https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8566

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL APPEAL NO. E006 OF 2026** **GLORIA KEVOKOLE KAGEMULO………….……………………APPELLANT** **VERSUS** **REPUBLIC…………………………………………………………RESPONDENT** *(Being an appeal against the original conviction and sentence delivered by Hon. M. Murage (P.M) on 24th April 2025 at Kibera Chief Magistrate’s Court Criminal Case No. E596 of 2023 Republic vs Gloria Kevokole Kagemulo)* **JUDGEMENT** 1. The appellant was charged and after a full trial convicted for the offence of obtaining money by false pretences contrary to section 313 of the Penal Code The particulars of the offence are that on 14th November 2020 at Riruta area in Dagoretti Sub County within Nairobi County with the intent to defraud obtained from Eugene Sabwa Kshs. 256,000 by falsely pretending that she was in a position to secure a purchase of a camera in Dubai a fact she knew was false. The appellant was sentenced to serve three (3) years imprisonment. 2. The appellant, aggrieved by both conviction and sentence, filed the present appeal challenging her conviction and sentence. She challenged the totality of the prosecution’s evidence against which she was convicted. Further that the sentence was harsh and excessive. She urged the court the quash the conviction and sentence imposed by the trial court. 3. This being the first appellate court, we are guided by the ruling in **Okeno v. R [1972] EA 32.** In this case, the court opined that a court of first appeal ought to re-examine all the evidence afresh and in an exhaustive manner, to come up with its own conclusions without overlooking the conclusions of the trial court, bearing in mind that it never saw the witnesses testify. 4. The prosecution case was that PW1, Eugene Lois Sabwa, an independent filmmaker, was approached by the appellant on 4th November 2020 with an offer to assist him procure film equipment. Pursuant to that arrangement, PW1 transferred Kshs. 250,000 to the appellant's bank account and subsequently remitted a further Kshs. 6,000 on 16th November 2020. The appellant informed him that the equipment had been shipped from South Africa to Kenya through DHL. However, the equipment was never delivered. PW1 testified that the appellant thereafter ceased communicating with him and stopped answering his calls. 5. PW1 further testified that he reported the matter to Kabete Police Station on 11th April 2021, leading to the appellant's arrest. Although there was no written agreement between them, he stated that the payments were made from his NCBA Bank account to the appellant's Stanbic Bank account on the understanding that the equipment would be delivered within three weeks. 6. PW2, No. 98548 PC Christopher Okello, the investigating officer, produced PW1's bank statements evidencing the transfers made to the appellant. He also produced a copy of a cheque dated 28th July 2021 issued by the appellant which was dishonoured upon presentation. He identified the appellant in court. 7. At the close of the prosecution case, the trial court found that the appellant had a case to answer and placed her on her defence. 8. In her sworn defence, the appellant testified that she and PW1 had previously been in a romantic relationship which ended on 20th August 2020. She stated that she was engaged in the business of importing goods from Dubai. She admitted receiving Kshs. 250,000 from PW1 for the purchase of a Canon camera and a further Kshs. 6,000. According to her, the goods were not delivered due to disruptions occasioned by the COVID-19 pandemic. She further stated that she had remitted various sums to a third party responsible for delivering the goods, amounting in total to Kshs. 256,000. 9. The appellant testified that in February 2021 PW1 became dissatisfied with the transaction and demanded a refund. She stated that she refunded him Kshs. 100,000 and subsequently issued him with a cheque for Kshs. 250,000, which he declined to bank. She further claimed that PW1 demanded additional compensation for damages and sought a total of Kshs. 600,000. By the time of her defence, she maintained that she had refunded Kshs. 200,000. She produced M-Pesa and bank statements in support of her position and stated that she had paid a further Kshs. 50,000 in cash on the hearing date. She urged the court to allow her an opportunity to settle the matter. 10. After the close of the defence, the appellant was convicted and sentenced accordingly. 11. The appeal was canvassed by way of written submissions, which have been duly considered, and there is no need to rehash them. 12. The appellant was charged with the offence of obtaining money by false pretences contrary to section 313 of the Penal Code. It provides as follows: **“Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanour and is liable to imprisonment for three years.”** 1. The offence of obtaining by false pretences under section 313 of the Penal Code requires proof that the accused obtained something capable of being stolen through a false representation of an existing fact, knowing the representation to be false and with intent to defraud. A false pretence is defined under section 312 of the Penal Code as a representation, made by words, writing or conduct, of an existing fact which is false and which the maker knows to be false. 2. In the present case, it is not disputed that PW1 transferred a total sum of Kshs. 256,000 to the appellant. PW1's evidence was that the appellant represented to him that she would procure and deliver film equipment on his behalf. Acting on that representation, he transferred Kshs. 250,000 on 4th November 2020 and a further Kshs. 6,000 on 16th November 2020. The appellant assured him that the equipment had been dispatched from South Africa through DHL and would be delivered within three weeks. No equipment was ever delivered. 3. The appellant admitted receiving the money. Her defence was that she was engaged in the business of importing goods and that delivery was frustrated by disruptions occasioned by the Covid-19 pandemic. She further contended that she had forwarded funds to a third party for purposes of procuring the equipment and later refunded part of the money to PW1 when the transaction failed. 4. The issue for determination is whether the appellant's conduct amounted to a criminal offence or merely a failed commercial transaction. The evidence on record demonstrates that the appellant received the purchase price, repeatedly assured PW1 that the equipment had been shipped and was en route to Kenya, yet failed to produce any shipping documents, import records, delivery notes, DHL tracking details or any independent evidence to demonstrate that the equipment had in fact been purchased or dispatched. 5. Although the appellant claimed to have remitted funds to a third party, she did not call that person as a witness nor produce documentary evidence linking the alleged payments to the purchase of the equipment. Her explanation therefore remained uncorroborated. The court is entitled to draw an adverse inference where facts peculiarly within the knowledge of an accused person are not satisfactorily explained, pursuant to section 111 of the Evidence Act. 6. Further, the appellant's conduct after receiving the money lends credence to the prosecution case. PW1 testified that communication broke down and that the appellant stopped answering his calls. The appellant subsequently issued a cheque to PW1 which was dishonoured upon presentation. These circumstances are inconsistent with a genuine commercial transaction and support the inference that the representations made to PW1 were false. 7. Having re-evaluated the evidence, I am satisfied that the prosecution established beyond reasonable doubt that the appellant obtained Kshs. 256,000 from PW1 by falsely representing that she would procure and deliver film equipment. The representation induced PW1 to part with his money. The subsequent failure to deliver the equipment, coupled with the absence of any credible evidence that the procurement process had been undertaken and the issuance of a dishonoured cheque, demonstrate an intention to defraud. 8. I therefore find that the essential ingredients of the offence of obtaining by false pretences were proved beyond reasonable doubt. The conviction was supported by the evidence and the trial court cannot be faulted for arriving at that conclusion. The appeal against conviction accordingly fails. 9. As regards sentence, the appellant was sentenced to three (3) years' imprisonment. Sentencing is a matter within the discretion of the trial court and an appellate court will only interfere where the sentence is illegal, excessive, manifestly harsh, or where the court acted on wrong principles. 10. In the present case, the record shows that the appellant has reimbursed the complainant the entire sum forming the subject of the charge. To the extent that the complainant may consider himself entitled to any further compensation, damages, or interest arising from the transaction, such claims properly lie in civil proceedings and not within the criminal process. The primary loss that formed the basis of the conviction has therefore been substantially addressed. 11. I have further taken into account that the appellant has already served approximately one year and two months of the custodial sentence imposed by the trial court. Considering the circumstances of the offence, the restitution made to the complainant, the period already served, and the objectives of sentencing, I am satisfied that the period already spent in custody constitutes sufficient punishment for the offence committed. 12. Accordingly, while the conviction is upheld, I find that the time served is sufficient. The appellant shall therefore be released forthwith unless otherwise lawfully held. Orders accordingly. **Judgement dated and delivered virtually this 17th day of June 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE** **In the presence of:** Appellant Absent Mutuma for the Respondent Bury Court Assistant.