[2022] KEHC 11419 (KLR)

Opondo & another v Republic (Criminal Appeal E008 of 2022) [2022] KEHC 11419 (KLR) (17 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11419 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal E008 of 2022

LK Kimaru, J

May 17, 2022

Between

Godfrey Oundo Opondo

1st Appellant

Flavan Oduor Were

2nd Appellant

and

Republic

Respondent

(Appeal arising out of conviction and sentence of Hon. V. Karanja (Principal Magistrate) in Kitale Chief Magistrate’s Court Criminal Case No. 1334 of 2020 delivered on the 8th day of February 2022)

Judgment

1. The appellants, Godfrey Oundo Opondo and Flavan Oduor Were, were jointly 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 the January 21, 2020 at Kitale Township within Trans Nzoia County, jointly with others not before court, with intent to defraud, obtained from Mr Vincent Wamalwa Kalama the sum of Kshs 800,000. 00 by falsely pretending that they owned a plot at Umoja farm and were selling, a fact they knew to be false or untrue. When the appellants were arraigned in court, they pleaded not guilty to the charge. After full trial, the appellants were convicted and sentenced to each serve three (3) years imprisonment.

2. The appellants were aggrieved by their conviction and sentence. In their petition of appeal, the appellants lamented that the ingredients to establish the offence were not proved to the required standard. They complained that the trial court failed to consider their defence of alibi, their evidence and submissions. They maintained that the identification of the perpetrators was mistaken. They alleged that the trial court shifted the burden of proof to the appellants and hence misapplied the law. They were aggrieved by the sentences meted out against them alleging that it was excessive. They faulted the trial court for failing to consider their respective mitigations. In the premises therefore, they urged the court to allow the appeal, quash the conviction and set aside the sentence that was imposed on them.

3. The appeal was heard on September 23, 2020 where the parties submitted orally. According to Mr Wanyonyi, counsel for the appellants, the trial court erred in failing to find that the ingredients to establish the offence were not proved to the required standard of proof beyond reasonable doubt. He submitted that it was necessary to conduct an identification parade. Accordingly, the identity of the appellants was mistaken. This, in counsel’s submission, was a grave omission. The appellants urged that from the final report in the course of investigations, the offence found to have been committed was trespass and not obtaining money by false pretences. The appellants challenged the evidence of the prosecution stating that no documents were produced in evidence to support the allegation that the appellants used pseudo names with intent to defraud the complainant. They further insisted that since the alleged purchase was paid to Kenneth Wanjala, Kennedy Barasa Bwire and/or Benson Opondo, and further pointing out that the sale agreement dated February 21, 2020 was not in the names of the appellants, they were implicated falsely. Counsel suggested that it would have been prudent for an expert to verify the signatures in the sale agreement.

4. The appellants called out the trial court for relying on conjectures on the basis that no evidence was produced in court to support the assertion that the appellants were placed at the scene of crime. Counsel urged the court to consider the contradictions in the evidence of the prosecution; PW1 testified that the complainant paid out a sum of Kshs 800,000. 00 while PW3 testified that the sum of Kshs 600,000. 00 was disbursed. In his view, this was a major contradiction that went to the root of the credibility of the prosecution’s case. He submitted that crucial witnesses were not called to testify thereby vitiating the evidence of the prosecution. He thus concluded that the prosecution failed to discharge its burden of proof to the required standard. Finally, he urged this court to reconsider the sentences that were imposed on the applicants in light of their respective mitigations.

5. On the part of the state, learned prosecutor Mr Omooria did not oppose the appeal. He pointed out that the evidence of PW3 (page 17 on the typed proceedings) was the basis upon which the charge was preferred. He concurred with the submissions of the appellants stating that the appellants names were not featured in the sale agreement either as parties or witnesses. He added that the appellants’ identity cards were not captured in the agreement. Consequently, he urged this court to allow the appeal.

6. The prosecution called three (3) witnesses in a bid to establish its case against the appellants. On January 16, 2020, Vincent Wamalwa Kalama, the complainant (PW1), sought to purchase a parcel of land within Umoja farm area. One Boniface Wekesa, identified as a caretaker, informed him that his neighbour Joseph Okotch, intended to sell his parcel of land. In the course of their telephone conversation, the said Joseph Okotch informed PW1 that his parcel was registered in the name of his minor son Kenneth Wanjala Okotch. The purchase consideration was agreed at sum of Kshs 800,000. 00.

7. PW1 informed PW2, Dorcas Juma, his wife of the same on January 18, 2020. Consequently, on January 20, 2020, PW1 and PW2 together with Geoffrey, Benson, Kennedy and Boniface Wekesa proceeded to view the parcel of land. Two of the four persons were identified on the dock as the appellants. The 1st appellant went by the name Godfrey Opondo while the 2nd appellant was referred to as Kenneth Okoth Wanjala. PW1 and PW2 confirmed that it was the first time they met these persons whom they were informed were brothers.

8. On January 21, 2020, PW1, PW2 and the four (4) brothers all proceeded to the firm of Kidiavai & Company Advocates where a sale agreement was drawn, parties executed the same and a sum of Kshs 600,000. 00 was withdrawn and paid by PW1. PW2 attested to the sale agreement as the 4th witness. The names of the appellants did not appear in the sale agreement. The sale agreement and Cooperative Bank withdrawal slip were produced and marked as prosecution exhibits 1 and 3 respectively. PW1, in the presence of PW2 handed over the bank slip to the 1st appellant. PW1 was neither issued with a title nor did he conduct a search to establish the particulars of ownership of the parcel of land.

9. According to PW1, the balance of Kshs 200,000. 00 was paid to the vendor through his son Benson Opondo Wafula. The Mpesa statement evidencing the payment was produced as prosecution exhibit 4. PW1 further testified that the said parcel of land originally belonged to one Robinson Ndiema. He sold the said parcel of land to Joseph Okotch in trust for Kenneth Wanjala Okotch, identified as the 2nd appellant. For this claim, prosecution exhibit 2 being the sale agreement between Robinson Ndiema and Joseph Okotch was relied on.

10. When PW1 went to the parcel of land on July 11, 2020, to his dismay, he found a notice barring trespassers. Furthermore, the parcel of land had been fenced off. This was despite the fact that he had planted maize. He discovered that the land had been purportedly sold to him by fraudsters. He reported the matter to Kitale Police Station where PW5 Corporal Paul Kipyegon recorded the complaint. PW1 testified that the appellants used fake identity cards during the purported sale agreement to obtain money from him.

11. On August 13, 2020, PW1 and PW3 travelled to Nairobi where the appellants were arrested. No identification parade was conducted. The appellants were charged with the present offence on August 16, 2020.

12. The appellants were placed on their defence. They called four (4) witnesses. DW1, the 1st appellant denied the offence. He testified that on January 21, 2020, he was in Mary Immaculate Hospital based at Kawangware Nairobi with his wife, Consolata Mauka Lumumba (DW4) who had delivered a baby. DW4 corroborated this evidence when she testified. He produced a receipt, invoice, maternity discharge form and a birth notification form as defence exhibits 1, 2, 3 and 4 respectively. He denied knowing any party to the transaction. He added that the 2nd appellant was his cousin and his father is Justus Opondo Okumu, DW3.

13. DW2, the 2nd appellant also denied the offence. His defence of alibi was that he was at work on January 21, 2020 at Kingsway Tyres in Nairobi. For this evidence, he produced his work call log as defence exhibit 5. He denied knowing any of the parties to the transaction.

14. DW3 testified that he did not have a son by the name Kenneth Wanjala Okotch. He denied knowing Robison Ndiema or being aware of any transaction in Trans Nzoia County.

15. This being a first appeal, it’s the duty of this court to re-consider and to re-evaluate the evidence adduced before the trial magistrate so as to reach its own independent determination whether or not to uphold the conviction of the appellant. In doing so, this court is required to be mindful that it neither saw nor heard the witnesses as they testified and therefore cannot make any comment regarding the demeanor of the witnesses (See Njoroge v Republic [1986] KLR 19). In the present appeal, the issue for determination by this court is whether the Prosecution established to the required standard of proof that the appellants committed the offence.Section 313 of the Penal Code provides:“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 misdemeanor and is liable to imprisonment for a term of three years.”

16. Section 312 of the Penal Codedefines false pretence 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 it to be false or does not believe to be true”.

17. In order to establish the above offence, it must be critically demonstrated that the perpetrator met the criteria set out in section 313 as read with section 312 of the Penal Code.

18. The basis of the charge preferred against the appellants was the sale agreement dated January 21, 2020. PW1 testified that following the execution of the sale agreement, he withdrew a sum of Kshs 600,000. 00 and handed over the purchase consideration to the 1st appellant. He further testified that he sent the balance of Kshs 200,000. 00 to Benson Opondo Wafula. The 1st appellant controverted this evidence stating that not only was he in Nairobi at that material time but denied that he received the said purchase consideration. DW4 further confirmed that the 1st appellant was with her at the material time of the alleged commission of the offence. The 2nd appellant submitted a call log in evidence in support of his alibi defence. He stated that he was at work in Nairobi on the material date.

19. The sole witness, from the sale agreement dated January 21, 2020, who testified to the presence of the appellants in the firm of Kidiavai & Company Advocate’s office on the date the offence was alleged to have been committed was PW2 who was the wife of the complainant. However, a cursory perusal of the sale agreement relied on revealed that there were three other witnesses to the transaction. One wonders why those witnesses were not called to testify on behalf of the prosecution. This included the advocate who drew the agreement in his offices where the alleged transaction took place. Their evidence would have established with certainty that the appellants were indeed part of the crafty scheme to commit the present offence.

20. The 1st appellant was alleged to have received the sum of Kshs 600. 000. 00 on the said date of the transaction. However, no one else, other than PW2 testified as to his presence yet there were other witnesses who were said to be present. This court cannot conclude with coeternity that it was the 1st appellant who received the said purchase consideration. The premise of the charges against the 2nd appellant lay on the allegation that he held himself out as Kenneth Wanjala Okotch. On analysis of the evidence adduced before the land court, this court finds the evidence to be incredible. From the contract dated June 29, 2006 between Joseph Okotch (the purchaser) and Robson Ndiema (the vendor) the property was allegedly purchased in trust for Kenneth Wanjala Okotch who would assume ownership upon reaching the age of majority. The said Joseph Okotch did not testify to verify the same. Secondly, the prosecution’s evidence was that said Joseph Okotch held the property on behalf of his son Kenneth Wanjala Okotch. No evidence was produced before the court to establish that indeed this was the legal position that existed at the time. Thirdly, the prosecution’s evidence that the 2nd appellant disguised himself as Kenneth Wanjala Okotch is not supported by credible evidence. No hand writing expert evidence was produced to support the claim that the 2nd appellant witnessed the agreement as someone else. This would have proved with absolute certainty who the owner of that signature was and place the proper perpetrator of the crime at the scene. Consequently, the evidence of the prosecution fell below the legal threshold of proof.

21. It was clear from the evidence adduced that the complainant did not conduct a search to establish the particulars of the property before he purchased the same. This failure led him to suffer the unfortunate consequences that led to the filing of the complaint. In the end, this court finds that the prosecution failed to establish its case to the required standard of proof. The evidence of the prosecution raises reasonable doubt that a conviction cannot be sustained in the circumstances. The upshot of the above is that the appeal succeeds. The appeal is allowed, conviction quashed and the sentence is set aside. The appellants shall be set at liberty forthwith unless otherwise unlawfully withheld.It is so ordered.

DATED AT KITALE THIS 17TH DAY OF MAY 2022. L. KIMARUJUDGE