https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11759

Njeri v Republic & 2 others (Criminal Appeal E145 of 2025) [2026] KEHC 11759 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 11759 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E145 of 2025 DR Kavedza, J July 29, 2026 Between Hannah Njeri Appellant and Republic 1st Respondent Francis Njagi 2nd Respondent Wilson Kihumba 3rd Respondent (Being an appeal against the original conviction and sentence delivered on 9th October 2025 by Hon. M. Murage (PM) at Kibera Chief Magistrate’s Court Criminal Case no. E1652 of 2021) Judgment 1.The appellant was charged with two counts of offences. Count I conspiracy to defraud contrary to section 317 of the Penal Code, while Count II obtaining money by false pretences contrary to section 313 of the Penal Code. Following a full trial, she was convicted on Count I and sentenced to pay a fine of Kshs. 100,000, in default to serve one (1) year's imprisonment. 2.Aggrieved by both conviction and sentence, the appellant lodged the present appeal. In her petition of appeal, she contends that the learned trial magistrate erred in law and fact by equating her association with the second and third respondents with proof of conspiracy to defraud, and by finding that the prosecution had proved its case beyond reasonable doubt. 3.This being a first appeal, this Court is obliged to re-evaluate and analyse the evidence adduced before the trial court and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. This duty was set out in Okeno v R [1972] EA 32. 4.The prosecution called five witnesses. PW1, Michael Waruiru Mburu, the complainant, testified that between May and July 2021 he advanced the appellant, together with the second and third respondents, a total of Kshs. 5,600,000. The funds were advanced on the representation that they were engaged in a profitable gold mining business. To support that representation, the complainant was shown a mining licence for Wilema Holdings Limited, a copy of which he retained and later produced in evidence. 5.When the promised business venture failed to materialise, the complainant reported the matter to Kabete Police Station. Following investigations, his statement was recorded and the appellant together with the second and third respondents were arrested. 6.PW2, Victor Kamau, testified that on 26th May 2021, at the complainant's instruction, he transferred Kshs. 55,000 to the appellant. PW3, Samuel Muriuki Maina, similarly testified that on the same date he transferred Kshs. 215,000 to the appellant on the complainant's instructions. PW4, Kenneth Njuguna Mbugua, testified that on 24th June 2021 he transferred Kshs. 94,000 to the appellant. 7.PW5, Police Constable Ernest Kinyua, the investigating officer, testified that investigations into transactions involving the complainant and the second respondent, who was under investigation in another matter, raised suspicion. The complainant was summoned to the DCI Nairobi Region Headquarters and was subsequently advised to report the matter to the DCIO Dagoretti Sub-County. The witness testified that investigations established that most of the money obtained from the complainant had been transferred to the appellant, and he produced the relevant M-Pesa and Equity Bank statements. 8.At the close of the prosecution case, the trial court found that a prima facie case had been established and placed the appellant, together with the second and third respondents, on their defence. 9.DW1, Francis Njagi, the second respondent, testified that he ventured into the gold mining business after being introduced to the third respondent. Owing to insufficient capital, they approached the appellant, who sourced funding from the complainant. He maintained that the parties intended to share the anticipated profits had the venture succeeded. 10.DW2, Wilson Kihumba Githinji, the third respondent, similarly testified that he had acquired gold and entered into the venture with the complainant, the appellant and the second respondent. 11.DW3, the appellant, denied conspiring to defraud the complainant, maintaining that she also invested her own funds in the venture and merely assisted with errands connected to the business. 12.Upon considering the evidence, the trial court convicted the appellant on Count I and sentenced her accordingly. 13.In order to succeed in a prosecution for the offence of conspiracy to defraud, the elements outlined in law as well as established jurisprudence ought to be proven beyond reasonable doubt. In the case of Republic v Sayi & 2 others [2025] KEHC 4566 (KLR), the Court in defining the term ‘conspiracy’ was persuaded by the Court of Appeal in Gichanga v Republic [1993] KLR 143 which held that;“With respect to the offences of conspiracy, the crucial issue is whether the appellant and his fellow conspirators acted in concert with the intention that the Board be induced to part with its money.” 14.Thereafter, former court in their ratio opined thus;“Applying the above principles to the facts and circumstances of this case, this court is being required to determine whether the prosecution proved that there was a meeting of minds to constitute the offence of conspiracy. The issue is whether the evidence before the lower court demonstrated that the Respondents were acting with the common intention of defrauding the complainant.” 15.In the present case, the prosecution evidence was required to establish a common design between the appellant, the second respondent and the third respondent to induce the complainant to invest in what was presented as a lucrative gold mining venture. 16.PW1 testified that the three acted in concert in soliciting funds from him over a period between May and July 2021. They represented that they were engaged in a genuine gold mining business and even furnished him with a mining licence for Wilema Holdings Limited to lend credibility to their representations. The evidence of DW1 and DW2 did not distance the appellant from the transaction. On the contrary, both admitted that they worked together with the appellant in sourcing investment capital from the complainant for the alleged business. Those admissions corroborated the prosecution's case that the three were acting in concert. Their coordinated actions, viewed alongside the representations made to the complainant, irresistibly point to a prior agreement and a common intention to obtain money from the complainant under the guise of a legitimate investment. 17.The offence of conspiracy is rarely proved by direct evidence and may properly be inferred from the conduct of the parties before, during and after the transaction. In the circumstances of this case, the evidence sufficiently established the existence of a conspiracy to defraud. 18.The evidence was further required to demonstrate that the conspiracy was successfully executed. 19.PW5, Police Constable Ernest Kinyua, the investigating officer, testified that investigations revealed that a substantial portion of the complainant's funds, amounting to approximately 80% of the total sum of Kshs. 5,600,000, was transferred to the appellant. This evidence was corroborated by the M-Pesa and Equity Bank statements produced before the trial court. PW2, PW3 and PW4 also confirmed that, at the complainant's request, they transferred various sums directly to the appellant in furtherance of the purported investment. 20.Despite these substantial payments, the promised gold mining venture neither materialised, nor were the promised returns realised. The evidence therefore established that the representations made to the complainant were false and were intended to induce him to part with his money. 21.As a consequence, the complainant suffered substantial financial loss, while PW2, PW3 and PW4 also lost the monies they had advanced towards the purported venture. The trial court was therefore entitled to conclude that the appellant, acting together with the second and third respondents, had conspired to defraud the complainant. 22.The conviction of the trial court was therefore proper and is upheld. 23.The appellant was sentenced to pay a fine of Kshs. 100,000 and in default to serve one (1) year imprisonment. During sentencing, the court considered the pre-sentence report, and the aggravating circumstances surrounding this case and exercised discretion. Based on this premise, I see no reason to interfere with the sentence. 24.In the end, the appeal is found to be lacking in merit and is dismissed in its entirety.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 29TH DAY OF JULY 2026_____________D. KAVEDZAJUDGEIn the presence of:Mr. Wangatia for the AppellantMr. Mutuma for the RespondentKarimi Court Assistant.