[2022] KEHC 15157 (KLR)

Macharia v Republic (Criminal Appeal E002 of 2022) [2022] KEHC 15157 (KLR) (11 October 2022) (Judgment)

Neutral citation: [2022] KEHC 15157 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal E002 of 2022

SN Mutuku, J

October 11, 2022

Between

Richard Mwangi Macharia

Appellant

and

Republic

Respondent

Judgment

Background 1. Richard Mwangi Macharia, the Appellant, was charged before the Chief Magistrate’s Court with six (6) counts as follows:(i)Making a document without authority contrary to section 357(a) of the Penal Code. The particulars state that on the August 14, 2006 at unknown place within the Republic of Kenya with intent to defraud, without lawful authority or excuse made Title Deed Kajiado/Kitengela/10982 purporting it to be a title deed issued by the Land Registry Kajiado.(ii)Forgery contrary to section 349 of the Penal Code. The particulars are that on the August 14, 2006 at unknown place within the Republic of Kenya, with intent to defraud forged a signature purporting to be the signature of Mr. Silvanus Were who by then was not the Land Registrar Kajiado.(iii)Forgery contrary to section 352(a) of the Penal Code. The particulars are that on the August 14, 2006 at unknown place within the Republic of Kenya, made a false impression seal used for the purpose of registration of title deed by the Ministry of Land, a Government Department, with intent to defraud.(iv)Forgery contrary to section 349 of the Penal Code. The particulars are that on the August 14, 2006 at unknown place within the Republic of Kenya, with intent to defraud forged a name stamp purporting to be the name stamp of S. J. Were 105 who was by then was not the Land Registrar Kajiado.(v)Uttering a False Document contrary to section 353 of the Penal Code. The particulars are that on December 21, 2012 at DT Dobie in Nairobi within Nairobi County, knowingly and fraudulently uttered a forged title deed Kajiado/Kitengela/10982 to Richard Mwangi Kimani purporting it to be a genuine and valid title deed issued by the District Land Registrar Kajiado.(vi)Obtaining Money by False Pretense contrary to section 313 of the Penal Code. The particulars are that on diverse dates between December 21, 2012 and January 28, 2013 at Co-operative Bank Area Branch (sic) in Nairobi within Nairobi County, jointly with others not before court with intent to defraud obtained Kshs 2. 5million from Gabriel Mwangi Kimani by falsely pretending that he was in a position to sell him a piece of land Kajiado/Kitengela/10982 a fact /he knew to be false.

2. The Appellant pleaded not guilty to all the six counts. He was tried and found guilty in all the six counts in a judgement delivered on 28th September 2021. He was sentenced as follows:(i)In Count I - to pay fine of Kshs 500,000 in default to serve 7 years imprisonment(ii)In Count II – to pay a fine of Kshs 400,000 in default to serve 3 years imprisonment.(iii)In Count III – to pay a fine of Kshs 500,000 in default to serve 7 years imprisonment.(iv)In Count IV – to pay a fine of Kshs 400,000 in default to serve 3 years imprisonment.(v)In Count V – to pay a fine of Kshs 400,000 in default to serve 3 years imprisonment.(vi)In County VI – to pay a fine of Kshs 400,000 in default to serve 3 years imprisonment.

3. The Appellant is aggrieved by the conviction and sentence and has come to this court on appeal.

Grounds of Appeal 4. In his Petition of Appeal, the Appellant has raised the following grounds:(i)The learned trial magistrate erred in law and in fact by finding that there was evidence to support the charge of making a document without authority as set out in count 1 of the charge sheet and the charge of uttering a false document as set out in count 5 of the charge sheet.(ii)The learned trial magistrate erred in law and in fact by finding that the charge of forgery as set out in counts 2, 3 and 4 of the charge sheet and the charge of obtaining money by false pretense as set out in count 6 of the charge sheet were proved beyond reasonable doubt.(iii)The learned trial magistrate erred in law and in fact by relying wholly on circumstantial evidence with minimal support of documentary evidence.(iv)The learned trial magistrate erred in law and in fact by relying on secondary evidence against the provisions of the Evidence Act.(v)The learned trial magistrate erred in law and in fact by accepting the prosecution case as proved beyond reasonable doubt without taking into consideration the defence case.(vi)The learned trial magistrate erred in law and in fact by ignoring the legal principles governing circumstantial evidence and when to convict on the basis of such evidence.(vii)The learned trial magistrate erred in law and in fact by shifting the blame on the accused innocent party and failing to find fault on the Land Registrar who issued the title deed.(viii)The conviction and the sentence were against the weight of the evidence adduced.

5. The Appeal was canvassed by way of written submissions with oral highlighting. I however note that the prosecution did not file written submissions.

Submissions 6. In his submissions, through his counsel Mr. Nairi, the Appellant has raised and submitted on the following issues:a.Whether the prosecution proved its case beyond reasonable doubt

7. It was submitted that the prosecution did not tender evidence to prove its case beyond reasonable doubt. It was submitted that the charge of making a document without authority was not proved because there was no evidence that the Appellant signed, made or executed the title deed nor did that document bear signatures that were proved to those of the Appellant. While relying on the case of Dennis Binyenya v. Republic [2018] eKLR, the Appellant submitted that the ingredients of making a false document were laid down in that case to be:(i)Proof of the making, signing or execution of a document and that the same was done by the accused.(ii)Proof that the making, signing or execution was without lawful authority or excuse, and(iii)Proof that the making, signing and execution was with the intention to defraud or deceive.

8. It was submitted that none of the witnesses testified to the Appellant signing, making or executing the title deed and that the trial court erred in making inferences that the Appellant was responsible in making the document; that the Appellant testified that the documents were prepared at the Land Registry; that it was upon the prosecution to prove otherwise and that the trial court shifted the onus of proof to the Appellant. He cited Dennis Kamau Kariuki & 2 others v Republic [2021] eKLR where the court stated in part that “there must be proof beyond reasonable doubt that the actus reus, the act of forgery, or the omission resulting in the forgery, was effected specifically by the Appellants or any of them.”

9. It was submitted that none of the ingredients of making a false document as defined under Section 347 of the Penal Code have been proved and that there is no evidence demonstrating that those ingredients existed and therefore the charges in counts 1, 2, 3, 4 and 5 were not proved beyond reasonable doubt. It was submitted that the official certificate of search was never produced before the court to demonstrate the proprietor of the property in issue as at the time.b.Whether the prosecution failed to call necessary witnesses and it this was fatal to their case?

10. It was submitted that crucial witnesses including a forensic expert, the Investigating Officer and Harrison Lemayian were not called to testify. The Appellant relied on the case of Serpepi Sanja Siromo [2020] eKLR, which cited with approval Bukenya & Others v Uganda [1972] EA 549, where it was held that:“…the prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent with its case, and that where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would, if tendered, have been adverse to the prosecution. The emphasis in the above decision is that the prosecution must call all crucial witnesses to prove its case beyond reasonable doubt………”c.Whether the sentence meted was unlawful as being too harsh and excessive?

11. It was submitted that the sentence meted out is harsh and excessive especially because of the consecutive nature of it and that if the sentence remains unchanged, the Appellant will serve a total of 28 years causing an injustice. The Appellant relied on Lilian Wairimu Ndungu v Republic [2011] eKLR where the court reasoned that:“The third ground was that the sentence was harsh. The learned trial magistrate sentenced the Appellant along with her co-accused to consecutive terms on all the five counts. I agree with the learned counsel for the Appellant on this ground. The maximum sentence under the five counts is 7 years for making a false document. To sentence the Appellant to consecutive terms means that the Appellant would serve an average of five (5) years on the other counts where the maximum sentence is three (3) years. This would be clearly contrary to those provisions.”

12. Mr. Nairi, learned counsel for the Appellant highlighted the written submissions on 22nd March 2022. He reiterated the contents of the written submissions. I need not repeat what counsel stated verbatim given that his highlights are well captured in the written submissions. Suffice it to state that I have read and considered the highlighted submissions in this judgment.

13. The prosecution did not file written submissions. Mr. Mang’are, learned counsel for the prosecution, made oral submissions that the prosecution supports the conviction; that the evidence adduced proved the case against the Appellant beyond reasonable doubt and that the prosecution has a duty to call the number of witnesses as are necessary to prove its case. He submitted that the record of the lower court shows that the evidence adduced is sufficient to support the prosecution case.

14. Counsel submitted that the lower court considered all factors before passing the sentence and that the sentence is legal. He submitted that there is sufficient evidence to prove that the Appellant committed the offences charged and asked the court to uphold the conviction and sentence.

The Evidence 15. I have read the record of the lower court. Oscar Macharia Mukuria (PW1) told the court that in 1987, he and his siblings bought 10 acres in Kitengela being Kajiado/Kitengela/3956 through their father and subdivided it into three portions of about 3 acres each with one portion going to each of the three of them. The evidence of PW1 is not clear whether after subdivision his title became Kajiado/Kitengela/10982, the subject of these proceedings. But PW1 identified this title in court. He testified that he lived in USA and that he was called by the police and informed that he had sold his property which he denied. He denied selling his land to the Appellant or knowing the Appellant.

16. Gabriel Kimani Mwangi (PW2) testified that a land broker known as Lemaiyan advised him in October 2012 that there was land for sale in Kitengela and that in November 2012 the Appellant was introduced to him by Lemayaian as the owner of the land. PW2 testified that the Appellant was selling the land urgently for reasons that he had a sick son whom he wanted to take to South Africa for treatment. PW2 was shown the land and became interested. It was Kajiado/Kitengela/10982. A sale agreement was drawn and on 21/12/2012 PW2 paid the Appellant Kshs 1. 3 million in cash in presence of witnesses and the following day, 22/12/2012, he gave him Kshs1 million also in cash. PW2 paid the balance of Kshs 200,000 by banker’s cheque which he left at the lawyer’s office.

17. After the exchange of money, PW2 picked the documents to launch them at Kajiado Lands Office for the transfer to be effected. He was arrested by the police on instructions of the Land Registrar on allegations that the documents were fake. The police looked for and arrested the Appellant after some time. PW2 testified, further, that one Oscar Mukuria (PW1) brought all the documents.

18. James Muthini Wambua (PW3) a Senior Assistant Lands Registrar at Kajiado Lands Registry, confirmed meeting PW2 on 27/12/2012 while he (PW3) was in the course of his duties. PW3 told the court that PW2 had title deed for Kajiado/Kitengela/10982 bearing the name of Richard Mwangi Macharia. PW2 enquired the procedure of transferring the land. PW3 identified the title deed that was presented to him by PW2. He testified further that on 14/3/2013, PW2 returned to the Lands Registry Kajiado and wanted to know the status of the said title. PW3 called for the Green Card and compared it with the title in possession of PW2. He found that the title was captured in the Green Card but the title deed looked suspicious because the texture and colour of the material did not resemble the material normally used. Further, the embosser and the seal did not resemble the one used by the Lands Registry. PW3 advised PW2 to report the matter to DCI for investigations. PW3 declined to allow the transfer to go through.

19. Geoffrey Omenge (PW4) confirmed meeting PW2 in company of Lemayian and PW2 informing him that he was interested in buying land in Kajiado County and asked PW4 to draw a sale agreement. PW4 asked to meet the seller. The Appellant was introduced to him as the seller. The Appellant had a title deed and told PW4 that he wanted to sell his land to take his son for treatment in South Africa. PW4 conducted an official search and confirmed that the land was registered in the name of the Appellant. He prepared a sale agreement, produced in court as an exhibit. The parties signed the sale agreement in the presence of PW4 and Kshs 1. 3 million was paid to the seller in his presence and Kshs 1 million was to be paid the following day directly to the Appellant. PW4 advised PW2 to pay the balance of Kshs 200,000 by banker’s cheque which was paid to PW4 and collected by the Appellant.

20. Lukoko Were (PW5) denied that he signed the title deed in question or that the serial number stamped on the title deed SN Were 105 was not his number. PW5 testified that each Land Registrar is issued with a stamp with a unique number and that his number was SN Were 105. He told the court on cross-examination that the title deed in question was prepared in 2006 before he had been transferred to Kajiado Lands Office and that he did not know what happened in 2006 at Kajiado Lands Office since he had not come.

21. The title deed in question was examined by CIP Alex Nyongesa (PW6) against the specimen signatures of PW5. He confirmed that the signatures on the title deed Kajiado/Kitengela/10982 were not made by PW5. He also confirmed that the stamp impression on the title deed was not made by the stamp impression belonging to PW5.

22. The Appellant in his defence testified that he bought the land from the owner Oscar Macharia after all formalities were met and he obtained a title deed from Kajiado Land’s Office; that in October 2012 a land agent called Lemayian informed him that there was someone interested in buying the land called Gabriel Mwangi Kimani (PW2). He met PW2 and they negotiated Kshs 2. 5 million. The sale agreement was drawn by PW4 and payments were made but a disagreement arose between them with PW2 threatening to accuse the Appellant of obtaining money by false pretenses if he refused to refund his money. He denied receiving any money other than the Kshs 200,000 through banker’s cheque.

Determination 23. My duty as the first appellate court is to consider afresh and evaluate all the evidence tendered in the lower court and come up with an independent finding allowance being given that as an appellate court I did not have the opportunity to observe the witnesses as they testified.

24. If I were to summarize the grounds of appeal I would borrow from the Appellant’s ground No. 8. It is clear to me, after careful reading of the grounds of appeal and the record of the lower court, that all that the Appellant is saying, through his counsel, is that the conviction and sentence are against the weight of the evidence adduced; that the prosecution did not prove its case beyond reasonable doubt and that the mistakes of the trial court are its failure to appreciate that fact and to erroneously find the charges proved beyond reasonable doubt.

25. My understanding of the evidence adduced is that the Appellant presented himself to PW2 as the owner of the land in question after Lemayian, a land broker informed him that there was land for sale. The evidence on record does not explain how the land changed hands from PW1 to the Appellant. There is no evidence that the Appellant worked in the Land Office, either in Kajiado or any other place. There is no evidence that the Appellant had access to the Land Registry in Kajiado and therefore he had access to land ownership documents or was able to make entries in those documents.

26. As the evidence stands, it does not show who made the title deed in respect of Kajiado/Kitengela/10982 or who signed it, or who stamped and sealed it. I have carefully read and considered the evidence of the document examiner PW6. He was clear that he received the title deed in question and specimen signatures of Mr. Were (PW5) and his specimen stamp impression. His findings were that the signature on the title deed and the seal and stamp impressions on it did not belong to PW5.

27. From the above evidenced, it is obvious to me that there is a problem. The person charged with making a false document and forgery is not PW5 but the Appellant. It was necessary to examine the handwriting and signature of the Appellant to confirm if he is the signatory of the title deed. But the police did not cause this to be done. Instead they examined the handwriting, signature, seal and stamp impression of PW5 and left out that of the Appellant.

28. The record of the lower court is clear that as the case stands, there is no evidence demonstrating that the Appellant made, signed or executed the title deed in question or that the Appellant had the seal and the stamp used to seal and stamp the document.

29. After the trial court examined the evidence of the prosecution and the defence of the Appellant, the court reasoned as follows:“In his defence, the accused blamed unknown officials at the lands office for any error on the transactions which he said he had no control of. The accused did not explain how the alleged forged title bore his names, and why he received large sums of money for a transaction for which the title deed and name stamp were in dispute and allegedly forged (fake).This explanation was very vital because PW1 explained that they had never sold the land to the accused or anybody else and did not even know the accused. PW1 in fact was still in possession of their title deed on one hand, and the accused had another title deed on the other hand, an obvious indication that the accused’s title deed, which he had used to get paid by PW2, was fake (forged).In short, the defence supplied by the accused is insufficient to displace the evidence and testimony given by the prosecution, including documentary evidence herein. As such, the prosecution’s case has crossed the threshold required, that is beyond reasonable doubt, for which no doubt has been created by the defence.”

30. That is all the conclusion the learned trial magistrate did before finding the Appellant guilty of all the six counts he was facing. With that conclusion the learned trial magistrate shifted the burden of proof from the prosecution to the Appellant.

31. Section 347 of the Penal Code defines what making a false document involves. For emphasis, this provision states that:Any person makes a false document who-(a)makes a document purporting to be what in fact it is not; or(b)alters a document without authority in such a manner that if the alteration had been authorized it would have altered the effect of the document; or(c)introduces into a document without authority whilst it is being drawn up matters which if it had been authorized would have altered the effect of the document; or(d)signs a document-(i)in the name of any person without his authority, whether such name is or is not the same as that of the person signing; or(ii)in the name of any fictitious person alleged to exist, whether the fictitious person is or is not alleged to be of the same name as the person signing; or(iii)in the name represented as being the name of a different person from that of the person signing it and intended to be mistaken for the name of that person; or(iv)in the name of a person personated by the person signing the document, provided that the effect of the instrument depends upon the identity between the person signing the document and the person whom he professes to be;(e)fraudulently-(i)makes or transframits any electronic record or part of an electronic record;(ii)affixes any digital signature on any electronic record; or(iii)makes any mark denoting the authenticity of a digital signature,with the intention of causing it to be believed that such record, or part of document, electronic record or digital signature was made, signed, executed, transmitted or affixed by or by the authority of a person by whom or whose authority he knows that it was not made, signed, executed or affixed;(f)without lawful authority or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with a digital signature either by himself or by any other person, whether such person is living or dead at the time of such alter;(g)fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of deception practised upon him, does not know the contents of the document or electronic record or the nature of the alteration.

32. It is clear from this provision that the offence of making a false document is “committed by the making, signing or executing a document, electronic record or writing, for or in the name of another person. In addition, the making, signing or execution must be without lawful authority or excuse, and with the intent to defraud or deceive” (See Joseph Muerithi Kanyita v Republic [2017] eKLR).

33. To prove this charge to the standard required, the prosecution, the organ mandated by the law to prosecute criminal cases on behalf of the Republic of Kenya, must discharge the burden of proof which is beyond reasonable doubt by demonstrating that the Appellant made, signed, executed the title deed in Kajiado/Kitengela/10982 without lawful authority or excuse and with intent to defraud or deceive.

34. Under section 349 forgery is the making of a false document with intent to defraud or to deceive. Again, it is upon the prosecution to prove, beyond reasonable doubt that the Appellant forged the title deed as defined herein.

35. In respect of the charge of uttering of a false document is concerned, the prosecution must prove beyond reasonable doubt that the Appellant, knowingly and fraudulently uttered a false document, to wit, title deed for Kajiado/Kitengela/10982. What the prosecution sought to prove was that the title deed was made, signed and executed by the Appellant which they have failed to do. They did not adduce evidence to demonstrate that the document was false. The only way this court have been done was by forensic evidence. The document examiner did not adduce evidence that the title deed was fake or was forged.

36. The prosecution case is build around proving that the Appellant forged the title deed and uttered it. All that the evidence on record shows is that the title deed was not made, signed or executed by the Appellant. Is the title deed a forgery? Evidence to demonstrate this was the case is lacking. There is no evidence to show how the title changed from the name of PW1 to that of the Appellant and to show that the title deed in question is not genuine.

37. In respect to obtaining money by false pretence, it is the duty of the prosecution to prove beyond reasonable doubt that the Appellant, by false pretence, and with intent to defraud, obtained from PW2 Kshs 2. 5million by falsely pretending that he was in a position to sell him a piece of land Kajiado/Kitengela/10982 a fact he knew to be false.

38. After careful consideration of the evidence, it is my finding that there is no evidence to prove beyond reasonable doubt that the Appellant obtained money by false pretence. Without evidence proving that the Appellant made a false document, forged the same and uttered the same, it follows that he cannot be said to have obtained money by falsely pretending that he was in a position to sell the land.

39. I agree with the Appellant, through his counsel, that the learned trial magistrate made errors of judgment by misapprehending the evidence. The evidence by prosecution is wanting. It falls short of proving the charges facing the Appellant. It is not for the court to speculate. It is for the court to consider available evidence and that evidence must meet the threshold in a criminal trial. The evidence in this case did not meet that threshold of proof beyond reasonable doubt. The Appellant has no duty under the law to prove his innocence. 40. After careful analysis of all the evidence, submissions and cited authorities and after due consideration of the applicable law, it is my finding that the Appeal herein is meritorious. I agree with learned counsel for the Appellant in the grounds advanced in this Appeal and I conclude by stating that on my own analysis and consideration of all the evidence the prosecution has failed to prove all the charges against the Appellant.

41. Consequently, I find that the conviction and sentence cannot stand for reasons that the conviction is not supported by evidence and the sentence has no basis. For that reason, the conviction in all the six charges is hereby quashed and the sentence set aside. The Appellant is free to go home and enjoy his liberty unless for any other lawful cause he is held in custody.

42. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 11TH OCTOBER 2022. S. N. MUTUKUJUDGE