[2010] KEHC 1557 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET

Criminal Appeal 24 of 2007

RAEL CHEROP MARITIM ………………APPEALLANT

=VERSUS=

REPUBLIC………………………………..RESPONDENT

JUDGMENT

I.Procedure

1).Rael Cherop Maritim (herein referred to as the

Appeallant) was originally charged with three Criminal offences before the Principal Magistrate’s Court at Eldoret namely:

Count I

A).Forgery

Contrary to Section 349 of the Penal Code.

Particulars of offence

On the 21st January 1992 at Simat area in

Uasin Gishu District within Rift Valley

Province, forged a signature in a transferof

Ownership of a motor vehicle (FORM C)

purportingto have genuinely been signed by Emily Bett authorizing the transfer of a

tractor registration No.KZQ 780 to the said

Rael Cherop Maritim.

B).Count II

C).Altering a false document, contrary to

Section 353of the Penal Code.

Particulars of offence

On the 21st January 1992 at District

Commissioner’s office in Uasin Gishu District within the Rift Valley Province

knowingly and fraudulently altered a

certain forged transfer of ownershipof

motor vehicle (FORM C) purporting it

to have been signed by Emily Bett.

Count III

D).Stealing a Motor Vehicle Contrary to

Section 278

A of the Penal Code.

Particulars of offence

On the 14th day of February 1997 at Simat

area in Uasin Gishu District of the Rift

Valley Province stole a motor vehicle tractor

Registration No. KZA 780 valued at 612,672

which wasjoint property of EmilyBeth and

herself.

2).A Plea of not guilty was entered on all the three

counts on 18th February, 2000 (M.L. Kangatta

S.R.M.).

3).It appears that on Count II the offence of

Altering a False DocumentContrary to Section

353 of the Penal Code was either withdrawn or

struck out.

4).The trial then commenced before L.W.Gitari, a

Principal Magistrate as she then was for a period of five years (3rd April, 2001 to 23rd May 2006).She was transferred out of the Station. Submissions on the case were heard before F.N. Muchemi a Chief Magistrate on 18th July 2006. L.W. Gitari now a Senior Principal Magistrate then prepared an undated Judgment.It is unclear whether it was read on her behalf or not.What follows next of the proceedings is a sentence imposed on 19th March 2007 by

O. Muchelule Chief Magistrate (as he then was on Count I, a fine of Kshs 30,000/= in 12 monthsimprisonment.

Count II Presumably count III) fined50,000/= in default 24 months imprisonment).

5).According to the Law, for an offenceof forgery

under Section 349 of the Penal Code.

“. . . unlessowing to the circumstance of the

forgery or the nature of the thing forged some otherpunishment is provided to imprisonment of 3 years”.

6).This offence is a felony and a fine is not provided

for.

7).Stealing of a motor vehicle contrary to Section

278 (A) as read with Section 49 of the Traffic Act

Cap 403orwiththe definition of a motor vehicle being a mechanically propelled vehicle and in this case a tractor the offence is that of a punishment of 7 years imprisonment.

8).The offence is also a felony anda fine is not

provided for.

9).After a total of 7 years hearing and being duly

convicted and sentence, the appeallant appealed

to this High Court on both conviction and sentence.

II.Appeal

10).The appeal was filed by M/s Chemitei & Co.

Advocates.The Memo of appeal stated in

summary:-

(i)Therewas insufficient evidence

(ii)The trialmagistrate failed to take into account the defence given

(iii)There was unsubstantiated evidence.

(iv)Failed to take into account the relationship of the parties.

(v)The sentence was excess.

11).The State in reply conceded to the appeal on

grounds that the proceedings was conducted by

prosecutors who were incompetent to have

conducted the trial more so for P.W. 2 and P.W.3. The proceedings were in effect a nullity and it is therefore only on those grounds that the appeal be allowed.

12).From the foregoing and on the sentences, the

proceedings are a nullity.

III.Background of Appeal

13).This matter began in 1988. theAppeallant and

the Complainant were best of friends.The Appeallant was a self madebusinesswoman who had little income.The Complainant was a teacher who assisted the Appeallant access finance for her business.In 1989 they bought a tractor jointly.It seems the appealllant did not share in her proceeds norpay back the loan on time.It was then in the year 1997 that the Complainant filed a Civil Suit to Court being HCCC 340/97 seeking for breach of contract and ownership of the motor vehicle tractor as assessed at 50%.

14).It is then that she discovered that a forgery

occurred.That she was no longer the joint

owner of the said motor vehicle with the appeallant.Her name had been fraudulentlychanged and omitted from the documents.She then filed HCCC 138/2000 where the Complainant sought orders of damages for forgery.This case was filed on 12th June 2000.

15)The current Criminal court case was brought to

the Magistrate Court and preferred against the appeallant on 18th February,2000 four months before the HCC 138/000 that was filed

12th June 2000

16).The advocate in the subordinate Court tried to

bring out the issue that where you have a Civil matter, Criminal matters should not be preferred.This was so relied on the judicial review Court case by Kubasu J in the Case of

Vincent Kiriega Saina =vrs= Attorney General

Misc. Application 839/1999 and 1088/1999

High Court of Kenya at Nairobi.

17).This point was never raised as anappeal ground inthe applicant’s memo of appeal. The trial Magistrate stated each case should be heard separately.

18).An attempt to consolidate the two civil cases HCC 138/2000and HCCC 340/97 was declined by Dulu J. the two civil cases are still pending before the High Court of Kenya at Eldoret.

19).What therefore is before Court is the memo of appeal on issues outlined herein.The appeallant is bound by her memo of appeal.This being that her evidence was not allowed and the prosecution evidence is insufficient.

IV.Findings

20).The appeal is allowed on technicalities.That

the prosecution who conducted the trial had no mandate to do so and that the sentence imposedby the Chief Magistrate was an illegality. The Appeallant is acquitted.

21).The issue on whether the Civil matter may

terminate this appeal was never pleaded in the Memo of Appeal and no findings in this judgment on that part would be made.

22).Section 34 of the Evidence Act in part may

apply.

23).The appeallant is set at liberty unless otherwise

lawfully held.

DATEDTHIS 6TH DAY OF MAY 2010 AT ELDORET.

…………………………………….

M.A. ANG’AWA

JUDGE

Advocate

(i)H. Chemitei Advocate instructed by the firm of M/s Chemitei & Co. Advocate for the Appeallant

(ii)V.I. Kabaka, State Counsel instructed by the office of the Attorney General for the State.

Court as before

Advocatefor appeallant :I pray for fine of Kshs 80,000/= be released.

Advocate for the State:I have no objection.

ORDER:Application granted.Kshs 79,590/= be refunded to the appeallant videreceipt K. 336545 dated the 13/03/2007 Kshs 79,590/=.

M.A. ANG’AWA,

JUDGE. 6/5/2010.

Cell fees off.

M.A. ANG’AWA,

JUDGE.

ORDER:

HCC 340/97 and HCC 138/2000 be returned to the Registry.

M.A. ANG’AWA,

JUDGE.6/5/2010.