[2025] KEHC 3587 (KLR)

Republic v Kangara (Criminal Appeal 148 of 2023) [2025] KEHC 3587 (KLR) (24 March 2025) (Judgment)

Neutral citation: [2025] KEHC 3587 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Appeal 148 of 2023

DR Kavedza, J

March 24, 2025

Between

Republic

Appellant

and

Martin Muthii Kangara

Respondent

(Being an appeal against the original conviction and sentence delivered by Hon. C. Mwaniki (SRM) on 31st August 2022 at Kibera Chief Magistrate’s Court Criminal Case No. 34 of 2016 Republic vs Martin Muthii Kangara)

Judgment

1. The appellant was charged and after a full trial convicted on three counts of obtaining money by false pretences. He was acquitted on all three counts. Being aggrieved, the prosecution filed an appeal challenging the appellant’s acquittal.

2. In their petition of appeal, the appellant contended that the trial court erred in disregarding the prosecution’s evidence which proved beyond reasonable doubt the offence charged. The appellant complained that the trial court erred in failing to exercise discretion and order restitution to the complainant. The appellant urged the court to substitute the acquittal with a conviction.

3. This being the first appellate court, we are guided by the ruling in Okeno v R [1972] EA 32. In this case, the court opined that a court of first appeal ought to re-examine all the evidence afresh and in an exhaustive manner, so as to come up with its own conclusions without overlooking the conclusions of the trial court, bearing in mind that it never saw the witnesses testify.

4. The prosecution called 9 witnesses in support of their case. John Kibowen Sergon (PW1) and his wife Rebecca Kibowen (PW2) testified that they initiated the purchase of the disputed property in November 2012. They made payments in three instalments: Kshs. 830,000 in November 2012, Kshs. 1,000,000 in January 2013, and Kshs. 6,470,000 in March 2013. Upon completion of payments, they were issued with a title deed in their joint names on 19th March 2013.

5. Lina Chepkosgei Kipkemoi (PW4) confirmed that she prepared the sale agreement on 13th November 2012. The respondent provided a title deed dated 16th August 2012 and a search certificate dated 17th August 2012, which were used to verify ownership. Relying on these documents, she proceeded with the transaction and prepared a spousal consent letter for the seller’s wife, Catherine Wanjiru Muteti. Additionally, PW4 drafted a commission agreement between the seller, Martin Kang'ara, and eight land agents, including PW6 and PW5. The deposit of Kshs. 830,000 was distributed as per the agreement, with the respondent receiving Kshs. 630,000 via cheque and the agents receiving Kshs. 200,000 in cash. Subsequent instalments were also disbursed accordingly.

6. Jackson K. Cheruiyot (PW5) stated that he learned from PW2 that she was seeking to purchase land in Rongai. He contacted his associates, and through a chain of referrals, he connected PW2 to PW6, who introduced them to the property in question. PW6 corroborated this account, affirming that he became aware of the property in August 2012.

7. Stephen Kipkorir Bundotich (PW7) confirmed that he represented the complainants, though PW4 primarily handled the transaction. Upon learning of a competing claim to the land, his clients instructed him to challenge a Gazette notice requiring them to surrender their title. He filed a High Court petition against Stanley Maina Kiriro, the Chief Lands Registrar, the Ngong Land Registrar, and the Attorney General, enjoining the respondent as an interested party. PW7 submitted a copy of the Green Card, which established his ownership in 1976. The records also indicated a transfer to Godfrey Ndungu Gathii in 1994 and subsequently to the respondent in 2012. PW7 testified that the respondent failed to provide evidence of his purchase from Gathii and advised the complainants to withdraw the petition and report the matter to the Directorate of Criminal Investigations (DCI).

8. Rufus Karima Kalama (PW8), then stationed at the Ngong Lands Office, testified that he received a complaint from Stanley Kiriro regarding parcel No. Ngong/Ngong/2317. Upon summoning all relevant parties, only Kiriro and the Kibowens attended. Kiriro presented his original title deed from 1976. Official records indicated a transfer to Godfrey Ndungu Muthii on 26th April 1994 and later to the respondent in 2012. However, there was no Land Control Board consent or duly completed transfer application for the 1994 transaction. PW8 concluded that the 1994 transfer was fraudulent and, under section 79 of the Land Registration Act, rectified the register and issued a Gazette notice. Upon further review, the parcel file contained evidence of the initial transaction between Nyotu and Kiriro but lacked documentation for the alleged transfer to Gathii. Documents purporting to transfer ownership from Gathii to the respondent included a transfer document, an application for registration, a stamp duty receipt, a Land Control Board consent letter, and a copy of a surrendered title. PW8 confirmed under cross-examination that the public does not have access to Green Cards.

9. Stanley Maina Kiriro (PW3) denied ever selling the property. He stated that he purchased it from Simon Nyotu and was issued a title deed on 6th May 1976. The parcel comprised a quarter-acre, partially developed with residential flats and partially vacant. Upon learning of competing claims, he reported the matter to the DCI, which ultimately led to the Gazette notice revoking the fraudulent title.

10. Inspector Catherine Kinoti (PW9) was assigned the case in July 2015. Her investigation included obtaining statements from all parties and reviewing documentary evidence. The respondent failed to provide a sale agreement proving his purchase from Gathii, and efforts to locate Gathii were unsuccessful. Based on the evidence from the Lands Registry and the respondent’s involvement in the fraudulent transfer, PW9 charged him with the offence.

11. In his defence, the respondent elected to give a sworn statement. He admitted meeting the complainants through an agent named Cherotich and negotiating a sale price of Kshs. 6. 5 million at the law firm of Kale Bundotich & Co. Advocates. He acknowledged receiving payments as follows: Kshs. 630,000 as deposit, Kshs. 1 million as a further deposit, and Kshs. 4. 96 million as the final installment. However, he disputed the amounts stated in the charges. Regarding his acquisition of the property, he maintained that he purchased it from Godfrey Ndungu Gathii through proper legal procedures, paid stamp duty, and was issued a new title deed. He claimed to have surrendered all documents to the Lands Office and denied any wrongdoing.

12. When summoned by investigators, he purportedly provided the sale agreement with Gathii but alleged that it was not returned to him. He denied all charges against him.

13. Section 313 of the Penal Code provides 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.”

14. The prosecution was required to prove that the respondent obtained property capable of being stolen, did so through false pretences, and acted with intent to defraud.

15. The prosecution’s case was that John Kibowen Sergon and Rebecca Kibowen purchased land from the respondent between 2012 and 2013, relying on documents he provided. They later discovered that the lawful owner, Stanley Maina Kiriro, had never sold the land. Investigations by Land Registrar Rufus Kalama and Inspector Catherine Kinoti revealed fraudulent transfers. The respondent failed to produce a valid sale agreement establishing his ownership. The prosecution argued that he knowingly participated in the fraudulent transaction, derived financial gain despite lacking legal title, and caused the complainants financial loss and legal complications.

16. The respondent contended that he had lawfully purchased the land from Godfrey Ndungu Gathii, adhering to legal procedures, including payment of stamp duty and acquisition of a title deed. He asserted that he submitted all relevant documents to the Lands Office and fully cooperated with investigators. He further stated that he had provided the sale agreement with Gathii, which was allegedly not returned to him. The respondent maintained that he had no knowledge of fraud and conducted a legitimate sale, facilitated by a property agent and legal representatives.

17. The prosecution was tasked with providing a nexus between the respondent to the offence of obtaining money by false pretences. Their case rested on the respondent’s failure to provide a valid sale agreement confirming his purchase from Gathii, as testified by the investigating officer (PW9) and the Land Registrar (PW8). Official land records established that the 1994 transfer from Gathii was fraudulent, rendering subsequent transactions, including the respondent’s 2012 acquisition, invalid. Furthermore, despite receiving significant payments from the complainants, the respondent was unable to establish legitimate ownership of the land.

18. The key issue was whether the respondent knowingly misrepresented that he was selling a legitimate parcel of land while aware that the title he held was invalid.

19. To establish the offence of obtaining by false pretences, the prosecution had to prove that the respondent, by deception and with intent to defraud, obtained valuable property capable of being stolen. However, the evidence presented did not establish beyond reasonable doubt that the respondent intentionally defrauded the complainants.

20. The record suggests that the respondent himself may have been defrauded as he did not obtain a good title. There is no evidence to suggest that he knowingly intended to deceive the complainants by selling them the land he had acquired.

21. In my mind, this case is more appropriately determined on a balance of probabilities rather than beyond reasonable doubt. The trial court correctly acquitted the respondent on this basis.

22. Accordingly, the appeal is found to be without merit and is dismissed in its entirety.Orders accordingly.

JUDGEMENT DATED AND DELIVERED THIS 24TH DAY OF MARCH 2025. ....................................D. KAVEDZAJUDGEIn the presence of:Appellant absentMutuma for the RespondentTonny Court Assistant