[2015] KEHC 7709 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NO.10 & 11 OF 2015

(An Appeal arising out of the conviction and sentence of HON. J.N. ONYIEGO – AG.CM delivered on 16th December 2014 in Kiambu CM.C. CR. Case No.2650 of 2011)

ALEXANDER MUTETI MUTINDA…….….…………….1ST APPELLANT

MICHAEL MUKUTI MUTHUNGU……………………….2NDAPPELLANT

VERSUS

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

JUDGMENT

The Appellants, Alexander Muteti Mutinda and Michael Mukuti Muthungu were charged with two (2) counts of forgery contrary to Section 345 as read with Section 349 of the Penal Code. The particulars of the offence were that at unknown date and unknown place within the Republic of Kenya, the Appellants, jointly, with the intention to defraud, forged the Title Deed in respect of LR. No.Athi River/Athi River/Block 1/1798 (hereinafter referred to as the suit property) in the name of Isaac Muthama Kimilu and a letter of consent for the suit property in the name of Isaac Muthama Kimilu purporting it to be a genuine letter of consent prepared and issued by the Athi River Land Control Board. The Appellants were further charged with four (4) counts of obtaining money by false pretencescontrary to Section 313 of the Penal Code. The particulars of the offence were that on various dates between 20th May 2011 and 14th June 2011, in various places in Nairobi listed in the charge sheet, the Appellants, jointly, with the intention to defraud, obtained cash from Daisy Mwendia Ben by false pretending that they were in a position to sell to her the suit parcel of land. When the Appellants were arraigned before the trial magistrate’s court, they pleaded not guilty to the charge. After full trial, they were convicted of all the counts. They were sentenced to serve three (3) years imprisonment in each count. The sentences were ordered to run concurrently. The Appellants were aggrieved by their conviction and sentence. They have filed an appeal to this court.

The Appellants filed more or less similar grounds of appeal challenging their conviction and sentence. They were aggrieved that they were convicted on the basis of evidence which was circumstantial, based on mere suspicion and which was unreliable. They took issue with the fact that the trial court had relied on insufficient evidence of the prosecution witnesses to convict them. They were aggrieved that they had been convicted on the basis of the evidence of an identification parade that was not conducted in accordance with the law. They faulted the trial magistrate for failing to take into account the evidence adduced by the document examiner which had exonerated them from the crime. They were aggrieved that the trial magistrate found that they had lied to the court in their defence yet there was no evidence to support such finding. They were finally aggrieved that they had been sentenced to serve a custodial sentence that was harsh and excessive in the circumstances. In the premises therefore, the Appellants urged the court to allow their respective appeals, quash their convictions and set aside the respective sentences that were imposed on them.

During the hearing of the appeals, the two separate appeals filed by the Appellants were consolidated and were heard together as one. The Appellants and the State filed written submission in support of their respective opposing positions. Counsel for the Appellants further made oral submission urging the court to find that the prosecution had not established a case to entitle them to be convicted on the charges brought against them. Mr. Mutua for the Appellants submitted that the document examiner who was called to testify by the prosecution had completely exonerated the Appellants from the allegations that they had forged the Title Deed and the letter of consent in respect of the suit parcel of land. They took issue with the fact that, although, the registered owner of the property, Isaac Kimilu’s statement was recorded, he was not called to testify in court. In their view, these rendered the prosecution’s case unsustainable. They accused the trial magistrate of shifting the burden of proof to the Appellants when the position in law is clear that the burden of proving any criminal charge against an accused person lay with the prosecution. The Appellants submitted that the court ought to have investigated and established who was paid the money by the complainant in the name of Isaac Kimilu. Failure to investigate this aspect of the case rendered the entire case not proven to the required standard of the law. The Appellants submitted that the prosecution failed to connect them with the loss of the money. There were too many gaps in the prosecution’s case which should be resolved in favour of the Appellants. They urged the court to allow the appeal.

Ms. Ngetich for the State opposed the appeal. On the issue of the document examiner, she submitted that the trial court had indicated that although the evidence of document examiner was not conclusive, notwithstanding, there was other evidence which supported the finding of the court. She submitted that the owner of the suit parcel of land was not involved in the transaction. The Appellants posed as the said owner. The prosecution saw no need to call the said witness. It would have added nothing to the prosecution’s case. It was the prosecution’s case that the Appellants produced a fake certificate of title of the suit parcel of land and duped the complainant into believing that they were the registered owners yet in actual fact they were not. There was clear intention to defraud the complainant. She urged the court to dismiss the appeal.

This being a first appeal, it is the duty of this court to re-evaluate and to reconsider the evidence adduced before the trial court and thereafter reach its own independent determination whether or not to uphold the conviction of the Appellant. In doing so, this court is required by law to be mindful of the fact that it neither saw nor heard the witnesses as they testified and therefore give due allowance in that regard. (See Okeno –Vs- Republic [1972] E.A. 32). In the present appeal, the issue for determination by this court is whether the prosecution adduced sufficient evidence to support the charges brought against the Appellants on charges of forgery andobtaining money by false pretencescontrary to Sections 349and313of thePenal Code.

This court has carefully re-evaluated the evidence adduced before the trial court in light of the submission made by the parties to this appeal and the grounds of appeal put forward by the Appellants. It was the prosecution’s case that the Appellants posed as owners of the suit parcel of land and purported to sell it to the complainant. According to the complainant DW1 Daisy Mwendia Ben and her husband PW2 Martin Ndwiga Kimura, they visited an area in Athi River known as Kwa Jamvu with the intention of purchasing a parcel of land. They met with PW5 Stanislaus Muhia Mairu who was a land dealer in the area. They had previously had dealings with him. PW5 showed them several parcels of land that were on sale. PW1 and PW2 were interested in purchasing the suit parcel of land. PW5 told them that he did not know the owner. He advised them to talk to the caretaker who was living on the land. They left their contacts with the caretaker. After a few days, the complainants testified that they were contacted by the 2nd Appellant who introduced himself as the owner of the parcel of land, Isaac Muthama Kimilu. PW1 and PW2 had undertaken a search at the Land Registry Machakos and confirmed that the suit parcel of land belonged to Isaac Muthama Kimilu.

PW1 was convinced that indeed the 2nd Appellant was Isaac Muthama Kimilu the registered owner of the suit parcel of land after the 2nd Appellant showed her the Title Deed in respect of the suit parcel of land. PW1 and PW2 negotiated with the Appellants for the purchase of the suit parcel of land. A deal was struck. The purchase price was agreed at Kshs.2. 6 million. The 2nd Appellant, accompanied by the 1st Appellant, insisted that they be paid half of the purchase consideration at the time of executing the contract. They entered into a contract before an advocate. The 2nd Appellant executed the conveyancing documents. The 2nd Appellant gave to the complainant the consent of the Land Control Board in respect of the suit parcel of land. The consent was purportedly issued by the Athi River Land Control Board. The Chairman of the said Board at the time, PW6 Kenneth Gitonga Murungi, denied signing or issuing the particular letter of consent in respect of the suit parcel of land. This was confirmed by the testimony of PW8 CIP Michira Ndege, the document examiner, who testified that the signature in the said letter of consent was not that of PW6.

The complainant testified that in the course of two months, she paid to both Appellants the sum of Kshs.1. 9 million. It was when she demanded that the 2nd Appellant provide his picture to enable the transfer to be effected that the 2nd Appellant refused to take her calls. The 1st Appellant too did a disappearing act. The complainant’s suspicion was aroused. She went to Machakos Land Registry. She met with PW3 Niko Nzuki Mutiso, the Land Registrar Machakos. She showed him the Title Deed that was given to him by the Appellants. On perusing the Title Deed, PW3 realized that it was a forgery. The signature in the Title Deed and the seal were not the official ones recognized at the Land Registry. PW3 confiscated the fake Title Deed. He produced it in court as an exhibit.

When the complainant realized that she had been conned, she reported the matter to the police. PW10 Corporal Stephen Wachira and PW11 Corporal Gerishon Njue investigated the case. In the course of their investigations, they established that the Appellants had used a forged title deed and a forged letter of consent to obtain money from the complainant under the guise that they were the owners of the suit parcel of land and were in a position to sell it. The Appellants were arrested and were positively identified by PW1 and PW2. In the case of the 1st Appellant, he was identified in an identification parade conducted by PW9, SP Grace Njoki Ndirangu.

When the Appellants were put to their defence, they denied participating in the crime. They insisted that they were victims of mistaken identity as they did not know or had not come into contact with the complainant and her husband.

This court has subjected the evidence adduced by the prosecution witnesses to fresh scrutiny. Does the said evidence establish the charges of forgery and obtaining money by false pretences to the required standard of proof beyond any reasonable doubt?The prosecution was required to establish that the Appellants forged or caused to be forged the Title Deed of the suit parcel of land and the letter of consent with a view to obtaining money from the complainant by falsely pretending that they were in a position to sell to them the said parcel of land. In that endeavour, the prosecution first established that the 2nd Appellant Michael Mukuti Muthungu was not the person he was purporting to be when he represented to the complainant that he was Isaac Muthama Kimilu. This court holds that both Appellants were positively identified by the complainant and her husband because they dealt with them at close quarters for a period of more than two months before the Appellants made their disappearing act. Secondly, the prosecution established that the Appellants presented to the complainant the forged Title Deed with a view to inducing her into paying the money. As a further inducement, the Appellants presented to the complainant a forged letter of consent in respect of the suit parcel of land. To conceal their actual identity, the Appellants insisted that they be paid in cash instead of being paid through their respective bank accounts.

The Appellants complained that the trial magistrate did not take into account the fact that the owner of the suit parcel of land was not called to testify in the case. This court agrees with the prosecution that it was not necessary in the circumstances of this case to call the owner of the suit parcel of land to testify in court because the complainant and her husband had established, to the satisfaction of the court, that they had paid the money to the Appellants, specifically because the 2nd Appellant purported to be Isaac Muthama Kimilu the owner of the suit parcel of land. With the greatest respect to the Appellants, this court does not agree with the thrust of their submission that in order to establish its case, the owner of the suit parcel land who was not party to the entire fraudulent transaction should have been called as a witness.

As regard the evidence of the document examiner, this court holds that that evidence did indeed establish that the two documents that were presented to the complainant and her husband were not genuine. These documents were forgeries. The documents in question were the Title Deed and the letter of consent purportedly issued by the Athi River Land Control Board. PW3, the Land Registrar and PW6, the Chairman of the said Land Control Board confirmed that the two documents were indeed forgeries. It was not necessary for the prosecution to establish who actually made the documents if it managed to establish that the Appellants presented the said documents to the complainant with a view to inducing her to pay them the said sum of money as a consideration for the purported purchase of the suit property. The appellants were beneficiaries of the said forgeries. That ground of appeal fails.

Taking into consideration the totality of the evidence adduced by the prosecution witnesses, this court cannot fault the decision reached by the trial court that the prosecution did indeed prove to the required standard of proof that the Appellants participated in the forgery of the two documents with a view to duping the complainant to pay them money for the purported sale of the suit property. The respective defences of the Appellants constitute mere denials that does not dent the otherwise strong evidence adduced by the prosecution witnesses. The appeal against conviction lacks merit and is hereby dismissed.

On sentence, this court is of the view that the sentence meted out by the trial court fitted the crime. If the Appellants had offered to refund the money that they had unlawfully obtained from the complainant, this court would have treated them with leniency. However, since the Appellants are still adamant that they did not take the money and this court having found as a fact that they took the money, they shall serve the custodial sentence imposed by the trial court. The appeal on sentence is similarly dismissed. The Appellants shall serve the sentence imposed by the trial court. It is so ordered.

DATED AT NAIROBI THIS 1ST DAY OF OCTOBER 2015

L. KIMARU

JUDGE