[2015] KEHC 2820 (KLR)
The court found that the representation made by the appellant was a promise to sell a motor vehicle in the future, which does not amount to a false pretense as defined under section 312 of the Penal Code. The evidence showed that the appellant had authority to sell the vehicle at the time the money was obtained, and...
Source-derived case information.
- Citation
- [2015] KEHC 2820 (KLR)
- Parties
- Appellant: John Ngotho Maina; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 88 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- DW Mbuteti
- Legal Topics
- False Pretenses, Elements of Offence, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Ngotho Maina
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant's conduct constituted obtaining by false pretenses under section 313 of the Penal Code.
- 2 Whether the evidence supported the conviction for obtaining by false pretenses.
- 3 Whether the particulars of the charge disclosed the offence charged.
Ratio Decidendi
The court found that the representation made by the appellant was a promise to sell a motor vehicle in the future, which does not amount to a false pretense as defined under section 312 of the Penal Code. The evidence showed that the appellant had authority to sell the vehicle at the time the money was obtained, and the subsequent failure to complete the sale or refund the money did not transform the conduct into obtaining by false pretenses. The particulars of the charge did not disclose the offence charged, and there was no evidence to support the conviction. The conviction was therefore quashed and the sentence set aside.
Court Disposition
appeal_allowed
Orders
- The conviction is quashed.
- The sentence imposed upon the appellant is set aside.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
HC CRIMINAL APPEAL NO 88 OF 2014
(Appeal from conviction and sentence in Murang’a CM Criminal Case No. 1059 OF 2012 - T. Nzyoki Ag. SPM)
JOHN NGOTHO MAINA ……………..…………...................................…....APPELLANT
VERSUS
REPUBLIC ……………..................................…………..……..…………..RESPONDENT
J U D G M E N T
1. The Appellant John Ngotho Maina was convicted of obtaining by false pretenses contrary to section 313 of the Penal Code. He was on 5th June 2014 sentenced to serve two (2) years imprisonment. He has appealed against both conviction and sentence and has advanced various grounds of appeal.
2. I have read the evidence placed before trial court and the judgment of the learned trial magistrate. The particulars of the offence as stated in the charge were that on 6th August 2012 at Kahatia Equity Bankbranch in Murang’a County, with intent to defraud, he obtained KShs 400,000/00 from one Robinson Njau Kariuhu
“by falsely pretending that he was in a position to sell to him motor vehicle Reg. No. KAE 596 F make Isuzu.
3. False pretense is defined in section 312 of the Penal Code as follows –
“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 pretense.”
The representation alleged in the particulars of offence in the present case was that the Appellant was in a position to sell to the complainant the motor vehicle sometime in the future. The representation was not of a false pastor present fact. There was no false pretense.
4. The evidence laid before the trial court disclosed a future promise – that the Appellant was going to sell to the complainant the motor vehicle sometime in the future. The evidence also disclosed that when he obtained the KShs 400,000/00 from the complainant he had the full authority to sell the motor vehicle as an agent of the owners thereof. The owners subsequently stopped the proposed sale. The Appellant however never released the money to owners of the motor vehicle; nor did he refund it to the complainant. He retained the money and apparently converted it to his own use. There may have been theftunder section 279 of the Penal Code. But theft is a more serious offence than obtaining money by false pretenses. It is not minor and cognate to the latter.
5. Not only did the particulars alleged in the charge not disclose the offence charged, there was no evidence of the same. The conviction cannot stand. It is hereby quashed and the sentenced imposed upon the Appellant set aside. He shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.
DATED AND SIGNED AT MURANG’A THIS 11TH DAY OF JUNE 2015
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 12TH DAY OF JUNE 2015