[2008] KEHC 3366 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

Criminal Appeal 62 & 63 of 2004

JEREMIAH NGUGI GAKUNJU…………………………APPELLANT

VERSUS

REPUBLIC……………………………………………..RESPONDENT

AND

CRIMINAL APPEAL 63 OF 2004

DANIEL KAMITA GICHUHI………….......……………….APPELLANT

VERSUS

REPUBLIC………………………………………………RESPONDENT

(CONSOLIDATED)

JUDGMENT

These are appeals by Attorney General against an acquittal of Respondents. The Appeals were consolidated. Section 348 A Criminal Procedure Code Cap. 75 gives a right to Attorney General to appeal from an acquittal on matter of law only

In this appeal the petition of appeal sets out 3 grounds of appeal:-

1. That the trial magistrate erred in making a decision against the weight of evidence.

2. That the learned magistrate erred in law and fact in taking into account what he ought not to have taken into account.

3. That the learned magistrate erred in failing to make a finding that prosecution proved their case beyond reasonable doubt.

The offence charged in the charge sheet was forgery contrary to Section 350 (1) Penal Code the particulars of which are set out in the charge sheet. The transaction in which forgery was alleged happened in 1978/79 but this case was brought to court in the year 2002.

I have perused the whole record and the Judgment of Trial Magistrate. The State Counsel argued all grounds together.

Ground numbered 3 “that the Trial Magistrate erred in law in failing to make a finding that the prosecution have proved their case beyond reasonable doubt is a point of law entitling the state to appeal against acquittal”. Looking at the prosecution evidence PW1 offered mainly her suspicions against the two Respondents. She had no concrete evidence to support her complaint. The piece of land in dispute was not hers and she did not offer any reason why she should have known the dealings and transactions the registered proprietor may have transacted before his death. She did not see the Respondents signing the documents she alleges they forged. In her cross examination by defence counsel she said “I did not complain against first accused because he was a family friend but because he was KCB Bank Manager”

It is trite law that the court cannot convict on suspicions of a witness. The evidence of PW2 an advocate of the High Court and a reknown legal practitioner was as required by Section 110 of Registered land Act. A person who may witness documents being registered under the Registered Land Act Cap 300. He witnessed the signature on the documents to be presented for registration at land office and was an eye witness doing his professional duty.

His evidence was in contradiction to the evidence of PW4 a document examiner. The Trial magistrate preferred to believe the evidence of PW2 in the circumstances relying on legal authority name Onyango vs Republic [1969] E.A 362.

It is to be noted that the document examiner made a finding that the signatures shown to him were not by the same hand but he did not identify the makers as the two Respondents. PW5 I.P Jacob Kamana acted on information he was given by complainant PW1.

PW6 gave evidence as the then District Land Registrar Embu and he processed the documents in course of his duty after ensuring they were in order as required by law.

It is not difficult to see that the prosecution evidence was contradictory inconsistent and without substance based as it was on suspicions of complainant. The documents forged were not proved to have been forged by the Respondents.

An examination of defence evidence which was sworn was to the effect that first accused being known to registered owner who wanted to sell the land introduced the deceased to second accused the transaction was completed. The 2nd accused brought in another buyer referred as partiner and transfers were executed before PW2and registered in Lands Office making the 2nd accused and partner the proprietors of the land. There is no evidence to show that the transaction was not overboard.

The trial Magistrate analyzed the evidence in his 15 page Judgment and came to the conclusion that the prosecution evidence had not achieved the required standard of proof in criminal cases and that the charge as stated was not proved beyond reasonable doubt.

Whether a criminal case was proved beyond reasonable doubt was discussed in the case Tarino Vs Republic [1957] EA 553 and points of law generally are discussed in the Criminal Appeal Shiv Knar Sofant Vs Republic [1957] EA 469 just like matters of jurisdiction, acquittal, charge as drawed did not disclose any offence, the charge was not proved as Land and shifting the burden of proof to an accused are all points of law.

It is to be said here that those of us who have been around for too long know that Section 348 A was enacted in 1967 Act 13 Section 3. Before that amendment of C.P.C the state had no right to appeal against acquittal at all.

Looking at Petition of Appeal against ground numbered 2 is that the Trial Magistrate took into account what he ought not to have taken into account. Mr. Omwega argued that the Trial Magistrate took into account that exhibit 3 were signed by Respondents and that the complainant PW1 did not recognize that evidence and that Trial Magistrate rejected the evidence of document examiner’s evidence. The court has already discussed this issue and noted the trial magistrate relied on authority above cited in the Judgment.

On ground number 1 that the decision was against the weight of evidence. I have already said that the evidence was not weighty. It was contradictory supported by suspicion and lacked proof of the charge as laid.

The court finds no merit in the appeal and the same is dismissed. The Judgment of Trial Magistrate is confirmed.

Dated this 16th April, 2008.

J. N. KHAMINWA

JUDGE