https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8095

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CRIMINAL DIVISION- MILIMANI COURT** **CRIMINAL APPEAL NO. E182 OF 2024** **(CM MILIMANI COURT CASE NUMBER 847 OF 2019)** **REPUBLIC…………………………….......... .....APPELLANT** **VERSUS** **MARY MORAA MAGARE..………………1ST RESPONDENT** **JOHN ONENTHIAH MAGARE……..…..2ND RESPONDENT** ***(****Being an Appeal from the Judgment and order meted out by Hon. Gilbert O. Shikwe (PM)at the Chief Magistrate’s Court Milimani in Criminal Case No. 847 of 2019 delivered on8/2/2024)* **JUDGMENT** **PETITION OF APPEAL** 1. On 28th November, 2024 the Prosecution filed Petition of appeal against the entire judgment delivered on 8th February, 2024 by Hon. Gilbert O. Shikwe (PM) on the following grounds: 2. The Learned Mmagistrate gravely erred in law and fact by failing to analyse and make findings based on the entire prosecution evidence without which he could not arrive at his own independent decision notwithstanding the conflicting expert opinion reports. 3. The Learned Magistrate gravely erred in law and fact, by failing to appreciate that the prosecution adduced truthful and cogent evidence outside the expert's opinion sufficient enough to prove beyond reasonable doubt the offenses the respondents were charged with. 1. The Learned Magistrate gravely erred in law and fact by failing to caution himself and/or reminding himself of his duty as a trial court of facts of the need for him to determine the points of departure between the two experts' opinions as a consequence of which his decision went off at a tangent resulting into a fatal legal fallacy of failing to make a decision on which of the two varying opinions ought to have been given more consideration or weight. 2. The Learned Magistrate erred in law and fact by failing without any justification whatsoever to attribute more weight and/or consideration to the expert report of PW5 which contained a finding reached out through a superior process using a Video Spectra Comparator (VSC). 1. The Learned Magistrate erred in law and fact by failing to appreciate that the second opinion expert presented by the respondents was procured subjectively and specifically to counter their prosecution after they had already been charged and hence ought to have been given less weight or consideration. 2. The Appellant seeks for the following orders:- 1. The appeal be allowed. 2. The court be pleased to set aside the order 1. acquitting the Respondent under **Section 215** of the Criminal Procedure Code and substitute the same with a conviction and as by law provided sentence the respondents. 3. Any other or further orders that this Honourable court may deem fair and just to grant. **APPELLANTS WRITTEN SUBMISSIONS** **Introduction** 1. The Respondents were charged with the offences of conspiracy to defraud, forgery, uttering false document and obtaining registration of land by false pretenses and were subsequently acquitted of all the charges. 2. The Appellant urges the court to set aside the order acquitting the respondents under **Section 215** of the Criminal Procedure Code and substitute the same with a conviction and sentence as provided by law. **ISSUES ARISING FOR DETERMINATION** 10. Under **Section 107 of the Evidence Act**, the prosecution bears the burden of proof on every element in a criminal charge. The prosecution must discharge this burden beyond reasonable doubt. (a) Whether all the ingredients of the offences had been Proved. (b) The Appellant's defense **A. Whether all the ingredients of the offences had been proved** 11. In regards to **Count 1, Section 317 of the Penal Code** provides that, ***"Any person who conspires with another by deceit or any fraudulent means to affect the market price of anything publicly sold, or to defraud the public or any person, whether a particular person or not, or to extort any property from any person, is guilty of a misdemeanor and is liable to imprisonment for three years."*** 12. The **Black Law's Dictionary** 9th Edition Page 301 defines conspiracy as:- ***“An agreement by two or more persons to commit an unlawful act coupled with an intent to achieve the agreement's objective and (in most case) action or conduct that furthers the agreement or a combination for unlawful purpose. While it defines defraud to mean to cause injury or loss to a person by deceit.”*** 13. In the case of ***Rebecca Nabutola & a Others-v-R-Cr.*** ***Appeal 232/2012*** it was held that in order to prove an offence of conspiracy to defraud the elements to be proved are **the existence of an agreement and the intention to defraud.** 14. Firstly, it is not in dispute that the appellants are Mother and son and therefore well known to each other. Secondly that the suit property being Land Parcel No. Nairobi Block 82/4656 was jointly owned by the 1st Respondent and Joshua Gichana Magare. 15. **PW1** testified that around 2016 he went to Harambee Sacco to enquire about the process of acquiring his title only to be told that a certificate of lease had already been issued to the 2nd Respondent, a fact corroborated by **PW2.** 16**. PW3** Human Resource Manager at Harambee Sacco confirmed that the owner should be physically present during presentation of the transfer documents or at the least confirmation should have been sought from the owner about the transfer. 17. **PW5** Forensic Document Examiner examined the signature appearing on the transfer letter for **Nairobi Block 82/4686** together with the known and specimen signatures of **PW1** and established that **PWI** did not sign the letter of authority to transfer. He further established that both the appellants [Respondents]signed the transfer documents. 18. In ***Lilian Kagendo Muriithi & Another vs Republic [2020] КЕНС 2605 (KLR),*** the court held that, ***"It is clear that the element of an agreement between the conspirators can be inferred for an unlawful act with the intention to defraud the complainant."*** 19. Consequently, the Prosecutions' evidence particularly PW5 did prove that the transfer of title from PW1 to the 2nd Respondent was made without authority and was intended to deprive PW1 of his entitlement to the land. Therefore, the prosecution did discharge its burden of proof to the required standard in proving Count 1 of conspiracy to defraud. 20. With regard to **Count 2,** **Section 349** **of the Penal Code** provides that, *"****Any person who forges any document or electronic record is guilty of an offence which, unless otherwise stated, is a felony and he is liable, unless owing to the circumstances of the forgery or the nature of the thing forged some other punishment is provided, to imprisonment for three years."*** 21. In the case of ***Elizabeth Achieng Nyanya vs Republic*** ***HCCRA No. 123 of 2017 (Siaya)*** the Court stated as follows: **The operative word here is forgery, as the word suggests the name forgery means fake i.e. not real.** The Black's Law Dictionary, 9th Edition defines it as **the act of fraudulently making a false document or altering a real one to be used as a genuine.** 22. In the Nigerian case of **Alake vs. The State** the Court listed the following as the ingredients of the offence of forgery: **(i) That there is a document or writing;** **(ii) That the document or writing is forged;** **(iii) That the forgery is by the accused person;** **(iv) That the accused person knows that the** **document** **or writing is false;** 1. **That he intends the forged document to be acted upon to the prejudice of the victim in the belief that it is genuine."** 23. In the case of ***Mwangi v Republic (Criminal Appeal E011*** ***of 2024) [2024] KEHC 7867 (KLR),*** the Court provides as follows: ***There must be proof beyond reasonable doubt that the actus reus, the act of forgery, or an omission resulting in the forgery, was effected specifically by the appellant*** 24 . The Prosecution submitted that the prosecution proved all the elements of forgery beyond reasonable doubt. The evidence on record is clear that the signature appearing on the letter of authority to transfer is not PW1's.**PW5** the Document Examiner was able to establish that PW1 did not sign the authority to transfer letter. He further established that both the Appellants signed the subject letter of authority.**DW3** also a document examiner concluded that the impugned letter of authority to transfer did contain PW1's signature. 25. They submitted that the Trial Court erred by failing to analyze and make a finding based on the whole prosecution evidence which was sufficient to prove the charges beyond reasonable doubt notwithstanding the conflicting expert opinion reports. Further, that the Court erred by failing without any justification to attribute more weight and consideration to the evidence of PW5 whose finding was based on a superior process using a Video Spectra Comparator (VSC) See page 83 of the Record of Appeal where DW3 conceded that the VSC is superior and would therefore lead to more accurate findings. 26. The Court instead went to consider extraneous facts that the marriage between PW1 and the 1st Appellant was on the rocks and that on that basis he could not form his mind on who was telling the truth. They submitted that this was a grave abrogation of duty of the trial court to apply its mind to the totality of evidence presented before arriving to a finding. 27. With regard to expert opinion, they urge the court to be persuaded by the decision in the case of ***Stephen Kinini Wang'ondu v The Ark Limited [2016] КЕНС 3449 (KLR)*** where the Court held; ***"Firstly, expert evidence does not "trump all other evidence"." It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with a mathematical precision.”*** ***Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be "artificially separated" from the rest of the evidence. To do so is a structural failing. A court's findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence.*** ***Thirdly, where there is conflicting expert opinion, a judge should test it against the background of all the other evidence in the case which they accept in order to decide which expert evidence is to be preferred.*** ***Fourthly, a judge should consider all the evidence in the case, including that of the experts, before making any findings of fact, even provisional ones.*** ***A further criteria for assessing an expert's evidence focuses on the quality of the expert's reasoning. A court should examine each expert's testimony in terms of its rationality and internal consistency in relation to all the evidence presented. In Routestone Ltd. v. Minories Finance Ltd. and Another [13] Jacob J. observed that what really mattered in most cases was the reasons given for an expert's opinion, noting that a well-constructed expert report containing opinion evidence sets out both the opinion and the reasons for it. The judge pithily commented "(i) If the reasons stand up the opinion does. if not, not." A court should not therefore allow an expert merely to present their conclusion without also presenting the analytical process by which they reached that conclusion. Where there is a conflict between experts on a fundamental point, it is the court's task to justify its preference for one over the other by an analysis of the underlying material and of their reasoning."*** 28. It is clear from the extensive analysis by court in the case of ***Stephen Kinini Wang'ondu(supra),*** that the Trial Court erred in rejecting the expert opinions' findings on the basis that PW1 and the 1st Appellant were not in good terms therefore neither could be trusted. 29. If the court is minded to analyze the evidence presented as a whole as against the two conflicting expert opinions, it would arrive at the inescapable conclusion that PW5's report is more reliable and credible. 30. With regard to **Count 3, Section 353 of the Penal Code** provides that: ***"Any person who knowingly and fraudulently utters a false document is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question."*** 31. In the ***case of Joseph Simiyu Mwando v Republic [2016] eKLR,*** the court considered **Section 353 of the Penal Code** and stated as follows: ***"According to the section and the definition above, it is an offence if one knowingly and with intent to defraud utters a false document, that is, uses, deals with, or attempts to use or deal with, or attempts to induce some other person to use, deal with or act upon the document or thing uttered to him. That is, the person to whom the document is uttered, is made to take action or steps, which save for the thing uttered to him, he would have not taken."*** 32. They submitted that through the evidence of PW3 the offence of uttering a false document was established as per pages 46 and 47 of the Record of Appeal. 33. With regard to Count 4, **section 320** of the Penal Code provides that; - **"*Any person who willfully procures or attempts to procure for himself or any other person any registration, license or certificate under any law by any false pretense is guilty of a misdemeanor and is liable to imprisonment for one year."*** 34. It then follows that there must be a representation on matters of fact, that representation must be false and it must have been made with intent to defraud a person of his property. These are the ingredients that the prosecution must prove in order to secure a conviction on a charge of obtaining registration by false pretenses 35. The prosecution having proved beyond reasonable doubt that the letter of authority to transfer lease title was a forgery, then it follows that the subsequent registration of certificate of lease issued to the 2nd respondent was fraudulently obtained. **B. The Appellant's Defense** 36. The appellant's defense was a mere denial and did not displace the prosecution's overwhelming evidence. At the time of writing the judgment the Respondents did not file and serve any submissions as per the Court order. **TRIAL COURT PROCEEDINGS** **CHARGES** 37. The accused persons herein were jointly charged with the offence of conspiracy to defraud contrary to **Section 317 of the Penal Code.** Particulars of the offence were that on or before the 5th day of March 2011, at unknown place within the Republic of Kenya, jointly with others who were not before court conspired with intent to defraud **Joshua Chefta Gichana Magare** his share of land parcel No. **Nairobi Block 82/4686** situated at Green Fields measuring about 0.0098 Ha, valued at Kshs. 20,000,000/- (Twenty Million Shillings only) conspired to register the said parcel of land to Johan Onentiah Magare a fact they knew to be false. 1. In Count 2 they were charged with forgery contrary to **Section 345 as read with Section 349 of the Penal Code**. Particulars were that on or about the 5th day of March 2011 at Unknown place in Nairobi within Nairobi County jointly with others who were not before court, with intent to defraud **Joshua Chieſta Gichana Magare** his share of land parcel **No. Nairobi Block 82/4686** situated at Greenfields measuring about 0.0098 Ha, valued at 20,000,000/-(Twenty Million shillings only) forged a certain document namely **letter of Authority to Transfer Lease title** dated 28th February, 2011 purporting it to be a genuine Letter of Authority to transfer lease signed by **Joshua Chieſta Gichana Magare** a fact they knew to be false 1. In Count 3 they were charged with **uttering a false document contrary to Section 353 as read with section 349 of the Penal Code.** Particulars to the charge were that on or about the 5th day of March 2011 at Harambee Co-operative offices within Nairobi County jointly with others not before court, with intent to defraud **Joshua Chiefta Gichana Magare** his share of land parcel No. Nairobi Block 82/4686 willfully and fraudulently uttered a forged Letter of Authority to Transfer Lease Title to Pamela A.O. Apidi Administrative Manager Harambee Sacco purporting it to be a genuine Letter of Authority to transfer lease title signed by **Joshua Chiefta Gichana Magare** a fact you knew to be false. 1. In Count 4 the second accused **Jonah Onentiah Magare** was charged **with obtaining Registration of Land by false pretenses contrary to Section 320 of the Penal Code.** Particulars were that on the 21st December, 2011 at Nairobi Lands Registry within Nairobi County with intent to defraud **Joshua Chiefta Gichana Magare** his share to land parcel **No. Nairobi Block 82/4686** fraudulently procured the registration of the said parcel of land to himself vide certificate of lease dated 21/12/2011. The charges were read to the accused persons and they pleaded not guilty to the offences and the matter proceeded to a full hearing. **PROSECUTION WITNESSES** 1. **PW1- Joshua Chiefta Magare** a business man previously a civil servant stated that he had two wives Mary 1st wife and Cecily 2nd wife. He testified that he married the 1st accused person Mary Moraa Magare in October 1992. He stated that they did not have any child together but she had a child that he took as his own son step son although he was not the biological father. The step son is the second accused person. He said that in 2007 he bought a plot Number A586 in Greenfield Doonholm at Ksh 250,000/= from Joseph Ogoti a member of Harambee Sacco which he paid in full. The land was not transferred to him but he was given a letter to indicate he was the owner of the property. In August 2002, he decided to bring his first wife ( 1st Accused ), on board with the property, he wrote to the General Manager of Harambee Sacco notifying them of this position to process the title in time. 1. In 2016 he went to Harambee Sacco to enquire about the process of getting the title only to be told that the property had a title issued to his step son Jonah 1st Accused’s biological son. He was shown a copy, he took it and he did a search at Ministry of Lands which confirmed the same. He reported to Land Fraud Unit. He said that in the documents; he found a letter written by the 1st accused indicating that they had agreed to transfer the property to the son which was not true. He produced original sale agreement dated 5/11/2001 (MFI 1) and a letter of acknowledgment from Harambee Sacco for transfer of plot to his name dated 18/4/2002. (MFI 2). 1. He produced a letter dated 3/5/2006 signed by Mary Moraa to Harambee Sacco in which she purported they had been unable to clear the arrears (MFI 6). Another letter dated 28/2/2011 signed by 1st Accused addressed to the Manager Harambee Sacco purported to be a genuine letter of Authority to transfer lease to the son signed by Joshua Chieffta Gichana Magare which was not true. He said he did not sign the letter (MFI 7). He said he did not develop the land although it had a commercial building in it and has been rented out without his knowledge. 1. He said that when he noticed this in 2015 he parted ways with 1st Accused but the issue has not been settled as 1st Accused has declined to appear. He produced MF1 1,2,3,4,5 and MF18 as marked. In cross examination he said that he introduced 1st Accused as co-owner. He said they have other property cases with the 1st Accused. He said that he had never been faced with financial problems where 1st Accused helped him. 1. **PW2 Aisha Naimosi** an Advocate working in the firm of **Amollo & Gachoka Advocate** stated that on 18/6/2021 they were served a letter from DCI to confirm if they had drafted the transfer documents to **NRB/Block** **82/8646** the suit property which she confirmed that the said transfer (MFI 9 was drawn by the firm of Amollo & Gachoka Advocates. They were shown a Certificate of Lease (Pexhibit 4). The transfer was between Harambee Co-operative Sacco and Jonah Onentiah Magare. Their client was Harambee Co-operative Sacco. 2. **PW3 Paul Kiplagat Tanui** a Human Resource Manager in Harambee Sacco stated that the original owner of the land was Josephat M. Ogutu who sold it to Joshua G. Mongare whose spouse was Mary Moraa Mogeto wrote to the society seeking transfer of the land to Jonah Onentiah Mangare (P Exhibit 7). He stated that the transfer was effected to Jonah Onenitia without the Society having confirmed the same from the owner. On cross examination; he stated that the Complainant introduced Mary Moraa to be a joint owner in the land and the transfer was done on the strength of the letter. By Mary Moraa 1st Accused person. 1. **PW4 Benta Achoka** a Registrar at the Ministry of Lands testified that in 2017 July, the Ministry received a letter from DCI offices requesting for documents in relation to Nrb block 82/4686. They furnished the following documents:- 1. Copy of the transfer from Harambee Co-operative to Jonah Onentia Magare. 2. Copies of green and white card relating to the property. (Transfer and Green Card marked as MF1 9 documents lodged by Harambee Co-operative Sacco) 3. **PW5 No. 232056** Commissioner of Police Geoffrey Chaima DCI Forensic Document Examiner was forwarded the following documents on 15/9/2017 the following documents were; A1: Questioned document (Authority to Transfer Lease Number 10 Nbi Block 82/4686 dated 28.2.2011 (MFI 7). B1-B3: Known signatures of Joshua Magare (MFI 1 & 8). C1-C3: A specimen signatures D1-D3: and handwriting of Joshua Magare (MFI 12a, 12c). E1E4: Specimen handwriting and signatures of Mary Moraa Magare (MFI 12 c). F1-F4: Specimen signatures of Jonah Onentia Magare (MFI 12e) Exhibits memo (MFI 13a) Report (MFI 13b) 1. **PW6 No. 57399** **Corporal David Ndiema** testified that Complainant told them he was the owner of Plot Number 586A/Block 82/4686 in Greenfield estate and he gave them an agreement dated 5/11/2001, he also confirmed that he enjoined his wife Mary Moraa as co- owner. In 2011 the Complainant discovered that the land had been transferred to his son by the name Jonah Onentiah Magare. He gave him a copy of authority letter of 28/2/2011 addressed to Harambee Co-operative Society which he disputed in writing or signing. He prepared exhibits memo of dated 15/9/2017 and forwarded the disputed authority letter for forensic analysis. He collected the known specimen signatures of complainant and the specimen signatures of Accused and it was established that the authority letter was forged. He arrested the Accused persons and charged them. (Specimen signatures was produced as Pexhibit 12a and 12b). **DEFENCE WITNESSES** 1. **DW1 Mary Moraa Magare** testified that she was married to PW1 for 42 years and the land in question was jointly owned by both of them. She stated that the authority to transfer letter dated 28/2/2011 was prepared by PWI and that all of them PWI, the 2nd accused and herself signed the said document on 4/3/2011. The land was offered as a gift to the second accused person after he successfully completed his course in Medicine and started a family. She said that the maisonette the second accused had been constructing on the said land was something that PW1 knew about as the 2nd accused used to stay in their house during the construction visits. She said that they have several cases pending in court where the Complainant contested property and their house on Mugoya South C is also being dealt with at the Family Division of the High Court. 2. **DW2 Dr. Jonah Onentiah Magare** Assistant Director Medical Service testified that PW1 and the 1st accused person are his parents. He said that he was shown document P exhibit 7, dated 28/2/2011 by his father who told him they wished to transfer the disputed property to him. His father signed first then his mother and he also signed on it last. He thanked his parents and the plot was eventually registered in his name. He said that he was directed by the Complainant to go to an Advocate at Harambee Sacco where he signed the transfer of lease (Pexhibit 9). He stated that he did not obtain the transfer by fraud it was a document they all signed together while in their house at South C. 3. **DW3 Emmanuel Karisa Kenga** a Forensic Document Examiner testified that on 27/8/2019 he received a letter dated 27/8/2019, from the firm of Keaton & Keaton Advocates to do some analysis on documents to examine and compare questioned signature on. A dated 28/2/2010 (Pexhibit 7) and B1 & B7 being known signatures. Specimen signatures are C1 & C2. to determined authenticity of the same. B1: Sale agreement. B2: Letter to General Manager Harambee Co-operative Sacco. B3: Approval and Government quarters dated 4.5.2001. B4: Marriage Certificate B5: Certificate of marriage B6: Another Certificate of Marriage B7: Performance Bid Bond approval same C1: Case and specimen signatures of Joshua Magare. After analysis by examining and comparing the questioned signature he got similarities on all the signatures which made he opined that they were of a common handwriting and they were made by same author. He prepared and signed the reports together with a comparison chart which he produced as an exhibit Report 10 is D. **JUDGMENT OF TRIAL COURT** 1. The Trial Court’s Judgment was to the effect that despite evidence of Expert Document Examiners on the impugned Document they could not agree whether the Complainant signed or not and which Expert the Court would rely on or not. 2. The Trial Court could not choose one Document Examiner over the other more-so when the Defense Document Examiner DW3 Emmanuel Karisa Kenga who previously worked at DCI Laboratory was found to have vast experience and in fact trained the Document Examiner Geoffrey Chaima DCI Forensic Document Examiner and worked under him. 3. Secondly, the Trial Court found despite evidence on record, disclosing the offence(s) there were unique circumstances raised during trial that marred the Prosecution’s burden and standard of proof beyond reasonable doubt. PW1 Complainant is/was husband to 1st Accused and they were married for 32 years and had 1 son/stepson; 2nd Accused person who is a medical doctor and the Prosecution presented evidence of conspiracy with his mother and they forged PW1’s signature, the transfer was through and 2nd Accused person obtained a title to the suit property that belonged to PW1 and 1st Accused. 4. In defense they confirm that both Accused persons all signed the relevant letter of transfer including PW1. The Trial Court gave Accused persons the benefit of doubt and acquitted them under Section 215 CPC. **ANALYSIS & DETERMINATION** 1. The Court considered the evidence on Trial Court record and written submissions by Appellant. 2. This Court being the 1st Appeal Court, its duty is as set out in the case of **Okeno vs. Republic [1972] EA 32** as follows:- ***“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 vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. R. (1957) EA. 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 finding and conclusion; 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.”*** 59. In criminal case the burden of proof solely rests with the Prosecution as stated **In the celebrated case of H.L(E)Woolmington vs. DPP [1935] A.C 462 pp. 481.** 3.The standard of proof is proof beyond reasonable doubt. **Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372** **60.** The Evidence Act succinctly provides **Section 107;** the burden of proof is on prosecution. **Section 111 of the Act** the burden of proof at times shifts only when the Accused /Defense has the burden of proving any fact especially within the knowledge of such person is upon him. **61.** **Jabane – v- Olenja[1986] KLR 664, The Court held thus:** **“*More recently, however, this Court has held that it will not lightly differ from the findings of fact of a trial judge who had had the benefit of seeing and hearing all the witnesses and will only interfere with them if they are based on no evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.’’*** 62. .The evidence of PW1 Complainant & husband to 1st Accused as 1st wife and her biological son 2nd Accused and he married 2nd Wife Cecily and has 2 sons explained that he bought in 2007 land at Greenfield Doonholm for 250,000/- through Harambee Sacco. In 2002 he decided to include 1st wife Mary Moraa and he wrote to General Manager Harambee Sacco notifying them of 1st Accused his wife as on board with the said property. 63. In 2016 he went to Harambee Sacco to process the title and he was informed that the said property had a title issued to his stepson Jonah and no one informed him. He took a copy and did a search at Ministry of Lands and confirmed the transfer and registration. He reported the matter to Land Fraud Unit. The document PW1 found that 1st Accused person wrote and indicated that both him and her agreed to transfer the property to 2nd Accused person. He produced original Sale Agreement- Exh- 1 Letter of Acknowledgement from Harambee Sacco for transfer of property to his name Exh- 2 and letter he wrote to enjoin his wife 1st Accused to the property Exh -3. 64. The letter that 1st Accused Mary Moraa wrote to Harambee Sacco and purported that they were unable to pay arrears -Exh -6. Letter dated 28/2/2011 written to General Manager Harambee Sacco with copies of identity cards of PW1, 1st Accused and 2nd Accused attached to the letter purportedly signed by himself, and 1st & 2nd Accused persons. Exh-7. PW1 wrote to CEO Harambee Sacco asking for the file Letter -Exh -8. The Transfer of Lease form dated 15/9/2011 -Exh -9 he did not develop the land and it was not fenced.The land is a Commercial building rented out without his knowledge. 65. In cross -examination PW1 conceded that he introduced 1st Accused person as Co- owner of the said property. He did not execute Exh -7and was surprised why Document Examiner DW3 said he signed.PW1 admitted that he and 1st Accused had cases about property and she did not contribute any money to purchase of properties. The property was empty when he bought it. The building on it is not his. 66. The evidence by PW2 Advocate who confirmed drafting of Transfer documents to Nrb /Block82/8646 between Harambee Sacco and Jonah Onnentiah Magare 2nd Accused. PW3 who gave history of the matter, the property was owned by Josephat Ogutu transferred /sold to PW1 whose spouse Mary Moraa Magare wrote letter to Harambee Society to transfer to Jonah 2nd Accused.PW4 confirmed the transfer from records at Lands Office. PW5 confirmed the document was signed by 1st & 2nd Accused persons but not the Complainant. PW6 the I/O who received report obtained documents took them for examination and had witnesses testify in Court. 67. Upto this point, the Prosecution proved its case beyond reasonable doubt on the preferred charges of conspiracy, forgery and uttering a false document. 68. The Defense Case was as follows; DW1 wife of PW1 a retired Civil servant was married to PW1 for42 years. She contributed morally and financially to purchase of the Plot. In 2001 he introduced her as Co -owner of property. PW1 wrote the letter. Later the Letter of 28/2/2011; PW1 wrote a letter and they all signed he gave her to take to the Harambee Sacco.PW1 & 1st Accused offered the Property as gift to 2nd Accused who had successfully completed medical school and was posted to Nakuru as Medical Officer. 69. The 1st Accused attributed the breakdown of the marriage due to PW1 her husband’s extramarital affairs. He accused her of the loss of his brother and later reconciled through efforts of 2nd Accused their son. They separated since 2015 and have disputes in Court on contested properties and also matrimonial home Mugoya South C. 2nd Accused corroborated his mother’s testimony and DW3 Document Examiner confirmed that the transfer document was signed by PW1. 70. This Court cannot competently consider the impugned judgment on expert evidence in a bid to see if the same is sufficiently comprehensive and coherent with respect to the documents that were produced and the analysis of the same by each Document Examiner. The document(s) presented with specimen handwriting and/or signatures examination and findings in reports filed in the Trial Court were not availed to this Court yet they were exhibits in the Trial Court. Court and for this Court to reach an informed and therefore just and fair determination of this appeal. Therefore, the issue/question on which report is/was correct and/or reliable with regard to circumstances cannot be conclusively determined in the absence of exhibits and reports. 71. Whereas the Prosecution presented cogent and tangible evidence to prove conspiracy and forgery and uttering a false document; the defense raised/cast doubt by adducing evidence as follows; it is not contested that this criminal case involved family members of 1 family. PW1 the Complainant and PW5 Document Examiner indicate the Complainant did not sign the document of transfer of property to his stepson 2nd Accused. 72. The Defense, mother & son confirm PW1 husband and stepfather respectively signed the impugned document of transfer of property. The Document Examiner for the Defense found the specimen signatures signed by all three parties; Step -Father of 2nd Accused PW1 during trial, 1st Accused; mother of 2nd Accused and 2nd Accused stepson of PW1 & son of 1st Accused. it is one’s word against the other and there conflicting Expert Reports. 73. 1st Accused, 1st wife of the Complainant alleged that PW1 had another wife and they were embroiled in division of marital properties in the Family Division. The doubt is created by the Defense and paints the case as not purely criminal offence(s) committed but a family feud, bad blood, vendetta and possibly the Criminal Justice process being used to settle scores in a family dispute between PW1 & 1st Accused. 74. The criminal offences of conspiracy, forgery and uttering false document require ***mens rea*** mental intention in this case deceit and/or dishonesty. ***Mens rea*** is defined by Black’s Law Dictionary (9th Edition) to mean “guilty mind”. “The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime; criminal intent [deceit] or recklessness.” ***Actus reus*** is a Latin word defined in the Black’s Law Dictionary (9th Edition) to mean “guilty act”. “It is the wrongful deed that comprises the physical components of a crime and that generally must be coupled with ***mens rea*** to establish criminal liability.” 75. The ***actus reus*** act of fraud cannot be proved by evidence on record as it is not clear from the evidence on record whether PW1 signed the letter of transfer and later when embroiled in matrimonial dispute reneged from the transfer or he actually did not sign but out of matrimonial disharmony 1st Accused decided to fix PW1 by transferring the suit property to her only biological son. The Document Examiner PW5 & DW3 both Experts and Professional examined similar documents but reached divergent conclusions. Even going by the case of **Stephen Kinini Wang'ondu v The Ark Limited supra** the totality of the evidence on record must include evaluation of the 2 contradicting Document Examiners Reports. The actual Reports were not presented in this Courtbut each report casts doubt on the other and on the Prosecution case as a whole and coupled with strong family disagreement the Prosecution case is marred by doubt arising from Defense case that insinuates family wrangle at play and not purely a criminal case. The benefit if doubt is always to the Accused persons. I agree with Trial Court’s findings as the Court that heard direct evidence and observed the witnesses and upon evaluation of the evidence found there was sufficient doubt due to the unique circumstances of the case as to who of the 2 PW1 & 1st Accused man and wife is telling the truth and which Document -Examiner Report should carry the day/be relied on? **80. DISPOSITION** 1. **The Appeal is dismissed** 2. **Trial Court judgment upheld** **DELIVERED SIGNED & DATED IN OPEN COURT CRIMINAL DIVISION NAIROBI ON 28/5/2026 PHYSICALLY/VIRTUALLY** **M.W. MUIGAI** **JUDGE**