https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10674

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL APPEAL NO. E026 OF 2026** **MARTIN RIMUMBA NYANGWESO.……………………..…….1ST APPELLANT** **JANET KERUBO NYANGWESO……………………….………..2ND APPELLANT** **VERSUS** **REPUBLIC………….……………………………….………………. RESPONDENT** *(Being an appeal against the original conviction and sentence delivered on 15th January 2026 at Kibera Chief Magistrate’s Court Criminal Case No. E1103OF 2020 Republic vs Martin Rimumba Nyangweso and 2 others)* **JUDGEMENT** 1. The appellants were charged before the subordinate court with the following offences: Count I, making a false document contrary to section 357(a) of the Penal Code; Count II, uttering a false document with intent to defraud or deceive contrary to section 357(b) of the Penal Code; Count III, conspiracy to defraud contrary to section 317 of the Penal Code; and Count IV, obtaining by false pretences contrary to section 313 of the Penal Code. Upon conclusion of the trial, they were acquitted on Counts I and II but convicted on Counts III and IV. They were each sentenced to pay a fine of Kshs. 1,020,000 on each count, in default to serve twelve (12) months' imprisonment. 2. Being aggrieved, they filed an appeal challenging their conviction and sentence. In their petition of appeal, the appellant challenged the totality of the prosecution’s evidence against which he was convicted. They urged the court to quash their conviction and set aside the sentence imposed. 3. This is the first appellate court and in **Okeno v. R [1972] EA 32,** the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence which was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify. 4. The prosecution called a total of five (5) witnesses in support of their case. PW1, Beatrice Martha Musyoka, testified that in June 2017 she received a telephone call from a person who identified himself as Martin Keli. He informed her that he was recruiting people to work with NGOs and promised that, upon making certain financial contributions, she would qualify to receive Kshs. 27 million. He represented that he had funding to support community groups and persuaded her to contribute using compensation she had received following the death of her husband, who was killed in the 1998 United States Embassy bombing. She had received Kshs. 42 million in compensation, while her children had received Kshs. 26 million. 5. PW1 stated that, acting on these representations, she deposited Kshs. 2,000,000 into Janet Kerubo's Equity Bank account on 25th July 2017, Kshs. 6,050,000 into Digital Tech Enterprises on 27th July 2017, and Kshs. 9,000,000 into Janet Kemboi Nyangweso's account on 28th July 2017. She identified the relevant deposit slips and RTGS documents. 6. She never received the promised funds. Instead, Martin Keli directed her to collect two cheques of Kshs. 26 million each from Afya Centre, purportedly issued by Change for Change Welfare Association, with instructions not to bank them until advised. When communication with the individuals ceased, she realised she had been defrauded and reported the matter to the DCI. She confirmed that she had never met Martin Keli or Janet Kerubo. 7. During cross-examination, PW1 stated that Martin Keli claimed to be from the United Kingdom and discussed plans to establish community groups in Kitui. According to the bank documents, the Kshs. 2 million was described as payment for employees, while the Kshs. 9 million was for building materials. She could not recall the specific office at Afya Centre where she collected the cheques. Upon re-examination, she stated that she was illiterate and had been assisted in completing the banking documents. 8. PW2, Janet Mutua, PW1's daughter, testified that her mother had received over Kshs. 40 million in compensation following her husband's death. In 2019, after observing that PW1 had become depressed and was borrowing money, she and her siblings reviewed her bank statements and discovered transfers of Kshs. 2,000,040 to Janet Kerubo, Kshs. 6,000,000 to Digital Tech Enterprises and Kshs. 9,000,000 to Janet Kerubo's account. PW1 explained that she had been persuaded by a man named Martin, who claimed he was establishing an NGO. The family reported the matter to the police on 5th September 2019 and handed over two cheques of Kshs. 26 million each that PW1 had been instructed not to bank. 9. She stated that investigations culminated in the arrest of the suspects. During cross-examination, she stated that PW1 had informed them the payments were intended to facilitate the release of Kshs. 300 million allegedly being withheld. 10. PW3, CPL Geoffrey Mwangi, the investigating officer attached to Nairobi Area DCI Headquarters, corroborated the evidence of PW1 and PW2. He testified that investigators obtained court orders on 17th November 2017 authorising access to the relevant bank accounts. The bank records showed that Janet Kerubo's Equity Bank account received deposits of Kshs. 2 million and Kshs. 9 million from PW1. The statements further showed that Kshs. 300,000 and Kshs. 100,000 were transferred to accounts belonging to the 3rd accused, while a further Kshs. 300,000 was transferred directly to the 3rd accused's account. He produced the account opening documents, bank statements, deposit slips, RTGS forms and documents relating to Digital Tech Enterprises. 11. PW3 further testified that investigations established that the 1st Appellant purchased motor vehicle registration number KCJ 803U for Kshs. 2.5 million, issued a cheque of Kshs. 200,000 to Duncan Nyangweso, and paid Kshs. 900,000 towards the purchase of land. The 3rd accused was found to have purchased motor vehicles registration numbers KCM 481L and KCN 589G using the proceeds of the impugned transactions. He produced NTSA search reports, photographs, identification records and other documentary exhibits. 12. He testified that the 1st Appellant was arrested on 1st November 2020 at Ngong Matasya, where investigators recovered a land sale agreement relating to property in Kajiado. The 1st Appellant subsequently led investigators to Kitale, resulting in the arrest of the 2nd Appellant, and thereafter to the 3rd accused's residence where the three motor vehicles were recovered. He also produced photographs of the recovered vehicles and correspondence placing a caveat over the land. 13. During cross-examination, PW3 conceded that there was no evidence that the telephone number used to contact PW1 was registered in the name of the 2nd Appellant. He further admitted that Martin Keli was never traced, although he believed him to be the 1st Appellant. He also acknowledged that PW1 had initiated the disputed transactions and had never met any of the Appellants. 14. In relation to the 3rd accused, he stated that investigations disclosed no evidence that she had supplied goods or conducted business with the 2nd Appellant, nor was any inventory prepared for the recovered items. On re-examination, he maintained that the recovered motor vehicles and Kshs. 700,000 connected the 3rd accused to the offences and that no construction materials were recovered from any of the Appellants. 15. At the close of the prosecution case, the trial court found that a prima facie case had been established against all three accused persons and placed them on their defence. 16. DW1, Martin Rimumba, testified that he first met PW1 through a deceased Reverend who frequented his photocopy business. He stated that he had previously purchased church equipment on the Reverend's behalf and later bought household items for PW1 using Kshs. 190,000 she had provided. He testified that PW1 later informed him she intended to undertake construction and requested his assistance in sourcing timber. He advised her to deposit Kshs. 6,000,050 into the Barclays Bank account of Digital Tech Enterprises, after which his supplier, Jackline Kebasu, delivered timber to PW1's construction site in Kitengela. During cross-examination, he stated that Digital Tech Enterprises dealt in electronics as well as building materials. 17. DW2, Janet Kerubo Nyangweso, testified that she knew PW1 as a customer and had worked for the 1st Appellant, who was her uncle, before later becoming PW1's house help. She admitted that she received Kshs. 2 million and Kshs. 9 million into her account but maintained that she acted solely on PW1's instructions by transferring the funds to various persons and withdrawing Kshs. 1.3 million for payment of workers. She denied any involvement in fraud. 18. DW3, Everlyne Kemunto Nyantika, denied the charges and stated that she did not know PW1. She testified that the funds she received from DW2 were payments for cereals supplied through a broker and that the motor vehicles were purchased using proceeds from her farming business. She produced lease agreements, vehicle logbooks, purchase agreements and bank statements in support of her defence. During cross-examination, she admitted receiving substantial sums from the 2nd Appellant and confirmed that DW2's brother was her former husband. 19. DW4, Jackline Kerubo Kebasu, testified that she supplied timber to PW1 upon instructions from DW1 and received approximately Kshs. 3.8 million for the supplies. She stated that DW1 made the payments. DW5 corroborated her evidence, stating that he transported the timber to Kitengela on her behalf. During cross-examination, he confirmed that he had never seen any of the Appellants at the construction site and only saw them for the first time in court. 20. The trial court found all the accused persons guilty, convicted and sentenced them accordingly. 21. The appeal was canvassed by way of written submissions which have been duly considered and there is no need to rehash them. 22. In count III, the appellants were charged with the offence of conspiracy to Defraud Contrary to Section 317 of the Penal Code. Section 317 of the Penal Code provides: **“Any person who conspires with another by deceit or any fraudulent means to affect the market price of anything publicly sold, or to defraud the public or any person, whether a particular person or not, or to extort any property from any person, is guilty of a misdemeanour and is liable to imprisonment for three years.”** 1. To sustain a conviction under section 317, the prosecution was required to prove beyond reasonable doubt: first, the existence of an agreement between two or more persons; secondly, that the agreement was to defraud another person by deceit or fraudulent means; and thirdly, that each accused knowingly participated in furtherance of that common design. The offence is complete upon proof of the unlawful agreement, and direct evidence of the agreement is not essential, as it may be inferred from the conduct of the parties and the surrounding circumstances. 2. In **Njuguna s/o Kimani & Others v Republic (1954) 21 EACA 316**, the Court held: *“The existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them.”* 1. The evidence on record establishes a carefully orchestrated scheme through which PW1 was induced to part with substantial sums of money. PW1 testified that she was contacted by a person identifying himself as Martin Keli, who falsely represented that he was recruiting members for an NGO and that, upon making specified financial contributions, she would receive Kshs. 27 million. Acting on those representations, she transferred Kshs. 17,050,000 into accounts belonging to the 1st and 2nd Appellants and to Digital Tech Enterprises. 2. The banking records produced by the investigating officer traced the movement of those funds. The evidence demonstrated that shortly after the deposits, substantial sums were transferred between the Appellants, while part of the money was utilised to purchase motor vehicles and land. The investigations further established that no NGO existed, no promised funds were ever released, and the complainant was instead issued with two worthless cheques of Kshs. 26 million each and instructed not to bank them. The false cheques formed part of the continuing deception intended to prevent PW1 from discovering the fraud. 3. The conduct of the Appellants before, during and after the transactions demonstrates concerted action directed towards a single fraudulent objective. The deposits into the accounts of the 2nd Appellant, the receipt and onward transfer of the funds, the movement of money to the 3rd accused, and the acquisition of assets using the proceeds were not isolated events. They formed part of one continuous transaction revealing a common design. Although PW1 did not meet the Appellants personally, conspiracy is ordinarily proved through circumstantial evidence rather than direct evidence of an express agreement. 4. The explanations offered by the Appellants did not displace the prosecution case. The alleged supply of timber was unsupported by any documentary evidence linking it to the sums transferred by PW1. No delivery notes, invoices, receipts, construction records or independent evidence established that building materials corresponding to the payments were supplied. 5. Equally, the assertion that the funds represented payment for cereals or other legitimate business transactions was not supported by credible evidence demonstrating the existence of such commercial dealings. 6. Having independently re-evaluated the evidence, I am satisfied that the prosecution established beyond reasonable doubt that the Appellants acted in concert pursuant to a common fraudulent design to deceive PW1 into parting with her money. The essential ingredients of the offence of conspiracy to defraud under section 317 of the Penal Code were proved beyond reasonable doubt. The conviction on Count III was therefore safe. 7. In count IV, the appellant were convicted for obtaining money by false pretences contrary to section 313 of the Penal Code which provides: **“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 misdemeanour and is liable to imprisonment for three years.”** 1. A false pretence is defined under section 312 of the Penal Code as: **“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.”** 1. The prosecution was therefore required to establish beyond reasonable doubt that there was a false representation of an existing fact, that the representation was knowingly false, that it was made with intent to defraud, and that, as a result of the representation, the complainant parted with property capable of being stolen. 2. In **R v Dent [1955] 2 QB 590**, it was stated that a false pretence must relate to an existing or past fact and must operate on the mind of the complainant so as to induce the transfer of property. 3. The evidence demonstrates that PW1 was deliberately misled into believing that an established NGO existed, that funds amounting to Kshs. 27 million would be released upon payment of specified contributions, and that the payments she was making were necessary to unlock those funds. Those representations related to existing facts, namely the existence of the organisation and the availability of the promised funds. They were false, and the evidence established that the persons making them knew them to be false. 4. PW1 acted on those representations by transferring Kshs. 17,050,000 into the accounts identified by the callers. The banking records, deposit slips and account statements produced during the trial traced the movement of the funds into the accounts linked to the Appellants. Thereafter, the money was quickly dissipated through transfers and purchases of motor vehicles and land. None of the promised benefits materialised. Instead, PW1 was issued with fictitious cheques intended to prolong the deception until the perpetrators became unreachable. 5. The surrounding circumstances leave no doubt that the representations were never intended to be honoured. They were calculated solely to induce PW1 to part with her money. The subsequent conduct of the Appellants in appropriating the funds for their own benefit is wholly inconsistent with the existence of any legitimate commercial arrangement. 6. Upon my own evaluation of the evidence, I find that each ingredient of the offence of obtaining by false pretences contrary to section 313 of the Penal Code was proved beyond reasonable doubt. The conviction on Count IV was therefore proper. 7. In the result, I find that the prosecution proved the offences under Counts III and IV beyond reasonable doubt. The convictions entered by the trial court were sound, supported by the evidence and founded on the applicable law. I find no basis for interfering with the the convictions or the sentences imposed. Accordingly, the appeal lacks merit and is hereby dismissed. Orders accordingly. **Judgement dated and delivered virtually this 16th day of July 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE** **In the presence of:** Appellants Present Ms. Timoi h/b for Mr. Mutuma for the Respondent Ms. Karimi Court Assistant.