https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/499

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT CHUKA** **CRIMINAL CASE NO. E558 OF 2025** **REPUBLIC…………………….……………………………………………PROSECUTOR** **VERSUS** **MARTIN MIRITI…………..……………….…….…………………………ACCUSED** RULING 1. The accused person herein faces the charge of obtaining money by false pretences contrary to Section 313 of the Penal Code. The particulars of the offence were that on 13/02/2025 at Chogoria Town, Chuka North Sub-County within Tharaka Nithi with intent to defraud KENSON MUGAMBI 30 bags of 50kg sugar and 80 bags of 25 kg rice at Kshs.381,000/- under the pretence that he was in a position to pay for the goods. 2. The accused person was arraigned on arraigned on 1/09/2025 and pleaded not guilty. A plea of no guilt and the prosecution called a total of two (2) witnesses after which it closed its case. 3. The Court notes neither party filed submissions and the Court proceeded to write its Ruling.. **PROSECUTION’S CASE** **PW1 testified that he is a business man and director at Gambi Stores and confirmed a business relationship with the accused and that on 13/02/2025, the accused was issued with an invoice for the goods he took and did not state when he intended to pay** **In cross-examination, he stated that he did not know that the accused at the time was employed but that an employed person can carry out business and that he would send his driver to deliver the goods to the accused’s store** PW2 No239021 PC Olive Mungu stated that she was assigned the case and she recorded the statement of the complainant and on 29/08/2025 they were able to arrest the accused at Igoji market and produced the invoice dated 13/02/2025. In cross-examination, she confirmed that the accused was not found with the goods at the time of arrest and indicated that the goods were not delivered to him but rather that he picked the goods form the store. **Issue for determination** **Whether the prosecution has proved its case according to the stipulated standard in law** The Penal Code defines “false pretence” under Section 312 of the Penal Code to be:- **“Any representation made by words, writing or conduct, of a matter of fact, 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 a false pretence.”**(emphasis court). Section 313 of the Penal Code which provides that:- “**Any person who by 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 misdemeanor and is liable to imprisonment for three years.”** As to the ingredients of the offence, this Court relies on the determination in the case of **Gerald Ndoho Munjuga vs Republic [2016]eKLR**where Mativo J cited the case of **Dr Edwin U. Onwudiwe vs Federal Republic of Nigeria** where it was held that for an offence of false pretence to be proved, the prosecution had to demonstrate that there was pretence, the pretence emanated from the accused person, that it was false, that the accused person knew it was false or did not believe in its truth, that there was an intention to defraud, that the thing was something that was capable of being stolen and that the accused person induced the owner to transfer his whole interest in the property. From the above definition, it is evident that false pretences consist of the following: i. A representation of fact by word, writing or conduct; ii. The representation must be past or present; iii. The representation must be false; and iv. The person making the representation should have made it knowing it to be false or did not believe it to be true. Though money is obviously something that is capable of being stolen, it is not the receipt of money that constitutes the offence. What establishes the offence is the taking of money or anything capable of being stolen with an intention to defraud. So what demonstrates intention to defraud? My take is that intention to defraud is found in the alleged false pretence if proved. The offence of obtaining by false pretence means knowingly obtaining another person's property by means of a misrepresentation of fact with intent to defraud. For the offence of obtaining by false pretences to be committed, the prosecution must prove that the accused had an intention to defraud and the thing is capable of being stolen. An inducement on the part of an accused to make his victim part with a thing capable of being stolen or to make his victim deliver a thing capable of being stolen will expose the accused to imprisonment for the offence. For a representation to be false, it must be of a past or present fact. To this end, Court places reliance on the determination in **Joseph Wanyonyi Wafukho V Republic, Bungoma CR.A No. 200 of 2021 [2014] eKLR** .Court further relies on the case of ***Mathlida Akinyi Oware V Republic, [1989] eKLR*** where it cited with approval the holding of *Devlin, J* in the case of ***R. V. Dent, [1975] 2 All E.R. 806*** and held that to constitute a false pretence, the false statement must be of an existing fact. The court went further to adopt the sentiments of *Devlin J* in the above case wherein he stated as follows at page 808: ***“... a long course of authorities in criminal cases has laid down that statement of intention about future conduct, whether or not it be a statement of existing fact, is not such a statement as will amount to a false pretence in criminal law…”*** The court also agrees with the holding of *Law, J.A.* in the case of ***Abdallah V Republic, [1970] E.A. 657*** to the effect that: ***“a representation as to a future event cannot support a charge of obtaining money by false pretences.”*** ANALYSIS The Court notes that the complainant admitted that he worked in the past with the Accused who was a customer and that the agreement was that he would pay for the goods. The Court upon perusal of the proceedings notes that the element of the representation being made in the past or present fails as the goods were to be paid for after the goods were delivered. This was the testimony of the complainant who contradicted that of the investigating officer as to how the accused acquired possession of the sugar and rice bags. To this Court, based on the above, this dispute is one of a civil nature. To this end the court relies on the determination in **Peter Macharia Ruchachu v Director of Public Prosecution & another [2014] eKLR**, the criminal case against the applicant stemmed from a dispute between him and the complainant in the criminal trial over performance of a contract. One of the issues for determination was whether a dispute over performance of a contract could form a basis to prosecute one of the parties to the dispute. Ngaah J held as follows: “Upholding criminal justice through a criminal prosecution as opposed to misusing the prosecution as an instrument to bring pressure to bear upon a party to settle a civil dispute is a question that has engaged the minds of learned judges in our courts on numerous occasions. Apparently, whenever such a question has arisen in cases before them, the learned judges have been consistent and are in agreement in their decisions that the institution of a criminal case for a purpose other than upholding the criminal justice is an abuse of the criminal process and it is upon the courts, whenever such scenario emerges, to rise to the occasion and halt such criminal proceedings... When I consider totality of the circumstances comprising the background of the dispute between the complainant and the applicant, the manner of the applicant’s arrest and finally the charge which was preferred against him, I am persuaded that the prosecution of the applicant was influenced by ulterior motives; in other words, the criminal case against him was for a purpose other than upholding the criminal law. It is meant to bring pressure to bear upon the applicant to settle a civil dispute. Such a trial cannot be allowed to proceed." In **Republic v Director of Public Prosecutions & Chief Magistrate’s Court, Milimani [2017] eKLR**, it was alleged that the issues in the criminal case were purely civil in nature, and it was evident that the complainant in the criminal case intended to settle a civil claim using Criminal avenue. The court found that the dispute between the parties therein rested on the breach of a sale agreement between the applicant and the complainant in the criminal case. Odunga J (as he then was) observed that the dispute between the applicant therein and the complainant in the criminal case arose from the breach of the terms of the agreement between the two parties and was thus purely a civil matter. When a remedy is elsewhere provided and available to a person to enforce an order of a civil court in his favour, there is no valid reason why he should be permitted to invoke the assistance of the criminal law for the purpose of enforcement. In the case of **Andrew Mcghie v Catherine Wembridge Baumgarten & 5 others [2016] eKLR**, the Judge observed that: “It is my view that where the dispute is purely civil in nature, creating an offence out of a civil arrangement is tantamount to an abuse of the legal process. The 1st respondent’s first action was to file a civil suit. The suit was to be fast tracked. By the end of the day the court will be called upon to quantify what was done under the terms of the contract against what was paid. That connotes a civil dispute. It cannot be an intention to obtain money by false pretence." The dispute herein is clearly of a civil nature and any remedy for wrongdoing on the part of the accused person lies in a civil court. In as much as the court may be sympathetic to the complainant for what might have befallen him, this is not his place to complain. In view of the foregoing, I find that the prosecution has failed to establish a prima facie case to warrant the accused person to be placed on his defence. Consequently, I hold that the accused person has no case to answer and I proceed to acquit him accordingly under Section 210 of the Criminal Procedure Code. Delivered, dated and signed at Chuka by Hon. Tracy Wachira (RM) this 13th day of May 2026. In the presence of Prosecutor-Malinda Accused in person Eric Mwenda-Court Assistant