[2022] KEHC 10095 (KLR)

Mwiti alias Mugambi & 3 others v Republic (Criminal Appeal E005, E008, E010 & E012 of 2022 (Consolidated)) [2022] KEHC 10095 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10095 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E005, E008, E010 & E012 of 2022 (Consolidated)

TW Cherere, J

July 7, 2022

Between

Naaman Mwiti alias Mugambi

1st Appellant

Julius Marangu Rutere alias Father

2nd Appellant

Regina Mumbi Syengo alias Evangeline Gature

3rd Appellant

Rose Kinya alias Secretary

4th Appellant

and

Republic

Respondent

(Being an appeal against judgment, conviction and sentence in Nkubu Principal Magistrate’s Court Criminal Number 571 of 2019 by Hon. J.Irura (SRM) on 06. 01. 2022)

Judgment

1. Appellants were charged with the following counts:

Count i against all appellantsMaking a false document contrary to Section 347 (a) as read with Section 349 of the Penal Code the particulars of which are that on diverse dates between 01. 05,2019 and 07. 05. 2019 on unknown date at unknown place within the Republic of Kenya Appellants jointly with others not before court made a false document namely a title deed for LR. Abothuguchi/Kaongo/1714 in the names of Evangeline Gature purporting it to be a genuine title deed issued by the Ministry of Lands

Count ii against 3rd appellantUttering a false document contrary to Section 353 of the Penal Code the particulars of which are that on 08. 05. 2019 at Nkubu Township in Imenti South Sub County within Meru County with intent to deceive, knowing and fraudulently uttered a false document namely a title deed for LR. Abothuguchi/Kaongo/1714 in the names of Evangeline Gature to Joan Wairimu Felix which was made without lawful authority

Count iii against all appellantsMaking a false document contrary to Section 347 (a) as read with Section 349 of the Penal Code the particulars of which are that on diverse dates between 01. 05. 2019 and 07. 05. 2019 at on unknown date at unknown place within the Republic of Kenya jointly with others not before court made a false document namely a pin certificate number AxxxxD in the names of Evangeline Gature purporting it to be a genuine pin certificate issued by Kenya Revenue Authority

Count vi against 3rd appellantUttering a false document contrary to Section 353 of the Penal Code the particulars of which are that on 08. 05. 2019 at Nkubu Township in Imenti South Sub County within Meru County with intent to deceive, knowing and fraudulently uttered a false document namely a title deed for LR. Abothuguchi/Kaongo/1714 in the names of Evangeline Gature to Joan Wairimu Felix which was made without lawful authority

Count v against all appellantsMaking a false document contrary to Section 347 (a) as read with Section 349 of the Penal Code the particulars of which are that on diverse dates between 01. 05. 2019 and 07. 05. 2019 at on unknown date at unknown place within the Republic of Kenya jointly with others not before court made a false document namely National ID Card No. xxxx in the names of Evangeline Gature purporting it to be a genuine ID Card issued by Registrar of Persons

Count vi against 3rd appellantUttering a false document contrary to Section 353 of the Penal Code the particulars of which are that on 08. 05. 2019 at Nkubu Township in Imenti South Sub County within Meru County with intent to deceive, knowing and fraudulently uttered a false document namely National ID Card in the names of Evangeline Gature to Joan Wairimu Felix which was made without lawful authority

Count vii against all appellantsCount VI: Conspiracy to defraud contrary to Section 317 of the Penal Code the particulars of which are that on 08. 05. 2019 at Nkubu Township in Imenti South Sub County within Meru County with intent to defraud conspired to obtain the sum of Kshs. 450,000/- from Joan Wairimu Felix by pretending to be owners of LR. Abothuguchi/Kaongo/1714 in the names of Evangeline Gature

Count vii aginst 3rd appellantPersonation contrary to Section 382 of the Penal Code the particulars of which are that that on 08. 05. 2019 at Nkubu Township in Imenti South Sub County within Meru County with intent to defraud presented yourself to be Evangeline Gature

Count ix against all appellantsObtaining by false pretences contrary to Section 312 as read with Section 313 of the Penal Code the particulars of which are that on diverse dates between 01. 05. 2019 and 07. 05. 2019 with intend to defraud obtained from Joan Wairimu Kshs. 393,750/- by purporting to sell diamond a fact you knew to be false

Count x against all appellantsCount VI: Conspiracy to defraud contrary to Section 317 of the Penal Code the particulars of which are that on 08. 05. 2019 at Nkubu Township in Imenti South Sub County within Meru County with intent to defraud conspired to obtain the sum of Kshs. 393,750/- from Joan Wairimu Felix by pretending to sell diamond which you knew to be fake

The prosecution’s case 2. PW1 Joan Wairimu Felix the complainant recalled that in the month of May, 2019, 3rd Appellant who introduced herself as Evangeline Gature and who claimed to be in need of money for her sick son gave her a title deed for LR. Abothuguchi/Kaongo/1714, a pin certificate number AxxxxD and National ID Card No. xxxx all in the names of Evangeline Gature and asked her to get a buyer for Kshs. 500,000/- or buy it herself at Kshs. 450,000/-. That on another date, she sent the 1st Appellant who introduced himself as Mugambi to show complainant the land in issue. Complainant stated she gave 3rd Appellant various sums in instalments but the sale doesn’t seem to have gone through for it metamorphosed into a deal for sale of diamond between 1st Appellant and one Father Abraham for which she also paid various sums of money but the diamond given to her turned out to be fake.

3. PW2 Evangeline Gatura stated that she was the registered owner of LR. No. Abothuguchi/Kaongo/1417. She denied that LR. NO. Abothuguchi/Kaongo/1714 was hers and also presented her original pin certificate No. xxxx.

4. PW4 Magdalene Gikunda stated that she was a relative of one M’Laiboni M’Kobia (deceased) the registered owner of LR. NO. Abothuguchi/Kaongo/1714 and denied that it had been offered for sale.

5. PW3 CPL Jane Nyambura investigated this case and found that a copy of title deed for LR. Abothuguchi/Kaongo/1714, a pin certificate number AxxxxD and National ID Card No. xxxx all in the names of Evangeline Gature given to complainant were false. She stated that she interrogated complainant’s Mpesa statement and found that she had been defrauded Kshs. 393. 750/-. According to her, she found the evidence by complainant implicated 1st and 3rd Appellants whom she caused to be charged. In cross-examination, the witness confirmed that 1st Appellant was implicated by 3rd Appellant and that complainant’s Mpesa statement disclosed that no money was sent to the 1st Appellant.

6. 2nd Appellant and 3rd Appellant whom complainant identified as Father Abraham were arrested by PW5 CPL Evans Nzomo and they were jointly charged with the 1st and 3rd Appellants after they were identified by Complainant as having been part of the group of people that defrauded her.

Defence case 7. In his sworn defence, 1st Appellant denied the offences. He told court that she owned a taxi and that she had carries complainant, one Muriithi and 3rd Appellant to the land 3rd Appellant was allegedly selling to complainant but denied that he was working in cahoots with 3rd Appellant. He conceded that he introduced 2nd Appellant who was his taxi customer to complainant but was not part of what happened between them.

8. In her sworn defence, 2nd Appellant stated that he was framed by PW5 after she rejected his advances for a love affair with her.

9. In her sworn defence, 3rd Appellant stated she was tricked and asked for forgiveness. She conceded receiving Kshs. 20,000/- which she said was to pay bills for her sick son. She denied introducing herself as Evangeline Gatura or uttering a title deed for LR. Abothuguchi/Kaongo/1714, a pin certificate number AxxxxD and National ID Card No. xxxx all in the names of Evangeline Gature to complainant.

10. In his sworn defence, 4th Appellant denied any involvement with the complainant. He denied that he was Ibrahim Mwenda the owner of phone number 0722xxxxxx to whom complainant sent money.

11. After the conclusion of the trial, Appellants were found guilty of all counts in respect of which each was charged and were convicted on 06th January, 2022.

The Appeal 12. The conviction and sentences provoked this appeal in which Appellant mainly contends that the prosecution case was not proved.

Analysis and Determination 13. On first appeal from a conviction by a judge or magistrate, the appellant is entitled to have the appellate court's own consideration and view of the evidence as a whole and its own decision thereon. The court has a duty to rehear the case and reconsider the material before the judge or magistrate with such materials as it may have decided to admit. (See Kariuki Karanja vs Republic [1986] KLR 190).

14. I have considered the appeal in the light of the evidence on record, the grounds of appeal and submissions by each Appellant and by the State and I propose to address the appeals separately as follows:

1st Appellant 15. 1st Appellant stated that he met 2nd Appellant in the course of his work as a taxi driver and he stated that he was a catholic priest and was undertaking some construction in Isiolo and was looking for steel doors and windows. He stated that he introduced 2nd Appellant to complainant who had informed him she owned a wielding shop but did not know what went on between them. The complainant’s Mpesa statement reveals that 1st Appellant did not receive any money from complainant. His evidence that 2nd Appellant introduced himself to complainant as a catholic priest in need of wielding works was confirmed by complainant. 1st Appellant’s evidence that he was a taxi driver was confirmed by the 3rd Appellant. From the totality of the evidence on record, 1st Appellant’s defence that he met 2nd Appellant and 3rd Appellant in the course of his duty as a taxi driver and that all he did was introduce 2nd Appellant to complainant and take one Muriithi and complainant to the land that complainant was allegedly buying from 3rd Appellant is reasonable and ought to have been accepted and he ought to have been acquitted of all charges.

2nd Appellant 16. Complainant’s evidence that 2nd Appellant was introduced to her by 1st Appellant’s was conceded by the 1st Appellant. Complainant told court that paid some money by Mpesa to phone number 0798xxxxxx in the name of Abraham Mwenda Mwitari that was given to her by 2nd Appellant but the diamond turned out to be false.

17. 2nd Appellant stated that his name was Julius Marangu Rutere and denied receiving money from complainant or knowing Abraham Mwenda Mwitari to whom complainant sent money.

18. The evidence on record and especially the complainant’s Mpesa statement confirms that 2nd Appellant did not receive any money from complainant. Complainant’s evidence that it was the 2nd Appellant that gave her phone number 0798669476 in the name of Abraham Mwenda Mwitari to which she sent money was not corroborated and 2nd Appellant ought to have been given the benefit of doubt and acquitted of all the charges.

3rd Appellant 19. 3rd Appellant admitted the charges against her. There is no evidence that 3rd Appellant conspired with any other person to obtain money from complainant and I therefore find that counts 6 and 10 were not proved and she ought to have been acquitted of the same.

4th Appellant 20. 4th Appellant neither offered to sell land or diamond to complainant nor received any money from her. I therefore find that the prosecution case against her was not proved and she ought to have been acquitted of all charges.

21. Concerning sentence, the Court of Appeal in Bernard Kimani Gacheru V Republic [2002] eKLR stated as follows:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with the sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist. (See also Wanjema v. Republic [1971] E.A.493. ”

22. The penal code provides that a person convicted of obtaining by false pretences is liable to imprisonment for three years. It also provides that a person found guilty of making a false document, uttering a false document and personation is liable to seven years in each.

23. The Kshs. 100,000/- fine in default of which Appellant would serve 1 year in each count is reasonable and I see no reason to interfere with it.

24. In the end, it is hereby ordered:1)The convictions against Naaman Mwiti alias Mugambi, Julius Marangu Rutere alias Father and Rose Kinya alias Secretary are quashed and the sentences imposed thereof set aside and substituted with an order acquitting each one of them of all the charges2)Naaman Mwiti alias Mugambi, Julius Marangu Rutere alias Father and Rose Kinya alias Secretary shall be set at liberty unless otherwise lawfully held3)The conviction against the Regina Mumbi Syengo alias Evangeline Gature is upheld but in default of the fine of Kshs. 50,000/-, Regina Mumbi Syengo alias Evangeline Gature shall be liable to serve 6 months in each of counts 1, 2, 3, 4, 5, 7, 8 and 9.

DELIVERED AT MERU THIS 7TH DAY OF JULY 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Kinoti1st Appellant - Present in person2nd Appellant - Present in person3rd Appellant - Present in person4th Appellant - Present in personFor State - Ms. Mwaniki (PPC)