[2022] KEHC 2390 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CRIMINAL APPEAL NO. 8 OF 2020

JANE WANJIKU NGUGI..........................................................................................APPELLANT

VS

REPUBLIC................................................................................................................RESPONDENT

(An appeal from the original conviction and sentence in the Chief Magistrate’s Court at Thika,

Hon. N. M. Kyanya, RM, dated 25th June, 2019 in Criminal Case No. 2748 of 2014)

JUDGMENT

1. JANE WANJIKU NGUGI,the appellant, has filed this appeal against her conviction and sentence for the offence of obtaining registration contrary to Section 320 of the Penal Code. This being the first appellate court, the appellant is entitled to expect the trial court’s evidence be submitted to fresh and exhaustive examination. This Court will weigh the conflicting evidence of the trial court and reach its own decision on that evidence. In doing so, this Court will however make allowance for the fact this Court did not have the advantage of hearing or seeing the witnesses who testified at the trial: See OKENO V. REPUBLIC (1972) E.A. 32.

2. The appellant was convicted on two counts of the offence of obtaining registration contrary to Section 320 of the Penal Code Cap 63. The registration the appellant was convicted on related to two properties namely RUIRU MUGUTHA BLOC 1/1. 365 and T.366. The particulars of the offences were that the appellant on 22nd April, 2014 at Thika District Land Registrar’s Office in Thika West District of Kiambu County, wilfully procured to herself registration of plot. T.365 and T.366 by falsely pretending that the said plot was issued and transferred to her by Nyakinyua Investment Company Limited, (hereinafter Nyakinyua).

3. Prosecution called in total 6 witnesses. The first witness, Rebecca Wanjiku Kagumba was the complainant. She stated that she joined membership of Nyakinyua when it was formed. She was not able to state exactly when that was but she confirmed that she had a share certificate confirming her membership. She stated that she participated in balloting for the land that was represented by her said share certificates and that she was issued with two plots. She obtained titles for the two plots. Later, she learned that someone was claiming she had sold those plots to them and that the said person had sub-divided those plots. This witness denied having sold to anyone her two properties. This witness on being cross-examined was unable to give exact date of receiving her share certificate although she was clear that she was issued with title deeds for the two properties. She stated that she was unable to give specific details of obtaining share certificate because her memory was failing and she had been sickly and had become blind. She therefore stated that her daughter was able to give evidence on the documentation relating to her obtaining the two properties from Nyakinyua.

4. The second witness was Lucy Nyagaki, a director and treasurer of Nyakinyua. She stated that the appellant was previously a member of Nyakinyua but that she sold land that was allocated to her by Nyakinyua. Accordingly, the appellant did not remain with any shares of Nyakinyua. This witness on being shown the Transfer of Land Form transferring the subject properties to the appellant retorted:-

“The signature on MFI-3 is not mine… the signature was (sic) not mine… The land does not belong to the 2nd accused (the appellant). She (the appellant) faked our signatures.”

5. This witness stated that transfer documents are signed by herself and the chairlady of Nyakinyua.

6. The third witness, Nduta Ndirangu Chege is the chairlady of Nyakinyua. She became a director in 1985. She stated that Nyakinyua is a women’s group which purchased land for distribution amongst its members in accordance with each member’s share. Before she became a director, there were other directors. When she took office, the land had been distributed amongst its members. Balloting for each member’s plot was during her tenure as a director of Nyakinyua. This witness produced before court Nyakinyua members’ register. She confirmed the two share certificates before court belonged to the complainant. Those two share certificates were for the two parcels of land, parcels T.365 and T.366. This witness confirmed that she gave the complainant a letter of consent and Transfer of Land Forms to enable her transfer to herself the two properties. The witness stated that the complainant had not transferred the subject properties to anyone else. This witness also confirmed that the signature appearing under her name in the transfer of land form transferring the land to the appellant was not her signature. She also stated that unlike the normal procedure, Nyakinyua’s lawyer had not signed those transfer forms for the appellant.

7. The daughter of the complainant was the fourth witness. She stated that she and the complainant realised that someone was claiming ownership of her mother’s properties, T.365 and T.366. The person who was claiming ownership of those properties was the appellant. On making inquiry Nyakinyua denied authorizing the issuance of title to the appellant.

8. The fifth witness, Chief Inspector Daniel Gutu, was a forensic document examiner with the Director of Criminal Investigation, Nairobi. He confirmed that on examining the Transfer of Land form transferring the subject properties to the appellant, he was of the view that they were not signed by the ‘authority’, the two directors of Nyakinyua. He also confirms that the Land Control Board consent giving consent of transfer of the subject properties to the appellant was not signed by the chairperson of Ruiru Land Central Board. In other words, the signatures appearing on the Transfer of Land forms and the signature on the Land Control Board consent did not belong to the persons whose names appear thereof.

9. The sixth witness was the Investigating Officer (I.O)of this case. He said on checking Nyakinyua register he confirmed the land T.365 and T.366 belonged to the complainant. On proceeding to the District Land Registry he obtained the original transfer documents which showed transfer of the subject properties from Nyakinyua to the appellant. He also obtained details of the directors of Nyakinyua. He confirmed from the Ruiru District Land Board that the appellant attended the said Board for consent to have the subject properties transferred to her. He also stated the Board’s chairperson who is also the Deputy County Commissioner namely, Mercy Gatobu, confirmed in writing that the consent to transfer presented by the appellants was not signed by the said chairperson of the Board and it did not originate from the Board. He obtained specimen signatures of the Board’s chairperson and of the Directors of Nyakinyua which together with other materials were presented to the document examiner. On confirming the subject properties belonged to the complainant, this police officer charged the appellant with the offences stated hereinbefore.

10. The appellant gave sworn evidence in her defence. She stated that the subject properties belong to her from 1988 by virtue of being a member of Nyakinyua. She had balloted for her shares in 1988 and in 1989 members were requested to return the ballots. It was in the fresh balloting that she was given the subject properties. The appellant produced the ballot and share certificates and a credit deposit made at Kenya Commercial Bank. The appellant denied forging any documents. She stated that she obtained the titles genuinely.

ANALYSIS

11. The appellant has presented the following grounds of appeal.

i. The Magistrate erred in law in convicting the accused on a charge which on the face of it disclosed no offence and was therefore defective.

ii. The Learned Magistrate erred in convicting the accused when it was clear that the facts disclosed a civil suit and not any offence committed.

iii. The Magistrate misdirected herself in failing to consider the defence tendered by the Appellant.

iv. The conviction is against the weight of the evidence.

v. The sentence is manifestly excessive.

12. The appellant in submitting on the first ground of appeal present a double barrel argument. I say so because on one hand the appellant argues that the two counts the basis of her conviction did not disclose triable offence and also argued the trial court having acquitted her on four other counts relating to the offence of making a document without authority contrary to Section 357(a) of Cap 63, the trial court erred to convict her as it did.

13. I will begin by considering the first barrel of appellant’s argument.

14. The appellant was convicted on two counts of obtaining registration contrary to Section 320 of the Penal Code Cap. 63. That section prescribes the offence of obtaining registration by false presences as follows

“Any person who willfully 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 misdemeanor and is liable to imprisonment for one year”.

15. Section 312 of the Penal Code defines false pretences as:-

“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.”

16. The appellant in her defence alleged that the documentation which facilitated the transfer into her name of the subject properties were processed by Nyakinyua. That after they were processed which included obtaining the consent, the appellant gave the documents to someone called Michael Kamanga to obtain the title for her.

17. What is important to note is that evidence was adduced by two of Nyakinyua directors who are authorised to sign all land transfers for Nyakinyua members and who stated that the appellant was not a member of Nyakinyua and could therefore not obtain transfer of land from Nyakinyua to her name. They also denied that the signatures on the land transfer forms relied upon by the appellant were their signatures. Indeed, one of those directors described the said signatures as “fake signatures”. Those directors were not cross examined on the allegation that Nyakinyua would procure the Land Control Board consent for its members, nor were they cross examined that the transfer documents were presented at the land office by someone else and not the appellant.

18. The appellant having not cross-examined the directors on that evidence which she relied on in her defence will lead this Court to find that the appellant’s defence was an afterthought. There is clear evidence from the directors and the document examiner that the Land Transfer forms and the consent of the Land Control Board had forged signatures. The signatures were not made by the persons stated thereof. The IO also stated, and he was not cross-examined on the same, that the letter of consent at the lands office showed the appellant attended the Land Control Board to obtain a consent whose signature is forgery of the chairperson of the Land Board. It therefore follows that the prosecution proved by evidence that the appellant made representation in writing in the transfer forms and the consent which representation was false. The appellant procured for herself registration of certificate of title for the subject properties by false pretence that they were the product of Nyakinyua. There is no evidence that was adduced that the procurement of those titles were effected by anyone else but the appellant, indeed there is no evidence titles were procured by Michael Kamanga, as stated by the appellant.

19. The prosecution adduced evidence that proved on the required standards of proof, that the appellant had committed the offence stated in Section 320 of Cap 63. The trial court rightly so stated in its judgment when the court stated:-

“However, from the testimony of PW3 (the director of Nyakinyua) and PW4 (complainant’s daughter), the 2nd accused (the appellant) did not have a claim to the two plots and her name is not in the register and her ownership documents are forgeries. In light of this evidence, I find that the prosecution has proven to the required standards that the 2nd accused is guilty of obtaining registration contrary to Section 320 of the Penal Code.”

20. The second barrel of argument raised by the appellant related to other counts that the trial court acquitted appellant on.

21. The appellant alongside the Land registrar, Margaret Muthoni Mutai, who however was acquitted, were charged with the offence of conspiracy to commit a felony contrary to section 393 of Cap 63. The particulars of that offence were that on unknown date and time at Thika Lands office jointly with others not before court conspired to commit a felony namely, forgery. Both accused were acquitted of this offence by the trial court, when the trial court made a Ruling on ‘no case to answer.’ In acquitting both accused on this offence, the trial court stated that the prosecution had failed to establish prima facie case.

22. The appellant alone was further charged with four other counts of the offence of making a document without authority, contrary to Section 357(a) of Cap 63. The trial court, in its judgment acquitted the appellant of counts 4 and 5 and in doing so the trial court found prosecution had failed to prove the appellant made the transfer of land documents.

23. With respect although not disagreeing with that acquittal, I beg to differ with what the trial court stated as the basis of acquittal. I am in accord with trial court’s finding that prosecution failed to prove the appellant made a document without authority, contrary to Section 357(a) of Cap 63. The prosecution did however in my view prove appellant made transfer and thereby obtained registration of the subject properties contrary to Section 320 Cap 63. The appellant throughout the hearing of the protection’s evidence did not deny carrying out those registrations. It was only at the tail end of her defence evidence that the appellant stated that Michael Kamanga carried out the registration. As stated above in this court’s view, that the evidence was merely an afterthought and is rejected.

24. In view of the above finding, there is no basis of submitting as the appellant has, that having been acquitted of some of the counts she faced, the court erred to convict her on the two counts.

25. Further, contrary to the appellant’s submissions in support of ground (ii) of appeal, the evidence tendered by the prosecution and as discussed above disclosed a criminal offence. The trial court did not merely determine ownership, although that determination was integral part of its judgment, but much more determined whether the registration by the appellant of the properties T.365 and T.366 was through false pretence. The trial court determined in the positive and that finding and the finding of this court are completely and fully in accord.

26. The trial court, contrary to what appellant stated in ground (iii) of her ground of appeal, did consider the defence offered by the appellant. Throughout the judgment of the trial court, appellant’s defence is referred to. Although the trial court did not specifically state that it rejected appellant’s defence as in regard to the two, count, I however do find that in the light of cogent evidence of the prosecution in respect to the two counts, the defence offered by appellant is for rejection.

27. Appellant in her last ground of appeal faulted the trial court in sentencing her to a fine of Kshs.20,000/= on each of the two counts and in default to serve 3 months imprisonment. Appellant in her written submissions did not submit on this ground. The sentence under Section 320 of Cap 63 is one year imprisonment. The trial court’s sentence was obviously not excessive.

DISPOSITION

28. It is perceptible from the above discussion that it is the view of this Court that the appellant’s appeal against conviction and sentence is without merit and is dismissed.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 10TH DAY OF FEBRUARY, 2022.

MARY KASANGO

JUDGE

Coram:

Court Assistant: Mourice

Appellant: Jane Wanjiku Ngugi

For Appellant: - Kibicho H/B Waithera Mwangi

For Respondent: - Mr. Kasyoka and Mr. Benjamin

COURT

JUDGMENTdelivered virtually.

MARY KASANGO

JUDGE