https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10614

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU COUNTY COURT NAME: KISUMU HIGH COURT CASE NUMBER: HCCRA/E093/2024 RICHARD ONYANGO OYARE VS ODPP JUDGMENT ***(Being an Appeal against the Conviction and Sentence by the Hon. Magistrate*** ***J. Mukhwana R.M at Nyando in CR Case No. E1290 of 2021; Republic vs. Richard Onyango Oyare and 2 Others)*** # INTRODUCTION/ BRIEF FACTS * 1. This is an Appeal from the Judgment by the Hon. Magistrate J. Mukhwana in CR Case No. E1290 OF 2021; Republic vs. Richard Onyango Oyare and 2 Others. 2. The Accused persons, Richard Onyango Oyare, Leonida Owuor Ojwang and Millicent Anyango Juma were charged with the offence of obtaining money by false pretence contrary to Section 313 of the Penal Code in that on the 8th day of February 2013 in Wangaya area, Nyando Sub-County, within Kisumu County, jointly with intent to defraud obtained from Sabanius Atoo Juma the sum of Kenya Shillings Four Hundred and Fifty Thousand (Kshs. 450,000/=) by pretending to sell the said Sabanius Atoo Juma a parcel of land KISUMU/ WANGAYA/3973, a fact you knew. 3. From the evidence on record, the complainant purchased a parcel of land from the Appellant after the latter had caused the property to be transferred into his name from the names of the original proprietors, namely Festo, Hezekiah, his two deceased brothers, and himself. Following the purchase, the complainant was issued with a title deed in his name. However, the title was subsequently revoked after the Land Registrar determined that the transfer process had been irregular and unsupported by the requisite documentation. The evidence further shows that the Appellant informed the complainant that his original identity card and title deed were required to facilitate succession proceedings. Despite this representation, the Appellant failed to disclose the complainant's interest in the property as a liability or beneficiary in the succession cause. Consequently, the complainant only became aware of the succession proceedings at an advanced stage, by which time the process was nearing completion. 4. The trial court, after considering the testimonies, evidence tendered by all parties and the submissions thereof, the learned magistrate found that it was unable to sustain a conviction against the 2nd and 3rd accused persons but found the appellant guilty as charged, convicted him under Section 215 of the CPC; the trial court sentenced the accused to pay a fine of Kenya Shillings 500,000/= or serve 2 years in jail. 5. The Appellant herein, dissatisfied with the finding of the trial court, appealed to this court raising 10 grounds for appeal. # SUBMISSIONS BY PARTIES **Appellant’s Submissions** 1. On the first ground, the Appellant submits that the prosecution did not adduce sufficient evidence to sustain a conviction. He contends that the Complainant willingly entered into a contract for the purchase of parcel No. KISUMU/WANGAYA 1/3973, which was jointly owned by the Appellant and his two deceased brothers in equal shares. The Appellant submits that the two widows of the deceased brothers were present during the transaction, consented to the sale of the parcel for Kshs. 450,000/=, received the purchase price, and surrendered possession of the land to the Complainant. 1. The Appellant further submits that the Complainant requested that the title be registered in one name, and this was done with the full involvement of PW2, who acted both as the surveyor and as the person who prepared the sale agreement. According to the Appellant, PW2 prepared the agreement, witnessed its execution by all parties, and also witnessed the exchange of the purchase price. 2. The Appellant further submits that the parcel was jointly owned by the three brothers and that he duly involved the widows in the sale process. He argues that this conclusively negates the allegation of false pretences and the first ingredient of the offence charged. It is the Appellant’s position that all parties to the sale agreement received their respective shares as rightful beneficiaries and that the parcel was subsequently transferred to the Complainant. 3. On the second issue concerning intent to defraud, the Appellant submits that such intent was not proved and, consequently, this essential ingredient of the offence was not established. 4. Regarding the ingredient of obtaining, the Appellant submits that the two widows, being beneficiaries of the estate, confirmed that they were present during the transaction and that the Complainant remains in possession of the parcel of land. 5. On the third issue, the Appellant submits that there is no evidence demonstrating whether the two deceased brothers held the property as joint tenants or tenants in common. He maintains that he nonetheless had a proprietary interest in the suit property and was entitled to transfer it in his favour through the doctrine of survivorship. In any event, he argues that he had the legal right to transfer the property. 6. The Appellant submits that the trial magistrate erred in both law and fact by convicting and sentencing him, notwithstanding that the record shows that the suit land was transferred to the 2nd Accused and another person without any evidence linking the Appellant or the 3rd Accused to that transfer. Further, the Appellant argues that the green card allegedly showing the transfer of the suit land from the Complainant to the 1st Accused was never produced in court. He also questions the source and authenticity of the land registry records from which the search was obtained. 1. The Appellant further submits that the trial magistrate erroneously found that he had secretly filed a succession cause without informing the Complainant and had caused another person to be registered as proprietor of the suit property. He contends that there was no evidence linking him to the filing of the alleged succession cause; the name of the deceased person whose estate was allegedly the subject of the succession proceedings was never disclosed; and it was not demonstrated how he could have influenced the 2nd acquitted Accused to attend court proceedings in the alleged succession cause. The Appellant also raises concerns regarding Exhibit 8, the green card, which shows the suit property registered in the joint names of the 2nd acquitted Accused and another person. He questions whether, if the alleged acts were indeed committed by him as suggested, there was any discernible motive, particularly given the evidence that he only received his lawful one-third share of the sale proceeds. 2. The Appellant submits that it remains unclear how the alleged motive attributed to him by the learned trial magistrate would have benefited him. He further questions why, if he intended to defraud, he did not register the property in his own name. 3. The Appellant further submits that no evidence was tendered to establish that PW2, who acted as PW1’s agent, was a legal practitioner or advocate, yet PW2 admitted in his testimony that he prepared the sale agreement, Exhibit 2, between the Complainant and the Appellant together with two other parties. 4. The Appellant further submits that it is on record that PW2 was introduced into the transaction by PW1 as his agent and surveyor. Consequently, the Appellant argues that his evidence; that PW2 obtained the parties’ details and facilitated the transfer of the suit property into the Appellant’s name as sole proprietor at the request of the Complainant (PW1); ought to have been believed. 1. The Appellant relied on Nakuru Criminal Appeal No. 183 of 2008, Clement Kiptarus v Republic, as well as Kipsaino v Republic. He submits that the ingredients of the offence charged were not proved and that the learned trial magistrate therefore fell into error. **Respondent’s Submissions** 1. The Respondent submitted that, for the offence charged to be established, the prosecution was required to prove the following elements: a false representation of an existing or past fact; knowledge on the part of the accused that the representation was false or a belief that it was false; an intention to defraud; and that the representation induced the complainant to part with money or property. 2. The Respondent submitted that all the foregoing ingredients were correctly identified by the trial court and were proved by the evidence on record. The Respondent contended that the Appellant lacked the legal capacity to sell the suit land but nonetheless represented himself as having such capacity. 3. On the issue of false representation, the Respondent relied on the case of Oware v Republic. The Respondent submitted that the Complainant parted with a total sum of Kshs. 450,000/= on the strength of the Appellant’s representations, thereby demonstrating the causal link between the alleged misrepresentation and the transfer of money. 4. The Respondent further submitted that the intent to defraud may be inferred from the Appellant’s conduct, including his failure to fulfil the promise made to the Complainant. The Respondent maintained that the false representation existed at the inception of the transaction, thereby taking the matter outside the realm of a purely civil dispute and placing it squarely within the ambit of criminal liability. 5. Consequently, the Respondent prayed that the appeal against conviction be dismissed, the appeal against sentence be dismissed, and the conviction and sentence imposed by the trial court be upheld. # ISSUES FOR DETERMINATION 1. Having carefully reconsidered and re-evaluated the evidence on record as mandated of a first appellate court in ***Okeno v Republic [1972] EA 32***, the following issues arise for determination: 1. Whether the prosecution proved beyond reasonable doubt that the Appellant made a false pretence within the meaning of Sections 312 and 313 of the Penal Code. 2. Whether the prosecution proved that the Appellant knew the alleged representation was false or did not believe it to be true. 3. Whether the prosecution proved that the Appellant acted with the requisite intention to defraud the complainant. 4. Whether the prosecution proved that the complainant was induced by the Appellant's alleged false representation to part with Kshs. 450,000/=. 5. Whether the subsequent cancellation of the complainant's title deed due to succession and registration irregularities was sufficient proof that the Appellant had obtained Kshs. 450,000/= by false pretences. 6. Whether the learned trial magistrate erred in law and fact by convicting the Appellant while acquitting the 2nd and 3rd accused persons despite their admitted participation in the transaction. # ANALYSIS OF THE ISSUES FOR DETERMINATION ## Issue 1: Whether the prosecution proved beyond reasonable doubt that the Appellant made a false pretence within the meaning of Sections 312 and 313 of the Penal Code. 1. The offence of obtaining by false pretences is created under Section 313 of the Penal Code and must be read together with Section 312 which defines a 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 to be false or does not believe to be true.”* 1. The prosecution was therefore under a duty to prove that the Appellant made a false representation relating to an existing or past fact. 2. The first question that arises is whether the Appellant falsely represented that he owned or had authority to sell the suit property. 3. The evidence on record establishes that the suit property was originally registered in the names of the Appellant, Festo Ojuang and Hezekiah Juma Oyare. It is therefore not disputed that the Appellant possessed a proprietary interest in the property. 4. Further, the evidence demonstrates that the sale transaction was not undertaken secretly. The widows of the deceased proprietors, namely Leonida Owuor Ojwang and Millicent Anyango Juma, participated in the negotiations, consented to the sale, executed the sale agreement and received portions of the purchase price. The learned trial magistrate ultimately acquitted the 2nd and 3rd accused persons despite their participation in the transaction. 5. The question therefore arises: if all the beneficiaries participated in the sale and received the proceeds thereof, can it properly be said that the Appellant falsely represented himself as having authority to transact over the property? 6. This court finds that the evidence demonstrates that the Appellant acted together with the beneficiaries of the deceased proprietors and did not purport to be the sole person entitled to deal with the property. 7. The evidence further reveals that the complainant was placed into possession of the land and a title deed was subsequently issued in his favour. The transaction only encountered difficulties after the Land Registrar determined that the transfer process was irregular and there was suspected fraud, but the registrar did not state that the fraud was occasioned by the Appellant. 1. In ***Oware v Republic [1989] KLR 252***, the Court of Appeal held that a false pretence must relate to an existing or past fact and not to a future event or promise. The prosecution was therefore required to establish that the Appellant's representation concerning his authority over the land was false at the time it was made. No such evidence was presented. 2. Accordingly, this court finds that the prosecution failed to prove the first ingredient of the offence. ## Issue 2: Whether the prosecution proved that the Appellant knew the alleged representation was false or did not believe it to be true. 1. Even assuming that the representation was false, the prosecution was further required to prove that the Appellant knew it was false or did not believe it to be true. 2. In ***Joseph Mburu Njeru v Republic [2007] eKLR,*** the court emphasized that every ingredient of the offence of obtaining by false pretences must be proved beyond reasonable doubt. 3. The evidence on record reveals that the Appellant involved the widows of the deceased proprietors in the transaction, shared the purchase price among them, surrendered possession of the land to the complainant and facilitated documentation leading to the issuance of a title deed in favour of the complainant. 4. This court must ask itself, would a person who knew he had no right whatsoever over the property openly involve all beneficiaries, allow transfer documents to be processed and permit possession to pass to the purchaser? The answer must be in the negative. 1. The conduct exhibited by the Appellant is inconsistent with a person acting under a known falsehood. Rather, it demonstrates a belief, albeit mistaken, that the transaction could lawfully proceed notwithstanding the unresolved succession process. 2. The prosecution therefore failed to establish beyond reasonable doubt that the Appellant knew the alleged representation to be false. ## Issue 3: Whether the prosecution proved that the Appellant acted with the requisite intention to defraud the complainant. 1. Intent to defraud is the gravamen of the offence under Section 313 of the Penal Code. 2. The court must ask, what evidence demonstrated that the Appellant intended to cheat or unlawfully deprive the complainant of his money? 3. The evidence before the court reveals that the purchase price was shared among all the parties involved in the transaction. There was no evidence that the Appellant appropriated the entire purchase price to himself. 4. The evidence further demonstrates that the complainant was granted possession of the land and continues to utilize the property. 5. Significantly, the evidence also shows that when succession proceedings were eventually undertaken, the Appellant did not emerge as the registered proprietor of the property. Instead, the property was registered in the names of Leonida Owuor Ojwang and Grace Akinyi Ojwang. 6. This raises a fundamental question; If the Appellant's intention was to defraud the complainant and repossess the property for his own benefit, why was he excluded from the eventual registration? No satisfactory answer emerges from the prosecution evidence. 7. The record is equally devoid of evidence showing that the Appellant obtained any personal benefit over and above the share received by the other beneficiaries. 8. This court is therefore unable to discern any fraudulent motive attributable to the Appellant. Consequently, the prosecution failed to establish the ingredient of intent to defraud. **Issue 4: Whether the prosecution proved that the complainant was induced by the Appellant's alleged false representation to part with Kshs. 450,000/=.** 1. The prosecution was required to establish a direct causal connection between the alleged false representation and the payment of Kshs. 450,000/=. 2. The evidence reveals that PW2, who was admittedly the complainant's surveyor and agent, prepared the sale agreement, coordinated the transaction and facilitated the transfer process. 3. The complainant voluntarily entered into the sale agreement after negotiations involving all parties and subsequently took possession of the property. 4. The court therefore poses the following question; Did the complainant part with his money because he was deceived by the Appellant or because he voluntarily entered into a land sale transaction which was later affected by succession-related complications? The evidence overwhelmingly supports the latter conclusion. 5. The complainant paid the purchase price pursuant to a mutually negotiated sale agreement involving all persons claiming beneficial interests in the property. The money was therefore paid in furtherance of a contractual arrangement and not as a consequence of any proven fraudulent representation. 6. The prosecution therefore failed to establish the necessary nexus between the alleged false representation and the payment of the purchase price. **Issue 5: Whether the subsequent cancellation of the complainant's title deed due to succession and registration irregularities was sufficient proof that the Appellant had obtained Kshs. 450,000/= by false pretences.** 1. After analysis of the evidence on record, this court notes that the cancelling of the title deed or the recalling of the title deed due to irregularities had nothing to do with the conduct of the Appellant and/ or allegedly obtaining money by false pretences. 2. The evidence on record establishes that the suit property originally belonged to the Appellant and his two deceased brothers. It is equally undisputed that the widows of the deceased proprietors actively participated in the negotiations, consented to the sale, executed the transaction documents and received shares of the purchase price. 3. The evidence further demonstrates that after the sale agreement was executed, the complainant was granted possession of the property and a title deed was subsequently processed and issued in his favour. It was only later that the Land Registrar cancelled the title upon finding that the transfer process had been undertaken without the requisite succession proceedings and supporting documentation and/or which was termed as irregularities. 4. The critical question therefore becomes whether the cancellation of the title deed was proof of fraud on the part of the Appellant or merely evidence of procedural deficiencies in the succession and transfer process. 1. This court notes that the Land Registrar did not cancel the title because the Appellant was a stranger to the property, had forged documents or had fraudulently procured registration. Rather, the cancellation was termed by the Registrar as having suspected fraud, which the details or the fraud was never discussed and/or connected to the Appellant. 2. The evidence also reveals that PW2, who acted as the complainant's surveyor and agent, played a significant role in preparing the sale agreement and facilitating the transfer process. 3. Further, there was no evidence demonstrating that the Appellant personally participated in the succession proceedings that eventually resulted in the registration of the property in the names of Leonida Owuor Ojwang and Grace Akinyi Ojwang. Indeed, the Appellant himself did not emerge as a beneficiary of that registration. 4. The complainant remained in possession of the property and continued utilizing it even after the title was cancelled. 5. In ***Oware v Republic [1989] KLR 252***, the Court of Appeal held that the prosecution must establish a false representation relating to an existing or past fact and that such representation induced the complainant to part with his property. 6. The evidence before this court demonstrates that the complainant paid the purchase price pursuant to a voluntary sale agreement, obtained possession and was even issued with a title deed before the same was later cancelled due to procedural irregularities. 7. Accordingly, this court finds that the subsequent cancellation of the complainant's title deed, though indicative of irregularities in the transfer process, was not sufficient proof that the Appellant had obtained Kshs. 450,000/= by false pretences. The learned trial magistrate therefore erred in treating the cancellation as conclusive evidence of the offence charged. ## Issue 5: Whether the learned trial magistrate erred in law and fact by convicting the Appellant while acquitting the 2nd and 3rd accused persons despite their admitted participation in the transaction. 1. The evidence established that the 2nd and 3rd accused persons participated in the negotiations, consented to the sale, executed the transaction documents and received shares of the purchase price. 2. The learned trial magistrate nevertheless acquitted them while convicting only the Appellant. The inevitable question is this; If the transaction was fraudulent from its inception, why were the persons who actively participated in the sale and benefited from the proceeds absolved of criminal liability? 3. No explanation was provided by the trial court for this apparent inconsistency. 4. The conviction of the Appellant alone was therefore not supported by the evidence on record and resulted in an inconsistent verdict. # DISPOSITION 1. Upon a fresh and exhaustive re-evaluation of the evidence and the law, this court finds that the prosecution failed to prove beyond reasonable doubt that the Appellant made a false pretence, knew the representation to be false, acted with intent to defraud, or induced the complainant to part with Kshs. 450,000/= through any fraudulent representation. 2. The evidence instead demonstrates that the complainant voluntarily entered into a land sale transaction involving all the beneficiaries of the property, obtained possession of the land and was subsequently issued with a title deed which was later cancelled owing to irregularities. 3. Accordingly, 1. The Appeal is merited and is hereby allowed. 2. The Conviction entered against the Appellant for the offence of obtaining money by false pretences contrary to Section 313 of the Penal Code is hereby quashed. 3. The Sentence imposed thereon is hereby set aside. 4. The Appellant shall be set free forthwith unless otherwise lawfully held. It is so ordered. SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ABDI M. HASSAN** Kisumu High Court High Court Criminal Date: 2026-07-17 13:22:51