that Justice Reuben Nyakundi will be grappling with in a curious case where a woman is challenging a two-year jail sentence handed by a magistrate’s court.
After releasing Everlynne Johnson on a Sh5,000 cash bail, the judge said her appeal may succeed as she had put up a case that she had an intimate relationship with the complainant.
He noted that there was also a likelihood that she will have served the sentence before the appeal is settled if he does not release her on bail.
“I am further enamoured by my finding that overwhelming chances of the appeal being successful have been demonstrated. This has been done by counsel for the applicant’s line of argument, which I am inclined to accede to, that the learned trial magistrate did not consider that the applicant and the complainant had an intimate relationship of husband and wife and that they got into a domestic dispute over the mobile phone the applicant was accused of stealing,” Justice Nyakundi ruled.
Charged in 2018 and out for two years on similar cash bail, Everlynne battled before Hola magistrate a man she claimed to be her husband and the father of her eight-year-old child over an alleged theft of a mobile phone but the court agreed with him on September 2, 2020.
Despite her plea for a non-custodial sentence, she was eventually jailed.
Everlynne, a mother of an eight-month baby, started serving the sentence four months ago as she could not afford to raise money for court to bail her out and get typed proceedings in order to appeal.
Her lawyer Danson Mungatana faulted the magistrate’s court, arguing that it ignored the fact there was a relationship between the complainant and his client when the alleged theft happened.
Court’s ruling does not disclose the name of the man and the mobile phone worth.
Justice Nyakundi heard that during the trial, Everlynne kept on bitterly referring to the man who had dragged her to court as her husband, wondering how she could actually steal from him.
“That the applicant did not really steal the phone as alleged but rather was in the middle of a domestic dispute with her husband, a matter that could be resolved at home. She was taken into custody with a baby who she complained was experiencing a lot of problems in the conditions of custody. The baby was not part of this and ought not to be exposed to life in custody because the father and mother have a disagreement,” argued Mungatana.
The lawyer continued that her own family was not aware that she had been jailed.
The judge allowed Everlynne to file her appeal out of time after finding that she had no financial means to have the trial court papers typed in readiness for the appeal.
“The court is satisfied that the delay in filing the appeal was not inordinate. In any case, it was occasioned by the delay in the certification of the record of appeal which in turn was on account of the financial constraints faced by the applicant. This court would be remiss to deny the applicant their right to appeal in the circumstances,” he ruled.
