https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11451

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CRIMINAL APPEAL NO. E018 OF 2026** | | | | --- | --- | | **MENZA MASHA KARISA** | **APPELLANT** | **VERSUS** | | | | --- | --- | | **REPUBLIC** | **RESPONDENT** | ***(Being an appeal against the conviction and sentence by Hon. Ivy Wasike (PM) in Kilifi Chief Magistrate’s Court Criminal Case No. E348 of 2020)*** **JUDGEMENT** 1. The appellant herein, Menza Masha Karisa, was convicted and sentenced to a fine of Ksh.300,000 or in default three (3) years imprisonment by the Chief Magistrate's Court Kilifi for the offence of obtaining money by false pretence contrary to section 313 of the *Penal Code.* The particulars of the offence were that on the 30 September 2019 at Kilifi North Sub-County within Kilifi County, with intent to defraud, he obtained from Sidzeni Primary School the sum of Kshs.150,000/= by falsely pretending that he was in a position to sell to them a parcel of land known as Kilifi/Madeteni/1128, a fact he knew to be false. ***Back ground*** 1. The appellant denied the charge prompting the trial where the prosecution called three (3) witnesses. PW1, Francis Shida Katana, testified that on 5 January 2011 the appellant acknowledged receipt of Ksh. 50,000 from Sidzeni Primary school paid the purchase of one (1) acre from plot No. 1128 and an agreement to that effect was executed where he was a witness. A copy of the agreement was produced as exhibit 2. That the appellant then pointed out the said parcel to the school. In 2016, the school sought to buy two more acres and approached the stepmother of the appellant who informed them out of the two acres, the appellant would give 1/2 an acre. It was agreed that a total of Ksh. 1,200,000 would be paid for the land and a sale agreement dated 1 July 2026 was signed. On 30 September 2019, the Constituency Development Fund (CDF) transferred Ksh. 150,000 to the school and the school transferred the said amount to the appellant the same day. The balance of Ksh. 850,000 was never paid and still remains with the school. He further stated that they are waiting for the completion documents and original title deed from the appellant. 2. It was his evidence that later on they realized the said land was sold to Jacinta Mbithe Makau who holds a title deed and on 6 February 2020, they reported the matter to the police. On cross examination, he confirmed that the appellant holds title No. Kilifi/Roka/1128 measuring 12 acres, theta the school did not conduct a search, that no sub-division was done and the transfer is yet to be done. 3. PW2 Jacinta Mbithe Makau testified that on 9 December 2011, she bought two acres from appellant at a cost of Ksh. 310,000 and signed a sale agreement dated 9 December 2011. That it was agreed that she would pay half the price and the balance upon transfer and registration. That later on she learnt that the school had encroached on the land and went to check. She confirmed that she did not know the acreage encroached by the school and that the appellant has the title to the land. 1. PW3 IP Dominc Omondi the investigating officer based at DCI Kayole testified that in 2020, PW1 reported the case in Kayole police station. That he investigated the case and established the appellant sold two (2) acres of the said land to Sidzeni Primary school at Ksh. 50,000 vide a sale agreement dated 5 January 2011 (exhibit 1) and that in July 2016, the appellant another two (2) acres to the school for Ksh. 600,000 per acre and a sale agreement dated 1 July 2016 was signed (exhibit 2). That the said agreement was later typed and resigned on 24 July 2019. That on 30 September 2019, Ksh. 150,000 was paid to the appellant in respect of the said transaction. He went on to say that later on, PW2 recorded a statement per acre out of which she paid Ksh.150,000 to the appellant. She produced a sale agreement dated 9 December 2011 as evidence thereof (exhibit 6). 2. It was his evidence that from his investigations, he established that the appellant had sold the same parcel of land to the school and PW2. He confirmed that the land was registered in the name of the appellant and produced the green card as evidence (exhibit 8). In cross examination, he stated that the total acreage of the land was 5 acres where the appellant sold three (3) acres to the school which had not been fully paid for and two (2) acres to PW2. It was his testimony that he did not produce any survey or sketch plan to show an overlap of the two parcels of land. 3. In defence, the appellant testified on oath where he stated that he owns five (5) acres out of which he agreed to sell two (2) acres to the school at a cost of Ksh. 1,200,000 but only Ksh.150,000 was paid. He went on to say that he also sold two (2) acres to PW2 at Ksh. 310,000 but she paid Ksh. 200,000 leaving a balance of Ksh. 110,000 which is still outstanding. That he remained with the balance of the land and that the title was not transferred since the two purchasers had not paid the balance of the purchase price. In cross examination, he maintained that it is not true that he sold three (3) acres to the school but that the school wanted three (3) acres. However, because of the money they paid, he only sold them one (1) acre. 4. In a judgement dated 24 April 2025, the appellant was found guilty, convicted and sentenced as aforesaid. Aggrieved, the appellant filed appeal where he raises the following grounds; 5. That the learned trial court erred in law and fact by holding that the appellant had the onus to prove that he did not resell the encroached parcel thereby shifting the burden of proof. 6. That the learned trial court erred in law and fact by finding a false representation existed without evidence of a survey report, sketch map or expert boundary verification to prove that the land sold to the school and the complainant were identical. 7. That the learned trial court erred in law and fact by criminalizing a purely civil contractual dispute where the appellant has five (5) acres and sold four (4) acres. 8. That the learned trial court erred in law and fact by finding that the appellant lacked capacity to sell while at the same time acknowledging that he held title to the land meaning that no legal interest had passed to the third parties. # ***Submissions*** 1. The appeal was canvassed by written submissions where the appellant filed his submissions dated 7 May 2026 while the respondent submitted orally that they opposed the appeal but would be relying on the record without filing submissions. Ms Mutua Mwelu learned counsel appeared for the appellant while Ms Nyaboke learned counsel appeared for the respondent. 2. As regards the first ground, the appellant submitted that trial court erred by unlawfully shifting the burden of proof to the appellant. He pointed out that the trial court misdirected itself by holding that the appellant had the onus to prove that he did not resell the same parcel and went on to convict him for failing to disprove the prosecution’s case. He argued that this violated his right to remain silent as guaranteed under Article 50 (2) (a) of the *Constitution*. Reliance was placed on the case of ***Stephen Nguli Mulili vs Republic (2014) eKLR.*** 3. On the second ground, the appellant contended that the prosecution failed to prove the alleged false representation beyond reasonable doubt. He argued that the offence was anchored on the fact that the appellant had sold the same portion of land to two different persons. However, the evidence presented revealed that no sub-division had been undertaken to ascertain the exact portion sold, that the title to the land remained with the appellant, boundaries had not been established to show that it was the same parcel of land that had been sold and that no survey report, mutation form, registry index map, beacon certificate, sketch-map or other expert analysis was produced to prove the allegations. Reliance was placed on the case of ***Ndungu Kimani vs Republic (1979) KLR*** and ***Sawe vs Republic (2003) KLR.*** 4. On the third ground, the appellant submitted that the dispute was purely civil in nature as it involved questions of boundary identification, acreage allocation, contractual obligations, land occupation and transfer that ought not be criminalized. He relied on ***Kuria & 3 others vs Attorney General (2002) 2 KLR*** and ***Republic vs Chief Magistrates Court at Mombasa ex parte Ganjoni & Another (2002) 2 KLR*** where the courts held that criminal proceedings should not be utilized to settle personal scores or enforce civil claims. 5. The appellant further submitted that the prosecution had not proved fraudulent intent on the part of the appellant by providing evidence of deliberate dishonesty and intention to deceive beyond reasonable doubt. He argued that mere breach of contract, confusion in land allocation or incomplete transactions cannot automatically amount to criminal fraud. He urged the court to find in his favour, quash the conviction and sentence and acquit him. # ***Analysis and determination*** 1. This being the first appeal, the duty of this court is to re-evaluate and examine the evidence adduced before the trial court and arrive at its own independent conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See ***Okeno vs Republic [1972] EA 32*** and ***Mark Mose vs Republic (2013) eKLR.*** 2. The court of appeal, in ***Kiilu & Another V R [2005]1 KLR 174***, stated thus; “*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; 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.”* 1. With that in mind, the court will proceed to determine the appeal. The appellant was charged with the offence of obtaining money by false pretence contrary to Section 313 of the *Penal Code.* The said section provides: *“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.”* 1. False pretence is defined under section 312 of the *Penal Code* to mean; *“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.”* 1. Arising from above, the ingredients constituting the offence that the prosecution must prove are that the appellant obtained something capable of being stolen, that he obtained it through a false pretence, and that he did so with intent to defraud. See ***Joseph Wanyonyi Wafukho vs Republic [2014] eKLR*** 2. Having considered the law, the evidence adduced before the trial court, the trial court’s judgement, the petition of appeal and the respective rival submissions by the parties and narrowed down the issues for determination as follows 3. Whether the appellant obtained something capable of being stolen; 4. Whether the appellant obtained it through a false pretence; 5. Whether there was proof of intention to defraud. ***Whether the appellant obtained something capable of being stolen*** 1. The appellant was accused of obtaining Ksh.150,000/= from Sidzeni Primary School on 30 September 2019 by falsely pretending that he was in a position to sell land parcel Kilifi/Madeteni/1128. The first issue, therefore, is whether there is proof that he obtained Ksh. 150,000 from the Sizeni Primary school and secondly if money is something that is capable of being stolen. 2. PW1 testified that on 30 September 2019, a total of Ksh.150,000 was transferred from the Sidzeni primary school account No. 01141779533200 to the appellant’s account No. 01192779682300 held at the Co-operative Bank of Kenya. He stated that the money was payment for purchase of land where he produced a sale agreement dated 1 July 2016 (exhibit 2), bank transfer form dated 24 September 2019 and presented to the bank on 30 September 2019 (exhibit 3) and cheque No. 000887 dated 30 September 2019 from account No. 01141779533200 for Ksh.150,000 (exhibit 4) as evidence thereof. 3. The appellant admitted receiving the said amount being Ksh. 150,000 from the school as part payment of the purchase price for the sale of two (2) acres parcel of land. As regards the second issue, Section 267 of the *Penal Code* defines things capable of being stolen to mean every inanimate thing whatever which is the property of any person, and which is movable. Section 4 of the *Penal Code (Cap.63)* and Section 3 of the *Interpretation and General Provisions Act* *(Cap. 2)* defines property to include money. The court finds that the prosecution proved beyond reasonable doubt that the appellant received Ksh. 150,000 from the school which money is something that is capable of being stolen. ***Whether the appellant obtained it through a false pretence*** 1. In order to prove false pretence, evidence must show that the appellant made representation by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the appellant knew it to be false or does not believe to be true. 2. The charge states that the appellant obtained Kshs.150,000/= from Sidzeni Primary School by falsely pretending that he was in a position to sell to them a parcel of land known as Kilifi/Madeteni/1128, a fact he knew to be false. 3. The appellant submitted that the prosecution failed to prove the alleged false representation beyond reasonable doubt. He argued that the offence was anchored on the fact that the appellant had sold the same portion of land to two different persons. However, the evidence presented revealed that no sub-division had been undertaken to ascertain the exact portion sold, that the title to the land remained with the appellant, boundaries had not been established to show that it was the same parcel of land that had been sold and that no survey report, mutation form, registry index map, beacon certificate, sketch-map or other expert analysis was produced to prove the allegations. 4. The prosecution’s case as per PW1 was that on 30 September 2019, the appellant received Ksh. 150,000 from the school as part payment of the purchase price for the purchase of two (2) acres from the appellant’s land known as Kilifi/Roka/1128. According to the sale agreement dated 1 July 2016, an agreement for sale of the two (2) acres was made between Sidzen Primary School and Sulubu Matsa Karisa, Kadzo Mwatsa Karisa and Menza Masha Karisa (the appellant). The total purchase price for the entire two (2) acres was Ksh. 1,200,000 out of which the appellant was to sell half an acre (1/2) with the other two contributing the remaining one and half acres. PW1 admitted that the school is yet to pay the balance of the purchase price. 5. Evidence by PW2 was that vide a sale agreement dated 9 December 2011, between PW2 and the appellant, the appellant agreed to sell a total of two (2) acres out of his five (5) acres from land known as Kilifi/Roka/1128 at a total price of Ksh. 310,000 out of which PW2 paid Ksh. 150,000 on 19 March 2012 leaving the balance outstanding to date. The appellant is accused to have sold the said parcel of land twice, *that it,* selling to the school while knowing that he had already sold it to PW2. 6. The appellant in his defence, stated that he owned land known Kilifi/Roka/1128 measuring a total of five (5) acres as per the title deed produced as exhibit 8. It was his evidence that he had sold a total of two (2) acres to the School and a further two (2) acres to PW2 out of the total five (5) cares leaving a balance of one (1) acre. He further stated that he has not transferred the title since the two set of purchasers had not fully paid for the property. 7. The above facts are not disputed. The question remains, did the appellant made a false representation of a matter of fact which he knew to be false? It is clear that the appellant had a total of five (5) acres. That as at 1 July 2016 when the entered into agreement to sell the School the one half of an acre, he had sold to PW2 a total of two (2) acres and one (1) acre to the school as per the sale agreement of 5 January 2011. The evidence before the court is that as at 1 July 2016 when the appellant, together with others, entered into the agreement that gave rise to the payment of Ksh. 150,000, he still had land that he could lawfully sell. Therefore, it cannot be said that he made a false representation by purporting to sale land that he did not have. 8. No evidence has been placed before the court to show that the appellant had sold the same parcel twice. As set out in ***Woolmington vs DPP (1935) AC 462***, the prosecution bore the burden to prove the appellant's guilty beyond reasonable doubt. It was upon the prosecution to provide evidence to show that indeed the parcel of land sold to the school is the same as the one that had been sold to PW2 thereby demonstrating evidence of receiving by false pretence. None was placed before the trial court. 9. The court concurs with the appellant that the dispute was purely civil in nature as it involved questions of boundary identification, acreage allocation, contractual obligations, land occupation and transfer that ought not be criminalized. Article 162 (2) (b) of the *Constitution* as read with the *Environment and Land Court Act* establishesthe Environment and Land Court to determine, *inter alia,* disputes relating to title, boundaries, occupation, acquisition and disposal of land such as this. The court finds that this ingredient was not proved beyond reasonable doubt. 10. Section 354 (3) (a) (i) of the *Criminal Procedure Code* empowers this court in an appeal from a conviction reverse the finding and sentence, and acquit or discharge the accused. The court finds that the prosecution did not prove the case beyond reasonable doubt and hence the conviction is unsafe. 11. The court finds merit in the appeal and accordingly allows the appeal, quash the conviction and set aside the sentence. The appellant shall be set at liberty forthwith unless otherwise lawfully held. 12. It is so ordered. Dated, Signed and Delivered virtually at Nairobi this 23rd day of July 2026. **JOSEPH KIPKOECH BIOMDO** **JUDGE**