Republic v Mungai (Criminal Appeal E055 of 2025) [2026] KEHC 11039 (KLR) (22 July 2026) (Judgment)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COUNTY MAKADARA HIGH COURT CRIMINAL DIVISION CRIMINAL APPEAL NO E055/2025 REPUBLIC…………………………………………………. APPELLANT VERSUS GEORGE MUNGAI………………………………………. RESPONDENT JUDGMENT **A. Background** 1. The Respondent was charged in Makadara Chief Magistrate’s Court Criminal Case No E121 of 2024 with three counts; in count 1the respondent was charged with the offence of obtaining goods by false pretenses contrary to section 313 of the Penal Code. The particulars of the charge were that on the 3rd day of June 2018 at MMC Petroleum Limited within Nairobi County, with intent to defraud, obtained 145 drums of bitumen, all valued at Kshs1,804,380/= from MMC Petroleum Limited by falsely issuing bad cheques as the means of payment, a fact you (sic) knew to be false. 2. In Count II the Respondent was charged with the offence of issuing a bad cheque contrary to section 316 A (1) (a) (4) of the Penal Code. The particulars of the charge were that on 31st May 2019 at MMC Petroleum Limited within Nairobi County, the Respondent issued a Equity Bank cheque number 208 for nine hundred thousand shillings ( Kshs 900,000/=) to George Nyasimi payable to Equity account number 267560882 knowing that he had insufficient funds in his account. 3. The charge proffered under Count III was issuance of a bad cheque contrary to Section 316 of the Penal Code; particulars whereof were that on 31st May 2019 at MMC Petroleum Limited within Nairobi County, the Respondent issued Equity Bank cheque number 209 for nine hundred thousand shillings ( Ksh 900,000/=) to George Nyasimi payable to Equity account number 267560882 knowing that he had insufficient funds in his account. 4. The Respondent pleaded not guilty to the three counts whereafter the case proceeded to trial with the Appellant calling three witnesses while the Respondent gave sworn testimony but did not call any witness. **B. Evidence** 1. George Monene testified as PW1. It was his testimony that he is the sole proprietor of MMC Petroleum Limited and he identified a certificate of incorporation as MFI-1 . 2. PW1 told the court that he knew the respondent, who had approached him in late May 2019 with an LPO which required a supply bitumen and that he had indicated that he was working through a company. That the respondent represented to PW1 that he would pay after 14 days and upon receiving the LPO from the respondent, PW1 supplied him with 145 drums of bitumen each weighing 183 kilograms on 31.5.2019; the bitumen was delivered by trucks to the respondent’s company and delivery was duly acknowledged by imprinting a stamp on the delivery note which was identified as MFI 5. PW1 told the court that he accompanied the truck that made the delivery while the respondent was chauffeured to his company’s physical address. 3. The respondent then issued him with two cheques each of Kshs 900,000; a copy dated 17.6.2019 was identified as MFI- 6 and requested him to deposit them at the Embakasi branch. Later on, the branch manager called PW1 and informed him that the cheques were not cleared and the bank gave him a print out of the dishonoured cheques, which he identified as MFI- 7. 4. It was PW1’ testimony that upon calling the respondent, the latter told him that he would organize for payment but he never did and when PW1 escalated the matter to the DCI, the respondent attended to a summons by the DCI and undertook to pay up within two weeks but still failed so to do. 5. On cross examination PW1 told the trial court that the respondent stopped taking his calls and later blocked him. Further that he had gotten judgment in a civil suit filed against the respondent but was yet to execute and that he had supplied the goods to the respondent in his capacity as the director of the receiving company. 6. Alfred Sang, a driver working for PW1’s company testified that a client whose identity he had not known had bought tar from the company and he delivered the tar at Industrial area and he was issued with a delivery note and that the goods were not paid for by the respondent. PW2 confirmed on cross examination that he did not see the respondent on the day of making the delivery of the goods nor was he acquainted to him. 7. PW3 Police Constable (PC) David Mogaka then attached Makadara Director of Criminal Investigations (DCI) told the trial court that he was the investigating officer and that he had done a search and had established that the respondent was the director of the company that had been supplied with bitumen by PW1. He produced a certificate of incorporation of MMC Petroleum as P Exhibit 1, Respondent’s CR 12 form as P Exhibit No 2, LPO as P Exhibit 3, delivery note as P Exhibit 4, two dishonoured equity Bank cheques amounting to Kshs 1,800,000/=, as P Exhibits 5 and 6 respectively, and the bank print out of the dishonoured cheques as P Exhibit 7. PW3 told the trial court that his investigations revealed that the value of the unpaid goods was Ksh 1,804,380/= and that the respondent had not denied that he had stolen the goods. 8. On cross examination PW3 admitted that he had neither visited the respondent’s premises nor office. He testified that the respondent had expressed intentions of settling the matter and that he was not aware of the existence of any other case. 9. Upon being put on his defence, the respondent testified that he had authorized his employees had handled the sourcing of a supplier of bitumen/tar while he only issued the cheques which were later dishonoured due to insufficiency of funds in his account. That his employees told him that they had sourced the tar from MMC Limited on credit and when the supplier went to collect his payment, he issued him with cheques which the supplier banked but there was no money in his account. That thereafter the supplier lodged a complaint at industrial Area police Station and subsequently filed as a recovery suit in Milimani Law courts. **C. Appeal** 1. Upon considering the evidence presented before the court by the rival sides the trial court acquitted the respondent thus necessitated the filing of this appeal by the state. The grounds of the appeal are as set out hereunder : 2. THAT the learned Magistrate gravely erred in law and in fact by disregarding the unchallenged evidence by the prosecution and it’s witnesses which proved all the offences against the accused/Respondent beyond reasonable doubt. 3. THAT the learned Magistrate gravely erred in law and in fact by making findings contrary to the evidence hence his verdict wholly fell off tangent. 4. The Learned Magistrate gravely erred in law and in fact by haphazardly wandering away from the proceedings and the evidence clearly borne on record and as a result he fallaciously concluded that the complainant George Nyasimi was not called to testify yet the record clearly bears it out that he was PW1. 5. The Learned Magistrate gravely erred in law and in fact by misdirecting himself on several matters of law and facts whereby he sought to analyze and seek proof of matters that were wholly not in issue. 6. The Learned Magistrate gravely erred in law and in fact by making a finding that the cheques in question were not adduced in evidence contrary to the proceeding on record. 7. The Learned Magistrate was in grave error by disregarding the requirements of section 169(2) of the Criminal Procedure Code hence failed to state points for determination, the decision and reasons for the decision to acquit the accused/respondent on the various counts charged. 8. The Learned Magistrate erred in law and in fact by failing to appreciate that the evidence adduced by the prosecution proved beyond reasonable doubt every element of the offences charged. 9. The Learned (sic) gravely erred in law by failing to properly analyze the evidence in consequence whereof he made several contradicting and irreconcilable findings. 10. The Learned Magistrate erred gravely in law and in fact by acquitting the accused of all charges when the only possible reasonable and justifiable finding was that of proof of guilt on each count. **D. Submissions** 1. This appeal was canvassed by way of written submissions. Both parties duly filed their respective submissions. 2. The appellant has submitted that it’s three witnesses duly tendered evidence in proof of the three counts and that all the necessary documents were produced in support of it’s case yet the trial court opted to disregard the same. 3. The respondent on the other hand supported the judgment of the trial court and maintained that the prosecution had failed to produce the alleged dishonoured cheques and to call relevant witnesses including the complainant. Further that no document examination was done to confirm that the two cheques were signed by the respondent. **E. Analysis and determination** 18. This being the first appellant court, is duty bound to subject the evidence adduced before the trial court to a re-evaluation akin to a retrial while taking into account the fact that unlike the trial court, it has no advantage of seeing the witnesses testify wherefore it cannot gauge their demeanor. Reliance has been placed in the case of **Okeno Vs R (1972) EA 32** where the Court 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.”** 19. Section 313 of the Penal Code creates the offence of obtaining by false pretences. The provision states as follows: - **“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.”** 20. Section 312 of the Penal Code that defines false pretence as under: - **“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.”** 21.The operative word in the above definition of false pretence is "representation", which is applicable in the following scenarios: - i. A representation by words, writing or conduct .ii .A representation in either past or present. iii. A representation that is false. iv. A representation made knowing it to be false or believed not to be true. 22. The Black's Law Dictionary, 9th Edition defines “false pretense” at page 678 as follows: - “The crime of knowingly obtaining title to another’s personal property by misrepresenting a fact with the intent to defraud.” 23. In **Lesholo & Another vs The State**, the High Court of Botswana in dealing with the offence of obtaining by false pretences rendered itself thus:- **i. To prove the offence of obtaining by false pretence, the accused must by a false pretence, with intend to defraud, obtain something of value capable of being stolen from another person. The prosecution must prove the false pretence together with a fraudulent intention in obtaining the property of the person cheated.** **ii. A false pretence has been held to be a representation by the accused person which to his knowledge is not true. A representation amounts to false pretence when it relates to a present or past fact or facts. It is not a false pretence if it is made in relation to the future even if it is made fraudulently. Where however, the representation speaks both of a future promise and couples it with false statements of existing or past facts the representation will amount to a false pretence if the alleged existing facts are false.** **iii. The representation must be made with the specific purpose of getting money from the complainant which he/she would not have given had the true facts been revealed to him.”** 24. In **Gerald Ndoho Munjuga v Republic [2016] eKLR**, the High Court rendered itself as hereunder: - **“The offence of obtaining by false pretence means knowingly obtaining another person's property by means of a misrepresentation of fact with intent to defraud. For the offence of obtaining by false pretences to be committed, the prosecution must prove that the accused had an intention to defraud and the thing is capable of being stolen. An inducement on the part of an accused to make his victim part with a thing capable of being stolen or to make his victim deliver a thing capable of being stolen will expose the accused to imprisonment for the offence.** 25. While dealing with the offence of obtaining by false pretense, the Supreme Court of Nigeria pronounced itself in the case **of Dr. Edwin U. Onwudiwe vs Federal Republic of Nigeria,** as follows**: -** “**In order to succeed in a charge of obtaining by false pretences, the prosecution must prove: -** **a. that there is a pretence;** **b. that the pretence emanated from the accused person;** **c. that it was false;** **d. that the accused person knew of its falsity or did not believe in its truth;** **e. that there was an intention to defraud;** **f. that the thing is capable of being stolen;** **g. that the accused person induced the owner to transfer his whole interest in the property.** **The offence could be committed by oral communication, or in writing, or even by conduct of the accused person. However, an honest believe in the truth of the statement on the part of the accused which later turns out to be false, cannot found a conviction on false pretence. “** 26. It is instructive to note that where a representation speaks of a future promise, but it is coupled with false statements of existing or past facts, then that representation will amount to a false pretence if the alleged existing facts are false. 27. The two other counts that the respondent faced were for issuing two bad cheques Numbers 208 and 209 to George Nyasimi payable to Equity account Number 267560882. 28**. Section 316Aof the Penal Code provides as follows;** **(1) Any person who draws or issues a cheque on an account is guilty of a misdemeanour if the person— (a) knows that the account has insufficient funds;** **(b) knows that the account has been closed; or (c) has previously instructed the bank or other institution at which the account is held not to honour the cheque. (2) Subsection (1)(a) does not apply with respect to a post-dated cheque. (3) Any person who, by deceit or any other fraudulent means, assists a person to obtain anything on the basis of a cheque drawn or issued in the circumstances described in subsection (1) is guilty of a misdemeanour. (4) A person who is guilty of a misdemeanour under this section is liable to a fine not exceeding fifty thousand shillings, or to imprisonment for term not exceeding one year, or to both.** 29. Turning to the facts of the case presented before the trial court; PW1 testified that his company MMC Petroleum Limited supplied the respondent with 145 drums of bitumen each weighing 183 kilograms, and the accused person issued him with two Equity Bank cheques Nos 2028 and 209 each for Kshs 900,000/=, which were dishonoured upon presentation for payment at Cooperative Bank Embakasi Branch. 30. The respondent on his part testified that he had authorized his employees to get bitumen from MMC Petroleum Limited and he was given a two weeks credit and when the supplier went to collect his money, he issued him with two cheques which were banked but there was no money in his account wherefore the two cheques were dishonoured. The respondent was categorical during cross examination that he was supplied with the bitumen and that he signed the two cheques issued to MMC Petroleum as payment for the bitumen. That the supplier made a report at Industrial Area Police Station and thereafter filed a civil case and judgment was entered in his favour. 31. The respondent received bitumen from the MMC Petroleum and issued two cheques with the full knowledge of the fact that his account had insufficient funds to meet the amount drawn in the said cheques. Bitumen is a commodity of value that is capable of being stolen. 32. The respondent distanced himself from sourcing for the bitumen by stating that it was his employees who sourced for the supplier. This court has to weigh the evidence of PW1 viz avis that of the respondent. PW1 clearly testified that the respondent visited his business premises and presented him with a Local Purchase Order (LPO) whereafter MMC Petroleum made the delivery of bitumen to the respondent’s business premises. PW1 gave a detailed account of the movement of the bitumen, the respondent and himself from MMC Petroleum Premises to the respondent’s premises. This evidence was not challenged during cross examination. The respondent on the other hand failed to call the evidence of his employees who allegedly sourced for the bitumen. Given this scenario I find that the evidence of PW1 was credible. The respondent made both verbal and written representations that PW1 acted upon and supplied him with bitumen, which the respondent converted to his own use despite his knowledge that he was not in a position to pay for the same. 32. The fact of delivery of the bitumen by MMC Petroleum Limited to the respondent, issuance of the two cheques by the respondent and the subsequent dis-honour of the two cheques was admitted by the respondent who even promised to settle the matter after it had been reported at Industrial Area Police Station. This evidence notwithstanding, the trial court went ahead and found that the signature on the delivery note was not authenticated by a handwriting expert. The trial court erred in that regard. 33. As pertains to the issue of the prosecution’s/appellant’s failure to produce crucial witnesses, there is no legal requirement in law on the number of witnesses required to prove a fact. Section 143 of [the Evidence Act](https://kenyalaw.org/akn/ke/act/1963/46) (Cap 80) Laws of Kenya 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.”** 34. The issue of the prosecution’s failure to call a material witness was determined in case of **Bukenya v R [UGC 1952], (1972) EA 549**, thus: “(**i) The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.** **(ii) That prosecution has the right and the duty to call witnesses whose evidence appears essential to the just decision of the case.** **(iii) Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tendered to be adverse to the prosecution.”** 35. In the case of **Keter v Republic [2007] 1 EA 135** the court pronounced itself on this issue as follows: **“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.”** 36. In yet another case of **Donald Majiwa Achilwa and 2 other v R [2009] eKLR** the Court had the occasion to determine a similar issue and it rendered itself as follows: **“The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case. (See Bukenya & Others v. Uganda [1972] EA 549). That is, however, not the position here. We find no basis for raising such an adverse inference.”** 37. The finding by the trial court that the prosecution had failed to call a material witness was a finding in error as the director of MMC Petroleum Limited testified as PW1; any discrepancy in his name vis aviz the name displayed in the charge sheet did not vitiate the veracity, and probative value of his testimony. In any event the identity of PW1 was never contested during the trial and the certificate of incorporation of MMC Petroleum Limited was identified by PW1 as PMFI-1 and was duly produced as P Exhibit 1 by PW3. 38. The Appellant had called three witnesses whose evidence supported the charges that the Respondent faced. My re analysis of the record reveals that it is the respondent who failed to call his employees whom he had testified that were the ones who had negotiated the business transaction with MMC Petroleum Limited. I note that the defence hearing had been adjourned twice to allow the respondent time to avail his witnesses but he eventually closed his case without calling any. It is trite law the omission by the respondent to call the said employees must attract an adverse inference that were they to attend court, then their testimonies would have been adverse to the respondent’s case. (**see the cases of Bukenya & Others Vs Uganda, supra, Keter Vs Republic, supra and Achilwa Vs Republic, supra).** 39. It is my finding that the respondent received 154 drums each containing 183 kilograms of bitumen from the MMC Petroleum as evident from the appellant’s exhibits No 3 which was the LPO and Exhibit No 4 which was the delivery note. The dishonoured cheques were produced as P Exhibits No 5 and 6 respectively while the fact of dis-honour was proved vide P Exhibit No 7. The appellant had duly tendered evidence that proved the three counts that the Respondent faced beyond any reasonable doubt. The fact that MMC Petroleum Limited had also filed a recovery suit against the respondent does not amount to a waiver of it’s right to have it’s complaint against the respondent investigated and pursued to it’s natural conclusion through criminal prosecution of the respondent. **F. Conclusion** 40. On the balance I do find that the Respondent is guilty of the offense of obtaining goods by false pretense contrary to section 314 of the Penal Code as per Count I and that he is also guilty of the offence of issuance of two bad cheques Numbers 208 and 209 as per Counts II and Count III of the charge sheet. I therefore set aside the judgment of the trial court and I substitute it with convictions on the three counts. Delivered, signed and dated at Makadara this 22nd day of July 2026. Mwanaisha. S. Shariff Judge In the presence of: Anastancia Nyambura – Court Assistant George Mungai - Respondent MS Ogega for the Appellant MS Onyonyi for the Respondent