[2020] KEHC 1073 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL APPEAL NO. 129 OF 2019

PHELIX WANGA ONYANGO.......................APPELLANT

VERSUS

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

(Being an appeal from the original conviction and sentence in the Chief MagistrateCourt

at Mombasa Criminal Case No. 242 of 2012 by Hon. F. Kyambia (SPM) dated 28th November 2019)

Coram: Hon. Justice J. Nyakundi

Mr. Muthomi for the Respondent

Appellant in person

JUDGMENT

The Appellant was charged with obtaining money by false pretence contrary to section 313 of the Penal Code. The particulars of the offence were that between the 29th and 30th day of November 2011 in Mombasa Township in Mombasa County, jointly with others not before court with intent to defraud obtained Ksh. 1,550,00 from Tabitha Wahito Kaniu pretending that they were in a position of selling a container of second hand clothes to her, a fact that they knew to be false or untrue.

At the end of the trial, the Appellant was convicted and sentenced to 3 years imprisonment. Aggrieved by the sentence and the conviction of the trial court, the Appellant through his advocate, Mr. Obara lodged an appeal on the following grounds:

1) That the learned trial Magistrate misunderstood and misapplied the provisions of section 313 of the Penal Code.

2) That the learned trial Magistrate erred in law and fact by failing to consider all the evidence on record and the submissions by the defence.

3) That the learned trial court Magistrate erred in law and fact by convicting and sentencing the Appellant when the elements of the offence under section 313 of the Penal Code had not been proved at all by the prosecution.

4) That the findings of the learned trial Magistrate were against the weight of the available evidence.

5) That the learned trial Magistrate erred in law and fact by failing to appreciate that the issues raised during the trial were issues that could not be entertained in criminal proceedings.

6) That the learned trial Magistrate erred in law and fact by misapplying the law and shifting the burden of proof to the Appellant.

7) That the learned trial Magistrate’s judgement does not conform to the relevant laws.

8) That the sentence was manifestly harsh and excessive in the circumstances and illegal.

9) That the learned trial Magistrate erred both in law and fact in entertaining the case before him, convicting and sentencing him when the matter before him was purely civil and not criminal in nature.

10) That the decision of the trial Magistrate was against the weight of evidence and has resulted onto a miscarriage of justice.

Background

PW1 Tabitha Wahito Kari,explained the court how on 27th November 2011 she was in Nairobi with her husband (PW2) when they met Geoffrey. Geoffrey was reading a document about an auction and among the auctions items was a 40 foot container No. MSKU O431153 STS.135 with second hand clothes. Geoffrey informed them that he had connections at Kilindini port, namely Ezekiel Omunga and the Appellant, who could help them get the container. That Geoffrey made a few calls and later they arranged to travel to Mombasa the next evening.

On 28th November 2011 PW1 and Daniel Ndungu, a family friend, met Geoffrey and his wife and they proceeded to Mombasa by a night bus. They arrived in Mombasa on the 29th November 2011 and proceeded to the port where they met two men. PW1 stated that before she could see the container she was asked to pay a down payment to the shipping line. PW1 went to Family Bank, Moi Avenue branch and withdrew KSh. 490,000/- and returned to the port. At the port she gave Ksh. 200,000/- to the Appellant in the presence of Geoffrey and his wife. PW1 stated that they did not see the container but Geoffrey informed her that she need to add Ksh. 1,350,000/- for the container and that she would receive a receipt the next day.

PW1 told the court that the next day 30th November 2011 she withdrew Ksh. 990,000/- which she gave the money to the Appellant, Geoffrey and his wife. Geoffrey told PW1 that they should go to Blue room where they would meet the person who would give them the receipt. That at Blue room Geoffrey went in leaving PW1 and his wife outside. That Geoffrey took long and got suspicious. She called PW1 then together with Geoffrey’s wife they entered blue room where they met Geoffrey with a man called Kiragu. That the said Kiragu informed her that there was a problem and that they should meet the next day.

On the next day PW2 joined up with them and they went to Cannon house but did not get any assistance. That they went to the port where and got the number of Corporal Musara who they met and reported the matter at the CID. That together with some officers from the CID they met with Geoffrey who had promised to give them bus fare. That the CID officer arrested Geoffrey. That PW1 and PW2 went to the police station the next day and learnt that Geoffrey had been released on a cash bail of Ksh. 10,000/- and they never saw him again.

In cross-examination by Mr. Kasele Advocate for the Appellant at the time, PW1 explained that it was Geoffrey who came up with the idea of buying things at Mombasa. She stated that when she paid the Ksh. 200,000/- it was Geoffrey who had asked him to pay but she gave the money to Felix. She also explained that on 30th November 2011 she gave Ksh. 1,350,00/- to Geoffrey who then gave the money to Felix.

PW2 Jackson Banga Nyali,PW1’s husband told the court how on 27th November 2011 they had met with Geoffrey who informed them about the auction and that he could help them get the container they wanted and they arranged to go to Mombasa the next evening. PW2 told the court that he could not travel to Mombasa and therefore asked his friend Daniel Ndungu to accompany PW1 to Mombasa. They left on 28th November 2011 at 9:00am.

PW2 told the court that on 29th November 2011 he kept making calls to follow up the progress. That at one point a man named Kiragu called him and informed him that their documents had been delayed. PW2 then travelled to Mombasa the next day and met up with Geoffrey and his wife and they went to Blue room where they met who Geoffrey informed him was called Ezekiel who was a senior manager at Kenya Ports Authority (KPA). That while there the Appellant met with them and confirmed receiving the money and assured PW1 and PW2 that they would deliver the next day.

That the following morning, they made a follow up but could get hold of the Appellant or Ezekiel. That they met up with Kiragu who informed them that the Appellant and Ezekiel had conned them.

They reported the matter to the police who arrested Geoffrey. That the next morning they went back to the police station but learnt that Geoffrey had been released on cash bail of Ksh. 10,000/- by the OCS. That some days later he was called and informed that Ezekiel and the Appellant had been arrested.

In cross-examination by the Appellant, PW2 stated that the auction never happened and that it was the first time he was buying anything in an auction at KPA.

PW2 No. 92425 PC Harun Okerostationed at Coast Region CID headquarters was the investigating officer. He stated that PW1 and PW2 made the complaint on 1st December 2011 on which day Geoffrey was arrested. That Geoffrey led them to the contacts and names Appellant and Ezekiel. However, Geoffrey was later released on the instructions of the OCPD. PW3 informed the court that he caused the Appellant and Ezekiel to be arrested and they were identified by PW1.

In cross-examination by the Appellant, PW3 stated that there was no agreement between the PW1 and the Appellant when she was giving him the money.

At the close of the prosecution case, the trial court found that a prima facie case had been established and the Appellant was placed on his defence. The Appellant chose to give a sworn statement. He stated that on 28th November 2011 he travelled upcountry where he stayed for two weeks. That when he returned to Mombasa he met with a man who they had a land transaction and they had a quarrel. That while they were arguing, they were arrested by police officers and taken to Central Police Station. The next day he was brought to court and charged.

In cross-examination by the prosecution, the Appellant reiterated that he had travelled upcountry on 28th November 2011. He also stated that PW1 identified him in court.

Submissions

The Appellant filed his submissions dated 7th May 2020 and filed on the 8th May 2020 while the Respondent filed its submissions on submissions dated 2nd June 2020 on the same date. The matter came up for hearing on 3rd September 2020 where parties highlighted their submissions.

Appellant’s submissions

Mr. Obara for the Appellant submitted that the prosecution never proved its case against the Appellant. It was his submission that the Appellant never received the money from the complainant as PW1 stated in cross-examination that she gave the money to Geoffrey. He stated that Ksh. 200,000/- was a substantial amount of money that could not be given without a receipt.

Counsel submitted that the prosecution was required to prove that the Appellant made false representations to PW1 and PW2 however no evidence was tendered to show that the auction was fake or that it never took place and urged that the offence of obtaining by false pretence can only be proved if it related to present and not future events.

Mr. Obara submitted that the prosecution had failed to call one of its witnesses without any explanation and it could only be presumed that the evidence would have been counter-productive. Further it was submitted that the Appellant in his raised a defence of alibi when he stated that he had travelled upcountry on 28th November 2011. He stated that the prosecution had failed to rebut his alibi as was required under section 309 of the Criminal Procedure Code (CPC).

On sentence, Mr. Obara submitted that despite the Appellant’s mitigation, the trial court sentenced him to the maximum sentence without giving reason. He urged that the sentence was manifestly harsh as the court had a leeway to consider a non-custodial sentence such as probation.

Mr. Obara prayed that the court allowed the appeal. He relied on Petition No. 15of 2015 Francis Karioko Muruatetu vs Republic and Criminal Appeal No. 15 of 2015 Robert Kipkemoi Rono vs Republic.

Respondent’s submissions

Mr. Muthomi for the Respondent submitted that the prosecution had proved that the Appellant had obtained PW1’s money by falsely representing that he could assist her obtain a container from an auction at KPA, which he knew to be false. He submitted that the elements of the offence of obtaining money by false pretence as outlined in Criminal Appeal No. 213 of 2011 Gerald Ndoho Munjuga vs Republic [2016] eKLR.

Further, the counsel submitted that Appellant’s alibi defence was an afterthought when looked at against the whole prosecution evidence and was simply a mere denial as there was no evidence that he had indeed travelled.

On the issue of the unnamed witness who was never called to testify, counsel submitted that it was impossible to gauge the importance of the witness if the identity was unknown. Moreover, that section 143 of the Evidence Act allowed the prosecution to call any number of witness to prove or disapprove its case.

Lastly, on sentence Mr. Muthomi submitted that the appellate court would not interfere with sentencing unless it was evident that the court had overlooked some material facts as was held in Mary Wangechi Ndoria vs Republic [2018] eKLR. He urged that the sentence was neither harsh nor excessive and that the trial court was well within its powers to sentence the Appellant as it did. He urged the court to confirm the conviction and sentence and dismiss the appeal.

Analysis and determination

This being a first appeal, this court has a duty to revisit the evidence that was before the trial court, re-evaluate and analyse it and come to its own conclusions. Further, the court has to bear in mind that unlike the trial court, it did not have the benefit of seeing the demeanour of the witnesses and the Appellant during the trial and can therefore only rely on the evidence that is on record. See Okeno v R (1972) EA 32, Eric Onyango Odeng’ v R [2014] eKLR.

I have considered the grounds of appeal, the respective submissions, and the record and the issue for determination is whether the charge whether the prosecution proved its case and whether the sentence was excessive.

The offence of obtaining by false pretence is defined under section 313 of the Penal Code which states that:

“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 misdemeanor and is liable to imprisonment for three years.”

The elements of the offence were set out by this court in the case of Joseph Wanyonyi Wafukho v Republic [2014] eKLR as follows:

“Form the said section; the following essential elements of the offence of obtaining through false pretences are discernible: that the person;

a) Obtained something capable of being stolen;

b) Obtained it through a false pretence; and

b) With the intention to defraud.”

The Penal Code define false pretence in section 312 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.”

The court in Joseph Wanyonyi Wafukho v Republic (Supra)went to further define the elements of false pretence as: -

“[13] Let us un-pack the above definition of false pretence further. There must be:

a) A representation of fact by word, writing or conduct;

b) The representation is either past or present;

c) The representation must be false; and

d) The person made the representation knowing it to be false or did not believe it to be true.”

The court must determine whether the evidence proved that the Appellant obtained the money by false pretence. PW1& PW2 told the court how Geoffrey told them that he could help them get a container from an auction that was to be held at Kilindini Port on 29th November 2011. That PW1 together with Geoffrey travelled to Mombasa and arrived on the 29th November 2011where she met with the Appellant outside the port and she was asked to pay a down payment. She withdrew money from her account and gave it the Appellant in the presence of Geoffrey. She was never shown the container but Geoffrey assured her that she would receive a receipt the next day. He further asked for the balance of the money. That the next day, 30th November 2011, she gave Ksh. 1,350,000/- to Geoffrey who gave the money to the Appellant. Geoffrey told her to go to Blue room where she would meet the person who would give her the money.

According to PW2, one Kiragu informed him that their documents had been delayed and travelled to Mombasa on 1st December 2011. That he was taken by Geoffrey in the company of his wife to blue room and that while there the Appellant met them and introduced himself and told them that they had received the money and they would deliver the next day.

The Appellant on his part denied receiving the money and raised an alibi in his defence claiming that he had travelled upcountry on the 28th November 2011 and stayed there for two weeks. The principles of how courts deal with an alibi as a defence are well settled. In the case of Kiarie vs Republic [1984] KLR the Court of Appeal held that:

“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable. The judge had erred in accepting the trial magistrate’s finding on the alibi because the finding was not supported by any reasons”.

In Athuman Salim Athuman v Republic [2016] eKLR the Court of Appeal held that:

“Although the appellant in this case put forth his alibi defence rather late in the trial, we cannot agree with counsel for the respondent that the alibi defence must be ignored. That defence must still be considered against the evidence adduced by the prosecution. Indeed, in GANZI & 2 OTHERS V. REPUBLIC [2005] 1 KLR 52, this Court stated that where the defence of alibi is raised for the first time in the appellant’s defence and not when he pleaded to the charge, the correct approach is for the trial court to weigh the defence of alibi against the prosecution evidence.”

I have weighed the Appellant’s defence against the prosecution’s case though it was raised late in the day. The Appellant claimed to have travelled upcountry on the 28th November 2011, he never gave any evidence of his travel nor did he state that the date he returned but stated that he come back after two weeks. His alibi was never raised during cross-examination of the prosecution witnesses. I find that it was a mere afterthought meant to create a smoke screen and at no point did it create doubt in the court’s mind.

Having dismissed the Appellant’s alibi defence, the only inference that can be arrived at was that the Appellant was present on 29th and 30th November 2011 and met with PW1. The other question is whether the Appellant received the money.

From the evidence, it is clear that PW1 directly gave the Appellant Ksh. 200,000/- on the 29th November 2011. However, for the Ksh. 1,350,000/- that was paid out on the 30th November 2011, PW1 stated that she gave the money to Geoffrey who in turn gave it to the Appellant. PW1 never handed the money to the Appellant directly, she never gave evidence on the circumstances in which she saw Geoffrey give the money to the Appellant. To that extent I find that the Appellant received Ksh. 200, 000/- only from PW1.

The other element the court has to examine is whether the Appellant obtained the money through false pretence. It was the evidence of PW1 and PW2 that Geoffrey brought the auction to their attention and he informed them that he had people who could help them obtain the container. Further, it was Geoffrey’s idea to travel to Mombasa for the auction. That on the day of the auction PW1 stated that Geoffrey instructed her to pay the money and it was further Geoffrey who directed her to Blue Room.

In all the above instances, the Appellant never claimed that he could obtain the container. Additionally, when the idea to obtain the container was floated to the complainants, the Appellant was in Mombasa and he did not know the complainants’ until they met in Mombasa. As established by the evidence on record, the false representations were put forth by Geoffrey. I find that he Appellant did not make any false representation.

While I have found that the Appellant did not make false representation to the complainants, he is not blameless in the commission of the offence as he had formed a common intent with Geoffrey to obtain their money by false representation.

Common intent is provided for in Section 21 of the Penal Code that states:

“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purposes an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence”.

What constitutes common intent was set out by the Court of Appeal in the case of Eunice Musenya Ndui versus Republic, (2011) eKLRas follows:

1. There must be two or more persons;

2. The persons must form a common intention;

3. The common intention must be towards prosecuting an unlawful purpose in conjunction with one another;

4. An offence must be committed in the process;

5. The offence must be of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.

Further in R-Vs- Tabulayenka s/o Kirya (1943) 10EACA 51, the court went on to state that: -

“To constitute a common intention to prosecute an unlawful purpose … it is not necessary that there should have been any concerted agreement between the accused prior to the attack on the so called thief. The common intention may be inferred from their presence, their actions and the omission of either of them to disassociate himself from the assault.”

The implication of common intent as provided for in Section 21 of the Penal Code was set out by the Court of Appeal in Wanjiru d/o Wamerio versus Republic 22 EACA 521 where it stated as follows:

“Common intention generally implies premeditated plan, but this does not rule out the possibility of a common intention developing in the course of events though it might not have been present to start with”

All the evidence presented by the prosecution indicated that Geoffrey was the mastermind who had put in place an elaborate plan in which the Appellant was a piece of the cog. When Geoffrey met the complainants in Nairobi, he informed them that he called the Appellant and made arrangements. When Geoffrey and PW1 arrived in Mombasa, Geoffrey led PW1 to meet with the Appellant. Throughout her time in Mombasa PW1 dealt with the Appellant where Geoffrey was the liaison. As stated in this judgement, he received part of the money directly from PW1. The Appellant was an integral part of the scheme. Without his role, the Appellant would not have leverage to extort the money from PW1. The Appellants actions cannot be overlooked.

The Appellant faulted the prosecution for failing to call an unnamed witness. It is trite that there is no requirement that the prosecution should call any particular number of witnesses to prove its case. This is buttressed by Section 143 of the Evidence Act which provides that:

“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”

In the case of Keter V Republic [2007] 1 EA 135 the court held inter alia that:

“The prosecution is not obliged to call a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.”

In the current case, the prosecution informed the trial court that they had been unable to trace the said witness and decided to close its case. On his part, the Appellant did not state the relevance of the witness to the prosecution case to enable the court to do exercise its mind to the importance of the witness. It would be remiss for the court to make a finding that the prosecution was trying to supress evidence and for this reason this ground fails.

On sentence, the Appellant submitted that the sentence was harsh and excessive as he was sentenced to the maximum penalty provided. Section 313 of the Penal Code, any person who is convicted for the offence of obtaining money by false pretence is liable to imprisonment for three years.

I note that the Appellant was a first offender; he was not the architect of the scam but he was an enabler, the amount of money the complainant lost was not large and as stated above the Appellant himself received only a portion of the total sum. However, the Appellant deserves a deterrence sentence to prevent other would be offenders from depriving innocent people of their hand earned money.

I hereby uphold both conviction and sentence rendering the appeal to stand dismissed for want of merit.

Orders accordingly.

Judgment delivered, dated and signed at Malindi this 9th day of December, 2020.

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

R. NYAKUNDI

JUDGE

In the presence of:

Mr. Obara for the Appellant

Mwangeka for the Respondent

Appellant in Person