https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9502

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MURANG’A** **CRIMINAL APPEAL NO. E021 OF 2024** **ETHAN KAMAU NJAGI….…….……………............................ APPELLANT** **VERSUS** **REPUBLIC….............................................................................RESPONDENT** **JUDGMENT** 1. This appeal arises from the Judgment of the trial court, Hon. Caroline Ndumia (SRM) in Kangema PMCRC No.744 of 2019 delivered on 20.02.2024. 1. The Appellant was charged with uttering a false document contrary to Section 353 of the [Penal Code](https://new.kenyalaw.org/akn/ke/act/1948/81). The particulars of the offence were that on diverse dates between 27.10.2018 and 29.10.2018 at Kangema sub-county within Murang’a County knowingly and fraudulently uttered a forged document purporting to be the letter of Harrison Mwangi, the Chief of Iyego Location with intent to defraud. 2. The Appellant was also charged in count II with obtaining by false pretence contrary to section 313 of the Penal Code. The particulars of the offence were that on diverse dates between 27.10.2018 and 29.10.2018 at Kangema sub-county within Murang’a County with intent to defraud, the Appellant obtained a sum of Ksh. 200,000/= from Jeremiah Chege Thuita, by falsely pretending that a share certificate No. 17350 of Kangema Farmlands Limited registered under Jane Wanjiru Kamau was bequeathed to you as a sole beneficiary, a fact he knew to be false. 3. The Appellant was arraigned on 4.12.2019 and he denied the charges. A plea of not guilty was consequently recorded. The trial court considered the case and rendered Judgment on 20.2.2024. The Court found the Appellant guilty and convicted him on both counts. The Appellant was sentenced to pay a fine of Ksh. 100,000/= in default 1 year imprisonment in count I. In count II, the Appellant was also sentenced to pay a fine of Ksh. 100,000/= in default 1 year imprisonment. 1. The two sentences ran concurrently. This was a mistake since, sentences where fines are involved must as a corollary run consecutively. Section 26 of the Penal Code provides as follows: 1. A sentence of imprisonment for any offence shall be to imprisonment or to imprisonment with hard labour as may be required or permitted by the law under which the offence is punishable. 2. Save as may be expressly provided by the law under which the offence concerned is punishable, a person liable to imprisonment for life or any other period may be sentenced to any shorter term. 3. A person liable to imprisonment for an offence may be sentenced to pay a fine in addition to or in substitution for imprisonment: Provided that - (i) where the law concerned provides for a minimum sentence of imprisonment, a fine shall not be substituted for imprisonment; 1. The sentencing policy guidelines on concurrent and consecutive sentences is as follows: 2.3.4 The issue of consecutive or concurrent sentences is addressed in part under Section 14 of the Criminal Procedure Code and for offences committed during the currency of an existing sentence or before sentencing for a previous conviction, Section 37 of the Penal Code. However, this is a complex arena and so further guidance is given in paragraphs 2.3.21 to 2.2.30 of the sentencing policy guidelines. 1. In this respect, the Appellant, aggrieved, lodged this appeal. The Petition of Appeal challenged both conviction and sentence on the basis that the Respondent failed to prove the case against the Appellant beyond reasonable doubt and sentence was harsh and excessive. The grounds were as follows: 2. That the trial magistrate erred in law and facts by failing to evaluate the evidence on record as whole thus arriving at a wrong conclusion which occasioned miscarriage of justice on the appellant. 3. That the trial magistrate erred in both law and facts by holding that the prosecution has proved the ingredients of obtaining money by false pretense and uttering false documents. 4. That the trial magistrate erred in both law and facts by disregarding the appellant’s defence which was reasonable and rebutted the prosecution evidence adduced. 5. That the trial magistrate erred in both law and facts by relying on the prosecution evidence which was full of discrepancies and contradictions and the document examiner report which was not authenticated. 6. That the trial magistrate erred in law and facts in failing to find that failure by the prosecutor to call Mr. Kiriba Advocate to testify casted doubts in the weight and value of the prosecution evidence and was vital to the prosecution case. 7. That the learned magistrate erred in law and facts by relying on the evidence of PW2 who was not an employee of M/S N.M. Kiriba Advocates and he never witnessed the sale agreement between PW1 and the accused. 8. That the learned trial magistrate erred in both facts and law by failing to appreciate that the complainant is the one who uttered the chief’s letter together with the shares certificate to Deputy County Commissioner at Kangema with an intention to transfer the shares to his name. 9. That the learned trial magistrate erred in law by imposing a sentence that is manifestly high and excessive in the circumstances of the case. Evidence 1. At trial, PW1 was Jeremiah Chege Thuita. According to him, on 27.10.2018 to 29.10.2018 at around 8 am, he was at Gakira when he met the Appellant. The Appellant offered to sell to him 4 shares of Kangema Farmland. He saw the shares were in the names of Jane Wanjiru Kamau whom the Appellant said that was his deceased mother. The Appellant said he was the one in charge with capacity to sell the shares. 1. The duo went to the Director of Kangema Farmland, one Joel Gachuhi. They met at the Makuti Hotel. The director said the shares were authentic. He advised the Appellant to obtain a letter from the chief. Later, they agreed the price at Ksh. 50,000/= per share since the Appellant said he had a pressing issue that could not wait. They made an agreement at Kiriba Advocates. He paid half the amount being Ksh. 100,000/= to the Appellant. The Appellant later at 5 pm came with the Chief’s letter from chief of Githunguri. He paid the balance of Ksh. 100,000/= to the Appellant. On the following day, they went to the Director, showed the chief’s letter which was admitted. The Appellant then signed a form on behalf of his mother. He was told to take all documents to the DO’s office. The Appellant was to avail death certificate for his mother. The DO said the chief’s letter was a forgery. The Appellant then switched off his phone after promising to appear at the DO’s office. He then reported the matter to Kangema Police Station and was called one year later that the Appellant had been arrested. 1. On cross examination, it was his case that that he paid the money in order to purchase the shares. The Appellant said the shares belonged to his mother. The Appellant availed a letter that was not genuine. There was no written agreement signed upon receiving the money because he trusted the Appellant. 1. PW2 was Joel Maingi Kiriba. He was a clerk at the office of Kiriba Advocates. He drafted the agreement and took to the advocate to sign. PW1 paid Ksh. 100,000/= at the office. The appellant came back and was subsequently paid Ksh. 100,000/=. On cross examination, he testified that the Appellant and PW1 came to the office. The advocate, Mr. Kiriba instructed him to type the agreement. He counted Ksh. 100,000/= which was given to the Appellant. The Appellant promised to bring chief’s letter. He was given the agreement and then went away. 1. PW3 was Harrison Mwangi Muchoki, Chief Iyego location. David Kasyoka called him to confirm if he was the author of the chief’s letter. He confirmed that he was not the one who wrote the letter. The handwriting was not his. On cross examination, he stated that his boss asked him to confirm writing the letter. They did write such letters. The letter was written on 27.10.2018. It is true the letter had a stamp. He only issued share transfer letters not share sale letters. 1. PW4 was Joel Gichuhi Gaichuru. He was director of Kangema Farmlands. PW1 and the Appellant came on 28.10.2018. They wanted to sell shares. They came with chief’s letter, death certificate, and original share certificate with 4 shares. The documents were in order. He was to write a transfer form which he did. There was no stamp on the chief’s letter that should have come from the DCC. He sent both to the DCC officer to have the chief’s letter stamped. They never came back to him after. On cross examination, the chief’s letter had stamp on down page but had no stamp by the DCC. He could not proceed with execution of the forms. 1. PW5 was David Kitavi Kasyoka. He was the Assistant County Commissioner in Kangema at the time of the incident. He received the impugned chief’s letter. He doubted the chief’s letter and stamp. He asked PW4 to come. PW4 said he had not drafted the letter. The signature and handwriting were not for PW4 as he knew them. On cross examination, according to the letter, the Appellant and Jesse Miano Kamau were heirs of the estate of the deceased. He called PW4 who denied writing the letter. 1. PW6 was No. 112567 PC Audrey Otieno. She was a forensic document examiner. She stood in for IP Vincent Chelongo who was attending court in Molo. The objection by the Appellant was overruled. She proceeded that he examined the handwriting and signatures that were disputed, he found the signatures were by different persons and the handwriting were by different authors and the stamp impression by different instruments. On cross examination, the report was made by IP Vincent Chelongo and verified by Mr. Mwongela who were document examiners. The report was canceled and countersigned. The report was competent and correct. 1. The Appellant testified as DW1. It was his case that he knew PW1. He sat with PW1 and showed him the shares. Each share was 100,000/= and the total was Ksh. 400,000/=. PW1 said he did not have the money. PW1 asked for death certificate and ID card to take to his lawyer. PW1 was to come back but he never did. Instead, the Appellant was arrested and charged. He was not present at Kirima Advocates offices. The agreement was a conspiracy. The Advocate did not testify. Submissions 1. The Appellant filed submissions on 27.10.2025. There were also submissions dated 17.11.2024. The Appellant submitted that there was no compliance with sections 200(3) of the Criminal Procedure Code as there were no directions taken after taking over by new magistrate. 1. It was submitted that the maker of the forensic document was not called when his testimony was crucial. He also submitted that there were contradictions on the testimonies of PW1 and PW2 that entitled him to a benefit of doubt. He cited **Shiundu v Repubic CRA No. E074 of 2017**. 2. It was also submitted that the case was not proved beyond reasonable doubt. He relied on section 107 and 108 of the Evidence Act and **Woomington v DPP (1935) UKHL 1**. 1. On sentence, the fine of Ksh. 200,000/= was excessive and failed to consider probation. He cited **Syevutha Peter v Republic** CRA No. E004 of 2019. 1. The Respondent filed submissions dated 20.11.2025. The Respondent conceded while submitting only on the issue of compliance with section 200(3) of the Penal Code. 2. It was submitted that indeed Section 200(3) was not complied with and this rendered the rest of the trial a nullity. Analysis 1. The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in **Pandya -vs- Republic [1957] EA 336**is as follows:- **“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 different.** 1. Therefore, this Court will not interfere with the exercise of judicial discretion by the court below unless it is satisfied that its decision is clearly wrong. In the case of *Mbogo and Another vs.* *Shah [1968] EA 93*the Court stated: **“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”** 1. The Appellant was charged with uttering a false document. Section 353 of the Penal Code provides thus: **Any person who knowingly and fraudulently utters a false document is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question.** 1. The word 'utter' is defined under section 4 of the Code as follows: **'Utter means and includes using or dealing with and attempting to use or deal with and attempting to induce any person to use, deal, or act upon the thing in question.** 1. The court is tasked to reevaluate whether in arriving at the decision to convict the Appellant the Respondent proved beyond reasonable doubt that the Appellant knowingly and with intent to defraud uttered a false document, namely the chief’s letter and used, dealt with, or attempted to use or deal with, or attempted to induce some other person to use, deal with or act upon the document or thing uttered to him. That is, the person who utters, must do so knowingly that the document is false and must have, in the course of uttering, the intention to defraud. Also, the person to whom the document is uttered, PW1 was made to take action or steps or fail to take steps or action which save for the thing uttered to him, he would not have taken or vice versa. 2. The synopsis of the case of the Respondent was simple and straightforward. The Appellant obtained Ksh. 200,000/= from PW1 payable in two instalments of Ksh. 100,000/= each. 1. The amount was received at Kiriba Advocates office where a sale agreement was drawn and executed. The deal was sealed and the Appellant was to transfer or cause the transfer of the shares held by his deceased mother, 4 in number, to PW1 at Ksh. 50,000/= each. 2. The goose came home to roost and goosebumps developed when the letter from the chief became suspicious and the Appellant, instead of intervening to state the position on the controversial letter, took refuge and disappeared without receiving PW1’s phone calls. 1. The Appellant in his defence denied receiving the money or ever entering into such an agreement. He however admitted to meeting PW1 for a discussion about the sale of shares that belonged to his deceased mother. 1. On my reevaluation, I find that the Respondent adduced evidence that the alleged document was false and that the appellant knew that the document was false and that he intended to use it to defraud PW1. 1. The evidence of PW1, PW2, PW3 and PW4 as corroborated by the evidence of PW6 depicted knowledge and intention which were key in proving the offence of uttering against the Appellant. In the case before the trial court, the prosecution was not investigating whether the appellant forged his mother’s title document or identification documents in order to unlawfully access the assets of the estate of his deceased’s mother. That would be an issue for the probate court. The issue was simple, uttering a false letter purporting to be issued by the chief authorizing transfer of shares from the Appellant’s deceased mother to PW1. The Appellant ended up putting up a defence that spoke more of his guilt than innocence. He denied even signing an agreement. In totality, he denied uttering the letter and receiving the money in spite of clear evidence that he was the one who brought the letter to PW1 in order to meet PW4’s condition as to the requirement of the chief’s letter and that he received the money. In **[Kepha Moses Mogoi v Republic [2014], eKLR](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/438%22%20%5Ct%20%22_blank)**, the Court of Appeal stated that the offence of uttering a false document under section 353 of the Penal Code is proved if a person knowingly and fraudulently utters the document. 2. PW6 presented a forensic report that proved that the document presented by the Appellant as chief’s letter to PW1 as rejected by PW3, PW4, and PW5 was indeed false and obtained in circumstances that depicted forgery with an intention to retain the monies obtained without passing the shares sold. The court of appeal in [**Joseph Mukuha Kimani v Republic [1984] KECA 36 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/1984/36/eng%401984-05-03) stated that for the offence of uttering by false pretense to be proved, the ingredients were doth: *The prosecution must prove that:* *(a) The document was false; in the sense that, it was forged* *(b) The accused knew it was forged* *(c) The utterer intended to defraud.* 1. I dismiss the assertion by the Appellant that the evidence of PW6 was inadmissible as she was producing a document that she did not author. IP Vincent Chelongo who authored the document, like PW6, was a forensic document examiner and there is nothing he was said to be expected to have done or not done that he did or omitted to do. A perusal of the record also demonstrates that the Appellant was on a mission to delay the proceedings through adjournments and I find no reason to fault the trial court for declining his prayer for adjournment to enable the maker of the document come to testify and produce it on an alternative date. 2. The court exercised discretion in accordance with the law. In the case of **Ramakant Rai vs. Madan Rai, Cr LJ 2004 SC 36**, the Supreme Court of India rendered itself thus on the issue of judicial discretion: **“Judicial discretion is canalized authority not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed:** **“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not a yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains”.** 1. On the second count, the ingredients of the offence of obtaining by false pretenses contrary to section 313 of the Penal Code were enumerated in the case of **Amugo vs. Republic** High Court (Kisumu) Criminal Appeal No. 320 of 1980 (unreported) as follows: **The offence of obtaining by false pretenses has seven possible ingredients which have to be proved beyond doubt before an accused person is convicted. They are as follows:** 1. **a false representation;** 2. **which is made;** 3. **by words or writing or conduct;** 4. **of a matter of fact;** 5. **either past or present;** 6. **with knowledge of the falsehood or without belief that the presentation is true; and** 7. **the representation causing the giver to part with the thing obtained.** 1. The second charge which the appellant faced was for obtaining money by false pretenses contrary to section 313 of the [Criminal Procedure Code](https://new.kenyalaw.org/akn/ke/act/1930/11). The said section provides as follows: **Any person who by any false presence and with intent to defraud, obtains from any person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stole, is guilty of a misdemeanor and is liable to imprisonment for three years.** 1. For the offence to be committed, it required the offence as defined to be completed when the culprit obtains something capable of being stolen or induces another to deliver something capable of being stolen, through false pretense or fraud. 1. The Respondent had also to demonstrate that Appellant had already unlawfully benefited and it was not a mere promise since for an action to amount to a false pretence, it must be of past or present facts and not of future facts. Lord Devlin in the case of **J. R vs. Dent** [1955] 2 Q.B. 594 stated: *...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.* 1. In my reevaluation against the trial court’s finding, like in count one, I find that the ingredients of count II were well proved beyond reasonable doubt and indeed the Appellant obtained a total of Ksh. 200,000/= from PW1 on the false promises that he would sell 4 shares at Ksh. 50,000/= each when he knew that he would not present the chief’s letter or finalize the requirements for the transfer of the shares. 2. The Judgment was faulted by the Appellant and the Respondent conceded to failure to consider and apply section 200(3) of the Criminal Procedure Code. Whereas the Respondent conceded and appears to have held a position that the subsequent proceedings were a nullity due to failure to apply Section 200 (3) of the Criminal Procedure Code, it is this court of justice that is the ultimate custodian of the law and the tools to determine whether the said defect was fundamental as to vitiate the trial. The court of appeal declared as logic and rationale the philosophy behind **Section 200** of the **CPC** forty years ago in **NDEGWA –VS- REPUBLIC** [1985] KLR 534 where it held that; “1.  The provision of Section 200 of the Criminal Procedure Code (Cap 75) ought to be used very sparingly; and only in cases where the exigencies of the circumstances are not only likely but will defeat the ends of justice if a succeeding magistrate is not allowed to adopt or continue a criminal trial started by a predecessor. (2) The provisions of Section 200 should not be invoked where the part heard trial is a short one and could be conveniently started de novo.  Furthermore, it should not be invoked where witnesses are still available locally and the passage of time was short so as not to cause or produce any accountable loss of memory on their part, whether actual or presumed to prejudice the prosecution. (3) No rule of natural justice, statutory protection, evidence or of common sense should be sacrificed, violated or abandoned when it comes to protecting the liberty of the subject since he is the most sacrosanct individual in the system of our legal administration. (4) The statutory and time honoured formula that the magistrate making the judgment should himself see, hear and assess and gauge the demeanour and credibility of witnesses should always be maintained. (5) A magistrate who did not observe the evidence is not in a position to assess the position, credibility and personal demeanour of all the witnesses.” 1. The record shows that the trial magistrate, PM Kiama left the case having rendered the ruling on case to answer, finding a prima facie case on 24.1.2023. In the circumstances, there is no justification for the application of Section 200(3) of the criminal procedure code and the court finds no reasons for the court to consider the necessity of the application of that section of the law as this would have prejudiced the rights of the victim now that a ruling on case to answer had been rendered and there was no appeal therefrom. The said section provides thus: **(3) Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.** 1. I do not find any way in which the Appellant was prejudiced simply because section 200(3) of the Criminal Procedure Code was not complied with after ruling on case to answer. The Appellant has also not stated what he would have done had the impugned section of the law been read out and explained that he did not do and so suffered a denial of the right to fair trial under Article 50(2) as alleged. 1. In undertaking that obligation, the court finds that the trial court did not only consider and affirm the evidence by documents how the money left the hands of PW1 to the Appellant to availing the chief’s letter that was defective to not being available to explain the defect and probably seek issuance of the correct chief’s letter but also analyzed into great depth the ingredients of the offences charged while relying on sound and binding decided cases. 1. This court, Makau J demystified the position on section 200(30) of the Criminal Procedure Code vis a vis the rights enshrined in the constitution in [*Office of Director of Public Prosecutions v Peter Onyango Odongo & 2 others [2015] KEHC 91 (KLR)*](https://new.kenyalaw.org/akn/ke/judgment/kehc/2015/91/eng%402015-12-17) as follows: 21. In my view **Section 200 (3) of the Criminal Procedure Code** protects the rights of the accused to a fair trial as guaranteed by the constitution under **Article 5O. (2)** of the constitution which states every accused person has the right to a fair trial, which includes other rights as set out thereunder.  **Section 200 (3) of CPC** as couched or framed do not have any provision to protect  the rights of the complainant.  It is silent on the rights of the complainant. 22. The question therefore is do the silence on the rights of the complainant under **Section 200 (3)** **CPC** mean the complainant's rights are not protected? The succeeding Magistrate before determining the accused demand for retrial or recalling or re-summoning of any of the witnesses,  in my view, as **Section 200(3)** is not mandatory for the accused demand to be granted or to be allowed, the succeeding Magistrate is not supposed to deal with  **Section 200 (3) of C.P.C.** in isolation of several  articles of the constitution dealing with the **Bill of Rights** as Section **200 (3) of CPC** is not exhaustive in itself.  The succeeding Magistrate is supposed to be guided by **Article 27 (1) of the constitution,**which states  every person is equal before the law and has rights to equal protection and equal benefit of the law.  This means the protection to fair trial is automatically granted to both the complainant and the accused.  This means as I understand the said article, before final order is made on the accused demand interms of **section 200 (3)**  **CPC** the complainant should be afforded an opportunity to be heard on the application.  A blatant granting of the application without hearing the complainant would in my view not only be against the rules of natural justice but would amount to a violation of the letter and the spirit of our constitution and would not be in the best interest of achieving a fair trial,  If the complaint is completely overlooked on the issue. 23. In considering **Section 200 (3) C.P.C.**as regards the information given to the accused, the same information should be extended to the complainant in equal measure,  **Article 159 (2) (a) (b) and (d) of the constitution**deals with justice to all irrespective of status, justice not being delayed and being administered without undue regard to procedural technicalities.  That the accused and the complainant should get justice without delay and should be administered without undue regard to procedural technicalities.  That the accused and the complainant are entitled to justice without procedural technicalities and discrimination. 24. The Court in determining an application under **Section 200(3) of C.P.C**. should comply with **Article 28 of the constitution** which provides every person has inherent dignity and the right to have that dignity respected and protected.  Further under **article 47(1)** of The Constitution every    person has the right to administrative actions that is expeditious, efficient, lawful, reasonable  and procedurally fair. **Article 53 (d) of the constitution** states every child has a right to be protected from abuse, neglect, harmful cultural practices, all forms of  violence, inhuman  treatment and punishment  and **Article 53 (2)**provides a child's best interest are of paramount importance in every matter concerning the child. 1. On the severity or lawfulness of sentence as granted by the trial court, I do not find any basis for interfering with it for indeed it was a lawful sentence. The sentences served appropriate deterrence and were issued with an option of fine which the Appellant should have taken advantage of. Determination 1. I make the following final orders: 2. This appeal is devoid of merit and is dismissed. 3. Right of appeal 14 days. 4. The file is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** onthis **25th** day of **June** the year of our Lord **Two Thousand and Twenty-Six**. Judgment delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of: -** Appellant present Mr. Vincent Maina for the State Court Assistant – Martin