[2023] KEHC 24610 (KLR)

Makori v Republic (Criminal Appeal E058 of 2023) [2023] KEHC 24610 (KLR) (Crim) (6 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24610 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E058 of 2023

DR Kavedza, J

November 6, 2023

Between

Simeon Bonface Makori

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence delivered by Hon. R. Kitagwa SRM on 22nd February 2023 at Kibera Chief Magistrate’s Court criminal case no. 1534 of 2023 Republic vs Simeon Bonface Makori)

Judgment

1. The appellant was charged, and after a full trial convicted for the offence of obtaining money by false pretenses contrary to section 313 of the Penal Code, Cap 63 Laws of Kenya. He was sentenced to pay a fine of Kshs. 300,000 in default to serve 2 years imprisonment. In addition, he was directed to pay the complainant Kshs. 1,500,000 within six (6) months from the date of the judgement.

2. Being dissatisfied with his conviction and sentence he filed an appeal challenging the same. In his appeal, he raised seven grounds which have been summarised as follows: He challenged the totality of the prosecution's evidence against which he was convicted. He challenged the sentence passed by the trial court as being excessive considering the circumstances of the case.

3. As this is the appellant's first appeal, the role of this appellate court of first instance is well settled. It was held in the case of Okeno vs Republic [1972] EA 32 and further in the Court of Appeal case of Mark Oruri Mose vs Republic [2013] eKLR that this court is duty-bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that.

4. Evans Nyaribo Ototo (PW 1) the complainant herein told the court that he had known the appellant since 2012. In 2018, they met in Kawangware where the appellant proposed opening a joint auto spares, tyres, internet marketing, and large-scale printing business. The appellant had already registered a business name, Smartex Africa. As per their agreement, the business needed Kshs. 3 million which was to be contributed equally. On 27/5/2018, he gave the appellant Kshs. 300,000 in cash, which was to be deposited into the Smartex Africa account.

5. He later sent Kshs. 70,000 via Mpesa and gave the appellant an additional Kshs. 215,000. He told the court that he applied for a loan from CBA Bank, and his account was credited with Kshs. 700,000. This amount was transferred to the Smartex Africa account. On 5/6/2018, 12/6/2018, and 13/6/2018 he sent Kshs. 7,050, Kshs. 30,100 and Kshs. 70,000 via Mpesa.

6. PW 1 testified that the appellant informed him that he had paid for a large-scale printing machine worth Kshs. 1. 2 million, which was being shipped from China. In addition, he needed to pay the rent and salaries for the new employees for the premises that they had rented. The complainant therefore paid an additional Kshs. 413,000 and a further Kshs. 210,000 for office equipment and Kshs. 300,000 for furniture. He testified that his entire contribution was Kshs. 1,548,520

7. After making the payments, the appellant went quiet, and when he visited the office, there was no machinery or furniture. He told the court that the employees who had been hired had also not been paid, and he had to let them go. He maintained that the business idea was meant to obtain money from him.

8. After several adjournments, the prosecution failed to avail other witnesses, and they were forced to close their case. The trial court found that the appellant had a case to answer and put in his defence. He gave unsworn testimony and told the court that he did not receive Kshs. 1,548,520 from the complainant as alleged. He told the court that he only received Kshs. 70,000 which was meant to jumpstart his business. He maintained his innocence.

Analysis and determination. 9. In his appeal, he submitted that Mpesa statements produced in evidence did not meet the threshold of the evidentiary value under the provisions of the Evidence Act, specifically sections 106(B) and 65(8). In addition, he submitted that the elements of the charge of obtaining money by false pretenses were not proved beyond reasonable doubt. He argued that the charge he was convicted of does not apply to future events such as the establishment of a business as stated by the complainant in this case. In addition, he maintained that the trial court failed to appreciate the steps undertaken before convicting him. He relied on the case of Chuka High Court Criminal Appeal No. 13 of 2020 Peter Nyamu Muthithi vs Republic in support of his position.

10. This court has re-evaluated the facts of this case. It has also re-evaluated the rival submissions made by parties to this appeal. Section 313 of the Penal Code (Cap 63) Laws of Kenya provides that;“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.”

11. The prosecution is required to establish that the appellant obtained something capable of being stolen; obtained it through a false pretence; and with the intention to defraud.

12. The first element of the subject offence that needed to be proved was whether the appellant obtained something capable of being stolen. From the record, there is witness evidence that the appellant obtained money. It was Pw 1's evidence that the appellant received Kshs, 1,548,520 from him. The appellant disputed the amount received, maintaining that he only received part of that sum which was intended to jumpstart his business. It is therefore clear from the evidence that the appellant obtained money from the complainant, and money is something capable of being stolen.

13. However, the taking of the money did not solely constitute the offence and it was for the prosecution to prove that the same was obtained through false pretences and with intention to defraud. Secondly, did the appellant obtain the money by false pretense or with the intention to defraud the complainant? Section 312 of the Penal Code defines false pretence as follows:Any representation, made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false or does not believe to be true, is a false pretence.

14. From the definition, there must be:i.A representation of fact by word, writing or conduct;ii.The representation is either past or present;iii.The representation must be false; andiv.The person made the representation knowing it to be false or did not believe it to be true.

15. Section 313 of the Penal Code codified the position in the above cases; the representation of fact must be either past or present, and not future. From the above definition, it is clear that the offence of obtaining by false pretenses does not relate to future events. This section provides that the representation should be of either a past or present fact but not a future fact. In the case of Oware V. Republic (1984) KLR 2001 the Court of Appeal sitting at Nairobi addressed itself thus:-“A representation as to a future event cannot support a charge of obtaining money by false pretences.”

16. In the above-mentioned case of R. V. Dent (1955) 2. Q.B. PP 594/5 was referred to in which case Devlin, J. stated;“a long course of authorities in criminal cases has laid down that a statement of intention about future conduct, whether or not it be a statement of existing fact, is not such a statement as stated will amount to false pretense in criminal law”

17. The complainant maintained that he gave money to the appellant for the purposes of opening a business venture. Though disputed, it was upon the prosecution to prove that the appellant received the full amount but refused and/or failed to open the business venture as agreed.

18. Section 312 of the Penal code confirms this position by decreeing that the representation must be of either a past or present fact. The Court of Appeal pronounced itself on this position in Mathlida Akinyi Oware vs Republic, [1989] eKLR. The court was saying that the fact of obtaining by false pretences does not relate to future events.

19. The opening of a business is a process that is future oriented and that must be why there were timelines for the process to be completed and the payment of money. The business was not supposed to be opened and start running in a single day to the satisfaction of the complainant.

20. In the premises, the facts in this case undoubtedly reveal that the appellant’s representation related to a future event which, as demonstrated earlier, cannot support a charge of obtaining by false pretences. The facts may ably support a civil claim but are insufficient to prove the offences charged in this case to the required legal standard.

21. In the premises, the appeal on conviction and sentence succeeds. The trial court's conviction and sentence are hereby quashed. The appellant is set at liberty unless otherwise lawfully held.It is so ordered.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 6TH DAY OF NOVEMBER 2023D. KAVEDZA...................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRARIn the presence of:Akunja for the stateSagini for the appellant