https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10243

Republic v Muramara (Criminal Appeal E016 of 2025) [2026] KEHC 10243 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10243 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Appeal E016 of 2025 RK Ondieki, J July 9, 2026 Between Republic Appellant and Isaiah W Muramara Respondent (Being an Appeal against the Judgment by Hon. H. Getenga (R.M.) in Chief Magistrate’s Court at Bungoma Case No. E004 of 2023, Delivered on 21st February, 2025) Judgment 1.In R Vs Lifchus, these words fell from the lips of the Canadian Supreme Court Judges; “…The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty... the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning…A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt. On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high…In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilty beyond reasonable doubt” 2.Having set out this profound and everlasting remarks in the realm of criminal law, it is my solemn call, to locate my mandate as an Appellate Court even as I delve into this appeal. In respect, it is good I settle with the Supreme Court of India in K. Anbazhagan Vs State of Karnataka and Others, Criminal Appeal No. 637 of 2015 where it was held: - “The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely, ...........The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.” 3.Desirous to pursue higher education, the Respondent sought to dispose ½ of an acre to whomsoever will, to enable him focus on his dreams. Come 15th October, 2018, the Respondent approached Barasa Wanjala(PW1) for funds in exchange of his beneficial interest of a land in the name of his deceased’s father. The two had a consensus consideration price of Kshs130,000/=. A down payment of Kshs76,000/= was made to the Respondent and the balance pushed to 25th January, 2019. Thereafter, the Respondent went underground and so the Complainant did a search and learnt that the property had been subdivided and transferred from the Appellant’s deceased father to the Respondent’s brother. The Complainant marked agreements dated 27th December, 2018 and 28th December, 2018 as MFI 1 &2, letter dated 2/1/2023 and mutation form as MFI 4&5. Under cross examination, the witness said that indeed, as at the time of sale agreement, the Respondent revealed that the property was in the name of the Respondent’s deceased father. 4.Simon Wekesa Wereria(PW2) told court that he witnessed the Respondent and their family members offer land to Elvis Barasa in exchange of fees. This was not reduced down to writing as the Respondent needed money urgently. Thereafter, the Respondent went underground till 2023 when he was arrested and charged with this offence. Under cross examination, the witness said that the Respondent has shown the Complainant the subject land. The witness has never seen the complainant attempt to pay the Respondent, the balance. 5.David Juma Wanyama (PW3) that on 15th October, 2018, he was summoned to witness payment of Kshs76,000/= and thereafter, the Respondent and his family took them to site and the portion of land was identified to the complainant. Come on 27th December, 2018 the agreement was reduced down into writing. 6.PC Kennedy Makokha(PW4) told the court that a report was made to the police station on 2nd January, 2023 by the complainant and upon recording his statement, he took over the exhibits, to wit, Agreement dated 27/12/2018, Agreement dated 28/12/2028, Chief’s letter, Search and Mutation Form. The witnesses reiterated the testimonies by the prosecution witnesses and traced the Respondent and charged him with the offence of obtaining monies by false pretences. Under cross examination, the witness said that as at the time of the agreement, the property was still in the name of the Respondent’s deceased father. 7.Being satisfied with evidence on record, the Investigation Officer charged the Respondent with the offence of Obtaining by false pretences contrary to section 313 of the Penal Code and particulars of the offence being that on the diverse dates between 15th October, 2018 and 27th December, 2018 at Khachonge Location in Bungoma Central Sub-County within Bungoma County, with intend to defraud obtained from Barasa Wanjala the sum of Kshs76,000/= by falsely pretending that he was the Registered Land Owner of a parcel of Land No. East Bukusu/North Nalondo 698. 8.In his sworn testimony, Isaiah Wanyonyi Muramara told court that indeed, he entered into a sale agreement at a consideration price of Kshs130,000/ for ½ an acre. The complainant was supposed to pay a sum of Kshs76,000/= but he fled with the original agreement and so did not part with the money. However, he was arrested later and did sign receipt of the monies under undue pressure from the police. He was coerced and threatened with imprisonment. 9.Simeon Wafula Muramara(DW2) told court that indeed the Respondent is his brother. Upon demise of their father, succession was done, each was allocated a portion and indeed the Respondent has his portion and he has at liberty to sell off his property. 10.Martin Wanjala Wafula(DW3) told court that the complainant had summoned the witness to witness sale of land by the Respondent. This was on 27th December, 2018 and indeed he witnessed the transaction and saw a sum of Kshs76,000/ being paid to the Respondent. Immediately, the complainant went to Police Station and the Respondent was arrested. At the police, parties were asked to settle the matter and report back to the police station. Instead, the Respondent was arrested and charged with this offence. 11.In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal and supplementary grounds, he relied on the following grounds;a.That the learned trial Magistrate erred in law and fact by failing to analyse the evidence of the prosecution case.b.That the learned trial Magistrate erred in law and fact by ignoring overwhelming evidence tabled by the prosecution.c.That the learned trial Magistrate erred in law and fact by failing to make a finding on each ingredient of the offence.d.That the learned trial Magistrate erred in law and fact by failing to take into account the evidence of DW2 which contradicted that of the Respondent.e.That the learned trial Magistrate erred in law and fact by making a finding that the property in issue was registered in the name of the Respondent’s father.f.That the learned trial Magistrate erred in law and fact by failing to consider the totality of the evidence but relied on the evidence of the Respondent.g.That the learned trial Magistrate erred in law and fact by making a finding that the representation made to the Appellant by the Respondent was of a future event.h.That the learned trial Magistrate erred in law and fact by making a finding that the Appellant approached the honourable court with unclean hands.i.That the learned trial Magistrate erred in law and fact by indulging in speculative conjectures, drawing inferences and arriving at premeditated decision. 12.The Respondent and the Appellants filed written submissions and relied on them. Analysis and Determination: 13.It is now cast in stone and founded in many jurisprudential decisions so often repeated and yet bear repetition that throughout the web of the English Criminal Law, one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt subject to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.1. 14.May I also add, that the legal burden remains constant throughout a trial as it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.2 15.Therefore, whether one is referring to the English Criminal Law or the American Criminal Justice System, the prosecution has the duty to proof all the ingredients of the offence beyond reasonable doubt and there is no burden on the part of the accused to proof his innocence at any one given time. The law only permits very few statutory exceptions where an accused person can be called upon to give an explanation in rebuttal. Choosing to analyse the prosecution evidence and leave out that of the accused is a fatal mistake. It’s a duty bestowed in every court to weigh one set of evidence (prosecution) against another (defence) before arriving at a conclusion. This is the basic calling of every court without exception and the proper approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and having done so, to decide whether the balance weigh so heavily in favour of the state as to exclude any reasonable doubt about the accuser's guilt. 16.The essential elements of Obtaining through false pretence is established in section 313 of the Penal code and it enacts 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. Form the said section; the essential elements of the offence of obtaining through false pretenses are discernible: that the person; a) Obtained something capable of being stolen; b) Obtained it through a false pretense; and c) With the intention to defraud. 17.But it is not the taking of money that constitutes the offence, but rather that it was taken with the intention to defraud. The fraud is found in the false pretence. What is false pretence? It is defined in section 312 of the Penal code 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. In un-packing the definition of false pretence, 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; andd.The person made the representation knowing it to be false or did not believe it to be true. Underline being mine. 18.In the words of Devlin, J. R Vs Dent 1955 2 Q.B. pp 594/5 that: “...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’’. Therefore, in law, the offence of obtaining does not relate to future events but the section itself proclaims that the representation should be of either a past or present fact, not future fact. 19.Having set out the law on obtaining by false pretenses and upon perusal of the grounds of appeal, by their nature, I collapse them into one issue of determination and that is whether or not, the State proved their case beyond reasonable doubt. 20.The court has perused two exhibits which are the centre piece of this case; Land Sale Agreement dated 27th December, 2026 and another dated 28th December, 2018. Exhibit 1 show that the Respondent had received a sum of Kshs76,000/ on 15th October 2018 and the balance of Kshs54,000/= to be paid without delay. The following issues come out clearly;a.Exhibit 2 is an Agreement on Damages between Josephat Wafula and Barasa Wanjala and the witnesses are 13 in number. However, at the tail end, the village elder one David Wanyama records the following; ‘’The agreement made by Isaiah Muramara of payment. Isaiah has received already Kshs76,000/= the remaining amount as per agreement to be paid on the latest 15th January, 2019. The remaining amount is Kshs54,000/=” This portion presents itself as an addendum. However, parties have not signed it. It therefore means the only legit agreement is one dated 27th December, 2026 in which in respect to the balance, time was not of essence.b.In Exhibit 1, it is clear that the ½ of an acre which was being sold by the Respondent existed but only after it has devolved upon succession. This was land parcel Number East Bukusu/North Nalando/698 registered in the name of the Respondent’s deceased father one Julius Muramara Makhanu. 21.It is no doubt therefore, that the transaction was futuristic as the sale was conditional, in the sense that succession ought to have been completed for the transaction to be effected. Additionally, the balance was to be paid without delay and so possession had not passed onto the Complainant. 22.In the midst of these hard facts of life, one concludes, without any difficult, that the matter does not fall within the fours of Section 313 of the Penal Code. Instead, this was a pure commercial matter and all the exhibits produced confirm that the property existed. There was no false pretence here. To the contrary, facts as presented, take a civil trajectory, other than a criminal. 23.One could clearly see the criminal processes being used for intimidation. In respect, I submit toward Public Prosecution & another [2014] eKLR where it was held; "Upholding criminal justice through a criminal prosecution as opposed to misusing the prosecution as an instrument to bring pressure to bear upon a party to settle a civil dispute is a question that has engaged the minds of learned judges in our courts on numerous occasions. Apparently, whenever such a question has arisen in cases before them, the learned judges have been consistent and are in agreement in their decisions that the institution of a criminal case for a purpose other than upholding the criminal justice is an abuse of the criminal process and it is upon the courts, whenever such scenario emerges, to rise to the occasion and halt such criminal proceedings". 24.Finally, a criminal process is never a substitute for criminal remedy or to be used as a means to settle a civil claim or to avail a party in a commercial transaction undue or collateral advantage over the other. That kind of practice is fraudulent, demented and abuse of the court process; should always be avoided by parties, resisted and forcefully suppressed by courts of law whenever it manifests itself before court.Disposal:a.The Appeal lacks merit and it is dismissed. DELIVERED VIRTUALLY THIS 9TH JUNE, 2026.HON. R.K. ONDIEKI,JUDGE.