[2022] KEHC 16310 (KLR)

Okello v Republic (Criminal Appeal E047 of 2021) [2022] KEHC 16310 (KLR) (13 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16310 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Appeal E047 of 2021

KW Kiarie, J

December 13, 2022

Between

Samwel Ogola Okello

Appellant

and

Republic

Respondent

(From the original judgment in Criminal case No. 560 of 2021 of the Chief Magistrate’s Court at Homa Bay by Hon J.S Wesonga – Principal Magistrate)

Judgment

1. Samwel Ogola Okello, the appellant herein, was convicted of the offence of obtaining money by false pretences contrary to section 313 of the Penal Code.

2. The particulars of the offence are that on June 6, 2020at Sofia Estate in Homa Bay Town within Homa Bay County, with intent to defraud obtained from Silas Ojwang Otieno her three bulls valued at Kshs 480,000. 00 by false pretending that he was in a position to sell to him land parcel number Kanyada/Katuma/Kotieno /Katuma “A”/1492 a fact he knew was false.

3. The appellant was sentenced to pay a fine of Kshs 200, 000. 00 in default to serve two years imprisonment. He was dissatisfied and filed this appeal.

4. The appellant was represented by the firm of Robert Ochieng Advocates. He raised the following grounds of appeal:a.The learned trial magistrate erred, and misdirected herself, in law and fact by declaring that false pretence had been proven simply because there existed allegations of a prior contract of purchase of the subject matter.b.The learned trial magistrate erred, and misdirected herself, in law and fact by declaring that false presence had been proven on the false and unproven premise that the appellant lacked capacity to sell the subject parcel of and when such incapacity can only be proven or declared for or otherwise before a civil court of law.c.The learned trial magistrate erred, and misdirected herself, in law and fact by erroneously declaring that the appellant was not in a position to pass good title to the complainant when the same could only be declared as such in a civil court after examination on evidence and the law.d.The learned trial magistrate erred, and misdirected herself, in law and fact by misapprehending nature and the term representation such as to give it a different meaning from present and future.e.The learned trial magistrate erred in law in sustaining a conviction on the offence charged on the basis of acts based on the law of contract.f.The learned trial magistrate grossly misdirected herself on the law by declaring that the offence of obtaining by false pretense exists whenever and wherever any vendor or sellers have difference contracts for the provisions of property or chattel with different purchasers when it is only a civil court that can find which contract is valid and the recompense for the injured party, if at all.g.The learned trial magistrate who delivered the judgment erred in law and fact by misdirecting herself on the effect of relying upon contradictory and inconsistent evidence and excluding/failing to take into consideration exculpatory evidence tendered by the child complainant.

5. The respondent opposed the appeal through Mr Ochengo, learned counsel. The respondent contended that:a.The conviction was based on evidence.b.The sentence was proper.

6. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno v Republic [1972] EA 32.

7. The ingredients of the offence of obtaining by false pretences contrary to section 313 of the Penal Code were enumerated in the case of Amugo v RepublicHigh Court (Kisumu) Criminal Appeal No 320 of 1980 (unreported) as follows:The offence of obtaining by false pretences has seven possible ingredients which have to be proved beyond doubt before an accused person is convicted. They are as follows:a.a false representation;b.which is made;c.by words or writing or conduct;d.of a matter of fact;e.either past or present;f.with knowledge of the falsehood or without belief that the presentation is true; andg.the representation causing the giver to part with the thing obtained.The court went on to state for there to be a conviction, all the eight ingredients must be established beyond any reasonable doubt.

8. It is trite law that for an action to amount to a false pretence, it must be of past or present facts and not of future facts. Lord Devlin in the case of JR v Dent[1955] 2 QB 594 stated:...a long course of authorities in criminal cases has laid down that a statement of intention about future conduct, whether or not it be a statement of existing fact, is not such a statement as will amount to a false pretence in criminal law.In the instant case, I will seek to find if the prosecution established the eight ingredients to the required standards and whether the facts were present or past.

9. OnDecember 2, 2019the appellant and one Duncan Ochieng Abuya went before the senior chief Arujo location. The two entered a land sale agreement in respect of land parcel number Kanyada/Katuma/Kotieno /Katuma “A”/1492 registered in the name of Samwel Ogola Okoko, the appellant herein. Kshs 231, 500 was paid and a balance of Kshs. 45,000. 00 was outstanding.

10. The prosecution produced a certificate of official search which showed that on June 29, 2020, Duncan Ochieng Abuya lodge a caution after learning that the appellant intended to sell the same land to another purchaser.

11. At the time the appellant entered into a sale agreement for land parcel number Kanyada/Katuma/Kotieno /Katuma “A”/1492, it was not available for sell.

12. The learned trial magistrate appreciated and applied the law correctly. The appellant’s intention could be read from his previous conduct with the other purchaser. All the ingredients of the offence of obtaining by false pretences contrary to section 313 of the Penal Code were proved to the required standards. The conviction was therefore based on the evidence on record.

13. The upshot of the foregoing, is that the appeal lacks merit and I accordingly dismiss it.

DELIVERED AND SIGNED AT HOMA BAY THIS 13TH DAY OF DECEMBER, 2022KIARIE WAWERU KIARIEJUDGE