[2003] KEHC 262 (KLR)
The court found that the appellant made false representations to the complainant, leading him to believe he was the owner of the plot and worked with the City Council. The complainant acted on these representations and paid the appellant Ksh.17,400,000, only to later discover the appellant neither owned the plot nor...
Source-derived case information.
- Citation
- [2003] KEHC 262 (KLR)
- Parties
- Appellant: Gabriel Njoroge Mbuthia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 972 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal against conviction dismissed; sentence reduced.
- Legal Topics
- Obtaining by False Pretence, Sentencing Review, Fraud Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Njoroge Mbuthia
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for obtaining money by false pretence was supported by the evidence.
- 2 Whether the sentence imposed was excessive given the appellant's health and status as a first offender.
Ratio Decidendi
The court found that the appellant made false representations to the complainant, leading him to believe he was the owner of the plot and worked with the City Council. The complainant acted on these representations and paid the appellant Ksh.17,400,000, only to later discover the appellant neither owned the plot nor worked for the City Council. The court held that the evidence established all elements of obtaining by false pretence. The failure of the forgery charges did not affect the validity of the obtaining charge. However, considering the appellant's ill health and status as a first offender, the court found it appropriate to reduce the sentence from 2 ½ years to 12 months imprisonment.
Court Disposition
Appeal against conviction dismissed; sentence reduced.
Orders
- The appeal against conviction is dismissed.
- The sentence is reduced to twelve months imprisonment.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA
AT NAIROBI CRIMINAL CASE NO.972 OF 2002 (From Original Conviction and Sentence in Criminal Case No.2046 of 1999 of the Chief Magistrate’s Court at Nairobi)
GABRIEL NJOROGE MBUTHIA……………………… APPELLANT
VERSUS
REPUBLIC……………………………………………. RESPONDENT
JUDGMENT
The appellant in this case preferred an appeal against both conviction and sentence against the judgment of the chief magistrate Nairobi one Mr. Boaz Olao Esquire. The appellant was sentenced to 2 ½ years imprisonment on a charge of obtaining money by false pretence contrary to section 313 of the Penal Code. The particulars are that on diverse days between the 20th day of May 1988 and 7th September 1988 at New Pub Towers along Uhuru Highway Nairobi, within Nairobi area, jointly with others not before the Court with an intent to defraud obtained Ksh.17400000/= from Mike Maina by falsely pretending that the accused and three others were in a position to sell to the said Mike Maina a plot No.LR No.23917 deed plan No.218858 Kayole (Fr No.342/50).
The appellant appeared in person also filed his grounds of charges too.
The appellant has also submitted that the sentenced of 2 ½ years imprisonment was too harsh to him and prays that he be given an alternative sentence if his appeal will not succeed. The appellant has argued that he is sickly and produced a medical report in support of his appeal. Miss Nyamosi for the state opposed the appeal and argued that the evidence adduced proved that all the ingredients of the offence is that the appellant made a representation, which was false and that the said representation was intended to defraud the complainant.
I have considered the evidence on record very carefully. There is no doubt from the evidence on record that P.W.1 was approached by the appellant to buy a plot. The appellant made P.W.1 believe that he was the owner of the same and that he worked with the City Council. The appellant negotiated the piece of the plot with P.W.1. Acting on the appellant’s representation P.W.1 paid the sum on issue only to discover that the appellant was not the owner of the plot but the City Council. He also discovered that the appellant did not work for the City Council. If the appellant had not obtained any money from P.W.1, the appellant would not have ran away to Uganda nor would have offered to repay the money. From my close perusal of the proceedings I am not satisfied that this appeal has any merits. The fact that the charges of forgery failed does not necessary mean that the obtaining charges should fail as argued by the appellant I dismiss the appellants appeal against conviction accordingly.
As concerns sentence, I am of the view that given the appellant’s current health there is need and the fact that he was a first offender, there is need to review his sentence. I therefore reduce the appellants jail sentence to one of twelve months imprisonment.
R.M. MUTITU
JUDGE
10/4/2003
Delivered dated and signed in open court in the presence of Miss Nyamosi for the state and in the presence of the appellant.
R.M. MUTITU
JUDGE
10/34/2003