https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11625

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CRIMINAL APPEAL NO. E245 OF 2022** **PERISTER KWAMBOKA OMWENGA-------------------------APPELLANT** **VERSUS** **THE REPUBLIC DIRECTORATE OF PUBLIC PROSECUTION--------------------------------------------------------------------------------------RESPONDENT** ***(Being an Appeal against Judgment, Conviction and Sentence meted by the Ilon, Esther K. Kimilu, Senior Principal Magistrate, Nairobi Law Courts in Criminal Case No. 2283 of 2018 delivered on 13 day of December, 2022 in Three Counts of Forgery Contrary to section 345 as read with Section 349, of the Penal Code, Forging a Stamp Contrary to Section 352 (a) of the Penal Code and Two Counts of Making a Document without Authority Contrary to Section 357 (a) of the Penal Code).*** **JUDGMENT** **INTRODUCTION** 1. The appellant was charged with the following counts: **COUNT 1** **FORGERY CONTRARY TO SECTION 345 AS READ WITH SECTION 349 OF THE PENAL CODE.** PERISTER KWAMBOKA OMWENGA on the 18th day of June 2018 at Uniafric house 3rd floor suite 317 in Nairobi within Nairobi County with the intent to defraud forged the signature of Kitei Peter in a plaintiffs Witness Statement purporting it to be a genuine signature signed by Kitei Peter dated 18th June 2018 in Mavoko Principal Magistrate Court Civil Case number 881/2018. **COUNT 2** **FORGERY CONTRARY TO SECTION 345 AS READ WITH SECTION 349 OF THE PENAL CODE** PERISTER KWAMBOKA OMWENGA On the 18th day of June 2018 at Uniafric house 3rd floor Suite 317 in Nairobi within Nairobi County, with intent to defraud forged the signature of KITEI PETER in a Verifying affidavit purporting it to be a genuine signature signed by KITEI PETER dated 18th June 2018 in Mavoko Principal Magistrate Court Civil Case number.881/2018. **COUNT 3** **FORGERY CONTRARY TO SECTION 345 AS READ WITH SECTION 349 OF THE PENAL CODE** PERISTER KWAMBOKA OMWENGA: On the 18th day of June 2018 at Uniafric house 3rd floor Suite 317 in Nairobi Within Nairobi County, with intent to defraud forged the signature of JOHN. M. KIMATHI in a Verifying affidavit purporting it to be a genuine signature signed by JOHN.M. KIMATHI dated 18th June 2018 in Mavoko Principal Magistrate Court Civil Case number 881/2018. **COUNT 4** **FORGING STAMP CONTRARY TO SECTION 352(a) OF THE PENAL CODE**PERISTER KWAMBOKA OMWENGA: On the 18th day of June 2018 at Uniafric house 3rd floor Suite 317 in Nairobi within Nairobi County, made a false stamp impression used by JOHN. M. KIMATHI an advocate and commissioner for oaths for the purpose 'of commissioning documents with intent to defraud. **COUNT 5** **MAKING A DOCUMENT WITHOUT AUTHORITY CONTRARY TO SECTION 357(a) OF THE PENAL CODE.** PERISTER KWAMBOKA OMWENGA. On the 18th day of June 2018 at Uniafric house 3rd floor Suite 317 in Nairobi within Nairobi County, with intent to defraud without lawful authority or excuse made a plaintiffs statement purporting it to be a genuine statement made and signed by KITEI PETER. **COUNT 6** **MAKING A DOCUMENT WITHOUT AUTHORITY CONTRARY TO SECTION 357(a) OF THE PENAL CODE.** PERISTER KWAMBOKA OMWENGA. On the 18th day of June 2018 at Uniafric house 3rd floor, Suite 317 in Nairobi within Nairobi County, with intent to defraud without lawful authority or excuse made a verifying affidavit purporting it to be a genuine Verifying affidavit made and signed by JOHN. M. KIMATHI an advocate and commissioner for oaths. 1. The appellant was tried, convicted and sentenced in respect of all the counts. 2. The appellant, dissatisfied with the Judgment appealed against both conviction and sentence on the following grounds: - 3. The Honorable Magistrate erred in law and fact by failing to appreciate that the evidence tendered by the prosecution was inadequate, devoid of probative value, shambolic, deficient, lacking cogency and incongruent and thus made an erroneous finding of guilty against the appellant. 4. The Honorable Magistrate erred in law and fact in the entirety of the proceedings by failing to invoke and avail to the appellant fundamental rights constituting and underpinned in Article 50 and Article 25 (c) of the Constitution pertinent to fair trial and thus delivered a travesty of justice. 5. The learned Magistrate erred in law and in fact the evidence tendered in the proceedings offends the principle and parameters of Section 107 and 108 of the Evidence Act 6. The Honorable Magistrate erred in law and fact in finding that the appellant was negligent was incompatible with incompatible with the evidence on record and at variance with the specific charges preferred and is in breach of the principle of proof beyond a reasonable doubt. 7. The Honorable Magistrate erred in law and fact in failing to appreciate that the prosecution evidence as summed up by the Investigating Officer was in favour of an acquittal rather than the conviction of the appellant. 8. The Honorable Magistrate erred in law and fact by failing to consider the defense evidence in its totality which evidence points to the lack of culpability on the part of the appellant. 9. The Honorable Magistrate erred in law and fact failed to correctly deduce that the prosecution had failed to discharge their burden of proof and instead shifted the burden to proof her innocence to the appellant herein 10. The learned Magistrate erred in law and fact in convicting and sentencing the appellant notwithstanding that the evidence tendered by the Prosecution Witnesses pointed to the innocence rather than the guilty of the appellant. 11. The learned Magistrate relied on inadequate and shambolic evidence of the prosecution and thereby derived a conviction disregarding failure on the part of the prosecution to discharge the burden of proof beyond reasonable doubt as provided and contemplated in the Law. 12. The learned Magistrate erred in Law in failing to appreciate that the weight of evidence leaned in favour of exonerating the appellant than attracting conviction and thus arrived at speculative and unjustified far-fetched inferences leading to conviction and sentence. 13. The learned magistrate erred in law in his judgment by making inferences which amounted to an effort act or attempt to fill and actually filled gaps and inadequacies left by the prosecution in their case. 14. The learned Magistrate erred in law and fact by not appreciating that the evidence tendered in court by the prosecution witnesses was incapable of sustaining any of the charges or counts preferred against the appellant herein. 15. The conviction ignored the benefit of doubt available to the appellant herein thus rendered erroneous travesty of justice and the findings of the court incongruous with the evidence adduced in Court. The Learned Magistrate erred in law and fact by failing to appreciate that the prosecution witnesses gave scanty, contradictory and unreliable evidence incapable of inducing or deriving a conviction and sentence meted to the Appellant is erroneous. 16. The Learned Magistrate erred in law and fact in reaching far-fetched inferences and finding that the offence had been committed yet the evidence on record was full of conjecture and fabrication. 17. The learned Magistrate erred in Law in failing to appreciate that the evidence tender4ed by the prosecution witnesses singly and collectively failed to bring out the basic elements of the charges preferred in both actus reus and mens rea hence failing to deliver the threshold of proof beyond reasonable doubt hence arriving at an erroneous verdict and Sentence. 18. The following issues for determination arise from the grounds of appeal: 19. Whether there was a breach of the fair trial of rights of the appellant in the course of trial. 20. Whether the prosecution discharged the evidential and legal burden proof under Section 107 and 108 of the Evidence Act to establish all the ingredients of the offenses charged. 21. Whether the defense of the appellant was duly considered. 22. Whether there was shifting of the burden of proof to the accused person. 23. The parties to the appeal agreed to file written submissions in support of their respective positions and each of the parties made some brief highlights during the hearing of the Appeal on 19th February 2026. 24. This court has fully considered the written as well as oral submissions and appreciates both counsel for their industry in the manner in which they prosecuted the appeal. **APPELLANT’S CASE** 1. This Appeal challenges the Judgment, conviction and sentence delivered on 13th December 2022. 2. It is the Appellant’s position that the findings of the Learned Magistrate on all six counts were inconsistent with the evidence on record, and that the conviction was founded on inadequate, contradictory and speculative evidence, coupled with a failure to consider the Appellant’s defense. 3. The Appellant urges this Honourable Court to re-evaluate the entire evidence on record and find that none of the six counts was proved to the required standard. 4. According to the appellant the prosecution failed to establish any cogent nexus between the Appellant and the alleged offences, and the conviction is therefore unsafe and unsustainable. 5. The appellant further submitted that the law on burden of proof is settled. The appellant submitted that in accordance with Sections 107, 108 and 109 of the Evidence Act (Cap 80) the prosecution was under duty to prove all the ingredients with which the appellant was charged. 6. The appellant posited that these provisions were not properly applied by the Learned Magistrate, who instead shifted the burden onto the Appellant. 7. Counsel submitted that principle in **Woolmington v DPP [1935] AC** 462 remains that the burden of proof rests on the prosecution throughout, and any doubt must be resolved in favor of the accused. 8. Further, in **Elizabeth Waithiegeni Gatimu v Republic [2015] eKLR**, the court relying on Re Winship, stated: “The key question is, does the defense offered raise doubts as to her guilty? Is it reasonable in the circumstances?... before an accused person can be convicted of a crime, his/her guilt must be proved beyond reasonable doubt… the reasonable doubt standard is indispensable… it is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.” 1. According to the appellant this principle was not adhered to, as the evidence on record disclosed material gaps and contradictions which ought to have been resolved in favor of the Appellant. 2. The appellant submitted that proof of both actus reus and mens rea was essential in respect of all the counts before the court could reach a verdict of guilty. 3. The appellant relying on **Mwangi v Republic (Criminal Appeal E011 of 2024) [2024] KEHC 7867 (KLR)**, where the court held: ***“Making a document without authority… is merely the actus reus… The mens rea is the intent to defraud… The offence is completed when there is also the actus reus… The convictions cannot stand***…”, submitted that since the appellant was alleged to have drawn pleadings without instructions of the plaintiff, it was necessary for the prosecution to establish that when the appellant drew the said pleadings she did so without instructions and the intention was to defraud the defendant company. 1. In the present case, neither actus reus nor mens rea was proved. There was no evidence demonstrating that the Appellant made, forged, or had knowledge of any falsity in the documents presented to her before instituting the suit. 2. The appellant further argued that there was no forensic evidence linking her to the alleged signatures or stamp impressions. The document examiner did not examine the Appellant’s signature at all. The findings only showed discrepancies but did not attribute them to the Appellant. The appellant relied on **Njoroge Mwangi v Republic [2021] eKLR** where the court held that;- “…if a document is alleged to be signed… the signature… must be proved… There was no such evidence… The charge… was not proved beyond reasonable doubt…” 1. The appellant contends that there was nothing connecting her to the alleged documents. Further, the appellant submitted that the prosecution evidence was further weakened by the testimony of its own witnesses. 2. PW1’s evidence was inconsistent and uncorroborated, particularly regarding the alleged loss of his identification card and the absence of any supporting police report. These gaps according to the appellant created reasonable doubt which was not resolved in favor of the Appellant. 3. Further, the appellant submitted that PW2’s testimony was evasive and self-serving, aimed at distancing himself from the matter. The court failed to interrogate his contradictions or consider the professional context within which advocates operate. 4. The appellant went on to submit that in **Republic v David Ruo [2016] eKLR**, the court held that witness testimony must be consistent and credible, and evasive accounts warrant skepticism. Similarly, in **Kariuki v Republic [1986] KLR 500,** the court emphasized that professional conduct within reasonable norms cannot be criminalized absent clear evidence of wrongdoing. The appellant pleaded with this court to find that she was basically acting in good faith when she drew the subject pleadings for filing in court. 5. The evidence of PW3 and PW4 confirmed that the Appellant’s law firm had handled numerous legitimate claims, many of which had been settled, demonstrating that the Appellant’s conduct was within lawful professional practice. In **Francis Njoroge v Republic [2019] eKLR**, the court held that evidence supporting lawful conduct must be weighed against allegations, with doubt resolved in favor of the accused. 6. The evidence of PW5, the forensic examiner, did not implicate the Appellant. He expressly confirmed: ***“I was not invited to exam a signature of Perister***,” 1. The appellant contends that the admission by P5 rendered the case against the appellant on the charge of forgery and making a false document. 2. PW6’s evidence confirming the authenticity of the identification document introduced further doubt, while PW7 confirmed that the documents were duly filed and accepted by the court registry without irregularity, reinforcing that the matter was properly within the civil process. 3. The appellant further submitted that the conduct of PW8, the investigating officer, further weakened the prosecution case. His investigations were selective and incomplete, and he failed to call crucial witnesses or pursue key lines of inquiry. The appellant cited that case of **Bukenya & Others v Uganda [1972] EA 549**, the court held that failure to call material witnesses warrants an adverse inference against the prosecution. This principle applies, given the omission of critical witnesses such as Dr. Okere and other relevant persons. 4. The Appellant’s defense was clear and consistent. According to her, she acted in good faith as an advocate upon receiving instructions and documents from a client who presented himself as PW1. There was no evidence of intent to defraud or any personal benefit. 5. The appellant posited that the Learned Magistrate failed to properly evaluate this defense and instead relied on conjecture and assumptions, thereby misdirecting herself on both the law and the evidence. 6. The appellant concluded by submitting that the prosecution failed to prove the case beyond reasonable doubt. The conviction was therefore unsafe thus urged the court to allow the appeal. **RESPONDENT’S CASE** 1. The respondent urged the court to dismiss the appeal and uphold both the conviction and sentence of the Learned Trial Magistrate. 2. The respondent submitted that the first three counts related to the offence of forgery contrary to Section 345 as read with Section 349 of the Penal Code. 3. Counsel submitted that Forgery is defined as *“the creation of a false document or alteration of a genuine one, with intent to defraud.”* 4. Further, the respondent cited Section 345 of the Penal Code stating that the it provides that *“Forgery is the making of a false document with intent to defraud or deceive.”* 5. The respondent cited the case of ***Caroline Wanjiku Ngugi vs the state******(215) eKLR*,** in which the court set out the essential ingredients of the offence of forgery as follows: 6. The document must be forged; 7. The accused used the document as genuine; 8. The accused knew or had reason to believe that it was a forged document; and 9. The accused used it fraudulently or dishonestly, knowing or having reason to believe that it was a forged document. 10. It was the Respondent’s submission that the prosecution discharged its burden of proof by establishing the existence of the foregoing ingredients, and that the Appellant was properly found guilty of the offence of forgery. 11. The respondent went on to submit that the Appellant was further charged with the offence of forging a stamp contrary to Section 352(a) of the Penal Code. 12. According to the respondent the evidence on record demonstrated that the impugned stamp impression was used on the document in question, and no satisfactory explanation was offered as to its origin. 13. The respondent further highlighted the fact that one Peter denied having sustained any injury while at work, thereby casting serious doubt on the authenticity of the documents relied upon in the filing of the suit. 14. In regard to the two counts of Making a Document Without Authority contrary to Section 357(a) of the Penal Code the respondent submitted that all the offences arose from the same transaction, were interrelated and formed part of a continuous chain of conduct. 15. The respondent further submitted that the Appellant failed to call a crucial witness, namely the legal clerk who allegedly took the documents to John Kimathi Advocates’ office for commissioning. This omission left material gaps in the defence and weakened the Appellant’s case. 16. The respondents concluded their submission by stating that there exists a clear nexus between the evidence adduced by the prosecution and the findings contained in the Judgment of the trial court. The respondent thus posited that the prosecution sufficiently discharged its burden of proof and established the case against the Appellant beyond a reasonable doubt. The respondent therefore urged this court to dismiss the Appeal and uphold both the conviction and sentence. On the issue of sentence, the respondent submitted that sentencing remains within the discretion of this Honourable Court. **ANALYSIS AND DETERMINATION** 1. The case against the appellant revolved around the filing of a suit in the name of one Kitei Peter at the Mavoko law courts which suit was alleged to have been filed without instructions thus constituting the foundation of the forgery charges and the allegation of making of a document without authority. 2. The duty of this court as a first appellate court is to re-evaluate, analyse the evidence tendered before the trial court and draw its own conclusions on the evidence while recalling that unlike the trial court this court did not have the advantage of hearing or seeing the witnesses testify thus due allowance should be made for that. See **Okeno vs Republic {1972} E.A 32** 3. PW1 Kitei Peter stated that he was a welder working with the Standard Gauge Railway and holds ID No. 24620225 in the name of Kitel Peter. He was born on 28/2/1985 in Kitui County Mutomo District. 4. He produced his ID as PMFI 1. He testified that he was first employed in Phase I of SGR in 2016 at Athi River though he could not recall the exact date. He later produced a letter of employment dated 24/2/2018 as PMFI 2 relating to Phase II employment. He also produced his welding certificate Grade 3 dated 30/11/2004 as PMFI 3. 5. PW1 further stated that he worked from 2016 to 2017 during Phase I and was never injured. After completion he went home and later resumed work in Phase II in February 2018. 6. He further testified that on 11/8/2018 at about 6.00am while in Rongai he was called to office DK24 by a HR officer known as Peter and later met a lady called Vero from head office. Vero showed him court documents relating to Civil Case No. 881 of 2018 at Mavoko Law Courts in which he was named as plaintiff against China Road. The documents shown to him were marked PMFI 4 series including: * PMFI 4A summons to enter appearance * PMFI 4B plaint * PMFI 4C list of documents * PMFI 4D list of witnesses * PMFI 4E plaintiff witness statements * PMFI 4F verifying affidavit * PMFI 4G and 4H treatment notes and receipt from St James Clinic * PMFI 4I copy of ID * PMFI 4J demand letter * PMFI 4K defence statements * PMFI 4L employee register * PMFI 4M construction site daily injury report 1. PW1 denied ever filing any suit against China Road and Bridge Corporation and stated that although the ID number and names on the documents were his and the signatures were not his. 2. He specifically denied signing the plaint PMFI 4B and verifying affidavit PMFI 4F and stated that the signature therein was not his despite bearing his ID number. He also noted the stamp of advocate John Kimathi on the affidavit. 3. He further denied ever being treated at St James Clinic and denied paying Kshs 1000 as indicated in PMFI 4H. 4. He stated he did not know how his ID copy PMFI 4I was obtained and used in the documents. He testified that after being shown the documents he was taken to Rongai Police Station where he recorded a statement. He also stated that he does not know the accused person Perister Kwamboka and has never instructed the firm of P K Omwenga & Associates who prepared the plaint. 5. PW1 reiterated that he has never been injured at work and has never filed any case in court. He later produced documents as exhibits including: * Exhibit 1 summons to enter appearance * Exhibit 2 letter of appointment dated 24/02/2018 * Exhibit 3 welding certificate * Exhibit 4 a b c job cards covering 21/6/2018 to 20/7/2018 showing 181 hours worked * Exhibit 5 copy of ID card The job card confirmed his working hours and showed he did not sustain any injury. 1. Upon cross examination PW1 confirmed he joined SGR in 2016 and worked on contractual basis. 2. He stated he had an earlier ID issued on 25/2/2005 which got lost and he reported the loss at Athi River Police Station around September or October 2018 and was issued with a replacement ID on 19/10/2018 after obtaining a police abstract. 3. He stated that during employment he submitted documents including NSSF KRA PIN NHIF and ID copy. He confirmed welders worked in shifts and each group had one welder. 4. He stated he learned of Civil Case No. 881 of 2018 at Mavoko but denied signing any documents in that case or attending court. He denied knowing Perister Omwenga or any person who signed the pleadings. The witness confirmed he was shown the documents by Vero whom he had not met before and that he only recorded a police statement and was not referred to any advocate. He further testified that his supervisor was Mr Hwang and job cards were in English and Chinese. 5. He maintained that the disputed documents prepared by P K Omwenga & Associates bore signatures not his and he had never attended court in Mavoko. 6. The evidence of the witness was key in the prosecution of the appellant. He admitted to some two very important facts that the lower court appears not to have paid attention to. 7. The first being that the suit was initiated in his name and that the copy of ID that was used was his. The witness indicated to the court that at some point he had lost his Identity Card thus one would ask this, is it possible that the lost identity card is the one that was used by the person who appeared before the appellant and instructed her to file the suit? 8. Secondly, Pw1 stated that he did not know the appellant had never met her. Again, it is important to ask whether the person who instructed the appellant could have been a fraudster posing as PW1 who intended to swindle the Company through a fraudulent claim. 9. The view that this court takes is that the investigator moved too first in getting the appellant charged. The suit was pending and therefore it was definitely possible for them to have waited until the suit was set down for hearing, attend court and pounce on the “plaintiff” who would take to the stand to give evidence. 10. As it were arresting the appellant purely on account of filing pleadings was an ill -advised move considering that the investigator had established that as a matter of fact the identity card used by the appellant to file the pleadings was a genuine copy of Pw1’s Identity card. 11. At the hearing it would have been clear to everyone whether indeed the appellant had filed the suit fraudulently or on the instructions of a client posing as Pw1. 12. It is common knowledge that advocates act on instructions and once a person presents themselves to an advocate and presents an identity card purporting that it is his, the advocate would have no reason to doubt the fellow and unless the advocate knowingly participates in a fraudulent scheme by perpetuated by his client, it would be very dangerous to arrest and prosecute an advocate simply because they filed pleadings in the name of a party who says he did instruct him. It is sad that the appellant herein despite having a genuine copy of the identity card of Pw1 was charged even after Pw1 had said that he had lost his identity card thus it was possible someone bent on defrauding the Complainant company could have used the stolen identity card. 13. The principle that an advocate should not be held criminally liable for actions taken in the ordinary course of their professional duties—provided they acted in good faith and without knowledge of any underlying illegality—is a cornerstone of legal practice. 14. This protection ensures that advocates can represent their clients fearlessly without the constant threat of prosecution for the content of pleadings or the nature of their instructions. The protection is absolutely necessary to ensure that the legal practitioners are able to robustly represent their clients without being unnecessarily subjected to unwarranted threats of prosecution. The protection is necessary for the rule of law to prevail. It is important that where an advocate performs his or her duty in good faith, such counsel must not be subjected to any form of intimidation or persecution. 15. The immunity from action would only be waived where an advocate knowingly engages in criminal conduct or is guilty of wilful blindness. 16. In criminal law, the element of mens rea (guilty mind) is essential. If an advocate receives instructions "innocently" and acts in "good faith," they lack the necessary criminal intent. The appellant in this matter maintained throughout that she acted on instructions and therefore her actions were not out of intention to commit acts of fraud. 17. **Pw1** having maintained that he had not instructed the appellant, the only way of determining who it was that had instructed her was to wait for them at the hearing and arrest the “plaintiff’’. The arrest and prosecution of the appellant was therefore premature considering that even the signature appearing on the verifying affidavit was not found to be hers. 18. In **Tom Ojienda vs. Ethics and Anti-Corruption Commission & Others (2019) eKLR** the court emphasized that an advocate cannot be held criminally liable for receiving legal fees or acting on behalf of a client unless there is clear evidence of a conspiracy or knowledge of the "tainted" nature of the funds/instructions. The court noted that advocates are not investigators of their clients' lives. 19. It follows therefore if a client appears before an advocate and instructs an advocate, the advocate is not expected to engage in an investigation as to whether the client is an innocent one or a fraudster. 20. To place such a responsibility upon the shoulders of advocates would be an unnecessary burden to legal practitioners without cause yet we have state funded institutions with the capacity to investigate any allegations of a criminal nature whenever such matters arise. 21. The other witness who gave evidence disowning the affidavit was PW2 John Kimathi who testified that his attention was drawn to the verifying affidavit which bore a stamp impression in his name as Commissioner for Oaths with address P O Box 9521-00200 Nairobi. 22. He confirmed that although the stamp impression bore his details the signature and stamp were not his and he did not commission the affidavit. 23. PW2 stated that the documents were drawn by P K Omwenga & Associates based at Unafric Building and although he knows P K Omwenga as an advocate he has never worked from that building. He testified that police initially treated him as a suspect. He took them to his office and provided his genuine stamp impression and specimen signatures. He also lodged a complaint that his stamp had been misused. 24. The evidence of that witness is important because he alleged not to have commissioned the verifying affidavit though the details on the stamp were his. The analysis of the evidence of this witness cannot be done in isolation. The appellant explained that the witness used to commission documents for her law firm and in her own words the witness was a suspect and was subjected to investigation. Pw2 stated that when he was summoned by the police, he took them to his office gave them specimen signatures but insisted that he did not sign the document and did not know who signed the document. 25. The gap left by the evidence of Pw2 would impact directly on the charges of forgery since there was no direct evidence to connect the appellant with the signing of the affidavit. it is important also to highlight that pw2 stated that when the police interrogated him, he realized he was in danger of other crimes. The witness did not however say what were the other crimes he was apprehensive off thus rendering his evidence as whether he did not commission the affidavit doubtful considering that the person who commissioned it was not uncovered. 26. The investigators did not subject the appellant’s sample handwriting and signature to forensic examination to determine whether she had forged the signature of Pw2. The failure to do so left the court with two conflicting versions of evidence thus the court could not say with certainty whose version was correct. 27. The burden of proof rests on the shoulders of the prosecution throughout the trial, it was incumbent upon the prosecution to rebut the defense of the appellant regarding the role Pw2 played in commissioning the documents. The prosecution therefore did not discharge the burden of proof as envisaged under Section 107 and 108 of the Evidence Act. The benefit of doubt therefore should have gone to the appellant. 28. The witness Pw2 stated that when he learnt of this matter he complained about the misuse of his stamp. The indication of misuse of a stamp would by necessary implication mean that someone with the access to Pw2’s stamp was engaged in misusing the same. It cannot therefore be a case of forgery on the part of the appellant because Pw2 denied working with the appellant. 29. Pw2 having been a suspect and given that he too was under investigation, his evidence ought to have been received and treated with some degree of caution and circumspection because one cannot rule out the possibility of the witness giving adverse evidence against the appellant to extricate himself from the situation. Self -preservation is instinctive when one is faced with the threat of criminal prosecution. 30. It is trite law that where an advocate acts within the scope of their professional calling, the threshold to prove criminal culpability is extremely high, requiring proof of personal involvement in a crime beyond merely drafting documents. To adopt a lower standard would expose advocates to the risk of intimidation and harassment while discharging their professional duty. 31. The appellant clearly indicated in her defense that she had acted severally against the complainant company therefore one could not rule out the motive of initiating a criminal process to slow her down yet she was simply acting in her professional capacity. The fact that the investigators could not wait for the plaintiff to show up in court and pounce on him of the claim was fraudulent, was indicate of a desire to stop the advocate at the earliest opportunity even without conclusive evidence of involvement in criminal activity. 32. PW3 who worked for the CIC insurance confirmed that they were the insurers of the complainant company China Roads $ Bridge Corporation. She stated that the volume of claims had become significant to the extent that internal discussions were held regarding the increasing claims and their impact on profitability. The confession of that witness analyzed against the backdrop of the defense by the appellant that she had acted against the company in quite a large volume of matters should have forewarned the learned Hon Magistrate that there was proven motive behind the prosecution of the appellant. 33. PW8 Charles Muthaa the investigating officer stated that they received 252 files from the accused person’s law firm and that they were out to verify whether the claimants in her filers were genuine further confirmed that the investigators were basically on a fishing expedition trying to find something against the appellant to pin her down. 34. This is the kind of prosecution that this court would aptly describe as having been actuated by malice. The prosecution was mounted to achieve a collateral purpose other than the course of justice. 35. Although Pw3 under re-examination denied CIC insurance having had a strategy to undermine law firms handling claims this court is persuaded otherwise based on the evidence of Pw8. The witness having stated; “**Perister never signed as a commissioner for oaths**.” one wonders then on what basis was she convicted of forgery and making false documents? 36. PW4 stated that during that period the company had received numerous summon from certain advocates and many employees denied ever being injured or instructing such advocates. She added that some summons related to persons who had never worked for the company. The testimony of this witness taken together with that of PW3 and Pw8 confirms that the complainant company had suspicions about advocates filing fake claims and that was the sole basis upon which they went for the appellant who from the evidence appears to have had many matters against them. 37. Although Pw4 testified that the firm of Omwenga Advocate handled many claims against the company numbering over one hundred and that Corporal Muthaa engaged both the company and insurer regarding the high volume of claims which led to renegotiation of insurance terms, she denied any conspiracy to target or punish the advocate. The evidence as a whole speaks a totally different story when one considers that the appellant was not found to have forged any document and that the held a valid copy of the Plaintiff”s Identity Card. 38. The lack of forensic evidence to support the charge of forgery came out through the evidence of PW5 No. 235221 C.I Benard Cheruiyot stated that he is a forensic document examiner based at DCI Headquarters. He testified that on 5/10/2018 he received exhibits for examination from Corporal Charles Mutai of DCI Rongai SGR under an exhibit memo form dated 5/10/2018 marked PMFI 13. The questioned documents were marked as follows: * A1 verifying affidavit of Kitei Peter dated 18/06/2018 * A2 plaintiff witness statement of Kitei Peter dated 18/06/2018 * E1 practicing certificate for year 2017 for Perister Kwamboka Omwenga * E2 certificate of registration for P. K. Omwenga & Associates dated 23/4/2014 * E3 copy of ID card no. 23699151 for Perister Kwamboka Omwenga * E4 KRA PIN certificate no. A0056292701 for Perister Kwamboka Omwenga * E5 payment receipt for Perister Kwamboka Omwenga dated 28/2/2018 * E6 verifying affidavit of Josiah Miatara Omwoyo dated 3/2/2017 * E7 verifying affidavit of Robert Mutuku Muchoki dated 18/05/2016 * E8 verifying affidavit of Peter Muteti Nzuki dated 17/7/2017 * E9 verifying affidavit of Kitei Peter dated 18/6/2018 * E10 plaintiff statement of Kitei Peter dated 18/6/2018 * E11 verifying affidavit of Mutinda Mwanza dated 18/05/2016 * E12 verifying affidavit of Cyrus Okioka Odambo dated 27/6/2016 Specimen and known signatures were: * B1–B4 specimen and known signatures of John Kimathi * C1 stamp impressions of John M. Kimathi * D1 specimen signatures of Kitei Peter * D2–D6 known signatures of Kitei Peter 1. The witness testified that three issues were for determination: On Q1 he examined whether signatures on A1 and A2 attributed to Kitei Peter matched specimen D1 and known signatures D2–D6 and concluded they were made by different authors. On Q2 he examined whether signatures on A1 and E1–E12 matched specimen and known signatures of John Kimathi B1–B4 and concluded they were made by different authors. On Q3 he examined whether stamp impressions on A1 and E1–E12 matched known stamp impressions C1 of John Kimathi and concluded they were made by different instruments. 1. On cross examination PW5 confirmed that documents were received on 5/10/2018 and examined on 9/10/2018. **He clarified that he was tasked to examine signatures of Kitei Peter and John Kimathi and not that of Perister Kwamboka Omwenga.** 2. The omission to subject the appellants signature to analysis dealt a fatal blow to the prosecution’s case. The fact that the signature of Pw2 did not match the signature appearing on the affidavits did not mean that the appellant forged the document. 3. PW6 Benard Wanjau Taiku testified that he is a Fingerprint Assistant I at the National Registration Bureau with 25 years’ experience. He examined the original ID card serial number 215814273 and confirmed it was genuine and issued by the National Registration Bureau. He produced: * Letter from Railways and Ports as PMFI 14 * Extract of register as Exhibit 15 * Report from NRB as Exhibit 16 1. The evidence of Pw6 thus placed a heavier burden on the prosecution to explain how a genuine copy of the Identity card of the plaintiff found its way to the appellant if at all she was not instructed by the plaintiff. The appellant had no duty to prove anything since the position she held was that she was instructed by a client who walked to her chambers. 2. The appellants defense in this courts view was improperly rejected. She confirmed that in respect of Mavoko CMCC No. 881 of 2018 Kitei Peter versus China Road & Bridge Corporation the pleadings marked P.Exhibit 1 were prepared by her office on instructions of her client Kitei Peter. The documents included the plaint verifying affidavit summons witness statement and accompanying documents. 3. She went on to state that Kitei Peter presented identification documents including ID card medical documents from St. James Medical Centre and a medical report by Dr. Okere as well as proof of employment including NSSF contribution. He signed a statement and instructions upon which she drew and filed the suit at Mavoko Law Courts. She confirmed the case number as 881 of 2018. She testified that the defendant China Road & Bridge Corporation filed a defence through Wagaki Murage & Company Advocates as reflected in Defence Exhibit 17 and that a defence witness statement dated 10/9/2018 by Mary Kimani HR was filed. She stated that the matter did not proceed to pre-trial or hearing as criminal proceedings commenced before directions could be taken. 4. The Court of Appeal in **Joseph Mukuha Kimani v Republic (Criminal Appeal No. 76 of 83) [1984] eKLR**held: **“The prosecution must prove that:** **(a) The document was false; in the sense that, it was forged** **(b) The accused knew it was forged** **(c) The utterer intended to defraud.** 1. Mativo J in **Caroline Wanjiku Ngugi v Republic[2015] eKLR** held that: **“Forgery is the false making or material alteration of a writing, where the writing has the apparent ability to defraud and is of apparent legal efficacy with the intent to defraud. Thus the elements of forgery are:-** **i. False making of – The person must have taken paper and ink and created a false document from scratch. Forgery is limited to documents. “Writing” includes anything handwritten, type written, computer generated or engraved.** **ii. Material alteration – the person must have taken a genuine document and changed it in some significant way. It is meant to cover situations involving false signatures or improperly filing in blanks on a form or altering the genuine contents of the document.** **iii. Ability to defraud – The document or writing has to look genuine enough to qualify as having ability to mislead others to think its genuine.** **iv. Legal efficacy – the document or writing has to have some legal significance.** **v. Intent to defraud – the specific state of mind for forgery does not require intent to steal but only intent to fool people. The person must have intended that other people regard something false as genuine. A forgery may be committed either by handwriting, through the use of type writer or a computer.”** 1. The prosecution failed to establish any of the above ingredients against the appellant. The evidence by Pw8 was inconclusive as to who had forged the documents in issue. The intention to defraud would have been clear had the prosecution proved that the appellant authored the documents and that they were all false and made without instructions. 2. The prosecution too did not gather sufficient evidence to prove that the documents were false. The failure to charge the doctor who prepared the medical documents presented to the appellant by the plaintiff was clear testimony that the target in this prosecution was the advocate**. In the case of KILEE v REPUBLIC [1967] EA 713 at p 717, it was said that, the false document must tell a lie about itself and not about the maker. We think the position is better put, by stating that, the false document is forged if it is made to be used as genuine. To defraud is, by deceit, to induce a course of action: OMAR BIN SALEM v R[1950] 17 EACA 158, and to defraud, is not confined to the idea of depriving a man by deceit of some economic advantage or inflicting upon him some economic loss, see SAMUELS v REPUBLIC[1968] 1.”** 3. If the pleadings were false then the documents used to generate them ought to have been established to have been false and that the advocate knew them to be false or had reasonable cause to belief that they were false. 4. The evidence of the appellant properly scrutinized leaves one in no doubt that she was simply acting in the course of her professional duty, she received instructions from someone who introduced himself as the appellant and gave documents in support of his claim to her. 5. The prosecution was not able to prove that she forged the signature of Pw2 thus all the counts on forgery and making a false document could not stand. The appellants defense that she was a victim of witch-hunt by the complainant company for acting against them in multiple actions is a plausible defense and this court believes her. 6. The immunity of advocates regarding the conduct of litigation and the drafting of pleadings received recognition in the case of **Rondel v. Worsley [1969] 1 AC 191 (United Kingdom)** where the House of Lords discussed the public policy necessity of protecting advocates. It established that for the administration of justice to function, advocates must be free from the fear of retaliatory actions (civil or criminal) for how they conduct a case in court or draft pleadings., 7. The appellant in this case appears to have been a victim of such retaliatory moves hatched in a boardroom following the rise in claims against the complainant company. The evidence of Pw3 left that not in doubt at all. 8. It would be would be wrong for courts to allow bullying of advocates by parties that become unhappy with them in the professional discharge of their function where the concerned advocate is proved to have been acting in good faith. If an advocate acts on instructions that are later found to be fraudulent, the advocate is protected unless it can be proven they were a "party" to the fraud. Mere drafting of pleadings based on instructions received innocently does not constitute a crime. 9. The prosecution did not wait for the matter to go to trial to establish who was it that had instructed the advocate and establish whether the advocate knew that the suit was founded on fraud thus hold her culpable. 10. The role of Lawyers in society has been the subject of consideration in the global arena and through **The** **Basic Principles on the Role of Lawyers:** ADOPTED: **07 September 1990** BY: **the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba** the UN congress resolved that;- 1. All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings 16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics. 20. Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority. 1. The position of law is that advocates must protect client rights, uphold human rights, and act freely, independently, and ethically. Governments must ensure lawyers can perform their duties without intimidation or harassment, non-identification with their clients, and maintain professional confidentiality. 2. The prosecution in mounting a prosecution against an advocate must ensure that such prosecutions are not mounted to achieve a collateral purpose such as intimidating an advocate to cease acting in a matter or a series of matters against a particular client. 3. The upshot of the above is that this court agrees with the appellant that the prosecution did not establish the case against the appellant beyond a reasonable doubt on all the counts. If this court were to hold otherwise, the court would effectively bury the career of the appellant in the dustbins of history without any fault of her own. An advocate acts on instructions and it was incumbent upon the prosecution to establish beyond a reasonable doubt that the appellant acted without instructions and that she knew that the person giving her instructions was not Pw1 whose copy of genuine identity card was used. The prosecution would also have had to prove that she knew that the suit was fraudulent. All that the prosecution did not do. 4. Consequently, the appeal is found to have merit and the same is hereby allowed the conviction is quashed and the sentence is set aside. The appellant shall be refunded the fine of Ksh 260,000 paid to the court. 5. It is so ordered. **DATED, SIGNED** and **DELIVERED VIRTUALLY** at **NAIROBI** this **6TH day** of **MAY 2026.** 1. **M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Ms Kwamboka for the Appellant Mogere for the Respondent Appellant present