[2022] KEHC 11865 (KLR)

Muturi & another v Republic (Criminal Appeal E18 of 2020) [2022] KEHC 11865 (KLR) (Crim) (16 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11865 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E18 of 2020

JM Bwonwong'a, J

May 16, 2022

Between

Teresia Wairimu Muturi

1st Appellant

Margaret Wanjiru Kago

2nd Appellant

and

Republic

Respondent

(Being appeal from the judgement of the Hon. J. Gandani, CM, dated 01/10/2019 in the Chief Magistrates’ Court at Kibera in Criminal Case No. 4635 of 2014, Republic v 1. Kamau Kahwai 2. Teresia Wairimu Muturi 3. Margaret Wanjiru Kago)

Judgment

1. The appellants have appealed against their convictions and sentences of three years imprisonment in respect of the offence of obtaining goods by false pretences contrary to section 313 of the Penal Code (Cap 63) Laws of Kenya.

2. The appellants in their joint grounds of appeal have raised ten grounds of appeal in their petition to this court.

3. In ground 1 the appellants through their counsel Mr Migui Munga, have faulted the learned trial chief magistrate in law and fact in holding that the appellants made a false representation of facts yet there was nothing untrue about the agreement for the sale of the land.

4. In his submissions counsel for the appellants has submitted that the first accused in the lower court (Kamau Kahwai) died on September 3, 2016 before the case proceeded for hearing.

5. Counsel also submitted that the deceased Kamau Kahwai, was the registered owner of the suit land reference No Dagoretti/Kangemi/982. The deceased entered into a sale agreement with the complainant namely Martinus Mureithi Kimotho (Pw 1), with Pw 1 being the buyer. Counsel also further submitted that it was confirmed that the suit land existed and the title deed of the suit land was with the bank.

6. In support of his case counsel cited the case ofCarolyne Nabwire Wawire v Republic, Criminal Appeal No 132 of 2014, a case which is similar to the present appeals.

7. The evidence of the complainant (Pw 1) was that both appellants and a land broker, Francis Mutegi (Pw 2) approached him and offered to sell to him the suit land. A sale agreement was drawn by David Kamangu (Pw 4), who was the advocate. The sale agreement was witnessed by the spouses of the deceased and the complainant. According to the broker (Pw 2) the complainant was shown the suit land.

8. Pw 4 testified that the original title deed was in the custody of the bank; which had advanced a loan. Additionally, the advocate had prepared a transfer form which had been signed by the parties and a consent had been obtained from the land control board. The deceased and the advocate wrote to the bank to release the title deed to enable Pw 4 to complete the conveyance, but the bank did not respond to those letters.

9. Furthermore, Polycarp Magai (Pw 6) was the investigating police officer. He testified that the sale agreement was between the deceased and the complainant. Pw 6 only charged the appellants because the 1st appellant witnessed the sale agreement while the 2nd appellant had been guaranteed a loan by the deceased.

10. Upon being put on their defence, both appellants made unsworn statements and called no witnesses in their defence.

11. The 1st appellant testified that she was the wife of the 1st accused in the lower court. She further testified that her deceased husband was the owner of the suit land namely No Dagoretti/Kangemi/982 exhibit P exhibit 8. She also testified that she did not enter into a sale agreement with the complainant exhibit P exhibit 1.

12. The 2nd appellant testified that she never signed the sale agreement and that she did not offer to sell the land to the complainant.

13. This is a first appeal. As a first appeal court I have re-evaluated the entire evidence. I find that the land sale agreement in respect of the suit land reference No. Dagoretti/Kangemi/982, was between the first accused (now deceased) in the lower court and the complainant. The complainant confirmed the existence of the suit land as at the time the agreement for sale was drawn by David Kamangu (Pw 4). I therefore find that there was no false pretence about the existence of the suit land. I further find that although the two appellants actively participated in the sale of the suit land, they were not parties to the sale agreement.

14. I find that the false pretence was in relation to the suit land and not the money as contended by the prosecution counsel. This clear from the charge sheet which alleges that the deceased who was the first accused and the appellants obtained from the complainant shs 4,000,000/- by falsely pretending that they were in a position to sell to him (the complainant) plot number Dagoretti/Kangemi/982, a fact they knew was false. I also find that the two appellants did not in any pretend to sell a plot they did not own. The plot was the property of the deceased, Kamau Kahwi.

15. Furthermore, I find that this is a case in which the prosecution was abusing the court process; for the main issue between the complainant and the first accused (now deceased) was basically a matter of a contract for the sale of land, which ought to have been enforced in civil court. The entire transaction did not disclose the commission of any criminal offence.

16. I further find that this case is on all fours with the case of Joseph Wanyonyi Wafukho v Republic (2014) e-KLR in which the court (Gikonyo, J) observed that:“There was nothing false or untrue about the agreement for the sale of the land or the land itself. Therefore, it cannot be said, in the circumstances of this case, that the Appellant made a false representation of fact about the land. I am not persuaded at all by the argument by the learned state counsel that the Appellant did not have any authority to enter into the sale agreement with the complainant.”

17. In the premises, I find that the prosecution failed to prove their case beyond reasonable doubt with the result that the appeals of the appellants have succeeded.

18. I therefore find that it is not necessary to consider the remaining grounds of appeal, which are now moot. It is important to bear in mind that it is not appropriate for the court to consider moot or academic issues. See Attorney General v Ally Kleist Sykes (1957) EA 257

19. The convictions and sentences entered against them are hereby quashed.

20. The appellants are hereby ordered set free unless they are held on other lawful warrants.

21. I find that there were protracted arguments between the complainant and the 1st appellant in respect of the refund of the cash bail of the 1st accused, who died before the start of the hearing of the case; following the conviction and sentence of both appellants. I further note that the Teresia Wairimu Muturi had applied and obtained a grant of letters of administration intestate in respect of the estate of the deceased Kamau Kahwai from the Senior Resident Magistrate’s Court at Limuru in Succession Cause No 105 of 2017.

22. I find that once the death of the deceased was established, the court of the learned chief magistrate had no jurisdiction to entertain matters in relation to the estate of the deceased. These should have been left to the succession or probate court to hear and determine in accordance with the Law of Succession Act (Cap 160) Laws of Kenya.

23. In the premises, I find that the proceedings and resulting orders in relation to the protracted arguments between the complainant and the 1st appellant in respect of the refund of the cash bail of the 1st accused, were irregular within the meaning of section 362 of the Criminal Procedure Code. I hereby invoke the revisionary powers of this court pursuant to section 362 as read with section 364 of the Criminal Procedure Code(Cap 75) Laws of Kenya, and I therefore set aside the resulting orders, for being null and void.JUDGEMENT SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THROUGH VIDEO CONFERENCE ON THIS 16TH DAY OF MAY 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistant.Mr. Masinde holding brief for Mr. Mungai for the appellants.Ms Edna Ntabo for the Respondent.First Appellant – present in person2nd Appellant – present in person