[2003] KEHC 403 (KLR)
The court found that the evidence of the complainant and the supporting witness was credible and that the appellant failed to demonstrate any ulterior motive for the charges. The conviction for obtaining credit by false pretences was therefore proper. However, the sentence of three years imprisonment imposed by the...
Source-derived case information.
- Citation
- [2003] KEHC 403 (KLR)
- Parties
- Appellant: Magimbi Augustine Msangi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 296 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal partially allowed; conviction upheld, sentence reduced.
- Legal Topics
- Obtaining Credit by False Pretences, Sentencing, Appeals, Unlawful Escape From Custody
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Magimbi Augustine Msangi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for obtaining credit by false pretences was supported by the evidence.
- 2 Whether the sentence imposed exceeded the statutory maximum under Section 316 of the Penal Code.
Ratio Decidendi
The court found that the evidence of the complainant and the supporting witness was credible and that the appellant failed to demonstrate any ulterior motive for the charges. The conviction for obtaining credit by false pretences was therefore proper. However, the sentence of three years imprisonment imposed by the trial court was excessive and not supported by law, as the maximum sentence under Section 316 of the Penal Code is one year. The court therefore set aside the three-year sentence and substituted it with a sentence of one year imprisonment, allowing the appeal only to the extent of the sentence.
Court Disposition
Appeal partially allowed; conviction upheld, sentence reduced.
Orders
- The conviction for obtaining credit by false pretences is upheld.
- The sentence of three years imprisonment is set aside and substituted with one year imprisonment.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 296 OF 2002
(From Original Conviction and Sentence in Criminal Case No.657 of 2001
of the District Magistrate’s Court at Taveta – G.M. Gogwe – D.M.I)
MAGIMBI AUGUSTINE MSANGI ………………..........………... APPELLANT
- VERSUS -
REPUBLIC …..………………………………………...........…… RESPONDENT
J U D G E M E N T
The Appellant was charged and tried for the offence of obtaining credit by false pretences contrary to S.316(a) of the Penal Code, Cap 63 Laws of Kenya and sentenced to serve 3 years imprisonment after conviction on Count 1. He also faced a second charge on Count 11 for unlawfully escaping from lawful custody contrary to Section 123 of the Penal Code and for which he pleaded guilty and sentenced to serve 1 year imprisonment. He preferred an appeal against both Conviction and Sentence in respect of Count 1.
He was un-represented at both the trial as well as at the appeal stage. Briefly the facts of the case are that CHRISTOPHER KAMWANA WETU a businessman dealing in paraffin on the Kenyan side of the Tanzanian/Kenyan boarder had allowed the appellant to take 1,000 litres of paraffin on credit basis on the 20. 2.2000 on the understanding that he would pay the purchase price of Kshs.35,000/= soon after selling the product. Appellant then commissioned PW2 ISHMAEL IBRAHIM and 3 others to carry the fuel for him across the boarder. According to PW2, he had carried the product on behalf of the Appellant, many times before from PW1’s business premises. The Appellant failed to return with the money and PW1 informed PW2 and the others and also reported to the police. The Appellant was however not arrested until 24. 12. 2000 as he had disappeared from his home. However he escaped from the police custody and was again at large until the 12. 12. 2001 when he was re-arrested and charged.
The police through A.P. HASSAN JUMBA confirmed the two arrests and the reasons. The Appellant had given an unsworn defence and denied the offence
In his appeal he mainly capitalized on the issue that the charges were fabricated as there no written agreement for the sale of paraffin between him and PW1. PW1 had admitted that the business was based on a gentleman’s agreement as he had been doing the same business with the Appellant for 7 years before the unfortunate incident.
The State Counsel supported the Conviction but termed the Sentence illegal. I have considered all the evidence on record find no reason to doubt the evidence of PW1 and PW2. The appellant has failed to proof that PW1 had any other ulterior motive to persist on having him arrested for a period of 2 years. The conviction was proper and find no reason to interfere with it. However, I do find the sentence was not only excessive but is not provided for. The maximum under S.316 of the Penal Code is 1 year imprisonment. On the said ground, I set aside the Sentence of 3 years and substitute it with one of 1 year. The appeal shall succeed to that extent only.
Dated and Delivered at Mombasa this 13th February, 2003.
P.M. TUTUI
COMMISSIONER OF ASSIZE