[1979] KEHC 8 (KLR)
The court found that the prosecution failed to prove that the appellant obtained credit by fraud as required under section 317 of the Penal Code. In counts 1, 3, and 4, the appellant obtained goods, not credit, by false pretences, as he either did not request credit or was denied it. In count 2, although credit was...
Source-derived case information.
- Citation
- [1979] KEHC 8 (KLR)
- Parties
- Appellant: Silas Anditi Kojewi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 351 of 1979
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed
- Legal Topics
- Obtaining Credit by False Pretences, Interpretation of Penal Code, Elements of Fraud, Criminal Liability, Cheque Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silas Anditi Kojewi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant obtained credit by false pretences within the meaning of section 317 of the Penal Code.
- 2 Whether the prosecution proved that the appellant obtained credit by fraud as required by law.
- 3 Whether the convictions on all four counts could be supported on the evidence adduced.
Ratio Decidendi
The court found that the prosecution failed to prove that the appellant obtained credit by fraud as required under section 317 of the Penal Code. In counts 1, 3, and 4, the appellant obtained goods, not credit, by false pretences, as he either did not request credit or was denied it. In count 2, although credit was extended, it was not obtained by fraud. The legal requirements for the offence were not satisfied, and thus the convictions could not stand.
Court Disposition
appeal allowed
Orders
- The convictions entered by the magistrate are quashed.
- The sentences awarded by the magistrate are set aside.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
HIGH COURT APPELLATE SIDE NAIROBI
CRIMINAL APPEAL NO 351 OF 1979
SILAS ANDITI KOJEWI ...............................APPELLANT
VERSUS
REPUBLIC...................................................RESPONDENT
JUDGMENT OF THE COURT
The appellant was convicted on four counts of obtaining credit by false pretences, contrary to section 317 of the Penal Code, on charges alleging that in incurring a debt or liability he obtained credit by falsely pretending that he was in a position to pay for goods which were supplied to him.
In respect of counts 1,3 and 4, the magistrate found that the appellant bought goods by means of cheques which, on presentation to the bank, were not met, and which he knew, when he gave them, could not be met; in one case (that charged under count 3) having previously asked for, and been denied, credit. In respect of count 2, the magistrate held that the appellant was granted credit for thirty days upon certain conditions; one of them being that the ownership in the goods supplied to him would not pass until the whole of the purchase price for them had been paid; and that he not only did not make payment for them within that time (or at all), but sold them. Accordingly, on these findings the appellant committed the offences of obtaining goods by false pretences on the evidence adduced for counts 1,3 and 4, and theft on the evidence adduced for count 2. (Whether he also committed other offences, save those for which he was convicted we do not need to consider). Unfortunately (for the appellant appears to be a thoroughly dishonest man), none of his convictions can be supported. Nor did the Republic seek to support them. We now explain why.
On the authority of Fisher v Raven[1964] AC 210, the expression “obtains credit” in section 316 of the Penal Code must mean obtains credit in respect of the payment or repayment of money, and has no wider meaning; whilst, on the authority of R v Jones,[1898] 1 QB 119, three elements need to be considered when construing the section: there must be the incurring of a debt or liability, there must be an obtaining of credit, and there must be fraud. It is true that none of the complainants has had a penny back for the goods that they parted with (although some of the goods were recovered) and the appellant almost certainly intended to pay for none of them (and received money for them by resale); but what the prosecution had to prove (but could not) in order to secure convictions on the charges which they saw fit to set against the appellant, was that he got credit by fraud. They could not prove the charges because, in respect of counts 1, 3 and 4, the appellant gave his cheques for goods either without asking for credit or after his request for it was turned down; and, in respect of count 2, credit was offered to him and he accepted it. In other words, in three of the cases he obtained goods and not credit by his false pretences, and in the other case he got credit but did not get it by fraud.
We allow the appeal, quashing the convictions which the magistrate entered and setting aside the sentences which he awarded.
Appeal allowed.
Dated and delivered at Nairobi this 5th November 1979.
E. TREVELYAN
JUDGE
A.R.W HANCOX
JUDGE