https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/358

Republic v Wamuyu (Criminal Case E809 of 2025) [2026] KEMC 358 (KLR) (20 July 2026) (Judgment) Neutral citation: [2026] KEMC 358 (KLR) Republic of Kenya In the Nyeri Law Courts Criminal Case E809 of 2025 MM Gitumbi, SRM July 20, 2026 Between Republic Prosecution and Mary Kagwanyu Wamuyu Accused Judgment 1.The accused is charged with the offence of cheating contrary to Section 315 of the Penal Code. The particulars are that on diverse dates between 7th January and 19th July 2025, in Nyeri township in Nyeri central sub-county within Nyeri County, the accused by fraudulent trick obtained from ELIZABETH WANGUI NGUNJIRI a sum of Kshs. 63,750/= pretending she had enrolled her into a chama, a fact that she knew to be false or untrue. 2.The accused pleaded not guilty and the matter was set down for hearing. Prosecution Case 3.PW1, the Complainant, told the court that she and the accused were friends for about a year. She claimed that the accused proposed that they start a chama and she begun making contributions. She explained that the accused lived in Karatina and she had told her that she would look for other people to join the chama. The accused was running the chama. She claimed that there were other members of the chama but she did not meet them. She said that she was sending money to the accused via Mpesa and the accused would update her on the progress of the chama. The Complainant was contributing Kshs. 250/= a day. She claimed that when it was her turn to receive the money, the accused did not give her money. She told the court that she had made contributions from 7th January 2025 to 19th July 2025. She went ahead to produce her Mpesa statements for the period. Upon cross-examination, the Complainant admitted that she had filed a Small Claims case wherein she was claiming that the accused had lent her money. She also admitted that during the period, she received some money from the accused, for instance, on 19th July 2025, she received Kshs. 1,000/= from the accused. She stated that the Mpesa statements she was relying on are the same ones she is using in the Small Claims case. However, in the Small Claims Case, she is seeking Kshs. 74,750/=. She stated that the chama did not exist. 4.PW2, the Investigating Officer, testified that on 21st July 2025, the Complainant reported that the accused had falsely obtained Kshs. 77,750/= from her. She claimed that out of the said amount, she had given the accused Kshs. 14,000/= in cash. PW2 perused the Complainant’s Mpesa statements and was able to establish only Kshs. 63,750/= had been sent to the Complainant by the accused. He claimed that the Complainant told him that the money was for a chama but she had discovered that there was no chama. PW2 summoned the accused, arrested her and charged her with the offence herein. Upon cross-examination, he admitted that the Mpesa statements show that the Complainant received money from the accused. He stated that he did not investigate whether the accused and the Complainant were lending each other money. He denied being aware of any civil case filed by the Complainant. He admitted that if he was made aware of the civil matter which claimed that the Complainant had lent money to the accused, he would not have preferred the charges herein. 5.The Prosecution closed its case at this point. I found that the accused had a case to answer and placed her on her defence. In her defence, the accused elected to give a sworn statement. Defence 6.The accused admitted that she and the Complainant were friends. She stated that around September, 2024, the Complainant approached her claiming that she had lost everything and she was living with her sister. She told her that she had a disagreement with her sister and she wanted to move out. The accused told the Complainant that she would try and get her some money to facilitate her moving out of her sister’s house. She claimed that she managed to secure Kshs. 50,000/= which she gave the Complainant and she moved to Nairobi. In 2025, the accused fell ill and required money for treatment. She told the court that she reached out to the Complainant and asked for her money. The Complainant took a loan and gave her some money. However, she claimed that the loan benefited both of them hence she was also repaying the loan by sending money to the Complainant. She told the court that there was no chama. She claimed that the Complainant instituted the Small Claims matter because she was looking for money. Upon cross-examination, the accused admitted that there was no evidence to show that she had given the Complainant Kshs. 50,000/=. She was adamant that the matter before the Small Claims Court was the same as this matter. The Determination 7.I have read and appreciated the submissions filed by Counsel for the accused dated 20th July 2026. The accused is charged with the offence of cheating contrary to Section 315 of the Penal Code which reads as follows:315. CheatingAny person who by means of any fraudulent trick or device obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen or to pay or deliver to any person any money or goods or any greater sum of money or greater quantity of goods than he would have paid or delivered but for such trick or device, is guilty of a misdemeanour and is liable to imprisonment for three years. 8.In Simon Wycliffe Ouma v Republic [2019] KEHC 10335 (KLR), the ingredients for this offence were described as follows:“10.What is cheating? Black’s Law Dictionary, tenth edition defines it as follows:The fraudulent obtaining of another’s property by means of a false symbol or token, or by other illegal practices.For an offence of cheating contrary to section 315 of the Penal Code to be established, the prosecution has the onus of proving the following ingredients beyond any reasonable doubts:a)That the accused obtained by means of fraudulent trick or device;b)Anything capable of being stolen; orc)Cause any other person to pay or deliver to any person any money or goods or any greater sum or greater quantity of goods than he would have paid or delivered but for such trick or device.” 9.In this case, the Complainant claimed that between 7th January 2025 and 19th July 2025, the accused tricked her into sending her Kshs. 63,750/= under the pretence that she was in a chama. She told the court that when it was her turn to receive the money, the accused did not send her any money. She relied on her Mpesa statements. Other than the evidence of the Complainant, there was that of the Investigating Officer, who reiterated what the Complainant had told the court. On the other hand, the accused denied tricking the Complainant. Her evidence suggested that the two were lending each other money. She also relied on the Mpesa statements and urged the court to note that the Complainant had instituted a Small Claims suit and the facts in the two matters were similar. 10.The issue is whether the accused obtained the money by means of fraudulent trick or device. The Complainant stated that the accused tricked her that she was forming a chama. The Complainant contributed the money believing that she was making contributions to the chama. However, she later discovered that there was no chama. I note that the evidence of the Complainant was not corroborated. There was no evidence to show that the accused had told the Complainant that she was forming a chama. There was no evidence of the existence of the chama in writing or any communication between the two making reference to the chama and showing that the money obtained was for the chama. Further, the Mpesa statement that was produced showed that the Complainant received money from the accused on several occasions such as on 10th July 2025, 12th July 2025, 11th July 2025, 8th July 2025, 25th February 2025 and 27th January 2025. If indeed the Complainant was sending money to the accused for the chama, why was she receiving money from the accused? Also, I must take cognizance of the matter that was filed before the Small Claims court. The Complainant admitted that she did file the suit. She also admitted that it arose from the money sent to the accused. However, in that case, the Complainant stated that she had lent the money to the accused. She made no reference to a chama. 11.In my view, I am not persuaded that the accused tricked the Complainant to send her money on the pretence that the money was contribution for a chama. The Complainant’s evidence was not corroborated and the evidence of the accused poked holes into that of the Complainant by suggesting that the two were lending each other money. The Mpesa statements seemed to support the evidence of the accused as it shows that the Complainant was receiving and sending money to the accused. 12.For these reasons, I am not persuaded that the Prosecution was able to prove the offence of cheating beyond reasonable doubt. Therefore, the accused is acquitted of the offence of cheating contrary to Section 315 of the Penal code under Section 215 of the Criminal Procedure Code. 14 days Right of Appeal. DATED, SIGNED, AND DELIVERED IN NYERI ON THIS 20TH DAY OF JULY 2026.M.M GITUMASENIOR RESIDENT MAGISTRATEIn the presence of:……………………………………………Prosecution Counsel…………………………………………..…Accused…………………………………………..…Counsel for the Accused…………………………………………..….Court Assistant