https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12459

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CRIMINAL APPEAL NO. **E119** OF 2024 RASHID SALIM alias MICHAEL WAIHARO………...........1ST APPELLANT IDDI SEGERE MBELWA…………………………………....2ND APPELLANT -VERSUS- THE REPUBLIC…………..........................................................RESPONDENT ***(Being an appeal against conviction and sentence dated 10th December 2024 in Senior Principal Magistrates Court at Kithimani (Hon. Khapoya S. Benson SPM) in criminal case number E518 of 2022)*** **JUDGMENT** *‘But the Lord is faithful. He will establish you and guard you against the evil one.’* The above is an assurance to those who profess Christian faith get from the biblical book of 2 Thessalonians chapter 3 verse 3. I have quoted this verse which resonates with several others found in the Holy Bible not because I elevate the Christian faith over all the others faiths or beliefs or lack of them but because this matter revolves around belief in the mystery works of what is said to be control of human lives by an unseen spiritual realm. I am sure that all other faiths have similar assurance of the human being watched over by supernatural beings. The complainants and the appellants were brought together by the complaints’ desire to seek solutions to a problem which had allegedly visited their home for some period of time which the appellants are said to have promised to solve. The journey did not end well as the complainants allegedly lost or should I say spent huge amount of money without their troubles waning while the appellants ended cooling their feet in jail. The appellants were charged, prosecuted and convicted in Kithinami Senior Principal Magistrate’s Court criminal case number E518 of 2022 with the following counts; *Count 1- obtaining money by false pretence contrary to Section 313 of the Penal Code particulars being that on diverse dates between 1st April 2022 and 27th May 2022 with others not before court at Matuu trading centre Matuu location in Yatta Subcounty within Machakos County with intent to defraud obtained from John Kivungu cash 4,206,000.00 by falsely pretending that after a ritual, a miracle will happen and the amount of money to increase to 150,000,000/= a fact they knew to be false.* *Second count- obtaining money by false pretence contrary to Section 313 of the Penal Code particulars being that on diverse dates between 9th April 2022 and 22nd May 2022 at different places namely Nairobi, Machakos and Tanga found within the limits of Kenya and Tanzania countries with others not before court with intent to defraud obtained cash 1,490,340.00 by way of Mpesa system by falsely pretending that they were in a position to cast out evil spirits and demons a fact they knew to be false.* *Third count- being unlawfully present in Kenta contrary to Section 53(1)(J)(2) of the Kenya Citizenship and Immigration Act 2019 particulars being that on the 27th day of May 2022 at Matuu trading Centre Matuu location in Yatta Subcounty within Machakos County they were found to have been unlawfully present in Kenya.* *The fourth Count against the 1st appellant- personation contrary to Section 382(1) as read with Section 36 of the Penal Code particulars being that on diverse dates between 9th April 2022 and 27th May 2022 at Matuu/Kithimani location in Yatta Subcounty within Machakos County, with intent to defraud falsely presented himself to be Michael Waiharo to John Kivungo.* The prosecution called three witnesses at the end of which the appellants were found to have a case to answer following which they gave sworn statements and the court found them guilty in all counts and sentenced them to serve three years in jail in the first and 2nd counts, six months in count three and twelve months in the 4th count for the 1st appellant. The sentences were ordered to run consecutively. The evidence of the parties is produced hereinbelow. ***The prosecution’s case*** PW1 was the complaint who told the court that on 14/3/2022 he was travelling with his wife from Tharaka Nithi through Embu and while at Kikumini Market, they stopped at a joint owned by one Joseph Wambua who they knew well. At the parking, they found a car with Tanzanian registration number and four people having lunch at the joint. His wife asked who the people were and they were informed that one was Maji Marefu a leading witchdoctor from Tanzania. He added that they used to have a problem of witchcraft which had been planted in their home and farm and were looking for a person to remove the same and that they were told that the person could do this work. His wife went to the vehicle and introduced himself to the person who promised to help and asked Wambua to give his wife his number. They went home and on 29/3/2022, his wife called Maji Marefu whose real name was Thomas Steven (hereinafter referred to as ‘Thomas’) and who promised to visit their place on 1/4/2022. The witchdoctor came on that date at around 2000 hrs together with the appellants and another person who was not in court. After a short discussion, Thomas called it a small problem and proceeded to the farm in Athi River which is 300 m from home and confirmed evil spirits had been planted in their farm and home. They walked him around and he confirmed where the spirits had been planted and promised to remove them on the following day. PW1 added that Thomas told him that he would only require Kshs. 20,000/- to confirm his seriousness and he sent him Kshs. 20,000/-. On 29th March, Thomas had had asked for Kshs. 3,000/- for fuel which the complaint’s wife paid him. On 2/4/2022, Thomas and the three other persons went to the farm and removed three strange objects. They dug the things out behind the pit latrine, inside a small house used as a store and next to a mango tree in the middle of the farm. Thomas said that the other items were at home and he would come the following day. On 3/4/2022, they went again to the homestead and also removed some objects behind the house. PW1 identified the five objects in court. On inquiry of what would happen to those items, Thomas said he wanted a goat upon which they selected the biggest and fattest goat in his shed and cut the its throat and directed the blood to the five objects. They told him that they would dispose the meat in Athi and Tana rivers as they do not consume it and asked for a sack in which they put the goat meat and left. The complainant added that on 4/4/2022, Rashid called and told him that, he had been instructed by Daktari that they needed 60 eggs from a special fish found only in Indian Ocean which would cost Kshs. 600/- each and he sent Kshs. 36,000/- to Thomas. After 2 days, Thomas said that the eggs had been sent and would need to be put in a freezer and again told him that they needed an animal to be found in Meru National Park valued at Kshs. 150,000/-. They negotiated for five days and the price of the animal was lowered to Kshs. 50,000/- and Thomas asked him to send to Rashid. He sent the money to Rashid’s number which showed the name of Michael Waiharo. The complaint identified his Mpesa statement which showed that he sent the Kshs 50,000.00 to Michael Waiharo. The complainant added that on 10/4/2022, the people came to his farm carrying some eggs in a small container with water, went round and threw the eggs to cast away demons. They asked for 10 small bottles and put some concoctions in them and placed them in the four corners of the farm and home. Thomas assured him that all was well and on 11/4/2022, Rashid called him on his phone and texted and said that they needed two heads of sheep which could be bought in Ngong at Kshs. 600/-. On 12/4/2022, they went to the complainant’s home with the two sheep head and third one which they placed in the farm and homestead and told him that the purpose of the heads was to fool his enemies who had sent him the evils spirits. On the same day, Thomas told the complainant that his money had been bewitched and needed cleansing. He asked him to look for Kshs. 200,000/- and after two days, the complainant called and told him that the money was ready which he gave in cash. Thomas had also asked for 3 pieces of red, white and black sheets which the complainant identified in court. They also asked him to buy one full and one broken clay pots which he also identified in court. PW1 stated further that Thomas gave him one of the pots with a concoction. He picked a white cloth and wrapped the money in it and gave the complainant one clay pot with concoction and asked him to go round his home for seven times and as he was going round, he saw his wife who he had left with the money also move around. After, Thomas asked for a live chicken which they caught and gave him and he asked Rashid to cut the throat and let it loose. When it was cut and died, the chicken’s legs folded and Thomas told them that was a sign the spirits had refused to go and asked him to go with them to their main office in Tanga Tanzania where their spirits live. Thomas told Rashid and one Mustaba to take the money and bring it next to the sheep head and they buried the Kshs. 200,000/-. The complainant pointed out that Thomas did not allow them to confirm the wrapping of the money and added that it was not money that was buried. The complainant stated further that they visited Thomas’ main office in Tanga between 17th and 20th April 2022. Thomas asked him for Kshs. 10,000/- for fuel from Nairobi to Tanga which he sent using his phone. On 17/4/2022, he travelled to Kitengela where Rashid was waiting and they proceeded to Namanga where they found Thomas and the appellants waiting for them. They obtained passports at 2000 hrs and were taken to Safari Lodge in Tanzania and proceeded to Tanga on 18/4/2022 where they arrived at 1700 hrs. Rashid took them to Mbembe hotel where the complainant paid for accommodation and food. He added that on 19/4/2022, Idd and the appellants picked them from their hotel and took them to their offices which was a hill with a storey entrance cave. The 2nd appellant who was the driver was left guarding the car as the 1st appellant led them into the caves where they found Thomas waiting for them who together with Rashid invited them by saying "Hodi Hodi Hodi" and asked them to join in saying Hodi. They then heard a voice from far speaking in a foreign language which Thomas translated in Kiswahili and told them that the spirits wanted the complainant, his wife or their children. He added that Thomas asked Rashid to lead them to some other places and after 30 minutes Thomas called them back to where they were speaking to the gods and told them that the spirits had agreed and he wanted the complainant to offer a camel whose price was Kshs. 250,000/-. Rashid called a camel’s seller who brought the price down to Kshs. 235,000/- together with some oil. He added that they said that they needed to make a shed for slaughtering the camel which was priced at Kshs. 10,000/- which he gave Rashid. He added that Kshs. 235,000/- was sent to Rashid which was in his Mpesa statement which he identified. On 20/4/2022, they were taken to a place where they found Thomas waiting for and they were shown a camel's head and fresh blood. Thomas told them that the camel’s meat is given to the fathers at the mosque and took a razor blade and cut their bodies and smeared them with some concoction (reference to ‘them’ in here is presumably the complainant and his wife). They travelled back home on 20/4/2022 and from 23rd to 26th April 2022, Thomas, Rashid, Iddi and Mustaba used to come to the complainant’s home every day doing some rituals. The complainant added that on 26/4/2022, Thomas told them that the spirits’ owners had discovered it had been uprooted and were fighting back. He advised them to make another trip to Tanga between 30/4/2022 and 5/5/2022 and asked for Kshs. 10,000/= for fuel which he did. The complainant fuelled the cars and took care of accommodation for the appellants with 2nd appellant being the driver. The next day, the appellants came and took them to the cave where they found Thomas waiting for them and who asked them what he should do with their enemies. They wrote the names of their enemies and Thomas promised to kill them one by one after 2 weeks. Thomas then instructed them to give Rashid money to buy an empty box, 3 sheets (red, black and white) measuring 1 1/2 metres and the complainant gave him close to Kshs. 30,000/-. Rashid purchased the items and a new clay pot and on the next day, they took them to the cave. Thomas opened a box which was empty and gave them a paper to write the names of their enemies. They listed 18 enemies and put the list in the box. PW1 added that Thomas sent them away and called them again and opened the box upon which they found it full of money and Thomas told them that it was 30 million which he said had been pulled from the complainant’s enemies. He gave them directions on how the money will become theirs and asked them to bring 36 bundles of Islamic religious books valued at Kshs. 66,000/- which the complainant sent to the 1st appellant’s line. He added that the box would be transported by sea from Tanga to Langalanga by speed boat at Kshs. 165,000/- which he sent to Thomas on his Mpesa line. Thomas would get the box at Langalanga and transport it to the complainant’s home. He stated further that Thomas told them that their enemies had planted a maasai spirit at their gate and were waiting for them to take their blood. They travelled back home and on 6/5/2022, Rashid asked them to buy 20 litres of water at Kshs. 5,000/-, a bottle of oil at Kshs. 20,000/=, eight packets of special flour at Kshs. 18,000/- and a bow 250 valued at Kshs. 75,850/- for the spirits. The complainant added that he sent the money to Rashid to buy and bring a certain sculpture which was required. On 7/5/2023, the appellant and went with Thomas to the complainant’s home carrying the box in his car and small calabash. Thomas had promised to move with two spirits in the calabash. They went to the complainant’s daughter’s bedroom which was not in use and opened the box and showed them the money. He gave them Kshs. 10,000/- to spend and Kshs. 6,000/- to bank in the complaint’s bank account. He also asked them to buy one bag and two padlocks and he locked the bedroom and went with the key. Thomas told them that they were to purchase oil for cleaning money in Pemba and Zanzibar in order to access the 30 million. For this purpose, the complainant sent Kshs. 13,000/- to Rashid for fuel and subsistence. He identified ten bottles of the cleansing oil each of which was costing Kshs. 61,500/- totalling to Kshs. 615,000/-. Other expences were; cost of hiring a boat at Kshs. 55,000/-, purchase of a cow at Kshs. 26,000/-, incense at Kshs. 5/- and trip cost of Kshs. 701,000/-. This money was sent to Rashid in various transactions. The complainant added that on 15/5/2022, Thomas’ group came to his home carrying the oils and when they opened the bedroom, they found a live snake inside the bedroom and Thomas told him that the snake was an evil spirit that was fighting back and they needed to go back to Tanga. He asked him to sit on the floor to get directions. They put a bag on complainant and his wife’s heads and covered their hand with two sheets and put the calabash of the two spirits on their head. They heard a woman voice and child in the calabash speaking in a foreign language which Thomas was translating. The directions were that, they should look for Kshs 701,000/= to be mixed with the cleansing oil and warm water and bath with it for five days. He added that they did what the spirit directed and on 16/5/2022, they went to Machakos Standard Chartered and withdrew Kshs 700,000/- and added Kshs. 1,000/- which money they mixed with the oil and bathed with the warm water for 5 days. Thomas then asked him to fold the money in a white sheet in a basin and on the bed. They killed the small snake. The complainant added that there was a third trip to Tanga for medication against the snakes between 18/5/2022 and 21/5/2022. The appellants took them to the caves where they found Thomas who made cuttings from bushes and mixed them with a concoction. He asked them to speak to spirits and translated for them. Thomas said the spirit wanted one more cow and some kind of oil which would cost them Kshs 55,000.00 and Kshs. 250,000/- respectively. The complainant sent the money to 1st appellant and the spirits said that they should also pay Thomas Kshs 130,000.00 for his services which the complainant sent to his Mpesa line on 21-05-2022 to avoid the disappearance of the money in the box. He added that the spirit told them that the money had multiplied to 50 million and that was the maximum limit and that they should not complain as they were already millionaires. The complainant stated further that they were told that before getting the money they should get *"vifurushi vya pesa".* Rashid called and told him that the five *‘vifurushi vya pesa’* needed a trip to Pemba at a cost of 701,000 totalling to Kshs 3,505,000/-. They were to look for this money to cleanse the god’s money. He went to the bank and withdrew the Kshs. 3,500,000/- and went home where they divided the money into two and mixed it with another Kshs 701,000.00 and oil in a basin and bathed with it twice. On 25/5/2022, Thomas, Rashid and Mustaba came to his home at 2200 hrs and went straight to where the box was. Thomas asked for the money in the basin and gave the complainant the special oil. He asked the complainant to go round the house with the 1st appellant and the complainant’s wife pouring the oil four times and on the fourth round, they found Thomas who seemed to be in a hurry standing outside the main house. He had put the money in a bag which he had locked with padlocks and asked them to put the bag under their bed and not to come out. They got in the vehicle and drove off. PW1 stated further that Thomas told them that they would come the following day and go to their Matuu office where the complainant would buy a new bag and the money in the box would miraculously get into his bag. On 26/5/2022, they came in a hurry at 2000hrs and Thomas asked the appellants to put the bag containing Kshs. 4,206,000/- inside his car and the box containing Kshs. 150,000,000/- in the complainant’s car. Thomas and Mustaba led in their car to their Matuu office with the complainant, his wife and the 1st appellant in the complainant’s car. Thomas asked the 1st appellant to get the bags and keep them in one of the rooms and called the complainant and his wife inside. He opened the box and the money was inside. He then sent the complainant, his wife and the 1st appellant to the market to get another bag and two new padlocks which they did and came back. He asked again to go buy two new padlocks. He also asked them to say a small prayer in Islam upon which the money would move to the new bag they had purchased. The complainant added that Thomas asked them to wait for 15 minutes in the next room and later called them and opened the box which was said to have had Kshs. 150,000,000/= but was empty. He then opened the new bag and pulled out notes and asked the complainant to count which turned out to be Kshs. 100,000/. Thomas asked the complainant to pour the special oil but did not allow him to peep inside the bag. They were to spend Kshs. 4,000/- of the said KShs 100,000.00 and deposit the balance in his account at Thika which they did. Thomas asked Rashid to load the bag in the complainant’s car back the box and load it on car and promised to come the following day. The complainant was to call Thomas upon banking and look for petrol and burn the broken pieces of the box. He asked the complainant to wait for instructions to open the bag and when he was called after the deposit, Thomas asked for Kshs. 10,000/= for fuel to visit the complainant but he never turned up. The complainant added that there was a fourth trip to Tanga. On 28/5/2022 Thomas called the complainant’s wife at 1600 hrs and said that the time for burning the box had expired and it was a bad omen on their part. Thomas asked the complainant to burn it himself, send him a photo of the fire and collect the ashes. They were required to take the ashes and go bath on a grave on one of the family members failure to which someone will die in their family. He promised to find a grave in Tanga. On advice from Thomas, the complainant and his wife left for Namanga where they found the appellants who took them to the caves. Thomas took the ashes and mixed with some leaves and some water. They took off clothes and sprinkled their bodies with the water. The complainant testified further that Thomas never showed them any grave but asked them to purchase more oil to protect them from the bad omen caused by delay in burning the box. This cost them Kshs. 222,000/- which he sent on 30th and 31st May 2022 through his Mpesa line. They were asked to provide more bundles of money and they travelled back on 31/5/2022. On 2nd June 2022, the 1st appellant called and told the complainant that Thomas had advised that they should buy 6 bundles of 701,000/- totalling Kshs. 4,206,000/- before they opened the bag but he told him that they had no more money left. Then the complainant called Thomas but his phone was off as always as he used to communicate to him through the 1st appellant. The complainant went on and stated that, on 5th June 2022, the 1st appellant told them that there was no other option beside getting Kshs. 4,206,000/- and at that point they noted that they had been conned. He went to the bedroom and opened the bag and they were surprised to find therein the items he had exhibited in court. He went to where Kshs. 200,000/- had been buried and found no money but a coconut, cowrie shell, white sheet and other items which he identified in court. He added that on 7th June 2022, they reported the incidence at Kithimani police station and he decided to set a trap. Between 5th and 18th June 2022, he called the 1st appellant and told him that they had incurred heavily and could not afford to lose and that he was selling a plot in Nairobi. Two days later, he told the 1st appellant that they had found a buyer and he promised to speak to his boss. The boss switched on his phone and they began to talk. On 8/6/2022, the complainant called and confirmed receipt of the money and on 9/06/2022, the 1ns appellant called and said they would come on 10/06/2022. On 10th June 2022, the 1st appellant called at 2025 hours and informed the complainant that, they had gotten to Matuu and instructed him to carry the bags and money for a meeting at their office. The complainant mobilized people who accompanied him to Matuu and arrested the appellants as they were coming for the bag but Thomas escaped into the darkness. They brought the appellants to Yatta Police station. The complainant added that between 9th April 2022 and 31st May 2022, he sent Kshs. 1,167,340 through Mpesa to 1st appellant who was also Michael Waiharo on line number 0711906757. He added that between 1st April 2022 and 31st May 2022, he sent Kshs. 712,100/- to Thomas Stephen alias Maji Marefu through Mpesa line number 0722955234 and a further Kshs. 123,000/- to line number 0705774475 registered to Elizabeth Wayua as directed by 1st appellant. He also sent Kshs. 200,000= from a Mpesa agent at Kabaa market to the same Elizabeth Wayua as directed by 1st appellant. The complainant clarified that, other than the amount stated in the above paragraphs, he had lost Kshs. 4,206,000/- which was taken by Thomas from their homestead in cash being amount he demanded, Kshs. 200,000/= also taken by Thomas and allegedly buried in his home and approximately Kshs. 200,000/= spent on fuel, hotel accommodation and subsistence for the appellants. The total amount he lost was Kshs. 6,808,640/-. He identified his bank account statement from Standard Chartered Bank for the period between 9th May and 25th May 2022, and his wife’s’ Mpesa statement and his second line Mpesa statement. He added that on 19/6/2022, they took the investigating officer to show him the office where they found goat skin hanging the front door which he also identified as that of the goat the appellants and Thomas carried from their home. He also identified photographs of the scenes taken by the investigating officer and print outs of text messages between him and some contact saved as Thomas Stephen. In cross-examination by the advocate for the appellants, the complainant told the court that the money he lost to the appellants was his savings for a period of over 10 years. He claimed to be a prayerful Christian and that he knew that there were evil spirits in his house who were invisible people haunting them by knocking the roof of the house. His wife was introduced to Maji Marefu by Wambua who was their neighbour. He confirmed that he was not arrested for soliciting witchcraft although it was illegal in Kenya. He reiterated that on 2/4/2022, there came four people in his farm; the appellants, Thomas Stephen and one Mustaba. The special animal from Meru was not shown to them but he saw some eggs. He claimed that Thomas was the one who gave him the 1st appellant’s number but the recipient of the money sent to the number showed Michael Waiharo. He admitted that he did not have a statement linking Waiharo to the 1st appellant but claimed that the investigating officer had it. The complainant insisted that when Thomas took the money, the appellants were present. He did not have the registration numbers of the cars which were being used but insisted that they were in constant communication. He also admitted that he did not have the receipts in proof of accommodation and costs in Tanzania but he went on to restate how he sent the money as narrated in his evidence in chief and added that Elizabeth Wayua was not arrested. He stated further that the voice at the caves told him that the money in the box had increased from 30 million to 150 million but he was not allowed to count it. He added that he gave 5 bundles of Kshs. 701 ,000/- each to Thomas totalling to Kshs. 3,505,000/- which they were asked to wrap in a white sheet and mix with the initial Kshs.700,000/- which they put in a basin and placed under the bed. The Matuu office was in the outskirts of Matuu town but he did not know the landlord or his whereabouts. He confirmed that no money was sent to the 2nd appellant. He also confirmed that the other money being Kshs. 1,167,340/- was sent to Michael Waiharo and that no money transfer message made reference to the 1st appellant. Further, no phone calls or texts were made with 2nd appellant. He also claimed that the spirits were still giving him problems. He concluded that they were told that the money would multiply and they believed and that he was mentally well throughout the period. When he was re-examined, the complainant in addition to insisting that the transactions were made, stated that although money to 1st appellant showed Michael Waiharo as recipient, the 1st appellant did not over the period deny receipt of the monies, neither did they deny receipt of money sent to Elizabeth Wayua. The second witness was Lucia Ndindi Musyoka the complainant’s wife. She recalled how they met and started engagements and transactions with the appellants and Thomas as narrated by the complainant. She added that she sent Kshs. 3,000/- to Thomas on 29-03-2022 who promised to go to their home on 1/4/2022 which he did at about 2000hrs with other people who introduced themselves Iddi, Rashid and Mustaba. They talked to her husband and promised to sort their problem. Thomas asked for one tomato and said he heard that they were being haunted by evil spirits and demanded for Kshs. 20,000/- which PW1 paid through his phone. They returned on the next day at 2000 hrs and went to the toilet and dug out, walked around the home and promised to return on the following day which they did and went behind the house and cut trees. They removed things and demanded for one he goat which they were given, cut the head and poured the blood on the items. They asked for 60 eggs of an ostrich from the ocean to be used to cleanse and protect the home costing Kshs 36,000/=. They also said that they needed an animal from Meru National Park valued at Kshs. 150,000/- but upon negotiation, they settled at Kshs. 50,000/- which her husband sent money to Thomas but the number reflected the 1st appellant. PW2 added that the people came after two days to complete the assignment and asked for chicken and l meter pieces of cloth costing Kshs. 200,000/- in cash. They went round the farm dropping eggs but she did not see the animal as they told her Kenya Wildlife Services prohibited moving around with animals. They asked for a pot and 3 pieces of red, white and purple clothes valued at Kshs. 200,000/-. She added that they came and said that they had dug the money in the ground. The next day, they came and demanded for chicken and her husband was given a pot and asked to go the home round 7 times which he did and returned the pot to Thomas. She added that she caught the chicken and gave it to Thomas who cut its neck and let it run around. She stated further that there were 2 clay pots and 3 handkerchiefs which burst and Thomas said it was a bad sign. Thomas took the pot and put the money inside and said that he was going to bury the money. He then said that they should go to Tanga together with the appellants which they did four times with the 2nd appellant being the driver. PW2 added that the team asked for a camel oil among other things and took them to caves along the ocean. She sent Thomas Kshs. 5,000/- for fuel and another Kshs. 3,000/- and later Kshs. 2,000/-. They also asked her husband to withdraw Kshs. 3.5 million and said that they had a box that contained 150 million and asked them to petition the gods. Lucia stated further that the people had an office in Matuu which appeared Islamic. Thomas promised them that the money would multiply. She added that they said the money was in the box at the office and asked for Kshs. 4.5 million more before the complainant and her could be allowed to spend the money. They then decided to buy time and pretended that they had sold their assets. Later, the complainant called them and they came. She stated further that people went away with the money as there was no money in the box and pot. She added that they lost Kshs. 6,808,400/-. They carried Kshs. 5 million at home and cash Kshs. 200,000/-. She proceeded to identify the items which had been identified by the complainant and added that they realized that there was no money when the people asked for Kshs. 4.5 million. The keys they had left did not open the bags. She claimed that they always ensured there that were no other people at home. She concluded her evidence in chief by stating that she had recently sent Elizabeth Kitu whose number was given to them and identified the appellants as part of the four people who they had engaged with, the 2nd appellant having always been the driver. Mustaba and Thomas had never been traced. She was cross-examined by the appellant’s advocate upon which she stated that the Tanzanian registered vehicle kept on overtaking them when they were coming from Embu. She added that they went to seek traditional healer after the spirits kept knocking on their doors and roof. She confirmed that she sent money to Thomas who was not in the dock and who had promised to take out the evil spirits. She added that her husband would send money while he was in Nairobi to a number that reflected Michael Waiharo as the recipient and admitted that, the recipient was not the same person as the appellants. She stated further that the 2nd appellant never went into the caves as he would remain behind as they went into the caves with the 1st appellant. The third and last witness for the prosecution was No. 63424 CPI Isaiah Tanoi based at Matuu police station and who was the investigating officer. He added that the case was reported on 10/6/2022 by the complainant and PW2. The suspects were arrested within Matuu trading centre by members of the public. He added that the suspects complained of having been beaten by the members of the public. He claimed that the other officers declined investigating the case as it referred to Maji Marefu. He visited and took photos of the scene of crime and later recorded witness statements of PW1 and PW2 and the other person whose vehicle was at the station. The officer went on to narrate the story as given to him by the witnesses from whom he recorded the statements. He added that Kshs. 1,490,340/- was send to Rashid Salim on 0711906797 which was shown in the Mpesa statement of the complainant. He claimed that Rashid used alias Michael Waiharo and added that they not find the said person. He went on to identity and produce the items which had been identified by PW1 and PW2 in court as exhibits. He stated further that they had not recovered the money since the suspects had moved it. He concluded that he investigated the matter and charged the appellants with obtaining money by false pretence, personation and being unlawfully present in Kenya as per the charge sheet. Upon cross-examination, PW3 told the court that initially, the complainant was to be treated by having some things taken out of his home as they were causing problems. He claimed that the herbalist introduced cultism where the victim would not understand anything. He added that there were County Government licences in the office at Matuu. He added that the vehicle which had been detained was released back to its owner as it had been hired. He stated that he did not investigate whether the appellants were herbalists or not. He added that money was sent to Stephen Thomas 0721955234 who had escaped. He also stated that the items he produced in court were collected by the complainant when he realized he had been scammed and that he went for them from the complainant's home compound. ***The appellants’ case*** The 1st appellant identified himself as Rashid Salim Ndaki, a Tanzanian by origin hailing from Tanga. He told the court that he was arrested at Matuu in Kenya and that he had come to Kenya to work as a driver but he was not in any employment. He claimed that he had a passport which was at the time of arrest taken away together with his driving licence. About the charges, the 1st appellant stated that he did not have witchcraft powers and he did not practice witchcraft. He swore that he had never involved himself in such business and he did not know anyone. He added that he had never received any money from the complainant whether cash or in other form. He had never met the complainant over any issue and urged the court to release him stating that his family depended on him and that his children were suffering. He concluded that he was arrested over a case he did not understand. He stated in cross-examination that he had stayed in Kenya for about 2 years before the arrest and that he had a temporary passport which was valid for one year. He did not have a renewed passport neither did he have a work permit to be in Kenya as a driver. He claimed that he was arrested while resting for unknown reasons. He also stated that he was told at the station that he was involved with other people in some business. Pressed further, he reiterated that he had never been charged with witchcraft and did not receive any money and claimed to have been in Utawala Nairobi in the period in question and that he went to Matuu in June. He added that he was using a Tanzanian line in with a handset which he had gotten lost and insisted that he did not have a Kenyan sim card or line. He claimed that he was employed by one Abdalla and he would visit Tanzania the last time being in December 2021. He confirmed that his passport was expired. He denied knowing Michael Waiharo and the complainant claiming to have seen the complainant for the first time at the police station and court. The 1st appellant added in re-examination that he did not expect to be arrested and did not have any receipts and that he was not given an opportunity to avail evidence of validity of his presence and operations in Kenya. He also stated that he did not need a visa to travel within East Africa. He claimed that the officers did not explain his rights to him. The 2nd appellant confirmed to the court that his name is Iddi Segere Mbelewa, born in Masugulu in Tanzania. He also denied being involved in witchcraft practices and maintained that he did not cooperate or do business with the complainants in any way. He added that his travel documents and licence were taken by the police officers. He stated further that he came to Kenya to work as a driver. The 2nd appellant testified further that he was found eating when he was arrested by unknown people who did not explain to him his rights. He was arrested and taken to Kilimambogo where he was tied up and blind folded and was brought again to Matuu. He added that they were in three vehicles and were taken to Kithimani where another person he did not know came. He added that he did not have a Kenyan identity card and could not obtain a Kenyan line. He had a phone with Tanzanian line. In cross-examination, the 2nd appellant stated that had been in Kenya for 3 months before his arrest and was staying with the 1st appellant in Utawala. He alleged that he went to Matuu on 10/6/2022 which was his first time there. He claimed that he was blindfolded and asked to say his last prayers but he managed to see a sign board at Kilimambogo while going to Matuu. He claimed that his temporary passport had not expired and that his permit was taken away by the police officers and his identity card was at Yatta prison but he did not show it to the officer. He added that he had not asked for a photocopy of it. He admitted that the complainant identified him although he had seen him at the station and court. He could not tell why the complainant picked on him. ***The grounds of appeal*** The appellants were aggrieved and dissatisfied with the conviction and sentence and approached this court on appeal setting out the following grounds; 1. THAT the learned trial Magistrate erred in law and fact in overlooking some material factors and taking into account some immaterial factors and acted on a wrong principal thereby arriving at a sentence that was excessive under the circumstances. 2. THAT the learned trial Magistrate erred in law and fact in failing to take into consideration that the accused persons have been in custody for two and half years before their sentence was meted out. 3. THAT the learned trial Magistrate erred both in law and fact in failing to appreciate the general practice is that if the accused person commits a series of offences at the same time on a single act/transaction, a concurrent sentence should be meted out and that it is illegal to mete out a consecutive term of imprisonment. 4. THAT the learned trial Magistrate erred in law and fact in failing to appreciate that the prosecution had failed to establish their case and elements under Section 313 of the Penal Code to the required standards that is beyond reasonable doubt. 5. THAT the learned trial Magistrate erred in law and fact in failing to acknowledge and appreciate the glaring contradictions and gaps on the prosecution case which definitely created reasonable doubts in prosecution case. 6. THAT the learned trial Magistrate erred in law and fact in not only shifting the burden of proof, but also the instance of proof as well as lowering the standard of proof to the prejudice of the appellants. ***Analysis and determination*** I have considered the evidence reproduced above and the documentary exhibits produced by the prosecution. Reading from the memorandum of appeal, the appellants’ complaint is that the prosecution did not prove the charges against them beyond any reasonable doubt as required by the law and that the sentences were excessive. Instead of submissions, the appellants filed what they termed as grounds of appeal while the respondent filed submissions dated 1st December 2025. The ingredients of the offence of obtaining by false presences are that; there was pretence emanating from the accused person which was false, the accused person knew of its falsity and did not believe its truth, there was intention to defraud, the thing obtained is capable of being stolen and the accused person must have induced the owner to transfer their entire interests in the property. Honourable Justice J.M. Mativo put it in plain words as follows in ***Gerald Ndoho Muniuga v Republic [2016] KEHC 6508 (KLR);*** ‘*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.* It cannot be in doubt that the money the complainant allegedly lost is a thing capable of being stolen. Section 267 of the Penal Code defines things capable of being stolen and in particle subsection which under which in my view money falls provides that; *‘Every inanimate thing whatever which is the property of any person, and which is movable, is capable of being stolen.’* It is also not in doubt that if indeed there was promise to multiply Kshs 4,206,000.00 to Kshs 150,000,000.00, the same was false and the appellants did not believe in its truth and there was intention to defraud. Money does not multiply by magic or divine intervention but from wise investment and efforts and well-planned work to grow it. The habit and desire to grow rich without one working for it is an illusion and I must express my surprise as to how a grown up and educated person would believe that they can get wealth from magical or miraculous events. My statement should however not be taken as belittling anyone’s faith in divine interventions but it must be appreciated that our creator gave human capacity to reason and discern things. What I find needing analysis in respect of the first count is whether the appellants really induced the complainant and received or made him part with Kshs 4,206,000.00 on believe that it will multiply to Kshs 150,000,000.00. Initially the complainant had engaged with the four persons for purposes of exorcising what they believed to be evil spirits from their home. This however mutated to multiplication of money after some rituals were conducted for the originally intended purpose. The person who was said to have the powers to multiply the money was one Thomas Steven who was never found or arrested. According to Mpesa statements for lines belonging to PW1 and PW2 which were produced as exhibits 11, 12 and 15; PW2 sent Kshs 3,000.00 to Thomas on 1-04-2022 while PW2 sent to the same person Kshs 2,000.00 and Kshs 130,000.00 on 30-05-2022, Kshs 4,000.00 on 30-05-2022, Kshs 10,000.00 on 29-05-2022, Kshs 10,000.00 on 28-05-2022, Kshs 5,000.00 on 26-05-2026, Kshs 5,000.00 on 25-05-2026, Kshs 130,000.00 on 21-05-2022, Kshs 7,000.00 and Kshs 5,000.00 on 16-05-2022, Kshs 15,000.00 on 15-05-2022, Kshs 7,000.00 on 7-05-2022, Kshs 100,000.00 and 7,000.00 on 4-05-2022, Kshs 3,000.00 on 23-04-2022, Kshs 35,000.00 on 21-04-2022, Kshs 5,000.00 and Kshs 5,100.00 on 17-04-2022, Kshs 5,000.00 on 15-04-2022, Kshs 36,000.00 on 4-04-2022 and Kshs 10,000.00 on 1-04-2022. The prosecution witnesses told the court that Thomas Steven was not arrested but I have not seen anything in the proceedings to show any attempt or give reasons why he being the person who presented himself as the one possessing powers to multiply the money could not be traced. There are call logs which seems to have been produced together with the Mpesa statements which show that the complainant also communicated with Thomas. Exhibit 14 which were screenshots of text messages shows communication between what appears to be the complainant’s line and another line he had saved as Marefu Thomas Steven. The complaint in his testimony also confirmed communication with Thomas which means that the Thomas was reachable or at least traceable by tracking him which does not seem to have been attempted. The appellants were said to have been tricked by the complainant and arrested by members of the public and taken to the police station but Thomas escaped. The circumstances of the arrest were not made clear. A prudent investigating officer would not simply rely on the words of the complainant or reportee or witnesses. He should go steps further and investigate the allegations by tying all the loose ends and closing any gaps in the case. In this matter, some of the money involved was sent to the main player who allegedly escaped while others were sent to third parties identified as Elizabeth Kitu and Michael Waiharo who the appellants claimed not to know. The third parties and their conducts were disclosed through documentation and the complainant is on record saying that the number for Michael was given to him by Thomas who represented it as belonging to the 1st appellant. In the above circumstances, the investigating officer had a duty to look for the persons and verify from them whether they had connection with the appellants. With the current technology all the investigating officer needed to do is go for the documentations from the service providers who registered the third parties for the Mpesa accounts. He did not even try to call these disclosed numbers. It appears to me that the investigating officer recorded statements of the complainant and his wife, asked them to provide documents in terms of statements, visited the alleged scenes of crime and took photographs then charged the appellants who had been brought to the police station by members of the public without even making enquiries on the circumstances surrounding their arrest. Even the motor vehicle which was alleged to have been impounded and hired by the appellants was released to a person who has not been disclosed or called to testify. The narrative given by PW1 and PW2 as it relates to the first count has no relevance to the 1st count safe to lay basis of how relationship between the complainant and the suspects started, grew and gained trust and confidence between them. What I gather is that Kshs 4,206,000.00 was given in cash between 23-05-2022 and 26-05-2022 in cash after the complainant withdrew from his bank account Kshs 3,005,000.00 and added more and put in a box with expectations that it will miraculously move to the bag and turn to Kshs 150,000,000.00. The bank statement produced as prosecution exhibit 10 shows that the complainant withdrew Kshs 450,000.00 on 9-05-2022, Kshs 700,000.00 on 16-05-2026 and Kshs 3,005,000.00 on 23-05-2026. The only testimony available in respect of where this money went was that the complainant was asked to put the money in a box which was locked and placed somewhere in their house. To me, this is the complainant’s word against the appellants since the appellants denied having been involved in this business. There is no single transaction connecting the appellants with the money exchanged between the complainant and those who are said to have scammed him. It beats logic why the investigating officer would pick on perrons he was told by word of mouth and get less interested in those who are documented including a registered Mpesa agent who was involved in one of the transactions in an identified trading going by the words of the complainant. It was the duty of the prosecution to prove that the money was given to the appellants or other persons under their directions. It is unfortunate that there was no independent witness for the exchange of the Kshs 4,206,000.00 and the conversation between the players in the deal but the duty never shifts to an accused person to prove anything in any stage of the trial. There may have been reasons to suspect active involvement of the appellants but it is trite that no amount of suspicion however strong it may be, that would secure a conviction against an accused person without sufficient evidence. The Court of Appeal restated the above position in ***Musili Tulo v Republic [2014] KECA 412 (KLR)*** when it held that; *‘There may well be serious suspicions that the appellant killed his wife, but suspicion alone, however high, has never sustained any conviction for a criminal offence.’* I note from the bank statement that the complainant indicated the end use and purpose of the withdraw of Kshs 3,005,000.00 as construction project on Mavoko Block 2/8994 in Katani Machakos. The complainant must have given this explanation to the bank officials obviously to conceal the purpose which in itself is a criminal offence and an element of money laundering. As much as one would like to feel for the complainant, the court must be firm and deal with matters before it based on the evidence, facts and the law. I find it difficult to depart from what the documents produced before the court stated. This is however not to say that it was justified for the complainant to lose the money due to the inaccurate explanation he gave to the bank. The money nevertheless remained his property and entitled to protection of law. Based on the above, I must observe that the investigating officer failed the complainant by the way he handled the case. He did little if any investigations. He left many glaring gaps and its only him who can tell whether it was deliberate, lapse or an oversight. In the circumstances, it is my finding that the prosecution did not prove the first count against the appellant beyond any reasonable doubt. The 2nd count should suffer the same fate. In addition to what I have stated in respect of count 1, the second count does not even disclose from whom the Kshs 1,499,934.00 was obtained. Some money is said to have come from PW2 and it would not be safe to conclude or assume that the complainant in the second count was the same in the second. All that the charge states is that the appellants obtained the money by way of Mpesa. It does not indicate whose property the money was. Property cannot be stolen unless it belongs to someone. A charge sheet of this nature must be precise and clear on the identity of the victim of the alleged offence. More so where the recipients of the money as per the Mpesa statements were different from the appellant. I say so because the process of transmission of the money was not directly linked to the appellants neither was there evidence to demonstrate that the recipients of the money mentioned in this count were associates of the appellants. What the testimonies of the complainant and his wife discloses is that they were the originators of the idea of removing spirits from their home a job they proposed to give to Thomas and allegedly the appellants. They approached Thomas and the appellants who offered to do the work of exorcism. The complainant and his wife in my view subscribed to this area of belief, thought and conscience despite stating that he was a prayerful Christian. All the journeys they made to Tanga if at all are testaments that they had immersed themselves to that world which freedom they constitutionally had. I say *‘if at all’* because the prosecution did not place the complainants, the appellants, Thomas and other players in Tanga at any given time. The appellants were not the ones to do the exorcism and going by the narratives, they were a hand man and a driver respectively and the appellants believed so. Without seeming to approve these kinds of practices, I would analogize this case by asking whether those who belong to other religious faiths should seek to have their clergymen jailed for unanswered prayers. I however make it clear that my decision that count two was not proved is based on my analysis of the evidence as shown earlier and not because I believe the complainant deserved what he may have gone through. It is sad and unfortunate but the court cannot convict an accused person on the basis of sympathy. On count three, I find the conviction to have been safe. It is common ground that the appellants are not Kenyan citizens. The appellants in their own defence admitted that they were not Kenyans. They alleged that they had permits and passports which were taken from them by the officers. They did not tell the court when and from which office they had obtained the documents. It is true as the appellant stated that they do not need visa to be in Kenya as they were East Africans. However, being in the country unlawfully does not start and end with visa. They should have obtained entry permits. In his own words, the 1st appellant said that he had a permit which was valid for one year but he had stayed in Kenya for two years without renewal. They had the opportunity to produce copies of the immigration documents but failed to do so. I find the appeal in respect of this count lacking merits. I finally turn to the fourth count. The 1st appellant is charged of personating one Michael Waiharo. The only evidence produced in respect of this count was the complainant’s words that Thomas gave the complainant a number which he said belonged to 1st appellant but the recipient turned out to be Michael Waiharo. It is hard on my part to find that this testimony was enough to convict the 1st appellant. In the first place, the appellant was said to have presented himself to the complainant as Michael Waiharo which is undoubtedly a Kenyan name yet the complainant had from the first time he met the 1st appellant known him to be a Tanzanian. Secondly the complainant in his testimony stated that they were directed to send the money to a number given by Thomas and not the 1st appellant. The offence of personation can only stand where it is proved that the accused presented themselves to be a person they were not and that other person must be an existing and identifiable person. The prosecution did not bother to call the person allegedly impersonated and without his evidence, I find the charge to have been improper and a failure from the beginning of the case. The conclusion from the above is that this appeal succeeds in respect of counts 1, 2 and 4 but fails in respect of count 3 and I consequently proceed to set aside and uphold the respective convictions and sentences meted by the trial court and order as follows; 1. The appellants are hereby acquitted of charges in counts 1, 2 and 4. 2. The convictions and sentences in count 3 are upheld. 3. Since the sentence in count 3 has been served, the appellants shall be set free forthwith unless otherwise lawfully held. 4. The appellants shall upon release be repatriated to their country of origin. Dated signed and delivered at Nairobi this **29th** day of **July** 2026. **B.M. MUSYOKI** **JUDGE OF THE HIGH COURT.** Judgment delivered in presence of the appellants and in absence of the respondent.