https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12862

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **CRIMINAL APPEAL NO. E042 OF 2025** **PETER NYAMARI MOGAKA ................................. APPELLANT** **VERSUS** **REPUBLIC ....................................................... RESPONDENT** *(An appeal from the judgment of the Chief Magistrate's Court at Molo (Hon. Caroline A. Ocharo, CM) in Criminal Case No. E2048 of 2023 delivered on 23rd July 2025)* **JUDGMENT** 1. The Appellant, **PETER NYAMARI MOGAKA**, was charged before the Chief Magistrate's Court at Molo with two counts of Obtaining Money by False Pretence contrary to Section 313 of the Penal Code (Cap 63 Laws of Kenya). 2. The particulars of the offence in Count I were that on 5th August 2023 at Kapsita Village, Molo Sub-County within Nakuru County, with intent to defraud, the Appellant obtained Kshs. 400,000 from JUDITH KEMUNTO OMARI by falsely pretending that he was in a position to secure a job for her son with the Kenya Defence Forces as a recruit constable, a fact he knew to be false. 3. The particulars of the offence in Count II were that on the same date and place, with intent to defraud, the Appellant obtained Kshs. 400,000 from JOYCE KERUBO PETER by falsely pretending that he was in a position to secure a job for her son with the Kenya Defence Forces as a recruit constable, a fact he knew to be false. 4. The Appellant pleaded not guilty to both counts. After a full trial, the learned trial magistrate convicted the Appellant on both counts and sentenced him to pay a fine of Kshs. 150,000 on each count, in default to serve one (1) year imprisonment on each count. 5. Being aggrieved by the conviction and sentence, the Appellant filed this appeal on the following seven (7) grounds; 1. ***THAT the learned trial magistrate erred in fact and law by clearly analyzing the ingredients for the offense of obtaining money by false pretense as provided for by section 313 of the Penal Code but failed to analyze the said ingredients vis-a-vis the facts of the case and thus arrived at an erroneous decision of convicting the accused person.*** 2. ***THAT the learned trial magistrate erred in fact and law by convicting the accused person on the two counts of obtaining money by false presence as provided for by section 313 of the Penal Code yet the prosecution had not proven the same.*** 3. ***THAT the learned trial magistrate erred in law and fact by disregarding the exculpatory evidence by Appellant which was adduced before the Honorable Court and thus arrived at the impugned decision of convicting the Accused Person.*** 4. ***THAT the Learned trial Magistrate erred both in fact and law by proceeding to convict the Appellant yet all the evidence, facts and the circumstances point to the innocence of the Accused Person, the Appellant herein.*** 5. ***THAT the Learned Magistrate erred both in fact and law by holding that the Prosecution had discharged its burden beyond reasonable doubt and thereafter convicting the Accused Person yet the conviction that was reached by the trial court was not supported by the facts of the case.*** 6. ***THAT the Learned Magistrate erred both in fact and law by proceeding to convict the Accused Person, the Appellant herein yet the prosecution evidence, case and testimony was marred with glaring contradictions and inconsistencies.*** 7. ***THAT the Learned magistrate erred both in fact and law by ignoring the Accused Person's uncontroverted, unchallenged and unwavering defence which clearly pointed out to the innocence of the Accused Person.*** 6. This Court is mindful of its duty as the first appellate court. The Court of Appeal in ***Okeno v Republic [1972] EA 32*** at page 36 stated: ***"An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya 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."*** 7. This court will therefore scrutinize evidence independently and draw its own conclusion. 8. The prosecution called seven (7) witnesses in support of its case. The evidence adduced before the trial court was as follows: 9. PW1- JUDITH KEMUNTO OMARI testified that she was a casual labourer who had worked for the Appellant on his farm. She had known the Appellant for over twelve (12) years. In May 2023, while she was working for the Appellant, he informed her that he had secured government positions and wanted to assist those in need. On 3rd August 2023, the Appellant told her that the positions were now available and that they were KDF positions.PW1 requested the position for her sister's son (an orphan). The Appellant initially quoted Kshs. 600,000 but later agreed to Kshs. 400,000. She gave the money to PW2, who deposited it into his Absa Bank account and transferred it via PesaLink to the Appellant's KCB Bank account on 5th August 2023. She produced the KCB Bank statement (PMFI 1) and the PesaLink receipt as exhibits. 10. PW2 -BENARD OMWAMBA MOSIGISI testified that he was a retired KDF officer and a landlord to PW1. He advised PW1 against giving the money in cash, warning it might be a fraud. He transferred Kshs. 400,000 via PesaLink from his Absa Bank account to the Appellant's KCB account on 5th August 2023. He identified the PesaLink receipt. 11. PW3 – JOYCE KERUBO PETER testified that she was a farmer and a casual labourer from Ogembo. On 2nd August 2023, her in-law, PW4 (Jason Nyangaresi), called her and informed her of a KDF job opportunity through a friend (the Appellant). The fee was Kshs. 400,000. She raised Kshs. 200,000 from a women's group and PW4 promised to assist with the balance. On 4th August 2023, they went to the Appellant's home. The Appellant asked PW1 to count the money, which she confirmed as Kshs. 400,000. The Appellant then took the money and left with both boys for Nairobi. 12. PW4 – JASON NYANGARESI MAROKO testified that on 2nd August 2023, the Appellant called him, claiming to have been given four (4) KDF job slots by his seniors. PW4 called his in-law (PW3) whose son had done NYS. PW3 only had Kshs. 200,000, so PW4 added his own Kshs. 200,000 to make the full amount. The money was counted by PW1 and handed over to the Appellant. 13. PW5 –NYANGAU CHWEYA IBRAHIM testified that on 4th August 2023, they travelled to Molo for a job opportunity. At PW4's house, they met the Appellant, who confirmed he had KDF job slots. On the morning of 5th August 2023, they went to the Appellant's home. PW4 gave the money to the Appellant, but he asked for it to be given to PW1 to confirm. She counted it as Kshs. 400,000. The Appellant then left with both boys for Nairobi. In Nairobi, they met a man at the Supreme Court gate, were taken to two hotels, where men checked their height and teeth and declared them fit. They were told to wait for calling letters by 10th August 2023. The letters never came. 14. PW6 – GEOFFREY OGECHI OMWAMBA testified that his aunt (PW1) called him and told him to come to Molo for a job opportunity. He received a call from the Appellant who introduced himself as the one giving him the job and asked for his documents via WhatsApp. On 5th August 2023, they went to the Appellant's home. PW1 counted the money and handed it to the Appellant. They travelled to Nairobi with the Appellant, where they met men at two hotels who checked their height and teeth and declared them fit. They were told to wait for calling letters by 10th August 2023. The letters never came, and the Appellant never refunded the money. 15. PW7 – NO. 2386591 CP TOBIAS OTIENO PW7 testified that on 2nd September 2023, four people reported to the DCI office in Molo. They claimed they had been conned Kshs. 400,000 each by the Appellant. He obtained a court order for the Appellant's KCB bank statement. The statement showed: · 5th August 2023: Kshs. 400,000 deposited via PesaLink. Same day: Kshs. 40,000 withdrawn via ATM and Kshs. 50,000 withdrawn via agent. · 7th August 2023: Kshs. 100,000 withdrawn via agent. · 8th August 2023: Kshs. 40,000 withdrawn. · 10th August 2023: Kshs. 160,000 withdrawn over the counter. .30th August 2023 kshs 4,000 withdrawn via ATM. . 5th September 2023 there was a check off loan payment of kshs 8,000 and on the same day withdrew kshs 20,000 via agent. · Balance: Only Kshs. 18,345 remained on the account when the statement was supplied. 16. PW7 concluded that the money was withdrawn in bits over several days, disproving the Appellant's claim that he was robbed. He produced the bank statement (P Exhibit 1), PesaLink receipt (P Exhibit 2), account opening statement (P Exhibit 3), and the Misc Application (P Exhibit 4) as exhibits. In cross-examination, PW7 admitted that the bank statement does not mention the depositor's name or the purpose of the deposit. He also admitted that he did not see any demand letter from Motanya & Co. Advocates 17. After the close of the prosecution case, the trial court found that a prima facie case had been established and placed the Appellant on his defence. The Appellant elected to give sworn evidence and called two witnesses. 18. DW1 – PETER NYAMARI MOGAKA, the Appellant testified that he was a retired civil servant and former accountant. He denied receiving any money from the complainants for KDF jobs. He admitted traveling to Nairobi on 5th August 2023 but claimed he went for his own business (selling dry maize). He claimed his neighbour, PW4, asked him to take his son (PW5) to Nairobi because the boy needed to see someone there. As for the Kshs. 400,000 deposited into his account on 5th August 2023, the Appellant claimed this was payment from a "Somali" buyer for dry maize that his wife had sold. He stated that on 28th August 2023, he received a demand letter from Motanya & Co. Advocates claiming he owed Kshs. 800,000. He responded to the letter through his advocate, denying the claims. He produced the demand letter (D Exhibit 1) and his response (D Exhibit 2).In cross-examination, the Appellant admitted that he did not mention the "maize sale" story earlier in the proceedings. He also admitted that he did not bring the driver or any other passengers from the matatu as witnesses. 19. DW2 – DAVID MUCHOKI MWANGI testified that he was a matatu driver who drives from Molo to Nairobi. He confirmed that the Appellant was a regular customer who had reserved a seat for Nairobi on 5th August 2023. He picked the Appellant at his gate around 4:00 am. He saw a man coming with a young boy. He stated that no money was counted at that time. In cross-examination, DW2 admitted he did not have his PSV badge with him in court and did not know all the other passengers in the vehicle. 20. DW3 – LUCY NEKESA CHELOTI testified that she was an advocate with the firm Wamaasa, Masese, Nyamwange & Co. Advocates, which represents the Appellant. On 30th August 2023, her firm received instructions to respond to a letter dated 28th August 2023 from Motanya & Co. Advocates. The letter was written on behalf of PW2 and PW4, demanding a refund of Kshs. 800,000 allegedly advanced to the Appellant. Her firm responded denying that the Appellant owed any money. She stated that the matter appeared to be civil but later turned into a criminal case. She suggested the arrest was to "coerce" the Appellant to settle a non-existent debt. In cross-examination, she admitted she was not aware that monies had been deposited into the Appellant's account. 21. The Appellant's counsel filed written submissions dated 29th July 2026. Counsel submitted that there was no documentary evidence to suggest that the Appellant was given Kshs. 800,000. It was argued that PW1 could not state the source of the Kshs. 400,000, No deposit slip was produced to show that PW2 deposited the money, PW2 confirmed he did not know his bank account number and that there was a contradiction between PW3's testimony (chama) and PW5's testimony (sale of land). Counsel submitted that the Appellant never pretended to be who he was not. The prosecution witnesses confirmed that the Appellant never informed them that he worked with the KDF. Counsel further submitted that the alleged representation was about a future event, which cannot amount to false pretence. Counsel relied on **Oware v Republic [1984] KLR 2001** and **R v Dent [1955] 2. Q.B. PP 594/5**. 22. Counsel submitted that the Appellant took the complainants' children to the persons who were supposed to assist them, which shows the Appellant was genuine. Counsel submitted that the criminal jurisdiction was improperly invoked. It was argued that the complainants went to an advocate, which led to a demand letter. After the Appellant's advocates responded denying the debt, the complainants lodged a complaint with the police. Counsel relied on ***Samuel Mbugua Kibe v Republic [1993] eKLR.*** Counsel submitted that the burden of proof rests on the prosecution throughout. Counsel relied on ***Republic v Silas Magongo Onzere alias Fredrick Namema [2017] eKLR***.Counsel submitted that the Appellant and his two witnesses testified and their evidence was not dislodged on cross-examination. 23. The Respondent's counsel filed written submissions dated 29th July 2026. The Respondent submitted that the ingredients of the offence were sufficiently proven.The Respondent relied on ***Anne Njambi Kiragu v Republic [2021] eKLR*** for the proposition that all ingredients of the offence must be proved together. The Respondent submitted that there was a representation of an existing fact, that the Appellant represented that he had been given KDF slots by his seniors. That this representation was false, and the Appellant had no authority to recruit for KDF. That the representation induced the complainants to part with property: PW1 and PW3 paid Kshs. 400,000 each based on the Appellant's promise. That there was intent to defraud and that the Appellant withdrew the money in bits and never refunded it.The Respondent relied on the evidence of PW1, PW2, PW3, PW4, PW5, PW6, and PW7. 24. The Respondent submitted that the minor inconsistencies in the prosecution evidence do not vitiate the prosecution's case. The Respondent relied on ***Alex Kapunga & 3 others v R*** (Court of Appeal Tanzania), where the court held that discrepancies do not automatically make a witness unreliable. The Respondent submitted that the Appellant's defence of maize sale was an afterthought. The Appellant did not call his wife or the alleged "Somali" buyer to corroborate his evidence. The investigating officer (PW7) testified that the Appellant never raised these facts during investigation.The Respondent further submitted that DW3 (the advocate) was not aware that monies had been deposited into the Appellant's account. The advocate who wrote the demand letter never testified. The Respondent submitted that the sentence was within the discretion of the trial court. The Respondent relied on ***Bernard Kimani Gacheru v Republic [2002] eKLR***, where the Court of Appeal held that an appellate court will not interfere with sentence unless it is manifestly excessive or the trial court acted on a wrong principle. 25. Having carefully considered the grounds of appeal, the record of the trial court, and the submissions of both parties, this Court identifies the following issues for determination: ***a. Whether the prosecution proved the offence of obtaining money by false pretence beyond reasonable doubt.*** ***b. Whether the trial court properly considered the Appellant's defence.*** ***c. Whether the sentence imposed was lawful and appropriate*.** 26. The Appellant was charged with the offence of Obtaining Money by False Pretence contrary to Section 313 of the Penal Code, which provides: ***"Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanour and is liable to imprisonment for three years*."** 27. Section 312 of the Penal Code defines "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, is a false pretence."*** 28. The essential elements of the offence are: (a) Obtaining something capable of being stolen; (b) Through a false pretence; (c) With intent to defraud. 29. The Appellant's counsel submitted that there was no documentary evidence to show that the money was paid to the Appellant. I find this submission to be without merit. The evidence on record clearly shows that PW1 gave Kshs. 400,000 to PW2, who transferred the money via PesaLink to the Appellant's KCB Bank account on 5th August 2023. This was confirmed by the KCB Bank statement (P Exhibit 1), which shows a deposit of Kshs. 400,000 into the Appellant's account on that date.PW3 gave Kshs. 400,000 in cash to the Appellant on 5th August 2023. This was confirmed by the testimonies of PW3, PW4, PW5, and PW6.The Appellant admitted during his testimony that Kshs. 400,000 was deposited into his account on 5th August 2023. His explanation that it was payment for maize from a "Somali" buyer is unsupported and implausible. The bank statement shows the money was withdrawn in bits immediately after it was deposited. 30. Regarding the alleged contradiction on the source of the money in Count II, I find that this is not a material contradiction. The Respondent relied on ***Alex Kapunga & 3 others v R*** for the proposition that discrepancies do not automatically make a witness unreliable. I agree. The minor discrepancies on the source of the money do not go to the root of the prosecution's case. 31. The Appellant relies on ***Oware v Republic [1984] KLR 2001*** and ***R v Dent [1955] 2. Q.B. PP 594/5*** to argue that a representation as to a future event cannot support a charge of obtaining money by false pretence. In R v Dent, Devlin J stated: ***"..........A long course of authorities in criminal cases has laid down that a statement of intention about future conduct, whether or not it be a statement of existing fact, is not such a statement as will amount to a false pretence in criminal law."*** 32. However, those cases are distinguishable. In the present case, the Appellant represented that he had been given KDF slots by his seniors. This was a representation about a present fact, not a future promise. The false pretence was the representation about his present authority or connections, not the future promise to secure employment. The Respondent correctly submitted that the ingredients of the offence were proven. The Appellant's representation that he had been given KDF slots was false because he had no authority to recruit for the KDF. Section 28(1) of the Kenya Defence Forces Act reserves recruitment to the Defence Council. 33. The evidence shows that the Appellant took the money and spent it immediately by withdrawing in bits. The promised calling letters never came. The Appellant made excuses that the money was stolen and that he was conned. The Appellant never refunded the money. The fact that the Appellant went through the motions of taking the children to Nairobi and having them examined does not negate his fraudulent intention. It is consistent with a well-orchestrated scheme to defraud. 34. The Appellant's counsel submitted that the matter was civil in nature and that criminal jurisdiction was improperly invoked, relying on ***Samuel Mbugua Kibe v Republic [1993] eKLR***. The evidence on record shows that the complainants approached the police after the Appellant failed to deliver on his promise and refused to refund the money. The demand letter from Motanya & Co. Advocates does not convert this matter into a civil dispute. In ***Samuel Mbugua Kibe v Republic [1993] eKLR***, the court held: *"Finally the matters before the learned trial Magistrate were contractual where the ultimate remedy available was specific performance or refund of the alleged consideration. In my view criminal jurisdiction could not be invoked where the issues were clearly civil in nature."* 35. However, that case is distinguishable. In ***Samuel Mbugua Kibe(Supra)***, the dispute was clearly contractual, that is, land transfer. In the present case, the dispute is not purely contractual; the Appellant obtained money through false pretence, which is a criminal offence. 36. The Appellant submitted that the burden of proof rests on the prosecution throughout. In ***Republic v Silas Magongo Onzere alias Fredrick Namema [2017] eKLR***, Justice R. Nyakundi stated: ***"It is the law in Kenya as entrenched in the Constitution under Article 50 (2) (a) that an accused person is presumed to be innocent until the contrary is proved. The Evidence Act Cap 80 of the Laws of Kenya at section 107 (1) provides thus: 'whoever desires any court to give judgement as to any right or liability dependent on the existence of facts which he asserts, must prove those facts exist.'*"** 37. I have applied this principle. The prosecution bore the burden of proving the Appellant's guilt beyond reasonable doubt, and I find that it has discharged that burden. The bank statement (P Exhibit 1), the PesaLink receipt (P Exhibit 2), and the consistent testimonies of the seven prosecution witnesses collectively prove the Appellant's guilt. The defence raised by the Appellant does not create a reasonable doubt sufficient to displace the prosecution's evidence. 38. The Appellant contends that the trial court disregarded his exculpatory defence. I have carefully examined the trial court's judgment and find that the court properly considered the Appellant's defence. 39. The trial court stated: ***"From the totality of the evidence tendered against the accused, I find that his defence does not raise any reasonable doubt as the promise was made with no intention of performance and served solely as a vehicle for fraudulent inducement, designed to unlawfully deprive the complainants of their money."*** 40. The Appellant's defence was that the Kshs. 400,000 was payment for maize from a "Somali" buyer. This defence was introduced late and was not corroborated. The Appellant did not call his wife or the alleged "Somali" buyer to testify. The Appellant never raised these facts during investigation. The Respondent correctly submitted that the defence was an afterthought. The Appellant also claimed he only accompanied PW5 to Nairobi as a favour to his neighbour. This explanation fails to account for why he also took PW6 and why he had the recruits examined by people at hotels in Nairobi. In ***Okethi Okale & Others v Republic [1965] EA 555***, the court held that an accused person's defence must be considered alongside the prosecution evidence. The trial court considered the defence but found it implausible. I agree with that finding. 41. The trial court imposed a fine of Kshs. 150,000 on each count, in default to serve one (1) year imprisonment on each count. The sentence is lawful and not excessive. The trial court considered the Appellant's mitigation and the circumstances of the offence.The Respondent relied on ***Bernard Kimani Gacheru v Republic [2002] eKLR,*** where the Court of Appeal held: ***".......Sentence is a matter that rests in the discretion of the trial court. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle."*** 42. In this case, the trial court did not act on a wrong principle, and the sentence was not manifestly excessive. 43. Accordingly, the Appeal is hereby dismissed in its entirety. The conviction of the Appellant on both counts is upheld. The sentence imposed by the trial court is also hereby upheld. **Dated, signed and delivered at Nakuru this 13th day of August, 2026.** **J. K. SERGON** **JUDGE** **In the presence of:** Rutoh C/A N/A for the parties