[2022] KEHC 14194 (KLR)

Nyaga v Republic (Criminal Appeal E039 of 2022) [2022] KEHC 14194 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14194 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E039 of 2022

LM Njuguna, J

October 19, 2022

Between

David Kariuki Nyaga

Appellant

and

Republic

Respondent

(An appeal against the sentence and conviction by Hon J Gichimu - SPM in Runyenjes SPM Sexual Offences Case no E423 of 2021 delivered on May 25, 2022)

Judgment

1. The appellant herein was charged with the offence of obtaining money by false pretences contrary to section 313 of the Penal Code. The particulars of the offence were that on May 17, 2021 at 1400 hrs at Kianjuki village within Embu County with intent to defraud obtained from Phillip Ireri Mugo cash of kshs 42,000/= and later received kshs 8,000/= from him through m-pesa by falsely pretending that he will sell to him trees for timber.

2. The matter proceeded for full trial and wherein the appellant was convicted of the said offence and sentenced to pay a fine of kshs 50,000/= in default to serve six months imprisonment.

3. Aggrieved by the conviction and sentence, he filed the instant appeal vide a petition of appeal dated June 7, 2022 and wherein he raises five grounds of appeal as follows:i.That the learned magistrate erred in law and fact by convicting the appellant without taking into account that the evidence adduced by the prosecution witnesses did not support the charges the appellant was charged with.ii.That the learned magistrate erred in law and in fact by convicting the appellant on insufficient prosecution evidence.iii.That the learned magistrate erred in law and in fact by convicting the appellant when the prosecution had not proved their case beyond reasonable doubt as the prosecution’s case casts a lot of doubts which ought to have been resolved in favour of the appellant.iv.That the learned magistrate erred in law and in fact by disregarding the appellant’s defence that he did not commit the alleged offence and that he was very innocent.v.That the learned magistrate erred in law and in fact by sentencing the appellant to six months imprisonment with an option of fine of kes 50,000/= which sentence was harsh and excessive considering the fact that the appellant is a first offender.

4. Reasons wherefore, the appellant urged this court to allow the appeal herein, quash the conviction and thereafter set aside the said sentence.

5. The appeal was canvassed by way of written submissions and wherein the appellant reiterated the fact that the evidence by the prosecution was not sufficient to warrant a conviction, in that, the prosecution failed to prove that the appellant had obtained something capable of being stolen. That the prosecution failed to prove that the appellant had obtained money in the sum of kshs 50,000/= from PW1, the complainant herein. It was submitted that there was no evidence that the appellant had received kshs 42,000/= in cash from the complainant and that despite the allegation by the complainant that he gave the appellant kshs 42,000/= in the presence of Mugendi, the said Mugendi was not called as a witness by the prosecution. It was the appellant’s case that there existed a grudge between him and the complainant hence the need to implicate him over an issue that he is not responsible for. Further, it was submitted that the prosecution’s evidence was full of contradictions and that the same could not be relied on to safely convict the appellant.

6. In reference to the ground that the trial court disregarded the appellant’s defence, and that the trial court dismissed the appellant’s defence that the kshs 8,000/= was a debt on grounds that the same was an afterthought as PW1 had testified that he did not know the accused person before, the appellant’s evidence that the kshs 8,000/= was sent to him as a debt was not challenged by the prosecution in cross examination; that the trial magistrate shifted the burden of proof to the appellant by requiring him to establish that the kshs 8,000/= was a debt. The appellant thus relied on the case of Peter Nyamu Mutithi v Republic[2021] eKLR.

7. In regards to the ground that the sentence meted out was harsh and disproportionate in the circumstances, in that the appellant had no previous record and that, his mitigation was never considered by the trial court during the sentencing, the appellant reiterated that the prosecution did not prove its case to the required standards and therefore, this court was urged to allow the appeal herein.

8. The prosecution on the other hand submitted that the prosecution’s evidence was sufficient to prove the ingredients of the offence facing the appellant. That the sentence was proper in view of the alleged offence and therefore, the same was not harsh and/or excessive thus the same ought not to be interfered with.

9. This being a first appellate court, it is expected that I must analyze and evaluate afresh all the evidence that was adduced before the trial court and draw my own independent conclusions bearing in mind that I neither saw nor heard any of the witnesses testify. (See Okeno v Republic [1972] EA 32) and Kiilu & Another v Republic [2005]1 KLR 174).

10. Having considered the evidence before the trial court, it is my view that the issues for determination by this court are;-i.Whether the prosecution tendered sufficient evidence to prove the charge facing the appellant before the trial court.ii.Whether the sentence meted upon the appellant by the trial court was excessive.

11. As to the first issue, (whether the prosecution tendered sufficient evidence to prove the charges facing the appellant before the trial court), the appellant was charged with the offence of obtaining money by false pretences contrary to section 313 of the Penal Code. The offence of obtaining money by false pretences is provided for under section 313 of the Penal Code. The said section provides as thus;-“Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanor and is liable to imprisonment for three years.”

12. Section 313 of the Penal Code therefore brings out three essential elements of this offence which are as follows:-a.obtaining something capable of being stolen.b.obtaining it through a false pretence.c.obtaining it with intention to defraud.

13. PW1, Phillip Ireri Mugo testified that on May 16, 2021, he received a call from one Mugendi who told him that there was a person selling trees. That on May 27, 2021, he met Mugendi who took him to the appellant who asked for kshs 50,000/= for eight trees. He stated that the accused informed him that the trees belonged to him and therefore he paid him kshs 42,000/= in cash in the presence of Mugendi and that the balance of kshs 8,000/= was to be paid later. It was his evidence that on the following day, he went to cut the said trees when PW2 stopped him from doing so, claiming that he had only sold seven trees to the appellant. That he went back home to find the appellant herein who promised he would refund the money but later on declined to do so.

14. The appellant submitted that there was no evidence he had received kshs 42,000/= in cash from the complainant and that despite the allegation by the complainant that he gave the appellant kshs 42,000/= in the presence of Mugendi, the said Mugendi was not called as a witness by the prosecution. In reference to the same, I reiterate that the prosecution is not duty bound to call any given number of witnesses. Section 143 of the Evidence Act, (chapter 80 Laws of Kenya) provides that no particular number of witnesses shall in the absence of any provision of the law to the contrary, be required for proof of any fact. In the case of Julius Kalewa Mutunga v Republic, Criminal Appeal no 31 of 2005 (Unreported), the Court of Appeal held that:As a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion unless, for example, it is shown that the prosecution was influenced by some oblique motive?

15. Given that there was no other witness who directly saw PW1 give the appellant kshs 42,000/= save for the said Mugendi who was never called before the court as a witness, this court must independently review the whole evidence in totality to help it reach a just determination.[ See Okeno v Republic [1972] EA 32).

16. Further, I find guidance in the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, this Court had this to say on circumstantial evidence:“However, it is a truism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence.Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr App R 21: -‘It has been said that the evidence against the applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.’”

17. Further, the conditions for the application of circumstantial evidence in order to sustain a conviction in any criminal trial have been laid down in several authorities of this court. Suffice to mention Abanga alias Onyango v Republic CR App no 32 of 1990 (UR) in which the court held as follows:It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:i.the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established,ii.those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;iii.the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

18. PW2, James Nyaga testified that the appellant requested to buy trees and that he showed him the trees to cut of which the appellant paid him kshs 30,000/=. That the following day, the people who had been sent by the complainant to cut the trees proceeded to cut the trees which did not form part of those that had been sold to the appellant and so he repudiated the contract previously entered into between him and the appellant by refunding the kshs 30,000/= that the appellant had paid to him.

19. On his part, the appellant in his testimony testified that he was a timber broker and that PW1 and one Mugendi had approached him as PW1 wanted to buy some trees for timber. That he took them to PW2 who sold to them six trees. He stated that PW2 repudiated the contract entered between them and he (PW2) refunded him an amount kshs 30,000/= of which he claimed to have refunded to one Mugendi. He contended that the kshs 8,000/= paid by PW1 was a debt.

20. From the evidence on record, the appellant submitted that the kshs 8,000/= paid to him by PW1 was a debt that he owed him. From the record, PW1 testified that he did not know the appellant there before and that one Mugendi is the one who introduced him to the appellant. The same is buttressed by the appellant in his defence when he stated that PW1 was in the company of Mugendi when he went to him to buy the trees.

21. In my view, it is outright that PW1 was not known to the appellant and that is why Mugendi who is a broker took PW1 to the appellant who was equally a broker. The same is buttressed by PW2’s testimony which confirmed that the appellant had paid kshs 30,000/= for six of his trees. In my view, the case of PW1 is more reliable than that of the appellant given that his evidence was not controverted by the appellant. The appellant’s denial that he sold the trees to PW1 is, in my view, untenable for the reason that he could not explain why he was paid the sum of kshs 8,000/= from someone who was a stranger to him. Though he told the court that the same was for repayment of a debt, he did not explain the nature of the debt. It is my view, therefore, that the prosecution was able to prove the element of obtaining money which of course is something that is capable of being stolen. As such, the first element of the offence was proved.

22. The next element which the prosecution was supposed to prove by way of evidence was that the taking of the said money was by false pretence. Section 312 of the Penal Code defines it as follows:-“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.”

23. This section clearly indicates that in a charge of obtaining by false pretence, the representation must be of either a past or present fact but not a future fact. Gikonyo J in the case of Joseph Wanyonyi Wafukho v Republic (2014) eKLR applying the same principle stated that a false pretence can only apply to a past and present fact and not a future fact. This court must now dissect the facts herein to determine whether the representation herein amounted to a false pretence.

24. In his evidence PW1 stated that he bought 8 trees from the appellant at kshs 42,000/= which he said he was selling to raise school fees for his child and that the trees belonged to him. On his part PW2 testified that on the May 17, 2021 the appellant went to him and requested to buy trees from him. He showed him 7 trees which he sold to him at kshs 30,000/=. The appellant being a broker, bought less trees from PW2 at a lower cost and thereafter purportedly sold a higher number of trees to PW1 albeit at a higher price. Of importance to note is the fact that the number of trees agreed on between the appellant and PW1 was different from the number of trees agreed upon between him and PW2.

25. Taking into consideration the prosecution’s evidence, it is clear that the appellant represented himself as the owner of the trees and to have been in a position to sell PW1 more trees as opposed to the number of trees that he had agreed with PW2 who actually owned the trees in question. From the above, it is my considered view that the prosecution was able to tender sufficient evidence to prove the element of having obtained the money from PW1 by false pretence by pretending that he was the owner of the trees and by selling more trees than the number of trees that he had bought from PW2. The same was compounded by the fact that even after he duped PW1, he promised to refund him the money but he later on declined. It is clear that he took the same with an intention to defraud PW1.

26. As to the contention that the sentence meted out to the appellant by the trial court was harsh.Section 313 of the Penal Code stipulates that :Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanor and is liable to imprisonment for three years.

27. It is trite that an appellate court cannot interfere with the exercise of trial court’s discretion in sentencing 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 Bernard Kimani Gacheru v Republic [2002] eKLR].

28. I have considered the sentence imposed upon the appellant and in my view, the same is not excessive and was within the law. The appellant did not prove that the trial court overlooked some material factor, or took into account some wrong material.

29. In the end, I find that the appeal has no merit and the same is hereby dismissed.

30. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 19TH DAY OF OCTOBER 2022. L NJUGUNAJUDGE................for the appellant................for the respondent