[2023] KEHC 26261 (KLR)

Kitili v Republic (Criminal Appeal E164 of 2022) [2023] KEHC 26261 (KLR) (Crim) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26261 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E164 of 2022

K Kimondo, J

December 7, 2023

Between

Andrew Maithya Kitili

Appellant

and

Republic

Respondent

(Appeal from the judgment in Criminal Case No. 1766 of 2019 in the Chief Magistrates Court at Makadara by L. K. Gatheru, Senior Resident Magistrate, dated 29th July 2022)

Judgment

1. The appellant was convicted for obtaining money by false pretences contrary to section 313 of the Penal Code.He was fined Kshs 100,000 in default to serve 3 years in prison. Additionally, he was “to compensate the complainant Kshs 280,000 and such compensation to take precedence over the fine”.

2. The particulars were that between 18th and 19th February 2019 at Upper Hill Area in Nairobi County, with intent to defraud, he obtained from Joseph Oduor Ogutu Kshs 280,000 by falsely pretending that he was in a position to sell him motor vehicle registration number KCG 896C make Toyota Wish, a fact he knew to be false.

3. His appeal is dated 20th September 2022 and raises 10 grounds. I will however condense them into six: Firstly, that all the elements of the offence were not proved; secondly, that the learned magistrate misapprehended the evidence; thirdly, that the burden of proof was shifted to the appellant; fourthly, that his defence was disregarded; and, fifthly, that the fine ordered and particularly the default sentence was draconian and unlawful. Lastly, the appellant also contends that he was denied an opportunity to mitigate and the trial court relied instead on a disputed pre-sentence report.

4. The appeal is contested by the Republic.

5. The appellant relied wholly on submissions dated 24th November 2022 together with an annexed recommendation by Justice Defenders on his reform credentials in prison.

6. The Republic replied through submissions dated 17th July 2022.

7. This is a first appeal to the High Court. I have examined the record; re-evaluated the evidence and drawn independent conclusions. There is a caveat because I neither saw nor heard the witnesses. Njoroge v Republic [1987] KLR 19, Okeno v Republic [1972] E. A. 32.

8. Four witnesses testified for the Republic. From the combined evidence of PW1 and PW2, I am satisfied that the appellant falsely presented to the two that he was in a position to sell to PW1 the above motor vehicle at the agreed price of Kshs 280,000. Two advance payments of Kshs 20,000 and the Kshs 50,200 were paid to the appellant via Mpesa; a fact he freely conceded in his sworn defence. The appellant then advised PW1 and PW2 to accompany him to the offices of CIC Insurance where the balance of Kshs 210,000 was given to him by PW1 in cash in the presence of PW2. He then vanished and left the two waiting for hours at the company reception.

9. Neither the car was provided nor was a refund given. In his defence, the appellant only conceded to receipt of Kshs 70,200. He was a motor vehicle assessor and a valuer. He also ran an auctioneering firm, Pristar Agencies. He acknowledged that he met PW1 and PW2 on the material days and showed them the salvage vehicle at Leakeys Storage. He later advised the two that further payments were to be made to CIC Insurance.

10. He claimed that the sum of Kshs 50,200 sent to his Mpesa line was a “bidding fee” to CIC Insurance paid through Stanbic Bank. He said the complainant failed to raise the balance in time and that the vehicle was sold off to a third party. When the appellant was arrested, he agreed to refund the Kshs 70,200 which had since been “refunded by CIC” but the complainant declined. He produced his M-Pesa statement (defence exhibit 2) detailing the payment of Kshs 50,000 to CIC through the bank.

11. The basic ingredients of the offence facing the appellant required prove of the following facts: the act of obtaining something capable of being stolen; obtaining the thing by false pretence; and, obtaining the thing with intent to defraud.

12. Section 313 of the Penal Code states as follows:Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanour and is liable to imprisonment for three years.

13. The appellant and complainant met and transacted on two consecutive days. The appellant conceded that he met PW1 and PW2 and received some payments. There is thus no question of identification. This was evidence of recognition. Wamunga v Republic [1989] KLR 424.

14. Like I stated, I also entertain no doubt in my mind that the appellant received from the complainant Kshs 280,000. The intention to defraud can be discerned from the following set of facts: Firstly, the appellant misrepresented that he was in a position to sell the car to the complainant. The truth is that he did not own the chattels. Secondly, the entire purchase price was paid to him, never mind that he forwarded a sum of Kshs 50,000 to CIC through Stanbic Bank. The appellant conveniently denied that he received a further Kshs 210,000 at the reception area of CIC Insurance. Thirdly, he did not refund the sums. Needless to say, the motor vehicle was never given to the complainant.

15. In a synopsis, the appellant had no defence to the charge. It is not true that his line of defence was disregarded. At pages 6 and 7 of the typed judgment, the learned trial magistrate has dealt at length with the appellant’s testimony and his submissions. At pages 10 to 14 of the decision, the court weighed the evidence of the complainant against the defence. It found that the appellant received Kshs 20,000 on 18th February 2019 via Mpesa; a further Kshs 50,200 on 19th February 2019 through the same mobile wallet and cash of Kshs 210,000.

16. It is thus not true that his evidence was disregarded. Rather, it was a bogus defence. Like the learned trial magistrate, and for the reasons I gave earlier, I have concluded that the entire defence was a sham.

17. Money is capable of being stolen. From my earlier analysis of the evidence, he obtained the money by a false pretence and with a clear intention to defraud the complainant. His conduct thus falls squarely within the definition of a false pretence expounded in section 312 of the Penal Code.

18. It is a truism that the legal and evidential burden rested squarely on the Republic. Woolmington v DPP [1935] AC 462, Bhatt v Republic [1957] E.A. 332. I am unable, on the totality of the evidence to say that the burden was shifted to the appellant.

19. On a full re-appraisal of the prosecution’s evidence and the counterfeit defence set up by the appellant, I readily find that all the necessary elements of the offence were present and proved beyond reasonable doubt. It follows that the conviction was safe. The appeal on conviction is hereby dismissed.

20. I will turn briefly to the sentence. Section 354 (3) of Criminal Procedure Code empowers the court to alter the finding, maintain the sentence, or with or without altering the finding reduce or increase the sentence. The parameters were well set out in Macharia v Republic [2003] 2 E.A 559.

21. The appellant was not a first offender. He had been convicted of a similar offence in Criminal Case 1267 of 2017 before the same court. The trial court called for a pre-sentencing report. It was supplied to the appellant who told the court that he did not dispute its contents. The court also considered that the appellant was married and had 5 children; and, his prayer for time to compensate the complainant. Granted that record, I am unable to say that the appellant was not granted an opportunity to mitigate.

22. The law provided for a sentence of up to three years. Having fined the appellant Kshs 100,000 the default sentence of 3 years was irregular. Section 28 (2) of the Penal Code only allowed a maximum default sentence of 1 year. The default sentence is hereby set aside. I substitute it with a sentence of 1-year imprisonment. That sentence shall run from 12th September 2022, the date of the original sentence. The time spent in remand custody from the date of his arrest on 17th May 2019 (but excluding any period when he was out on bail) shall be deducted from that sentence.

23. However, I uphold the part of the sentence by the lower court that required the appellant to restitute the sum of Kshs 280,000 to the complainant in priority to the fine above. It is not true as urged by the appellant that the payments to him were not proved.

24. In the upshot, the appeal on conviction is dismissed. The appeal on sentence partially succeeds only to the extent spelt out in paragraphs 22 and 23 of this judgment.It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 7th DAY OF DECEMBER 2023. KANYI KIMONDOJUDGEJudgment read virtually onMicrosoft Teamsin the presence of-The appellant.Ms. Oduor for the Republic instructed by the Office of the Director of Public Prosecutions.Mr. E. Ombuna, Court Assistant.