https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12339

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CRIMINAL APPEAL NO. E001 OF 2025** **DISMAS OSUNDWA OTINGA ………………..………………….………………. APPELLANT** **VERSUS** **REPUBLIC …………………….…………………………………………………. RESPONDENT** **(Being an appeal from conviction and Sentence of Hon. J. R. Ndururi (SPM) in Kakamega CM’s Criminal Case No. E779 of 2022 delivered on 27th November 2024)** **JUDGEMENT** 1. The Appellant was charged with the offence of conspiracy to commit a felony contrary to Section 393 of the Penal Code; the particulars being that on 31/3/2022, at Family Bank, Kakamega Branch within Kakamega Township, jointly with others not before the Court, they conspired together to commit a felony namely obtaining money by false pretences from Maureen Faini Mutoro. 2. The second count was that the Appellant obtained money by false pretence contrary to Section 313 of the Penal Code with the particulars being that on 31/3/2022 at Family Bank, Kakamega Branch within Kakamega County, jointly with others not before the court with intent to defraud, they obtained Ksh. 2,700,000/= from Maureen Faini Mutoro by falsely pretending that they were in a position to sell him land parcel number **BUTSOTSO/SHIBEYE/215**, a fact they knew to be false. 3. The Appellant and his co-Accused, Ian Shitumwa both denied the two charges and the matter proceeded to hearing. After the Appellant and his co-Accused were placed on their defence, the Appellant absconded from court and the matter proceeded to defence hearing in his absence. 4. In a Judgement delivered on 6th November 2024, the trial court found both Accused persons guilty of the two counts and convicted them as charged. The Appellant was then sentenced to five (5) years imprisonment for both counts. 5. Being aggrieved by the said decision, the Appellant lodged a petition of appeal in which he raised the following grounds of appeal:- That the trial court erred by failing to make a finding that the prosecution deliberately avoided to avail crucial witnesses; that the trial court misdirected itself in convicting him despite “*inconsistent, farfetched, fabricated and disjointed evidence*”; that the trial court failed in its findings in not observing that the Complainant testified that she did not know him and did not link him to the agreement; that the trial court failed to find that the transactions were between the Complainant and Ian Shitumwa and not himself; that his Advocate was denied room to represent him; that he was denied room for defence. 6. The evidence before the court was that the Complainant Maureen Faini Mutoro, who testified as PW1 was looking for a plot and on 27/3/2022, Peter Okoti a broker, told her that he had found a plot at Shibuli area. She met him at Amalemba and they proceeded to Shibuli area and on the way, they picked one Vincent at Ejinja area. Peter made a call and was directed to a place about 2Km from Shibuli market. On arrival, they found two men waiting for them. The two men were identified as Dismas and Ian. They showed her the plot, and Ian said it belonged to his father, Fred Aguluya. Dismas said he was a friend to Ian. Ian indicated that his father was selling the plot to raise funds for treatment. 7. According to the Complainant, she instructed Peter to undertake due diligence and after four days, he sent her a copy of a title deed which bore the title number **BUTSOTSO/SHIBEYE/215.** She forwarded the copy to Adam Kwayu, a Surveyor she knew, who conducted an official search upon her request and later confirmed to her that the certificate of search showed that the land was registered in the name of Fred Aguluya son of William Isisiche and was free of encumbrances. PW1 said that she asked Peter to convene a meeting with the family, which he did and they met with the family at the home. They found an old man seated on a chair who was said to have suffered a minor stroke and could not talk. Also present was Timothy, Ian and Dismas. The Complainant was accompanied by Peter and Vincent. A lady was summoned and introduced as Fred’s second wife and step-mother to Timothy and Ian. The Complainant was told that she had a home on a separate parcel of land. She asked for the original title deed and Timothy, who acted as the family spokesman informed her that it had been deposited in Lawyer Wawire’s office. They expressed the desire of selling four (4) acres of land at Ksh. 750,000/= per acre making the total purchase price Ksh. 3,000,000/=. They agreed to meet on a day when they could do the agreement for sale and survey the land. 8. The Complainant stated that on 31/3/2022, Timothy summoned her to Advocate Wawire’s office where the Secretary showed her the original title deed and offered to draft the agreement as they waited for Wawire to arrive. Mzee Fred arrived later and Ian requested that since Mzee Fred was being taken to hospital, he be paid whatever amount the Complainant had. Her husband Frankline Odari, who was present sent Ian Ksh. 100,000/= on phone number 0112xxxxx5 from his number 07xxxxx35. Timothy was supposed to take Mzee Fred, who was waiting outside the office in a vehicle to Eldoret immediately. They took the agreement to Mzee Fred, who affixed his thumbprint thereto as he could not sign. The witnesses to the agreement, which was dated 31/3/2022 were Ian Shitumwa Ibai, Timothy Tisiche Aluguya, and Susan Atsutsi Aluguya, who was alleged to be Mzee Fred’s sister. The Complainant’s witness was Joseph Wangu Kaloya. Wafula Wawire attested the agreement by affixing his stamp. The Complainant, Ian, Joseph Wangu and Adam Kweyu, then went into Family Bank Kakamega Branch. She withdrew Ksh. 800,000/= in cash from her Joint Account with her husband and gave it to Ian wherefore he signed an acknowledgement dated 31/3/2022. She then transferred Ksh. 1,800,000/= to Ian’s Bank Account at Family Bank, Kakamega Branch. Ian said he wanted to follow Timothy and his father to Eldoret, so the Complainant went with Adam Kweyu to do the survey after which Adam filled the documents. The Complainant left Ian at Shibuli and went back to town. Adam was to book a date for the Land Board. 9. A few days later, the Complainant phoned Ian to inform him of the date of the Land Control Board meeting but he did not pick the call and later switched off his phone. Suspicious, she returned to Fred’s home at Shibuli but found no one there. The next day, she found two children and on interrogating them, they said that their father was Ben, not Fred and that their mother was a business lady at Shibuli market. She left her contacts with the children and the following day, a lady who identified herself as their mother called her. On further discussion, the lady denied any knowledge of Mzee Fred, Ian, Dismas or Timothy. 10. The Complainant reported the matter to the police who arrested the Appellant and Ian Shitumwa. She later went and identified the Appellant in an identification parade comprising fifteen (15) people. 11. On cross-examination, the Complainant said that she neither transacted with the Appellant nor communicated with him. That he was speaking in support of the family; that he did not sign the agreement, nor was he in the Bank. She also said the Advocate did not appear on the day they drew the agreement of sale. She later clarified that the Appellant was only at the home the first time she went. 12. PW2 was Adam Ali Kweyu, a Surveyor. He recalled that on 28/3/2022, PW1 called him with the request that he surveys a piece of land she wanted to buy. She arrived in his office with an old man and two young men. They went to Shibuli and he was shown the land. He did the survey and divided it into four portions as per the owner’s request. He then drew the mutation forms and filled an application for consent from the Land Control Board. Later, PW1 called to inform him that he was required at the DCI offices where he learnt that the title deed that PW1 had returned to him together with the mutation and consent forms was a forgery. PW2 said that he did not see the Accused persons at the scene when he carried out the survey. 13. PW3 was Silas Masinya, the Operations Manager, Family Bank Kakamega Branch. He produced the bank statement from Ian Shitumwa’s account as well as the documents he used to open the account. According to him, the statement showed that on 31/3/2022, an amount of Ksh. 1,800,000/= was transferred to the account from Maureen Faini Mutoro’s account. 14. On cross-examination, PW2 said that Maureen showed them the agreement of sale and the transaction was done within the bank. He also said that the Appellant’s name did not appear in the statements. 15. The Investigating Officer testified next and said that on 7/4/2022, the DCIO instructed him to investigate the case where the Complainant had been defrauded as she intended to buy a piece of land being Land Parcel No. **BUTSOTSO/SHIBEYE/215**. He recorded her statement and commenced investigations. He obtained a copy of the title which the Complainant had been given. The Land Registrar responded to his letter seeking confirmation of the title through a letter dated 24/5/2022 and said that the title was not genuine. He also obtained orders vide Kakamega MCR. No. 54 of 2022 to investigate the telephone line that had received some money for the transaction and Safaricom gave him a report on the transaction which indicated that on 4/4/2022, there was a transaction of Ksh. 100,000/= from Family Bank to Ian Shitumwa’s mobile number 0795xxx205 and on the same day, there was another transaction from mobile No. 0795xxx205 to the Appellant’s telephone number 0702xxx482 in the sum of Ksh. 100,000/=. Earlier on 31/3/2022, there was a transaction to Ian Shitumwa Imbayi’s mobile number 0702xxx482 for Ksh. 100,000/= and on 1/4/2022, there was a transaction from the same number to the Appellant’s number in the sum of Ksh. 102,000/=. The witness produced the Safaricom data. He said that he arrested the two suspects and on 15/1/2023. The Appellant was subjected to an identification parade which was conducted by Inspector Kioko and in which the Complainant identified the Appellant. According to the Investigating Officer, the two Accused persons, the Appellant included, pretended to be the sons of the seller in order to defraud the Complainant. 16. Cross-examined, the witness said that the Appellant had introduced himself as Timothy whereas the Complainant said that the seller had said that he had two sons, Ian and Timothy. He said that in total, the Appellant had received Ksh. 102,000/= from the Complainant and Ksh. 102,000/= from his co-Accused. He said that he was not aware that the Appellant had been involved in an accident on 26/3/2022 and people were donating money for his treatment. He also said that the identification parade was conducted by Inspector Clare Wanangwe. 17. PW4 testified on behalf of Inspector Clare Wanangwe and produced the identification parade forms. 18. When placed on defence, the 1st Accused, Ian Shitumwa Imbayi gave a sworn statement and said that his identity card got lost in 2022 and he reported to the Chief on 30/1/2022. He produced a letter from the Chief and claimed that despite being referred to Huduma Centre, he never went there as he was busy. 19. On cross-examination, he said that he went to the police station but was not given an OB number and that by 31/3/2022, he had not applied for renewal as he did not have transport. He did not know whether he could be assisted without a police abstract. He agreed that he did not inform the Investigating Officer that he had lost his identity card or show him the Chief’s letter. 20. On his part, the Appellant was not present on 8/10/2024 when the Ruling placing them on their defence was delivered. A warrant of arrest was issued and on 23/10/2024 when the matter came up for defence hearing, he was still absent and his co-Accused proceeded and tendered his defence after which the defence case was closed. The Appellant was absent on the date Judgement was delivered and on the day Sentence was passed against the 1st Accused. In the premises, the Appellant never took part in the defence hearing. On 23/12/2024 after several absences and a notice to show cause to the Appellants surety, the Appellant was brought to court under warrant of arrest and upon mitigation, was sentenced to five (5) years imprisonment. 21. The appeal was canvassed through written submissions. 22. Through Mr. Luchivya Advocate, the Appellant submitted that there was no evidence that he committed a felony as the facts in support of the charge of conspiracy to defraud did not disclose an offence under Section 393 of the Penal Code since the evidence pointed to a misdemeanour. He submitted that the charge under Section 393 of the Penal Code was defective as the particulars in the Charge Sheet did not support the charges but pointed to an offence under Section 317 of the Penal Code which provides:- ***“Any person who conspires with another by deceit or any fraudulent means to affect the market price of anything publicly sold, or to defraud the public or any person, whether a particular person or not, or to extort any property from any person, is guilty of a misdemeanour and is liable to imprisonment for three years.”*** 1. The Appellant further contended that there is no way a charge under Section 313 of the Penal Code can be combined with a charge under Section 393 of the Penal Code. He further asserted that the evidence was clear as to who received the money from the Complainant and so the issue of conspiracy involving him was never proved beyond reasonable doubt. 2. The Appellant also faulted the trial court for meting out a five (5) year sentence for each count. 3. The Appellant further faulted the trial court for failing to give him an opportunity to defend himself. He argued that he ought to have been accorded a chance to tender his defence in view of his explanation that his failure to attend court was due to ill-health as a result of an accident. He averred that his constitutional right to a fair trial was violated and therefore the conviction and sentence, was bad in law and ought to be quashed and set aside. 4. Ms. Chala for the Respondent submitted in support of the conviction and urged the court to consider issuing an order of restitution as part of the sentence, which she submitted should have been three (3) years as prescribed by the law. The Respondent placed reliance on the case of **Mireri v. Republic [2002] KEHC.** 5. Regarding the claim that the Appellant was absent from court because he was sick, the Respondent quoted the case of **Republic v. Galma Abagaro Shano [2017] KEHC 2444 (KLR)** and argued that the Appellant had casually informed the court that he had been sick and did not produce any medical documents. **Analysis and Determination** 1. This being a first appeal, the duty of the court is to review and re-evaluate the evidence adduced before the trial court and make its own independent conclusion while bearing in mind that it did not have the opportunity to see and hear the witnesses as they gave evidence. This is a first appeal and the duty of the Court is as set out in. See **Okeno v. Republic [1972] EA 74.** 2. In **Pandya v. Republic [1957] EA 336,** the Court of Appeal held that:- ***“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”*** 1. I have considered the record of appeal and the parties’ submissions and the issues that arise for determination are as follows:- 2. *Whether the Appellant’s right to a fair trial was infringed.* 3. *Whether the Charge Sheet was defective.* 4. *Whether the prosecution proved its case beyond reasonable doubt.* 5. *Whether the sentence imposed upon the Appellant was illegal* 6. On whether the Appellant’s right to a fair trial under Article 50 of the Constitution was infringed, Article 50 (2) (f), (i) and (k) provides:- ***“(2)Every accused person has the right to a fair trial, which includes the right—*** ***(f)to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;*** ***(i)to remain silent, and not to testify during the proceedings and*** ***(k)to adduce and challenge evidence.”*** 1. The right to a fair trial is reinforced by Article 25 (c) of the Constitution which provides as follows:- ***“Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited—*** ***(c)the right to a fair trial.”*** 1. From my reading and interpretation of Article 25 of the Constitution, the right to a fair trial is non-derogable. However, pursuant to Article 50 2(f) of the Constitution, if an accused person willfully absconds from court, then he is deemed to have waived his right to be tried in his presence. This was the holding of the Court in **Republic v. Galma Abagaro Shano** (Supra) when it pronounced itself as follows:- ***“…My view is that the Constitution of Kenya, being the supreme law of the land does not differentiate the offences be they felonies or misdemeanors. Under the Constitution, every person has a right to a fair trial, which includes the right to be present when being tried unless the conduct of the accused person makes it impossible for the fair trial to proceed…”*** 1. Section 206 of the Criminal Procedure Code provides that:- ***“(1)If, at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which made the order of adjournment, the court may, unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused were present, and if the complainant does not appear the court may dismiss the charge with or without costs.*** ***(2)If the court convicts the accused person in his absence, it may set aside the conviction upon being satisfied that his absence was from causes over which he had no control, and that he had a probable defence on the merits.*** ***(3)A sentence passed under subsection (1) shall be deemed to commence from the date of apprehension, and the person effecting apprehension shall endorse the date thereof on the back of the warrant of commitment.*** ***(4)If the accused person who has not appeared is charged with a felony, or if the court refrains from convicting the accused in his absence, the court shall issue a warrant for the apprehension of the accused person and cause him to be brought before the court.”*** 1. Flowing from the above, a court can proceed in absence of the accused if it is proved that the accused person willfully and intentionally waived the right to be present during hearing expressly, or by his conduct. Such waiver would be said to be willful and intentional if the accused escaped from custody or deliberately failed to attend court. In **Republic v. Mereri Teteror [2023] KEHC 18592 (KLR)**, the Court while considering an application to proceed in the absence of the accused person quoted the case of **Republic v. Joshua Chacha Moronge [2019] eKLR** where the Court held that:- ***“The aim of a criminal trial is to expeditiously accord justice to all parties. An accused person found guilty of an offence ought to be accordingly sentenced in line with the law otherwise one must be acquitted forthwith. It is that balance which a trial aims to achieve. Therefore, in a case where one of the parties makes the trial unable to proceed then such a party visits an injustice to the other. That being so, a Court of law is fully enabled to deal with such instances. On one hand if the delay is occasioned by the prosecution the Court has powers to even compel the hearing to proceed. On the other hand, if the delay is occasioned by the accused person Article 50(2)(f) of the***[***Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***comes to play. For a Court to take refuge in Article 50(2)(f) of the***[***Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***and proceed on with a trial in the absence of an accused person the Court must first be satisfied that such inability to proceed with the trial is caused by the deliberate conduct of the accused person. That therefore means if the Court forms the opinion that the delay is not caused by any deliberate conduct on the part of the accused person then the trial cannot legally proceed in the absence of the accused person. To retheach any of the findings, a Court must carefully consider the particular circumstances of the case.”*** 1. It is well settled that each case should be determined according to its specific circumstances in view of the provisions of Section 206 of the Criminal Procedure Code. The Appellant faced charges under Section 393 and Section 313 of the Penal Code, which were felonies. In the circumstances, he was entitled to the benefit of the proviso of Section 206 (1). See **Solomon Locham v. Republic [2015] eKLR**. 2. The Appellant was first arraigned and taken to court on 6/2/2023. The matter proceeded seamlessly with the Appellant attending court faithfully. The matter was severally adjourned at the instance of the prosecution, which secured eight adjournments including several last adjournments, where they did not have their witnesses at all. When the prosecution witnesses were present and defence Counsel absent, the Court overruled the Appellant’s application for adjournment and proceeded to take the evidence of PW2 and PW4 in absence of Counsel on two separate occasions. 3. The trial court’s effort to bring the trial to an expeditious determination, although commendable, did an injustice to the Appellant as is demonstrated by the fact that the trial court chose to proceed with the defence case in his absence despite the fact that he had only been absent on 8th October 2024 and 23rd October 2024. 4. The trial record shows that Judgement was delivered on 6th November in the absence of the Appellant and when he was brought to court on 23rd December 2024 under warrants of arrest, he was not given a chance to explain his absence. Instead, he was asked to mitigate. As part of his mitigation, the Appellant informed the court that he had bad health since he had been involved in an accident. Considering the Appellant’s Counsel was absent, the Court had a duty to inquire further and establish whether the Appellant willfully and intentionally failed to attend court and not as a result of the ill-health arising from the accident. By failing to conduct an inquiry into the reason for the Appellant’s absence and proceeding to sentence him without the benefit of a pre-sentence report, the Court breached the Appellant’s Constitutional rights and totally blocked his right to adduce evidence or call witnesses to testify in his defence as provided by Section 211 of the Criminal Procedure Code therefore rendering the trial defective and the subsequent conviction and sentence unsafe. 5. I find that the failure by the trial court to establish absence of intentional waiver of the right to a fair hearing, and the conversion of the Mention date into a Sentence hearing resulted in a fatal procedural illegality that rendered the entire trial a nullity. The conviction against the Appellant is quashed and the sentence set aside. 6. The issue facing the court in view of its finding is what order shall issue since the matter involved two Accused persons and the trial had reached the defence stage when the Appellant was excluded by reason of his absence. In **James Mathenge Njehia v. Republic [2023] KEHC 17689 (KLR)**, Matheka J, faced with similar circumstances held as follows:- ***“33. The appellant needed to be heard before he court could arrive at a decision as to whether or not he was guilty of the offence he was facing. He was also entitled to a mitigation with respect to the sentence if he was found guilty. The offence he is facing is a serious offence*** ***34.In the circumstances, it is my view that this case answers to two criteria for retrial. The trial was defective when the trial magistrate misguided herself and proceeded under s. 206 of the***[***Criminal Procedure Code***](https://new.kenyalaw.org/akn/ke/act/1930/11)***and that it would be in the best interests of justice for the appellant’s defence to be heard before the determination of the matter.*** ***35.In the circumstances, the conviction is quashed, the sentence is set aside, the judgment of Hon E Soita RM be expunged from the record.*** ***36.The consequence to that is that the appellant will be retried, and considering the time lapse, for purposes of taking his defence, upon compliance with s. 200 of the***[***Criminal Procedure Code***](https://new.kenyalaw.org/akn/ke/act/1930/11)***, by a court of competent jurisdiction and not the trial magistrate.”*** 1. Guided by the aforesaid, this court finds that an order that the matter be heard *denovo* is untenable. Since the Appellant was present throughout the prosecution’s case, and bearing in mind that his co-Accused was also convicted in the impugned Judgement, the reasonable step is to have a retrial affecting the Appellant alone. 2. Having found so, the Court has no reason to delve into the other grounds of appeal. For the above reasons, the appeal is allowed, the conviction and sentence is quashed and set aside and the following orders made:- 3. *The matter is remitted back to trial before a different Magistrate as shall be assigned by the Chief Magistrate.* 4. *The trial court shall upon compliance with Section 200 of the Criminal Procedure Code receive the Appellant’s defence case, evaluate the entire evidence afresh and render Judgement.* 5. *The Appellant shall remain in custody pending the conclusion of his defence hearing.* 6. *The Appellant shall be produced before the Chief Magistrate on 12/8/2026 for purposes of compliance with the Court’s orders.* Dated, signed, and delivered at Kakamega this 31st day of July 2026. **A. C. BETT** **JUDGE** **In the presence of:** Ms. Ihachi holding brief for Mr. Luchivya for the Appellant Ms. Chala for the Respondent/State Court Assistant: Polycap