[2005] KEHC 1371 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL 657 OF 2000

(From original conviction(s) and Sentence(s) in Criminal case No. 2605 of 1997

of theResident Magistrate’s Court at Nairobi (J. Wakahora – R.M.)

NANCY MUMBI MARIMBI............................APPELLANT

VERSUS

REPUBLIC................................................RESPONDENT

J U D G M E N T

The Appellant NANCY MUMBI MARIMBIwas convicted in one of two counts of OBTAINING MONEY BY FALSE PRETENCEScontrary to Section 313 of the Penal Code.

In respect of count I, it was alleged that on 31. 3.95 at Gill House in Nairobi, the Appellant with others obtained Kshs.50,000/- from JACQUELINE NJERI KABARI. In respect of count II, it was further alleged that on 6th April 1995 at Jinja House along Lagos Road in Nairobi the Appellant with others obtained Kshs.52,000/- fromDISHON OSOLE.

After finding the Appellant guilty in respect of count I, the learned trial magistrate sentenced the Appellant to imprisonment for a period of 8 months. She entered an acquittal in respect of the second count. Being dissatisfied with the conviction and sentence, the Appellant lodged the appeal.

In brief the facts of the case were that the Complainant, PW1 was looking for a house to rent when she came across an advertisement in one of the local dailies. A house was being advertised for Majiwa Estate in Nairobi in the Standard Newspaper of 30/3/95. She rang the provided telephone number and spoke to a person who identified himself as Mwangi. Mwangi said he was the owner of the house and he also gave him a description of its location. She proceeded to Majiwa Estate and saw the house No. 152. The complainant then went to the office of Kinyanjui Njau Advocates the next day to meet Mwangi’s wife as agreed on phone. The Complainant met the Appellant in the said office. The Appellant was the secretary to an advocate, one NJAU, PW6 who was not in at the time. After 15 minutes the 1st accused in the case entered, greeted the Appellant, who was the 3rd accused in the trial, before proceeding into an inner office. The Appellant followed the 1st accused and learnt that she was the wife of the person, MWANGI, who she had spoken to on phone. It was agreed that the Complainant pays one months rent in cash before a lease was signed.

The next day, the Complainant accompanied by her witness, PW3 in the case, proceeded to Mr. Njau’s office. They met the Appellant, the 1st accused and a man. The 1st accused introduced the man as her husband and the man the Complainant had spoken to on phone. The Complainant identified him in court as the 2nd Accused in the case. The four of them signed a lease which the 1st accused produced. The Complainant signed as tenant and PW3 as her witness. The 1st and 2nd Accused also signed as landlord. PW1 paid Kshs.30,000/-. It was agreed that the lease agreement would be left with the Appellant so that she could ask Mr. Njau to sign it when he reported to work. A fee of Kshs.4,000/- was left with the Appellant for the purpose. The very next day the Complainant could not get to the house she had ‘rented’. On going there, she learnt that it was a company house. On calling the telephone numbers she had used to talk to the 2nd accused. She discovered that they were telephone booths. On going to the advocate’s office, she found the Appellant who told her that she had released the lease to the 1st accused to make copies. The 1st accused never returned the lease. The Complainant’s evidence identified the 1st accused in Court where she had gone for a different case. She learnt that the names she had used to sign the lease were different and that the 1st accused had two identification cards with different names. The Appellant in her defence before the trial court stated that her role was merely that of secretary to her boss, MR. NJAU, PW6. That she took Kshs.4,000/- and the lease agreement from the 1st accused for PW6 to sign. That however, the 1st accused had returned for the lease agreement saying she needed to make copies. She did not see 1st accused again. She also said that 1st accused was a client to the advocate on a different matter. Police officer investigating the case and the Complainant admitted being shown the 1st accused’s file in PW8’s office. It however bore the name Dorothy yet 1st accused had said she was Theresta. Both names were found on two identification cards later recovered from the 1st Appellant.

MR. KINYANJUI, learned counsel for the Appellant stated that 11 grounds of appeal had been filed in the Petition of Appeal but that only four grounds, one, two, three and eleven were being argued. MR. KINYANJUIargued that the prosecution did not prove the two issues it needed to prove against the Appellant which were;

1. That the Appellant obtained Kshs.30,000/- from PW1.

2. That the Appellant was pretending that she could lease house No. 152 Majiwa Estate to the Complainant.

MR. KINYANJUIalso submitted that the Court framed one issue to determine as against the Appellant which was whether the Appellant had knowledge of what the 1st accused was doing and whether the Appellant acted in collusion with the 1st accused. That the Court also found that the circumstantial evidence against the Appellant proved that the Appellant was neither incompetent nor ignorant in terms of her role in MR. NJAU’s (PW6) office having worked there for 2 years. That therefore, the learned trial magistrate concluded that the Appellant knew what was happening between the Complainant ad the 1st accused and was therefore guilty of the offence. That the conclusion was arrived at on the basis of one, Appellant’s failure to issue a receipt; and two, the evidence of PW3, the investigating officer who said that the Kshs.4,000/- left with the Appellant by the 1st accused as advocates fees for the signing of the lease was spent by the Appellant. That the said finding was erreroneous since the truth was that PW6MR. NJAU the advocate surrendered same money to the police the next day on receiving it from the Appellant.

MR. MAKURA learned counsel for the State opposed the Appeal and supported both the conviction and the sentence. It was MR. MAKURA’s submission that the Appellant facilitated the offence when the Complainant paid Kshs.30,000/- to the 1st accused in her presence. He submitted that the State relied onSection 20of thePenal Code. Section 20 of the Penal Code deals with principal offenders. MR. MAKURA did not categorize the exact sub-section the State was relying. He however submitted that the Appellant’s role according to PW3, the investigating officer, was that she arrayed the Complainant’s and PW2’s fears that they could be conned by the 1st accused. That in the circumstances the Appellant participated in the offence. MR. MAKURA also submitted that the fact the Appellant later released the signed lease agreement to the 1st accused after the Complainant had left the office confirmed she had a role in the said offence.

I have re-evaluated the entire evidence adduced before the trial Court as is expected of a first appellate court. The charge against the Appellant was that she obtained some money from the Complainant, together with others, on false pretences. The alleged false pretence was that the Appellant and the others, who were her co-accused before the lower court, were in a position to lease a house at Majiwa Estate, house No. 152, to the Complainant.

It was the duty of the prosecution to prove that the Appellant made the false pretence to the Complainant whether alone or with her co-accused as alleged in the charge. The Complainant’s evidence was very clear that the person who introduced her to the house was the 2nd accused in the case and he did so over the phone. After the 2nd accused gave her directions to the house, the Complainant proceeded to the place and saw it under repair. The Complainant thereafter met the 1st and 2nd accused in PW6’s office where the Appellant was working as a Secretary. From the Complainant’s evidence, the Appellant did not make any representation to her concerning the house in question on the two days that she visited the said office. The representations were clearly made to the Complainant by the 1st and the 2nd accused at different times before the Complainant signed the lease. The prosecution failed to prove the very first ingredient of the offence of OBTAINING BY FALSE PRETENCESthat the Appellant made any representation to the Complainant.

The prosecution had a further duty to prove that is that the representation made to the Complainant was false and that it acted on the Complainant’s mind inducing her to part with the Kshs.30,000/-, to her detriment. No doubt there was a verbal representation made to the Complainant but by the 1st and 2nd accused. The Complainant believed that representation and parted with her money. The representation made by them has been proved by the prosecution which is that the 1st and 2nd accused owned Majiwa Estate house No. 152 and that they were in a position to lease it to the Complainant. The representation was also proved to be false. It was also proved that the Complainant believed it and acted on it by both signing the lease and parting with the Kshs.30,000/-. The issue which arises is whether the prosecution has proved that the Appellant was a party and acted in concert with the two co-accused. Under Section 312 of the Penal Code a false pretence is defined as;

“312-Any representation, made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false or does not believe to be true, is a false pretence.”

Since it is clear that the Appellant did not make any representation by words or writing, could she have made any by conduct? MR. MAKURA in his submission seemed to suggest that there was a representation made by the Appellant by her conduct. He specifies the conduct as the fact that when the transactions of the payment were made, the Appellant was present. He also submitted that the fact the Appellant was given Kshs.4,000/- out of the money paid by the Complainant to 1st accused, which she retained, also formed part of representation by conduct.

The conduct contemplated underSection 312 of thePenal Code is of a matter of fact whether past or present which fact is in fact false and which the person making it either knows is false or does not believe to be true. Merely being present when money changed hands is not a representation by conduct as contemplated under Section 312of the Penal Code. Neither does the fact that some money was given to the Appellant proof of representation by conduct in this case because the purpose of the money given to her was fees for services to be rendered by another. The payment was not meant for her, she was merely a conduit of the money to another.

Section 313of the Penal Codesuggests that a person can be guilty of this offence if he induces any other person to deliver to any person anything capable of being stolen. To fall within the ambit of this provision the prosecution must prove that the Appellant induced the Complainant to pay the money to the 1st accused. The Complainant and her witness, PW2, were very clear that the payment made to the 1st accused by the Complainant was made after discussions held between the Complainant and the 1st and 2nd accused. The Appellant was never there. It is true the Complainant was directed to PW6’s office where the Appellant worked. However it was the 2nd accused who did so not the Appellant. The only place the Appellant seemed to have come in is her failure to stop the transactions from taking place in PW6’s premises and accepting payment for work not done. There was no evidence adduced to show that the Appellant had prior knowledge of that arrangement. What appears apparent is that she was getting work for her boss, which kind of work PW6 could do. The Appellant’s role in that office was not to chase away potential clients but to welcome them. The evidence adduced against her does not show that she acted contrary to what was expected of her. Except of course the fact that she accepted payment on behalf of PW6 for work not done. That alone does not in my considered view prove that she was a principal offender in this offence In any event, by the time the Kshs.4,000/- was paid to her, the false representations had already been made to the Complainant. The payment of Kshs.4,000/- was not part of the lease transaction between the Complainant and the 1st and 2nd accused. See NYAMBANE vs. REPUBLIC 1986 KLR 248, SILUMU & ANOTHER vs. REPUBLIC 1986 KLR 529.

I find that the evidence adduced herein did not prove the charge against the Appellant. I also find that the learned trial magistrate misdirected herself as to the issues to be determined in relation to the Appellant’s role in this offence.

The conviction entered herein was unsafe and based on a serious misdirection.

Consequently I allow this appeal, quash the conviction and set aside the sentence.

Dated at Nairobi this 17th day of June 2005.

LESIIT, J.

JUDGE