https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7841

Musyimi v Republic (Criminal Appeal E097 of 2024) [2026] KEHC 7841 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7841 (KLR) Republic of Kenya In the High Court at Machakos Criminal Appeal E097 of 2024 AN Ongeri, J June 4, 2026 Between Benedict Nzau Musyimi Appellant and Republic Respondent (Being on appeal from the judgment of Hon R. Gitau(RM) in Mavoko MCCR NO. E710 of 2023 delivered on 25/10/2024) Judgment 1.The trial court delivered a judgment on 25th October 2024 in Mavoko MCCR CASE NO. E710 OF 2023 where the appellant, Benedict Nzau Musyimi, was the first accused person. 2.The appellant was charged with the offence of obtaining by false pretences in that on 3rd October 2012 and 10th October 2012, he obtained a total of Kshs. 1,000,000 from the complainant, James Kahura John, by pretending to be in a position to sell him two plots of land, H7 and H6. 3.The appellant was also charged with conspiracy to defraud alongside Richard Wambua Musyimi and John Gitau Ngumi, as well as forgery for purportedly signing their names on the sale agreements. 4.The trial court found that the appellant was not guilty of the two counts of conspiracy to defraud, finding that the prosecution had not produced any evidence of a secret pact or agreement between the appellant and the other accused persons. 5.Similarly, the appellant was found not guilty of the two forgery counts, as the court determined that the prosecution failed to prove the requisite intent, noting that the witnesses who saw the appellant sign the agreements knew he was acting in a representative capacity rather than pretending to be the other individuals. 6.However, the trial court convicted the appellant on both counts of obtaining money by false pretences. 7.The court accepted the testimony of prosecution witnesses that the appellant had received Kshs. 500,000 in cash for each plot at a place called Food Palace in Mlolongo, and that the falsehood of his representation was proved when the complainant was unable to take peaceful possession of the plots. 8.The appellant’s defence of mistaken identity was rejected, particularly because the second accused person’s admission that he offered the complainant an alternative plot on the suspicion that his brother, the appellant, might have been involved contradicted the appellant’s claim of never having engaged in land sales. 9.Consequently, the trial court sentenced the appellant to a fine of Kshs. 500,000 on each of the two conviction counts, with the sentences to run consecutively, and in default of either fine, imprisonment for one year. 10.The court also ordered that the appellant’s cash bail be refunded. 11.The appellant has appealed against the said judgment on the following grounds;i.That the magistrate erred by finding the Appellant guilty of obtaining money by false pretences based on prosecution evidence that did not support a conviction.ii.That the magistrate erred in declaring the conviction safe when neither the forensic document examiner nor the investigating officer produced any evidence linking the Appellant to the two sale agreements used to allegedly obtain the money—even though the investigator took specimen writing from the Appellant.iii.That the magistrate erred by believing prosecution witnesses whose testimonies contained glaring omissions, contradictions, and lacked material corroboration.iv.That the magistrate erred by failing to give due consideration (or any consideration at all) to the Appellant's evidence.v.That the magistrate erred in law and fact by failing to apply her mind properly to the matter.vi.That overall, the magistrate's decision was overwhelmingly against the weight of the applicable laws and the evidence presented. 12.The parties filed written submissions as follows; The appellant, Benedict Nzau Musyimi, submitted through his learned counsel that he was convicted in Mavoko Chief Magistrates Criminal Case No. E.710 of 2023 on two counts of obtaining money by false pretences and sentenced to one-year imprisonment per count, or a fine of 500,000 Kenyan shillings per count. 13.He has appealed against both conviction and sentence. He submitted that the trial magistrate erred in law and fact by convicting him based on prosecution evidence that did not meet the required standard of proof beyond reasonable doubt. 14.The appellant contends that the prosecution failed to prove the essential elements of obtaining by false pretences, including that he made a false representation, that he knew it was false, and that he intended to defraud. 15.The mainl allegation was that he received 500,000 shillings from PW2 on behalf of PW1 for two plots, H6 and H7, after signing sale agreements as an agent for the purported owners. 16.However, the appellant notes that no tangible evidence linked him to the alleged agreements and that the forensic document examiner did not connect his handwriting or signature to the documents, the documents produced were titled “Authority to Sell” rather than sale agreements, and they did not bear his name or identification number. 17.The prosecution also did not produce telephone call logs, acknowledgements of payment, or receipts, despite the large cash amount involved. 18.The investigating officer admitted there was no evidence of money movement from PW1 to PW2. 19.The appellant denied signing any agreements, receiving any money, or knowing the buyers and sellers except for one named Richard Wambua, whom he knew but denied acting as his agent. 20.The appellant points to contradictions in the prosecution’s case, such as whether the seller was “Gitau” or the appellant himself, and notes that PW3’s testimony that he witnessed the payment did not appear in his police statement, suggesting it was an afterthought. 21.The trial court, according to the appellant, placed undue weight on PW3’s evidence and on the fact that fencing posts for one plot were uprooted by Richard Wambua, even though the appellant was not Wambua. 22.The appellant also argues that the trial court failed to properly consider his sworn defence, which was consistent and unshaken on cross-examination, and did not apply the principle that an accused’s uncontroverted explanation should raise reasonable doubt. 23.By disregarding the absence of forensic evidence, documentary proof of payment, and any link between the appellant and the alleged fraud, the trial court allegedly relied on suspicion and conjecture rather than proof beyond reasonable doubt. 24.Concluding that the decision was against the weight of the evidence and the law, the appellant prays that the appeal be allowed, and the conviction and sentence be set aside. 25.The respondent submitted that the appeal is brought by Benedict Nzau Musyimi against his conviction and sentence delivered on October 25, 2024, by the Mavoko Chief Magistrate's Court in Case No. E710 of 2023. 26.Originally, the appellant and others faced six counts in the lower court. These included two counts of conspiracy to defraud under Section 317 of the Penal Code, which alleged that on October 3, 2012, and October 10, 2012, the accused conspired to defraud James Kahura John of Ksh 500,000 for each of two plots, designated as H7 and H6, within land parcel number 1507/7. 27.The remaining charges involved two counts of obtaining money by false pretenses and two counts of forgery under Section 345 of the Penal Code for allegedly forging signatures on sale agreements. 28.At the conclusion of the trial, the lower court acquitted all the other accused persons. The appellant was also acquitted on four of the counts but was convicted on two counts of obtaining money by false pretences, specifically the third and fourth charges. 29.Dissatisfied with this decision, the appellant filed a petition of appeal on October 29, 2024. 30.The respondent submitted that the role of the High Court as a first appellate court is to re-evaluate and analyze the trial court's evidence to reach its own conclusion, while giving due weight to the trial court's findings. 31.Addressing the appellant's primary grounds of appeal, he explains that the appellant challenged the conviction due to a lack of forensic document examination and alleged contradictions in the prosecution's case. 32.In response, the prosecution submitted that the absence of forensic evidence does not damage a case if strong oral testimonies are present, as the legal standard allows facts to be proved by credible human narration rather than scientific proof alone. 33.The respondent further submitted that a prosecution witness, PW5, testified that he was advised against subjecting the appellant's specimen signature to forensic analysis, though the exact reasons for this advice remained unexplained during cross-examination. 34.The prosecution asserts that while the lack of forensic evidence and flaws in the investigation led to the appellant's acquittal on the conspiracy and forgery charges, it does not clear him of obtaining money by false pretences. 35.The prosecution maintains that the evidence from witnesses PW2 and PW3 firmly placed the appellant at Mlolongo, where the money for the two plots was exchanged. 36.These witnesses confirmed that the purported sale agreement was authored in their presence and that the appellant received Ksh 500,000 for each plot. 37.The prosecution argues that this provides sufficient proof of the receipt of money through false pretences, and that the consistent testimonies of multiple witnesses strengthen the case, overcoming any lack of scientific corroboration. 38.The prosecution concludes that it provided sufficient evidence to satisfy the legal ingredients of the offence of obtaining money by false pretences. 39.The Respondent urges the High Court to uphold the conviction and sentence passed by the trial court. 40.In line with the duty of a first appellate court as established in Okeno v Republic [1972] EA 32, this court has re-evaluated the evidence afresh. 41.The following issues arise for determination in this appeal;i.Whether the prosecution proved the offence of obtaining money by false pretences beyond a reasonable doubt;ii.Whether the trial court erred in its evaluation of the prosecution evidence and the appellant’s defence; andiii.Whether the conviction and sentence should be upheld or set aside. 42.This is the first appeal, and this court is therefore obliged to re-evaluate the evidence adduced before the trial court and arrive at its own independent conclusion, while bearing in mind that it did not have the advantage of hearing and seeing the witnesses testify. 43.This principle was firmly established in Okeno v Republic [1972] EA 32 and has been consistently followed by the Court of Appeal. 44.The appellant, Benedict Nzau Musyimi, was convicted on two counts of obtaining money by false pretences contrary to Section 313 of the Penal Code. 45.The essential elements of this offence, as derived from Sections 313 and 312 of the Penal Code, are as follows:I.That the Accused person obtained something capable of being stolen;II.That the Accused person obtained it through a false pretence; andIII.That the Accused person had the intention to defraud. 46.The definition of a false pretence under Section 312 requires a representation of a past or present fact, made by words, writing, or conduct, which the maker knows to be false. 47.In the instant case, the prosecution’s case rested primarily on the testimony of witnesses PW2 and PW3, who stated that the appellant received Kshs. 500,000 in cash for each of the two plots at a place called Food Palace in Mlolongo. 48.The trial court accepted this testimony and concluded that the appellant’s representation that he was in a position to sell the plots was false because the complainant was subsequently unable to take peaceful possession. 49.The court also rejected the appellant’s defence of mistaken identity, partly due to evidence from the second accused person which contradicted the appellant’s claim of never having engaged in land sales. 50.However, a careful re-evaluation of the entire record reveals significant gaps in the prosecution’s case that the trial court failed to properly consider. 51.The offence of obtaining by false pretences requires proof of a false representation of an existing or past fact. 52.The appellant was acquitted of the charges of conspiracy to defraud and forgery, with the trial court specifically finding that the prosecution failed to prove that the appellant pretended to be the owners of the plots or that there was a secret pact to defraud. 53.The evidence linking the appellant to the actual sale agreements is weak at best. The appellant’s contention that the forensic document examiner did not connect his handwriting or signature to the disputed agreements is a serious matter. 54.The failure to produce any forensic evidence, despite the investigating officer taking specimen writings from the appellant, undermines the prosecution’s assertion that the appellant was the one who signed the agreements as the seller or agent. 55.Furthermore, the documents presented were titled “Authority to Sell” and did not bear the appellant’s name or identification number, which casts doubt on the nature of his role and the precise representation he is alleged to have made. 56.The prosecution’s attempt to downplay the absence of forensic evidence by arguing that oral testimony alone can suffice is not an absolute proposition. 57.While it is true that the offence can be proved by credible oral narration, such testimony must be consistent, believable, and corroborated on material particulars, especially where large sums of money are involved. 58.In this case, the appellant pointed to glaring omissions and contradictions in the prosecution’s case, including inconsistent accounts of whether the seller was “Gitau” or the appellant himself. 59.Additionally, the lack of any documentary proof of payment, such as receipts, bank statements, or M-Pesa records, for a total of Kshs. 1,000,000 is a major lacuna. 60.In the modern era, where financial transactions almost always leave a trail, the complete absence of such evidence, coupled with the investigating officer’s admission that there was no evidence of money movement, weakens the prosecution’s narrative of a cash transaction at a public place. 61.The trial court appears to have placed undue weight on the fact that the complainant was unable to take peaceful possession of the plots and that posts were uprooted by Richard Wambua. 62.However, the appellant was not Richard Wambua, and this act by a third party does not, by itself, prove that the appellant’s initial representation was false. 63.Furthermore, the trial court is faulted for failing to give due consideration to the appellant’s sworn defence. 64.While a trial court is not obliged to believe an accused’s defence if it is disproved by cogent prosecution evidence, it must subject it to proper analysis. 65.The appellant gave a consistent and unshaken defence, denying any knowledge of the agreements or receipt of any money. 66.The trial court’s rejection of this defence appears to have been based on a single contradictory piece of evidence, the second accused’s admission, rather than a holistic analysis of the entire case. 67.The principle that an accused’s uncontroverted explanation, if credible, should raise a reasonable doubt in the prosecution’s case appears to have been overlooked. 68.The prosecution’s evidence failed to establish, beyond a reasonable doubt, that the appellant knew he was not in a position to sell the plots at the time he allegedly received the money. 69.The evidence leans more towards a poorly documented and failed land transaction, which is a civil matter, rather than a criminal act of fraud. 70.The appeal is allowed. The trial court’s conviction of the appellant is unsafe and cannot stand. 71.The prosecution did not discharge its burden of proving all the elements of the offence of obtaining money by false pretences beyond a reasonable doubt. 72.Accordingly, the conviction on both counts of obtaining money by false pretences is hereby quashed. 73.The sentence of a fine of Kshs. 500,000 per count (or in default, one-year imprisonment) is set aside in its entirety. 74.74. The appellant, Benedict Nzau Musyimi, is acquitted of all charges. 75.This court makes final Orders as follows;i.Any fine paid by the appellant shall be refunded to him in full.ii.The cash bail that the trial court ordered to be refunded shall be released to him forthwith. 76.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE 2026ASENATH ONGERIJUDGEIn the presence ofThe Applicant present in the office of his AdvocateMrs Mwangangi for the AppellantPC Mr Mangare for the StateChrispine - Court Assistant