[2022] KEHC 11883 (KLR)

Bidhu v Republic (Criminal Appeal E012 of 2021) [2022] KEHC 11883 (KLR) (17 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11883 (KLR)

Republic of Kenya

In the High Court at Marsabit

Criminal Appeal E012 of 2021

JN Njagi, J

May 17, 2022

Between

Abudho Bidhu

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence by C. Ombija, RM, in Marsabit PM`s Court Criminal Case No. E453 of 2021 delivered on 18/10/2021)

Judgment

1. The appellant was convicted on his own plea of guilty for the offence of obtaining money by false pretences contrary to section 313 of the Penal Code and sentenced to serve 4 years imprisonment. The particulars of the offence were that on diverse dates between 12th and August 16, 2021 at Majengo village in Marsabit Central Sub-County within Marsabit County, with intent to defraud obtained from Diro Konchoro Hirbo the sum of Ksh. 550,000/- by falsely pretending to buy her 14 camels with the said sum of Ksh550,000/-.

2. The appellant was aggrieved by the conviction and the sentence and filed the instant appeal on the following grounds:1)That, the learned trial magistrate erred in law by shifting the burden of proof on the appellant whereas the same is always on the part of the respondent.2)That the learned trial magistrate erred in law and fact in failing to properly consider and analyze all the evidence adduced thereby convicting the appellant against the weight of evidence.3)That the learned trial magistrate erred in fact and misdirected himself in finding that Kshs. 99,000/= which was taken from the appellant by the police officers and handed over to the honorable court belongs to complainant yet the same belongs to the appellant.4)That the learned trial magistrate erred in law and fact by disregarding the appellant mitigation and the fact that he was a first offender.5)That the learned trial magistrate erred in law and fact by failing to consider appellant’s defense that he (appellant) never declined to compensate the complainant of the money obtained from him.6)That the learned trial magistrate never considered that the obtainer was released on bond from police station.7)That the learned trial magistrate erred when he failed to consider that the appellant and the complainant reached an amicable agreement to compensate the complainant on the same.8)That the sentence meted by the lower court was harsh and excessive.

3. The appeal was canvassed by way of written submissions. The appellant submitted that the trial court erred in making him to undergo the trial when he was sick as depicted by the statement of the prosecutor on 7/9/2021 that the accused was in remand prison but sick. That the appellant was not mentally stable on the day he took plea which was the reason he did not challenge the charge. That the court did not ascertain whether he was fit to take plea before it entered a plea of guilty.

4. The appellant submitted that the trial court failed to consider his mitigation that he had entered into an agreement with the complainant for compensation of the money. That the trial court erred in making an order for money recovered of Ksh.99,000/- to be handed over to the complainant as the money belonged to the appellant`s wife.

5. The state opposed the appeal through the submissions of the Senior Principal Prosecution Counsel, Mr. W. Ochieng. He submitted that the plea was unequivocal. That all elements of plea taking were satisfied as enumerated in the case of Adan v Republic …………… That the charge and the particulars thereof were read to the appellant in Borana language which was his language of choice and which he stated to understand. That his response as recorded was that the charge was true. That thereafter the facts were read to him in the same language to which he responded that the facts were correct.

6. It was submitted that the charge was taken on 30/8/2021 and the appellant was placed in custody for 18 days after conviction before sentencing but he never changed his mind on the plea. That this overview indicated that the plea was unequivocal. The state in this respect relied on the case of Ombena v Republic (1981) KLR 450.

7. It was submitted that there was nothing on record to indicate that the appellant was unwell on the date of plea. That the prosecution only mentioned that the appellant was sick 7 days after the plea when the appellant failed to be produced in court. That the ground does not hold water.

8. The state submitted that the appellant accepted the facts to be true and did not challenge the production of the money as exhibit. That he proceeded to seek in mitigation to repay the complainant her money. That the contention that the money ought to be returned to him is an afterthought and has no basis.

9. It was submitted that as the plea was unequivocal, this court can only entertain an appeal on sentence. However, that the sentence meted out by the trial court was fair, just and in tandem with the provisions of section 313 of thePenal Code.

Analysis and determination – 10. This being a first appeal the duty of the court is to analyze and re-evaluate afresh the evidence adduced at the lower court and draw its own independent conclusions – see Okeno vs. Republic (1972) EA 32.

11. The Court of Appeal in Adan v Republic[1973] EA 445 laid down the manner in which pleas of guilty should be recorded and the steps which should be followed wherein it held that:i.The charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands;ii.The accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded;iii.The prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts;iv.If the accused does not agree with the facts or raises any question of his guilt his reply must be recorded and change of plea entered;v.If there is no change of plea a conviction should be recorded and a statement of the facts relevant to sentence together with the accused’s reply should be recorded.”

12. I have perused the record of the lower court. The appellant challenges the plea on the ground that he was sick on the day the plea was taken and that he was unfit for trial. The court record indicates that the plea was taken on 30/8/2021. After the appellant convicted on his own plea of guilty having admitted the facts that were read out to him, the court called for a pre-sentencing report and fixed the matter for mention on 7/9/2021. On that day is when the prosecution counsel reported that the appellant had not been produced from prison because he was sick. The appellant was produced in court on 20/9/2021. The pre-sentencing report was not yet ready but the appellant was asked to mitigate. He mitigated that he was willing to pay back the money. The matter was then fixed for mention on 18/10/2021 to await the pre-sentencing report. Come that day the report was presented to the court and the court proceeded to sentence the appellant.

13. It is clear from the record of the court that there is no time that the appellant complained to the court that he was unwell. He was in court on the day that he was reported to be unwell. When he was presented to the court on the next mention date on 20/9/2021, he never raised any complain that he was sick. He instead proceeded to mitigate when he was given an opportunity to do so. There is thereby no substance in the contention by the appellant that he was unfit to take plea on the day the plea was taken. The contention is dismissed.

14. The above holding notwithstanding, it was the duty of the trial court to satisfy itself that the charge levelled against the appellant disclosed an offence. The appellant was facing a charge of obtaining money by false pretence contrary to section 313 of the Penal Code. The section provides as follows:“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 misdemeanor and is liable to imprisonment for three years.”

15. False pretence is defined in Section 312 of the Penal Code as follows:-“Any representation, made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false or does not believe to be true, is a false pretence.

16. The essential ingredients of the offence under the above sections are:-(1)The act of obtaining something capable of being stolen.(2)Obtaining the thing by false pretences.(3)Obtaining the thing with intent to defraud.

17. The facts of the case against the appellant were that he obtained the sum of Ksh.550,000/- from the complainant by falsely promising to buy her camels with the stated sum of money. The appellant was therefore to go and buy the complainant the camels and deliver them to her.

18. It is trite law that a future representation does not amount to a false pretence. For a representation to be false it has to relate to the present or the past. In the case of Elisha Nyagaya Onduro v Republic [2016] eKLR J.A.Makau J. held as follows:17. From the above it is therefore clear that the offence of obtaining by false pretences does not relate to future events. This section unfortunately proclaims that the representation should be of either past or present fact but not future fact. The case law points to that position. In the case of Oware V. Republic (1984) KLR 2001 the Court of Appeal sitting at Nairobi addressed itself thus:-““A representation as to a future event cannot support a charge of obtaining money by false pretences. In the above mentioned case of R. V. Dent (1955) 2. Q.B. PP 594/5 was referred to and in which case Devlin, J. :-a long course of authorities in criminal cases has laid down that a statement of intention about future conduct, whether or not it be a statement of existing fact, is not such a statement as will amount to a false pretence in criminal law.”

19. In Peter Nyamu Mutithi v Republic[2021] eKLR Gitari J. cited Mativo J. in the case Gerald Ndoho Munjuga V R HC Criminal Appeal No. 213 of 2011 (Nyeri) where the learned Judge quoted the decision of the High Court of Botswana in Lesholo & Another V. The State, which case dealt with an offence of this nature and held:i.To prove the offence of obtaining by false pretence, the accused must by a false pretence, with intent to defraud, obtain something of value capable of being stolen from another person. The prosecution must prove the false pretence together with a fraudulent intention in obtaining the property of the person cheated.ii.A false pretence has been held to be a representation by the accused person which to his knowledge is not true. A false pretence will constitute a false pretence when it relates to a present or past fact or facts. It is not false pretence if it is made in relation to the future even if it is made fraudulently. Where however the representation speaks both of a future promise and couples it with false statements of existing or past facts the representation will amount to a false pretence if the alleged existing facts are false [8]iii.…......... The representation must be made with the specific purpose of getting money from the complainant which he/she would not have given had the true facts been revealed to him.”

20. The appellant herein obtained money from the complainant totaling to Ksh.550,000/- while promising to buy her cattle with the said money. This was a future representation that did not amount to a false pretence. The trial court thus failed to satisfy itself that the charge and the facts of the case disclosed an offence of obtaining by false pretence. For this reason, I find that the appellant was wrongly convicted of the offence.

21. The upshot is that the appeal is allowed, though not for the reasons advanced by the appellant. I thus quash the conviction, set aside the sentence meted out on the appellant and order that he be set at liberty forthwith unless lawfully held.

DELIVERED, DATED AND SIGNED AT MARSABIT THIS 17TH DAY OF MAY 2022. J. N. NJAGIJUDGEIn the presence of:Mr. Ochieng for RespondentAppellant present in personCourt Assistant - Peter14 days R/A.