https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9418

Francis v Republic (Criminal Appeal E158 of 2025) [2026] KEHC 9418 (KLR) (Crim) (1 July 2026) (Judgment) Neutral citation: [2026] KEHC 9418 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Criminal Appeal E158 of 2025 DR Kavedza, J July 1, 2026 Between Arthur Kenga Francis Appellant and Republic Respondent (Being an appeal against the conviction and sentence delivered by Hon. CM Njagi PM on 10th November 2025 at Kibera Chief Magistrate’s Court criminal case no. 1548 of 2024 Republic vs Arthur Kenga Francis) Judgment 1.The appellant was charged, and after a full trial convicted for the offence of obtaining money by false pretences contrary to section 313 of the Penal Code. The particulars of the offence as per the charge sheet were that 14th March 2024 at an unknown time within Nairobi County, jointly with another not before this court and with the intent to defraud, obtained cash Kshs. 768,000 from CET Industrial Limited by falsely pretending that he was in a position to deliver eight (8) map trimmers, a fact that he knew was false or untrue. He was sentenced to serve one (1) year imprisonment. 2.Being dissatisfied he filed an appeal challenging the conviction and sentence. In his petition of appeal, he averred that the learned magistrate erred in law and fact by disregarding the provisions of Article 159 of the Constitution by issuing a conviction and sentence against the appellant despite the matter having been settled before the Small Claims Court in Milimani SCCCOMM/E13543/2024. He urged the court urged the court to quash the conviction and set aside the sentence imposed. 3.This is the first appellate court, and in Okeno v. R [1972] EA 32, the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence which was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify. 4.PW1, Killian Nzioki Muli, testified that in February 2024 he met the appellant, who, after discussions, informed him that he could supply map trimmers. Relying on that representation, PW1 remitted Kshs. 768,000 to the appellant. The goods were never delivered. Instead, the appellant offered various excuses for the delay and, when confronted before his employer, Mr Kartik, denied knowing PW1. In cross-examination, PW1 stated that he was a representative of CET Industrial Limited. He confirmed that although the purchase emails were addressed to Pius Amollo, the appellant was copied in the correspondence and remained the principal point of contact throughout the transaction. 5.PW2, PC Matthew Ndatho, the investigating officer, testified that upon receiving the complaint, he summoned PW1 to record a statement. He corroborated PW1's evidence and produced the documentary exhibits relied upon by the prosecution, namely the complainant's letter of employment, the certificate of incorporation of CET Industrial Limited, a court order, the complainant's national identity card, the appellant's national identity card, the complainant's KRA PIN certificate, the appellant's KRA PIN certificate, Equity Bank account opening documents, and the relevant bank statement. 6.In cross-examination, PW2 testified that Pius Amollo had been arrested but was released on cash bail at the police station. At the close of the prosecution case, the trial court found that a prima facie case had been established and placed the appellant on his defence. The appellant, testifying as DW1, stated that he understood the charge facing him. He further testified that he had refunded PW1 Kshs. 240,000 and expressed his willingness to refund the outstanding balance of approximately Kshs. 500,000. 7.This court has re-evaluated the facts of this case. Section 313 of the Penal Code (Cap 63) Laws of Kenya provides that;“Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanour and is liable to imprisonment for three years.” 8.To sustain a conviction for obtaining by false pretences, the prosecution was required to prove that the appellant obtained something capable of being stolen by means of a false pretence and with intent to defraud. 9.On the first element, the appellant admitted receiving money from the complainant's company on the understanding that he would supply map trimmers. He failed to deliver the goods, offered no satisfactory explanation for the failure, and later denied knowing the complainant when confronted. 10.A false pretence is a representation made by an accused person knowing it to be false. The appellant failed to account for the non-delivery of the goods, denied the transaction when confronted, and only made a partial refund after both criminal and civil proceedings had been commenced. The evidence therefore established the false pretence and the requisite intent to defraud. 11.Having considered the entire evidence and the appellant's defence, I am satisfied that the prosecution proved its case beyond reasonable doubt. The conviction was therefore proper. 12.The appellant further contended that the dispute was civil in nature. That argument is without merit. Section 193A of the Criminal Procedure Code expressly provides that the existence of civil proceedings does not bar or delay criminal proceedings arising from the same facts. In Director of Public Prosecutions v Coco & 8 Others [2026] KECA 928 (KLR), citing Dande & 3 Others v Director of Public Prosecutions & 2 Others, Petition No. 4 of 2022 [2022] KESC 23 (KLR), the Supreme Court stated:“[104] The conclusion we draw from the above provision is that both civil and criminal jurisdictions can run parallel to each other and that neither can stand in the way of the other unless either of them is being employed to perpetuate ulterior motives or generally to abuse of the process of the court in whatever manner.” 13.The record does not disclose any evidence that that the criminal proceedings were actuated by an ulterior motive or amounted to an abuse of the court process. The parties had no prior relationship beyond the transaction giving rise to the charge. The prosecution was therefore properly instituted. 14.In the premises, the conviction of the trial court was proper and is upheld. 15.The appellant was sentenced to one year's imprisonment. Section 313 of the Penal Code prescribes a maximum sentence of three years' imprisonment. The sentence imposed was therefore lawful and cannot be faulted. 16.Accordingly, the appeal lacks merit and is dismissed in its entirety.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 1ST DAY OF JULY 2026D. KAVEDZAJUDGEIn the presence of:Appellant AbsentMs. Otiya for the RespondentMr. Kyalo for the VictimKarimi Court Assistant