[2022] KEHC 11915 (KLR)

Etokho v Republic (Criminal Appeal 18 of 2020) [2022] KEHC 11915 (KLR) (10 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11915 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal 18 of 2020

WM Musyoka, J

June 10, 2022

Between

Felix Ongoma Etokho

Appellant

and

Republic

Respondent

(Appeal from judgment and sentence of Hon. TA Odera, Senior Principal Magistrate, in Mumias SPMCCRC No. 67 of 2019, of 29th May 2020)

Judgment

1. The appellant had been charged before the primary court of the offence of obtaining money by false pretences contrary to section 313 of the Penal Code, Cap 63, Laws of Kenya. The particulars were that on 10th June 2006, at Mung’ang’a Village, Matungu Sub-County, within Kakamega County, with intent to defraud, he obtained from Emmanuel Olukwo Wanzala, a sum of Kshs. 120, 000. 00, by falsely pretending that he was in a position to sell two acres of land from North Wanga/Mayoni/125 to him, a fact that he knew to be false.

2. He pleaded not guilty to the charge, and a trial was conducted. Five prosecution witnesses testified. The complainant, PW1, Emmanuel Olukuo Wanjala, explained how he was introduced to the appellant as a person who had land to sell. It was two acres, the sale price was Kshs. 140, 000. 00 and he paid Kshs. 120, 000. 00 through an Advocate. The balance was to be sold after an ongoing succession cause was completed. The appellant was subsequently evicted from the land, as it did not belong to him, and he moved to another, where he allocated PW1 two acres. The land was under sugarcane, and PW1 took possession after the cane was harvested. He executed the relevant transfer forms, and waited for the title deed. He also signed a sale agreement for the second piece of land, North Wanga/Mayoni/1257, not the initial one. He sat with elders and two the acres were mapped out for him, but the portion on the ground did not measure two acres. Subsequently, the appellant dug trenches on it and planted various plants and crops on it. When he confronted him over that, the appellant told him to report him to the authorities. PW1 did so, and the appellant was arrested and charged. PW2 and PW3, Mathews Mwanza Wanga and Titus Mwitakho Wesonga, were among the elders who sat to hear the land dispute between the appellant and PW1. They stated that the appellant was utilizing the portion that he had sold to PW1. PW3 stated that the land was sold, not leased. PW4, Livingstone Ateya, was a friend of the appellant, and the appellant approached him, telling him that he wanted to sell two acres of his land as he had school fees problems. The witness was the one who linked PW1 and the appellant. The offer was Kshs. 70, 000. 00 per acre. He was one of the witnesses to the sale, which was reduced into writing by an Advocate, and the appellant was paid Kshs. 120, 000. 00 by PW1. It turned out that the appellant was not entitled to the land that he initially showed PW1, and he had to show him another parcel. He said the transaction was for sale of land, and not lease. PW5, No. 78788 PC John Kulecho, was the police officer who received and investigated the complaint by PW1.

3. The appellant was put on his defence. He made a sworn statement. He stated that he had entered into a lease agreement with PW1 for two acres for Kshs. 140, 000. 00. He was paid Kshs. 120, 000. 00, but he was never paid the balance. He accused PW1 of stealing land belonging to his father, and that he sued him before the civil court. He said that he had no land to sell. He further said that the agreement was for sale of cane, not land. He accused the prosecution witnesses of lying.

4. In its judgment, the trial court found that the appellant had represented to PW1 in writing and conduct that he had land to sell to him, the representation was in the present, and was false, as there was no intention on the part the appellant to part with the land, and the representation was made by the appellant while knowing or having reason to believe that it was not true. He was convicted and was ordered pay compensation to PW1, of Kshs. 120, 000. 00, and in default to serve two years in prison.

5. The appellant was aggrieved, and brought the instant appeal, founded on several grounds. He states that the respondent did prove the case of obtaining money by false pretenses; the trial court gave undue credence to documents that were not executed by the appellant; the trial court erred by curing a defect in the charge sheet under Article 159 of the Constitution; the trial court failed to consider that the documents relied on were void pursuant to section 6 of the Land Control Board Act; the trial court failed to analyze and evaluate the totality of the documents presented by the prosecution; the trial court failed to consider the submissions made by the appellant; the case was full of contradictions; the court came to the wrongful conclusion that the appellant signed and thumb printed the documents; the trial court failed to submit the documents for specimen examination, and thereby shifted the burden to the appellant; a crucial witness was not called; and imposing an irregular sentence.

6. Directions were taken on 2nd November 2021, for the disposal of the appeal by way of written submissions. The appellant has filed his written submissions, but the respondent has not. In his written submissions, the appellant has summarized his grounds of appeal into four: whether the judgment and sentence should be set aside, whether trial court had exhausted all the evidence and submissions given by the appellant, whether the evidence and submissions by the prosecution were proved on a balance of probability, and whether the trial court erred in curing the defect in the charge under Article 159 of the Constitution. I will look at each of the four summarized grounds in turn, and take it that all the other grounds in the petition of appeal have been abandoned.

7. The first ground is that the judgment delivered on 29th May 2020 should be set aside and the sentence quashed, because the trial court imposed an irregular sentence, and did not take into consideration all the relevant evidence or witnesses before convicting. The appellant has not elaborated on how the sentence imposed was irregular. Secondly, he has not pointed at any law, statutory or case law, which states that an irregular sentence should lead to the quashing of a conviction, for the setting aside of a judgment would have that effect. If a sentence is irregular, then that ought not to affect the conviction, for the sentence is a consequence of the conviction, but a conviction is not a consequence of the sentence. An irregular sentence can be set aside, without affecting the conviction or judgment. On the relevant evidence or witnesses not being considered, the appellant has not submitted on nor pointed at the said relevant evidence or witnesses, so I have no basis for assessing whether the alleged relevant evidence or witnesses were not considered.

8. The second ground is about the trial court not exhausting all the evidence and submissions given by the appellant. Am not altogether clear on what the appellant means by the trial court exhausting all his evidence and submission. It is submitted that the court did not consider the submissions by the appellant, and failed to submit all the documents for specimen examination before finding the appellant guilty. It is also submitted that the trial court ignored the submission by the appellant that one witness, Ombito, was a critical witness, without whose evidence the conviction could not stand. It is with respect to these two that it is being submitted that the trial court had not exhausted all the evidence and the submissions.

9. I will take the issue of presentation of documents for forensics of examination by handwriting experts and document examiners first. If I understand the appellant well, he appears to be submitting that the trial court failed to submit all the documents presented as exhibits by the prosecution for specimen examination. The appellant has not pointed me to any law which requires a trial court to do so. Criminal prosecutions in Kenya are driven by the Director of Public Prosecutions, under Article 157 of the Constitution of Kenya 2010. It is the responsibility of the Director of Public Prosecutions to present such evidence in court as will establish the case that has been filed. That would include presentation of any documents as evidence. Where it is necessary to subject any document to forensics, that would be the duty of the Director of Public Prosecutions, and not of the trial court. Whether it is necessary for any document to be subjected to such forensics for the purposes of the case, it should be up to the parties, the prosecution and the defence, whichever side requires the evidence, to make that determination, and to have the documents subjected to forensics. It is not the duty of the trial court to direct the parties on what to do with respect to such documents. The trial court is not party to the criminal case, the case belongs to the prosecution and the accused person. It is their duty to gather and present evidence, and there should be no occasion, at any time, for the trial court to engage in gathering and collecting evidence. The system of law in Kenya is adversarial, not prosecutorial or inquisitorial, and the trial court has not role, whatsoever, when it comes to collection and gathering of evidence, and its presentation in court. The duty of the court is limited to receipt of evidence, and determination of questions around its admissibility and the manner of its presentation. The trial court was, therefore, under no obligation to submit any documents for specimen examination. The trial court was neither prosecuting the case, nor conducting an inquiry or inquisition, where it would have had power to requisition for production of evidence of one kind or other. If the defence desired to have any of the documents subjected to forensics, before being admitted, it was open to it to do so, and nothing prevented it from pursuing that course of action. During the trial, the appellant was represented by an Advocate, and at no time did the Advocate object to production of any of the documents, nor intimate that he intended to have any of them subjected to forensics.

10. Regarding the alleged failure by the trial court to consider that the omission by the prosecution to call Ombito as a witness was fatal to the prosecution case, I do note, from the trial record, that Ombito was mentioned by prosecution witnesses as the Advocate before whom the sum of Kshs. 120, 000. 00 was paid and as the one who drew the sale agreement. I note too that the sale agreement, produced as P. Exhibit No. 1, bears the purported signature and date stamp of Gregory J. Ombito, Advocate, and the narrative was that it was signed in his presence. No doubt, Mr. Ombito would have been a critical witness, to confirm whether money changed hands and the parties executed the agreement in question. Was his testimony so critical that without it the prosecution collapsed? I do not think so. Evidence was recorded from other witnesses, who stated what Mr. Ombito would have come to inform the court. The appellant himself confirmed much of that evidence. He confirmed that there was an agreement on the alleged two acres, for Kshs. 140, 000. 00, and he was paid Kshs. 120, 000. 00. The only thing he contested was the nature of the agreement, it was not an agreement for sale of land, according to him, but a lease agreement, and then again he said it was an agreement for sale of cane. He did not provide any document to support the contention that it was a lease agreement or agreement for sale of cane. If he desired to call Mr. Ombito as his witness, nothing prevented him from doing so. It is my finding that the evidence that Mr. Ombito would have tendered was ably tendered by other witnesses, and the trial court was not in error in convicting without testimony from Mr. Ombito.

11. The third ground is that the prosecution evidence and submissions were not proved on a balance of probabilities. With regard to this, it is submitted that the prosecution evidence was full of contradictions. Firstly, I do not understand how the question of balance of probability arises in a criminal case. The standard of proof in criminal cases is beyond reasonable doubt. Proof of a case on a balance of probability is the standard in civil cases, and what was before the trial court was not a civil matter. On contradictions, the appellant has not pointed at any. He has merely submitted that the prosecution was riddled with contradictions, but he has not pointed out any one such contradiction. There is no basis for me to assess, in the circumstances, whether there were any contradictions or not.

12. The fourth ground is about curing a defect in the charge sheet. The defect, that the appellant points out, is that the charge sheet and the sale agreement referred to the land, the subject-matter of the proceedings, as North Wanga/Mayoni/125; while the application to the Land Control Board referred to North Wanga/Mayoni/1257. The trial court, in its judgment, treated the reference, in the charge sheet, to North Wanga/Mayoni/125, as a typographical error, as all the evidence, marshalled by both sides, referred to North Wanga/Mayoni/1257, and ruled that the same was curable, and cited Article 159 of the Constitution. I agree, it was a defect, which suggested that the evidence tendered was not aligned to the charge, with respect to the land in question, but the recorded evidence clearly points to the fact that the parties were not mistaken about the land in contention, and that was North Wanga/Mayoni/1257, and not North Wanga/Mayoni/125. The error was curable, and the trial court did not err in correcting the same in the judgment.

13. In the end, I find that no merit in the appeal herein. I accordingly affirm the conviction, and confirm the sentence. The appellant shall pay the compensation ordered by the trial court forthwith, and in default serve the two years’ imprisonment ordered by the court. The appeal is otherwise dismissed.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF JUNE 2022W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Mukoya, instructed by RV Mukoya & Company, Advocates for the appellant.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the respondent.