Mbwiria & 2 others v Republic (Criminal Appeal E060 of 2024) [2026] KEHC 10609 (KLR) (16 July 2026) (Judgment)

Mbwiria & 2 others v Republic (Criminal Appeal E060 of 2024) [2026] KEHC 10609 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10609 (KLR) Republic of Kenya In the High Court at Nanyuki Criminal Appeal E060 of 2024 AK Ndung'u, J July 16, 2026 Between Adrian Mbwiria 1st Appellant Mathias Makokha Khamala 2nd Appellant Mwangi Gicane 3rd Appellant and Republic Respondent (Being an Appeal from the Judgement and Conviction from the Nanyuki Criminal Case No. E161 OF 2021 Republic - versus - Adrian Mbwiria, Mathias Makokha Khamala and Mwangi Gichane delivered by Hon.Vincent Mechumo Masivo SRM, on 26th August,2024) Judgment 1.The Appellants namely Andrian Mbwiria, Mathias Makokha Khama and Mwangi Gicane were charged with conspiracy to defraud contrary to Section 317 of the Penal Code. The brief particulars of the facts are that on diverse dates between 24th January 2018 and 23rd January 2019 at Nanyuki town in Laikipia east Sub-County within Laikipia County jointly with others not before Court, conspired to defraud East Africa Pentecostal Churches land Parcel No. Nanyuki Municipality Block 10/283 valued at Kshs 4,400,000/= by falsely pretending to be the East Africa Pentecostal Churches Trustees. In Count II they were charged with obtaining land registration by false pretense contrary to Section 320 of the Penal Code. The particulars are that on diverse dates between 24th January 2018 and 23rd January 2019 at Nanyuki land registry in Laikipa East Sub-County within Laikipia County jointly with others not before Court, with intent to defraud procured registration of land parcel No. Nanyuki Municipality block 10/283 valued at Kshs 4,400,000/= property of East Africa Pentecostal Churches for themselves by falsely pretending to be the East Africa Pentecostal Churches Trustees a fact they knew to be false. Lastly in Count III the Appellants were charged with obtaining money by false pretense contrary to Section 313 of the Penal Code. The particulars are that on 5th January 2019 at Nanyuki town in Laikipia East Sub-County within Laikipia County, with intent to defraud obtained Kshs 4,400,000/= from Birik Abdi Hussein by falsely pretending to be in a position to sell to him a parcel of land No. Nanyuki Municipality Block 10/283 a fact they knew to be false. 2.The Appellants denied all the three charges and the matter proceeded to a full trial before the Subordinate Court. The Prosecution called several witnesses and produced numerous documentary exhibits in support of its case. At the close of the Prosecution case, the learned trial Magistrate found that the Appellants had a case to answer and placed each of them on his defence. The Appellants each gave sworn evidence and called additional witnesses in support of their respective defences. Upon evaluating the entire evidence, the learned trial Magistrate acquitted the Appellants on count one and found them guilty on counts 2 and 3, convicted them accordingly and sentenced them on 27th August, 2024. 3.On count two, the 1st appellant was sentenced to a fine of Kshs. 100,000/- in default 12 months imprisonment, 2nd appellant was sentenced to a fine of Kshs. 50,000/- in default to serve 6 months imprisonment, 3rd appellant was sentenced to a fine of Kshs. 50,000/- in default to serve 6 months imprisonment. 4.On count three the 1st appellant was sentenced to a fine of Kshs. 200,000/- in default to serve 12 months imprisonment, 2nd appellant was sentenced to a fine of Kshs. 50,000/- in default to serve 6 months imprisonment, 3rd appellant was sentenced to a fine of Kshs. 50,000/- in default to serve 6 months imprisonment. 5.The three Appellants being dissatisfied with the conviction and the sentence filed appeal to this Court. They filed a petition of appeal dated 6th September, 2024 raising the following grounds:i.The trial Court misdirected itself and erred in law and fact by failing to find that the Prosecution failed to prove its case against the accused persons in count 2 and 3 to the required standard, of beyond reasonable doubt.ii.The trial Court misdirected itself and erred in law and fact, to convict the accused persons in count 2 and 3, even after acquitting the accused persons in count 1 on the ground that there was no proof of ownership of LR. No. Nanyuki Municipality Block 10/283.iii.The trial Court misdirected itself and erred in law and facts by convicting the accused persons on the fraudulent, illegal and false evidence of individuals purporting to be the trustees of the East African Pentecostal Church (EAPC) vide the purported election of 2027, whereas, the only valid elections for EAPC was for 2005, in which elections they are not trustees and have no authority and capacity to speak on behalf of EAPC.iv.The trial Court misdirected itself and erred in law and fact by convicting the accused persons on the evidence of individuals without capacity and authority to speak on behalf of EAPC or at all.v.The trial Court misdirected itself and erred in law and facts, by failing to consider the evidence of DW6, who is the rightful official at EAPC and the evidence of DW-4 the Registrar of Societies, regarding who are the correct officials of EAPC according to records at the offices of the Registrar of Societies.vi.The trial Court misdirected itself and erred in law and fact, by applying the provisions of Section 320 of the Penal Code even after finding that he lacked jurisdiction to determine ownership under count one.vii.The trial Court misdirected itself and erred in law and fact by holding that the accused persons obtained money by false pretences from Birik Abdi Hussein, whereas, the evidence on record was to the contrary and Birik Abdi Hussein was never a complainant in the case and had not lost any money or at all.viii.The trial Court misdirected itself and erred in law and fact, by purporting that the complainant in the case was an individual and not a board of trustee of EAPC acting under its resolution from a valid board meeting lawfully held with requisite quorum to bind the EAPC and to speak on its behalf.ix.The trial Court misdirected itself and erred in law and fact by convicting the Appellants under count 2 and 3 on the charge sheet which charges had no complainants or at all.x.The trial Court misdirected itself and erred in law and fact by failing to analyse the evidence of DW-4 and DW-6 whose evidence confirm that the purported complainant in this case did not have locus and authority to bring any complaints against the Appellants herein.xi.The trial Court misdirected itself and erred in law and fact by failing to find that the Appellants did not commit the offence of obtaining money by false pretence from Birik Abdi Hussein hence the judgement and conviction on count 3 is not based on any fact, evidence or sufficient material to warrant the conviction and sentence under that charge. 6.The appeal was canvassed by way of written submissions. The Appellants’ submissions 7.It was the Appellants’ submissions that the respondent did not prove count 2 and 3 on the charge sheet. It was their argument that the suit property was lawfully registered in the name of the three Appellants and relied on Section 24 of the Registration Act which provides that the registration of any person as the proprietor of land vests absolute ownership of that land together with all the rights and privileges belonging or appurtenant to. They further relied on Section 25 and 26 of the said Act which provides that the certificate of title shall be held to be conclusive evidence of proprietorship. 8.The Appellants’ submitted that the Title deed and lease were in their names and the said documents were lawfully obtained from the land registry in Nanyuki through due process and the same was done by the law firm of Magwa and Kiboi advocates who were never charged hence there was no evidence that the Appellants obtained registration of the suit property by false pretence as alleged or at all. 9.Further, it was the Appellants’ contention that from the proceedings at page 84-125, the purported complainants herein were imposters and were guilty of giving false testimony against the Appellants hence there was a mistrial and injustice caused to the Appellants. 10.It is urged that the trial Court failed and erred in law and fact to have unlawfully ignored and failed to consider the crucial evidence by DW4 and DW6 who were credible witnesses called upon by the Appellants. 11.A further argument is proffered that the offence in Count 2 could not stand without proof of ownership of the suit property and in this case the ownership of the suit property was known to be by the Appellants as provided under Sections 24,25 and 26 of the Land Registration Act hence there was no offence committed by the Appellants and the purported offence brought against the Appellants was a nullity ab initio. 12.In addition, counsel submitted that Birik Abdi Hussein was not a complainant in this case and his testimony was that the Appellants sold him land, he paid and the land was transferred in his name and he took possession, developed and occupied to date. For that treason it is argued that the offence in Count 3 must fail because it lacks merit and has no basis. 13.Further, that the Appellants were the legally registered owners of the suit property hence they had a right to sell their interests in the suit property to Mr. Birik which they did for valuable consideration and they passed a good title to the said Birik Abdi Hussein who is now a proud owner of the suit land and the home built on it. 14.It is submitted that the trial before the lower Court had no authentic complainant since Mr. Birik and the Church were not the complainant thus a charge generated without a complainant is a nullity ab initio and the Court is called upon to Settle the matter and to pronounce itself by acquitting the Appellants on count 2 and 3 as prayed. 15.Counsel concluded by submitting that the judgement, conviction and sentence meted out on them on count 2 and 3 were without basis and not supported by credible evidence as envisaged under Section 107 of the Evidence Act. The Respondent’s Submissions 16.The respondent invited the Court to re-evaluate the evidence which was before the trial Court and submitted that the offences were proved beyond reasonable doubt. 17.The respondent cited Sections 320 and 312 of the Penal Code and highlighted the ingredients of the offence of registration by false pretense. It was it’s submission that the Appellants were registered and issued with a lease of land as trustees of the East Africa Pentecostal Churches whereby PW6 informed the trial Court that the Appellants represented themselves as trustees of the church a fact which made PW6 believe that they were actually the owners of the parcel of land. The representation to the registrar was indeed false and was intended to defraud the owner as they were not trustees or the owners. 18.It was further argued that Section 313 of the penal code creates the offence of obtaining money by false pretenses and counsel highlighted the ingredients of the said offence. 19.It was the respondent’s further submissions that the Appellants sold the land to PW6 where they received Kshs.4,400,000/-as consideration for the purchase of the parcel of land which position was confirmed in their defence on how they shared the monies among themselves. 20.The respondent proceeded to submit that the land belonged to Daniel Mubicha who gifted the church and PW1,PW2,PW3 together with DW4 and DW6 all confirmed that the Appellants were not trustees of the church thus in ordinary sense had no capacity to sell the parcel of land. The fact that they first transferred the land in their names was an indication that they intended to defraud the church. 21.On the issue raised by the appellant citing Sections 24, 25 and 26 of the Land Registration Act, the respondent submitted that section 25 outlines the rights of a proprietor and it’s not an absolute or conclusive shield of ownership when the root of the title is questioned. It was submitted that the title was acquired through fraud and the Appellants could not, therefore, be the rightful owners of the land. 22.The respondent relied on the case of Wainaina v Kiguru & Another (Environment and Land Case E023 of 2021) {2022} KEELC 3261(KLR) where the Court was guided by the case of Munyu Maina v Hiram Gathiha Maina, Civil Appeal No.239 of 2009 and submitted that the title was tainted as proof of its legality was not established. 23.On the argument by the appellant that there was no complainant, the respondent submitted that the trial Court was guided by the provisions of Article 21 of the church constitution and submitted that a criminal offence was committed and the clause did not apply to criminal matter but only in civil matters. 24.It was further submitted that in a criminal case any person who has knowledge of an offence can make a complaint. It need not be the actual complainant. The investigating officer informed the Court that the complaint was made by one Martin Kirimi on behalf of EAPC and the matter was investigated. 25.On the question who the law recognizes as a complainant, the law has been discussed in several decisions including the case of R v Judith Acholla Mulala {2019} eKLR upon which the respondent relied submitting that the complainants were proper complainants and the charges were initiated after a proper complaint was lodged and therefore the complaint was authentic. 26.On whether the Appellants were trustees the respondent submitted that PW1, PW2, PW3 and PW4 informed the trial Court that the Appellants were not trustees of the church and a trust deed was availed dated 16th asaeptember,2020 which listed four trustees. The Court was invited to peruse page 43 lines 10 to 20 of the proceedings. 27.On the contention that the DW4 and DW6 gave the real position as to who would speak on behalf of the church, the respondent submitted that the complainants herein were the real trustees and therefore in authority to represent the church as trustees as per the trust deed produced as exhibit 17 which provided sufficient proof that they were trustees and therefore the trial Court was right in relying on this evidence as proof. 28.The respondent further submitted that the Appellants themselves were not listed as trustees as per the trust deed dated 16th September 2020 and as per the evidence of DW4, the Appellants were not listed as trustees and invited the Court to peruse page 111 lines 1-20 of the proceedings. 29.Finally, the respondent submitted that the appellant were not the trustees of the church and therefore they made a representation to PW6 as such and in turn the complainant believed that the Appellants were acting as trustees of EAPC. All the ingredients of obtaining by false pretense were established and the trial Court was right in convicting all the Appellants on the same. 30.In conclusion the respondent urged the Court to uphold both conviction and sentence and dismiss the appeal in its entirety. The Evidence Before the Trial Court 31.In keeping with its duty as a first appellate Court, this Court has subjected the entire record of the proceedings before the trial Court to a fresh and exhaustive examination. In doing so, it is necessary to reconstruct the evidential sequence as it emerged before the trial Court in order to determine whether the Prosecution discharged the burden of proving the offences beyond reasonable doubt. 32.The Prosecution case revolved around a parcel of land known as Nanyuki/Municipality Block 10/283 which, according to its witnesses, had been donated to the East African Pentecostal Church by the original allottee Daniel Mubichi Mwamba many years before the events giving rise to the present proceedings. The evidence presented sought to demonstrate that although the formal registration of the lease in favour of the church had not been completed, the donor had already divested himself of his beneficial interest in the property by executing the requisite transfer documents in favour of the church. The Prosecution further maintained that the Appellants, despite not being trustees of the church, falsely represented themselves as such, procured registration of the lease in that capacity and thereafter sold the land to a third party for Kshs.4,400,000/=. 33.PW1, the Bishop of the East African Pentecostal Church, testified that the suit property had been donated to the church by the original allottee. According to him, following the donation, the church immediately took possession of the land and established a place of worship thereon. A church structure was erected and the property became one of the church's places of worship. PW1 explained that the original allottee subsequently executed transfer documents in favour of the church and all the necessary documentation required for the transfer had been initiated, although the registration process had not been finalized by the Lands Registry. 34.It was PW1's evidence that the church remained in possession of the land until it learnt that the Appellants had procured registration of the property in their names while purporting to act as trustees of the church. Matters came to a head after the land was transferred to a purchaser who demolished the church building together with the perimeter wall that had been constructed around the property and commenced his own developments. 35.The evidence of PW1 regarding the ownership and occupation of the land was corroborated by PW2 and PW3, who served respectively as the National Trustee and the Chairperson of the Board of Trustees of the East African Pentecostal Church. Their evidence established the governance structure of the church and explained the manner in which church property was held and administered. 36.Both witnesses testified that the church was governed by its Constitution, which prescribed the appointment and functions of trustees. They maintained that none of the Appellants had ever been appointed or recognized as trustees of the church. Although the first appellant had served as an overseer within the Mt. Kenya Region of the church, that office neither conferred nor implied trusteeship, nor did it authorize him to alienate church property. 37.PW2 and PW3 further testified that neither the Board of Trustees nor any organ of the church had ever resolved to dispose of the suit property. Equally, no authority had ever been granted to any of the Appellants to transact on behalf of the church in relation to the property. 38.To demonstrate the church's interest in the property, the Prosecution produced several documentary exhibits, including the church Constitution, the allotment letter issued to the original allottee, the acknowledgement of request of the intended transfer from the original allotee, the application for consent to transfer the property to the church, duly executed transfer forms in favour of the church, the trust deed and related correspondence showing the steps that had been taken towards completing registration in the church's favour. 39.The Prosecution further adduced evidence explaining how the property eventually came to be registered in the names of the Appellants. 40.PW6, the Land Registrar, testified that documents were presented to his office seeking registration of a lease over the suit property. The documents reflected the Appellants as trustees of the East African Pentecostal Church and indicated that they intended to transfer the property to the purchaser. 41.PW6 explained that under the registration practice obtaining at the time, registrars did not ordinarily require the physical attendance of parties before registration. His duty was confined to examining whether the documents lodged complied with the statutory requirements. Being satisfied that the documents presented were in order, he proceeded to register the lease and subsequently issued a Certificate of Lease in favour of the purchaser after the transfer was completed. 42.The purchaser, Birik Abdi Hussein testified as PW5 (the certified proceedings show a repetition of PW5 meaning Birik should be PW6). He stated that he had been searching for land to purchase when he was introduced to the suit property. Upon visiting the land, he observed an existing church structure and naturally questioned whether the property was available for sale. 43.According to him, the first and third Appellants assured him that they were the lawful trustees of the East African Pentecostal Church and that they possessed full authority to dispose of the property. They further informed him that the property had been gifted to them and that the processing of the Certificate of Lease was underway. 44.Birik testified further that he did not proceed blindly with the transaction. Instead, he waited until the lease had been registered in the names of the Appellants as trustees before conducting an official search at the Lands Registry. The search confirmed that the Appellants were reflected in the register as trustees. Being satisfied that they possessed legal authority to sell, he entered into a sale agreement with them and ultimately paid the agreed purchase price of Kshs.4,400,000/= in cash. Following completion of the transaction, the property was transferred into his name and he was issued with a Certificate of Lease. 45.The investigating officer testified that investigations commenced after a complaint was lodged by the church reporting that persons who were not its trustees had fraudulently procured registration of its property before disposing of it to a third party. 46.During the investigations, he visited the property and confirmed that the church structure had been demolished and that development by the purchaser had already commenced. He obtained the relevant land records from the Lands Registry together with official records identifying the lawful trustees of the East African Pentecostal Church. 47.His investigations established that the names of the Appellants did not appear among the duly registered trustees of the church. He also recovered the Certificates of Lease, the Green Card, official searches, the sale agreement and the documents utilized during the registration process. 48.The investigating officer concluded that the Appellants had falsely presented themselves as trustees of the church in order to procure registration of the lease and thereafter dispose of the property to the purchaser. 49.The Prosecution also relied extensively upon documentary evidence. The exhibits included the Constitution of the East African Pentecostal Church, the allotment letter, the application for consent to transfer the property to the church, the transfer documents executed by the original allottee in favour of the church, the lease documents, the Green Card, Certificates of Lease issued first in favour of the Appellants as purported trustees and subsequently in favour of the purchaser, official searches, the sale agreement and various correspondence relating to the transaction. 50.Taken together, the oral and documentary evidence presented by the Prosecution sought to establish a continuous chain of events beginning with the donation of the property to the church, the church's occupation and development of the land, the alleged misrepresentation by the Appellants that they were the lawful trustees of the church, the procurement of registration on that basis, and finally the transfer of the property to the purchaser in consideration of Kshs.4,400,000/=. Analysis and determination 51.I have read and considered the evidence as recorded by the trial Court. In doing so, I have taken cognisance that I neither saw nor heard the witnesses testify and have given due allowance for that fact. I have had due regard to the submissions made and case law cited. I have taken into account the applicable law. The issues for determination are whether the Prosecution proved its case to the required threshold in law and, secondly, whether the sentences meted out by the trial Court were legal and appropriate. 52.This being a first appeal, it is by way of a retrial and parties are entitled to this Court’s re-evaluation, reanalysis and reconsideration of the evidence and its own decision on that evidence. The Court should however bear in mind that it did not see the witness testify and give due allowance for that. (See Okeno v Republic [1972] EA 32). 53.The same principle was emphasized in Pandya v Republic and Shantilal M. Ruwala v Republic. Those decisions underscore that although a first appellate Court is not bound by the factual findings of the trial Court, it must give due regard to the trial Court's advantage of observing the demeanour of the witnesses. Where the findings are supported by the evidence and the law, an appellate Court ought not to interfere merely because it might itself have reached a different conclusion. 54.This principle is buttressed in the decision in Kiilu & Another v Republic [2005]1 KLR 174, where the Court of Appeal held that:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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. 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; 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.” 55.The burden of proof in criminal cases is well settled. In Philip Nzaka Watu v Republic [2006] eKLR, it was held that to for a conviction to lie in a Criminal case, the trial Court has to be satisfied of the accused person’s guilt beyond reasonable doubt. On proof beyond reasonable doubt, the Court stated in Stephen Nguli Mulili v Republic [2014] eKLR:“[I]t is not in doubt that the burden of proof lies with the Prosecution. The locus classicus on this is the case of DPP V WOOLMINGTON, (1935) UKHL 1 where the Court eloquently stated that the “golden thread” in the “web of English common law” is that it is the duty of the Prosecution to prove its case. The Kenyan Courts have upheld this position in numerous cases. See FESTUS MUKATI MURWA V R, [2013] eKLR.” 56.In the famous case of Miller v Ministry of Pensions, [1947] 2 All E R 372, Lord Denning stated with regard to the degree of proof beyond reasonable doubt:“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 57.In Bakare v State (1987) 1 NWLR (PT 52) 579, the Supreme Court of Nigeria emphasized on the phrase proof beyond reasonable doubt, stating:“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the Prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability.” 58.Guided by those principles, I have carefully read and reconsidered the entire record of the proceedings before the trial Court, the documentary exhibits produced, the judgment appealed against, the grounds of appeal and the submissions made before this Court. I shall now proceed to analyse the evidence afresh in order to determine whether the convictions entered by the learned trial Magistrate were safe and whether the sentence-imposed warrants interference. ANALYSIS AND DETERMINATION 59.Having carefully reconsidered the record of appeal, the proceedings before the subordinate Court, the documentary exhibits, the judgment appealed from, the grounds of appeal and the submissions by counsel, the broad issue for determination is Whether the Prosecution proved the offences charged beyond reasonable doubt. Specifically, the following questions need to be resolved;a.Whether the suit property belonged to the complainant church and whether the Appellants conspired to defraud it of the same.b.Whether the Appellants falsely represented themselves as lawful trustees of the church.c.Whether the learned trial Magistrate erred in rejecting the defence andd.whether the sentence calls for interference.These questions are intertwined and I will answer them globally. 60.The foundation of the Prosecution case was that the parcel of land was transferred to the church by one Daniel Mubichi Mwamba who was the initial allotee of the land. On record is evidence of an application for a consent to transfer the Plot by Daniel which is acknowledged by the Commissioner of Lands vide letter dated 14th October 1993. A duly executed form of transfer by way of gift to East Africa Pentecostal Churches executed by the said Daniel on 31st December 1993 is tendered in evidence. 61.The evidence of PW1, the Bishop of the church, was categorical that the original allottee donated the property to the church. He testified that after the donation, the church took possession, constructed a place of worship thereon and continuously occupied the land. His testimony was corroborated by PW2 and PW3. Their evidence was consistent that the land had always formed part of the church's assets. 62.More importantly, their oral testimony was supported by documentary evidence. The Prosecution produced, among other documents—a.the allotment letter;b.the application seeking consent to transfer the land to the church;c.the transfer documents executed in favour of the church;d.the church constitution;e.the trust deedf.official searches;g.the green card;h.certificates of lease;i.correspondence relating to the property. 63.Collectively, those documents established a continuous chain demonstrating that the land had been set aside for the benefit of the church before the Appellants began asserting proprietary rights over it. 64.Section 143 of the Evidence Act expressly provides that no particular number of witnesses is required to prove any fact. The Prosecution is under no obligation to call every person who may have knowledge of the facts, provided the evidence tendered sufficiently establishes the case. 65.In the present case, the documentary evidence spoke for itself. The documents showing the intended transfer to the church were produced without objection. Their authenticity was never successfully challenged during cross-examination. 66.In rejoinder to the Prosecution’s evidence, the defence called 6 witnesses. First off the ramp was the 1st Appellant (DW1). In his evidence on oath, he stated that the land was gifted to him after a he did a prayer for him. It was a reward. He was referred to the lease document and confirmed the land was in his name and the names of the 2nd and 3rd Appellants. He confirms they sold the land to Birik. Inexplicably, he does not explain how land which was gifted to him ended up being registered in his name and those of the 2nd Appellant and 3rd Appellants wherein they are named as trustees. 67.No iota of evidence is provided to show that he or any of the other 2 Appellants were Trustees of the Church. The 3 presented themselves to the Land Registrar as trustees and even at the drawing of the sale agreement with Birik, the conveyance advocate confirmed that the 3 presented themselves as Trustees and the written agreement confirms the same. 68.The 2nd Appellant was largely silent on the question of being a Trustee of the church. He said however that they had authority to sell the land. He produced no such authority. Shown a list of Trustees, he confirmed that he was not among them. 69.On his part, DW3 stated on cross examination that he was not aware of elected trustees of the church filed with Registrar of societies. That all the members and leaders of the Muthaiga church were trustees. He confirmed that during the sale transaction they presented themselves as trustees. 70.The subsequent conduct of the Appellants in the dealings in the land in question does not aid their cause. It muddles further the question of their capacity and bonafides in matters related to the land and transactions therein. Glaring inconsistencies and contradictions come to the fore. The 1st Appellant is personally gifted land by Daniel yet later appears as a trustee with 2 others with no explanation at all how that came to be. There is no indication of him donating the land to the church thus the evidence that Daniel donated the land to the church as seen in the transfer is uncontroverted. Had the land genuinely belonged to the first appellant personally, there would have been no necessity to present themselves as trustees of the church in order to obtain registration. 71.Further, when the land is eventually sold, the sale agreement clearly states themoney was to be paid in cash and there is no dispute it was paid. The bizzare eventuality that follows is that out of the proceeds, sellers who had earlier obtained registration of the land them being trustees of the church and which narrative is maintained in the sale agreement, share out the monies among themselves. The 2nd and 3rd Appellant received Kshs. 50,000 from the said proceeds while the 1st Appellant when cross examined initially confirmed that the purchase price was deposited in his Family Bank Account and he disputed giving the 2nd and 3rd Appellant Kshs. 50,000 each. He then prevaricates and states that he deposited only Kshs. 2,000,000 in his personal account. He adds that he settled a debt and bought land for the church using this money. He said the land had not been given a number. 72.A keen scrutiny of the conduct of the Appellants readily confirms fraud. Even assuming for a moment that the Appellants were trustees of the church, how and why would the proceeds of sale of a church asset be pocketed by the trustees whereas the church would certainly be expected to run its own bank account(s)? What does one make of the candid admission by the 2nd and 3rd Appellant that they received Kshs. 50,000 of the proceeds from the sale vis-à-vis the vehement denial by the 1st Appellant that he did not give out money to the 2? Certainly, an adverse inference is the natural consequence. 73.From the foregoing, I am unable to agree with the trial Magistrate that there was no evidence establishing a conspiracy to defraud against the Appellants. The facts speak for themselves. 74.The offence of conspiracy to defraud contrary to Section 317 of the Penal Code is constituted by an agreement between two or more persons to employ deceit or fraudulent means with the intention of prejudicing the proprietary or legal rights of another. The gravamen of the offence is the unlawful agreement itself; it is not necessary that the intended fraud be successfully accomplished. This principle was succinctly stated in Mulcahy v R (1868) LR 3 HL 306, where the House of Lords held that the offence is complete once there is an agreement to pursue an unlawful purpose. 75.The Prosecution bears the burden of proving beyond reasonable doubt every essential ingredient of the offence, namely the existence of a common design, the participation of each accused in that design, and the intention to defraud. Mere suspicion, however strong, cannot found a conviction. In Miller v Minister of Pensions [1947] 2 All ER 372, Lord Denning observed that proof beyond reasonable doubt requires evidence of such cogency as to leave the Court with no reasonable doubt as to the accused's guilt. 76.Our Courts have consistently held that, to sustain a conviction under section 317 of the Penal Code, the Prosecution must prove the existence of an agreement between two or more persons to defraud, a shared intention to commit the unlawful purpose, and participation by each accused in furtherance of that common design. The High Court in Republic v Shava & 5 Others [2025] KEHC 18283 (KLR) restated that the offence is complete upon proof of the agreement itself, even if the intended fraud is never executed. 77.Since conspiracies are ordinarily conceived in secrecy, direct evidence of the agreement is rarely available. The Court is therefore entitled to infer the existence of a conspiracy from the conduct of the accused persons, their communications, coordinated acts, and all the surrounding circumstances. However, such inference must be irresistible and founded upon evidence that excludes any reasonable hypothesis consistent with innocence. See Sawe v Republic [2003] KLR 364. 78.Where the Prosecution relies on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. The chain of evidence must be complete and point irresistibly to the existence of a common unlawful design. This principle applies with equal force in Prosecutions for conspiracy, where proof of the agreement is commonly inferred from conduct rather than direct testimony. 79.Mere association between the accused persons, participation in the same transaction, or common membership of an organization does not, without more, establish a conspiracy. The Prosecution must prove a meeting of minds directed towards the fraudulent purpose. In Republic v Kiuna & Another [2025] KEHC 16922 (KLR), the High Court held that although the respondents jointly participated in a land transaction, there was no evidence of a prior arrangement or shared criminal intent, and consequently the Prosecution had failed to prove conspiracy beyond reasonable doubt. 80.The element of fraudulent intent is equally indispensable. The Prosecution must demonstrate that the accused knowingly intended to employ deceit or dishonest means to prejudice another's proprietary or legal rights. A bona fide claim of right, however mistaken, is inconsistent with the mens rea required for conspiracy to defraud. As stated in Scott v Metropolitan Police Commissioner [1975] AC 819, fraud imports dishonesty, and the intention must be to deprive another of a legal or proprietary right through deceit. 81.In the instant appeal the Appellants knowingly combined to falsely assume the status of lawful trustees and, through that deception, intended to prejudice the church's proprietary or legal rights. There was a meeting of minds directed towards the fraudulent purpose. From the evidence there was a discernable agreement between the 3 Appellants to defraud, a shared intention to commit the unlawful purpose, and participation by each accused in furtherance of that common design. See Republic v Shava & 5 Others [2025] KEHC 18283 (KLR) (Supra). The offence was established. 82.Moving on to the question whether the Appellants presented themselves as trustees, suffice to note that the Prosecution case was never that the Appellants forged documents. Rather, its case was that the Appellants knowingly misrepresented themselves as lawful trustees of the complainant church, thereby inducing the Lands Registry to register them as proprietors in that capacity before transferring the land to an innocent purchaser still posing as trustees. 83.The offence charged under section 320 of the Penal Code does not require proof that a document was forged. What the Prosecution was required to prove was that registration was procured through a false pretence. 84.A false pretence is defined under section 312 of the Penal Code as any representation made by words, writing or conduct of a matter of fact, either past or present, which representation is false and which the maker knows to be false or does not believe to be true. 85.The evidence on record overwhelmingly established that the Appellants held themselves out as trustees of the church despite lacking lawful authority to do so. 86.The church Constitution, produced as an exhibit, clearly set out the manner in which trustees were appointed and how church property could be dealt with. There was no evidence whatsoever that those procedures had been followed neither was any form of evidence adduced to show that the Appellants were trustees. 87.The Prosecution also demonstrated that the Appellants caused themselves to be registered as trustees before transferring the property to the purchaser. 88.The evidence of PW6, the Land Registrar, confirmed that the Appellants presented themselves as trustees and hence the successful registration of the lease in their names. 89.The Appellants have sought to rely heavily upon this evidence to argue that the registration was lawful. That submission misunderstands the role of the Land Registrar. PW6 never testified that the Appellants were genuine trustees. He merely stated that he registered documents presented to him in accordance with the registration procedures then in force. Administrative compliance by the registry cannot sanitize a transaction founded upon a false representation. 90.The fact that the Registrar was deceived into effecting registration does not negate the offence; rather, it illustrates the very manner in which the alleged false pretence succeeded. 91.Indeed, if the Registrar had known that the Appellants lacked authority from the church, the registration would never have been effected. 92.A careful reading of the record and the judgment of the trial Court reveals that the learned trial Magistrate did not purport to adjudicate ownership of the suit property in the manner contemplated under land law. 93.The Appellants appear to suggest that because there existed competing claims over the property, the dispute ought to have been determined by a Court exercising jurisdiction over land matters and that the criminal proceedings were therefore inappropriate. That argument is not borne out by the record. 94.The issue before the trial Court was not who held the better title to the land. Neither was the Court invited to cancel any title, rectify the land register, or declare the lawful proprietor of the suit property. Those are matters that fall within the jurisdiction of the specialized Court established under Article 162(2)(b) of the Constitution and the Environment and Land Court Act. 95.The criminal Court was instead called upon to determine whether the Prosecution had proved beyond reasonable doubt that the Appellants falsely represented themselves as duly authorized trustees of the complainant church, procured registration through that false representation, and thereafter obtained money from the purchaser by disposing of the property while knowing they lacked lawful authority to do so. 96.In resolving those issues, the trial Court was entitled to examine the history of the property and the documentary evidence relating to it, not for the purpose of determining ownership, but to ascertain whether the Appellants' representations were true or false. Such an inquiry was both necessary and incidental to determining the criminal charges before the Court. 97.The evidence relating to the allotment of the property, the intended transfer to the church, the church constitution, the identity of the lawful trustees, and the subsequent registration of the Appellants was therefore relevant only to establish whether the Appellants honestly believed they had authority to transact or whether they knowingly misrepresented that authority. 98.Accordingly, I find no merit in any suggestion that the trial Court exceeded its jurisdiction or purported to determine questions of title reserved for the Environment and Land Court. The learned trial Magistrate remained within the confines of the criminal jurisdiction by confining himself to the ingredients of the offences charged. 99.The Appellants contend that since they were acquitted on Count I, the learned trial Magistrate could not lawfully convict them on Counts II and III. They argue that the acquittal amounted to a finding that ownership of LR No. Nanyuki Municipality Block 10/283 had not been proved and therefore the remaining counts automatically collapsed. I am unable to agree. 100.The first point to be made is that each count in a criminal charge is separate and distinct. The Prosecution bears the burden of proving every count independently according to its own legal ingredients. An acquittal on one count does not, without more, invalidate convictions on other counts unless the acquittal necessarily destroys an essential ingredient of the remaining offences. 101.The learned trial Magistrate acquitted the Appellants on Count I because he was of the view that determining ownership of the parcel of land would require the Court to venture into matters reserved for the specialized land Court. (I have since faulted this finding earlier in this judgement). That finding did not amount to a declaration that the Appellants were the lawful owners of the property. Neither did it amount to a finding that they were lawfully appointed trustees of the church. 102.Indeed, a reading of the judgment demonstrates that the trial Court consciously refrained from making any definitive pronouncement on title to the land. In my view, that approach was correct. 103.The criminal Court was not required to determine who owned the land. It was only required to determine whether the Appellants knowingly represented themselves as persons authorized to deal with the property and whether, by that representation, they procured registration and obtained money. 104.The offence under section 320 of the Penal Code is not founded upon ownership of land but upon obtaining registration through a false pretence. Similarly, the offence under section 313 is concerned with obtaining money through a false representation. 105.Accordingly, proof of legal ownership was not an indispensable ingredient of either offence. 106.The evidence required was proof that the representation made by the Appellants that they were duly authorized trustees capable of dealing with church property was false. That issue is entirely distinct from determining who held the better title to the land. 107.The Appellants further contend that the learned trial Magistrate failed to properly evaluate their respective defences and thereby arrived at an erroneous conclusion. They maintain that their evidence raised sufficient doubt as to the Prosecution case and ought to have resulted in their acquittal. 108.The law is settled that a trial Court is under a duty to consider the defence put forward by an accused person. However, consideration does not necessarily mean acceptance. Where the Court demonstrates that it has weighed the defence against the Prosecution evidence and finds it wanting, an appellate Court will not interfere merely because the defence was rejected. 109.I have carefully reconsidered the defence tendered by each appellant alongside the Prosecution evidence. 110.The cornerstone of the defence was the assertion by the 1st appellant that the original allottee voluntarily gifted him the suit property after he had prayed for him in his capacity as a pastor. According to the Appellants, they therefore had a legitimate claim to the property and were entitled to deal with it as they did. 111.In my respectful view, that explanation was properly rejected by the learned trial Magistrate for several reasons. 112.First, the allegation of a personal gift stood in direct contradiction to the overwhelming documentary evidence produced by the Prosecution. The documentary exhibits demonstrated that the suit property had been processed for transfer to the church and not to the 1st appellant in his personal capacity. Those documents included the allotment records, the application for consent to transfer, the transfer instruments, the church constitution, official correspondence and the subsequent land records. Collectively, those documents painted a consistent picture that the property was intended for and belonged to the church. 113.Secondly, the Prosecution evidence established that a church structure had already been erected upon the property and that the congregation had been utilizing the land for worship. The existence of a permanent place of worship on the property was wholly inconsistent with the defence theory that the land had been gifted to the 1st appellant personally. Had such a gift truly existed, one would reasonably have expected cogent documentary evidence demonstrating a transfer directly to him. None was forthcoming. 114.Thirdly, even assuming for argument's sake that the original allottee had intended to reward the 1st appellant personally, that fact alone would not explain why the Appellants presented themselves as the duly registered trustees of the church. The Prosecution case was not simply about ownership of land. It was that the Appellants falsely assumed the legal identity of trustees of the church in order to procure registration and thereafter dispose of the property. The alleged gift therefore did not answer the central accusation facing the Appellants. 115.The defence also relied upon the evidence of DW4, the officer from the Registrar of Societies. I have carefully considered that evidence. DW4 merely produced documents relating to the registration of the church as a society. That evidence did not establish that the Appellants were the lawful trustees of the complainant church at the material time. Neither did it displace the evidence tendered by PW1, PW2 and PW3 regarding the governance structure of the church and the identity of its duly recognized trustees. Consequently, DW4's evidence did not weaken the Prosecution case in any material respect. 116.Equally, the evidence of DW5, the advocate who prepared the sale agreement between the Appellants and the purchaser did not advance the defence. His testimony was limited to the preparation of the conveyancing documents and the sequence of events leading to the registration of the transfer. He testified that registration in favour of the Appellants as trustees occurred shortly after execution of the sale agreement. That evidence merely confirmed that the conveyancing transaction took place. It did not establish that the Appellants possessed lawful authority to transact on behalf of the church. An advocate acting upon documents presented by clients does not authenticate the truthfulness of the representations made by those clients regarding their legal status. 117.Heavy weather was made by the defence about disputes in the church. The disputes in no way affect the propriety and prove of the charges herein. Despite the factul existence of cases in Court, there was no evidence of a Court order that recognised the Appellants as trustees and the existence of the cases without a final determination of the rights of the protagonists would seem to work against the Appellants as it obfuscates clarity on who had the mandate to act for the church. In a nutshell, the existence of the cases does not come to the aid of the Appellants. The established position from the evidence is that no credible documentary evidence was produced to demonstrate that they had ever been appointed as trustees in accordance with the church constitution or authorized by the church to alienate the property. 118.As regards the charge of obtaining money by false pretences, the evidence establishes that after obtaining registration, the Appellants entered into a sale agreement with Birik, the purchaser, and received the purchase price. 119.The advocate who prepared the agreement confirmed the transaction while the documentary evidence established that transfer was subsequently effected in favour of the purchaser. 120.The purchaser parted with the purchase price in the belief that the Appellants were the lawful trustees capable of passing good title. That belief arose solely because of the Appellants' false representation regarding their authority over the property. 121.The money was therefore obtained through the same false pretence that had earlier enabled the Appellants to procure registration. 122.The ingredients of the offence were therefore fully established. 123.The Appellants contended that Count III was not proved because the purchaser, from whom the money was allegedly obtained, did not present himself as the complainant but merely testified as a Prosecution witness. According to them, the fact that the complaint was lodged by officials of the church rather than by the purchaser was fatal to the Prosecution case. 124.I find that submission to be legally untenable. The offence of obtaining by false pretences is created under section 313 of the Penal Code. To secure a conviction, the Prosecution is required to prove only the essential ingredients of the offence, namely: that the accused obtained something capable of being stolen; that the obtaining was induced by a false pretence; and that the accused acted with intent to defraud. These ingredients have been consistently affirmed in Wafukho v Republic [2014] eKLR and Odemba v Republic [2023] KEHC 2502 (KLR). Significantly, neither the statute nor those authorities require proof that the person who parted with the money must also be the person who reported the offence to the police or instituted the complaint. 125.Criminal proceedings are instituted in the name of the Republic pursuant to Article 157 of the Constitution and sections 89 and 90 of the Criminal Procedure Code. The complainant in criminal proceedings is therefore the Republic acting through the Director of Public Prosecutions. A criminal investigation may lawfully be triggered by information received from any person who becomes aware that an offence has been committed. Consequently, the evidential burden remains the same irrespective of who first reports the offence. 126.This principle was authoritatively stated by the Court of Appeal in Bukenya & Others v Uganda [1972] EA 549, where the Court observed that the Prosecution is under a duty to avail all material witnesses necessary to establish the truth, but the law does not prescribe any particular witness whose evidence is indispensable. The decisive question is whether the evidence tendered proves the ingredients of the offence beyond reasonable doubt. 127.Likewise, in Keter v Republic [2007] 1 EA 135, the Court of Appeal reiterated that no particular number of witnesses is required to prove any fact and that a conviction may properly rest upon the testimony of such witnesses as sufficiently establish the Prosecution case. The weight of evidence, and not the title or designation of the witness, is what determines criminal liability. 128.In the present case, the purchaser testified that the Appellants represented themselves as the lawful trustees and registered proprietors of the suit property. Believing those representations to be true, he executed a sale agreement and paid the agreed purchase price. His testimony was corroborated by the sale agreement, transfer documents and the certificate of lease issued upon registration. His evidence therefore established beyond doubt that the Appellants obtained money from him through the false representation that they possessed lawful authority to dispose of the property. 129.The fact that the purchaser did not perceive himself as the victim, or that he did not personally lodge the complaint with the police, does not extinguish the criminality of the Appellants' conduct. Once the Prosecution proved that the Appellants intentionally induced the purchaser, through a false pretence, to part with his money, the offence under section 313 of the Penal Code was complete. Criminal liability attaches to the fraudulent obtaining itself and not to the subsequent attitude adopted by the person from whom the money was obtained. 130.The Court of Appeal in Moses Parantai & Another v Republic [2021] eKLR reiterated that the offence of obtaining by false pretences is complete once the false representation induces the complainant to part with property or money, provided the requisite fraudulent intent is proved. The gravamen of the offence is the deceit employed to obtain the property and not the identity of the individual who subsequently reports the matter to the investigating authorities. 131.Equally instructive is the decision in Wafukho v Republic [2014] eKLR, where the High Court emphasized that once the Prosecution proves the false representation, reliance upon it by the person induced, and the obtaining of money with intent to defraud, the offence is fully constituted. The Prosecution is not required to establish any additional element that the victim must have initiated the criminal process. 132.In the present appeal, the officials of the church reported what they believed to be a fraudulent alienation of church property. Their report merely set the criminal justice process in motion. The purchaser's role thereafter was that of a material witness who proved the transaction through which the Appellants obtained the purchase price. His testimony, together with the documentary evidence, supplied direct proof of the obtaining of money and therefore established the factual foundation of Count II. 133.It would indeed defeat the administration of criminal justice were offenders to escape liability merely because the immediate victim elected not to report the offence, was unaware that a criminal offence had been committed, or did not consider himself aggrieved. Such a proposition finds no support either in the Penal Code, the Criminal Procedure Code or Kenyan jurisprudence. Criminal offences are offences against the State, and once credible evidence establishing the statutory ingredients is placed before the Court, the Prosecution is entitled to proceed irrespective of the source of the initial complaint. 134.In the end, I must find and hold that the Prosecution proved all the 3 counts to the required degree. 135.With regard to sentence, the principles governing an appellate Court’s interference with the exercise of discretion in sentencing by a trial Court are well settled. An appellate Court will not interfere with the discretion of a trial Court unless it is shown that the trial Court acted on a wrong principle, overlooked a material factor, considered irrelevant matters, or imposed a sentence that is manifestly excessive or manifestly inadequate, as stated in Ogolla s/o Owuor v Republic (1954) EA 270 and Wanjema v Republic [1971] EA 493. 136.The record demonstrates that the learned trial Magistrate considered the mitigation advanced by each appellant before imposing sentence. The fines fell within the prescribed statutory limits, and have not been shown to have been founded on any erroneous principle or to be manifestly harsh or excessive. There is therefore no legal basis upon which this Court can interfere with the sentences imposed. 137.In the premises, I reach a finding that the conviction and sentence in respect of count II and III are upheld. The acquittal of the Appellants in respect of Count I is hereby set aside and substituted thereof with a finding of guilty in respect of Count I against each Appellant herein and for which each is convicted accordingly. Upon considering the circumstances of the case and noting the Appellants have served sentence in respect of Count I and II, each Appellant is discharged under Section 35(1) of the Penal Code on condition that each does not commit another offence in the next 6 months. DATED SIGNED AND DELIVERED VIRTUALLY THIS 16TH DAY OF JULY 2026A.K. NDUNG’UJUDGE