[1998] KEHC 147 (KLR)
The High Court found that the evidence did not support the conviction for either obtaining by false pretences or stealing. The transaction between the appellant and the complainant was based on a written agreement for a joint business venture, with both parties contributing funds. The appellant's failure to deliver...
Source-derived case information.
- Citation
- [1998] KEHC 147 (KLR)
- Parties
- Appellant: Annah Nzilani Nzuki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 642 of 1998
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction and sentence set aside; appellant to be released unless otherwise lawfully held
- Legal Topics
- False Pretences, Stealing, Business Disputes, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Annah Nzilani Nzuki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the evidence established the offence of obtaining money by false pretences under section 313 of the Penal Code.
- 2 Whether the conviction for stealing under section 275 of the Penal Code was supported by the evidence.
- 3 Whether the dispute between the parties was criminal or civil in nature.
Ratio Decidendi
The High Court found that the evidence did not support the conviction for either obtaining by false pretences or stealing. The transaction between the appellant and the complainant was based on a written agreement for a joint business venture, with both parties contributing funds. The appellant's failure to deliver goods after receiving the money, coupled with her explanation of illness and hospitalization, did not amount to criminal conduct under the Penal Code. The trial magistrate erred in convicting the appellant for stealing, as the prosecution failed to prove the essential elements of the offence. The dispute was civil in nature, and the criminal process was improperly invoked. The...
Court Disposition
appeal allowed; conviction and sentence set aside; appellant to be released unless otherwise lawfully held
Orders
- The conviction and sentence of 24 months imprisonment are set aside.
- The appellant is to be set at liberty forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI APPELLATE SIDE CRIMINAL APPEAL NO. 642 OF 1998
(From Original Conviction/Sentence and in Criminal Case No. 5705 of 1997 of the Principal Magistrate’s Court at Kibera: Omido (Mrs))
ANNAH NZILANI NZUKI.........................................APPELLANT
Versus
REPUBLIC.................................................................RESPONDENT
Coram: Osiemo J. Appellant - unrepresented present Respondent - Mrs. Shikuku for the State Counsel Mr. Onduma - Court Clerk
JUDGEMENT
The appellant was charged with the offence of obtaining money by false pretences contrary to Section 313 of the Penal Code. After trial the learned magistrate convicted her with stealing contrary to Section 275 of the Penal Code and sentenced her to 24 months imprisonment. Her appeal to this court is against both conviction and sentence.
Briefly the facts of the prosecution case were that the appellant and the complainant has entered into an agreement to start a business of buying and selling maize and beans. This agreement was reduced into writing. Each had to pay a contribution of Sh.150,000/-. It was the responsibility of the appellant to go and purchase the goods.The complainant gave the appellant cash Sh.150,000/- as agreed to go and buy the goods and she was expected back within 2 or 3 days. The appellant never showed up with the goods. The complainant went to the house in Machakos to find out what had happened with the goods the appellant had gone to purchase but the appellant was nowhere to be seen. PW1 decided to report the matter to the police and the appellant was arrested and charged with this offence.
The appellant in her defence admitted that she had entered into a written agreement with PW1 to start a business of buying and selling maize. It was her responsibility to do the purchasing of the said maize and beans. She admitted to have received the alleged sum of Sh.150,000/- from PW1 but she was taken ill before she had bought the goods. She was admitted in hospital while she was in hospital, PW1 visited her home and missed her. When she came out of the hospital she was arrested by the police and charged with this offence.
The learned state counsel does not support the conviction and the ground that the dispute between the appellant and PW1 was purely of civil nature.
The learned trial magistrate rightly made a finding that the offence of obtaining money by false pretences contrary to section 313 of the Penal Code as charged had not been proved. Since there was a written agreement between the appellant and PW1 and Sh.150,000/- paid by PW1 to the appellant was her contribution towards the business. But the trial magistrate erred when she convicted the appellant with the offence under section 275 of the Penal Code. The evidence adduced in court did not prove an offence under section 275 of the Penal Code.
It would be unsafe to allow the conviction and set a side the sentence to 24 months imprisonment imposed by the trial court. I order that the appellant be set at liberty forthwith unless otherwise lawfully held.
Dated and delivered at Nairobi this 21st day of July, 1998
J.L.A. OSIEMO
JUDGE