[2001] KEHC 267 (KLR)
The court found that the appellant, as an insurance agent, knowingly altered insurance certificates to misrepresent the number of passengers covered, thereby committing forgery as defined under Section 349 of the Penal Code. The evidence from the complainants was clear and corroborated by the appellant's own...
Source-derived case information.
- Citation
- [2001] KEHC 267 (KLR)
- Parties
- Appellant: Gabriel Karani Mwazame; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 508 of ??
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction upheld, sentence reduced
- Legal Topics
- Forgery, Sentencing Principles, Evidence Evaluation, Insurance Fraud
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Karani Mwazame
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the offence of forgery was proved beyond reasonable doubt.
- 2 Whether the charge of forgery was defective.
- 3 Whether the evidence adduced was sufficient to sustain a conviction.
Ratio Decidendi
The court found that the appellant, as an insurance agent, knowingly altered insurance certificates to misrepresent the number of passengers covered, thereby committing forgery as defined under Section 349 of the Penal Code. The evidence from the complainants was clear and corroborated by the appellant's own admissions. The trial magistrate properly considered the defence and acquitted the appellant on other charges, indicating a fair evaluation of the evidence. However, the court held that the maximum sentence of three years was harsh and excessive for a first offender who showed remorse. The court substituted the sentence with 18 months' imprisonment on each count, to run concurrently,...
Court Disposition
conviction upheld, sentence reduced
Orders
- Conviction on both counts of forgery is upheld.
- Sentence of three years' imprisonment on each count is set aside.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA APPELLATE SIDE CRIMINAL APPEAL NO.508 OF 2000 (Being an Appeal from Original Conviction and Sentence in Criminal Case No.824 of 1997 of the Chief Magistrate’s Court at Mombasa – G. Katasi –
GABRIEL KARANI MWAZAME ………………………… APPELLANT
VERSUS
REPUBLIC ………………………………………………… RESPONDENT
J U D G M E N T
The appellant was convicted and sentenced on two charges of forgery contrary to Section 349 of the Penal Code. He now appeals against conviction and sentence.
He complains that the offences were not proved beyond reasonable doubt and that the forgery charge was defective and that evidence was insufficient and scanty, and that his defence was not considered and that he was not given a chance to call his witnesses, and finally the sentence is harsh and excessive in the circumstances.
On the issue of his not being given a chance to call his witness I notice he was explained the provisions of Section 211 C.P.C. and he chose to give unsworn evidence. This was on 13. 9.2000. Judgment was not delivered until 3. 10. 2000. He never asked time to bring his witnesses if any. He did not mention he had witnesses to call. I find the trial magistrate did not hurry up the judgment and this complaint has no basis.
On the issue of his defence the appellant did admit that he had reached an arrangement with the complainants to act as an insurance agent for them. He said –
“I processed the insurance certificates, we used to sit every month, work out commissions and shar e it” They did not bother to find out from me about insurance covers I have given then. I had given out insurance covers as per their applications.”
In fact the actual covers he gave the complainant, PW.1 Ali Salim Bates for Motor vehicle KAG 170M, the policy was recorded as for taxis which carried 4 passengers, but the certificate of insurance had been changed to read “16” passengers instead of 4 passengers. Again the cover for motor vehicle KAG 364G was for a taxi carrying 4 passengers, but certificates given to the complainant Omar Subwano was altered to read “16” passengers.
To these charges the appellant said:-
“I do not know who made the changes on the certificates. This is a mystery to me”
There is evidence that the complainants were matatu owners not taxi drivers. It is clear that the Appellant knew he was dealing with Matatu vehicles and not taxis. He knew the policies required were for 16 persons not 4 persons. As a qualified insurance agent he knew what he was doing. He arranged for insurance for 4 passengers and altered the certificate to read 16 passengers. He therefore committed forgery. It is not true to state that the Trial Magistrate did not consider the defence. She took into consideration everything and acquitted the appellant of the other charges facing him.
The other issue is that of convicting on scanty and insufficient evidence. I have already stated that the Appellant himself admitted several points on the prosecution cases thus supporting the prosecution. The evidence of PW.1 and PW.2 – the owners of the insured vehicle is straightforward and I am satisfied the Trial Magistrate convicted on sufficient evidence.
On the issue of sentence I note the maximum sentence for the offence is imprisonment for a period of three years. In this case the trial magistrate applied the maximum punishment. The appellant is said to be a first offender.The appellant showed remorse in his mitigation. I am of the view that in the circumstances the Trial Magistrate failed to consider mitigating factors and the need to give the offender opportunity to reform.
I therefore find the maximum sentence given harsh and excessive. I uphold the conviction but set aside the sentence of 3 years imprisonment on each of the two counts and substitute the same with imprisonment for a period of 18 months for each count. The imprisonment to commence from date of conviction, and to run concurrently.
Dated at Mombasa this 28th Day of November, 2001.
J. KHAMINWA
COMMISSIONER OF ASSIZE
Read in present of State Counsel Ms. Kwena and the appellant.
J.KHAMINWA
COMMISSIONER OF ASSIZE