https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8474

Sawenja v Republic (Criminal Appeal E125 of 2025) [2026] KEHC 8474 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8474 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E125 of 2025 DR Kavedza, J June 18, 2026 Between Oscar Barasa Sawenja Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered by Hon. M. Murage (P.M) on 1st April 2025 at Kibera Chief Magistrate’s Court Criminal Case No. E840 of 2020 Republic vs Oscar Barasa Sawenja) Judgment 1.The appellant was charged and after a full trial convicted for the offence of obtaining money by false pretences contrary to section 313 of the Penal Code The particulars of the offence are that on diverse dates between 15th July 2025 and 21st January 2020 in Nairobi Kilimani area within Nairobi County, the appellant obtained Kshs. 780,000 from Mary Khakasa Kokonya by falsely pretending that she was in a position to assist her in importing motor vehicle make Honda fit a fact she knew was false. The appellant was sentenced to serve three (3) years imprisonment. 2.The appellant, aggrieved by both conviction and sentence, filed the present appeal challenging her conviction and sentence. She challenged the totality of the prosecution’s evidence against which she was convicted. Further that the sentence was harsh and excessive. He urged the court the quash the conviction and sentence imposed by the trial court. 3.This being the first appellate court, we are guided by the ruling in Okeno v. R [1972] EA 32. In this case, the court opined that a court of first appeal ought to re-examine all the evidence afresh and in an exhaustive manner, to come up with its own conclusions without overlooking the conclusions of the trial court, bearing in mind that it never saw the witnesses testify. 4.The prosecution case was that the complainant, PW1, Mary Khakasa Kokonyo, entered into an oral agreement with the appellant on 12th July 2019 for the importation of a motor vehicle from Japan at an agreed cost of Kshs. 830,000, payable in instalments. PW1 transferred Kshs. 400,000 to the appellant’s Standard Chartered Bank account on 15th July 2019, Kshs. 300,000 to his Equity Bank account, and a further Kshs. 50,000 on 16th September 2019. The vehicle was expected to be delivered in November 2019. 5.PW1 testified that in January 2020 the appellant informed her that the vehicle had arrived at the Port, whereupon she remitted an additional Kshs. 30,000. Thereafter, the appellant became unreachable and stopped answering her calls. She reported the matter at Kilimani Police Station on 20th May 2020. Following his arrest, the appellant refunded Kshs. 70,000. PW1 maintained that she never saw the motor vehicle allegedly imported on her behalf. 6.PW2, No. 100674 PC Doreen Wakhungu, the investigating officer, produced the bank statements of both the complainant and the appellant. She testified that during investigations the appellant failed to furnish any importation documents to substantiate his claim that the vehicle had been imported. 7.At the close of the prosecution case, the trial court found that the appellant had a case to answer and placed him on his defence. 8.In his sworn defence, the appellant stated that the complainant, who was his aunt, engaged him to import a motor vehicle, which he duly procured. He produced a Bill of Lading, Certificate of Roadworthiness, and Export Certificate in support of his case. He testified that the vehicle had been booked through Kencont Logistics Services Limited and that his responsibility was limited to its importation, while the complainant was required to meet the clearance charges. According to him, the complainant later declined to pay the outstanding clearance fees and instead demanded a refund, which he agreed to make. He maintained that the vehicle remained at the Container Freight Station (CFS) and that he had refunded Kshs. 230,000. He admitted receiving Kshs. 780,000 from the complainant and stated that the total cost of the vehicle was Kshs. 1,000,000. However, he produced no evidence to show that the vehicle had arrived at or been cleared through the Port. 9.After the close of the defence, the appellant was convicted and sentenced accordingly. 10.The appeal was canvassed by way of written submissions, which have been duly considered, and there is no need to rehash them. 11.The appellant was charged with the offence of obtaining money by false pretences contrary to section 313 of the Penal Code. It provides as follows:“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.” 12.The offence of obtaining by false pretences under section 313 of the Penal Code requires proof that the accused obtained something capable of being stolen through a false representation of an existing fact, knowing the representation to be false and with intent to defraud. A false pretence is defined under section 312 of the Penal Code as a representation, made by words, writing or conduct, of an existing fact which is false and which the maker knows to be false. 13.It is not disputed that the complainant, PW1, paid the appellant a total of Kshs. 780,000 for the importation of a motor vehicle from Japan. PW1's evidence was that the appellant represented that he would procure and deliver the vehicle on her behalf. Acting on that representation, she remitted the agreed sums between July and September 2019 and later paid a further Kshs. 30,000 after being informed that the vehicle had arrived at the Port. 14.The appellant admitted receiving the money. His defence was that he imported the vehicle and that the complainant failed to pay the requisite clearance charges. He produced a Bill of Lading, Certificate of Roadworthiness and Export Certificate in support of that assertion. He further maintained that the vehicle remained at a Container Freight Station and that he had partially refunded the complainant. 15.Upon re-evaluation of the evidence, I find that the documents produced by the appellant do not support his defence. Notably, the Bill of Lading identifies the consignee as Leah Munyasia, whereas the complainant in this case is Mary Khakasa Kokonyo. No evidence was tendered to establish any relationship between the two or to demonstrate that the shipment referred to in the Bill of Lading was intended for the complainant. The document therefore lacks probative value in proving that the vehicle allegedly imported was the one the appellant had agreed to procure for PW1. 16.Further, despite repeatedly asserting that the vehicle had arrived in Kenya and was awaiting clearance, the appellant failed to produce any port records, customs documentation, clearance records, storage invoices, or other independent evidence demonstrating that the specific vehicle contracted for by the complainant ever arrived in the country. His explanation therefore remained uncorroborated. 17.The appellant's conduct after receiving the money further strengthens the prosecution case. PW1 testified that after demanding delivery of the vehicle, the appellant became unreachable and ceased responding to her calls. It was only after his arrest that he made a partial refund. Such conduct is inconsistent with that of a person who had genuinely fulfilled his contractual obligation and was merely awaiting clearance charges from the complainant. 18.Having reconsidered the entire evidence, I am satisfied that the prosecution proved beyond reasonable doubt that the appellant obtained Kshs. 780,000 from PW1 by falsely representing that he would import and deliver a motor vehicle on her behalf. The representation induced PW1 to part with her money. The absence of credible evidence that the agreed vehicle was ever imported, coupled with the inconsistencies in the defence documents and the appellant's subsequent conduct, demonstrate an intention to defraud. 19.I therefore find that the essential ingredients of the offence of obtaining by false pretences were proved beyond reasonable doubt. The conviction was supported by the evidence, and the trial court cannot be faulted for arriving at that conclusion. The appeal against conviction accordingly fails. 20.The appellant was sentenced to serve three (3) years imprisonment. During the sentencing proceedings, the trial court considered that he was a first offender, the pre-sentence report on record and the appellant’s mitigation. The sentence imposed was also legal and within the court’s discretion. 21.In the premises, the appeal is found to be lacking in merit and is dismissed in its entirety.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 18TH DAY OF JUNE 2026__________________D. KAVEDZAJUDGE