https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9138

Magondu v Republic (Criminal Appeal E015 of 2025) [2026] KEHC 9138 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEHC 9138 (KLR) Republic of Kenya In the High Court at Nyeri Criminal Appeal E015 of 2025 MA Odero, J June 29, 2026 Between Judy Muthoni Magondu Appellant and Republic Respondent Judgment 1.The Appellant Judy Muthoni Magondu has filed this Petition of Appeal dated 26th February 2025 challenging her conviction and sentence in the Magistrates Court. The Appellant sought the following orders:-a.That the Appeal be allowed;b.That the Honourable learned Trial Magistrate’s Judgment of 16th December 2024 and the Sentencing of 19th February 2025 and all consequential orders be set aside and vacated in entirety and substituted with an order allowing the Appellant’s case.c.That costs of this Appeal be borne by the Respondent.d.Such further orders as it may deem just in the circumstances. 2.The Appellant had been charged in the Lower Court with the offence of Intermedlling With The Property Of The Deceased Person Contrary To Section 45(1) And (2) (a) Of The Law Of Succession Act. The particulars of the charge were that:-“On the 12th day of November 2014 at Karatina township in Mathira East Sub-county within Nyeri County unlawfully undertook the disposal of land No. Kiine/Sagana/390 being the property of deceased one Daniel Magondu Kiriki without legal authority.” 3.The Appellant faced a second charge of Obtaining Money By False Pretences Contrary To Section 313 Of The Penal Code. The particulars of the charge were that“On the 12th day of November 2014 at Karatina Township of Mathira East Sub-County, obtained from Christopher Kinyoro Kihia Kshs. 850,000/= by falsely pretending that you would sell him a parcel of land Kiine/Sagana/390 a fact you knew to be fake.” 4.The Appellant pleaded ‘Not Guilty’ to both charges and her trial commenced before the Magistrates Court in Karatina on 21st May 2019. The prosecution called two (2) witnesses in support of their case. 5.PW1 Christopher Kinyoro who was the complainant told the court that he was a businessman. PW1 stated that he met the appellant through a friend of his called ‘Maina’. That the said ‘Maina’ had informed PW1 about a parcel of land for sale. When PW1 met the appellant, she took him to see the land which was LR No. Kiine/Sagana/390 (hereinafter ‘the Suit Land’). The two then entered into an agreement whereby the complainant was to purchase the suit land at a cost of Kshs. 1,380,000. 6.PW1 stated that the appellant did inform him that the land belonged to her late father and that she would be selling him her share of the land which was two (2) acres. That the appellant also informed PW1 that the sale would only be completed in one (1) year after the succession proceedings had been determined. 7.PW1 was agreeable to all this and proceeded to enter into a Land Sale Agreement dated 12th November 2014 whereby he was to purchase the land for Kshs. 1,380,000 (one million three hundred and Eighty thousand only). The sale Agreement was produced in court as an exhibit Pexb 4. PW1 stated that he then sent the appellant money in various installments by way of bank transfers and M-pesa payments totaling Kshs 850,000/=. 8.Later on PW1 came to realise that the appellant had sold the same parcel of land to one ‘Wiilliam Kinyua’. He saw the Sale Agreement between the appellant and the said William Kinyua which had been executed on 1st October 2015 for a purchase price of Kshs. 1,350,000 Pexb 5. When PW1 realised he was being conned he went and reported the matter at Karatina Police Station. The appellant was then arrested and charged. 9.PW2 Corporal Mwarabu Ndolo was investigating officer. He retrieved all the payment vouchers and M-pesa statements showing that DW1 had made payments to the appellant totaling Kshs. 850,000. The said statements/receipts were all produced in court as exhibits (Pexb 1 to PExb 4) 10.At the close of the prosecution case the appellant was ruled to have a case to answer and was placed onto her defence. 11.The Appellant gave a sworn defence in which she admitted having received money from PW1 for sale of her two (2) acre portion of her late fathers land. The Appellant stated that she did inform PW1 that he would have to wait until the succession case was completed before he could take possession of the land. The appellant further stated that she had refunded to PW1 Kshs. 400,000 out of the Kshs. 850,000 which he had given her. Indeed the record indicates that on 31st October 2016 the appellant did hand over to DW1 a cheque for Kshs. 400,000. 12.On 16th December 2024 Hon. E. V. Kanyiri Principal Magistrate delivered her judgment in which she convicted the Appellant on Count No. 1 of Intermeddling with the estate of a Deceased but acquitted the Appellant of the second count of obtaining money by false pretences. 13.Following her conviction the appellant was accorded an opportunity to mitigate after which she was sentenced to serve one (1) year imprisonment. 14.Being aggrieved by this conviction and sentence the Appellant filed this petition of Appeal which was premised upon the following grounds:-“ 1.That the Honourable Learned Magistrate erred in law and fact by failing to consider the facts and evidence laid before it by the Appellant. 2.That the Honourable Learned Trial Magistrate erred in law and fact by relying on a complaint and evidence from a stranger who was not a potential beneficiary. 3.That the Honourable Learned Trial Magistrate erred in law and fact by convicting and sentencing the Appellant when it was apparent that the charge of intermeddling could only be proved by potential beneficiaries to the estate and not otherwise. 4.That the Honourable Trial Magistrate erred in law and fact by proceeding to convict the accused against the dictate of evidence production. 5.That the Honourable Learned Trial Magistrate erred in law and fact by not analyzing the evidence adduced and thereby arriving at a wrong conclusion incapable of standing legal scrutiny. 6.That the Honourable Learned Trial Magistrate erred in law and fact by placing the accused person in a position where she needed to establish her innocence as opposed of being presumed innocent until proved guilty. 7.That the Honourable Learned Trial Magistrate erred in law and fact by holding that at the time of Judgment the succession cause had not been finalized which fact had no evidential basis. 8.That the Honourable Learned Trial Magistrate erred in law and fact by failing to appreciate the Appellant’s representative oral submissions laid before it therefore arriving at a wrong conclusion. 9.That the Honourable learned Trial Magistrate erred in law in failing to appreciate the law vis-a-vis the material evidence placed before it, all of which did not support the Judgment rendered that is considered harsh and excessive.” 15.The appeal was canvassed by way of written submissions. 16.The Appellant filed the written submissions dated 9th February 2026 whilst the Respondents relied upon their written submissions dated 3rd March 2026. Analysis And Determination 17.I have carefully considered the appeal before this court, the record of the trial before the Lower Court as well as the written submissions filed by both parties. 18.This is a first appeal in which the duty of the Court is to re-examine and re-analyse the evidence adduced before the lower court and to draw its own conclusions on the same. In the case of OKENO -VS- REPUBLIC [1972] EA 32 the court set out the duties of the appellate court as follows:-“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic (1957) EA 336 and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to support the lower court’s finding and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post [1958] EA 424.” (See also Kiilu & Another v Republic [2005] KLR 174). 19.Similarly in the case of David Njuguna Wairimu -vs- Republic [2010] eKLR the Court of Appeal stated as follows:-“The duty of the first appellate court is to analyse and re- evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” 20.There is no dispute that the Appellant and PW1 entered into an agreement for the sale of two (2) acres out of the parcel of land known as LR Kiine/Sagana/390. The sale agreement duly executed by both parties was produced in court as an exhibit Pexb 4. The appellant readily concedes that PW1 did pay to her an amount of Kshs. 850,000 towards the purchase price. 21.The Appellant faces a charge of intermeddling with the estate of a Deceased person. Section 45 of the Law of succession Act cap 160, Laws of Kenya provides that“(1)Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.(2)Any person who contravenes the provisions of this section shalla.be guilty of an offence and liable to a fine not exceeding ten thousand shillings or a term of imprisonment not exceeding one year or to both such fine and imprisonment; andb.be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.” 22.The Appellant did not produce in court any Grant of representation authorizing her to deal with the estate of her late father. The obvious question that arises is whether the land in question did in fact belong to the late Daniel Magondu and whether the Appellant was in fact a beneficiary to that estate. 23.It must be remembered that the standard of proof in criminal cases is very high. The prosecution are required to prove their case beyond a reasonable doubt. (See Woolmington -vs- DPP [1935] AC 462) 24.No evidence was presented in the Lower Court to prove that this Daniel Magondu was in fact the father of the Appellant. No evidence e.g a death certificate or a burial permit was produced to prove that the appellant’s father was in fact dead. 25.More pertinently no evidence was adduced to show that the land in question was registered in the name of this ‘Daniel Magondu’. Finally no evidence was adduced to prove that there was any pending succession cause relating to this land. As such I find that the prosecution failed and/or neglected to prove critical elements of this charge of intermeddling. 26.In the case of Benson Mutuma Muriungi -vs- Ceo Kenya Police Sacco & Another [2016] eKLR the Court in discussing the offence of intermeddling stated as follows“There is no specific definition of the term intermeddling provided in the Law of Succession Act. The Act simply prohibits taking possession of or disposing of, or otherwise intermeddling with any free property of a deceased person by any person unless with the express authority under the Act. But in my understanding, the use of wide and general terms such as; “for any purpose” and “or otherwise intermeddle with” in the Act portends that the category of the offensive acts which would amount to intermeddling is not heretically closed or limited to taking possession and disposing of the property of the deceased. I would include in that category such acts as; taking possession, or occupation of, disposing of, transferring, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with existing lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act or any other written law. I do not pretend to close the list either or make it exhaustive. The list could be long. However, any act or acts which will dissipate or diminish or put at risk the free property of the deceased are acts of intermeddling in law.” [Own emphasis] 27.The agreement between the appellant and PW1 did not involve the actual ‘transfer’ of the property to PW1 nor did PW1 take actual possession of the land. As such the appellant did not in any way give over possession of any part of the land. She was only purporting to sell what she anticipated would be her share of the estate. If in fact the appellant ended up getting no share of this land then the sale agreement would be voided as a crucial pre-condition for the Agreement had not been met. 28.The Sale Agreement was premised upon the occurrence of a future event. In the sale agreement it is clearly indicated that PW1 would only take possession of the 2 acres once succession proceedings are complete. What the appellant did was to con PW1 into believing that she had the capacity to sell a portion of this land. However the appellant in my view did not actually sell, transfer, take possession of or in any other way interfere with the said land. 29.PW1 as a potential purchaser also had a duty to exercise due diligence to establish whether the appellant indeed had requisite authority to sell to the suit land to him. PW1 is not entirely blameless in this transaction. 30.I find that the key ingredients of intermeddling were not established. The prosecution failed to adduce evidence regarding key and critical elements of the charge. The conviction of the appellant was in my view unsafe. 31.Finally this appeal succeeds. The appellant’s conviction is quashed and her sentence of one (1) year is set aside. The appellant is to be set at liberty forthwith unless she is otherwise lawfully held. DATED IN NYERI THIS 29TH DAY OF JUNE 2026MAUREEN A. ODEROJUDGE