[2004] KEHC 648 (KLR)
The court found that the appeal was not frivolous and raised substantive legal issues, particularly regarding the technical definition of the offence of obtaining money by false pretences as applied to the facts. The court noted that the alleged false pretence related to a future event, which may not satisfy the...
Source-derived case information.
- Citation
- [2004] KEHC 648 (KLR)
- Parties
- Appellant: Joseph Muturi Kinyua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 100 of 2004
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- bail pending appeal granted
- Legal Topics
- Bail Pending Appeal, Obtaining by False Pretences, Criminal Evidence, Contradictions in Testimony
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joseph Muturi Kinyua
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to bail pending appeal.
- 2 Whether the conviction for obtaining money by false pretences was based on sufficient evidence.
- 3 Whether contradictions in prosecution evidence were material to the conviction.
Ratio Decidendi
The court found that the appeal was not frivolous and raised substantive legal issues, particularly regarding the technical definition of the offence of obtaining money by false pretences as applied to the facts. The court noted that the alleged false pretence related to a future event, which may not satisfy the legal requirements of the offence. Additionally, the court acknowledged that there were contradictions in the prosecution's evidence concerning the receipt and documentation of the money, which could be material to the charge. Without making a final determination on the merits of the appeal, the court exercised its discretion to grant bail pending appeal, considering that there...
Court Disposition
bail pending appeal granted
Orders
- Bail pending appeal granted in the sum of Ksh.50,000 together with one surety of a similar amount.
- The surety to be approved by the Deputy Registrar of the Court.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU CRIMINAL APPEAL NO. 100 OF 2004
JOSEPH MUTURI KINYUA………………….APPELLANT
VERSUS
REPUBLIC……………………………………..RESPONDENT
RULING
1. The Applicant seeks bail pending Appeal.
2. In lengthy Submissions before me, the Applicant’s Counsel argued that there were no sufficient grounds for convicting the Appellant of the offence of obtaining money by false pretences. That for that offence to be proved, there must be an existing fact which is shown to be false and known to be false by the person being charged. In the case before the lower court, the Applicant was accused of obtaining Ksh.83,276/= purportedly to enable him connect electrical power to the complainant’s house. This was, a future event and not a present existing fact and the offence cannot attach even if true.
3. Secondly, a number of contradictions in the evidence of the witnesses as regards receipt of the money were pointed out. For example, it is said that it was not clear when the money was given to the Applicant as PW5 denied seeing the exchange while PW1 said that she was with PW5 when the money was given to the Applicant. The other contradiction was with regard to a receipt for the money. It was issued in the name of Kenya Power and lighting Co. Ltd with certain alterations. PW3 said that he was the custodian of that of that receipt but no explanation for the alterations to it were made and how anyone else accessed it. These matters, I was told were material to the charge.
4. Counsel for the Republic poured cold water on all these assertions and insisted that the definition of the offence of obtaining money by false pretences as cited from Archbold on Criminal Pleadings Evidence and Practise 25th Edition by Butler and Garsia was correct and fitted the charge facing the Applicant. As regards the contradictions cited, those I was told were immaterial in the end and the Applicant was correctly convicted.
5. I have listened to the Submissions by Counsel and read the record of the lower court. I am satisfied that the Appeal is not frivolous and there certainly is something to be argued in substance. The technical definition of the offence as against the facts would make for a good case, and I say so guardedly and without making any determinant finding.
6. I shall exercise my discretion, and grant bail pending appeal in the sum of Ksh.50,000/= together with one surety of a similar amount. The surety to be approved by the Deputy Registrar of this Court.
Orders accordingly.
Dated and delivered in open court on this 25th day of November.
I.LENAOLA
AG. JUDGE
Mr.Momanyi for Mr. Okwaro for Applicant
Mr. Omwega for Republic.
I.LENAOLA
AG. JUDGE