https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/313

Republic v Kiptonui (Criminal Case E256 of 2023) [2026] KEMC 313 (KLR) (14 July 2026) (Judgment) Neutral citation: [2026] KEMC 313 (KLR) Republic of Kenya In the Bungoma Law Courts Criminal Case E256 of 2023 RN Maloba, SPM July 14, 2026 Between Republic Prosecution and Collins Naiguran Kiptonui Accused Judgment 1. Prosecution’s case 1.his case was instituted in court by the ODPP on 1/2/2023 charged in the matter was Collins Naiguran Kiptonoi (accused) who pleaded not guilty to the charge of cheating contrary to section 315 of the penal code. 2.It was alleged in the particulars of the charge that on 30/1/2023 at parcel handlers shop situated at Muyayi are in Bungoma South, he jointly with others not before court induced one Masika Karen Nanyama to deposit kshs. 51,220/= into Mpesa account No. 0723118934 under the pretense that the cash was meant for the purpose. 3.In count II, he was charged with the offence of having suspected stolen property contrary to section 323 of the penal code. He was allegedly found in possession of a Samsung mobile phone valued at Kshs. 25,000/= which was suspected to be stolen property. He also denied this in court. 4.During trial, the prosecution called Mildred Nanjala, Caren Masika and PC Matumbeti Zebedee as PW1 -Pw3 respectively. 5.The shop where the incident occurred was of PW1 and was being attended to by her employee, PW2. PW3 was the investigating officer. 6.In the facts on record, the prosecution disclosed that accused person posed to PW2 as a customer who wanted to deposit money into the Mpesa account aforementioned. He was an accomplice who remained outside after the two arrived on a motor cycle; he remained at a distance as the accused approached and entered the shop. 7.Accused then requested to deposit Kshs. 58,000/- into that account. The one who remained outside was heard speaking on phone saying that, “boss, we are depositing the money now, send it to Geoffrey to buy materials from the hardware”. 8.Apparently, that statement was meant to hoodwink PW2 to continue with the transaction believing that it was a genuine one. 9.Upon making the initial deposit of kshs. 22,220/=, PW2 noticed that the account name was that of Bonface Omware Arunga. Apparently, that name was assumed by the other man who had earlier on remained outside. 10.The said accused pretended to count some cash from a small bag that he was carrying and when PW2 ran out of ‘float’, he asked her to make an additional deposit at a neighbouring Mpesa shop. She agreed without questioning and proceeded to the other shop where she deposited another sum of 29,000/=. That brought the total that she was allegedly defrauded by accused and his accomplice to Kshs. 51,220/=. 11.When she returned to her shop to pick the money from the accused, the other man picked a motor cycle and rode off leaving the said accused behind. The accused then asked for his mobile phone which he had placed in her custody as the transaction was going on but she declined to release it back to him. This aroused his anger and so he attempted to slap her. As a result, she screamed whereupon, those around came to her rescue. They promptly detained him before escorting him to the police station. They threatened to lynch him. 12.PW2 explained that the accused introduced himself to her as Collins prior during the incident. 13.PW1 confirmed receiving a report from Pw2 about the incident on the material day at about 12.00 noon. She was at work when she received that report. 14.In the course of investigations, PW3 obtained Mpesa statements concerning the Mpesa account that was used to defraud the money. They confirmed that the said account was in the name of one Bonface Omware Arunga. It further confirmed the stated deposits of Kshs. 51,220/- in two batches of Kshs. 22,220 and 29,000/- as was alleged by PW2. He added that none of it was received by PW2 as was expected. He produced the said statements and also the mobile phone which was retained from the accused by PW2 as exhibits 1, 2 and 3 respectively. The Defence Case 15.He gave sworn evidence and denying the offence. He explained that on the material day, he went to buy some food items for breakfast from a shop Christened “Vanisa Mali”, on reaching there and upon placing his order, he received a call from Safaricom on his airtel line whose caller was unknown to him. Because he had no Airtel line, he gave his phone to the Mpesa agent instead. 16.After that, the said agent confiscated his mobile phone and walked out for about 1 hour without knowing what the caller and the Mpesa agent talked about during the said call. While she was gone, he just remained behind waiting for her to return so she could give him back his phone. But when she returned, she started to make some noise alleging that she had lost some money. As a result, he was later arrested over it yet he did not who Bonface Arunga was or anything about the phone number allegedly used to receive the cash. 17.He further being subjected to mob justice as was claimed by PW2. 18.Concerning the Samsung phone, he explained that it was given to him by his mother after he completed school. He said that she resides in Nairobi an so it was to facilitate communicate between them. Issues for Determination 19.The issues for determination in this case are; On count 11.Whether kshs. 51,220/- was obtained from Pw2 on the material day? If so;2.Whether the money was obtained by means of fraudulent tricks as alleged?3.Whether the said acts amounted to the offence of cheating contrary to section 315 of the penal code.4.Whether accused was the culprit as alleged? On count II 20.These are;1.Whether accused person’s explanation on his possession of the phone was unsatisfactory?2.Whether the offence of having suspected stolen property contrary to section 323 of penal code was proved against the accused.3.Whether accused is guilty as charged on this count? Determination by the Court Proof of Count 1 21.The court has considered the elements of the offences charged as set out in section 315 of the penal code and 323 of the same. It has also considered and applied the evidence adduced by both the prosecution and the accused in this case and applied it to the ingredients thereof. 22.Section 315 of the penal code outlaws cheating as an offence as follows;“Any person who by means of any fraudulent trick or device 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 or to pay or deliver any money or goods or any greater sum of money or greater quantity of goods then he would have paid or delivered but for such trick or device, is guilty of a misdemeanor and is liable to imprisonment for three years”. 23.Flowing from the above section are several ingredients which were summarized in the case of Simon Wycliffe Ouma -V- Republic [2019] KEHC 10335 (KLR), thus;“For an offence of cheating contrary to section 315 of the penal code to be established, the prosecution has the anus of proving the following ingredients beyond reasonable doubt:a.That the accused obtained by means of fraudulent trick or device,b.Anything capable of being stolen or;c.Cause any other person to pay or deliver to any other person any money or goods or any greater quantity of goods than he would have paid or delivered but for such trick or device”. 24.In the said case, the court found the appellant had caused one Esther Anyango Okama to pay him a sum of Kshs. 10,000/= when he knew that he was not entitled to receive the same. For that reason, it found his appeal on conviction lacking merit and dismissed it. 25.In my considered opinion, this offence is almost similar to that of obtaining by false pretences C/S 313 of the penal code – See Peter Nyamu Mutithi -V- Republic [2021] KEHC 8852 (KLR). 26.In this case, the prosecution demonstrated quite clearly that Kshs. 51,220/= was obtained from PW2 on the material day through trickery or deception. The same was by persons who pretended to have money to deposit in the Mpesa account that was disclosed herein. The said people made her to use the money that was in her ‘float’ to make the deposits into the suspect Mpesa account while expecting to be given the cash in return. They were to reimburse her with a cash equivalent but deliberately failed to do so in a fraudulent manner. As such, she lost money belonging to her employer that was for use in the Mpesa agency. The same eventually got fraudulently delivered to an account belonging to one Bonface Omware Arunga. That was a clear fraudulent scheme which was proved by the prosecution beyond reasonable doubt. But was Accused the Culprit? 27.Having considered evidence adduced by both the prosecution and accused person, it is my finding that accused was at the heart of that fraudulent scheme and act. He went to PW2 purporting to have money with which to make the deposit and gave her the Mpesa account into which that transaction was to be conducted. 28.Afterwards, she made a deposit electronically through the ‘float’ she had in the Mpesa agency line. She later moved to her neighbours agency and did another deposit at the instigation of both accused and his accomplice who took off soon thereafter. 29.But unfortunately for accused, his phone had remained behind and so as he returned to the shop to pick it, he was accosted by members of the public when PW2 raised alarm upon noticing that she had been defraud of the money. 30.Accused admitted that, indeed, he went to the said shop on the material day and that his Samsung phone, was indeed confiscated by PW2. 31.However, he defended himself over the incident by claiming that he merely received a call from an unknown caller from Safaricom company who wanted to speak to any of their agents. It was then that he gave his phone to PW2 to receive the call and talk to the caller because he himself did not own a Safaricom line. He claimed not to know what was discussed between the two. But on the contrary, the court finds that explanation a mere denial. 32.This is because, nothing prevented him from talking to the alleged caller himself to know the reason for the call. Furthermore, evidence shows that he did not arrive at the shop alone but that, his accomplice remained at a distance apparently monitoring things from there. That is a fact he did not specifically deny. Why did he not distance himself from that person if he knew nothing at all about the said fraudulent transaction. 33.Thirdly, if indeed he had gone to another shop altogether to buy shop goods as claimed, how did he end up encountering PW2 at the Mpesa agency in the first place? That means that, his story was not adding up and one can easily see that, most of it was cooked up. 34.In the circumstances, I would find his defence unconvincing. I therefore dismiss it and find him guilty of cheating contrary to section 315 of the Penal Code. Proof of Count II:- 35.With regard to count II, the offence the accused is charged with having suspected stolen property contrary to section 303 of the penal code.The section provides that:“Any person who has been detained as a result of the exercise of the powers conferred by section 26 of the Criminal Procedure Code and is charged with having in his possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account to the satisfaction of the court of how he came by the same is guilty of a misdemeanour.” 36.Flowing from the above provision are the following ingredients of this offence:i.Possession or conveying by accused of suspected stolen property.i.Failure by accused to give a reasonable explanation or account to the satisfaction of the court of how he came by the same - see Benson Otieno Wasinde vs. Republic [2013] KEHC 1231 (KLR). 37.In that case, the court underscored the duty of the prosecution to prove the offence beyond reasonable doubt of its commission by the accused. In that regard, the prosecution needed to place material before the court why it believed that the property found with accused was believed to be stolen or unlawfully obtained. That property was a Nokia phone make 2720 worth Kshs. 6,000/=. 38.Noting that proof of the offence was wanting. The court stated in that case thus;“There was no material placed before the trial court to show why PW6 suspected or believed the phone was stolen or unlawfully obtained, if possession of the Nokia 2720 is the only thing that make PW6 arrest the appellant, and that is no other reason given, then Kenyans have a reason to fear as many may find themselves arrested and charged for possessing mobile phones and other valuables if they do not carry with them documents of ownership. As the Nokia 2720 was not amongst the items stolen from PW2 business premises or from the two watchmen Patrick and William, the defence offered by the appellant that the phone was his as it had been given to him by him brother whose name he gave as Stephen Ouma to use was in our view sufficient explanation.” 39.In this case, the prosecution merely relied on the accused person’s possession of the Samsung phone and nothing further. But as seen above, possession per se-which the accused admitted herein-was not enough for them to discharge the burden of proof with respect to its commission by the accused person. In any case, the explanation by the accused was that the phone was given to him by his mother who resides elsewhere. According to him, it was to facilitate communication between them given that they stay far apart. 40.According to the court, that explanation amounted to an unchallenged account on how he came by the same and was satisfactory tin the circumstances. 41.Consequently, I would find that count II remained unproved. 42.In the upshot, the court in concluding the matter finds that:i.That Count I was proved by the prosecution beyond reasonable doubt as against the accused. Consequently, he is hereby found guilty of the same pursuant to section 215 of the Civil Procedure Code.ii.That Count II was unproved and so the accused person stands acquitted on the same pursuant to section 215 Civil Procedure Code.It is so found and/or as directed. DATED & DELIVERED IN OPEN COURT THIS 14TH DAY OF JULY 2026R.B.N. MALOBA (MS)SENIOR PRINCIPAL MAGISTRATEIn the presence of:Prosecutor- Ms. AchiengC/Asst- Ms. JacintaAccused – Absent (Absconded)