[2024] KECA 85 (KLR)

Mutemi & 2 others v Republic (Criminal Appeal 155 of 2019) [2024] KECA 85 (KLR) (9 February 2024) (Judgment)

Neutral citation: [2024] KECA 85 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Criminal Appeal 155 of 2019

PO Kiage, A Ali-Aroni & LA Achode, JJA

February 9, 2024

Between

Timothy Muimi Mutemi

1st Appellant

Eric John Mutemi

2nd Appellant

Douglas Kyalo Mutemi

3rd Appellant

and

Republic

Respondent

(An appeal from the judgment of the High Court at Kitui (Mutende J.) delivered on 27th September, 2019 in HCCR Appeal No. 82 of 2018 Criminal Appeal 82 of 2018 )

Judgment

1. Three brothers, Timothy Muimi Mutemi the 1st appellant, Eric John Mutemi the 2nd appellant, and Douglas Kyalo Mutemi the 3rd appellant respectively, were charged before the Kitui Chief Magistrate’s Court on three counts as follows:Count 1:Forgery, contrary to Section 349 of the Penal Code, particulars being that on the 29th of June, 2010, at Kitui District Lands Office in Kitui County, with intent to deceive, being directors of Dater Enterprises Limited, jointly forged a certain document namely, a Land Transfer Form for land parcel number Nzambani/Maluma/838,purporting it to be genuine lands transfer form prepared and signed by Mutemi Kwamaki.Count 2:Uttering a document with intent to defraud contrary to Section 357(b) of the Penal Code, particulars being that on the 29th of June, 2010, at Kitui District Lands Office in Kitui County, jointly, knowingly uttered a certain document namely, a lands transfer form to lands Registrar Mr. Joel Muimi Mwinzi which had been made without authority.Count 3:Malicious damage to property contrary to Section 339(1) of the Penal Code, particulars being that on the 17th of September 2011 at 8. 30 am at Kiini Village, Maluma sub-county in Kitui county, jointly with others willfully and unlawfully damaged fruit trees, a cowshed, a granary, a permanent pit latrine, one bathroom and a wooden fence all worth Ksh 1,578,168/-, the property of Agnes Mumbau Kinako.

2. Following a full trial, Hon. M. Murage the Chief Magistrate, convicted them. She sentenced each appellant in count 1 and count 3 to a fine of Kshs. 100,000/= and in default to serve twelve (12) months imprisonment. In count 2 each appellant was fined Kshs. 90,000/= and in default to serve twelve (12) months imprisonment.

3. Dissatisfied with the judgment of the trial court the appellants filed an appeal in the High Court at Kitui against both conviction and sentence. Hon. L Mutende J re-evaluated the evidence and upheld the conviction and sentence in count 1 and count 3. She however, quashed the conviction in count 2 and set aside the sentence. The appellants were still aggrieved following the judgment of the High Court hence this appeal.

4. We give a brief recount of the facts that led to this appeal to put the appeal in context. On 17th September 2011, PW1 Agnes Mumbau Kinako, got information that there was on going destruction on a parcel of land that she had been given by her late father, Mutemi Kamwaki as a gift and which she had developed. She visited the suit property; land parcel number Nzambani/Maluma/828, and found the appellants who are her younger brothers in the company of others destroying trees and structures on the land. She reported the matter to the police.

5. Police officers visited the scene and arrested the suspects. Investigations carried out established that the subject land had been transferred from the name of the appellants’ late father into the name of a company known as Dater Enterprises Ltd, at a time when the deceased was terminally ill. Documents used to facilitate the transfer were subjected to examination by a Forensic Document Examiner and the signatures were found not to be those of the deceased. The appellants were charged as above.

6. In their defence each appellant testified on oath. The 1st appellant Timothy Muimi Mutemi, denied damaging anything on the farm, or signing the documents. He however, said that he consented to the 2nd and 3rd appellant signing the documents on behalf of their company. The 2nd appellant Eric John Mutemi and the 3rd appellant, Douglas Kyalo Mutemi, testified that they and their late father signed the documents in the presence of an Advocate. That said Advocate did not testify.

7. The 2nd appellant told the court that he is the director of Dater Enterprises Ltd. That their father had an overdraft in the bank which he extended every year and the security was the title deed for the subject land. That they contributed to offset the overdraft in the bank. In return their father executed transfer documents witnessed by Gakoi Maina Advocate and transferred the land to Dater Enterprises Limited, where the three appellants and their father were directors. He also donated the Power of Attorney to the 2nd appellant to act on his behalf. Consent was obtained through the Land Control Board.

8. The 2nd and 3rd appellant signed on behalf of the company. They asserted that the transfer form was properly executed and denied having forged the document. They stated that in the process of the transfer their advocate missed the word ‘Company’ and was to apply for rectification later. He was however, unable to do so because a caution was placed on the title. They contended that there were no developments on the land in question, save for traditional mango trees.

9. The Appellants raised 16 grounds of appeal alleging that:1. “The Learned Judge acted in a deceitful manner contrary to all legal and Constitutional Principles by purporting to have delivered a Judgement in open court on 26/9/2019 in the presence of the parties’ representatives when in fact there was no such Judgement. She only pronounced verbal orders while pretending to be reading a Judgement.2. In furtherance of the deceit aforesaid the Learned Judge then wrote and "delivered" a Judgement before herself on 27/9/2019 when she had already purportedly delivered judgement on 26/9/2019 and thereby terminated the proceedings, and rendered herself fanctus officio.3. In furtherance of her injudicious conduct aforesaid the Learned Judge deliberately misled the Appellants’ Advocates into believing that a Judgement had been lawfully delivered on 26/9/2019 thereby prompting the said Advocates to file a Notice of Appeal against a non-existent Judgement and thereby occasioning a gross miscarriage of justice.4. The Learned Judge misconducted herself in delivering two Judgements i.e. the verbal Judgement on 26/9/2019 and the purported subsequent written Judgement on 27/9/2019 and thereby failed to determine the Appeal before her.5. The Learned Judge erred in law in failing to adequately and justly render a determination of the Appeal before her.6. Without prejudice to the fore going the Learned Judge erred and misdirected herself in law in failing to appreciate that the prosecution had failed to prove its case on the charge of forgery and malicious damage to property.7. Learned Judge erred and misdirected herself in law when she failed to appreciate that no evidence was put before the trial court to authenticate the known signature of Mutemi Kamwaki (deceased) and no witnesses were availed to prove execution of the said known signatures of the deceased as required by the law.8. The Learned Judge erred and misdirected herself in law when she convicted the Appellants on the charge of forgery on the basis that they were beneficiaries of the forged signatures when no evidence was available to show that the Appellants had indeed forged the alleged signature.9. The Learned Judge erred and misdirected herself in law in failing to appreciate that it was literally physically, legally and factually not possible for three persons to forge one signature.10. The Learned Judge erred and misdirected herself in law when she shifted proof of deceit from the alleged offence of forgery and uttering forged document to typographical errors in the wording of Dater Enterprises Company Limited and Dater Enterprises Limited after the charge of uttering forged document failed without giving regard to the process in which the title was obtained and in complete disregard of documentary evidence placed before the court by the Appellants.11. The Learned Judge erred in law in failing to realize that once the charge of uttering a false document was quashed the charge of forgery could not stand alone.12. The Learned Judge erred and misdirected herself in law when she failed to appreciate the fact that for photographic evidence to be admissible in criminal cases it must be accompanied by a certificate to prove its authenticity.13. The Learned Judged erred and misdirected herself in law when she failed to appreciate that the investigating officer was categorical that he did not investigate the offence of malicious damage to property and that the alleged instruments of destruction were only marked for identification but were not produced as exhibits.14. The Learned Judge erred and misdirected herself in law when she misapplied on the provisions of section 20 of the Penal Code and circumstantial evidence to convict the Appellants with the offence of malicious damage to property when the evidence before her had exonerated the Appellants from taking part in the offence.15. The Learned Judge erred and misdirected herself in law when she ignored and failed to appreciate the submissions of the parties before her as well as points of law and authorities presented by the Appellants she further ignored provisions of the Evidence Act with regard to Admissibility of evidence and proceeded to uphold the convictions of the Appellants on the basis of evidence which was weak, unavailable, insufficient and below the standard of proof required in a criminal trial.16. The Learned Judge erred in law in failing to find that the Complainant misused and abused the criminal justice system to prosecute a family succession and land dispute. To that extent the convictions are wrong, irregular, unlawful and null and void ab initio.”

10. The matter was disposed of by way of written submissions.

11. M/S Nzamba Kitonga, Advocates filed submissions dated 23rd December 2019 on behalf of the appellants. Counsel urged that the learned judge misconducted herself by delivering two judgments, that is, a verbal judgement in court on 26th September 2019 and a subsequent written judgement on 27th September 2019 and thereby failed to determine the appeal before her.

12. Counsel submitted that there was no evidence that the complainant had any property in the parcel known as Nzambani/Maluma 838. That no one saw the appellants destroy any property, and there was no evidence to show that they either incited or colluded with others to destroy the property. He urged that the inference of guilt against the appellants, their arrest, detention, prosecution and conviction was based on baseless allegations and evidence that was inadmissible, weak, insufficient and below the standard of proof required in a criminal trial.

13. In the 6th, 7th, 8th, 9th, 10th and 11th grounds, counsel addressed the offence of forgery and argued that the learned judge veered off matters that were before the court. That she purported to establish another offence of registering land to a non-existent entity, upon which she upheld the conviction for the offence of forgery, without the evidence of the Registrar of Lands, Registrar of Companies and the advocate who processed the transfer documents. That no proper charge was preferred in the trial court on such allegations.

14. Counsel further contended that the appellate judge took it upon herself to distinguish between Dater Enterprises Company Limited and Dater Enterprises Limited, without evaluating the appellants’ exhibits on record, to realize that they were one and the same company. That even if doubt was created in the description of the entity, it is the Land Registrar who registered the title in the name of Dater Enterprises Limited, instead of Dater Enterprises Company Limited. Counsel urged that the charge before the trial court was that of the three appellants forging the signature of the deceased and it was therefore, wrong for the learned judge to shift the charge from one of forgery, to a non-existent offence of false registration of a company.

15. Counsel also submitted that the charge before the trial court was that the three appellants, with intent to deceive, being directors of Dater Enterprise Limited, jointly forged a certain document namely, land transfer form. That it is physically, legally and factually impossible for three persons to forge one signature, and the two courts below did not address this issue even after it was raised in both courts.

16. Counsel lastly argued that the learned judge quashed the conviction and set aside sentence in the offence of uttering a forged document for lack of evidence, but proceeded to uphold the charge of forgery without any evidence. That the court failed to appreciate that after the prosecution failed to provide evidence to prove that the appellants uttered the questioned document to the land Register, the charge of forgery could not stand.

17. M/S David Okachi, Senior Assistant DPP filed submissions dated 2nd October 2023 and opposed the appeal on behalf of the State. Counsel submitted that the prosecution did its best to prove its case beyond any iota of doubt. That it presented witnesses who testified that the appellants were the prime actors in the offence of forgery and malicious damage to property. That the witnesses properly placed the appellants at the scene of the crime, to the extent of informing the owner of the property when the appellants were in the process of destroying it. He urged that the evidence adduced against the appellants in count I and count 3 was not controverted and the prosecution's case was therefore water tight.

18. Counsel asserted that the high court did exercise its mandate on first appeal and evaluated the evidence to arrive at its own independent decision, as shown in the record of appeal and the judgment it delivered. He concurred with the decision of the high court on conviction and sentence.

19. We have considered the record of appeal, the written submissions, the authorities relied on and the law. Under Section 361 of the Criminal Procedure Code the jurisdiction of this Court on second appeal such as the one before us, is limited to consideration of matters of law. It does not extend to considering severity of sentence which is a matter of fact. Another fundamental jurisdictional principle is that this Court will not interfere with concurrent findings of fact by the two courts below unless the findings were based on no evidence at all, or on perversion of the evidence.

20. The Court of Appeal restated this mandate in the case of David Njoroge Macharia vs. Republic [2011] eKLR as follows:That being so only matters of law are for consideration -see section 361 of Criminal Procedure Code. As this court has stated many times before, it will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence, or are based on a misapprehension of the evidence, or the courts below are shown demonstrably to have acted on wrong principles in making the findings – see Chemagong v R (1984) KLR 611.

21. From the grounds of appeal, the submissions and the law, only two issues arise for our determination as follows:i.Whether there was sufficient evidence that the transfer form with regard to land parcel number Nzambani/Maluma 838 was forged.ii.Whether there was sufficient evidence that the appellants destroyed property and did so maliciously.

22. On the first issue it was alleged that the appellants represented themselves as directors of Dater Enterprises Ltd and forged a land transfer form, transferring land parcel no- Nzambani/Maluma 838, from the name of the deceased into the name of a company known as Dater Enterprises Ltd. The offence of forgery is created and defined by Section 345 of the Penal Code as follows:‘the making of a false document with intent to defraud.’The definition of the offence of forgery thus involves two considerations: first, that the relevant document should be false and secondly, that it was made in order that it might be used as genuine. The material in the false document should therefore, be capable of deceiving an individual to act upon it in place of the original or genuine document.

23. PW1 Agnes Mumbau Kinako, a sister of the appellants, claimed ownership of the subject land by virtue of having received it as a gift in 1989 from their late father. She stated that she developed and used the land for over 23 years prior to the incident of destruction. She later carried out a search on the title and found that the land had been transferred to Dater Enterprises Ltd on 12th September 2009, at a time when their father was ill and admitted in hospital prior to his demise. She also found a Power of Attorney donated to the 2nd appellant and a transfer form bearing signatures that she believed are differed from their father’s known signature. She reported the matter to the Directorate of Criminal Investigations (DCI).

24. The impugned transfer form for the subject land together with a Power of Attorney said to have been signed by the deceased were subjected to forensic examination by PW11 John Muinde, the Forensic Document Examiner. He compared the signatures appended on different documents presented to him. The first signature was on a transfer of land form (A1), dated 29th June 2010 said to have been signed by the deceased who was identified by Eric John Mutemi the 2nd appellant. The second signature was on the special Power of Attorney (A2) dated 28th August 2009, nominating Eric John Mutemi as the lawful Attorney and agent, with full power and authority in respect of the subject land, title no. Nzambani/Maluma 838. The third set of documents (B1-B3) bore the known signatures of the deceased that he had signed Previously.

25. PW11 testified that he carried out the examination through magnification procedures, in the course of which he found dissimilarities. The dissimilarities were in terms of initials and terminal strokes, ink construction of characters, alignment of curves, loop characteristics and in the movement of the pen and patterns. He also noted dissimilarities through a look with his naked eye. His conclusion was that the signatures had not been made by the same author. The appellants on their part urged that, the signature on the land transfer form was their father’s and that he signed the documents in their presence and that of their advocate.

26. The question is whether the prosecution discharged the burden of proof as required by law in a criminal case. The onus of proof in a criminal case rests with the prosecution. See- Republic Vs. David Ruo Nyambura & 4 others (2001) eKLR. The High court held as follows:“It is our cardinal principle of law that in a criminal case the legal onus is always on the prosecution to prove the guilt of an accused person, and the standard of proof is beyond reasonable doubt. The burden of proof therefore lies on the prosecution through out to prove the guilt of an accused."

27. In discharge of its legal onus, the prosecution provided evidence that established the fact of the signatures on the impugned documents being dissimilar to the previous known signatures of the deceased. The appellants urge that there was no evidence linking them to the forging of their father’s signature and that the learned magistrate relied on suspicion and drew an inference without any legal or factual basis. Further, that it is physically, legally and factually impossible for three persons to forge one signature and that the prosecution having failed to prove that the appellants uttered the questioned document to the land Register, the charge of forgery cannot stand.

28. In the case of Alexander Muteti Mutinda & Anotherv.Republic (2015) eKLR this Court held that:“As regards the evidence of the document examiner, this court holds that that evidence did indeed establish the two (2) documents were forgeries... It was not necessary for the prosecution to establish who actually made the documents if it managed to establish that the Appellants presented the said documents. The Appellants were beneficiaries of the said forgeries".

29. The basis of the appellant’s argument is that the deceased transferred the title to a company owned by himself and the appellants and therefore, there was no forgery. The title deed adduced in evidence showed that Dater Enterprises Limited owned Nzambani/Maluma/838 measuring 12. 6 Ha. The notice to vacate the land addressed to PW1 was on the letter head of Dater Enterprises Ltd. The transfer of land form dated 31st May 2010 transferred the subject land to Dater Enterprises Ltd.

30. The appellants adduced in evidence a Certificate of Incorporation no- C147373 for Dater Enterprises Co. Ltd, that was incorporated on the 14th November, 2007. It was not certified. The CID investigated the existence of Dater Enterprises Company Ltd. A letter dated 7th October, 2011 confirmed that Dater Enterprises Co. Ltd was registered but had filed no annual returns since incorporation. The directors of the company were the three appellants and their late father Mutemi Kamwaki.

31. No evidence was provided for the existence of Dater Enterprises Limited. There is no evidence of a resolution of directors to effect the rectification of the company name as stated. Therefore, causing a transfer of the subject land to a non-existent company was done with the intention to deceive. The act had the legal effect that made records to be changed at the Land Registry. The appellants were the beneficiaries of the forged signatures and actively participated in the land being transferred to the non-existent company. On that basis, they used the name Dater Enterprises Ltd to notify the complainant to vacate the land. In the premise, we find that there was no misdirection on the part of the trial court in finding them guilty and of the first appellate court in upholding the conviction.

32. On the second issue, the appellants were charged in count 3 for malicious damage to property. Section 339 (1) of the Penal Code provides thus:"Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanour, and is liable, if no other punishment is provided, to imprisonment for five years".On this charge the prosecution was required to prove:i.The right of possession of the property.ii.That damage was occasioned on the property.iii.The act of destruction was done wilfully and unlawfully.

33. The complainant’s testimony was that she was given the parcel of land by her father as a gift in the presence of her mother (now deceased) and her uncle Benjamin Kavindi in 1989. Following the good gesture by her parents, she organised a thanksgiving party where the 1st appellant who prepared the programme for the day was the master of ceremony. Her siblings and the Area Chief attended. She proceeded to develop the land. In his defence the 1st appellant stated that in 2008 his father told him that the complainant requested him to use the land in rainy seasons only. Subsequently their father transferred the land to the company. On 30th July, 2011 the company gave the complainant notice to vacate but she did not, because she had crops growing on the land. The 2nd appellant stated that after the company obtained the title, they allowed the complainant to continue farming the land for a period of one (1) year until 30th July 2011.

34. What is discernible from the record is that the complainant was put in possession of the subject land by her late father. Evidence of photocopies purporting to be from Standard Chartered Bank and National Bank respectively, were adduced in evidence. The photocopies were not certified and should not have been admissible in evidence. According to the Banking arrangement, the deceased applied for an overdraft of Kshs. 150,000/= in September 1992. The security to be provided was SB funds in the sum of Kshs. 50,000/= and RLA charge for the sum of Kshs. 100,000/=. On 9th January, 2004, he got another overdraft of Kshs. 150,000/= and the security given was fixed deposit in the sum of Kshs. 103,253. 35 and RLA charge for Kshs. 100,000/= over LR Nzambani /Maluma 838. The due date was 20th June, 2004. On 23rd July, 2004, he obtained a further overdraft of Kshs.150,000 that was to be due on the 24th April, 2005.

35. This evidence remained unchallenged. It established that although the father of the complainant put her in possession of the land, he continued to hold its title which he did not transfer into the complainant’s name. The complainant did not assert her ownership over the land until she was given notice to vacate. What is however apparent and undisputed is the fact of the complainant was licensed by her father to utilise the land. The licence was created orally and had no specific duration. She took possession of the land and the appellants admit that she used it to grow subsistence crops such as maize, cowpeas, pigeon peas and beans. The land also had natural vegetation and grazing pastures.

36. The appellants asserted that there was no destruction whatsoever. To prove the damage occasioned on the properties the prosecution adduced in evidence photographs taken by PW9 Cpl Mugwimi of Scenes of Crime. He was gazetted as no- 4562 on 7th July, 2003. He visited the scene on 18th September, 2011 and took photographs of the whole land and the structures thereon. He testified that he saw a damaged wooden fence that led to the compound, a damaged bathroom, toilet, granary and various mango trees and other trees that were destroyed. He processed photographs of the scene and produced them in evidence without any objection being raised by the appellants.

37. The Appellants contend that the witness did not provide a certificate of photographic print, or enlargement as required under Section 78 of the Evidence Act which provides thus:“(1)In criminal proceedings a certificate in the form in the First Schedule to this Act, given under the hand of an officer appointed by order of the Director of Public Prosecutions for the purpose, who shall have prepared a photographic print or an enlargement from exposed film submitted to him, shall be admissible, together with any photographic prints, photographic enlargements and any other annex referred to therein, and shall be evidence of all facts stated therein".This is in regard to admissibility of a certificate concerning photographic evidence.

38. In the case of the State V. Nelson Otieno Odira & Another (2014) eKLR, an objection was raised to production of photographs taken by the Investigating Officer and the provisions of Section 78 of the Evidence Act were called into question. Majanja J stated as follows:“The general principle of evidence is that the maker of the document is the person to prove the contents of the documents. Sections 64 and 65 of the Evidence Act provide that a document may be proved by either primary or secondary evidence. Section 66 of the Evidence Act provides for instances where secondary evidence may be given for example by way of proof of certified copies. A reading of section 78 shows that the exception in relation to photographic evidence is specific to the terms thereof purpose of. Section 78 of the Act is to enable the court admit photographic evidence without calling the maker if certain requirements of the Act have been met. The section is not authority or it does not provide authority for the Director of Public Prosecution to permit only certain officers to take photographs and produce them in evidence. Section 78 deals with production of photographic evidence in court and provides that photographs taken by officers may be produced without calling the officer taking the photographs if the conditions specified in the section are met. Hence the requirement of subsection (2) and (3) of the Act which tend to buttress the issue of authenticity of the photographs.5. In any other case, any officer who has taken a photograph may testify as to its veracity and contents as the same is primary evidence and subject to testing by cross-examination by the accused's counsel (emphasis added)."

39. In the present case PW9 produced in evidence as the maker, images of the damaged property without any objection from the appellants, and he was subjected to cross-examination. PW8, Titus Veka Kaluku, a Senior Superintendent with the Ministry of Agriculture based in Katulani, upon receiving the complaint, visited the scene on 19th September 2011. He assessed the damage done on the stated date and prepared the report thereafter. The report showed that various trees, plants, a cowshed, granary, toilet, bathroom and wooden fence had been destroyed. The appellants contended that the report was dated ten (10) months earlier than the alleged date of damage. However, we note that the witness testified in person and attributed the difference in the dates to an error. PW3, Corporal Stanley Kilemi, moved to the scene at 9 am on 19th September, 2011 and found people in the act of cutting the grafted mangoes, pawpaw trees and other fruits.

40. It is argued that the trial court stated that the evidence showed that the appellants were only standing and this would mean that there was no wrong doing on their part. Section 20 (1) and (3) of the Penal Code stipulates that:“(1)When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say-(a)every person who actually does the act or makes the omission which constitutes the offence;(d)any person who counsels or procures any other person to commit the offence, and in the last- mentioned case he may be charged either with committing the offence or procuring its commission.(3)Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with doing or making the act or omission.”

41. From the record, the evidence tendered by the prosecution witnesses did prove that damage was occasioned on the property. The implements that were used namely, mattocks, soil auger and machetes were produced in evidence. The appellants were the primary participants in the commission of the offence. The principal offenders who notified the complainant of their intention to destroy the property and procured other people to aid in the destruction. The act done was wilful and unlawful. We therefore have no reason to fault the findings of the two courts below.

42. In the end we are satisfied that the findings of the two courts below on both charges were arrived at based on the evidence adduced and the law applicable. Consequently, we find that there is no merit in this appeal and dismiss it in its entirety.It is so ordered.

DATED AND DELIVERED IN NAIROBI THIS 9TH DAY OF FEBRUARY, 2024. P. O. KIAGE....................................JUDGE OF APPEALALI-ARONI....................................JUDGE OF APPEALL. ACHODE...................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR