[2010] KEHC 2816 (KLR)
The court found that the convictions for forgery were unsustainable because it is not legally possible for several people to jointly forge a single signature, as this would require each person to physically participate in the act of writing the signature, which is implausible. Furthermore, the evidence of the...
Source-derived case information.
- Citation
- [2010] KEHC 2816 (KLR)
- Parties
- Appellant: Bernard Kamuchere Rubari; Appellant: Winfred Wambui Nyaga; Appellant: Ephantus Njega George; Appellant: Elias Gatimu Kumunga; Appellant: Geoffrey Muriuki Murage; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 161,162,163,164 & 165 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Forgery, Joint Criminal Liability, Evidence Evaluation, Quashing Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Kamuchere Rubari
Appellant
Winfred Wambui Nyaga
Appellant
Ephantus Njega George
Appellant
Elias Gatimu Kumunga
Appellant
Geoffrey Muriuki Murage
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellants could be lawfully convicted of jointly forging a signature.
- 2 Whether there was sufficient evidence to support convictions for forgery and theft.
Ratio Decidendi
The court found that the convictions for forgery were unsustainable because it is not legally possible for several people to jointly forge a single signature, as this would require each person to physically participate in the act of writing the signature, which is implausible. Furthermore, the evidence of the document examiner did not attribute the forged signature to any of the appellants. Regarding the counts of theft, the court held that there was no documentary evidence to show that any money was stolen by the appellants. The state properly conceded the appeal on these points of law and fact. Consequently, the convictions were quashed and the sentences set aside for all appellants.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed for all appellants.
- The convictions on all counts are quashed.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Criminal Appeal 161,162,163,164 & 165 of 2007
BERNARD KAMUCHERE RUBARI………………………......…………………………..APPELLANT
VERSUS
REPUBLIC…………………………………………………………….…………………..RESPONDENT
AND
CRIMINAL APPEAL NO. 162 OF 2007
WINFRED WAMBUI NYAGA…………………………………...………………………..APPELLANT
VERSUS
REPUBLIC…………………………………………………………………………………RESPONDENT
AND
CRIMINAL APPEAL NO.163 OF 2007
EPHANTUS NJEGA GEORGE……………………………………....……………………APPELLANT
VERSUS
REPUBLIC………………………………………………………………………………..RESPONDENT
AND
CRIMINAL APPEAL NO. 164 OF 2007
ELIAS GATIMU KUMUNGA……………………………………...……………………..APPELLANT
VERSUS
REPUBLIC………………………………………………………….……………………RESPONDENT
AND
CRIMINAL APPEAL NO. 165 OF 2007
GEOFFREY MURIUKI MURAGE…………………………….....……………………..APPELLANT
J U D G M E N T
Criminal Appeals No. 161/07,162/07, 163/07, 164/07 and 165/07 were all consolidated and heard together as they emanate from the same trial. The 5 Appellants had been charged together with various charges before the Senior Resident Magistrate Kerugoya. After a full trial that lasted 5 years, they were found guilty and convicted on various counts and sentenced to 1 year imprisonment on each count which sentence was nonetheless to run concurrently.Being aggrieved by the conviction and sentence, they each filed separate appeals which as stated earlier were consolidated and heard together.They raised 10 grounds of appeal which I nonetheless find unnecessary to replicate for purposes of this Judgment.The learned state counsel conceded the appeal and I must say rightly so.I do not therefore need to re-evaluate the evidence tendered before the trial court as the appeal was conceded on a point of law.Among the charges facing the appellants before the trial court on which they were convicted were counts of forgery in counts II, and IV.In Counts 2, they were all charged with “jointly with others not before court” with forging the signature of one “Mucira Kabutu” As rightly submitted by Mr. Magee for the appellants and conceded by Mr. Omwega for the state, it is not possible for several people to jointly forge a signature together.Did they hold the pen together?Did each forge part of the signature and left the other to finish it?Indeed even the evidence of the documents examiner did not attribute the questioned signature to any of the appellants.
This evidence was that the signature was not that of the account holder.That was not to say that the signature had been made or forged by any of the appellants.The conviction on the forgery counts was not therefore supported by any law or facts.The same is unsustainable.
On the other 2 counts i.e counts 3 and 5, as conceded by the learned state counsel, there was no documentary evidence adduced to show that any money was stolen by the appellants.
For these reasons, I find that the concession of the appeal by the state was proper and within the law.The convictions against all the appellants are unsustainable.This appeal therefore succeeds.I allow the same, quash the conviction on all the counts in respect of all the appellants and set aside the sentence imposed by the learned trial magistrate.
Delivered, signed and dated at Embu this 6th day of May 2010
W. KARANJA
JUDGE