[2019] KEHC 5271 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAMIRA

CRIMINAL APPEAL NO. 13B OF 2017

THE REPUBLIC......................................................................APPELLANT

VERSUS

ANNA NYABONYI OIGO.....................................................RESPONDENT

{Being an Appeal against the Conviction and Sentence of Hon. N. Kahara – RM dated and delivered on the 2nd day of March 2017 in the Original Keroka Principal Magistrate’s Court Criminal Case No. 365 of 2013}

JUDGEMENT

This is an appeal by the State against the acquittal of the respondent by the lower court on two charges connected to a succession cause filed by herself in the High Court of Kenya at Kisii.

The charges were:- Count I: - Perjury contrary to Section 108 (1) (a) as read with Section 110 of the Penal Code. Particulars in this charge being that on the 4th day of January 1996, at Kisii High Court in Kisii Central District within Kisii County, in a Judicial proceeding, of a grant of letters of Administration in the estate of deceased TARATIO OIGO SIKO application in the high court of Kenya the Republic of Kenya, in an affidavit sworn before J. N. Wanjala, a Deputy Registrar in Kisii High Court and filed in the said grant application, knowingly gave false testimony on a matter which was material to a question then pending in that proceeding, namely NYANSIONGO SETTLEMENT SCHEME/459 which was the property of the deceased Taratio Oigo Siko.

Count II: - Uttering a false document contrary to Section 353 of the Penal Code. The particulars of this charge were that on diverse dates between 23rd July 2002 and 30th July 2002 at Nyamira District Lands offices in Nyamira District within Nyamira County, knowingly and fraudulently uttered a forged Transfer of land form number NYANSIONGO SETTLEMENT SCHEME/318 purporting to be the transfer of land executed by Kisii Law Courts on behalf of the deceased TARATIO OIGO SIKO and subsequently thereto made several sub-Divisions namely 459, 2754, 2755, 2756, 2757, 2758, 2759 and 2760.

The prosecution called three witnesses and very briefly the sum total of their evidence was that LR Nyansiongo/Settlement Scheme/459 was carved out from LR Nyansiongo Settlement Scheme/73 which belonged to Matoke Baabu Siko, the father of the complainant who died on 14th January 2012. On or about the year 1991 Matoke Baabu Siko alienated two (2) acres of that land to one Daniel Onkangi. The resultant subdivision gave rise to LR Nyansiongo/Settlement Scheme/318 measuring about 14 acres belonging to Matoke Baabu Siko, deceased, and LR Nyansiongo/Settlement Scheme/319 (two acres) belonging to the said Daniel Onkangi. The record shows that thereafter on or about 10th September 1993 LR Nyansiongo/Settlement Scheme/318 was further subdivided into three parcels 458, 459 and 460. The prosecution produced copies of green cards showing that 458, 459 and 460 were all registered in the name of Matoke Baabu Siko (see Exhibit 13 and 2).

In 1996 the respondent filed a succession cause No. 7 of 1996 at the Kisii Registry in respect to Nyansiongo/Settlement Scheme/459 which she alleged formed her deceased husband, Taratio Oigo Siko’s estate. She duly obtained a Grant of Letters of Administration Intestate which the record shows was confirmed on 29th April 1998. In the certificate of Confirmation of Grant, she was declared the sole beneficiary of Nyansiongo/Settlement Scheme/459. On 30th July 2002 her deceased husband’s name was entered in the register as the owner of the parcel LR Nyansiongo/Settlement Scheme/459 following which it was registered in her name by way of transmission. All this on the same day. Thereafter she subdivided that land which measured five (5) acres into seven (7) portions LR Nyansiongo/Settlement Scheme/2754, 2755, 2756, 2757, 2758, 2759 and 2760 and disposed some of the portions to third parties. It was the prosecution’s case that these transactions were fraudulent because although the respondent and her late husband lived on the LR Nyansiongo/Settlement Scheme/73 the land belonged to the complainant’s father Matoke Baabu Siko solely. Secondly the subdivision of LR Nyansiongo/Settlement Scheme/318 into 458, 459 and 460 was not sanctioned by Matoke Baabu Siko and was done behind his back. Thirdly, it was alleged that the registration of Taratio Oigo Siko as the proprietor of LR Nyansiongo/Settlement Scheme/459 on 30th July 2002 and the transmission of the same to the respondent on the same day was suspect. The court heard that the succession cause wherein the respondent was declared the sole beneficiary and heir of the late Taratio Oigo Siko’s estate comprising of Nyansiongo/Settlement Scheme/459 was filed without notice to the beneficiaries of the estate of Matoke Baabu Siko the real owner. When this information came to the knowledge of the complainant he reported the matter to the police. Investigations were instituted which revealed that the respondent had transferred the parcel LR Nyansiongo/Settlement Scheme/459 to Taratio Oigo Siko on the strength of a court order emanating from Kisii SRMCC No. 12 of 1980 which was suspected to be a forgery. She was arrested and charged with these offences.

In her defence the respondent testified that she got married to Taratio Oigo Siko in 1967. That her husband was the brother of Baabu Siko also deceased and that they all lived on land parcel no. 73 belonging to Baabu Siko. She stated that it was she who filed the succession cause in the estate of her husband. She contended that her husband got 5 acres from Baabu Siko’s land through a court order obtained in Kisii SRMCC Case No. 12 of 1980 decided on 9th February 1981. Her husband died before the land Nyansiongo/Settlement Scheme/459 was transferred to him. She stated that after she obtained a grant and it was confirmed the land became hers by way of transmission. She conceded that she thereafter subdivided the land and alienated some of the parcels to third parties. She stated that all this she did in the lifetime of Baabu Siko and that he did not raise a finger. She stated that she even reported him to the Chief for damaging her boundary and the matter was reported to the OCS who on 18th November 1998 wrote a warning to Baabu Siko. She contended that Baabu Siko did not challenge the decree in Kisii SRMCC No. 12 of 1980. She contended she followed the law to succeed her husband and did not commit any fraud. Like the prosecution she produced several documents in support of her defence.

After evaluating the evidence from both sides the trial Magistrate came to the conclusion that the charges against the respondent had not been proved beyond reasonable doubt and acquitted her. Being aggrieved by that acquittal, the State preferred this appeal. The same is premised on grounds that: -

“1. The learned Trial Magistrate erred in law and in fact in failing to convict the respondent when the prosecution tendered sufficient evidence to provide the charge.

2. The learned trial Magistrate in fact in not holding that the evidence adduced proved the offence against pendent as charged beyond reasonable doubt.

3. The learned trial Magistrate erred in law and in fact by introducing and considering extraneous matters in making her findings which are contrary to the documentary evidence accused.

4. The learned trial Magistrate erred in law and in fact in considering inadmissible evidence adduced by the respondent.

5. The learned trial Magistrate erred in law and in not allowing the prosecution to make submission on the close of the defence case.

6. The learned magistrate erred in law and fact when she relied on a wrong order and decree to make judgement in favour of the accused person.

7. The learned magistrate erred in law and fact when she relied upon unverified and uncertified documents produced by the accused person to make her judgement.

8. The learned magistrate erred in law and fact when she refused to allow the prosecution permission to cross examine the accused person on the veracity of her documents and authority before making her judgement.”

The appeal was canvased by way of written submissions. The same have been considered fully. However, as an appellate court, my duty goes beyond that and as such I have considered and re-evaluated the evidence myself so as to arrive at my own independent conclusion. I have made provision for the fact that I did not hear or see the witnesses give evidence (See Okeno Vs. Republic [1972] EA).

It is evident from the evidence by both sides that LR Nyansiongo/Settlement Scheme/459 was a resultant subdivision of Nyansiongo/Settlement Scheme/318 which in turn was carved out from Nyansiongo/Settlement Scheme/73 registered to Matoke Baabu Siko, deceased. There is also evidence that the respondent and her husband the late Taratio Oigo Siko who was a brother of Matoke Baabu Siko resided on this land. According to the complainant they lived in the same homestead. It is further evident even from the respondent’s own evidence that by the time (1996) she filed the succession cause in respect of her husband’s estate and obtained the confirmed grant (29th April 1998), LR Nyansiongo/Settlement Scheme/459 was not part of her late husband’s estate. The land became part of her husband’s estate on 30th July 2002 when it was registered in his name. The trial Magistrate’s finding of not guilty was premised on the ground that the affidavit referred to in Count Iof the charge was not tendered in evidence. However, in her testimony, the respondent admitted that she filed a succession cause in respect to LR Nyansiongo/Settlement Scheme/459. The Probate & Administration Rules provide the procedure to be followed, firstly when applying for letters of administration and secondly when applying for confirmation of the grant. In the case of this petition the rules require that the petition be accompanied by an affidavit setting out the assets and liabilities of the deceased and the persons surviving the deceased (Form P A 57) (see Rule 7 (1) of the Probate & Administration Rules). In the case of confirmation of the grant, Rule 40 of the Probate & Administration Rulesrequires the Administrator to file an affidavit in support of the summons indicating inter alia the assets and the mode of distribution or the share of each beneficiary. It was the respondent’s testimony that she followed the rules to the letter. To quote her “I followed all the rules to the succession. I was finally given a certificate of confirmed grant - D Exhibit 4 dated 29th April 1998. ” In cross examination she stated: - “……I followed up to ensure succession was done and I got title to my husband’s land…….” So whereas the affidavit was not produced there is sufficient evidence including the certificate of grant itself to prove the charge of perjury. I find it a fact that as at 4th January 1996 when she petitioned for the letters of administration LR Nyansiongo/Settlement Scheme/459 was not the property of her deceased husband yet she went ahead and knowingly swore an oath that it was. The affidavit setting out the assets/liabilities and survivors of the deceased is central to a petition in a succession cause and was therefore a matter which was material to the proceedings. She knew or must have known the asset did not form part of the estate of her husband because she herself told this court that it was not registered in the name of her husband; that he died before it was transferred to him. She also told the court that it was registered in his name on 30th July 2002. It is my finding that she knowingly made a false oath that her husband was the owner of the parcel when he was not. It is also my finding that the charge of perjury was proved against the respondent beyond reasonable doubt and she ought not to have been acquitted. Accordingly, the appeal on Count I is allowed and the trial Magistrate’s order of acquittal is reversed and substituted with a finding of guilty and conviction for the offence of perjury contrary to Section 108 (1) (a) as read with Section 110 of the Penal Code.

In regard to Count II, I find it a fact from the evidence that the respondent uttered the impugned transfer form. The same was purportedly executed by Kisii Law Courts in respect to Nyansiongo/Settlement Scheme/459 but not 318. That is evident not only in the copy of register produced by the prosecution as Exhibit 2 which indicates that the transfer was by court order No. 12 of 1980 but from her own testimony when she stated: -

“…... I have letters or orders from court that my husband Taratio Oigo had sued Baabu Siko in Civil Case Number 12 of 1980. I have judgement and decree from court.

…… The court decided that Baabu Siko does give Taratio Oigo 5 acres of land from parcel number Nyansiongo/Settlement Scheme/73. My husband died before he could effect the transfer. He got parcel number Nyansiongo/Settlement Scheme/459….

…… My husband died later. I did a succession from court – Succession Case Number 7/1996 – D Exhibit 4….”

It is clear from this evidence that her claim to this parcel of land was premised on the court order/decree in Kisii SRM’s Case No. 12 of 1980 and as I have stated the transfer of the land to her late husband and the subsequent transmission of the parcel to her was done on the strength of a transfer form pursuant to that order. It is my finding that she uttered the transfer referred to in Count II. In respect to this count the only issue for determination by this court is whether the order was a genuine order of the court or whether it was a forgery and if so whether the respondent uttered it knowingly and fraudulently. There was no evidence that this order did not emanate from the court. The respondent produced proceedings of an arbitration heard pursuant to Kisii SRM’s Civil Case No. 12 of 1980 and a subsequent decree signed by the Senior Resident Magistrate, Kisii. The existence of the aforementioned civil case was admitted by Pw2, Executive Officer of Kisii Law Courts, as well as the investigating officer. The arbitrator’s award and the subsequent decree were to the effect that Taratio Oigo Siko was entitled to five acres of Baabu Siko’s land and he was ordered to sign the Settlement Fund Trustee transfer forms transferring five (5) acres of plot No. 73 Nyansiongo/Settlement Scheme to Taratio Oigo Siko. He was also ordered to pay the costs of the arbitration. The impugned transfer form was not put to the executive officer who would have confirmed whether it was executed by the court or not. Indeed, it was not produced in evidence at all. The investigating officer seems to have not considered it necessary to produce the transfer form. This court is therefore not in a position to say that the signature thereat was a forgery. The trial magistrate finding that this charge was not proved was therefore correct. The appeal on this charge has no merit and it is dismissed.

As this court has reversed the finding of the lower court acquitting the respondent on Count I and has convicted her, she shall be required to enter her plea in mitigation for sentencing.

Signed, dated and delivered in open court this 26th day of July 2019.

E. N. MAINA

JUDGE