https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/658

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT BUNGOMA** **CRIMINAL CASE NO. E231 OF 2025** **REPUBLIC…………………………………………………………………………………...DPP** **VERSUS** **MOSES CHETITI MEMBA……………………………………………..ACCUSED PERSON** **JUDGMENT** 1. Before this court is Moses Chetiti Memba (“the Accused Person”). The Accused Person is accused of committing three criminal offences. 2. In count 1, the Accused Person faces a charge of conspiracy to defraud contrary to section 317 of the Penal Code, the particulars being: *On or before 31st March 2011 at Bungoma Township within Bungoma County, the Accused Person jointly with others not before court conspired to defraud the estate of the late Memba Chetiti of their land namely E.Bukusu/E.Sang’alo/93 of approximately 9.4 acres* 1. In count 2, the Accused Person faces a charge of procuring registration of certificate of ownership of land contrary to section 157 (1)(c) of the Land Registration Act No. 3 of 2012 whose particulars are: *On or before 31st March 2011 at Lands Registrar’s office in Bungoma township within Bungoma South Sub-County in Bungoma County within the Republic of Kenya, the Accused Person jointly with others not before court fraudulently procured registration of LR E.Bukusu/E.Sang’alo/93 of approximately 9.4 acres into his name the property of the estate of the late Memba Chetiti Cherono* 1. The third count facing the Accused Person is the charge of intermeddling with the property of the deceased person contrary to section 45(1)(2)(a) of the Law of Succession Act the particulars being: *On diverse dates between 31st March 2011 and 04th April 2011 at Khaweli village in Sang’alo Sub-Location in Bungoma South sub-county within Bungoma County the Accused Person jointly with others not before court , without colour of right, authority or by way of grant of representation intermeddled with the property of Memba Chetiti Cherono decased who died in (sic) 27/10/1983 by illegally obtaining title deed to the land and attempting to forcibly take possession of L.R E.Bukusu/E.Sang’alo/93 of approximately 9.4 acres* 1. The Accused Person maintained his innocence by denying the charges above, thereby inviting the prosecution to prove their case against him beyond reasonable doubt. 2. The evidence led by the prosecution and the defence before this court is summarized below. **EVIDENCE** **Prosecution’s Case** 1. **PW1 Brown Mapesa Memba** testified that the Accused Person was well known to him since he was his neighbour’s son. He added that he is Memba Chetiti’s (deceased) son. He also stated that the deceased left behind land parcel number E.Bukusu/E.Sang’alo/93 (“the suit property”), and that the deceased handed over to him his identity card, land rates payment receipts, and the suit property’s title deed before his death, which he handed over to their family. 2. He further stated that his family tasked him with commencing the deceased’s estate’s succession proceedings only to learn that the Accused Person had fraudulently caused the registration of the suit property in his name, which prompted him to report this case to the police. 3. **PW2 Robin Barasa Makokha** is the Chief of East Bukusu Location. He recalled that on 13th March 2011, the assistant chief (PW3) took to his office an application for correction of names to sign. He added that the said form showed that the name Chetiti Memba was to change to Moses Chetiti Memba. He signed the form. 4. He was later called by PW5 sometime in February 2025 for questioning over the application for correction of name above. He added that the Accused Person was the deceased’s grandson. 5. He stated in cross-examination that he signed the application for name correction form since the area assistant chief (PW3) had already signed the said form. 6. **PW3 Godfrey Simiyu Okumu** is the assistant chief of East Sang’alo sub-location. His testimony was that the Accused Person was a person well known to him since he was a resident of his sub-location. 7. He recalled that the Accused Person visited his office on 31st March 2011 with an application for name correction form from the lands officer requiring him to confirm whether the Accused Person was called Moses Chetiti Memba. He signed the said form. He later came to learn that the Accused Person had misled him about his name. 8. He added in cross-examination that the Accused Person misled him about his name by working in cahoots with his father. 9. **PW4 Ibrahim Mang’eni Memba** is PW1’s brother. His testimony was largely a rendition of PW1’s testimony summarized above. 10. **PW5 No. 85XXX PC Sebastian Messopirr** of DCI Nairobi Central investigated this case while stationed at DCI Bungoma South. 11. He testified that he was assigned to investigate this case on 29th January 2025 after it had been reported at Bungoma Police Station vide OB. No. 49/29/01/2025 by PW1 and PW4. He recorded witness statements and obtained the suit property’s title deed from PW1 and PW4. 12. He also obtained the suit property’s green card, mutation form, land board’s consent form, land transfer form, the suit property’s certificate of search, and an application for correction of names form from PW6. 13. He produced a copy of the deceased’s identity card, a copy of the deceased’s certificate of date, and a copy of the suit property’s title deed as an exhibit. 14. In cross-examination, he stated that the Accused Person signed the forms for correction of names since the suit property’s title deed was issued in his name. He added that the Accused Person transferred the deceased’s land to his name by pretending to be the deceased. 15. **PW6 Allan Babu** is Bungoma County’s Land Registrar. His testimony was that the suit property’s green card showed that the Accused Person caused a correction of names entry to be made in the suit property’s green card on 04th April 2011, leading to the issuance of the suit property’s title deed on the same date. 16. He produced a certified copy of the suit property’s green card, a land adjudication record, a search dated 13th March 2025, an application for correction of names and declaration of names, an application for consent, and a consent dated 07th December 2010 as exhibits. 17. He reiterated that the suit property’s bona fide owner was Memba Jetiti since the Accused Person misled the registrar about the change of names before obtaining the suit property’s title deed. **Defence Case** 1. This court placed the Accused Person on his defence after the close of the prosecution’s case. The Accused Person elected to give sworn testimony. He called one witness in his defence 2. The Accused Person testified that he took possession of the suit property since it belonged to his grandfather (deceased). He also testified that he later realized that there were several buyers on the suit property. He engaged his family members about the issue when they resolved to visit the land office for advice. They visited the land office when the land office secretaries gave them forms to be signed by their area chief and assistant chief. He added that their visit to the land’s office was informed by a family meeting. 3. He denied having an intention to steal the deceased’s land as evidenced by the family meeting minutes dated 05th December 2010 (Dexh.1). He attributed the actions he took to the advice he received from the land office. 4. **DW2 Fred Barasa Memba** is the Accused Person’s younger brother. His testimony was that the Accused Person did not change the suit property’s ownership details since it was mzee Cherono who initiated the suit property’s change of ownership. 5. He added that it was the Accused Person who went to the land office to process the suit property’s number, given that their family was following up on their father’s land. He also stated that the land office officials guided them on how to go about the suit property’s change of ownership and later issued them with a title deed. **ANALYSIS AND DETERMINATION** 1. This court has given due regard to the evidence on record. It is this court’s humble view that the only issue for determination is whether the prosecution proved its case against the Accused Person beyond reasonable doubt. 2. The Accused Person faces a charge of conspiracy to defraud in count 1. Section 317 of the Penal Code defines the offence of conspiracy to defraud in the following terms: *“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 misdemeanour and is liable to imprisonment for three years.”* 1. The Black’s Law Dictionary 9th Edition at page 351 defines conspiracy as: *“An agreement by two or more persons to commit an unlawful act coupled with an intent to achieve the agreement’s motive, and (in most states), action or conduct that furthers the agreement; a combination for an unlawful purpose.”* 1. The Court of Appeal in **Kisorio alias George Jack Tobias v Republic (Criminal Appeal 109 of 2020) [2023] KECA 335 (KLR)** stated thus on what constitutes the offence of conspiracy:- *In the case Christopher Wafula Makokha v Republic [2014] eKLR the court had this to say on what constitutes the offence of conspiracy.* *“In Archibold: Writing on Criminal Pleadings, Evidence and Practice (supra), the learned writers observe at pages 2589 and 2590 that:* *“The offence of conspiracy cannot exist without the agreement, consent or combination of two or more persons so long as a design rests in intention only, it is not indictable; there must be agreement. Proof of the existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them.”(Emphasis added)* 1. The common thread running through the authorities above is that the first hurdle for the prosecution to overcome in a conspiracy to defraud case is proving the existence of an agreement between two or more individuals to commit the unlawful act of defrauding another person. Therefore, the mere fact that two or more people pursued an unlawful act does not mean that there was a conspiracy to defraud. Conspiracy to defraud will only be held to have been committed by two or more people who pursued the unlawful act if the two people had a common intention to pursue an unlawful purpose. This position can be gleaned from the Halsbury’s Laws of England Vol. 25 Criminal Law at para. 73: *‘It is not enough that two or more persons pursued the same unlawful object at the same place or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other.’ (Emphasis added)* 1. Section 21 of the Penal Code defines common intention as follows:- *‘When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”* 1. The foregoing begs the question whether the evidence adduced before this court by the prosecution proved that the Accused Person jointly with others not before court acted together with an intention to defraud the deceased’s estate of the suit property. 2. None of the prosecution witnesses, save for PW3 testified that the Accused Person worked in cahoots with other people to defraud the deceased’s estate of the suit property. PW3, on his part, stated that the Accused Person misled him about his name by working in cahoots with his father. However, he did not state the details of the manner in which the Accused Person’s father worked in cahoots with the Accused Person to mislead him on the Accused Person’s name. PW3 needed to state explicitly if the Accused Person’s father misled him that the Accused Person was the bearer of the names in the form the Accused Person presented to him for signing. 3. In the absence of the finer details on how the Accused Person’s father worked in cahoots with the Accused Person to mislead PW3, this court cannot infer a common intention between the Accused Person and his father or any other person to defraud the deceased’s estate of the suit property. 4. A reading of the family gathering minutes dated 05th December 2010 (Dexh.1) shows that the Accused Person’s family tasked him with the duty of leading the succession process of inheriting the deceased’s land. It is evident from those minutes that the family did not direct the Accused Person to commence the said succession proceedings in an illegal manner with an intention to defraud the deceased’s estate of the suit property. 5. The evidence on record shows that after the Accused Person’s family gave him the duty of spearheading the process of inheriting the deceased’s land, he proceeded to execute that duty in a manner he deemed fit without the involvement of the family members who had tasked him to spearhead the process of inheriting the suit property. This means that if the Accused Person committed a crime in the course of discharging the duty bestowed on him by his family in respect of the suit property, that was the Accused Person’s own making. 6. Further, whereas the defence blamed land officials for advising the Accused Person to act in the manner he acted in acquisition of the suit property’s title deed, the evidence on record is barely adequate for this court to determine whether the Accused Person and the land officials formed a common intention to defraud the deceased’s family of the suit property or they just sought to pursue an unlawful act together. 7. The situation was made even more worse by the investigating officer (PW5) who did not even attempt to explain before this court how the Accused Person conspired with other people to defraud the deceased’s estate of the suit property. He left this court to infer conspiracy from the evidence on record. Unfortunately, the evidence on record is barely adequate for this court to infer conspiracy between the Accused Person and other people. 8. The evidence on record was largely on indictment on PW2 and PW3 for failing to conduct due diligence before signing the correction of names form presented to them by the Accused Person. 9. It is against this backdrop that his court finds and holds that the prosecution failed to prove beyond reasonable doubt that the Accused Person conspired with other people not before court to defraud the deceased’s estate of the suit property. 10. Turning to count 2, this court notes that the charge was expressed to be brought under section 157(1)(c) of the Land Registration Act. This court’s reading of the Land Registration Act revealed that the said Act does not have section 157 cited in count 2’s statement of offence. 11. It would appear that the prosecution intended to charge the Accused Person under section 157(1)(c) of the Land Act, which creates this offence. The offence of fraudulently procuring registration of a Certificate of Title is also set out in section 103 (1) (c) of the Land Registration Act as well as section 320 of the Penal Code. This shows that the Accused Person was supposed to be charged in count 2 under section 157(1)(c) of the Land Act, or section 103 (1) (c) of the Land Registration Act, or section 320 of the Penal Code. It thus follows that the Accused was charged in count 2 for a known offence in law but under a non-existent section of the law. 12. The foregoing begs the question of whether or not the charge in count 2 was fatally defective for citing a non-existent provision of the law. In **Francis Zuriels Moturi v Republic [2022] KEHC 933 (KLR),** the Court of Appeal defined a defective charge sheet as follows: *“‘A defective charge is one lacking sufficient detail to enable the accused to know the case against them. Such details include the wrongful act alleged, the date and time of the act, the complainant, and the law violated. The court held that defects in a charge must be manifest on the record and not derived from abstract interpretations, logic, or grammatical analysis. Courts are to adopt a realistic and pragmatic approach, not an abstract one.”* 1. The authority above shows that a charge sheet will be defective if it lacks sufficient detail to enable the Accused Person to know the case against them. 2. On the other hand, a charge sheet is deemed to be proper and sufficient per section 134 of the Criminal Procedure Code if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. 3. The charge in count 2 contains a statement of the offence and the particulars of the offence. It would appear on the face of it that the charge in count 2 meets the test of a proper and sufficient charge in section 134 of the Criminal Procedure Code, save for the anomaly in the section of the law cited therein. 4. The next question is whether the anomaly of citing the wrong section of the law rendered the charge defective for lacking sufficient detail to enable the Accused Person to know the case against them. This question was answered by Ndung’u, J in **Kamau v Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 (KLR)** as follows: *“As to whether the charge sheet was defective, it has been held that a court must consider the defects in a charge from a two-step test. First is to determine whether the charge is defective and if so, whether such defect can be remedied. This was stated by the Court of Appeal in Peter Ngure Mwangi v Republic [2014]eKLR thus:-* *“ On the issue of a defective charge sheet, there are two limbs to it. The first one deals with the issue as to whether the charge sheet is indeed defective, whereas the second one deals with the issue as to whether even if a charge sheet is defective, that defect is curable or not.”* *The Court of Appeal gave guidance on determining whether a defect in a charge is fatal in Benard Ombuna v Republic [2019] eKLR as follows:-* *“ In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.”* *In view of provision of Section 382 of CPC, though the charge had an error in that a wrong section was quoted in the charge sheet the evidence before trial court supported the offence under the section with which the appellant was convicted. Throughout the proceedings, it was clear to the Appellant that he faced a charge of defiling a minor who was in the bracket of Section 8(3) of the Sexual Offences Act and no prejudice was occasioned to him by the defect complained of…It is this court’s finding that the fact that the wrong section of the law was cited did not occasion a failure of justice to the Appellant….”(Emphasis added)* 1. This court’s understanding of the authority above is that the mere fact that a charge has an error in the section of the law cited does not render the charge defective if it was clear to the Accused Person from the statement of the offence the charge he was facing. 2. The statement of the offence in count 2 was unambiguous that the Accused Person was facing a charge of fraudulently procuring the registration of a certificate of ownership of land. That shows the Accused Person was sufficiently informed of and aware of the charge against him. 3. In the circumstances, this court finds that the error in the section of the law cited in count 2 did not prejudice the Accused Person in any way; hence, count 2 cannot be held fatally defective on account of failure to cite the correct section of the law. 4. Turning to the particulars of the offence in count 2, the particulars of the charge are: *On or before 31st March 2011 at Lands Registrar’s office in Bungoma township within Bungoma South Sub-County in Bungoma County within the Republic of Kenya, the Accused Person jointly with others not before court fraudulently procured registration of LR E.Bukusu/E.Sang’alo/93 of approximately 9.4 acres into his name the property of the estate of the late Memba Chetiti Cherono(Emphasis added)* 1. This court has already made a finding in count 1 that there is nothing on record to prove beyond reasonable that the Accused Person jointly acted with other people in committing the offences herein. Therefore, the evidence on record does not support the particulars of the offence in count 2. 2. It should also be noted that the particulars of the offence in count 2 do not set out the specific fraudulent acts the Accused Person committed in fraudulently procuring the suit property’s title deed. It is trite law that where a charge is based on fraudulent acts, the specific fraudulent acts the Accused Person is alleged to have committed must be set out in the particulars of the offence. 3. In this case, the Accused Person was alleged to have forged an application for correction of names form. This act of forging an application for correction of names forms needed to be set out clearly in the particulars of the offence for the Accused Person to adequately prepare for his defence. 4. A charge lacking sufficient details to enable an Accused Person to prepare their defence like in the instant case is a fatally defective charge, as was well explained in **Titus alias Ndegwa Titus v Republic (Criminal Appeal E009 of 2022) [2024] KEHC 16732 (KLR),** where the court stated thus:- *“In determining whether a charge sheet is defective or not, the Court of Appeal in Sigilani –v- Republic (2004) 2 KLR, 480 held as follows:* *“The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to specific charge that he can understand. It will also enable the accused to prepare his defence”.* *It is trite that an accused person is entitled not only to be charged with an offence recognized under the law but also to be furnished with all the necessary details of the offence, to enable him appreciate the nature of the charge(s) against him and to enable him to prepare an appropriate defence. It follows, therefore, that a charge sheet that was deficient in substance would prejudice an accused person’s right to a fair trial as provided for in Article 50 (2) (b) of the Constitution.”(Emphasis added)* 1. The foregoing inclines this court to find and hold that count 2 as framed is fatally defective. 2. In count 3, the Accused Person was charged with the offence of intermeddling with the property of a deceased person contrary to section 45(1) of the Law of Succession Act. 3. The offence of intermeddling is deemed to have been committed where the prosecution adduces evidence to prove beyond reasonable doubt that the Accused Person took possession of or interfered with the deceased’s property in any manner whatsoever without authority. 4. The unimpeached evidence on record is that the Accused Person caused the suit property, which is owned by the deceased, to be registered in his own name before obtaining a Grant of Letters of Administration intestate with respect to the deceased’s estate. 5. It is only the deceased’s estate’s Grant of Letters of Administration Intestate that would have enabled the Accused Person to lawfully deal in any manner whatsoever with the suit property. 6. In the absence of the deceased’s estate’s Grant of Letters of Administration permitting the Accused Person to deal with the suit property in the manner he did, this court finds no hesitation in returning a finding that the prosecution proved beyond reasonable doubt that the Accused Person intermeddled with the suit property contrary to section 45(1)(2)(a) of the Law of Succession Act. **Accused Person’s Defence** 1. This court has considered the Accused Person’s defence in respect to count 3, the same is dismissed for being a mere denial. **DETERMINATION** 1. The upshot of the foregoing is that the Accused Person is: 2. *Acquitted under section 215 of the Criminal Procedure Code for the offence of conspiracy to defraud contrary to section 317 of the Penal Code* 3. *Acquitted under section 215 of the Criminal Procedure Code for the offence of procuring registration of certificate of ownership of land contrary to section 157 (1)(c) of the Land Act* 4. *Convicted under section 215 of the Criminal Procedure Code of the offence of intermeddling contrary to section 45(1)(2)(a) of the Law of Succession Act.* 5. Judgment accordingly. **Judgment read, signed, and delivered in open Court at Bungoma this 29th day of June 2026** **T. O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Ms. Achieng and Ms. Mulwa for ODPP Accused Person C/A: Mr. Rioba