[2020] KEHC 7608 (KLR)
The High Court held that while the appellant's conviction and the sentence of a fine of Kshs 100,000 or six months imprisonment were lawful and unchallenged, the additional order requiring the appellant to refund Kshs 10,500,000 to the complainant or serve a further five years imprisonment was unlawful. The Penal...
Source-derived case information.
- Citation
- [2020] KEHC 7608 (KLR)
- Parties
- Appellant: Samuel Okoth Oluoch; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 1 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed in part; unlawful sentence set aside.
- Legal Topics
- Obtaining by False Pretences, Sentencing Principles, Restitution Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Okoth Oluoch
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court's order requiring the appellant to refund Kshs 10,500,000 to the complainant was lawful and supported by evidence.
- 2 Whether the sentence of 5 years imprisonment in default of refunding the money was within the statutory limits for the offence of obtaining by false pretences.
Ratio Decidendi
The High Court held that while the appellant's conviction and the sentence of a fine of Kshs 100,000 or six months imprisonment were lawful and unchallenged, the additional order requiring the appellant to refund Kshs 10,500,000 to the complainant or serve a further five years imprisonment was unlawful. The Penal Code prescribes a maximum sentence of three years imprisonment for obtaining by false pretences, and the trial court exceeded its jurisdiction by imposing a custodial sentence beyond this limit. The court clarified that the complainant retains the right to pursue civil remedies for recovery of the money, but the criminal court cannot enforce such restitution through an unlawful...
Court Disposition
Appeal allowed in part; unlawful sentence set aside.
Orders
- The sentence of five years imprisonment in default of refunding Kshs 10,500,000 is set aside.
- Unless otherwise lawfully held, the appellant is to be set at liberty forthwith.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
HCCRA NO. 1 OF 2017
SAMUEL OKOTH OLUOCH..........................................................APPELLANT
VERSUS
REPUBLIC......................................................................................RESPONDENT
[Being an appeal against the conviction in Anti-Corruption Case No. 2 of 2014 in a Judgement
by Hon. Mrs Lucy Gitari CM as she then was and by the Hon. J. Ng’arng’ar CM
delivered on the 20th January 2017]
JUDGMENT
The Appellant, SAMUEL OKOTH OLUOCH, was convicted for the offence of Obtaining Money by false pretenseContrary to Section 313of the Penal Code.
1. For that offence he was sentenced to a fine of Kshs 100,000/= or in default 6 Months Imprisonment.
2. The Appellant was further ordered to refund to the Complainant the sum of Kshs 10,500,000/= or in default to serve a further 5 Years Imprisonment.
3. When the appeal came up for hearing, the Appellant abandoned all the Grounds of Appeal, except one. The Appellant submitted that the order requiring him to refund money to the Complainant was not based on any law or on any evidence of fact.
4. The Appellant drew this court’s attention to the evidence tendered by PW1, who had said he was still in possession of the land.
5. I perused the record of the proceedings and verified that the Complainant, NARESH KUMAR PATEL, testified that he was still in possession of the land L.R. KISUMU/KONYA/2836.
6. In my considered opinion, the case against the Appellant and his co-accused was not about the occupation of the said parcel of land.
7. The Complainant paid money to the Appellant, for the purchase of L.R. NO. KISUMU/KONYA/2836. In effect, the Appellant held himself out as the lawful owner of the land in question.
8. However, it later transpired that the land belonged to HANNINGTON OLUOCH.
9. Whether or not the Complainant was still in occupation of the property, did not alter the fact the said property lawfully belonged to Hannington Oluoch.
10. I note that the Appellant did not challenge his conviction. He also did not challenge the sentence of Kshs 100,000/= or in default 6 Months Imprisonment.
11. It therefore follows that the trial court’s finding, that the Appellant had obtained the sum of Kshs 10,500,000/= by falsely pretending that he would transfer legal ownership of L.R. KISUMU/KONYA/2836, to the Complainant, remains firmly in place.
12. The offence of Obtaining by False Pretences was enacted at Section 313of the Penal Code.
13. Pursuant to that statutory provision;
“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 misdemeanor and is liable to imprisonment for threeyears.”
14. The court is enjoined to enforce the law. When a statute spells out the sentence in respect of any particular offence, the court has an obligation to exercise its discretion within the scope of the law as prescribed.
15. I fully appreciate the feelings expressed by the learned State Counsel, when he said that the Appellant should not be released, to go and enjoy the money which he had obtained through false pretence.
16. Much as that view might curry favour with many people, because it could act as a deterrence, I find that the said sentence is in excess of what Parliament had prescribed.
17. The Appellant could have been sentenced for up to 3 Years Imprisonment.
18. Accordingly, I have no alternative but to hold, as I hereby do, that the sentence of 5 Years Imprisonment was not lawful. It is therefore set aside.
19. However, before concluding this Judgment, I wish to make it crystal clear that by setting aside the sentence of 5 years imprisonment, this court is not excusing the Appellant in respect to the money he had received from the Complainant.
20. It remains open to the Complainant to take appropriate legal steps to recover the money which had been obtained fraudulently.
21. Finally, I order that unless the Appellant was otherwise lawfully held, he should be set at liberty forthwith.
DATED, SIGNED and DELIVERED at KISUMU
This10thday of February2020
FRED A. OCHIENG
JUDGE