[2022] KEHC 15909 (KLR)

Mutuku v Republic (Criminal Appeal E005 of 2022) [2022] KEHC 15909 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15909 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E005 of 2022

GMA Dulu, J

December 1, 2022

Between

Benjamin Makumu Mutuku

Appellant

and

Republic

Respondent

(Being an appeal from the original judgment of Hon. J.O Magori in Makindu Senior Principal Magistrate’s Court PM Criminal Case No.679 of 2014 pronounced on 6th January 2022)

Judgment

1. The appellant was charged in the magistrate’s court with seven counts. He was however acquitted of four (4) counts, but convicted on count five (5), six (6) and seven (7).

2. Count 5 was for forgery contrary to section 349 of the Penal Code. The particulars of offence were that on 16th May 2008 at Mweini in Nguu Division Nzaui District within Makueni County, with intent to defraud jointly with Eunice Ndunge Mutuku and Joseph Munyao Maitha forged a land sale agreement purporting it to be a genuine document made between them and Nzioka Mbisi (deceased)

3. Count 6 was for uttering a false document with intent to defraud contrary to section 353 of the Penal Code. The particulars of offence were that on 16th May 2008 at Mweini in Nguu Division, Nzaui District within Makueni County, knowingly and fraudulently uttered a false document namely a land sale agreement to No.49803 Sgt. Martin Wanjala purporting it to be a genuine document.

4. Count 7 was for giving false information to a Public Officer contrary to section 129(a) of the Penal Code. The particulars of offence were that on 15th December 2012 at Emali CID office, Nzaui District within Makueni County informed No.49803 Sgt. Maartin Wanjala a person employed in the police service that he bought 30 acres of land from Nzoka Mbisi (deceased) and produced a land sale agreement, information which he knew to be false, intending thereby to cause the said No. 49803 Sg. Martin Wanjala to believe that the land sale agreement was genuine, which he ought not to have done if the true state of facts respecting which such information was given had been known to him.

5. On conviction of the above three (counts), he was sentenced to serve three (3) years imprisonment on each of the three counts, the sentences to run concurrently, thus a total sentence of 3 years imprisonment.

6. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal through counsel M/s Maanzo & Company advocates on the following grounds –1. That the trial magistrate erred in law and fact by convicting the appellant and by doing so ignored the preponderance of evidence available before him.

2. The trial magistrate erred in law and fact by convicting the appellant on the basis of theweakness of the defence case rather than proof of the offence by the prosecution beyond reasonable doubt.

3. The trial magistrate erred in law by misdirecting himself on the burden of proof and the said misdirection occasioned grave miscarriage of justice upon the appellant.

4. The trial magistrate erred in law and in fact by shifting the burden of proof from the prosecution to the accused person contrary to the common law principles.

5. The trial magistrate erred in law and in fact by without (sic) taking into account inconsistencies and contradictions of witnesses.

7. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by Maanzo & Company advocates for the appellant and those filed by the Director of Public Prosecutions. I note that the Director of Public Prosecutions conceded to the appeal.

8. In proving their case, the prosecution called 11 witnesses. In his defence, the appellant tendered sworn defence testimony and called two witnesses.

9. This being a first appeal, I am duty bound to evaluate the evidence on record afresh, and come to my own independent conclusions and inferences – see Okeno –vs- Republic (1972) E.A 32.

10. I have also to bear in mind the provisions of section 107 of the Evidence Act (Cap. 80), that he who alleges has the burden to prove the allegation. This being a criminal case, the prosecution was required to prove all the elements of each of the three offences beyond any reasonable doubt.

11. I have considered the evidence on record with regard to each of the three (3) charges on which the appellant was convicted.

12. With regard to the forgery charge (count 5), the evidence is that the appellant forged an agreement for purchase of land from Nzoka Mbisi (deceased). The evidence on record is that he drafted the agreement, and signed it infront of other people. No evidence was tendered alleging that he forged the signature of the seller, nor that the alleged seller (now deceased) was not the one who offered to sell the land.

13. In my view, the mere fact that the identity card number of the seller of the land was not the correct one, did not mean that there was a forgery committed by the appellant, as the said Nzoka Mbisi was the person responsible for providing his correct identity card particulars and not the appellant. In my view therefore the elements of forgery under section 349 of the Penal Code were not proved by the prosecution against the appellant beyond any reasonable doubt.

14. I now turn to the charge of uttering a false document with intent to defraud contrary to section 353 of the Penal Code. Again, the particulars of this charge were not proved by the prosecution. Firstly, it was not proved by the prosecution that the document was false. Secondly, the said document was submitted to Sgt Martin Wanjala not with intention to defraud him, but because the appellant was being investigated. The document was so to speak, called for by the police and so the appellant had no intention of defrauding anybody, but merely had an intention to exonerate himself from adverse allegation made against him.

15. With regard to the charge of giving false information to a person employed in the public service, again the information alleged to have been given by the appellant to Sgt Martin Wanjala was called for from the appellant by the police. It was not in any case proved by the prosecution, to be false. In my view also, a person under investigation by the police cannot be convicted of the offence if giving false information, even if it is established that the whole or part of what he said to them was false. Such false information can only weaken his defence to the allegation against him, but cannot be converted to a separate charge of giving false information to a person working in the public service.

16. The Director of Public Prosecutions was thus correct in conceding to the appeal, as the trial court appears to have shifted the burden of proof on the appellant, and made findings not based on evidence tendered by the prosecution, but on presuppositions, not supported by evidence on record.

17. I will thus allow the appeal, quash the conviction and set aside the sentence.

18. Consequently, I allow the appeal, quash the convictions, and set aside the sentences imposed. I order that the appellant be set at liberty unless otherwise lawfully held.

DELIVERED, SIGNED & DATED THIS 1STDAY OF DECEMBER 2022, IN OPEN COURT AT MAKUENI.GEORGE DULUJUDGE