https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7763

Kamau v Republic (Criminal Appeal E019 of 2025) [2026] KEHC 7763 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 7763 (KLR) Republic of Kenya In the High Court at Embu Criminal Appeal E019 of 2025 RM Mwongo, J June 3, 2026 Between Simon Ndungu Kamau Appellant and Republic Respondent (Appeal arising from the decision of Hon. S.K. Ngii in the Siakago Magistrate’s Court Criminal Case No. E852 of 2025 delivered on 16th April 2025) Judgment The Charges 1.The appellant was charged with the offence of possession of paper or implements of forgery contrary to section 367(a) of the Penal Code. Particulars were that on 12th December 2024 at around 2300hrs at Kiritiri market in Mbeere South Subcounty within Embu County, without lawful authority or excuse, the appellant and another, knowingly had in his possession papers intended to resemble and pass as a special paper such as is provided and used in making currency notes of five (5) denomination of Kshs.500/= and 2 of denomination of Kshs.1,000/=. 2.He pleaded not guilty to all the charge and the matter went to full hearing. He was convicted and the trial court noted that the appellant was a repeat offender. The court thus, sentenced him to 4 years imprisonment. The Appeal 3.Being dissatisfied with the decision of the trial court, the appellant filed a petition of appeal dated 17th April 2025 seeking that the appeal be allowed, the conviction be quashed, and sentence set aside and that he be set at liberty. The grounds of appeal are as follows:1.That the learned trial magistrate still erred in both matters of laws and facts by failing to consider the irregularities occasioned in the prosecution's case;2.That the learned trial magistrate still erred in both matters of laws and facts by failing to make proper findings that the appellant was not in possession of the said papers;3.That the learned trial magistrate still erred in both matters of laws and facts by convicting and sentencing the appellant highly based on uncorroborated evidence; and4.That the learned trial magistrate erred in law and facts by disallowing the appellant's alibi which had likelihood to believe. Summary of the Evidence at trial 4.PW1 was PC Esther Mutua of Kiritiri Police Station who stated that she was informed about suspicious people onboard motor vehicle registration number KBV 026M and they had fake currency. She went to the scene where she found the appellant and his accomplice and they recovered 2 notes of Kshs.1,000/= and 5 notes of Kshs.500/= in an envelope. The appellant was taken to the police station. She forwarded the notes to Central Bank of Kenya who confirmed in writing that the notes were forgeries of genuine currency. As a result, the appellant and his accomplice were charged with the offence. 5.In cross-examination, she denied that her informer was a government employee. That the vehicle was searched in their presence, and that no photographs were taken showing him with the fake money. She stated that she was the one who investigated the case. That her informer told her that the appellant and his accomplice had fake money. 6.PW2 was PC Martin Munene Riungu of Kiritiri Police Station who stated that PW1 informed him that an informer has told her that there were 2 people at the market place with fake currency. When they arrived at the scene, they found the appellant and his accomplice. They searched their motor vehicle and found 2 notes of Kshs.1,000/= and 5 notes of Kshs.500/=. 7.He stated that the vehicle also had some mangoes and a boy who told them that he had been offered employment by the appellant and his accomplice. On cross-examination, he stated that the envelope containing the fake money was tucked away in the steering wheel joint. That the appellant was taken to the police station in a police vehicle and that their vehicle was driven away by a mechanic on the instruction of PW1. 8.In his defense, the appellant stated that on the day of the incident, he took his ailing labourer to Ishiara and then he went to Kanyuambora to pick some mangoes. He used the Siakago route and while there, he called a certain girl whom he was to meet and she redirected him to Kivaa. He went to Kivaa and picked up the girl who would then become his employee. He drove to Kiritiri and parked his vehicle by the roadside as the girl went to collect her clothes. He was in the car with his other labourer when PW1 and PW2 arrived and asked what was in the car. 9.He opened the boot for them and then they ordered him to sit on the back seat of the car as they searched the car. They did not find anything and PW1 tried to drive the car away but in vain. In PW1’s hands, the car seemed to have a mechanical problem. It turned out to be a puncture and they called a mechanic. He heard the police officers speaking like they had uncovered something suspicious in the car. 10.He inquired about the suspicious thing found but they arrested him and his labourer and took them to the police station where they were locked up. The following day, PW1 told them about the fake notes and she told him to sign some documents in that regard. They refused to sign and she recommended that the appellant be prosecuted since it was not the first time he was found in possession of fake currency. 11.He stated that the witnesses contradicted themselves regarding where the fake money was found; one saying that the notes were on the dashboard while the other said they were found in the steering wheel joint. He stated that he would have called his labourers as witnesses but he did not have the means to do so. He also contended that the police did not disclose their informer nor did they call him/her as a witness. Parties’ Submissions 12.The parties to the appeal were directed to file their written submissions and they both complied. 13.The appellant submitted that the trial court erred in convicting him based on the evidence of the prosecution which did not meet the threshold of proof. That PW1 alluded to a letter from central bank but the writer of the letter did not testify to produce it. He stated that the fact that the prosecution failed to call the informer as a witness does not prove its case and does not shift the burden of proof to the appellant. He asserted that the alleged fake notes found were not photographed on site and that they were placed in his vehicle conveniently so that they could be found by the police. He stated that there were mangoes in his car which he was transporting to Nakuru to sell as that was his usual business. He stood by his evidence and urged the court to allow the appeal since the offence had not been proved beyond reasonable doubt. 14.The respondent relied on sections 2 and 367(a) of the Penal Code and stated that the testimonies of the prosecution witnesses prove that the recovery was made in the full sight of the appellant. It relied on the case of Ogolla s/o Owuor v Republic [1954] EACA 270. It argued that the trial court departed from the prescribed sentence of 7 years imprisonment and sentenced the appellant to 4 years imprisonment which was not excessive, given that the fake money recovered was meant to pass as Kshs.1,500/=. Issues for Determination 15.The issues for determination are the following:1.Whether the offence was proved beyond reasonable doubt; and2.Whether the sentence imposed should be set aside. Analysis and Determination 16.This court is well aware of its obligations as a first appellate court, which is that it must review the evidence at trial and reach its own conclusion. This is the guidance given in the case of Okeno v Republic (1972) E.A 32 where the Court of Appeal held:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion. It must make its own finding and draw its own conclusions only then can it decide whether the magistrate’s finding should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 17.Section 367(a) of the Penal Code Provides:“Any person who, without lawful authority or excuse, the proof of which lies on him (a) makes, uses or knowingly has in his custody or possession any paper intended to resemble and pass as a special paper such as is provided and used for making any bank note or currency note, is guilty of a felony and is liable to imprisonment for seven years.” 18.The prosecution was tasked with proving beyond reasonable doubt that the appellant either made, used or knowingly had in his custody or possession a paper intended to resemble and pass as a bank note. PW1 stated that the police were tipped off by an informer about suspicious people in Kiritiri town, having fake money. She went to the scene with PW2 and there, they found the appellant and his accomplice. Upon searching his motor vehicle, they found an envelope which had been stitched closed and hidden in the steering wheel joint. She took the envelope and arrested the appellant. She produced copies of the papers mimicking bank notes as evidence. 19.PW2 also testified that the appellant was caught with the papers that looked like currency near his steering wheel, and he was arrested and detained. The vehicle he had was driven to the police station by a mechanic upon PW1’s request. 20.In his defense, the appellant made out a case for himself contending that he was only going about his usual business when PW1 and PW2 came to his vehicle and searched it. That they allegedly recovered the fake money from his car but he knew nothing about the fake money. It was his case that if any informer had told the police of the incident, such informer should have been called as a witness but none was called by the prosecution. He denied that the prosecution had proved its case against him. 21.PW1 stated that the police informer could not be named or called as a witness because they had to be protected given the nature of their work. The appellants other contention in this appeal was that one Eric Mutai who examined the fake notes at Central bank was not called as a witness to produce his findings as evidence. 22.Section 77 of the Evidence Act allows the trial court to admit and consider the letter from Central Bank analyzing the fake notes, as evidence. It states:“(1)In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.(2)The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it.(3)When any report is so used the court may, if it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist, as the case may be, and examine him as to the subject matter thereof.” 23.Under this provision, the author of the letter could have been called as a witness if the trial court thought it fit to call him. In this case, the letter was produced into evidence by the investigating officer. As part of the prosecution evidence, he had the power to do so. Moreover, from the trial court’s proceedings, at the point of producing the said document as evidence, the appellant neither objected nor did he demand that the document author be called as a witness. Therefore, it is too late in the day to complain about the letter which was considered as evidence. 24.From analysis of this evidence, the prosecution made out a case against the appellant and the appellant’s evidence did not weaken the prosecution’s case in any way. Therefore, the trial court did not err in its findings on conviction. 25.On sentencing, the trial court took into account the circumstances of the case and sentenced the appellant to 4 years imprisonment. In the case of Benson Kiarie Ngugi v Republic [2007] KEHC 491 (KLR), the trial court sentenced the appellant to 2 years imprisonment for being in possession of papers whose features resembled bank notes of Kshs.1,000/= and Kshs.500/= bank notes. However, the first appellate court set aside the conviction in that case which was founded on an equivocal plea of guilty. 26.In Mbogo v Republic [2022] KEHC 16065 (KLR), the appellant was found in possession of 106 bundles of counterfeit US dollars currency notes equivalent to Kshs.106,000,000/=. The first appellate court considered that the punishment for the offence did not provide for an option of a fine. The conviction was upheld and appellant in that case was sentenced to pay a fine of Kshs.300,000/=, in default to serve 2 years imprisonment. That court considered the option of a fine because the appellant pleaded it. Conclusion and Disposition 27.Looking at these 2 decided cases, the sentence imposed by the trial court was harsh and unproportionate in the circumstances. Offenders who commit offences of a like nature should suffer consequences that are similar so far as possible in the circumstances of each said case. 28.Accordingly, I find that the appeal must partially succeed and I order as follows:1.The conviction and sentence by the trial court is hereby upheld;2.The sentence of 4 years imprisonment is hereby set aside and substituted with a sentence of 2 years imprisonment. 29.Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 3RD DAY OF JUNE, 2026.R. MWONGOJUDGEDelivered in the presence of:1. Appellant present in Court2. Mwaniki for the Respondent3. Francis Munyao - Court Assistant