[2022] KEHC 11406 (KLR)

Kinoti & 2 others v Republic (Criminal Appeal E043 of 2021) [2022] KEHC 11406 (KLR) (17 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11406 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal E043 of 2021

SN Mutuku, J

May 17, 2022

Between

Peter Kinoti

1st Appellant

Stephen Kathurima Mugambi

2nd Appellant

Erick Munene

3rd Appellant

and

Republic

Respondent

(Being an Appeal from the decision of the Hon. Caroline Ndumia Resident Magistrate Loitoktok in Criminal Case No. 415 of 2018 on the 4th August, 2021 and sentence on 18th August, 2021)

Judgment

Introduction 1. The Appellants, Peter Kinoti Mbijiwe, Stephene Gathurima Mugambi and Erick Munene Gichuru were charged with being in possession of forged bank notes contrary to section 359 of the Penal Code. The particulars thereunder are that on 7th day of September 2018 at Kimana town within Loitoktok sub county without lawful authority or excuse jointly had in their possession USD 390,000/- (United States dollars three hundred and ninety thousand) all in 100 denomination notes forged currency notes knowing them to be forged.

2. They were tried by the lower court and found guilty as charged. They were each convicted to serve three and half (3 ½ ) years imprisonment. They are aggrieved by the conviction and the sentence and have come to this court on appeal.

Memorandum of Appeal 3. The Appellants’ Memorandum of Appeal, haa raised the following seven grounds of appeal:i.That the Honourable Resident Magistrate erred in law and fact in shifting the burden of proof to the Appellants.ii.That the Honourable Resident Magistrate erred in law and fact in failing to consider the defence by the Appellants and shifting the burden of proof.iii.That the Learned Honourable Resident Magistrate erred in convicting the Appellants on accounts of forgery which were not proved.iv.That the Honourable Learned Resident Magistrate relied on the evidence of PW1 which was unsupported and misleading.v.That the Honourable Learned Resident Magistrate erred in fact and law in holding that the Appellants were in possession or custody of forged notes.vi.That the Honourable Learned Resident Magistrate erred in law and fact in relying on the evidence of the police officers who were tipped to arrest.vii.That the Honourable Learned Resident Magistrate erred in law and fact in convicting the Appellants against the weight of the defence.

Submissions 4. This Appeal was canvassed by way of written submissions. The Appellants filed their submission in which they have argued that the trial court erred in law by shifting the burden of proof to them; that the prosecution failed to clearly identify the persons who had the forged notes at the time of the commission of the offence; that from the evidence of PW1, the three appellants are not mentioned as having been present when the alleged forged bank notes were received; that the appellants’ only offence was being found at the complainant’s house and that the real culprits are Lucy, one Martin and one Muhamed.

5. It was further submitted that the evidence is clear that the appellants did not deliver, were not in possession of and never claimed the fake notes; that the prosecution evidence is that the box purported to have the dollars was delivered by Lucy; that the purported bank notes were found in the house of PW1 and that at no time were the appellants in possession of the notes; that PW1 testified that he kept the dollars in his house and the that the appellants only came to the house in company of one Lucy and therefore the question is whether the appellants were aware of the existence of fake dollars. Further that no prosecution witness could specify who was in possession of the notes.

6. It was submitted that the offence facing the appellants in the lower court required that an accused person must be in actual possession and with knowledge that the notes are forged; that from the evidence of PW1 the only person who discussed the money with him was one Lucy who was not charged and did not testify; that the items that PW1 names as having been with the appellants are plastic bottle with white substance, metallic box, four pieces of cotton wool and metallic foil and no forged notes are mentioned.

7. There are no submissions on record for the prosecution. The Prosecution counsel relied on the evidence adduced in the lower court and the reasoning of the trial magistrate.

The evidence 8. This is a first appeal. In determining this appeal, this court is required to read, analyze, evaluate and consider all the evidence adduced in the lower court and make its own independent conclusion, allowance being made that this court did not have the opportunity to observe the witnesses as they testified.

9. The evidence of the prosecution show that following a business deal between PW1 and one Lucy Wanjiru Njoroge involving selling of antiques left behind by German colonialists, PW1 was to source for these items while Lucy was to look for the market for the antiques. PW1, through a friend of his named Mutua, found an alleged antique, an iron box. They all agreed to meet with the sellers of this antique in Nairobi at Mlolongo where Lucy was to meet them. This was in February 2018.

10. At the agreed venue, Lucy asked to be shown the item. She tested it and said it was in good condition. She told the others that the item was worth Kenya Shillings 120 billion. Evidence shows that Lucy informed the rest of the group that she had a boss called Mohammed who was in Nairobi and that they should show him the item. They met the said Mohammed who also stated that the item was worth Kenya Shillings 120 billion. This amount was to be paid to PW1 since he had taken the item to them.

11. Time was needed to get this money and the said Mohammed is said to have travelled abroad to look for that money. This took a while until July 2018. Lucy called PW1 and informed him that Mohammed had sent money from the USA and that it was at the airport. He was told that the money was to be divided into two batches, one for PW1 and one batch for one Mugambi, the current Accused 2. Lucy in company of Mugambi met PW1 and they went to the airport. Lucy called one Martin who joined them at an hotel at the airport. The said Martin told them that there was some payment to be made in order to get the parcel from the USA. PW1 was told to pay Kenya Shillings 300,000. PW1 was told that Mugambi had paid Kenya Shillings 13 million for the said parcel.

12. Evidence shows that after one week PW1 met Lucy in town and he paid Martin the money (Kshs 300,000). The parcel was a box. It was removed from Martin’s vehicle to Lucy’s vehicle. PW1 was later given this box which he took to his room for the night. PW1 said that he did not check the box and in the morning he took the box home. He was cautioned by Mohammed not to open the box but to wait for Lucy to come and open it. PW1 obediently did not open the box despite the key to the padlock being attached to the box.

13. After five days Lucy went to open the box. Lucy arrived at PW1’s home at Kimana with one Maxwell, her driver, and a woman holding Lucy’s baby. PW1 saw money wrapped into two bundles one in PW1’s name and the other in the name of Mugambi. The money has a UN seal and PW1 asked the reason for this. He was told the reason was to prevent the money from being stollen. He was given 100 dollar bill to go and verify the same at the bank. He went to Equity Bank in Nairobi (he did not say which branch). The note was genuine and he got Kshs 9,000 after exchanging it.

14. Evidence shows that Lucy and her team assured PW1 that would come and remove the seal from the money. It seems that curiosity got the better of PW1. He took another 100 dollar bill from the box and took it to the bank, this time to Equity Loitoktok. It was found to be fake. PW1 reported the matter to one Kilonzi a police officer at Loitoktok Police Station. The police mounted an operation to catch Lucy and her group.

15. On 7th September 2018, Lucy, house girl and three men went to PW1’s house. They had with them a black bag, a machine, a plate containing red plastic bottle, one empty colourless small bottle and one coloured bottle with white substance. Among the three men are the current 1st, 2nd and 3rd accused persons. PW1 testified that Peter Kinoti, current 1st accuse and Erick Munene, current 3rd accused picked the bottles and started cleaning the money that was in the box. Police arrived shortly thereafter and arrested the group.

16. Stephen Kathurima Mugambi, the 2nd Appellant, testified as DW1 even though he was the 2nd accused person as per the amended charge sheet dated 26th October 2019. In his defence under oath, he denied involvement with the events that led to this case. He told the court that he is a friend of PW1 Christopher Ndiriri since 2013 and that he used to assist him by giving him money for his business of buying colonial antiques. He testified that the complainant called him in June 2018 to tell him about another business deal and ask him for money. He told Kioti the 1st Appellant to accompany him to Kimana to the home of the complainant where they found three women, a baby and the complainant. He testified that as they were taking tea police arrived and arrested them.

17. Peter Kinoti, the 1st Appellant testified as DW2. He told the court that he was told by Stephen Mugambi to accompany him to Kimana and he accepted; that on arrival in PW1’s house in Kimana they were served tea and that while taking tea police arrived and arrested them. On cross examination he denied knowing PW1 and stated that he had not been to Kimana before this time.

18. Erick Munene was DW3. He too testified that he was in a burial in 2018 where he met Kinoti who informed him of a trip to Kimana the following day and asked him to accompany him. He also told the court that they were arrested as they took tea at the home of the PW1.

19. It is obvious to me that the Appellants are not telling the court the truth. For instance, Mugambi was mentioned as having been at the airport when PW1, Lucy and other people has gone to allegedly receive the money from the USA. Evidence shows that one bundle of the money had his name. He is mentioned as having paid Kshs 13 million in respect of the parcel to be received from the airport. Secondly, Mugambi told the court that Kinoti was driving them from the burial venue to Kimana while Kinoti said it was Mugambi who drove them. Thirdly, the Appellants, specifically Mugambi, did not cross examine PW1 on the issues he was testifying to in his defence. It is clear to me that the defence of the Appellants is an afterthought. However, the law is clear that it is not the accused person who has the duty to prove his innocence but the prosecution to prove that an accused person committed the offence charged.

Determination 20. The record shows that all the five of the people arrested on 7th September 2018 were initially charged with the offence. The original charge sheet dated 10th September 2018 shows Margaret Wangare Wambui as the 1st accused; Lucy Wanjiru Njoroge as the 2nd accused; Stephen Kathurima Njoroge as the 3rd accused; Peter Kinoti Mugambi as 4th accused and Erick Munene Gichuru as the 5th accused. After the plea of not guilty by all the five accused persons on 10th September 2018 the court released the accused persons on a bond of Kshs 800,000 with one surety each or cash bail of Kshs 200,000 each. Lucy did not return to court. She absconded. Attempts to arrest her were not successful. The charge was amended to reflect four accused persons.

21. On 30th April 2019, the remaining accused persons took plea again on the amended charge sheet. They appear as follows: Margaret Wangare Wambui was 1st accused; Stephen Kathurima Njoroge was 2nd accused; Peter Kinoti Mbijiwe is the 3rd accused and Erick Munene Gichuru is the 4th accused. The 1st accused absconded and did not return to court on 30th July 2019. Efforts to arrest her were unsuccessful. The prosecution amended the charge sheet again and on 26th September 2019 the remaining accused persons took the plea to the amended charge sheet. They now appear as Peter Kinoti Mbijiwe as the 1st accused; Stephen Kathurima Mugambi as the 2nd accused and Erick Munene Gichuru as the 3rd accused. I have noted that in the first charge sheet and the first amended charge sheet, the current 2nd accused person is called Stephen Kathurima Njoroge and in the current charge sheet he is referred to as Stephen Kathurima Mugambi. I have also noted that Peter Kinoti Mbijiwe, the 1st accused currently, is named as Peter Kinoti Mugambi in the original charge sheet. This discrepancy in the names is not explained in the judgment of the lower court.

22. Section 359 of the Penal Code that creates the offence facing the appellants in the lower court provides that:Any person who, without lawful authority or excuse, the proof of which lies on him, imports or purchases, or receives from any person, or has in his possession, a forged bank note or currency note, whether filled up or in blank, knowing it to be forged, is guilty of a felony and is liable to imprisonment for seven years.

23. The elements of this offence, that must be proved beyond reasonable doubt, to my understanding, are that there must be identification of a person; that person must import, purchase, receive or possess a forged bank note or currency note whether filled up or blank without lawful authority or excuse; that person must have knowledge that the bank note or currency note is forged; the burden shifts to that person to show that he/she had authority or excuse to have the forged bank note.

24. It is clear to me that there are two major issues arising for determination in this appeal as follows:i.Did the prosecution discharge the burden of proving the charge against the appellants beyond reasonable doubt?ii.Did the learned trial magistrate shift the burden of proof to the appellants?

25. Following up on the identified issues above, the next question is: what was the prosecution required to proof beyond reasonable doubt? The contents of paragraph 10 above gives the answer to this question. The prosecution is under a duty to prove beyond reasonable doubt that the appellants, without lawful authority or excuse, imported or purchased, or received from any person, or had in their possession, the purported forged bank notes, knowing them to be forged. After the prosecution satisfies this legal requirement, then the burden shifts to the appellant to prove that they have or had lawful authority or excuse to have the forged bank notes with them.

26. This is my understanding of Section 359 of the Penal Code and it is the correct interpretation of this provision. In Hellen Wanjiru Mwangi V Republic [2011] eKLR the court had similar understanding of the provision. It had this to say about the burden of proof in a case under Section 359 of the Penal Code:Whereas the trial court found as a fact that the appellant and her co-accused were found in possession of the forged currency notes, and blank papers, and whereas Section 359 shifts the burden of proof on the accused or appellant in this case, the burden still lies on the prosecution to show that the banknotes or currency were indeed forged. Once that burden is discharged, then it shifts to the accused or appellant to show that they had lawful authority or excuse to possess them.

27. It is my understanding that the burden of proof that an offence under Section 359 of the Penal Code has been committed does not shift from the prosecution. What an accused person is required to prove is not his/her innocence but that he/she had lawful authority or excuse to possess, import, receive or purchase the forged bank note. Did the learned trial magistrate shift the burden of proof to the appellants?

28. I have narrated the evidence of PW1 in this judgment. Among the Appellants, the only person who was mentioned before the date they were arrested is the 2nd Appellant. He featured at the airport when PW1, Lucy and an unidentified woman went to the airport to receive the money. He featured when PW1 was told that the 2nd Appellant had paid 13 million in respect of the parcel being received at the airport. He also featured on 7th September 2018 when all the original accused persons were arrested while in PW1’s house at Kimana.

29. The 1st and 2nd Appellant were involved for the very first time on 7th September 2018 when police arrested them. They did not feature in the negotiations or at the airport or in any other place. At least that is what the evidence shows.

30. The evidence of IP Vincent Chelongo (PW5) clearly shows that the bank notes were not genuine. He concluded his evidence by telling the court that he checked the paper quality of the notes and found it of poor quality. He looked at the security ribbon which is supposed to be 3D security ribbon but found that the ribbon was just a drawing. He examined the value colour shifting on the currency on the right bottom and a bell which colour is supposed to shift from green to gold when looked at from an angle but this was not the case.

31. The witness went further to testify that he examined the water mark portrait but the portrait was not there. He examined the raised integral printing which can be felt when touched but it was not there. The bills did not have the micro printing when magnified and the serial number on the bills was not letter pressed. His conclusion was that the bank notes were not genuine but counterfeits.

32. The above evidence, in the absence of any other negating it, satisfies this court, as did the trial court, that the bank notes produced in court as exhibits were indeed forged. There is evidence that the Appellants, together with Lucy and Margaret, now at large, were all found in the house of PW1 with the box containing the forged bank notes. The question that pops up in my mind is who was in possession of these bank notes?

33. In Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR the Court of Appeal had this to say in dealing with the meaning of “possession”:“The next ground of appeal that we shall consider is whether the appellants were in possession of the RDX. From the appellants’ submissions, they could only have been guilty of possession of the RDX if they were found in physical possession of the substance. Section 4 of the Penal Code defines “possession” in the following terms:(a)“be in possession of” or “have in possession” includes not only having in one’s own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person;(b)if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them.” (Emphasis added).

34. The Court of Appeal further found that in view of the provisions of Section 4 of the Penal Code, being in possession of something does not require one to be in actual, personal physical possession of it. So long as there is evidence on record that the person knowingly had the thing that will constitute possession within the meaning of the Penal Code. The same Court affirmed that possession under section 4 of the Penal Code encompasses both actual and constructive possession.

35. In Pius & another v Republic (Criminal Appeal 8 of 2018) [2022] KECA 460 (KLR) (Crim) (18 March 2022) (Judgment), the court defined “possession” as follows:“From the above definitions, possession may be actual or constructive. Actual possession, denotes physical custody or control of an item or object. In that case the person in possession has immediate contact. Whereas, in constructive possession an individual has actual control over the goods or property without actually having physical control of the same assets. At law, a person with constructive possession stands in the same legal position as a person with actual possession.”

36. At no time does the evidence point to 1st appellant Kinoti or Erick Munene, the 3rd appellant as having been in possession of the bank notes. The chronology of events, as testified by PW1, is clear that the authors of this story are Lucy, Margaret and one Mohammed. Lucy approached PW1 with a business deal involving colonial antiques. PW1, lured by what seemed to be a profitable deal fell into the carefully laid plot to extort money from him. Other than Mugambi, the other two appellants got involved at the tail end of the whole plan.

37. Mugambi is mentioned as one of the people who had paid Kshs 13 million in order to benefit from the parcel from abroad. It is not clear why PW1 and Mugambi were to be paid. Perhaps it was a plot to make PW1 believe that the deal was genuine. Mugambi was with Lucy when they went to the airport to receive the parcel. He is the one who introduced the 1st and 3rd appellants to PW1 as far as the evidence shows.

38. It is the duty of the prosecution to prove beyond reasonable doubt that the appellants, or any one of them had in their possession the bank notes. It is true they were all arrested at the home of PW1. They had all assembled there for purposes of having the “money cleaned”. There is no evidenced, as far as this court sitting on appeal can tell, to show that the 3 appellants were in possession of the bank notes. PW1 could have as well have been in possession of the same given that it was his money to share with Mugambi and that the money was in his actual possession from the time the same was handed to him by Lucy and other persons named but who were not arrested or charged.

39. The box with the fake bank notes was given to PW1. At the time he received the box, Lucy, Mugambi and one Martin were present. Lucy, Mugambi and the said Martin seem to be involved in this scam. The same cannot be said about 1st and 3rd appellants no time did it go to any of the appellants. Their involvement seems to be for purposes of “cleaning the money”. PW1 told the court that it was the 1st and 3rd appellants who were “cleaning the money” when police came. He referred to the two as 3rd and 4th accused. At the time PW1 testified, Lucy has absconded and the charge sheet had been amended to show Peter Kinoti as 3rd accused and Erick Munene as 4th accused.

40. Going by the definition of possession shown in this judgment, the 3 appellants were in possession of the bank notes. By the very act of “cleaning the notes”, the three must have known that they were fake. 1st and 2nd appellants may not have been involved before 7th September 2018 but they cannot escape blame for getting involved in “cleaning” the money. As shown above, Mugambi, just like Lucy, was involved with the whole scam from the beginning and cannot escape my finding that he was also involved in being in possession, or in importing, or in receiving the fake bank notes.

41. Now to turn on the issue as to whether the trial court shifted the burden of proof to the appellants, I have noted that in the judgment on second last paragraph, the trial court stated as follows:“As per section 359, the burden of proof lies with the accused persons to prove that they had authority or were not aware that the notes were forged.”

42. The trial court, as far as I can see from the above statement, was alive to the requirements of the law under section 359. The only error on her part is shifting the burden of proving knowledge that the bank notes were forged on the appellants. From the wording of section 359, an accused person thereunder only has the burden of proving that he had lawful authority or excuse to have the forged bank notes not anything else. It is my finding that the appellants were lawfully convicted and sentenced. There is sufficient evidence proving this case beyond reasonable doubt. I find no merit in this Appeal which must fail.

43. With that conclusion, I hereby uphold the conviction and sentence meted out in the lower court. The appellants shall continue to serve the sentence imposed by the lower court. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 17TH DAY OF MAY 2022. S. N. MUTUKUJUDGE