[2022] KEHC 15414 (KLR)

Gitari v Republic (Criminal Appeal E085 of 2022) [2022] KEHC 15414 (KLR) (9 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15414 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E085 of 2022

TW Cherere, J

November 9, 2022

Between

Nanys Kananu Gitari

Appellant

and

Republic

Respondent

(Being an appeal against judgment, conviction and sentence in Nkubu Criminal Case No. 427 of 2020 by Hon. J.Irura (SRM) on 23. 05. 2022)

Judgment

1. Appellant was charged with the following counts:Count IObtaining by false pretences contrary to Section 312 as read with Section 313 of the Penal Code. The particulars which are that on 12th May, 2020 at Times U Sacco Society Limited Nkubu Township in Imenti South Sub County within Meru County with intent to defraud and jointly with others obtained KES. 400,000/- by presenting an I & M Bank Cheque No. 000023 drawn by Famous Steel Stores Ltd dated 06th May, 2020 while knowing that the drawer had instructed the bank not to honour the said cheque.Count IIIssuing a bad cheque contrary to section 316A (1) (c) of the Penal Code. The particulars which are that on 06th May, 2020 at Times U Sacco Society Limited Nkubu Township in Imenti South Sub County within Meru County with intent to defraud issued an I & M Bank Cheque No. 000023 for KES. 400,000/- drawn by Famous Steel Stores in favour of Karan Steel 2019 Ltd knowing that the drawer had instructed the bank not to honour the said cheque.Count IIIMaking a false document contrary to Section 347 (a) as read with Section 349 of the Penal Code the particulars of which are that on 23rd April, 2019 at an unknown place within the Republic of Kenya and with intent to defraud made a pin certificate no. P051502198K in the name of Famous Steel Stores Ltd purporting it to be a genuine pin certificate issued by KRACount IVUttering a false document contrary to Section 353 of the Penal Code the particulars of which are that on 06th May, 2020 at Times U Sacco Society Limited Nkubu Township in Imenti South Sub County within Meru County with intent to defraud knowingly uttered a pin certificate no. P051502198K in the name of Karan Steel 2019 Ltd to Arnold Munene which you had made without lawful authorityCount VConspiracy to defraud contrary to Section 317 of the Penal Code the particulars of which are that on diverse dates between 27th March and 12th May, 2022 08. 05. 2019 at Times U Sacco Society Limited Nkubu Township in Imenti South Sub County within Meru County jointly with another not before court with intent to defraud by issuing an I & M Bank Cheque No. 000023 for KES. 400,000/- by falsely pretending you were a director of Karan Steel 2019 Ltd.Count VIPersonation contrary to Section 382 of the Penal Code the particulars of which are that that on 08. 05. 2019 at Nkubu Township in Imenti South Sub County within Meru County with intent to defraud presented yourself to be a director of Karan Steel 2019 Ltd.

The prosecution’s case 2. On 27th March, 2020, Appellant and one David Gitonga Wandimi appeared before Arnold Munene at Times U Sacco Society Limited Nkubu Township with an intention to open an account in the name of Karan Steel 2019 Ltd and they presented to him memorandum and articles of association, their respective Identity Cards, Certificate of incorporation, pin certificate for Karan Steel 2019 Ltd, the photographs of the 2 applicants and an application form. That Appellant and the other paid KES. 500 and an account in the name of Karan Steel 2019 Ltd was opened and a bank card issued. That subsequently, an I & M Bank Cheque No. 000023 drawn by Famous Steel Stores Ltd deposited on 06th May, 2020 was cleared from which KES. 300,000/- was withdrawn on 12th May, 2020 over the counter by Nanys Kananu (Appellant) and the balance via mobile platform. Daniel Waweru the bank’s finance manager confirmed that he cleared the cheque in question on 12th May, 2020 and on 13th May, 2020 got information that the cheque had been stopped by the drawer. Vijay Anwadia stated that on 06th May, 2020, he signed an I & M Bank Cheque No. 000023 for KES. 400,000/- drawn by Famous Steel Stores Ltd in favour of Karan Steel 2019 Ltd, sent it by Wells Fargo but Karan Steel 2019 Ltd informed him the cheque was not delivered. That he instructed his bank not to honour the cheque but it was paid. PC Gichuhi investigated the case and caused Appellant to be charged.

Defence case 3. In her sworn defence, Appellant stated that the cheque was given to her by David Gitonga who also prepared all the documents in this matter and that she did not know they were fraudulent. Appellant confirmed that she withdrew KES. 300,000/- on 12th May, 2020

Conviction 4. The learned trial magistrate found all the 6 counts proved. Appellant was convicted and fined KES. 100,000/- in default one-year imprisonment in each count.

The Appeal 5. The conviction and sentences provoked this appeal in which Appellant raises grounds as follows:1. The court did not consider that the employees of negligent2. Prosecution evidence was not corroborated3. The court ordered that sentences run consecutively4. Appellant’s mitigation was not considered

Analysis and Determination 6. On first appeal from a conviction by a judge or magistrate, the appellant is entitled to have the appellate court's own consideration and view of the evidence as a whole and its own decision thereon. The court has a duty to rehear the case and reconsider the material before the judge or magistrate with such materials as it may have decided to admit. (See Kariuki Karanjavs Republic [1986] KLR 190).

7. I have considered the appeal in the light of the evidence on record, the grounds of appeal and submissions by Appellant and the State not having filed submissions and I will consider them in respect of each count as follows:

Count 1 8. By her defence, Appellant conceded that she and one David Gitonga 06th May, 2020 went to Times U Sacco Society Limited Nkubu Township and thereby presented to Arnold Munene a memorandum and articles of association, their respective Identity Cards, Certificate of incorporation, pin certificate no. P051502198K for Karan Steel 2019 Ltd, their photographv and an application form. The trial magistrate found as a fact that indeed an account was opened 6864010400343 was opened in the name of Karan Steel 2019 Ltd into which account was deposited an I & M Bank Cheque No. 000023 drawn by Famous Steel Stores Ltd deposited on 06th May, 2020 was cleared out of which Appellant conceded withdrawing KES. 300,000/- on 12th May, 2020.

9. Having conceded that she was not a director of Karan Steel 2019 Ltd, and even though there is no evidence that the cheque for KES. 400,000/- had been stopped, the finding that Appellant and another with intent to defraud jointly with another obtained KES. 400,000/- meant for Karan Steel 2019 Ltd was proved and the conviction on count 1 well founded.

Count 2 10. The I & M Bank Cheque No. 000023 was drawn by Famous Steel Stores Ltd and not the Appellant.

Count 3 11. No evidence was availed from Kenya Revenue Authority to confirm that pin certificate no. P051502198K in the name of Famous Steel Stores Ltd was not a genuine pin certificate issued by KRA.

Count 4 12. There being no evidence that pin certificate no. P051502198K not a genuine pin certificate issued by KRA, the charge of uttering the same on grounds that it was false fails.

Count 5 13. In Archibold: Writing on Criminal Pleadings, Evidence and Practice, 1999 3rd Edn the learned writers observe at pages 3025 and 3026 that: -“The offence of conspiracy cannot exist without the agreement, consent or combination of two or more persons........ so long as a design rests in intention only, it is not indictable; there must be agreement. The agreement may be proved in the usual way of proving circumstances from which the jury may presume it....... Proof of the existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them.” (Emphasis added).

14. Proof of the existence of a conspiracy can safely be deduced from the criminal acts of the Appellant and David Gitonga to prepared documents and open an account in the name of a company to which they were not directors. The finding that there was a conspiracy was therefore well founded.

Count 6 15. From what is stated hereinaboe, I find that the finding that Appellant presented herself as a director of Karan Steel 2019 Ltd which she was not was equally well founded.

Sentences 16. Section 28 of the Penal Code gives the general principles on fines that:1. Where a fine is imposed under any law, then in the absence of express provisions relating to the fine in that law the following provisions shall apply—c.in the case of an offence punishable with imprisonment as well as a fine in which the offender is sentenced to a fine with or without imprisonment, and in every case of an offence punishable with fine only in which the offender is sentenced to a fine, the court passing sentence may, in its discretion—i.direct by its sentence that in default of payment of the fine the offender shall suffer imprisonment for a certain term, which imprisonment shall be in addition to any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of sentence(3)The imprisonment or detention which is imposed in default of payment of a fine shall terminate whenever the fine is either paid or levied by process of law.

17. My understanding of this provision is that imprisonment terms imposed in default of payment of the fines ought to run consecutively and not concurrently. The sentences passed by the trial court are in my humble view reasonable and fair and do not merit this court’s interference.

18. Accordingly, and for the reasons set out hereinabove, I make the following orders:1. The conviction and sentences on counts 1, 5 and 6 are upheld2. The conviction on Counts 2, 3 and 4 are quashed and the sentences set aside3. If Appellant does not pay the fine that was imposed on counts 1, 5 and 6, she shall serve the imprisonment terms consecutively one after the other.

DELIVERED AT MERU THIS 09TH DAY OF NOVEMBER 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAppellant - Present in personFor State - Ms. Mwaniki (PPC)