[2018] KEHC 4019 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CRIMINAL APPEAL NO. 13 OF 2016.

PETER NGANGA KARUMA ALIAS

PATRICKNJUGUNA MWANGI...................................APPELLANT

VERSUS

REPUBLIC....................................................................RESPONDENT

(Being an appeal arising from conviction and sentence in Thika Chief Magistrate's Court Criminal Case No. 3234 of 2014 delivered by A. Lorot Senior Principal Magistrate on 8th August, 2016)

JUDGEMENT

1. The appellant herein Peter Ng’ang’a Karuma alias Patrick Njuguna Mwangi was the accused in the Chief Magistrates Court at Thika in Criminal Case No. 3234 of 2014.

In Count 1 he was charged with conspiracy to commit a felony contrary to section 392 of the Penal Code. The particulars being that on diverse dates between 14 October 1996 and 13th June 2014, at an unknown place in the Republic of Kenya, with others not before the court, and with intent to defraud, he conspired to commit a felony namely making a document without authority with intent to obtain money.

In Count II he was charged with making a document contrary to section 357(a) of the Penal Code. The particulars being that at an unknown place and time within the Republic of Kenya, jointly with others not before court with intent to defraud and without lawful authority, he made a certain document namely national identification card number 0618907 in the names of Patrick Njuguna Mwangi purporting it to be a genuine national identity card issued by the Registrar of persons.

In Count III, he was charged with making a document contrary to section 357(a) of the Penal Code. The particulars being that on 15th February 2008 at another place and time in the Republic of Kenya, jointly with others not before the court, with intent to defraud and without lawful authority, he made a certain document namely lease document for Thika Municipality Block 20/435(hereinafter referred to as the plot) in the names of Presbyterian foundation purporting it to be a genuine lease document issued by the commissioner of lands.

In Count IV, he was charged with making a document contrary to section 357(a) of the Penal Code. The particulars being that on 3rd October 2012, at an unknown place and time within the Republic of Kenya, jointly with others still at large, with intent to defraud and without lawful authority, he made a certain document namely lease document for the plot names of Patrick Njuguna Mwangi ID number 061807 purporting it to be a genuine certificate of lease by Thika District Land Registrar.

In Count V he was charged with obtaining money by False Pretenses Contrary to Section 313 of the Penal Code. The particulars being that on the 13th day of June, 2014 at Nairobi within Nairobi county with others not before the court and with intent to defraud obtained Kshs. 3,500,000/= from George Njogu Mwangi by falsely pretending that he was in a position to sell to the said George Njogu Mwangi a plot number Thika Municipality Block 20/435.

2. He pleaded not guilty to the above charges and trial ensued. The appellant pleaded not guilty to all the counts and the case proceeded to full hearing. The appellant was finally convicted on all the counts and sentenced as follows: C1 - 4 years imprisonment

C2 - 4 years imprisonment

C3 - 4 years imprisonment

C4 - 4 years imprisonment

C5 - 3 years imprisonment

3. The learned trial magistrate also directed that C1 and C5 would run concurrently while the rest of the counts would run consecutively. He further directed that the sum of Kshs 3,500,000/- would be recoverable from the appellant with no further recourse to court. A decree was to be drawn to that effect.

4. The appellant being aggrieved with the whole judgment filed this appeal raising the following grounds.

(i) The learned magistrate erred in fact and in law in committing the appellant to jail an aggregation of 15 years with an additional penalty of execution for the sum alleged to have been obtained.

(ii) The learned magistrate erred in fact and in law in failing to accord the appellant a fair hearing in accordance with article 50 of the Constitution of the Republic of Kenya 2010.

(iii) The learned magistrate erred in fact and in law in refusing an adjournment on the part of the appellant hearing in mind that the appellant had counsel on record denying him the right of counsel.

(iv) The learned magistrate erred in fact and in law in failing to appreciate that the appellant was challenged having had suffered a stroke impediment.

(v) The learned magistrate erred in fact and in law in omitting exculpatory evidence form the record.

(vi) The learned magistrate handed down a harsh sentence of serving counts consecutively and 2 counts concurrently.

(vii) The learned magistrate erred in fact and in law in failing to accord the appellant time and adequate preparation of his defence without the benefit of his counsel on record

(viii) The learned magistrate used underhand method in frustrating the appellants counsel to mitigate.

(ix) The learned magistrate failed to consider the time the appellant had spent in custody during the trial.

5. A summary of the evidence on record is as follows:

PW1 Dr. George Njogu Mwangi (the complainant herein) told the court that on 13/6/2014 he was in the process of buying a plot and so went to inspect plot No. 435 Block 20, Ngoingwa, Thika (hereinafter also known as the plot). He had already been shown the plot by his brother and one Gachango. On seeing the plot, he liked it and inquired for copies of the title. Apparently, a search had been conducted at the Thika Lands Office and the results were positive. The plot was in the names of the appellant and one Gitau organized for him to meet the appellant as his understanding was that the appellant lived in Nakuru while he lived in Nairobi and they needed to meet.

6. On 13/6/14 they met at Gilfillan Towers on 5th Floor, the office of the appellant’s alleged advocate called Ondieki Mukono. Upon arrival, the appellant also arrived, and he produced an identity card bearing his names and they entered “Mukono”s office.

7. They further agreed on a purchase price of 3. 5 Million and out of that money, Kshs. 750,000/- would be paid to Peris (apparently, she had attempted to purchase the plot but could not complete.) They then agreed that if the appellant had all the documents that could facilitate the transfer to his name, he would pay the entire amount. He identified the agreement (EXB1)together with the lease (EXB2 & 3) which bore the names of Patrick Njuguna Mwangi ID No. 0618907(the appellant herein).

8. He further executed the transfer documents with all attendant documents, with their photos appearing (EXB4). He was also issued with a pin certificate in his name (EXB5).They agreed that Peris be paid Kshs. 750,000/- and he gave him her a/c no. 010033885290 at the Standard Chartered Bank Harambee Avenue. He paid via RTGS to Peris Nyawira Maina and the transaction is reflected in EXB6. That the balance of Kshs. 2. 75 Million was paid as follows:-

(i) Kshs. 2,250,000/- went into a/c no. 0100238851900 Standard Chartered Bank-Harambee Avenue (EXB-7)

(ii) To appellant Kshs. 500,000 in cash. He then took possession of all the documents concerning the plot .

9. PW1 later went to Thika Land registry and on making inquiries and showing them the documents he was informed they were fake. The registry gave him a letter (EXB8) and referred him to the Ministry of Lands. Nairobi. On verification, the National Land Commission revealed that the title documents were fake. He next reported the matter to Thika Police Station. His attempts to contact the appellant and Peris bore no fruit as their mobile phones had been switched off. On conducting a search on the appellant’s ID from the National Bureau of Registration it was confirmed that the said ID card was fake (EXB 9).

10. When the appellant was arrested, his finger prints were taken since he was carrying a different identification number. The appellant’s ID is no. 05926972 and not 0618907 as indicated in the lease (EXB2 & 3). His identification was then searched and details revealed his photo and name as Peter Ng’ang’a Karuma. He identified the identification documents as (EXB10). Lastly, he stated that he had never seen Peris after the transaction, though she had executed the release. On carrying out a search it bore a photo which he identified as (EXB-11)

11. PW2 John Njoroge Paul Nginya a property consultant told the court that in early June 2014, his neighbour Martin Mwangi called him and told him he had been given the plot in Ngoingwa Thika area by the appellant ‘the owner of the plot’ to sell. He therefore wanted him to get a purchaser since that was his line of business. He was given a copy of the title, copy of the search and site plan.

12. He called a friend of his one Peter Mwangi Gatheru (PW3) who also sells land in Thika and gave him copies of documents relating to the plot. After two days, PW3 called and told him he had a potential buyer who wanted to see the plot and together with John Gachengo, a Mr. Waibe and Martin Mwangi Gitau, his neighbour and the complainant they went to see the plot.

13. Again after two days PW3 called informing him that Waibe had done a search and was satisfied that the plot was in order. On 12/6/2014, Martin came to his office in Nairobi with the ‘owner’ that is the appellant accompanied by a lady he introduced as his second wife one Caroline Waithera Waweru and Peris Njuguna Maina. He corroborated the evidence of the complainant in respect to the payment to Peris.

14. He witnessed the signing of the agreement. They were paid Kshs 250,000/- only as the rest did not come through as the appellant’s phone went off after this. The appellant’s “advocate” was also nowhere to be found. PW3 Peter Mwangi Gacheru the property dealer at Thika was contacted by Pw2. He corroborated Pw2’s evidence but stated that after he was informed that the search was okay, he did not go any further.

15. PW4 Joseph Waime Mwangi the complainant’s brother, corroborated PW1’s and PW2’s evidence on how the initial search and transaction was conducted. PW5 John Gachango Gathurithu a property agent based in Thika also corroborated PW1’s and PW2’s evidence on how the transaction was carried out. Pw6 Martin Mwangi Gitau a business man testified that in April 2014, at around 5a.m, his brother living in the U.S.A called him and informed him that he was looking for ¼ acre plot around Ngoingwa Membley Ruiru. On looking at the newspaper, he saw an announcement in the papers and decided to call the number. The number was picked by the appellant who was apparently in Nakuru.

16. They arranged on how to meet but in the meantime, since the appellant was not in Nairobi, he sent one Irungu to Thika to bring a copy of the title to him. They met with the said Irungu who had brought a copy of the title deed bearing the names of, Patrick Njuguna Mwangi. Irungu took him to where the plot was and he liked it.

17. On conducting a search at the Lands registry, the search revealed that the title was good and the proprietor was in fact the appellant. On calling his brother in the U.S.A his funds delayed so he called PW2 and informed him to look for a suitable buyer for the plot. He corroborated PW1’s and Pw2’s evidence on how the transaction was conducted in the appellant’s “advocate’s” office.

18. Later, PW1 called him and told him that he was unable to transfer the documents as the appellant’s identity card was fake. They reported the matter to Thika Police Station and recorded their statements. A few months later as he left KRA offices Thika, he saw the appellant in the company of two women. He ran towards him and dropped him down and called Waime to assist him. They thereafter led him to the police station.

19. PW7 C.I Daniel Gutu a Forensic Document Examiner with the D.C.I headquarters told the court that on 14/9/2015, documents were brought by CPL Omondi of CID Thika. The documents were accompanied by an exhibit memo form, and were marked as follows:-

1. A1 to A3-disputed documents (EXB12), (EXB1)

2. B-Known signatures of accused (EXB 10)

3. C1& C2 -Specimen signatures of the accused

4. D Known signatures of Patrick Njuguna Mwangi(EXB 9)

He was requested to;-

a. Ascertain whether signatures pointed by the red arrows as disputed documents A1 to A3 were made by the same author when compared with Exh. Marked ‘D’.

b. Ascertain whether signatures pointed by red arrows as A1 to A3, if they were made by the same author when compared with B and C1 & C2.

20. After conducting the investigations, he formed the opinion that the signatures were made by different authorities meaning that Patrick Njuguna Mwangi did not sign the documents.

He also opined that the A1 to A3 metalised with “B” and C1 and C2 meaning that Peter Ng’ang’a Kuruma signed the disputed documents A1 to A3. He explained that during the examination, he subjected the signatures to image magnification procedures using video spectrum comparator for better visibility and inspection of individual characters.

21. His opinion therefore was that both authorizing and non authorizing of questioned specimen and known signatures are based on the following characteristics.

i. Signatures initialization and their terminal strokes

ii. Signature construction and arrangement

iii. Natural variation and natural pen lifts

iv. Pen pressure and ink flow

v. Signature spacing and baseline alignment.

He produced his report as EXB13.

22. PW8 CPL Nicholas Omondi Adalo told the court that on 16/7/ 2014 he received a complaint from PW1 on how he had been conned. Thereafter he wrote a letter to Thika Lands Office and was issued with a certified copy of the green card showing that the land belonged to Patrick Njuguna Mwangi. However, in order to confirm that the seller was indeed Patrick Njuguna Mwangi, he wrote a letter to the Registrar of persons for a print out of the holder of ID No. 0618907.

23. On being issued with the same and checking the picture appearing against the ID, and the one posted on the transfer documents, he realized that they were two different people. He also wrote another letter to the Land Registrar to check the lease documents. The said Registrar confirmed that the documents held by PW1 were fake and had not originated from their office.

24. He added that when the appellant was brought to the police station by PW6, his original identity card read Peter Ng’ang’a Kuruma ID NO. O5926972. That he also wrote a letter to the Registrar of persons who gave him a print out of the same which matched the details of 05926972. He then came to court after swearing an affidavit to allow him to investigate the two accounts at Standard Chartered Bank, Harambee Avenue.

25. The 1st account of Patrick Njuguna Mwangi was opened on 10/6/2014 barely three days before the offence was committed. He produced the account opening documents and bank statement as (EXB14) statement) and account opening documents as (EXB15).

He also obtained account opening documents in respect of Peris Nyawira whose account was opened on 13/6/14 the same day of the transaction which he produced as EXB-16and 17 respectively.

26. On checking the statements, the same revealed the receipt of the monies in issue into both accounts. EXB 14 showed that on the said 13/6/14, Kshs, 2,000,000/- was transferred to Account Family Bank, Thika Branch to David K Waweru showing that there was a purchase of a motor vehicle.

27. He came again to court and was issued with a warrant to investigate the said account. He went to Family Bank, Thika Branch and was issued with account opening documents and bank statements.(EXB 18and19 respectively.) The money was received in that account on 17/6/14 and on the same day a withdrawal of Kshs. 980,500. 00 was made. He indicated that they have not been successful in locating the said Waweru. He produced all documents in this case as EXB1- 20.

28. The appellant on his part elected to give unsworn evidence. In his defence he acknowledged knowing the charges facing him but indicated that he had nothing to say about them.

29. When the above appeal came for hearing Mr. Mwangi counsel for the appellant submitted that in as much as the management of Kenyatta National Hospital was unable to trace the appellant’s file indicating that he was a stroke patient, he wished to proceed with the appeal.

He submitted that they were appealing on both conviction and sentence.

30. He contended that count 1 of the charge sheet was vague as the particulars did not state the documents in issue and no conviction could stand on a defective charge. He further submitted that the appellant was not accorded a fair trial as his defence case as well as his mitigation proceeded in the absence of his advocate which offended Article 50(2)(d) of the constitution.

31. He further submitted that the lower court relied on accomplice evidence as PW2, PW3, PW4 and PW5 were involved in the entire transaction and yet the charge sheet spoke of the appellant & others not before the court. He contended that the judgment did not comply with the requirements of section 169(1) of the CPC as it did not bring out the points for determination and that there was also no analysis of the various counts. Counsel further submitted that the sentence meted out against the appellant was harsh as there was no explanation why C1 and C5 were running concurrently while the rest were running consecutively.

32. It was his argument that the appellant would serve a total of 15 years. That the trial court failed to consider that the appellant had already spent two years in prison before conviction. Lastly, counsel submitted that the appellant had suffered a stroke before conviction, he was 59 years old and a widower.

33. Mr Maatwa for the State opposed the appeal by submitting that the evidence was properly analysed and all the ingredients of the offence were proved as all the documents presented by the appellant were fake. That the appellant offered no defence and the charges were undisputed.

34. He argued that the inadequacies of Count 1 did not render the charge defective. Counsel further submitted that the appellant was represented and though his advocate was not present on 2/3/15, Mr. Karanja held his brief. On sentence, counsel conceded that the same should have run concurrently.

35. This is a first appeal and this court has a duty to re -evaluate and reconsider the evidence adduced and arrive at its own conclusion. It has also to bear in mind that it did not see nor hear the witnesses and give an allowance for that. This was the holding in the case of Okeno vs Republic 1972 EA 32

“ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandaya v R, [1957] E.A 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v R,)[1957] E.A 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post, [1958] E.A 424. ”

36. The Court of Appeal further in the case of Muthoko & Anor v Republic 2008 KLR 297held as follows:

“it was the duty of a first appellate court to analyze the evidence and come to its own independent conclusion bearing in mind that it did not hear or see the witnesses and making allowance for that.”

37. I have considered the evidence on record, the grounds of appeal, the submissions by all counsels and the cited authorities. The appellant has raised a total of 9 grounds of appeal. Upon considering all I have stated above, I will narrow them to 3 issues which are:-

1. Was the appellant accorded a fair trial under Article 50 in the trial court?

2. Was the charge in count 1 vague and hence defective?

3. Was there sufficient evidence to support a conviction on all counts?

4. Was the sentence too harsh?

38. The appellant under ground No. 2 of his appeal stated that the learned trial Magistrate erred in law and fact by proceeding to convict him without having accorded him a fair trial as envisaged in Article 50 (2) (j) of the Constitution. Article 50 (2) (j) of the Constitution 2010 provides:

“50. (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a Court or, if appropriate, another independent and impartial tribunal or body.

2. Every accused person has the right to a fair trial, which includes the right –

(c) to have adequate time and facilities to prepare a defence

(g) to choose, and be represented by an advocate and to be informed of tis right promptly.

(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;.”

39. Accordingly, the trial Court is under a Constitutional duty to ensure an accused person has a fair trial.

In D. O. O v Republic [2015] eKLR Makau J in dealing with the issues of a fair trial made the following observation:-

“A fair trial is a Constitutional right for any accused person which is guaranteed by the constitution. The Court is also supposed to be impartial in determining the dispute and ensure level playing ground is laid down before commencement of the trial for both the prosecution and the accused. The fair trial includes the right to be informed of the charge, with sufficient detail to answer it, to have adequate time and facilities to prepare a defence, to choose, and be represented by an advocate, and to be informed of this right promptly, to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to that evidence. To avoid such lapses by the trial Court, it is important and desirable for the trial Court to inform the accused of such rights and ensure the prosecution complies with the provisions of Article 50 before trial commences. It is in my view not enough to enquire whether accused is ready without going further to establish that Article 50 (2) (b) (c) (g) and (j) has been complied with and the accused is informed of the charge with sufficient detail to answer it, have adequate time and facilities to prepare a defence, choose and be represented by advocate and even if he cannot choose one to be informed of the this right promptly and lastly to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to that evidence. This in my understanding means before a matter proceeds to hearing the prosecution is supposed to give opening remarks in which it is supposed to state the nature of the offence and how they are going to prove the same, the kind of witnesses and number to be called so that the accused at least remains informed in advance of the evidence the prosecution intends to rely on and be furnished with witness statements. It is important for the trial Court to note that a prompt and fair trial may not be achieved if an accused is not supplied in advance with witness statements and adequate time and facilities to prepare their defence. Preparation includes getting a legal opinion as well.”

40. Mr. Mwangi Counsel for the appellant in his submissions submitted that the trial court failed to accord the appellant a fair hearing in accordance with article 50 of the constitution of the Republic of Kenya 2010. A look at the record of proceedings during the defence hearing reveals the following:-

2/3/16

Magistrate Hon A.Lorot SPM

Prosecutor Samuel

Court clerk Aswani

Interpretation: Kisw/English

Ndirangu: Absent

Karanja: I hold brief for Ndirangu.

Ndirangu is not ready.

He is engaged in Hcc 39/15, Milimani.

Court:

The accused is explained the conditions of defence under section 211 CPC in Kiswahili.

Accused

I will give an unsworn statement and call no witnesses.

Court

Defence hearing proceed at 1:10pm

A.LOROT SPM

2/3/16.

Later at 2pm

Coram as before

Court: Defence hearing at 9a.m on 3/3/16.

Magistrate: Hon.A Lorot SPM

Prosecutor: Samuel

Court Clerk: Aswani

Interpretation: Kisw/English

41. The record of proceedings above shows that the prosecution case was finalized on 16th December 2015, and the appellant was placed on his defence the same day. The case was fixed for defence hearing for 2nd March 2016. On the said date Mr. Ndirangu was absent but he sent a Mr Karanja to hold his brief. Mr Karanja explained Mr. Ndirangu’s absence to the court. This issue was never addressed or responded to by the trial court.

42. The Court went ahead to explain the provisions of section 211 Criminal Procedure Code to the appellant who without the guidance of his counsel elected to give an unsworn statement with no witnesses to call. It was ordered that the defence hearing proceeds at 1. 10 p.m on the same day. Later at 2 p.m when the court resumed and in the absence of the defence counsel the defence hearing was fixed for hearing at 9 a.m the next day 3rd March 2016.

43. Come the next day Mr. Ndirangu for the appellant was absent because he was not even aware that the matter was for hearing. From this record it can be clearly seen that the appellant was not given time to consult with his Counsel on when he could avail himself for his client’s defence hearing. He was therefore not given adequate time to prepare for his defence.

44. His unpreparedness is revealed from his statement of defence. This action by the court violated Article 50(2) (c)(g) of the Constitution.

Besides this violation it is clear that in a case where several offences are committed in one transaction the sentences meted against the offender should run concurrently. There was no explanation given by the court as to why C1 and C5 were to run concurrently while the rest had to run consecutively. See the cases: Peter Mbugua Kabui v Republic 2016 eKLR; George Mwangi Chege & 2 Others v Republic [2004] eKLR and Ng’anga v Republic [1981] KLR 530 & Ondiek v republic [1981] KLR 430

45. Having made the two above findings I am of the view that there would be no need of analyzing the remaining issues. It is clear that the court did not give the appellant a conducive opportunity to make his defence in accordance with the Constitution and the law. He has to be placed where he ought to have been at the time of making his defence.

46. I allow the appeal, set aside the convictions and the sentences and all the subsequent orders on all counts.

47. I also set aside all the proceedings that took place after the 2nd March 2016. The appellant shall be arraigned before the Chief magistrate’s court Thika for his defence case to be taken afresh. The said defence will be heard by any court with competent jurisdiction besides Hon. A. Lorot S.P.M.

48. The defence shall be heard and the case finalized within ninety (90) days.

Orders accordingly.

Signed, dated and delivered this 3rd day of August 2018 in open court at Kiambu.

.........................................

HEDWIG I. ONG’UDI

JUDGE