[2023] KEHC 26163 (KLR)

Omusundi alias Benea Baraza Nafwa v Republic (Criminal Appeal E102 of 2022) [2023] KEHC 26163 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26163 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E102 of 2022

REA Ougo, J

November 21, 2023

Between

Benard Mwela Omusundi alias Benea Baraza Nafwa

Appellant

and

Republic

Respondent

Judgment

1. The Appellant herein Benard Mwela Omusundi alias Benard Baraza Nafwa was charged with 8 counts. In count 1, he was charged with conspiracy to defraud contrary to section 317 of the Penal Code; in count 2 he faced the charge of obtaining by false pretences contrary to section 313 of the Penal Code; in counts 3, 5 and 7 he was charged with forgery contrary to section 345 as read with 349 of the Penal Code; and in counts 4, 6 and 8 he was charged with the offence of uttering false documents contrary to section 353 of the Penal Code.

2. The prosecution called a total of 9 witnesses in support of its case. At the close of the prosecution case, the appellant was placed on his defence, gave sworn testimony and denied the charges. The trial magistrate in his judgment found that all 8 counts were proved beyond reasonable doubt and convicted the appellant on all counts. He also meted the sentence for each of the counts.

3. The appellant aggrieved by the decision of the trial court has filled this appeal challenging the judgment on the conviction and sentence on the following grounds:1. That the trial magistrate grossly erred in law and in facts to convict the appellant on contradictory, inconsistent and uncorroborated evidence which meant that the witness was not credible.2. That the appellant was denied his fundamental right and freedom enshrined in the Bill of Rights as per Article 49 of the Constitution, the appellant spent in police custody more than 24 hours also as per Article 49 (i) (l), the appellant was denied bond and bail.3. That the appellant after conviction the time spent in custody (54 months) was not considered in the sentence as provided in section 333 (3).4. That the appellant was denied his right enshrined in Article 50 (2) (e) that the case took too long.5. That the sentence imposed on the appellant did not run concurrently but consecutively, so the appellant is seeking the mercy of this Hon. Court for this sentence to run concurrently considering the term the appellant has spent in custody.

4. This being the first appeal, this court is mandated to analyse and re-evaluate the evidence afresh in line with the holding in the case of Okeno v. R [1972] EA. 32 in which the Court of Appeal for East Africa held that:“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellant court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”

5. Erastus Njoroge (PW3) and Paul Watenga Juma (PW7) are land agents based in Kanduyi working at Royal Bridge Investment Company. Pw3 testified that the appellant came to his office, gave him a copy of the title for W.Bukusu/S. Mateka/495 and told him he was selling the land at Kshs 700,000/- per acre. According to the title, Grace Namachanja Wanyanga was the owner of the land. The appellant explained to him that the registered owner was his sister. PW3 asked PW7 to accompany the appellant to said land and view it. PW7 testified that they went to the land, found people weeding sugar cane and the appellant talked to them. They returned to the office and discussed the commission which was set at 10%.

6. Barasa Makokha (PW2) testified that in March 2018 he was looking for land in Bungoma and was introduced to two land agents, (PW3) and (PW7). PW3 testified that PW2 came to his office with the intention of buying land. They took PW2 to the site and viewed the land which measured 1. 2 hectares. PW2 then instructed his surveyor Pius Munyasia (PW4) to confirm the correct size of the land.

7. PW4 conducted a search at the land’s registry and according to the certificate of search, Pexh 9, the land was registered in the name of Grace Nyamachanja and it measured 1. 2 hectares. He then met with PW3 and PW4 who took him to meet the owner of land at Mantos Restaurant. He met the appellant and a lady named Grace Namachanja Wanyanga. The appellant showed him the measurements for the shamba which he recorded as part of his notes, Pexh23. He testified that the measurements given by the appellant put the size of the property at 2. 7 hectares and it did not tally with those of the search which revealed that the size was 1. 2 hectares. He informed PW2 of the discrepancies but PW2 told him that he was only interested in the 3 acres.

8. On 5/4/2018, Pw2 met with the appellant, PW3, PW4, PW7 and a lady by the name Grace N. Wanyanga, who was introduced as the appellant’s sister. They signed a memo for the purchase of 1. 2 hectares and he handed the appellant and his sister 2 bankers' cheques drawn in favour of Grace Nyamachanja Wanyanga each for Kshs 750,000/-. PW2 also gave the appellant Kshs 50,000/- cash. The appellant and Grace Nyamachanja Wanyanga both signed the agreement and gave them a copy of the KRA Pin Certificate for the registered owner, her passport, a signed transfer by Grace Nyamachanja Wanyanga, copy of her identity card and the original title deed. He sent the balance of the purchase price to PW4 for onward transmission to the appellant and Grace Nyamachanja Wanyanga. PW4 testified that he received Kshs 400,000/- from PW2 in his equity account no. 0480xxxxxxx27. He went to the Bank withdrew the money and gave it to Grace Nyamachanja Wanyanga who gave it to the appellant.

9. PW2 testified that the balance for the parcel of land was Kshs 150,000/- and they had agreed that it would be settled on 24/4/2018. On said date, he came back to Bungoma but the appellant and Grace Nyamachanja Wanyanga did not show up. He was with PW3, PW4 and PW7. He proceeded with the sale, forwarded the transfer documents to the land office and got the land transferred in his name. On 13/5/2018 he went with a tractor so that he could till the land and a lady appeared with the title and he stopped tilling the land.

10. Grace Nyamachanja Wanganya (PW1) testified that she knows the appellant as she had worked together with his father. She testified that she is the registered owner of the suit land and was issued with a title deed on 12/2/2018, which she produced as Pexh1. She explained that the land was purchased in 1976 by her husband and produced the original title which was in his name Herbert Morrison Amimo Wanyanga. According to his death certificate, Pexh 3, her husband died on 9/3/2013. PW1 and Danson Amimo were issued with a grant, Pexh4, in Kakamega High Court Succession Case No. 717 of 2013. They obtained a certificate of confirmation of grant, Pexh 5 had the property transferred to her and was issued with a title deed for land that measures 1. 2 hectares. PW1 testified that she knew that the land was 7 acres and complained to the County Surveyor and requested a resurvey. She also contacted the appellant on 10/3/2018 as he does survey work and asked him to verify the size of the land. PW1 took the appellant to the land and he asked her for the photocopy of the defective title and she released the copy to him. The county surveyor in a letter dated 14/5/2018 (Pexh6) asked the land registrar to correct the acreage to 3. 0 hectares.

11. PW1 testified that she was later approached by 2 men working for Royal Bridge Investment Company who told her that they were looking for a younger Grace Nyamachanja Wanyanga who sold them land. She reported the issue to her brother-in-law, the chief and village elder. She went to the land's office and got her title. On 13/5/2018 she was informed that someone was ploughing her land, she rushed to the suit land and found PW2 who told her that the land had been sold to him. She reported the issue to Musikoma Police Station and later to CID. She produced a search for the land dated 17/5/2018 as Pexh7. She confirmed that her Identity No. is 161xxxxx.

12. Edmond Wafula Wanjala (PW6) testified that he was employed by PW1 as the caretaker. On 13/5/2018 he was informed that a tractor was cutting the cane in the shamba and ploughing the land. There was someone who claimed to be the owner and he informed him that the land had not been sold. He called PW1 who arrived with her son and they went to the police station.

13. Allan Onyango Babu (PW8) testified that he is the Land Registrar based at Bungoma Land Registry. PW8 testified that from the green card, the first registered owner was Makhanu Wandera who transferred the property to Herbert Harrison Khamimo on 14/12/1976. It was later transferred to Grace Namachanja Wanyanga and Ernest Rueben Amimo at the conclusion of Succession Cause No. 717 of 2013 in their capacities as administrators. A title was then issued to Grace Namachanja Wanyanga as the beneficiary of the estate, but the title had errors in terms of acreage. He produced a letter by the District Surveyor who advised him to amend the register from 1. 2 hectares to 3. 0 hectares. A new title was issued to PW1 reflecting the new acreage on 12/2/2018. On 27/4/2018 the land was transferred to PW2 and a title deed was issued under entry 9. PW8 testified that entries 8 and 9 were cancelled on account that they were fraudulent. The legitimate owner of the property is PW1 as per entry 6.

14. Rajalo Luke Sonye (Pw5) testified that he is a businessman and runs cheque discounting under Raluso General Commercial Agencies, a limited company. Pw5 also operates Ravon Cooperative Society. He explains that when a client brings a cheque he discounts the cheque at 5% commission, he pays the client less the commission and banks the cheque. He recalled that the appellant on 5/4/2018 came with a certain woman by the name of Grace Namachanja Wanyanga whom he introduced as his sister. He explained that he knew the appellant who was his client as he had sought his services of cheque discounting before. The lady wanted to cash the banker's cheque. He asked for their identification and the sale agreement for the land. He was given the sale agreement and he took a photo of them and also asked them to sign the guarantee form. They gave him two cheques issued by Housing Finance, Pexh 30, and he gave them Kshs 1,450,000/- less his commission. Pw5 testified that later on 21/5/2018 police officers investigating the case came to his office and interrogated him about the cheques. Pw5 gave them copies of the sale agreement, copies of the identity cards, copies of the cheques and photographs. Pw5 had the phone number of the appellant and he called him as he had another transaction to cash. The appellant came to his premises and was arrested by the police.

15. No. 88109 Edwin Musungu (Pw9) testified that he was the investigating officer in the case following a complaint which was lodged by Pw2 who alleged that he had been conned in a land transaction. Pw9 carried out the investigations and produced the confirmation of grant, Pexh5; a photo, Pexh 18; a statement showing withdrawal from the bank, Pexh 22; the correct identity card of Grace Namachanja Wanyanga with serial no. 245125525 with the date of birth captured as 24/1/1949, Pexh 20; the forged identity card with the serial number 240xxxxxx and the date of birth captured as 26/6/1973. Pw9 testified that he concluded that the lady who was presented before Pw5 was not Pw1 and was of the view that fraud had been committed. They were not able to trace the lady who stole the identity of Pw1.

16. The appellant when placed on his defence testified as Dw1. He testified that he was arrested at Golf Hotel Kakamega. On that day, he had been invited to discuss the issue of Bic Body and the meeting took off at 10:00 a.m. Dw1 discovered that he had left his laptop in the car, so he went and got it. He finalized his meeting at 2:00 p.m. and when he went to his car, he met two people who introduced themselves as police officers and took him to Kakamega Police Station. Dw1 denied knowing Grace Namachanja Wanyanga.

Analysis and Determination 17. The appellant in his submissions argues that the offence of conspiracy to defraud cannot be committed by one person and therefore the ingredients of the offence of conspiracy to defraud have not been proved. Although he was charged with obtaining money by false pretences, the appellant submits that he did not hold himself as the owner of the land and that in any event the cheques were drawn in favour of Grace Namachanja Wanyanga. He submits that he did not impersonate Pw1. He also submitted that although the trial court found him guilty of forgery, the prosecution did not avail any expert witness to testify that the signature on the title certificate presented to Pw2 was the appellant’s signature. Similarly, count 4 was not proved as there was no expert witness to prove that the document was altered.

18. The respondent submits that the trial court did not analyze all counts individually, the court simply stated that all counts had been proved contrary to section 169 of the Criminal Procedure Code. They relied on the decision of Hawaga Joseph Ansanga Ondiasa v R, Criminal Appeal No. 84 of 2001 where the Court of Appeal observed that even if the judgment was not in accordance with section 169 of the Criminal Procedure Court, the non-compliance would not invalidate a conviction.

19. One of the issues raised by the appellant is whether the prosecution proved all counts to the required standard, beyond reasonable doubt. I turn to consider whether the prosecution proved count 1. Section 317 of the Penal Code which provides for the offence of conspiracy to defraud in the following terms:“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."

20. In Archibold’s Criminal Pleadings, Evidence and Practice 2010 (Sweet & Maxwell), at pages 3025 and 3026, it is observed as follows:“The offence of conspiracy cannot exist without the agreement, consent or combination of two or more persons .... so long as a design rests in intention only, it is not indictable; there must be agreement...The agreement may be proved in the usual way or by proving circumstances from which the jury may presume it….Proof of 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.”

21. In this case the prosecution led evidence that the appellant was in the company of a lady who stole the identity of PW1. The appellant and said lady introduced themselves to PW2, PW3, PW4 and PW7 as siblings. The appellant informed PW2, PW3, PW4 and PW7 that the lady was his sister going by the name Grace Namachanja Wanyanga who wanted to sell her land. It is clear that the appellant and the said lady were in agreement that they should deceive Pw2, Pw3, Pw4 and Pw7 into believing that the said lady was the owner of the parcel. Pw1 testified that she knew the appellant and had approached him to assist in a re-survey of the suit property. The appellant without a doubt knew that the lady who accompanied him to Mantos Hotel was not Pw1 and neither was she the owner of the land, therefore the two were working together with the intention to defraud Pw2 Kshs 1,950,000/-. They received from Pw2 Kshs 50,000/- cash, 2 cheques of Kshs 750,000/-, and Kshs 400,000/-. In my view, the respondent proved all ingredients of count 1.

22. The appellant was also charged with a second count of obtaining by false pretences contrary to section 313 of the Penal Code which provides that:“Any person who by 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.”

23. It is clear that the appellant together with the lady whom he introduced as his sister met Pw2 and received 2 cheques for Kshs 1,500,000/- he also received Kshs 50,000/- cash from the appellant. Once they received the two cheques, they went to Pw5 and cashed the two cheques. I find that the issue of identity was not in issue. Pw5 testified that he knew the appellant who was his client and took a photo of the appellant and the lady when they came to cash the cheque. The appellant had also had several meetings with Pw2, Pw3, Pw4 and Pw7 who identified him as the perpetrator and therefore his identification was safe. Considering the evidence on record, I find that the prosecution proved that the appellant obtained the money after making a representation which he knew was not true, that is that the lady in his company was the registered owner of the land. They therefore obtained the money through false pretences with the intention to defraud Pw2.

24. The appellant was also accused of forging land title deed, National Identity Card No. 161xxxx and Kenya Revenue Authority Personal Identification No. A006xxxxxxJ in Counts 3,5 and 7.

25. Pw1 testified that when she realized that her title to the suit land did not reflect the correct acreage. Pw1 testified that she gave the appellant a copy of the defective title. The complainant’s surveyor who was present at the meeting on 5/4/2018 testified that the appellant gave them the original title of the land. It is clear that Pw1 was not involved in the sale and that she was the only one in possession of the original title deed. Therefore, the title deed that the appellant presented to Pw2 was not the original title but was forged with the intention of making Pw2 believe that the lady in the company of Pw1 was the owner of the land. It was not necessary for the prosecution to prove that it was the appellant’s signature on the document, but it was crucial for them to prove that the appellant did not possess the original title as the same was in Pw1’s custody. Pw1 produced the defective title that was issued to her as Pexh8. In my view count 3 was sufficiently proved.

26. On whether the prosecution proved that the appellant forged National Identity card No. 161xxxxx. Pw1 testified that her identity no. is 16132693. The investigating officer also gave clear evidence that the identity card used by the lady who posed as the appellant’s sister was forged. When the two identity cards were compared, the one presented by the appellant and his accomplice had a different serial number when compared to that of Pw1.

27. After considering the evidence on record I find that the prosecution proved that the appellant forged the identity card of Pw1 and the title deed and therefore counts 3 and 5 were proved.The prosecution having proved that the title deed and identity card were false documents and that the appellant knew that they were false but he intended to use them fraudulently, the prosecution was also required to prove that the appellant uttered the documents to Pw1 as though they were genuine. There was sufficient evidence from Pw2, Pw3, Pw4 and Pw7 that the forged title deed and national identity card were also uttered to Pw2 and in that regard, counts 4 and 6 was proved sufficiently.

28. However, there was no evidence showing that the KRA pin was forged and the forged KRA pin was uttered to Pw2. Therefore, in my view, the prosecution failed to prove count 7 and 8.

29. I therefore set aside the finding of the trial magistrate and find that the prosecution proved counts 1, 2, 3, 4, 5, and 6 against the appellant. The conviction against the appellant on counts 7 and 8 is hereby set aside.

30. I note that the appellant in his grounds of appeal contends that his right under the constitution was infringed as he was arraigned in court 7 days after his arrest. The investigation officer, Pw9 testified that the appellant was arrested on 29/5/2018 and as per the court records, he was arraigned on 6/6/2018. It is clear that the appellant was held beyond 24 hours as required by law, however, the delay even though not explained the conviction cannot be upset solely on account of the violation of the appellant’s constitutional right. The appellant is not absolved of any criminal liability for the offence he committed but he can sue for damages in a different forum.

31. I now turn to consider whetehr the sentence meted out by the trial court was harsh and excessive. The appellant urged the court to impose the sentences to run concurrently. In the case of Republic v Ofunya [1970] EA 78, the court held that sentences in default of payment of a fine cannot be made to run concurrently. I however agree with the appellant that the trial court ought to have taken into account the time the appellant had spent in remand. The appellant was arraigned in court on 6/6/2018 and remained in remand since then. The appellant has an aggregate sentence of 4 years imprisonment and has been in remand since 6/6/2018. I have taken into account the time the appellant already served in custody and in my view the appellant has served his entire sentence as per counts 1,2,3,4,5 and 6. He shall be released forthwith unless lawfully held.

DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 21ST DAY OF NOVEMBER 2023. R.E. OUGOJUDGEIn the presence of:Bernard- Mwela Omusundi/Appellant in person - PresentMiss Omondi for the RespondentWilkister - C/A