[2002] KEHC 923 (KLR)
The court found that the evidence did not establish that the appellant made false pretences as required under section 313 of the Penal Code. The complainants were not promised visas, only assistance with the process, and some did in fact obtain visas. The purpose of the payments was not clearly established, and the...
Source-derived case information.
- Citation
- [2002] KEHC 923 (KLR)
- Parties
- Appellant: Melissa Rogers Malumbe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1221 of 2001
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- appeal allowed; convictions quashed
- Legal Topics
- False Pretences, Making Document Without Authority, Elements of Fraud, Burden of Proof, Criminal Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Melissa Rogers Malumbe
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the appellant obtained money by false pretences contrary to section 313 of the Penal Code.
- 2 Whether the appellant made a document without authority contrary to section 357 of the Penal Code.
- 3 Whether the convictions were safe based on the evidence adduced.
Ratio Decidendi
The court found that the evidence did not establish that the appellant made false pretences as required under section 313 of the Penal Code. The complainants were not promised visas, only assistance with the process, and some did in fact obtain visas. The purpose of the payments was not clearly established, and the appellant's issuance of receipts in her own handwriting was inconsistent with fraudulent intent. The convictions were therefore unsafe, and the benefit of doubt should have been given to the appellant. The appeal was allowed and the convictions quashed.
Court Disposition
appeal allowed; convictions quashed
Orders
- The appeal is allowed.
- The convictions are quashed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI APPELLATE SIDE HIGH COURT CRIMINAL APPEAL NO. 1221 OF 2001
(From Original Conviction(s) and sentence(s) Criminal case No. 2600 of 2000 of the Snr. Principal magistrate’s Court at Kibera
MELISSA ROGERS MALUMBE…………………………..APPELLANT
VERSUS
REPUBLIC…………………………………………………..RESPONDENT
J U D G M E N T
On 19th December, 2001, the court allowed the appellant’s appeal but reserved the reasons therefore. The date set has since passed but it is necessary to lay down the said reasons for purposes of record.
It is necessary to mention from the outset that the republic conceded this appeal. The appellant had been charged with one count of making a document without authority C/s 357 of the Penal Code and eight counts of obtaining money by false pretences C/s 313 of the Penal Code. After a full trial, the appellant was convicted of counts 2 3 5 7 8 and 10 and sentenced to twelve months imprisonment on each count. Sentences were ordered to run concurrently.
The particulars of the charges upon which the appellant was convicted were that she obtained money from the several complainants by falsely pretending that she was in a position to get them traveling visas to the United States of America.
It transpired during the trial that, the appellant runs a tour firm. She assists various people to gain entry into the U.S.A. In the instant case the complainants had a common ground that none was promised a visa but that they would be informed to attend interviews.
The appellant would then instruct the applicants on possible questions and answers they would encounter and give out the interviews. Otherwise she was not in the interviewing panel. She would also provide the reasons for proceeding to the U.S.A.
There was evidence that some applicants did indeed secure visas and traveled to the U.S.A. The bottom line then was that, although the appellant made promises, these did not fall under false pretences. The reasons for the failure to secure visas for those who were unsuccessful could not be attributed to the appellant.
There was also no undertaking by the appellant or understanding on the part of the complainants that the appellant would pay for the visas. In fact the purpose of the payments was not clearly stated by the complainants.
The appellant did not deny she received the money. She did. She in fact gave receipts in her own handwriting. That in fact enhanced her credibility because that was not the conduct of a person with intent to defraud.
Without going any further, the conviction was most unsafe and the benefit of doubt ought to have been given to the appellant.
These then are the reasons for allowing the said appeal.
MBOGHOLI MSAGHA
JUDGE
30TH APRIL 2002