[2020] KEHC 8946 (KLR)
The court found that the appellant was wrongly convicted on counts II and III, as making a false document is not an offence in itself but rather an element of forgery, which requires proof of intent to defraud or deceive. Consequently, the convictions and sentences for those counts were quashed. Regarding counts I,...
Source-derived case information.
- Citation
- [2020] KEHC 8946 (KLR)
- Parties
- Appellant: Margaret Waithera Fure; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 93 of 2018
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- Appeal partially allowed; convictions for counts II and III quashed; sentences for counts I and V reduced to 2 years imprisonment each, to run concurrently from 12/06/2018.
- Judges
- DW Mbuteti
- Legal Topics
- Sentencing Principles, Concurrent Sentences, Quashing Conviction, Forgery, Personation, Obtaining by False Pretenses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Waithera Fure
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentences imposed on the appellant for counts I, IV, and V were manifestly harsh and excessive.
- 2 Whether the convictions and sentences for counts II and III (making a false document) were valid in law.
Ratio Decidendi
The court found that the appellant was wrongly convicted on counts II and III, as making a false document is not an offence in itself but rather an element of forgery, which requires proof of intent to defraud or deceive. Consequently, the convictions and sentences for those counts were quashed. Regarding counts I, IV, and V, the court held that while the offences were serious, the sentences imposed were manifestly harsh and excessive, especially considering the appellant's status as a first offender and her personal circumstances. The court substituted the sentences for counts I and V with 2 years imprisonment each, to run concurrently from the original sentencing date. The appeal thus...
Court Disposition
Appeal partially allowed; convictions for counts II and III quashed; sentences for counts I and V reduced to 2 years imprisonment each, to run concurrently from 12/06/2018.
Orders
- Convictions and sentences for counts II and III quashed.
- Sentences for counts I and V set aside and substituted with 2 years imprisonment each, to run concurrently from 12/06/2018.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
CRIMINAL APPEAL NO 93 OF 2018
(From original Sentences dated 12/06/2018 in Nanyuki CM Criminal Case No 520 of 2016 – L Mutai, CM)
MARGARET WAITHERA FURE....APPELLANT
VERSUS
REPUBLIC.......................................RESPONDENT
J U D G M E N T
1. The Appellant herein, MARGARET WAITHERA FURE (who was the 2nd accused before the trial court), was convicted of 5 counts as follows-
Count I: Conspiracy to defraud contrary to section 317 of the Penal Code.
Counts II & III: Making a false document contrary to section 347(d) (i) of the Penal Code.
Count IV: Personation contrary to section 382 of the Penal Code.
Count V: Obtaining money by false pretenses contrary to section 313 of the Penal Code.
2. The Appellant was sentenced as follows on 12/06/2018 -
Count I: 2½ years imprisonment.
Count II, III & IV: 1 year imprisonment in each
Count V: 3 years imprisonment.
The sentences were to run concurrently.
The Appellant has appealed against the sentences only.
3. The Appellant’s two co-accused were similarly convicted and sentenced in counts I and V. It is not clear if they appealed.
4. I have considered the submissions of the Appellant and those of the learned prosecution counsel in regard to sentence.
5. It is necessary, however, to say something about the offence charged against the Appellant in counts II and III – making a false document contrary to section 347 of the Penal Code. Making a false document, of itself, is not an offence. It is merely the actus reus of the offence of forgerycontrary to section 345 of the Penal Code:
“345. Forgery is the making of a false document with intent to defraud or to deceive.”
The mens rea of the offence of forgery thus is the intent to defraud or to deceive.
6. The Appellant was thus charged with a non-existent offence in counts II and III, and her convictions therefor must be quashed. The sentences imposed for those two counts have, unfortunately, been served already.
7. Regarding the sentences for counts I, IV and V, I have considered the elaborate circumstances in which those offences were committed. Given the emotive nature of all matters land in our country, the seriousness of the offences cannot be gainsaid. I note that the maximum sentence for the offence of conspiracy in count I is 3 years imprisonment; and that the offences of personation in general and obtaining by false pretenses are misdemeanors punishable, where a term of imprisonment is imposed, by no more than 3 years imprisonment.
8. For count I the Appellant got 2½ years imprisonment, not far from the maximum. For count V she got the maximum of 3 years imprisonment.
9. In her mitigation the Appellant stated that she was a single mother with children. She, like her co-accused, was also a first offender.
10. In these circumstances, I am satisfied that the sentences in counts I and V were manifestly harsh and excessive. I will in the circumstances set aside those sentences of 2½ and 3 years imprisonment and substitute sentences of 2 years imprisonment in each of those two counts with effect from 12/06/2018 when the Appellant was sentenced. The sentences shall of course run concurrently. It is so ordered. To that limited extent only does the Appellant’s appeal against sentence succeed.
DATED AND SIGNED AT NANYUKI THIS 17TH DAY OF JANUARY 2020
H P G WAWERU
JUDGE
DELIVERED AT NANYUKI THIS 30TH DAY OF JANUARY 2020