[2023] KEHC 26652 (KLR)

Hashim v Republic (Criminal Appeal E050 of 2021) [2023] KEHC 26652 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26652 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal E050 of 2021

DR Kavedza, J

December 8, 2023

Between

Longton Jamil Hashim

Appellant

and

Republic

Respondent

(Being an appeal against conviction and sentence delivered by Hon. B. Cheloti (SRM) on 6th December 2021 at Kajiado Chief Magistrate’s Court Criminal Case No. 1264 of 2018 Republic vs Longton Jamil Hashim)

Judgment

1. The appellant was charged and, after a full trial, convicted for the offence of obtaining registration by false pretence, contrary to Section 320 of the Penal Code, Cap. 63 Laws of Kenya. He was sentenced to serve one (1) year imprisonment. Being dissatisfied, he filed an appeal challenging his conviction and sentence.

2. In his petition and supplementaty petition of appeal, he raised grounds which have been coalized as follows: He challenged the totality of the prosecution’s evidence against which he was convicted. He contended that the sentence was harsh and excessive.

3. As this is the appellant's first appeal, the role of this appellate court of first instance is well settled. It was held in the case of Okeno vs Republic [1972] EA 32 and further in the Court of Appeal case of Mark Oruri Mose vs Republic [2013] eKLR that this court is duty-bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that.

4. Vicky Kemunto Ocharo (PW 1) testified that she entered into a relationship with the appellant in September 2018. She decided to start a water vending business in Kitengela. She purchased a Tuk Tuk for Kshs. 276,000 for transportation on March 12, 2018, with the appellant's assistance. She paid for the Tuk Tuk in installments, and the appellant lent her Kshs. 20,000, which she later refunded.

5. Differences arose between herself and the appellant over inconsistent bank deposits from the business. She requested the appellant to return the Tuk Tuk to her, but he refused. Later, she discovered that her logbook was missing, and reported it to the police and at NTSA. She found out that the appellant had initiated a fraudulent transfer of the Tuk Tuk ownership to himself.

6. NTSA successfully reversed the ownership back to her and she was issued a new logbook. It was revealed that the phone number used to register the TIMS account belonged to the appellant, as confirmed by communication from Airtel Networks Kenya.

7. PW2 presented exhibits, which included photographs, a certificate, and a verification report.

8. Jane Kanini (PW 3), an employee at Makindu Motors, testified that on March 12, 2018, two customers, PW1 and the accused, came to buy a Tuk Tuk. They agreed on a purchase price of Kshs. 267,000, paid by PW1, who received a receipt and had the logbook transferred from Makindu Motors to PWI's name.

9. Michieme Mogere Jason (PW4) was a Tuktuk operator hired by the appellant to drive the Tuktuk that he claimed to have bought from Makindu Motors. He used to pay Kshs. 600 per day to the bank account of Vicky Kemunto Ocharo (PW1), who was the actual owner of the Tuktuk. After two weeks, the appellant fired him and found another rider who could pay more.

10. Patrick Musyoka (PW5), was hired as the Tuktuk rider following PW4 in April 2018. They reached an agreement that PWS would deliver Kshs 800 per day to the accused person's Cyber Cafe in Kitengela, a commitment he fulfilled during the four months he operated PWI's Tuktuk.

11. Alex Katumo (PW6) worked as a Tuktuk driver for both PW1 and the appellant. He drove the Tuktuk with the registration number KTWB 929M and paid Kshs. 800 per day to the appellant’s cyber café. He said that he was aware of another Tuktuk, KTWB 928M, which was driven by PW5 and was seized by the police. Later, the Tuktuk was returned to PW1.

12. Duncan David Odekeyo (PW7) was an NTSA officer who received a letter from DCIO Kajiado requesting information about the Tuktuk registration No. KTWB 929M, which was reported to be fraudulently transferred by the appellant from PW1. PW7 checked the NTSA system and found that the Tuktuk was imported by Makindu Motors and registered to PW1, who later lost her logbook. The appellant used his phone number to initiate a transfer of the Tuktuk to himself, but PW1 requested a reversal and a caveat. NTSA reversed the transfer and re-issued a duplicate logbook to PW1.

13. PC Boniface Mulinye (PW8) was a DCI Officer working for Airtel Kenya. He received a court order to provide the registration details of the phone number 078089xxxx, which was used to register the Tuktuk on the NTSA portal. He searched the Airtel Network system and found that the number belonged to Longton Hashim Jamil (the appellant), who registered it on 18th November, 2017. He produced the search document and the certificate as exhibits in court.

14. PC Quinto Odeke (PW9) was a DCI Officer working for Safaricom Ltd. He received two court orders from Kajiado Law Courts to investigate four mobile numbers and provide their Mpesa statements and registration details. The numbers were 072278xxxx 072189xxxx, 072278xxxx, and 072189xxxx. The Mpesa statements showed the transactions related to the purchase and transfer of the Tuktuk in question. The registration details showed that the numbers belonged to Tito Munyalo, Longton Jamil Hashim (the appellant), Vicky Kemunto Ocharo (PW1), and Longton Jamil Hashim respectively. PW9 produced a certificate confirming the authenticity of the documents.

15. Inspector Edger Mwamuye (PW10) was the investigating officer of the case involving the ownership of a Tuktuk registered to PW1, which the appellant tried to transfer to himself. He received a report from Cpl. Karanja wrote a letter to NTSA to get information about the Tuktuk. He also filed three court orders to get the registration and Mpesa details of four mobile numbers related to the case. He found out that the appellant used his phone number to initiate the transfer of the Tuktuk on the NTSA portal, and that PW1 paid for the Tuktuk using her gratuity money from IPOA. He also found out that PW1 reported the loss of her logbook and requested a reversal of the transfer from NTSA. He obtained a recommendation from ODPPto charge the appellant with obtaining by false pretences and detained the Tuktuk at the police station. He testified that PW1 was the legal owner of the Tuktuk and that the appellant denied his allegations.

16. Sammy Wambugu (PW 11) was the branch Manager of Standard Chartered Bank Harambee Avenue Branch. He testified that the bank statement of Vicky Kemunto Ocharo (PW1) for her account No. 0100358916400 was genuine. The statement showed the mobile money transfers from her account to Mpesa that she used to buy the Tuktuk. It also showed the transfer of the gratuity from IPOA of Kshs. 1,199,408 50.

17. After the close of the prosecution's case, the appellant was found to have a case to answer and was put on his defence. In his defence, he gave sworn testimony and did not call any witnesses. He testified that he and Vicky Kemunto (PW1) were business partners who bought a Tuktuk together from Makindu Motors in 2016. He claimed that he paid more than half of the price and that the transfer was done jointly. He denied transferring the Tuktuk to PW1 or committing any offence. He said that he had no written agreement with PW1 and that it was a mutual understanding. He maintained his innocence against the charges.

Analysis and determination. 18. I have re-assessed the entire evidence as a first appeal court. Section 320 of the Penal Code provides that:320. Any person who wilfully procures or attempts to procure for himself or any other person any registration, licence or certificate under any law by any false pretence is guilty of a misdemeanour and is liable to imprisonment for one year.

19. On the other hand section 312 of the same Code defines “false pretence” thus:312. Any representation, made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false or does not believe to be true, is a false pretence.

20. The document which the appellant is alleged to have procured for himself or any other person by false pretence is a logbook for a Tuk Tuk registration number registration No. KTWB 928M Chassis No. LF3H DN OAX HP01xxxx. The appellant did not dispute that he procured the registration of the logbook but intimated that the same was not by false pretence. The evidence of the prosecution was in effect that the entries relied on by the appellant in his registration were not genuine as he was not the purchaser of the Tuktuk.

21. The ingredients of the offence of false pretence from the definition are that; there must be a representation on matters of fact about the past or present; that representation must be false and it must have been made with the intent of defrauding someone of his property. It must have been acted upon to the disadvantage of the complainant. The prosecution must therefore prove these ingredients to succeed in the case of obtaining registration by false pretence.

22. The evidence adverted to above leaves no doubt in my mind that the appellant was properly convicted of the offence of obtaining registration of the motor vehicle in the name of Vicky Kemunto Ocharo by false pretence to himself. He willfully and knowingly transferred ownership of the Tuktuk to himself using the complainant's login details to himself. The logbook was presented as being genuinely acquired and while he knew it was false. The ingredients of the offence of false pretences as explained by the court of appeal in Criminal App. No 12 of 1989 Mathlida Akinyi Oware vs Republic[1989]eKLR(Apaloo, Masime JJ A & Gicheru Ag JA) were duly proved.

23. The appellant contends that they entered into a partnership with the complainant and paid Kshs.128,000 as part of the purchase price. This was his defence and though he was under no obligation in law to prove anything all that he needed to do was to have produced instruments in support of this transaction at the initial trial. This contention did not cast doubt on the prosecution’s evidence.

24. It is also noted that from the record, the complainant did not state anywhere in her evidence that she neither sold the Tuk Tuk to the appellant nor was she in partnership with her. From the transfer of the logbook from Makindu Motors to the complainant and then to the appellant, there was sufficient proof of the fraudulent procurement of the property to himself.

25. The prosecution evidence dispelled the appellant’s notion that he was a rightful purchaser and there was abundant documentary evidence that proved that the appellant knew that there was another will sole proprietorship interest.

26. This court is satisfied that the prosecution proved all the key ingredients of the offence in Count II; that the manner the appellant procured the registration was done wilfully and under false representation of facts; that there was a pretence that emanated from the appellant; that the appellant had full knowledge of documented and pre-existing facts and knew of the falsity of their representation which led to procure its registration; his wilful intention was to defraud PW 1 of the property; and that he indeed procured for himself the registration of the property as the sole rightful proprietor. The appellant’s conviction is consequently sustained.

27. On sentence, the appellant was sentenced to serve one (1) year imprisonment. He submitted that the sentence was harsh and excessive. The provisions of Section 320 of the Penal Code provides for a sentence of 3 years imprisonment if found guilty.

28. It is trite law that an appellate court will not interfere with the discretion exercised by the trial court when passing sentence unless it is evident that the trial court acted upon a wrong principle of law or overlooked some material factors.

29. The record shows that the appellant was a first offender and the trial court considered his mitigation. There are therefore no valid reasons advanced by the appellant that warrant interference with the sentence. The sentence is found to be legal and not to be harsh and excessive.

30. The upshot of the above is that the appeal is found to be lacking in merit and is dismissed.

Orders accordingly.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 8THDAY OF DECEMBER, 2023. ___________________D. KAVEDZAJUDGEIn the presence of: