[2022] KEHC 10591 (KLR)

Mireri v Republic (Criminal Appeal E41 of 2021) [2022] KEHC 10591 (KLR) (5 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10591 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Appeal E41 of 2021

KW Kiarie, J

July 5, 2022

Between

Philip Ogweno Mireri

Appellant

and

Republic

Respondent

(From the original judgment in Criminal case No. 508 of 2020 of the Senior Principal Magistrate’s Court at Oyugis by Hon C.A Okore. – Principal Magistrate)

Judgment

1. Philip Ogweno Mireri, the appellant herein, was convicted of the offence of obtaining money by false pretences contrary to section 313 of the Penal Code.

2. The particulars of the offence in count one were that on 22nd December, 2019 at Oyugis Township Location in Rachuonyo South sub county within Homa Bay County, by false pretense did defraud Joyce Achieng Okuyo her three bulls valued at Kshs. 85,000. 00 on account that he was to slaughter and within two days pay the said Kshs. 85,000. 00 to the said Joyce Achieng Okuyo.

3. The appellant was sentenced to serve one year imprisonment and also ordered to pay the complainant Kshs.85, 000. 00 within 12 months or serve a further 12 months imprisonment. He was dissatisfied and filed this appeal.

4. The appellant was represented by the firm of Achillah T.O & Company Advocates. He raised six grounds of appeal as follows:a)The learned magistrate erred in law and fact in finding the appellant guilty of the offence of obtaining by false pretense contrary to section 313 of the penal code.b)The learned magistrate erred in law and fact in convicting the appellant of the offence of obtaining by false pretense yet the legal ingredients of the said offence was not proved beyond reasonable doubt.c)The learned magistrate erred in law and in fact in relying on uncorroborated, contradictory, inconsistent and non-credible evidence of the prosecution in convicting the appellant.d)The learned magistrate erred in fact and law in shifting the burden proof from the prosecution to the defence thereby occasioning miscarriage of justice.e)The learned magistrate erred in fact and law in failing to exercise caution and convicting against the weight of evidence on record.f)The learned magistrate erred in law and fact in imposing manifestly harsh and sever sentence in the circumstances without an option of a fine in light of the evidence on record.

5. The respondent opposed the appeal through Mr. Ochengo, learned counsel. The respondent contended that:a)The conviction was based on evidence.b)The sentence was proper.

6. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32.

7. The ingredients of the offence of obtaining by false pretences contrary to section 313 of the Penal Code were enumerated in the case of Amugo vs. Republic High Court (Kisumu) Criminal Appeal No. 320 of 1980 (unreported) as follows:The offence of obtaining by false pretences has seven possible ingredients which have to be proved beyond doubt before an accused person is convicted. They are as follows:a)a false representation;b)which is made;c)by words or writing or conduct;d)of a matter of fact;e)either past or present;f)with knowledge of the falsehood or without belief that the presentation is true; andg)the representation causing the giver to part with the thing obtained.The court went on to state for there to be a conviction, all the eight ingredients must be established beyond any reasonable doubt.

8. It is trite law that for an action to amount to a false pretence, it must be of past or present facts and not of future facts. Lord Devlin in the case of J. R vs. Dent[1955] 2 Q.B. 594 stated:...a long course of authorities in criminal cases has laid down that a statement of intention about future conduct, whether or not it be a statement of existing fact, is not such a statement as will amount to a false pretence in criminal law.In the instant case, I will seek to find if the prosecution established the eight ingredients to the required standards and whether the facts were present or past.

9. On 22nd December, 2019 Joyce Achieng Okuyo (PW1) testified that she went to Oyugis market with her three cows which she was going to sell. This is when she met the appellant with whom she eached an agreement to sell the three cows at Kshs.85, 000. 00 she reached an agreement with the accused to allow him two days so that he could slaughter the cows and pay her, her money. The appellant did not honour his part of the bargain and she subsequently after trying severally to seek for the payment.

10. The appellant on the other hand denied ever buying any cattle from the complainant and contended that she was instigated by Festus Mbori, with whom she had a similar case, to lie against him.

11. Boaz Odhiambo Kuyo (PW2) testified that he was present when his mother sold the cows to the appellant on credit.

12. There is no evidence on record to make me disbelieve these two witnesses. There was no evidence to support the appellant’s claim that the complainant was influenced to lie against him.

13. After conviction, the appellant sought time to pay the complainant her money. This therefore render his claim on appeal hollow.

14. The conduct of the appellant as testified to by the complainant and her son indicated that he intended to defraud the appellant.

15. If the appellant kept his word, the payment was to be made by 24th December, 2019. This matter was reported to the police in December, 2020. Clearly this was an indicator that the appellant did not intend to pay the complainant.

16. The offence of obtaining money by false pretences contrary to section 313 of the Penal Code was therefore proved to the required standards.

17. Section 313 of the Penal Code provides as follows: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 misdemeanor and is liable to imprisonment for three years.

18. The appellant was sentenced to serve one year imprisonment and ordered to pay the complainant Kshs.85, 000. 00 under section 23 of the Victim Protection Act within 12 months or serve a further 12 months imprisonment. Section 23 (3) provides:A victim has the right to restitution of any property or right to property of which the victim is deprived as a result of an offence in respect of which the victim is entitled to the rights and remedies specified in this Act.

19. There is nothing in the sentence or the order that can be described as harsh. I therefore find that the appeal has no merits. The same is dismissed.

DELIVERED AND SIGNED AT HOMA BAY THIS 5TH JULY DAY OF MARCH, 2022KIARIE WAWERU KIARIEJUDGE