[2022] KEHC 16474 (KLR)

Namayi v Republic (Criminal Appeal 33 of 2020) [2022] KEHC 16474 (KLR) (14 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16474 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal 33 of 2020

PJO Otieno, J

December 14, 2022

Between

Dominic Okubulu Namayi

Appellant

and

Republic

Respondent

(Being an appeal from the conviction and sentencing of Hon T A Odera (SPM) in Mumias SPM’s Court Criminal Case No 1655 of 2018 dated February 14, 2020)

Judgment

1. The Appellant was charged before the trial court with two offences namely:iConspiracy to defraud contrary to Section 317 of the Penal Code.iiForgery contrary to Section 350 of the Penal Code.

2. A trial ensued at which the prosecution called a total of five witnesses and the Appellant when put on his defence elected to give unsworn evidence. The summary of the prosecution’s case was that the Appellant did sell to the complainant a piece of land known as S Wanga/Lureko/265 at a price and consideration of Kshs 4,350 in the year 1976. The parcel was indeed transferred to the complainant who then mortgaged it to Barclays Bank to secure a loan of Kshs 12,000. The loan was paid to completion and a discharge executed in favour of the Complainant in 1982 but the same was never presented for registration.

3. In the year 2018, the complainant went to the Land Registry to have the discharged registered only to discover that the land had reverted back to the Appellant in the year 1997 and was subsequently subdivided in 2012 and the register closed while the Complainant still had the title thereof.

4. The complainant produced the agreement of sale, transfer title deed and documents to evidence charge to and discharge from the bank then called the Assistant County Commissioner Mumias to produce a report on parcel No 365 and the Land Registrar whose evidence was that the land was indeed transferred to the complainant then re-transferred back to the Appellant.

5. In his evidence, the Appellant denied ever dealing with the complainant and ever selling and transferring to him the land which he asserted is an ancestral land inherited from his father. He denied the signatures on the agreement and transfer and asserted that the same were forged. He added that the complainant had not fenced the land or planted trees to assert ownership and had not live there to know even the name of the village elder.

6. Having reviewed the evidence, and in a Judgment now impugned, the trial court in convicting the Appellant rendered herself as follows:-“On whether the Land Control Board Consent (Pexh 10) was forged, PW1 said he did not transfer the land back to accused and PW3 denied that it emanated from their office and that the No 55/10 which is indicated in the said consent is not in their register as the register Pexh 5 indicates it is for land South/Wanga/Lureko/3142 whose application was deferred.On whether accused used the document as genuine, PW1 and PW4 said that the land reverted back to accused and that he presented a mutation form which was used to effect the transfer. It is clear that the document was used as genuine.On whether accused had reason to believe that the said consent was forged, he knew so well that PW1 was not part of it and that it did not go through the right process of the Land Control Board and so he knew it was forged.On whether the consent was used by fraudulently or dishonestly, Accused presented the consent which facilitated the fraudulent transfer of the land of PW1 to himself knowing that he had already sold the land. It was thus fraudulently used.In the upshot I have no doubt that accused forged the said Land Control Board Consent – Pexh 10).Prosecution have adduced sufficient evidence to prove that accused conspired with others not before court to defraud complainant of his land parcel South/Wanga/Lureko/365 and he also forged consent to the Land Control Board to effect the transfer of that land back to his name.I find accused guilty of the offences of conspiracy to defraud contrary to Section 317 of the Penal Code and forgery contrary to Section 350 of the same Code. I proceed to convict the same under Section 215 Criminal Procedure Code (CPC).”

7. The Judgment was faulted by the Appellant on the ten (10) grounds of appeal. A reading of those grounds sums up that the charge was not proved to the requisite stands in that critical documents were not produced to show sale and transfer, for failure to connect him to the retransfer, failure to adequately analyse the evidence which was marred with contradiction and for imposing a harsh sentence upon the Appellant.

8. Being a first appeal, the court is duly bound to re-appraise and re-examine the entire record of evidence afresh and to come to own conclusions. In undertaking that obligation, the court finds that the trier of fact did not only consider and affirm the evidence by documents how the property got transferred to the Appellant before being subdivided and sold to third parties but also analysed into great depth the ingredients of the offences charged while relying on sound and binding decided case.

9. After my own analysis, it is determined the trial court cannot be faulted for believing the evidence of the Land Registrar that the transfer from the complainant to the Appellant was done using forged documents used as genuine while a charge remained registered. It is the trite law that an appellate court would only reverse the factual findings by a trial court where there is evidence of failure to consider the law and principles applicable or where the analysis of evidence is perfunctory and conclusions not supported by evidence on record or pervert such evidence. Keringo –vs- Republic [1982] KLR 213

10. It was equally the finding by the trial court that the beneficiary of that transfer was the Appellant who inferably benefited by transfer to third parties. The Appellant did not deny having benefited from the subsequent sales but insisted that he did not ever sell the land. To this court the evidence of the Appellant was not credible to controvert that by the prosecution. That the land was not in his name but he had it transferred called for a cogent reason and explanation how it was so transferred. None of such evidence was availed. Accordingly the finding that the Appellant conspired with others to defraud the Complainant and that forged documents were used to achieve the object of such conspiracy is beyond reproach.

11. The Court finds no error in the evaluation of the evidence and the application of the law to such evidence and therefore determines that the appeal lacks merits. It is dismissed.

Dated, signed and delivered in open court this 14th day of December 2022. PATRICK J O OTIENOJUDGEIn the presence of:The Appellant in personMs Chala for the RespondentCourt Assistant: Polycap Mukabwa