https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6994

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MURANG’A** **CRIMINAL APPEAL NO. E041 OF 2023** **MARK WAMBUGU KAMAU ………………………………….…. APPELLANT** **VERSUS** **REPUBLIC ………………………...…………………...……… RESPONDENT** **JUDGMENT** 1. This appeal arises from the Judgment of the trial court, Hon. Agade (Senior Principal Magistrate) in Kigumo MCCR 1922 of 2018 on 23.03.2021. The petition of appeal was filed on 23.03.2023. 2. The Appellant was arraigned in court on 30.10.2018 and pleaded not guilty to three counts that he had been charged with. Subsequently the charges were amended to 6 together with two other accused persons as hereunder. *Count I* *Conspiracy to defraud contrary to Section 317 of the Penal Code.* The particulars were that on diverse days between 2nd September, 2018 and 5th September, 2018 at Kenol Township in Murang’a South Sub-county within Murang’a County, the Appellant jointly with others not before court by fraudulent means conspired with intent to defraud Patrick Wang’ondu Karuri Kshs. 380,000/= by selling a land parcel number Makuyu/Makuyu/Block 1/354. *Count II* *Conspiracy to defraud contrary to Section 317 of the Penal Code.* The particulars were that on diverse days between 2nd September, 2018 and 5th September, 2018 at Kenol Township in Murang’a South Sub-county within Murang’a County, the Appellant jointly with others not before court by fraudulent means conspired with intent to defraud James Wahome Gitari Kshs. 380,000/= by selling a land parcel number Makuyu/Makuyu/Block 1/354. *Count III* *Conspiracy to defraud contrary to Section 317 of the Penal Code.* The particulars were that on diverse days between 2nd September, 2018 and 5th September, 2018 at Kenol Township in Murang’a South Sub-county within Murang’a County, the Appellant jointly with others not before court by fraudulent means conspired with intent to defraud Samuel Ruiru Gatonga Kshs. 380,000/= by selling a land parcel number Makuyu/Makuyu/Block 1/354. *Count IV* *Obtaining money by false pretences contrary to Section 313 of the Penal Code* The particulars were that on 5th September, 2018 at Kenol Township within Murang’a County, the Appellant jointly with others not before court, with intent to defraud obtained Kshs. 380,000/= from Patrick Wangondu Karuri by falsely pretending he was in a position to sell to the said Patrick Wangondu Karuri a parcel of land Makuyu/Makuyu/Block 1/354 measuring 1.268 Hectares owned by one Michael Kiiyuru Ndua a fact he knew to be false. *Count V* *Obtaining money by false pretences contrary to Section 313 of the Penal Code* The particulars were that on the 5th day of September, 2018 at Kenol Township within Murang’a County, the Appellant jointly with others not before court, with intent to defraud obtained Kshs. 380,000/= from Samuel Ruiru Gatonga by falsely pretending he was in a position to sell to the said Samuel Ruiru Gatonga a parcel of land Makuyu/Makuyu/Block 1/354 measuring 1.268 Hectares owned by one Michael Kiiyuru Ndua a fact he knew to be false. *Count VI* *Obtaining money by false pretences contrary to Section 313 of the Penal Code* The particulars were that on the 5th day of September, 2018 at Kenol Township within Murang’a County, the Appellant jointly with others not before court, with intent to defraud obtained Kshs. 380,000/= from James Wahome Gitari by falsely pretending he was in a position to sell to the said James Wahome Gitari a parcel of land Makuyu/Makuyu/Block 1/354 measuring 1.268 Hectares owned by one Michael Kiiyuru Ndua a fact he knew to be false. 1. The appellant pleaded not guilty on all 6 counts on 25.2.2020. On the next hearing date, the appellant informed the court that he wished to change plea. Change of plea means that he was pleading in a different way other than he had pleaded before. A plea of guilty, after change of plea is clearly intended and understood as to be a plea of guilty. That means, he was pleading guilty after earlier pleading not guilty. He therefore changed plea on all the 6 counts to “*ni ukweli.”* 2. The prosecutor subsequently read the facts in support in a detailed manner on 23.02.2021, wherein he stated in English language that the facts were true. He was convicted to a fine as follows; 1. Count I – Fine of Ksh. 100,000/= in default to serve one year in custody. 2. Count II – Fine of Ksh. 100,000/= in default to serve one year in custody. 3. Count III – Fine of Ksh. 100,000/= in default to serve one year in custody. 4. Count IV – Fine of Ksh. 100,000/= in default to serve one year in custody. 5. Count V – Fine of Ksh. 100,000/= in default to serve one year in custody. 6. Count VI – To be released for the period spent in custody. 3. The appellant was granted right of appeal of 14 days. Aggrieved, the appellant raised the following grounds of appeal: 1. That the learned trial magistrate erred in points of law and facts by failing to find that the elements of obtaining by false pretense were not proved by my guilty plea. 2. That the learned trial magistrate erred in points of law and facts by failing to find that the charge I was charged with was defective in nature and thus not the correct charge. 3. That the learned trial magistrate erred in points of law and facts for failure to consider the reasons for the sudden change of plea. 4. That the learned trial magistrate erred in points of law and facts for failure to caution the accused on the consequences of his plea of guilty. 5. That the learned trial magistrate erred in points of law and facts for failing to note that the accused was unrepresented and was not clearly guided on how to go about the due procedures of the court. Submissions 1. Subsequent submission were that the appeal was on sentence only and not conviction. However he wanted to cojoin the sentences in two other cases, that is, Kigumo SPMCR 1006 of 2019 where he was serving 3 years imprisonment for the offence of obtaining by false pretense contrary to section 313 of the Penal Code and Kigumo MCCR 1007 of 2018 where he was reportedly charged and sentenced to serve 3 years imprisonment for forgery contrary to section 349 of the Penal Code and this matter where he had 6 counts of conspiracy to defraud contrary to section 317 of the Penal Code. 2. The state filed submission stating that the sentence was lenient. The rest of the submissions were otiose. Analysis 1. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in *Pandya vs Republic [1957] EA 336* held as follows: On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 1. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of *Okeno v Republic,* the East Africa Court of Appeal stated on the duty of the court on a first appeal: An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. 1. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows: 382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. 1. It is unclear how this appeal came to be, as it is filed 2 years out of time. Secondly, the appeal is on conviction only. The conviction is on a plea of guilty. Under section 348 of the Criminal Procedure Code there is no right of appeal in respect of a plea of guilty. The said section posits as follows: *No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.* 1. The right of appeal is set out in section 347 of the Criminal Procedure Code as follows: **(1) Save as is in this Part provided-** **(a) A person convicted on a trial held by a subordinate court of the first or second class may appeal to the High Court; and** **(2) An appeal to the High Court may be on a matter of fact as well as on a matter of law.** 1. Whereas the plea of guilty is not absolute, it has to be shown. In [**John Muendo Musau v Republic [2013] KECA 266 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2013/266/eng%402013-09-20) it was stated: There is a long line of authority to the effect that the bar to an appeal against a conviction based on a guilty plea is not absolute. The case law was reviewed by the predecessor of this Court in *Adan (supra)*. In *Ndede vs Republic* *[1991] KLR 567* this Court held that the court is not bound to accept the accused person’s admission of the truth of the charge and conviction as there may be an unusual circumstance such as injury to the accused, or the accused is confused or there has been inordinate delay in bringing the accused person to court from the date of arrest. In the appeal before us, we reiterate our satisfaction that the plea of guilty was unequivocal. 1. However, having abandoned the appeal on conviction there is no appeal. Secondly, the prayer that the court combines sentences across other cases, is untenable. Section 37 of the Penal Code provides as follows: Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence, other than a sentence of death, which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or any part thereof: Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence under subparagraph (i) of paragraph (c) of subsection (1) of section 28 or of any part thereof. 1. There are no procedures for combining sentences for different offences in different files. More importantly, such an appeal is neither before me nor a subject in the court below. There is no law that ordains that sentences must run concurrently. On the contrary sentences with fines must run consecutively. The same applies to different convictions. 2. More poignantly, there is no valid appeal before the court. The time of 14 days to file an appeal is circumscribed in section 349 of the Criminal Procedure Code as follows: An appeal shall be entered within fourteen days of the date of the order or sentence appealed against: Provided that the court to which the appeal is made may for good cause admit an appeal after the period of fourteen days has elapsed, and shall so admit an appeal if it is satisfied that the failure to enter the appeal within that period has been caused by the inability of the appellant or his advocate to obtain a copy of the judgment or order appealed against, and a copy of the record, within a reasonable time of applying to the court therefor. 1. The appellant did not file the appeal within time or seek leave to appeal out of time. There is thus no valid appeal before the court. The appeal lacks merit and is accordingly dismissed. Determination 1. In the upshot I make the following final orders:- 2. The appeal is dismissed. 3. 14 days right of appeal. 4. File is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** on this **20th** day of **May, 2026**. Judgment delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of: -** Appellant present Mr. Kihara for the State Court Assistant – Martin