[2022] KEHC 14650 (KLR)

Muthoni v Republic (Criminal Appeal E090 of 2021) [2022] KEHC 14650 (KLR) (2 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14650 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Appeal E090 of 2021

MM Kasango, J

November 2, 2022

Between

Joseph Kinyanjui Muthoni

Appellant

and

Republic

Respondent

(An appeal against the judgment of the Chief Magistrate’s Court at Thika (J.M. Nang’ea, CM) dated 18th August, 2021 in Criminal Case No. 2313 of 2019)

Judgment

1. Joseph Kinyanjui Muthoni (Joseph) was convicted before the Thika Chief Magistrate’s Court with two counts of forgery contrary to section 351 of the Penal Code, two counts of uttering a false document contrary to section 353 of the Penal Code and one count of the offence of obtaining registration of title of land contrary to section 320 of the Penal Code. On convicting Joseph, the trial court sentenced him to 5 years imprisonment on each count to run concurrently.

2. Joseph has presented the following grounds in support of his appeal against the trial court’s judgment: -1. That the learned trial magistrate erred in law and fact the appellant forged judicial documents contrary to section 351 of the Penal Code.2. That the learned trial magistrate erred in law and fact that the appellant uttered a false document contrary to section 353 of the Penal Code.3. That the learned trial magistrate erred in law and fact that the appellant obtained registration of the land in question fraudulently.4. That the learned trial magistrate erred in law and fact by holding that the appellant is convicted pursuant to section 215 of theCriminal Procedure Code.

3. The prosecution’s case was that the complainant, Paul Kinyoi Churu, was a shareholder of land buying company, Juja Farm. He held share certificate No 669. He was issued in 1999 with land title Ruiru East/Juja East/976, which represented his shareholding of that land buying company. In 2015, he received information that some people had been sighted on the subject land. On carrying out a search at land registry in Thika, he found that the subject land had been transferred to Joseph pursuant to Succession Cause Thika CM Court No 60 of 2013. He also ascertained that the transfer of the subject land was made to Joseph in the succession cause where Joseph was the sole beneficiary of the estate of the complainant. Prosecution adduced evidence of the land registrar who registered the transmission and transfer of the subject land into the name of Joseph. After the land registrar confirmed that Joseph was the beneficiary of the estate of the complainant, and having made the necessary entries in the register, a title of the subject land was issued in the name of Joseph. Prosecution produced evidence copy of the register/green card indicating Joseph was the registered owner of the subject land. The land registrar referred to gazette notice of May 17, 2013, No 6684 which gazetted the Succession Cause No 60 of 2013. In that gazette notice, the deceased was reflected as the complainant and the administrator of the estate was reflected as Joseph.

4. Prosecution further adduced evidence of principal printer of the government printers. This witness evidence was that the gazette notices presented to the land registry to effect registration/transmission of the subject land into Joseph’s name did not tally with the actual gazette notices printed by the government printer. In other words, that the gazette notice used in the transfer of the land into Joseph was fake and was not printed by government printers.

5. The investigating officer’s (IO’s) evidence was that after receiving complaint on the fraudulent transfer of the subject land by the complainant, he embarked on investigation. His investigation revealed that the succession cause number cited in the application for registration/transmission of the subject land into the name of Joseph belonged to different deceased person. The Thika chief magistrate’s court forwarded to the IO the confirmed grant of Succession Cause No 60 of 2013 which related to the estate of Nyambura Mwangi Maina alias Mwangi Maina. IO was able to retrieve from the lands office a copy of the national identity card of Joseph’s stamp duty payment slip of payment received from Joseph and he also retrieved from the land registrar Joseph’s KRA PIN certificate, which he stated was used to effect the registration/transmission of the subject land into Joseph’s name. The IO’s investigations concluded that Joseph presented to the lands registrar false grant of letters of administration and false certificate of confirmation of grant. He also confirmed that Joseph was registered owner of the subject land by transmission. The IO also stated that Joseph purported to be the son of the complainant whom he misrepresented had died.

6. Joseph, after the trial court found that he had a case to answer, offered to give an unsworn statement in his defence as follows:-'I deny any forgery as alleged. I did not also utter any false documents to the land registrar.'

7. The duty of this Court as the first appellate court has been restated often following the holding in of the case of Okeno vs Republic (1972) EA 32. This court’s duty is to subject the entire trial court’s evidence to exhaustive examination and therefore to arrive at its own decision on that evidence. In doing so, this court is required to weigh conflicting evidence and draw its own conclusion but must make allowance of the fact that it did not have the advantage of hearing and seeing the witnesses who testified during the trial.

8. Joseph’s main contention in this appeal is that the prosecution failed to meet the criminal standard of proof in respect of all the counts he faced at trial.

9. An appropriate starting point of any criminal trial is that the accused is presumed innocent. The burden to prove his guilt rests upon the prosecution. The prosecution must prove each and every element of the offence a person is charged beyond a reasonable doubt. The accused bears no burden to prove his/her innocence. If a reasonable doubt exists as to the guilt of an accused person on any element of the offence, he/she must be acquitted. Reasonable doubt means that which is based upon reason and common sense and that which is logically connected to the evidence or the absence of evidence. It is not based on sympathy or prejudice.

10. Joseph was convicted of two offences of forgery and two of uttering false documents amongst others. Forgery differs from uttering although the same document may be involved in each offence. Forgery is the making of the document; uttering is the use of the document.

11. On Count 1, Joseph is charged with the offence of forgery of judicial documents contrary to section 351 of the Penal Code. The particulars of that offence are:-'Joseph Kinyanjui Muthoni: on the March 21, 2013 at unknown place within the republic of Kenya with intent to defraud Paul Kinyoi Churu of his parcel of land No Ruiru East/juja East Block 2/976 forged a certain document namely Succession Cause No 60 of 2013 purporting it to be genuine signed and issued by chief magistrate Hon BA OWINO, a fact you know to be false.'

12. On count 2 he was charged with the offence of forgery of judicial document contrary to section 351 of the penal code. The particulars of that offence are:-'Joseph Kinyanjui Muthoni: on the October 18, 2013 at unknown place within the Republic of Kenya with intent to defraud Paul Kinyoi Churu of his parcel of land No Ruiru East/juja East Block 2/976 forged a certain document namely confirmation of grant purporting it to be genuine confirmation of grant signed and issued by chief magistrate Hon BA OWINO, chief magistrate Thika, a fact you know to be false.'

13. Section 345 of the Penal Code defines forgery as follows:-'Forgery is the making of a false document with intent to defraud or to deceive.'Section 351 of the Penal Code further provides:-'Any person who forges any judicial or official document is liable to imprisonment for seven years.'

14. Prosecution adduced evidence which proved that a grant and confirmed grant were forged to deceive one that the same belonged to the Succession Cause No 60 of 2013. Justice John M Mativo, (as he then was) in the case Caroline Wanjiku Ngugi vs Republic [2015] eKLRexpounded on what is forgery and stated:-'Forgery is the false making or material alteration of a writing, where the writing has the apparent ability to defraud and is of apparent legal efficacy with the intent to defraud. Thus, the elements of forgery are:-i.False making of- the person must have taken paper and ink and created a false document from scratch. Forgery is limited to documents. 'Writing' includes anything handwritten, type written, computer generated, printed or engraved.ii.Material alteration- the person must have taken a genuine document and changed it in some significant way. It is intended to cover situations involving false signatures or improperly filing in blanks on a form or altering the genuine content of a document.iii.Ability to defraud- the document or writing has to look genuine enough to qualify as having ability to mislead others to think its genuine.iv.Legal efficacy- the document or writing has to have some legal significance.v.Intent to defraud- the specific state of mind for forgery does not require intent to steal, but only intent to fool people. The person must have intended that other people regard something false as genuine. A forgery may be committed either by handwriting, through the use of type writer or a computer.'

15. The above exposition is useful to consider. The prosecution was required to prove Joseph took paper and ink and thereby created the false document, that is, the succession cause documentations. There was no direct or circumstantial evidence which pointed to Joseph creating the false document as enumerated in court 1 and 2. As correctly stated by the learned counsel for Joseph, Prof Kiama Wangai, prosecution failed to produce forensic evidence connecting Joseph with the forgery, that is, the making of the false judiciary documents. The definition section 345 of the Penal Code makes it clear that prosecution should prove that the accused made a false document. In my humble view, the trial court erred to make a finding that Joseph had forged the record of Succession Cause No 60 of 2013. There is no evidence to that effect. It follows that the conviction on counts 1 and 2 shall be quashed.

16. On count 3 and 4 Joseph was charged with the offence of uttering false documents contrary to section 353 of the Penal Code. The particulars of the offence under those two counts are that:-'Count three:Joseph Kinyua Muthoni: On the October 13, 2014 at Thika lands registry within Kiambu County knowingly and fraudulently uttered a forged document namely, Succession Cause No 60 of 2013 to Mr Muriuki land registrar purporting it to be genuine succession cause signed and issued by chief magistrate, a fact you knew to be false.Count fourJoseph Kinyanjui Muthoni: On the October 13, 2014 at Thika lands registry within Kiambu County, knowingly and fraudulently uttered a forged document namely, certificate of confirmation of grant to Mr Muriuki land registrar purporting it to be genuine confirmation of grant signed and issued by Hon BA Owino chief magistrate thika, a fact you know to be false.'

17. Section 353 of the Penal Code provides:-'A person who knowingly and fraudulently utters a false document is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question.'

18. Uttering as previously stated is the use of the false document. When a person uses a document knowing it is a false document that person is guilty of the offence of uttering. A conviction for uttering can be founded on document forged, even innocently forged, if the person knowing it was forged used it to cause someone to use as if it were genuine: See persuasive case of R vs Dunlop (1857) 15 UCQ 118. Uttering is the act of knowingly passing on a false document or using it.

19. In my view, there is clear and cogent evidence that Joseph uttered to the land registrar false documents of the succession cause with the intent that the land registrar would think those documents were genuine and with the intent that he would act upon them.

20. The land registrar was presented with falsified documents, the grant and confirmed grant purportedly of the estate of the complainant who was not dead but was very much alive. The grant was titled Succession Cause No 60 of 2013 which succession cause in Thika chief magistrate court related to an entirely different deceased person. The land registrar was presented with falsified gazettee notice which purported to gazette the falsified succession cause and which stated Joseph was the administrator. Further, the land registrar was presented with KRA receipt issued in the name of Joseph of payment of stamp duty for the registration/transmission of the subject property into Joseph’s name. Joseph’s KRA PIN certificate and his national identity card were all presented to the land registrar.

21. The succession cause documents which include the gazette notices were false as set out in section 353 of the Penal Code. Joseph in presenting these false documents to the land registrar knew that they were false. He dealt with those false documents and caused the land registrar to further act on them to register/transmit the subject land to him. Joseph intended the land registrar to act on those documents as though they were genuine.

22. There is a trail leading and connecting the uttering of those documents by Joseph. Joseph provided his national identity card, KRA PIN certificate among others. This clearly proves that Joseph presented to the land registrar those falsified documents and consequently the land registrar transferred the land into Joseph’s name. Prosecution met the criminal standard of proof on the two counts of uttering false documents. Accordingly, the trial court’s conviction on counts 3 and 4 is upheld.

23. On count 5 Joseph was charged with the offence of obtaining registration of title of land contrary to section 320 of the Penal Code. The particulars of that offence are:-'Joseph Kinyanjui: On the October 13, 2014 at Thika lands registered within Kiambu County, willfully and unlawfully procured yourself registration of land parcel No Ruiru East/Juja East Block 2/976A measuring approximately 1. 300 Hectares the property of Paul Kinyoi Churu valued at Kshs 45,000,000/=, a fact you knew to be false.'

24. Prosecution produced the register, green card which shows that the subject land was transferred to Joseph on October 13, 2014. section 320 of the Penal Code provides:-'Any person who willfully procures or attempts to procure for himself or any other person any registration licence or certificate under any law by any false pretenses is guilty of a misdemeanor and is liable to imprisonment for one year.'

25. As stated before, the prosecution proved on required standard that the documents presented by Joseph to the land registrar were false. Joseph in presenting those false documents used false presences to procure registration of the subject land. Again, as stated before registration in his name of the subject land was proved by prosecution. I do therefore uphold the trial court’s conviction on this count also.

26. On sentence, I do uphold the trial court’s sentence of 5 years imprisonment on counts 3 and 4. However, in respect to count 5, section 320 provides that conviction on that section, one is liable to be sentenced to one year. Accordingly, I shall interfere with the trial court’s sentence on that count.

Disposition 27. In the end, the judgment of this court is as follows:-a.The conviction of Joseph Kinyanjui Muthoni on count one and count two are hereby quashed and the sentence on those counts are hereby set aside.b.The conviction of Joseph Kinyanjui Muthoni on count three, count four and count five are hereby upheld.c.The sentence on count three and count four are upheld as ordered by the trial court.d.The sentence on count five is hereby set aside and is substituted with sentence of 6 months imprisonment.e.The sentence of the trial court on count three and four and the sentence on count five shall run concurrently from the date of sentencing by the trial court.

28. Orders accordingly.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 2ND DAY OF NOVEMBER, 2022. MARY KASANGOJUDGEIn the presence of:-Coram:Court Assistant:- Mourice/JuliaFor Appellant :- Prof Wangai:- No appearanceFor Respondent (DPP) :- Mr KasyokaCourtJudgment delivered virtually,MARY KASANGOJUDGE