[2023] KEHC 26867 (KLR)

Republic v Nyakundi (Criminal Appeal E096 of 2022) [2023] KEHC 26867 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26867 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal E096 of 2022

AC Mrima, J

December 14, 2023

Between

Republic

Appellant

and

Bivon Nyakundi

Respondent

(Appeal by the State arising from the judgment and acquittal by Hon. V. Karanja (Principal Magistrate) in Kitale Chief Magistrate’s Court Criminal Case No. 1645 of 2021 delivered on 4th November, 2021)

Judgment

Introduction and Background: 1. This is an appeal by the State against an acquittal by a trial Court. Bivon Nyakundi, the Respondent herein, was charged with the offence of obtaining money by false pretence before the Chief Magistrates Court at Kitale in Criminal Case No. E1645 of 2021.

2. The particulars of the offence were as follows: -On the 25th day of April, 2021 at Bidii Ward in Kwanza Sub-County within Trans Nzoia County with intent to defraud, obtained from GEORGE MORARA Kshs. 145,000/= by false pretending to be the seller of Mavuno fertilizer and that will give him 50 bags of Mavuno fertilizers.

3. The Respondent denied the charge and was tried. He was subsequently found to have a case to answer. He gave a sworn defence and called a witness.

4. In a judgment rendered on 4th November, 2021, the Respondent was acquitted of the offence for the reason that the charge was not proved as required in law.

5. It was the acquittal that prompted the instant appeal.

6. The appeal was vehemently opposed.

The Appeal: 7. In a Petition of Appeal dated 15th November, 2021, the Appellant preferred four grounds of appeal as follows: -1. That the trial magistrate erred in law and in fact in dismissing the Appellant’s case whereas the Appellant did prove his case on the required standard.2. That the trial magistrate erred in law and in fact by failing to find that the evidence adduced by the prosecution witnesses supported the charge.3. That the trial magistrate erred in law and in fact by not finding that despite the respondent admitting to have taken Kshs.145,000, he did not prove that the complainant received the 50 bags of fertilizer.4. That the trial magistrate erred in law and in fact in applying wrong principles while determining the evidence adduced in support of the prosecution case and therefore reached on the wrong conclusion in assessment of the evidence provided in total disregard to the evidence act.

8. By the directions of this Court, the appeal was heard by way of written submissions. Both parties duly complied. Parties referred to several decisions in support of their rival positions.

Analysis: 9. This being the Appellant's first appeal, the role of this Court, as the first appellate Court, has been discussed in various decisions. In Okemo vs. R (1977) EALR 32 and in Mark Oiruri Mose vs. R (2013)eKLR, the Court of Appeal restated the role of this Court as being duty-bound as to revisit the evidence tendered before the trial Court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial Court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and that this Court ought to give allowance for that.

10. To enable this Court, discharge the said duty, a brief look at the evidence becomes eminent.

11. The prosecution called three witnesses in a bid to prove its case. The complainant testified as PW1. He was one George Morara. He was a Land Surveyor working for gain within Bungoma County. He testified that on 25th March 2021, he went to the National Cereals and Produce Board offices in Kitale and bought 90 bags of fertilizer. He also met the Respondent herein who was his longtime friend. The Respondent informed him that he was also selling some fertilizer and that he had stored the bags in a premise he jointly owned with on Simon Muiruri (not a witness). PW1 agreed to buy 50 bags of the Respondent’s fertilizer. PW1 paid the Respondent Kshs. 140,000/=.

12. It was PW1’s testimony that he collected the 50 bags of fertilizer from the premises he had been told by the Respondent and after a couple of days he returned thereat to collect 6 more bags. That, as he paid for the 6 bags, Simon Muiruri who was at the store, told him that he had not paid for the 50 bags which he had collected previously and demanded payment.

13. As payment was not forthcoming, Simon Muiruri reported the matter to the police. The Respondent was summoned and he explained that indeed he had his over 100 bags of fertilizer in the store he co-owned with Simon Muiruri and that any issue arising from the ownership of the fertilizer should be sorted out between the two and to the exclusion of PW1. The Respondent’s plea was not heeded to. PW1 then entered into an agreement with Simon Muiruri for payment of the 50 bags; which payment PW1 made a few days later.

14. The Respondent was then charged with obtaining money from PW1 by false pretence.

15. PW2 was one Evans Ondeyo. He worked at the National Cereals and Produce Board offices in Kitale. He confirmed that PW1 truly bought fertilizer from their shop on 25th March 2021 and that he also witnessed PW1 paying Kshs. 140,000/= to the Respondent.

16. PW3 was No. 257147 PC Khalid Odeh attached at the Kapkoi Police Station. He was the investigating officer. On receiving a complaint by PW1, he summoned the Respondent who admitted receiving Kshs. 140,000/= from PW1 and refused to refund it. He recorded statements from witnesses and was aware PW1 and Simon Muiruri signed a settlement agreement. He charged the Respondent.

17. When placed on his defence, the Respondent gave a sworn testimony and called a witness. He admitted receipt of Kshs. 140,000/= from PW1 and stated that he organized with Simon Muiruri and PW1 collected the 50 bags from their joint store. He could not understand why PW1 had to pay a second time for the same consignment. The Respondent produced receipts of having purchased 95 bags of fertilizers from the National Cereals and Produce Board offices in Kitale. That was the fertilizer he stored in the premises he owned with Simon Muiruri and released 50 bags to PW1.

18. The Respondent was emphatic that he supplied what he promised PW1 and that the charge was false. DW2, one Mokua George Bonyiego confirmed that PW1 collected the fertilizer from the store co-owned by Simon Muiruri and the Respondent.

19. That was the evidence which the trial Court evaluated and found out that the charge was not proved. Further, the trial Court found that the unexplained failure of Simon Muiruri to testify in the case was fatal since the matter centered on his involvement. The Court acquitted the Respondent under Section 215 of the Criminal Procedure Code.

20. As stated above, the acquittal was the basis of the appeal before this Court.

21. Section 313 of the Penal Code creates the offence of obtaining by false pretences. The provision states as follows: -Any person who by any 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 misdemeanour and is liable to imprisonment for three years.

22. It is Section 312 of the Penal Code that defines false pretence as under: -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.

23. The key word in the above definition of false pretence is "representation". The word seems to be applicable in the following instances: -i.A representation by words, writing or conduct.ii.A representation in either past or present.iii.A representation that is false.iv.A representation made knowing it to be false or believed not to be true.

24. Courts have also dealt with the interpretation of the law regarding the instant offence. The Court of Appeal in Nyambane v Republic [1986] eKLR dealt with the ingredients of the offence of obtaining by false pretences at length. This is how the Court rendered itself in a case where the Appellant had obtained some money on the representation that he had a friend in Nairobi who would sell a car at a cheaper price:There were, equally, concurrent findings of fact, which we are equally loath of disturb, that the money was paid over against a representation that the appellant had a friend who was selling a Peugeot 504 car cheaply at Kshs 105,000. Mr Etyang, for the Republic, submitted that there was in fact “no friend and no car”. Again, there was ample evidence to support the concurrent findings of fact by both lower courts that their representation was false.This brings us back to ground 1, namely the point as to whether the representation was one of an existing fact, or was merely a promise or statement of intention de futuro. True it is that almost every representation of fact involves a statement of intention, though the converse is not necessarily so. In R v Dent (1955) 2 AER 806, a case decided on section 32 of The Larceny Act 1916, which was before the law was altered in England to create the new offence of obtaining by deception by the Theft Act 1968, (so that the statutory provision there being considered was similar to section 313 of the Penal Code) theCourt of Criminal Appeal had this to say; at page 807:Dishonesty is not per se a criminal offence: and the point that has been argued before us and which is the subject of the deputy chairman’s certificate is that a statement of intention, whether expressed or implied, is not a statement which can amount to a false pretence for the purpose of the criminal law.And at page 808:Every promise by a person as to his future conduct implies a statement of intention about it, though not every statement of intention amounts to a promise; but it would manifestly be absurd to hold that when such a statement of intention does amount to a promise, the accused has committed no offence and that when it does not amount to a promise, he has. No distinction can be drawn for this purpose between “I will do it” and “I intend to do it”.There are two qualifications to be noted. The first is that a promise as to future conduct may be coupled with a false statement of existing fact, and that the words in the statutory definition are “A promise ……… is not by itself a false pretence.”Finally, the court said, (with reference to the older R V Bates & Pugh (1848) 3 Cox’s Criminal Cases 201), at page 809 of the report:The words “ready willing to pay” indicate the second qualification. Readiness and willingness to pay may suggest a statement about future conduct. It is clear from the authorities that the law does not seek to divide the future meticulously from the present. If a man says: if you give me the goods now, I will hand over $10, while as a matter of chronology payment follows after delivery as a matter of business it is all one transaction. It has so far not been necessary to determine just where the dividing line between present and future is to be drawn. The reason for this is, we think, that there can in the nature of things be few promises intended to be performed immediately which do not import some statement about the promissor’s readiness to perform, that is he has an existing fact the power and means to perform his promises.That in our view fits the present situation. By telling the complainant that he had a friend who was selling a Peugeot 504 car very cheap and promising, in effect, to bring its owner and arrange the sale of it to the complainants, the appellant was representing that he had the power and the means to obtain the car for the complainants at the stated price, or, as it is stated in the particulars of the charge set out at the beginning of this judgment, that the appellant was in a position to buy (the complainant) a motor vehicle at a cheaper price in Nairobi. Though the events occurred over several days, they were clearly all one transaction: see R v Dent (supra).Further support for this view is to be found in the court’s decision of Joseph Mwatha Gitonga v Republic, Criminal Appeal 14 of 1984, which considered a false pretence that the appellant had a farm to sell, coupled with a statement that there would be collections of money for the intending shareholders. It may also be that the evidence alternatively established the offence of theft by agent, in that the money could be deemed under section 271 of the Penal Code to have been the property of the complainant, but the point was not argued before us.However, as we have said, there was ample justification for the concurrent findings of fact, by both the lower courts, that the representation was made and it was false. There was thus in our view a false pretence as to an existing fact which the appellant made to the complainant in order to obtain the Kshs 105,000.

25. In Lesholo & Another vs The State, the High Court of Botswana in dealing with the offence of obtaining by false pretences rendered itself thus: -i.To prove the offence of obtaining by false pretence, the accused must by a false pretence, with intend to defraud, obtain something of value capable of being stolen from another person. The prosecution must prove the false pretence together with a fraudulent intention in obtaining the property of the person cheated.ii.A false pretence has been held to be a representation by the accused person which to his knowledge is not true. A false pretence will constitute a false pretence when it relates to a present or past fact or facts. It is not a false pretence if it is made in relation to the future even if it is made fraudulently. Where however, the representation speaks both of a future promise and couples it with false statements of existing or past facts the representation will amount to a false pretence if the alleged existing facts are false.iii............The representation must be made with the specific purpose of getting money from the complainant which he/she would not have given had the true facts been revealed to him.

26. In Gerald Ndoho Munjuga v Republic [2016] eKLR, the High Court had the following to say: -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.

27. In dealing with the offence, the Supreme Court of Nigeria in Dr. Edwin U. Onwudiwe vs Federal Republic of Nigeria stated as follows: -In order to succeed in a charge of obtaining by false pretences, the prosecution must prove: -a.that there is a pretence;b.that the pretence emanated from the accused person;c.that it was false;d.that the accused person knew of its falsity or did not believe in its truth;e.that there was an intention to defraud;f.that the thing is capable of being stolen;g.that the accused person induced the owner to transfer his whole interest in the property.The offence could be committed by oral communication, or in writing, or even by conduct of the accused person. However, an honest believe in the truth of the statement on the part of the accused which later turns out to be false, cannot found a conviction on false pretence. The above adequately presents the law as in the Penal Code.

28. The Black's Law Dictionary, 9th Edition defines “false pretense” at page 678 as follows: -The crime of knowingly obtaining title to another’s personal property by misrepresenting a fact with the intent to defraud.

29. The above discussion expounds the main ingredients of the offence of obtaining by false pretence. Of striking importance is the fact that even ‘where a representation speaks of a future promise, but it is coupled with false statements of existing or past facts, then that representation will amount to a false pretence if the alleged existing facts are false.’

30. In this case, there is no doubt that the Respondent offered to sell 50 bags of fertilizer to PW1 at Kshs. 140,000/=. He received the money and then delivered the 50 bags to PW1. That state of affairs alone, discharged the Respondent from any culpability.

31. There was no pretence by the Respondent. It was a fact that the Respondent had the 50 bags of fertilizer. He produced evidential receipts to that end. That issue was never contested at trial. The Respondent even disclosed to PW1 long before he received the payment that the fertilizer was in a store co-owned by him and Simon Muiruri. PW1 collected the bags from the store. It was Simon Muiruri who released the bags to him. At that point in time, Simon Muiruri did not demand for any payment from the Respondent. One, therefore, wonders how the false pretence arose.

32. The fact that there arose a dispute between Simon Muiruri and the Respondent over the bags of fertilizer later, did not make the Respondent’s offer to PW1 false. The contract between PW1 and the Respondent was fully performed. Falsity only arises when a party makes a promise knowing well that such is wrong. That was not the case in this matter.

33. Even without addressing the aspect of failure by Simon Muiruri to testify before the trial, which issue was rightly so handled by the Court, there was no iota of evidence pointing on the offence of obtaining by false pretence as against the Respondent.

34. To this Court, the police, and the prosecution upon review of the evidence collected by the police, ought to have readily ascertained that the matter revolved around the issue of ownership of the fertilizer between Simon Muiruri and the Respondent and before that issue was resolved in favour of Simon Muiruri, the offence of obtaining by false pretence could not be pressed against the Respondent. The charge of obtaining by false pretence was, therefore, not necessary as no evidence or at all had been gathered to support it.

35. This Court, therefore, wholly agrees with the acquittal rendered by the trial Court. As such, none of the grounds of appeal succeed and the appeal lacks any legal leg to stand on. It is for rejection.

36. The acquittal of the Respondent by the trial Court in the Chief Magistrates Court at Kitale in Criminal Case No. E1645 of 2021 is hereby affirmed.

Disposition: 37. On the basis of the above, the appeal by the State is hereby dismissed.It is so ordered.

DELIVERED, DATED AND SIGNED AT KITALE THIS 14TH DAY OF DECEMBER, 2023. A. C. MRIMA..............................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRARJudgment delivered virtually and in the presence of: -Bivon Nyakundi, the Respondent in person.Miss Kagali, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Appellant.