https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12345

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **HIGH COURT CRIMINAL APPEAL NO E031 OF 2025** **ISAAC MUTEMBEI RUKARIA …………………….……..APPEALLANT** **VERSUS** **REPUBLIC ………………………………….…………….... RESPONDENT** **JUDGMENT** 1. The Appellant herein, one ISAAC RUKARIA MUTEMBEI was charged in the Lower Court with another person who was eventually acquitted, with eleven counts as follows:- **1st Count:-** **Obtaining money by false pretences contrary to Section 313 of the Penal Code, of which particulars are that on the 5th day of December 2022 at Meru Town in Imenti North Sub-County within Meru County, with intent to defraud, jointly with others not before Court obtained Kenya Shillings 450,000/- from Lucy Kagwiria Kithinji by falsely pretending that they were in a position to sell to her a portion of land No. NTIMA/NTAKIRA/5399 a fact they knew was not true.** **2nd Count:** **Obtaining money by false pretences contrary to Section 313 of the Penal Code, of which particulars are that on the 5th day of December 2022 at Meru Town in Imenti Sub-County within Meru County, with intent to defraud, jointly with others not before Court obtained Kshs 450,000/- from Lucy Kagwiria by falsely pretending that they were in a position to sell to her a portion of land No. NTIMA/NTAKIRA/4862, a fact they knew not to be true.** **3rd Count:-** **Personation contrary to Section 382 of Penal Code, of which particulars are that on the 5th day of December 2022 in Meru Town in Imenti North Sub-County within Meru County, Isaac Mutembei Lukaria (2nd Accused), with intent to defraud, falsely represented himself to be JAMES K. MAINA, to LUCY KAGWIRIA KITHINJI.** **4th Count:** **Making a document without authority, contrary to Section 357(a) of the Penal Code, of which particulars are that on an unknown date at unknown place within the Republic of Kenya, jointly with others not before Court and with intent to defraud/deceive forged a Title Deed for land Number NTIMA/NTAKIRA/5399 purporting it to be genuine Title Deed issued by Meru Land Registry.** **5th Count:-** **Uttering a false document, contrary to Section 353 of the Penal Code, of which particulars are that on 5th day of December, 2022 at D. M. Manyara Advocate’s Offices in Meru Town in Imenti North Sub-County within Meru County, jointly with others not before Court knowingly and fraudulently uttered a forged Title Deed Number NTIMA/NTAKIRA/5399 to D.M. Manyara Advocate.** **6th Count:** **Making document without authority, contrary to Section 357 (a) of the Penal Code, of which particulars are that on unknown date and unknown place, within the Republic of Kenya, jointly with others not before Court and with intent to defraud/deceive, forged Title Deed Land Number NTIMA/NTAKIRA/4862 purporting it to be genuine Title Deed issued by Meru Land Registry.** **7th Count:-** **Uttering a false document, contrary to Section 353 of the Penal Code; of which particulars are that on 5th day of December, 2022 at D. M. Manyara Advocates’ Offices in Meru Town in Imenti North Sub-County within Meru County, jointly with others not before Court, knowing and fraudulently uttered a forged Title deed No. NTIMA/NTAKIRA/4862 to D. M. Manyara Advocate.** **8th Count:** **Forgery, Contrary to Section 345 of the Penal Code, of which particulars are that on an unknown date at unknown place within the Republic of Kenya, ISAAC MUTEMBEI RUKARIA (2nd Accused), jointly with others not before Court and with intent to defraud/deceive, forged Kenya Revenue Authority PIN Certificate Number A006888568Z purporting it to be genuine PIN Certificate issued by Kenya Revenue Authority.** **9th Count:** **Uttering a false document, Contrary to Section 353 of the Penal Code, of which particulars are that on the 8th day of December, 2022 at D. M. Manyara Advocates’ Offices in Meru Town in Imenti North Sub-County within Meru County, jointly with others not before Court knowing and fraudulently uttered a forged Kenya Revenue Authority PIN Certificate Number A006885682 to D. M. Manyara Advocate.** **10 Count:** **Conspiracy to defraud, contrary to Section 317 of the Penal Code, of which particulars are that on 5th day December, 2022 at Imenti North Sub-County within Meru County, jointly with others not before Court conspired together to defraud Lucy Kagwiria Kithinji Kshs 450,000/- by pretending that they were to sell her land parcel Number NTIMA/NTAKIRA/5399 measuring 0.065 Ha.** **11th Count:** **Conspiracy to defraud, contrary to Section 317 of the Penal Code, of which particulars are that on 5th day of December, 2022 at Imenti North Sub-County within Meru county, jointly with others not before Court conspired together to defraud Lucy Kagwiria Kithinji Kshs 450,000/- by pretending that they were to sell her land Parcel Number, NTIMA/NTAKIRA/4862 measuring 0.05 Ha.** 1. The prosecution case is that LUCY KAGWIRIA KITHINJI the complainant and PW-2 in this case, is married to PW-3. The two operates a Bar business in Igoji where the first accused person also operated a Bar. PW-2 and the first accused person as of the time of the allege offences, on 5th December, 2022 had known each other for a period of about 5 years. 2. Prior to 5th December, 2022 the first accused person had told PW-2 that she knew of a person who was selling two plots. PW-1 had desire to purchase plots and the first accused person gave her the phone number of a person, allegedly called James K. Maina who’s the second accused in this case and currently the Appellant. 3. PW-2 using the given contact called James K. Maina and expressed interest in buying the plots. James K. Maina, hereinafter referred to as the Appellant, connected PW-2 to a person who will show her the plots which were at Gikumeene Meru. On an unspecified date PW-2 in company of the introduced person went to Gikumeene in Meru where she was shown the two plots. They were two prime plots and each was going for Kshs 500,000/-. They were plots No. NTIMA/NTAKIRA/4862 and NTIMA/NTAKIRA/5399. PW2 did a search as to the registered owner of the two plots and confirmed it was James K. Maina. 4. On 5th December, 2022 PW-2, PW-3 and the Appellant arranged to meet in the office of Marius Maranya Advocate, to pay an agreed deposit of 480,000/- for each plot, and for the balance to be paid upon execution of transfer documents at Land’s Office. They all met as arranged. 5. The Appellant had his identification Card in the name of James K. Maina, No. 8880678. He also had Title Deeds for two plots, NTIMA/NTAKIRA/5399 measuring 0.06 Ha and Ntima/Ntakira/4862 measuring 0.05 Ha. He also had a PIN Certificate No. A006888568Z in the name James K. Maina. He also had to copies of his passport size photographs. 6. PW-2 and PW-3 had their Identification Cards and the required cash. The Advocate, who’s PWI in this case made the desired agreement of which was executed by the Vendor (Appellant) and the purchasers (PW-1 and PW-2). The Appellant was paid a total of Kshs 900,000/-, Kshs 450,000/- for each of the two plots. The balance of Kshs 100,000/- was to be paid upon the execution of transfer at Lands Office. They left with the documents to go to the Land’s Office. The Appellant told PW-2 and PW-3 that he needed to go and keep the paid amount safely and connect with them at the Land’s Office. 7. PW-2 and PW-3 went to the Land’s Office. They waited for the Appellant to appear but in vain. When it got late they left the documents with someone in the Land’s office. Later PW-2 was informed by a lady at the Land’s Office that the documents she had left were fake. She then went and reported the case at Nkubu Police Station. 8. The matter was investigated by PW-4. He obtained all the documents involved in the said transaction. He took the produced Title Deeds to Land’s Office for investigation and got a letter indicating that they never emanated from the Land’s Office in Meru. 9. The accused were then charged with the offences carried in the charge sheet. 10. The 1st accused person denied the offences in her defence. She stated that she was operating a Bar at Igoji and PW-2 on 20/2/2022 went to her requesting to place gaming machine in her bar. They agreed on the way they’ll be operated in the bar and the commission the first accused will be getting. On 21/2/2022 PW-2 went with a technician and the machine was installed. 11. They related well till 6th March of 2022 when Cabinet Secretary, Mr. Matiang’i declared the machines illegal. There were crack downs for the machines and 1st Accused was arrested and harassed by the police over the said machine. The 1st accused called upon PW-2 to collect her machine. She picked it on 12/8/2022 and that was the last time the two spoke until 14/1/2023 when she appeared with DCI Officer from Nkubu. She was then arrested and charged. She denied knowledge of the 2nd accused person. 12. She called her employee DW-2 who confirmed that PW-2 had actually installed gaming machine in the 1st accused’s bar and DW-2 was the one taking care of them till August 2022 when they were declared illegal. 13. The Appellant on his part gave a brief statement in his defence. He alleged all charges were based on lies. He gave his name as Isaac Mutembei Rukaria from Meru Central, Baigu Location. He indicated that he was innocent, he was a father and sickly. 14. The trial Court evaluated the evidence and found that the offences preferred had not been proved beyond reasonable doubt against the 1st Accused person. She was consequently acquitted on all the counts charged with. However for the Appellant herein, he was found guilty on counts 1, 2, 3, 4, 5, 6, 7, 8 & 9; and acquitted on Counts 10 and 11. He was convicted on the said count and sentenced as follows:- **Count 1;** **A fine of Kshs 300,000/- in default to serve 2 years imprisonment.** **Count 2;** **A fine of Kshs 300,000/- in default to serve 2 years imprisonment.** **Count 3;** **A fine of Kshs 300,000/- in default to serve 4 years imprisonment.** **Count 4;** **A fine of Kshs 350,000/- in default to serve 5 years imprisonment.** **Count 5;** **A fine of Kshs 150,000/- in default to serve 2 years imprisonment.** **Count 6;** **A fine of Kshs 350,000/- in default to serve 5 years imprisonment.** **Count 7;** **A fine of Kshs 150,000/- in default to serve 2 years imprisonment.** **Count 8;** **A fine of Kshs 350,000/- in default to serve 5 years imprisonment.** **Count 9;** **A fine of Kshs 150,000/- in default to serve 2 years imprisonment.** 1. Prison sentences to run consecutively and to run from 27/11/2024. 2. The Appellant dissatisfied with the said sentences raised an appeal on the following grounds:- 3. **That the Learned trial Magistrate erred in matters of law and fact by failing to note that the charges levelled against the Appellant were duplex and the duplicity was erroneous and fatal to the prosecution case.** 4. **That the Learned trial Magistrate erred in both matters of law and fact by failing to opine that the Appellant was embarrassed during his defence and trial each charge separately pursuant to Section 135 (3) of the CPC.(sic)** 5. **THAT the Learned trial Magistrate erred in matters of Law and fact by pronouncing an excessive punishment discretionally; however the cumulative or aggregate imprisonment should not exceed the aggregated punishment. In this case it amounted to 29 years, clearly illegal and contrary to Section 14 (1), (2), 3,(a),(b) of the Criminal Procedure Code.** 6. **That the Learned trial Magistrate erred in matters of law and fact by failing to note that the cumulative sentence of 29 years imprisonment for offences of this nature is without doubt manifestly harsh and excessive in the circumstances of this case.** 7. **That the Learned trial Magistrate erred in law and fact by demonstrating biasness and grave impartiality during trial, evident on the sentences’ pronounced.** 8. **That the Learned trial Magistrate erred in law and fact by failing to balance the fines preferring exorbitant fines to the Appellant.** 9. **That the Learned trial Magistrate erred in law and fact by failing to hold that the ends of justice and pronounce the sentences to run concurrent.(sic)** 10. **That the Learned trial Magistrate erred in law and fact by authorizing the sentence to run from 27th November 2024 failing to deduct the whole pretrial detention period from the sentence preferred flouting Section 333 (2) of the Criminal Procedure Code.** 11. **That the Learned trial Magistrate erred in law and fact by pronouncing an ambiguous order stating that the sentences to run consecutive where applicable.** 12. The Appeal was canvassed by way of Written Submissions and both sides filed their respective submissions. 13. The two issues which arises for consideration in this appeal are:- 14. **Whether the trial Court complied with the provisions of** **Article 50 (2) of the Constitution of Kenya 2010 while taking the Plea.** 15. **Whether the Cumulative Sentence of 29 years imprisonment is harsh and excessive given the offences and circumstances under which they were committed.** 16. On the first issue, **Article 50 (2) (b) of the Constitution of Kenya 2010** guarantees every accused person the right to be informed of the charge, with sufficient details to answer it. This constitutional safeguard is implemented procedurally by **Section 207 of the Criminal Procedure Code,** which requires the Court to state the substance of the charge to the accused and call upon him or her to plead. The plea must be unequivocal, voluntary, and made with full understanding of the charge and it’s consequences. In the **case of Joshua Karianjahi Waiganjo –vs- Republic (2017) KEHC 4664 (KLR),** the High Court held that **Article 50(2) (b), and Section 207 of the CPC** require that the accused be informed of the charge with sufficient details before pleading. 17. The Court emphasized that the charge sheet must give adequate notice of the offence and it’s particulars, and this information must be brought to the accused’s attention during plea taking. 18. An evaluation of the charge sheet dated 23rd August, 2023 reveals that it clearly sets out, in respect of each count, the statement of the offence and the particulars thereof with sufficient clarity and details to enable the accused person to fully understand the nature of every offence with which he was charged, as required by law. The charges therefore comply with the legal requirement governing the framing of criminal charges. 19. The Appellant herein faced 11 Counts in the Lower Court. The recorded proceedings of 23rd August, 2023 shows that the 11 Counts were stated to the Appellant and he pleaded not guilty demonstrating that he understood the charges. In this matter he suffered no prejudice as the matter proceeded to full trial in which he fully and sufficiently participated upto the end. 20. I therefore find that the Appellant’s complaint regarding the framing of the charges and the manner in which the plea was taken is devoid of merit. Equally, the plea-taking process substantially complied with the law, as no procedural irregularity has been demonstrated, nor has the Appellant established that he suffered any prejudice or miscarriage of Justice as a consequence of the alleged defects. The Appellant fully understood the charges, participated in the proceedings, and was afforded a fair trial. Accordingly, this ground of appeal is without substance, and is dismissed in its entirety. 1. With regard to the second issue on the offences and the sentences, let me begin by saying that the mere fact that several offences arise from the same transaction does not render the charge sheet duplicitous. Forgery, personation, uttering a false document, and obtaining money by false pretences are separate statutory offences, each requiring proof of different essential elements. Provided each offence is contained in a separate count and the particulars clearly disclose the specific offence alleged, the charge sheet is okay and not bad for duplicity. 2. On sentence, it’s a well – established principle of law that sentencing is primarily a matter within the discretion of the trial Court. An Appellate Court will therefore be slow to interfere with the exercise of that discretion unless it is demonstrated that the trial Court acted on a wrong principle, overlooked a material factor, considered an irrelevant factor, imposed a sentence that is manifestly excessive or manifestly inadequate in the circumstances, or that the sentence is otherwise illegal. Mere disagreement with the sentence imposed is not a sufficient basis for Appellate intervention. 1. In the present case, the Appellant embarked on a carefully orchestrated and premeditated fraudulent scheme. The offences were neither spontaneous nor isolated. They involved the forgery of highly sensitive documents relating to ownership of land, including the identity card and KRA Pin Certificate of the registered proprietor, the uttering of those forged documents as genuine, the impersonation of the true owner, the execution of a land sale agreement under the false identity, and ultimately obtaining the purchase price by false pretences. The offences reveal a deep- rooted criminal intent (mens rea), meticulous planning, and a deliberate design to deprive the buyer of her hard earned cash through deception. 2. The multiplicity of the offences, which spread across nine counts, demonstrates that each offence constituted a distinct criminal act, notwithstanding that they formed part of the same fraudulent transaction. The trial Court was therefore entitled to impose separate sentences for each count and to direct that the sentences run concurrently. 3. The resulting cumulative sentence of twenty – nine (29) years’ imprisonment cannot, in the circumstances of this case, be said to be excessive, harsh, or manifestly disproportionate. On the contrary, it reflects the gravity of the offences, the sophistication of the fraudulent scheme, and the need for deterrence against organized land fraud, which has become a serious menace affecting property rights and public confidence in land transactions. 4. Accordingly, no proper basis has been laid for this Court to interfere with the sentence imposed by the trial Court. The sentence is lawful, was judiciously exercised, and proportionate to the criminal conduct proved. The Appellant’s challenge to sentence is in want of merit and is hereby dismissed. 5. The Appeal therefore fails in it’s entirety. **DATED AND DELIVERED AT MERU THIS 27TH DAY OF JULY, 2026.** **S.M. GITHINJI –JUDGE** **27/7/2026** **In the presence of:-** Ms. Adhi for the State Appellant in person.