https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9930

Mohamed v Republic (Criminal Appeal E087 of 2025) [2026] KEHC 9930 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 9930 (KLR) Republic of Kenya In the High Court at Mombasa Criminal Appeal E087 of 2025 WM Kagendo., J June 18, 2026 Between Ahmed Ahmed Mohamed Appellant and Republic Respondent (Being an appeal against the Judgment, Conviction and Sentence of Hon. G.A. Ollimo, Senior Resident Magistrate, delivered on 21st May 2025 and 5th June 2025 respectively in Chief Magistrate's Court at Mombasa in Criminal Case No. E2019 of 2021: Republic v Ahmed Ahmed Mohamed) Judgment A. Introduction 1.This is an appeal against the judgment and sentence of the Senior Resident Magistrate, Hon. G.A. Ollimo, in Chief Magistrate's Court at Mombasa in Criminal Case No. E2019 of 2021. The Appellant was convicted of giving false information to a person employed in the public service contrary to Section 129(a) of the Penal Code and sentenced on 5th June 2025 to pay a fine of Kshs.150,000/= in default to serve eighteen (18) months imprisonment. 2.The appeal raises five issues for determination. First, the competence of theNotice of Enhancement of Sentence filed by the Victim/Complainant and the Preliminary Objection thereto. Second, the propriety of the trial court's refusal to allow the Director of Public Prosecutions to withdraw the case under Section 87(a) of the Criminal Procedure Code. Third, the admissibility and evidential value of the written statement of Mr. Were, an advocate who did not testify. Fourth, whether the conviction was safe having regard to the varying police reports, the conflicting forensic findings, the Appellant's conduct in travelling to India in search of a document examiner and the credibility of his defence. Fifth, whether the sentence was lawful and proportionate. 3.The Appellant filed a Memorandum of Appeal containing twenty-one grounds. The Victim/Complainant, represented by Mr. Magolo, subsequently filed a Notice of Enhancement of Sentence dated 24th December 2025. The Appellant filed a Preliminary Objection dated 8th January 2026 challenging the competence of that Notice. The Court has considered the record of appeal, the submissions filed by all parties and the applicable law. B. Background i. The Charge 4.The Appellant was charged with giving false information to a person employed in the public service contrary to Section 129(a) of the Penal Code. 5.The particulars were that on 7th April 2020 at DCI Urban Office in Mombasa County, he informed Police Constable Moses Mwaniki that his 150 shares in Coast Calcium Limited had been fraudulently transferred through a forged deed of share transfer, information he knew to be false, intending thereby to cause Mohamed Kassam Ahmed to be arrested and charged with the offence of forgery. 6.The offence under Section 129(a) of the Penal Code is a misdemeanour punishable by imprisonment for a term not exceeding three years. 7.The dispute arose from a shareholding transaction involving Coast Calcium Limited. The prosecution case was that in 2014 the Appellant voluntarily transferred his 150 shares to the complainant for a consideration of Kshs.8,000,000/=, which sum was deposited with A.B. Patel & Patel Advocates. The Appellant never collected the money. Six years later, he reported to the police that the transfer documents had been forged. ii. The Prosecution Case 8.The prosecution called six witnesses. 9.PW1, Chief Inspector Bernard Cheruiyot, was a forensic document examiner attached to the Directorate of Criminal Investigations. He examined the original transfer deed, specimen signatures and known signatures attributed to the Appellant. Using a Video Spectral Comparator (VSC-6000), he concluded that the questioned signature and the known signatures were authored by the same person. 10.PW1 testified that his findings were reviewed by his superior, SSP John Muinde, who ultimately agreed with his conclusion after examining the original documents. 11.During cross-examination, it emerged that SSP Muinde had initially produced a differing opinion suggesting doubts regarding the authenticity of the signature. PW1 explained that the earlier opinion had been formed from photocopies whereas the later opinion was based upon examination of the original document. Upon examining the original, SSP Muinde revised his opinion and concurred with PW1. 12.PW2, Police Constable Elijah Kemboi, confirmed receiving a subsequent report from the Appellant at Central Police Station on 8th October 2020. 13.PW3, Police Constable Moses Mwaniki, received the initial complaint made by the Appellant on 7th April 2020. 14.PW4, Mr. Sanjeev Khagram, an advocate practising in the firm of A.B. Patel & Patel Advocates, confirmed that the firm's stamp appeared on the transfer deed and that he witnessed the complainant's signature. He however could not specifically recall whether the Appellant was present when the document was executed. 15.PW5, Mohamed Kassam Ahmed, the complainant, testified that the Appellant voluntarily transferred the shares to him in 2014 for Kshs.8,000,000/=. He stated that the transaction was executed before an advocate known as Mr. Were and that the purchase price remained deposited in the advocates' client account. 16.PW6, SSP Charles Kyalo Kitsua, was the investigating officer who eventually took over the matter. He testified that investigations established that the allegation of forgery was false. During his evidence he sought to produce the statement of Mr. Were, who did not testify. The defence objected but the trial court admitted the statement. iii.The Defence Case 17.The Appellant gave sworn evidence and called no witness. 18.He denied transferring the shares and denied making a false report to the police. 19.He maintained that he never executed the transfer documents and asserted that he had been misled into signing documents whose contents were not disclosed to him. 20.He further alleged collusion among the complainant, other directors and the law firm involved in the transaction. 21.The evidence further revealed that the Appellant travelled to India in an attempt to obtain an independent forensic document examiner to support his allegation of forgery. No report was ultimately produced and no expert witness was called by the defence. iv. Material Trial Court Rulings 22.On 26th November 2024, the trial court ruled on objections raised concerning the admissibility of documents. The objections to the production of the transfer deed, passport and police statement were dismissed. The court admitted the statement of Mr. Were under Sections 33, 163 and 166 of the Evidence Act. 23.On 30th September 2024, the Director of Public Prosecutions applied to withdraw the proceedings under Section 87(a) of the Criminal Procedure Code. The trial court declined the application. 24.On 2nd April 2025, shortly before the close of the prosecution case, the prosecution again sought to withdraw the charge on grounds relating to the sufficiency of evidence. The application was again refused and the trial court found that a prima facie case had been established. v. Conviction and Sentence 25.On 21st May 2025, the trial court convicted the Appellant. 26.The court found that PW1's forensic evidence was credible and unrebutted; that the Appellant's testimony contained material contradictions; that the delay in reporting the matter was unreasonable; and that the Appellant had failed to explain matters especially within his knowledge relating to the alleged forgery. 27.On 5th June 2025, the trial court sentenced the Appellant to pay a fine of Kshs.150,000/= and in default to serve eighteen months imprisonment. C. Issues For Determination 28.The following issues arise for determination:i.Whether the Notice of Enhancement of Sentence filed by the Victim/Complainant is competent and whether the Preliminary Objection should succeed;ii.Whether the trial court erred in refusing to permit withdrawal of the case under Section 87(a) of the Criminal Procedure Code;iii.Whether the written statement of Mr. Were was properly admitted and what evidential weight should be attached to it;iv.Whether the conviction was safe having regard to the entirety of the evidence; andv.Whether the sentence was lawful and proportionate. D. Analysis And Determination Issue I: Preliminary Objection to the Notice of Enhancement of Sentence 29.The Appellant contends that the Notice of Enhancement of Sentence filed by the Victim/Complainant is incompetent because it amounts to an assumption of prosecutorial powers reserved exclusively to the Director of Public Prosecutions. 30.The Victim/Complainant argues that the Notice is a proper exercise of rights conferred under Article 50(9) of the Constitution and the Victim Protection Act. 31.The law concerning victim participation is now settled. In Joseph Lendrix Waswa v Republic, the Supreme Court affirmed that victims possess a constitutional right to participate in criminal proceedings but emphasized that such participation must not transform the victim into a secondary prosecutor. 32.Section 9(2) of the Victim Protection Act permits victims to present their views and concerns where their personal interests are affected, provided such participation does not prejudice the accused person's right to a fair trial. 33.The Supreme Court was categorical that prosecutorial functions remain vested exclusively in the Director of Public Prosecutions under Article 157 of the Constitution. 34.The same principle was reiterated in decisions of the High Court emphasizing that victim participation must complement, not replace, the prosecutorial mandate. 35.Applying those principles, this Court finds that a formal Notice of Enhancement of Sentence filed independently by a victim exceeds the participatory role contemplated by the Constitution and the Victim Protection Act. 36.Such a notice is, in substance, a prosecutorial step seeking a specific penal outcome against the accused. 37.That role belongs exclusively to the Director of Public Prosecutions. 38.The Court of Appeal decision relied upon by the complainant permitted victim participation through submissions and did not authorize victims to independently invoke appellate sentencing jurisdiction. 39.Nevertheless, striking out the Notice does not extinguish the complainant's constitutional right to participate in these proceedings through submissions. 40.Accordingly, the Preliminary Objection succeeds in part. 41.The Notice of Enhancement of Sentence dated 24th December 2025 is hereby struck out. 42.The Victim/Complainant remains at liberty to address the Court through submissions on sentence within the parameters established by the Constitution and the Victim Protection Act. Issue II: Refusal to Allow Withdrawal Under Section 87(a) of the Criminal Procedure Code 43.The Appellant argues that the trial court erred in refusing the applications by the Director of Public Prosecutions to withdraw the proceedings. 44.Section 87(a) of the Criminal Procedure Code permits the Director of Public Prosecutions, with the permission of the court, to discontinue criminal proceedings before judgment. 45.Article 157(6) and (10) of the Constitution confer prosecutorial authority upon the Director of Public Prosecutions and protect that office from direction or control by any person or authority. 46.However, Article 157(11) expressly requires the Director of Public Prosecutions to exercise prosecutorial powers having regard to public interest, the interests of the administration of justice and the need to prevent abuse of legal process. 47.Consequently, prosecutorial discretion is broad but not absolute. 48.Judicial oversight remains necessary to ensure that withdrawals are not inconsistent with the administration of justice. 49.The record shows that the Director of Public Prosecutions sought withdrawal on two separate occasions after concerns arose regarding the evidential sufficiency of the case. 50.The complainant opposed both applications and urged the trial court to allow the matter to proceed to conclusion. 51.The trial court declined both applications. 52.This Court is satisfied that the learned trial magistrate possessed jurisdiction to scrutinize the applications and determine whether withdrawal would serve the interests of justice. 53.In determining this appeal,The Court cannot ignore the significance of the fact that the prosecuting authority itself, twice expressed reservations regarding the evidential position of the case. The applications reveal that concerns regarding the sufficiency and consistency of the evidence were not confined to the defence case but also arose within the prosecution process itself. While those applications do not determine the appeal, they form part of the broader factual matrix relevant to the assessment of whether guilt was ultimately established beyond reasonable doubt. Issue III: Whether the Conviction Was Safe a. Duty of the First Appellate Court 54.As a first appellate court, this Court is under a duty to reconsider and re-evaluate the evidence afresh and arrive at its own independent conclusions. In Okeno v Republic [1972] EA 32, the former Court of Appeal for East Africa held that a first appellate court must itself weigh conflicting evidence and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. The same principle was reaffirmed in Kiilu & Another v Republic [2005] 1 KLR 174. This Court has therefore carefully reconsidered the entire record, the exhibits, the submissions of the parties and the applicable law. b. Ingredients of the Offence Under Section 129(a) 55.Section 129(a) of the Penal Code criminalizes the act of giving information to a person employed in the public service which the maker knows or believes to be false, intending thereby to cause such public officer to do or omit an act which the officer ought not to do or omit if the true facts were known. The prosecution was therefore required to prove beyond reasonable doubt that information was communicated to a public officer; that the information was false; that the Appellant knew or believed it to be false when communicating it; and that it was communicated with the requisite statutory intent. The offence is not established merely because a complaint ultimately proves inaccurate or unsubstantiated. Criminal liability only arises where conscious falsity is proved. The Court is guided by Sawe v Republic [2003] KLR 364 that suspicion, however strong, cannot substitute proof beyond reasonable doubt. c. The Occurrence Book Entry and Nature of the Complaint 56.The Court has carefully examined the Occurrence Book extract produced by the prosecution. The entry records that the Appellant reported that unauthorized alterations had been made in relation to his KRA PIN and documents associated with the transfer of his shares. The OB extract conclusively establishes that a report was made. The issue, however, is not whether a report was made but whether the report was false and whether the Appellant knew it to be false at the time. The Court must therefore evaluate the report within the broader evidentiary context, including the disputed share transfer, the forensic evidence, the documentary exhibits and the conduct of the parties. The ultimate inquiry remains whether the prosecution excluded the reasonable possibility that the Appellant genuinely believed that unauthorized acts had occurred in relation to his corporate interests. d. Forensic Evidence and Investigative Divergence 57.The prosecution relied heavily on forensic handwriting evidence. PW1 concluded that the questioned signature matched the Appellant's known signatures. The evidence however revealed that differing forensic opinions emerged during the investigative process before eventual convergence after examination of the original documents. This circumstance does not automatically discredit the expert evidence. Nevertheless, the existence of differing expert opinions remains relevant when evaluating whether the prosecution discharged the criminal standard of proof. Expert evidence remains opinion evidence and must be weighed alongside all the other evidence on record. In Mutonyi v Republic [1982] KLR 203, the Court emphasized that expert evidence, however persuasive, is not conclusive and remains subject to judicial evaluation. 58.The prosecution's case was substantially founded on the proposition that the Appellant voluntarily transferred his shares and later falsely alleged forgery. According to the complainant, the transfer involved 150 shares and a consideration of Kshs.8,000,000/= deposited into an advocate's client account. The Court has carefully considered the documentary evidence relating to the transaction. The dispute concerns substantial proprietary interests in a private company and involves competing accounts regarding the authenticity and effect of the transfer instruments. 59.Ordinarily, a transaction of such magnitude would be expected to generate a comprehensive documentary trail, including transfer instruments, company resolutions, statutory filings, register entries and other contemporaneous records demonstrating the progression of the transaction from inception to completion. Of concern to the Court is that apart from the complainant's testimony, no minutes of the company, board resolutions, statutory filings or evidence from any other director were produced to corroborate the alleged transfer of such a significant shareholding interest. 60.It must however be remembered that the issue before this Court is not whether the transfer was ultimately valid as a matter of company law. Rather, the issue is whether the prosecution established beyond reasonable doubt that the Appellant knew his complaint concerning the transaction and associated records to be false when he reported the matter to the police. The existence of documentary evidence supporting one version of events does not automatically establish criminal liability under Section 129(a). Equally, the existence of a commercial dispute does not immunize a party from criminal responsibility. The Court must therefore determine whether the evidence establishes deliberate falsity as opposed to a genuinely held belief arising from a contested commercial transaction. e. The Statement of Mr. Were and the Right to Challenge Evidence 61.A substantial issue concerns the statement attributed to Mr. Were, an advocate alleged to have witnessed execution of the transfer documents. It is common ground that Mr. Were did not testify. Instead, the prosecution applied to have his statement admitted under the statutory exceptions to the hearsay rule. 62.The explanation offered for his absence was that he had communicated through a text message indicating that he was suffering from a stomach ailment. The Court has carefully considered that explanation. A temporary stomach ailment, without more, cannot ordinarily be equated to prolonged incapacity or such unavailability as would render a witness incapable of attending court within a reasonable period. No medical report was produced. No evidence was tendered showing that the witness suffered from any condition rendering him incapable of attending court at a later date. 63.More importantly, the Court is unable to discern any serious effort by the prosecution to secure his attendance before resorting to reliance on his statement. No summons was issued. No witness warrant was sought. No meaningful adjournment appears to have been requested to facilitate his attendance after recovery. The Court is therefore left with the impression that there was undue haste in treating the witness as unavailable despite the absence of evidence demonstrating that his condition was anything more than temporary. 64.The significance of Mr. Were's evidence cannot be overstated. He was alleged to have witnessed execution of the very document whose authenticity lay at the heart of the dispute. Article 50(2)(k) of the Constitution guarantees every accused person the right to adduce and challenge evidence. Cross-examination remains one of the most effective safeguards for testing the reliability and credibility of testimony. In Kinyatti v Republic [1984] KLR 712, the Court emphasized the duty of the prosecution to place before the court the best evidence reasonably available. 65.While this Court does not find it necessary to conclusively determine whether the statement was wrongly admitted, it is satisfied that the circumstances under which it was received substantially diminish its probative value. The inability to test the evidence through cross-examination significantly weakens its reliability. It is also noteworthy that PW4, the advocate who testified, did not mention Mr. Were's presence during execution of the transfer documents. Accordingly, this Court attaches little evidential weight to the statement. The circumstances surrounding its admission contribute to the broader evidential uncertainty emerging from the record. f. Police Complaint, Causation and Investigative Independence 66.The charge before the Court is founded upon the allegation that the Appellant knowingly communicated false information intending to cause the complainant's arrest and prosecution. Police officers do not act automatically upon receipt of complaints. They are required to conduct independent investigations and evaluate allegations before taking action. Upon completion of investigations, the matter is subjected to a further independent assessment by the Director of Public Prosecutions. The criminal process therefore contains several independent decision-making stages designed to guard against arbitrary action. The significance of this observation is that the prosecution was required to prove not merely that a complaint was made but that the complaint was knowingly false and made with the specific intent contemplated under Section 129(a). g. Knowledge of Falsity and Mens Rea 67.The central issue in this appeal concerns the mental element of the offence. The prosecution was not merely required to prove that the complaint was inaccurate. Rather, it was required to establish beyond reasonable doubt that the Appellant knew the information to be false when he communicated it. Knowledge of falsity is what distinguishes criminal conduct from a complaint made in error, misunderstanding or genuine belief. The Court must therefore focus on the Appellant's state of mind at the time the report was made. 68.In determining that issue, the Court considers the entirety of the evidential matrix, including the disputed share transfer, the contents of the OB report, the differing forensic opinions, the conduct of the parties and all surrounding circumstances. h. Nature of the Underlying Commercial Dispute 69.The dispute giving rise to these proceedings concerns ownership and transfer of shares in a private company. It involves competing accounts regarding execution of transfer instruments, company records and proprietary rights. Courts have repeatedly cautioned against permitting the criminal process to become a mechanism for resolution of what are essentially civil or commercial disputes. 70.Of particular concern to this court was the role played by the complainant . First, he strenuously objected to the withdrawal of the charges by the prosecution and even filed the impugned Notice of enhancement of sentence.This points to underlying issues, beyond the criminality of the report. 71.This does not mean that criminal conduct cannot arise within commercial relationships. Fraud, forgery and related offences may properly attract criminal sanctions even where parties have a commercial relationship. However, where a dispute is rooted in competing proprietary claims and contested transactions, courts must carefully distinguish deliberate criminal conduct from genuine disagreement regarding legal rights and obligations. The commercial nature of the dispute therefore remains a relevant contextual consideration when assessing whether conscious falsity was proved beyond reasonable doubt. i. Final Evidentiary Assessment 72.Having independently reconsidered the entire record, this Court must determine whether the prosecution established all the ingredients of the offence beyond reasonable doubt. There is no dispute that the Appellant made a report to the police. The first ingredient of the offence was therefore established. The more difficult questions are whether the report was false and whether the Appellant knew it to be false when he made it. 73.The Court accepts that the prosecution adduced evidence capable of supporting the conclusion that investigations ultimately rejected the Appellant's allegations and that the questioned signature was attributable to him. However, Section 129(a) does not criminalize a complaint merely because it is subsequently disproved. The offence criminalizes deliberate falsehood. Proof of falsity and proof of knowledge of falsity are separate and distinct inquiries. The Court must therefore proceed beyond the question of whether the complaint was correct and determine whether the prosecution proved conscious deception on the part of the Appellant. 74.It is on that second and critical element that the prosecution's case encounters substantial difficulty. First, the forensic evidence was not entirely consistent throughout the investigative process. Different conclusions emerged before eventual convergence upon examination of the original documents. Although an explanation was offered, the existence of differing forensic opinions demonstrates that the issues under investigation were capable of generating genuine disagreement even among trained experts. 75.Second, the Court has already found that little evidential weight can safely be attached to the statement of Mr. Were. He was a material witness on a central issue, yet no serious effort was made to secure his attendance. The resulting inability to test the evidence through cross-examination significantly weakens its reliability and probative value. 76.Third, and perhaps most significantly, the Director of Public Prosecutions twice sought withdrawal of the proceedings under Section 87(a) of the Criminal Procedure Code. While this Court has found that the trial court was entitled to decline those applications, the applications themselves remain highly relevant to the appellate evaluation of the evidence. They demonstrate that concerns regarding the sufficiency and consistency of the evidence were not merely defence assertions but also existed within the prosecutorial process itself. 77.Fourth, the dispute arose from a contested commercial transaction involving substantial shareholding interests within a private company. The Court is satisfied that the dispute was genuine and not merely manufactured for purposes of the criminal proceedings. 78.Fifth, the Court has considered the conduct of the Appellant before and after making the complaint. The prosecution urged the Court to infer guilt from the delay in reporting. The Appellant explained that he only became aware of the impugned developments in or about January 2020 and thereafter sought clarification before lodging a complaint.He waited for a third director who was in India to shed light as to what had gone on That explanation was not inherently improbable. Moreover, the evidence demonstrates that the Appellant undertook efforts to obtain an independent forensic opinion, including travel outside the jurisdiction. No report was ultimately produced. Nevertheless, the conduct itself is not easily reconcilable with a person who knew his allegations were false. On the contrary, it is capable of supporting the inference that he genuinely believed irregularities had occurred and sought independent verification of that belief. j. Knowledge of Falsity, Burden of Proof and Reasonable Doubt 79.The prosecution's evidence was largely directed towards demonstrating that the complaint was incorrect. Far less attention was directed towards proving the distinct and indispensable element of knowledge of falsity. The two concepts are not synonymous. A complaint may ultimately prove mistaken and yet have been honestly made. Section 129(a) criminalizes deliberate falsehood, not error of judgment, misunderstanding, suspicion or a complaint founded upon an honestly held belief. 80.The constitutional presumption of innocence under Article 50(2)(a) of the Constitution and the principle in Woolmington v DPP [1935] AC 462 require that the burden of proving every element of the offence remains throughout upon the prosecution. Having evaluated the evidence as a whole, this Court is unable to conclude that the prosecution excluded the reasonable possibility that the Appellant genuinely believed that unauthorized acts had occurred in relation to his shareholding interests, KRA PIN and associated records. 81.The cumulative effect of the contested commercial dispute, the contents of the OB report, the differing forensic positions that emerged during investigations, the limited weight attachable to the statement of Mr. Were, the two withdrawal applications by the Director of Public Prosecutions, and the Appellant's conduct in seeking independent verification creates a reasonable doubt regarding the Appellant's state of mind at the time he made the report. That doubt goes directly to the mens rea of the offence and, in criminal proceedings, must be resolved in favour of the accused. 82.Accordingly, this Court is not satisfied that the prosecution proved beyond reasonable doubt that the Appellant knowingly communicated false information to a public officer. The conviction is therefore unsafe and cannot stand. k. Sentence 83.Having found that the conviction is unsafe, the issue of sentence largely becomes academic. Nevertheless, the Court notes that the sentence imposed fell within the statutory limits and reflected consideration of both aggravating and mitigating factors. The sentence would not, standing alone, have justified appellate interference. However, once the conviction is set aside, the sentence necessarily collapses with it. E. Final Orders 84.Accordingly, this Court makes the following orders:i.The Preliminary Objection succeeds in part.ii.The Notice of Enhancement of Sentence filed by the Victim/Complainant is hereby struck out.iii.The appeal against conviction is allowed.iv.The conviction for the offence of giving false information to a person employed in the public service contrary to Section 129(a) of the Penal Code is hereby quashed.v.The sentence imposed on 5th June 2025 is hereby set aside.vi.Any fine paid pursuant to the sentence shall be refunded forthwith unless otherwise lawfully applied.vii.The Appellant shall be released forthwith unless otherwise lawfully held.viii.Each party shall bear its own costs. 85.It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 18thDAY OF JUNE 2026.WENDY K. MICHENI JUDGEIn the presence ofMr. Hamza for the AppellantMr. Magolo for the complainant Mr.Sirima for the stateMs Bebora court assistantSigned By/for:HON. LADY JUSTICE WENDY MICHENITHE JUDICIARY OF KENYA MOMBASA HIGH COURT HIGH COURT CRIMINALDATE: 2026-06-20 16:30:04