[2023] KEHC 26382 (KLR)

Republic v Kipeen (Criminal Appeal E009 of 2020) [2023] KEHC 26382 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26382 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal E009 of 2020

PM Mulwa, J

December 8, 2023

Between

Republic

Appellant

and

Neenka Ene Ole Kipeen

Respondent

(Being an appeal against the judgment of Hon. P. Achieng (SPM) dated 26th November 2020 in Ngong Criminal Case No.73 of 2017)

Judgment

1. Neenka Ene Ole Kipeen the respondent herein, was charged with the offence of obtaining registration of land by false pretense contrary to section 320 of the Penal Code. It was alleged that on unknown dates within the administrative boundaries of Kenya, she willfully procured herself registration of land title Number Kajiado/Olchoro-Onyore/1872 by falsely pretending that she was the registered owner, a fact she knew to be false.

2. The respondent denied the charge. During the trial the prosecution called 8 witnesses and the respondent gave sworn evidence. In it judgment the trial court acquitted the respondent of the charge.

3. The appellant was aggrieved by the acquittal and filed the appeal vide the petition of appeal dated 7th December 2020 which cites the following grounds:i.The Honourable trial magistrate erred in law and in fact by failing to find that the prosecution had proved its case beyond reasonable doubtii.That the Honourable trial magistrate erred in law in relying on extraneous matters that were not part of the prosecution’s evidence.iii.That the trial magistrate erred in law by failing to appreciate the ingredients of the offence of obtaining registration of land by false pretense had been proved.iv.That the trial magistrate erred in law and in fact by acquitting the Respondent.v.That the trial magistrate erred in law in relying on probabilities and personal opinions as grounds to acquit the Respondent as opposed to relying on the evidence adduced.vi.That the trial magistrate erred in failing to appreciate the interpretation of Section 215 of the Criminal Procedure Code.

4. The appellant proposes to ask the court to allow the appeal and set aside the judgment of the trial court and acquittal of the respondent and order that the respondent is found guilty.

5. The appeal was canvassed by way of written submissions. The appellant filed submissions on 29th June 2023 and the respondent on 18th September 2023.

Appellant’s submissions 6. For the appellant counsel submitted that Section 320 of the Penal Code provides: “Any person who willfully procures or attempts to procure for himself or any other person any registration, license or certificate under any law by false pretense is guilty of a misdemeanor and is liable to imprisonment for one year.”

7. That false pretense is defined under section 312 of the Penal Code as “any representation made by words, writing or conduct, of a matter, 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 false pretense.”

8. It was submitted that the operative word is representation, in which the prosecution proved all the elements of fraud and obtaining by false pretense. That the prosecution proved that PW1 Fatuma Hassan purchased the subject parcel of land from the husband of the respondent in the year 1985 and was issued with a title deed on 4th August 1987. Counsel further submitted that the prosecution had also proved that the land was transferred from PW1 to the respondent on 10th September 1991 and a title deed issued to her, in the absence of a sale agreement or transfer documents.

9. It was contended that PW5 in his testimony had demonstarted that the title deed with PW1 was valid, and thus the prosecution had proved the respondent was the beneficiary of the fraudulent transaction. That the appellant proved there was circumstantial evidence that proved the respondent was directly involved in the fraud and the subsequent transfer of the land to her sons Michael Saruni Kipeen and John Rakita Kipeen.

10. It was argued that the trial magistrate erred in relying on the respondent’s defence which amounted to mere denials.

Respondent’s submissions 11. It was argued for the respondent that the appellant failed to prove the presence of an intention to defraud, the requirement for the property in question to possess value and be susceptible to theft and the individual making statements, whether through spoken or written words, or conduct, being fully aware of the falsehood of their representation or holding a lack of belief in its veracity.

12. It was submitted that the respondent acquired the land from her late husband and she put the thumbprint on the documents which were the transfer documents from the husband. That the respondent was not aware of the transaction between the deceased and therefore was not in a position to defraud anybody.

13. It was further submitted that the transfer at the land office was not done by the respondent, and the appellant failed to prove false pretense on her part.

14. On taking over the case by the trial magistrate, it was submitted that magistrates are transferred from time to time and would pick up matters previously handled by their colleagues and will be able to derive logical conclusions by attending the hearings from their current position.

15. It was argued that the appellant failed to reach the threshold set out to prove false pretense on the part of the respondent and as such any doubt cast by the prosecution evidence must be in favour of the accused. That the appellant did not establish a direct link between the alleged offence and the respondent.

Analysis 16. I have considered the appeal, the record of the trial court, the impugned judgment and the submissions filed by counsels. this being a first appeal, it is the duty of this court as the first appellate court to reconsider, re-evaluate, and re-analyze the evidence of the trial court and come up with its own conclusion, bearing in mind that the court did not have an opportunity to hear the witnesses testify. In Kiilu v Republic [2005]1 KLR 174, the Court of Appeal held that:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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. 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; 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.”

17. During the trial in the lower court the prosecution called 8 witnesses. PW1 - Fatuma Hassan testified she was the complainant, she purchased 10 acres of land from the accused’s husband on 25th March 1984 in the presence of 2 witnesses. She stated the purchase price was ksh 34,000/= which she paid in instalments a transfer was done and she was issued with a title deed.

18. PW2 - Hibac Aduah Ahmed testified she lived with PW1 who is her aunty. That on 13th April 2015, PW1 told her that she had received information that some people had invaded her land. The following day she went to the Land office did a search and found the land had been subdivided into 4 portions. She reported the matter and the land registrar put a restriction. From the records at the land office, it was evident how land was transferred from the accused husband to PW1 but there was no evidence that the land was transferred from PW1 to the accused.

19. PW3 - Ali Jamal Abdulnasir was with PW2 as they followed up on the issue and his testimony was similar to that of PW2.

20. PW4 - Peter Karanja Waweru testified that around 1984-1985 PW1 instructed him to take a surveyor to a piece of land she had bought. That he had also bought land next to hers and the title deeds were issued on the same day.

21. PW5 - Joel Mwinzi, the District Land Registrar Kajiado North told the court that he summoned the parties for a hearing and afterwards prepared a report. his findings were that the original registered owner of the land was Parsenteiyo Ole Kipeen; on 4th August 1987 the land was transferred to Fatuma Adan; on 10 September 1991 the land was transferred to Neenka Ole Kipeen; and on 7th October 2014, the land was transferred to Michael Saruni Kipeen and John Rakita Kipeen. Subsequently a sub-division was done on 12th February 2015 and new numbers issued, that is 17175-17178. He further stated that from their record there was no evidence to support the transfer from Fatuma to Neenka Ole Kipen and he suspected that the purported transfer was fraudulent.

22. PW6 - Pc Dickson Misoti based at the DCI Kiserian only recorded the statement of the complainant.

23. PW7 - Mohammed Abraham a senior land registrar officer Kajiado North stated that the title deed issued to PW1 was confirmed to be authentic having emanated from their office. That the same is supported by the records in their custody which include the green card. The signature on the title deed and green card are similar. In the instant case the original title was not surrendered for cancellation and there were no transfer forms in their record. The only document available is a sale agreement and an application for consent.

24. PW8 - Susan Vusa also a land registrar in Kajiado North testified that the transactions shown in entries 4 to 8 of the green card are fraudulent and ought to be cancelled as they are not supported by any evidence in their records.

25. In her defense the accused/respondent elected to testify on oath and stated that parcel no Kajiado/Olchoro-Onyore/1872 belonged to her late husband who gave it to her, she was given documents by her husband and she put a fingerprint and was later given the title in her name. She told the court that her husband was now deceased and could not remember when he died.

26. According to the respondent she decided to subdivide the land amongst her children as per the instructions given by her late husband. She maintained she did not know the complainant and that the land belonged to her.

27. Having considered the evidence, the trial court was not satisfied that the prosecution had proven its case against the respondent beyond reasonable doubt. At page 8 of the judgment, the learned trial magistrate stated:“…there is no proof whatsoever that the accused made any representation which she knew or believed was false in order to obtain registration of the land. The prosecution has failed to prove its case against the accused beyond reasonable doubt.”

Determination 28. I have considered the arguments by both parties. The issue for determination is whether the prosecution proved its case beyond reasonable doubt.

29. The respondent contended that the land was transferred to her by her late husband and was made to thumbprint on some documents which she could not understand as she is illiterate. That on 10th September 1991 she received a title deed in her name in respect to Kajiado/Olchoro-Onyore/1872 which she later sub-divided to her children.

30. The respondent denies knowing the sale of the property to Fatuma and maintains the land belongs to her late husband.

31. On the other hand, the prosecution submits the respondent was involved in the fraudulent transfer of the land from Fatuma to herself and the subsequent subdivision and the allocation of the same to her sons. The prosecution maintains that the land belongs to Fatuma as per the valid title deed issued to the complainant.

32. In view of the provisions of Sections 320 and 312 of the Penal Code provides (hereinabove enumerated), the prosecution was required to prove beyond reasonable doubt that the respondent forged the transfer document and the title deed issued on 10th September 1991, with an intention to defraud the complainant.

33. The prosecution adduced evidence to show there were no proper records from the lands registry on how the land was transferred from Fatuma to Neenka. The prosecution did not also prove how the respondent orchestrated the transfer of the parcel of land in her name. The prosecution failed to adduce the transfer forms to show who signed them. There was no evidence to show the respondent signed the forms and or initiated the transfer at the land registry.

34. The respondent submits that she was sub-dividing the land in accordance with her late husband’s wishes, as she had the title deed to the property. The prosecution has not adduced evidence to show that the Respondent made a false representation during the sub-division and the transfer of the land to her children.

35. The trial magistrate in her judgment found that the prosecution had failed to prove that indeed the respondent made any false representation as she was charged on the basis of being a beneficiary to the transaction. I am not persuaded otherwise.

36. This being a criminal case the prosecution was expected to prove its case beyond reasonable doubt and not leave room for doubts to the court. The Court of Appeal in Pius Arap Maina v Republic [2013] eKLR stated; “[T[he prosecution must prove a criminal charge beyond reasonable doubt and, as a corollary, any evidential gaps in the prosecution’s case raising material doubts must be in favour of the accused.”

37. Having evaluated the evidence and considered the appeal I find that in the absence of evidence pointing to the respondent as the person who made the false representation the trial court’s decision of acquitting the respondent was sound.

38. For the above reasons, I find that the appeal herein lacks merit and the same is dismissed. The acquittal of the respondent by the trial court is upheld.It is so ordered.

JUDGMENT DELIVERED VIRTUALLY, SIGNED AND DATED AT KAJIADO THIS 8TH DAY OF DECEMBER 2023. ....................P. MULWAJUDGEIn the presence of:Kiarie – court assistantMs. Nyaroita (ODPP) – for the appellantMr. Ochieng – for the respondent