https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11674

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENTA AT NAIROBI** **CRIMINAL DIVISION** **CRIMINAL APPEAL NO. E 029 OF 2022** **THOMAS NG'ANG'A MUNENE ---------------------------------APPELLANT** **VERSUS** **REPUBLIC -----------------------------------------------------------RESPONDENT** ***(Appeal by Thomas Ng'ang'a Munene from the Conviction and Sentence of the Honourable Senior Principal Magistrate P.O. Ooko Esq. Delivered at Nairobi on 24th February 2022).*** **JUDGMENT** **INTRODUCTION** 1. The Appellant herein THOMAS NG'ANG'A MUNENE being aggrieved and dissatisfied by the Conviction and sentence of the Learned Senior Principal Magistrate Honourable P.O Ooko, appealed against the whole of the judgment delivered on 24th of February 2022. 2. The petition of appeal raised the following grounds;- 3. The Learned trial Magistrate erred in law in delving outside the scope of a subordinate court exercising criminal jurisdiction, into the province of a probate court and consequently pronounced himself prejudicially on issues reserved for a probate court. 4. The learned trial Magistrate erred in law in making a finding that the prosecution had proved the offence or forgery whereas the prosecution never led any evidence to establish mens rea. 5. The Trial Court erred in law and in fact by holding that the Appellant actions of drawing the transfers for the benefit of the heirs of deceased partners of Gakurwe Land and Estate Agencies was designed to defraud legatees of the estates therein. 6. The learned trial magistrate erred in law in failing to consider evidence establishing that the surviving heirs of the deceased partners made a business decision to sell, and the Appellant was only enforcing their collective decision expressed in written minutes for their benefit as a partnership. 7. The learned trial magistrate erred in law in failing to appreciate that whereas there was a mix-up of the application and implication of the repealed Partnerships Act, Cap 29, the repealed Business Names Act, Cap 488, the repealed Registration of Titles Act, Cap 281 and the Laws of Succession Act, Cap 160 laws of Kenya; such a mix-up was in good faith for the benefit of the deceased heirs. 8. The trial Court was hostile to the appellant during the hearing and descended into the arena of dispute and this is reflected in the acerbic and totally discourteous language extended to the Judgement. 9. The Trial Court failed to consider relevant material circumstances of the transactions herein as follows; * Ignored the evidence of meetings held by all parties; * The evidence by witness who clearly said the assets be sold and meetings approved by them; * The alleged entitled victims originated the process, and none claims that the proceeds were defrauded; * Various courts had granted full rights to various administrators each legally empowered to dispose the properties in the absence of the complainant; * Failed to ascertain who was defrauded and the extent thereof. 1. And the Appellant prayed that the appeal be allowed on the aforesaid grounds and considering that there was no economic loss to any beneficiary and majority of the beneficiaries had letters of administration through which they expressed their approval of the transaction. **ISSUES FOR DETERMINATION** 1. The following issues for determination arise from the grounds of appeal preferred;- **a).** whether the evidence adduced by the prosecution was sufficient enough to establish the charges of forgery. **b).** whether the trial magistrate acted within the law in convicting the appellant on what were essentially matters of a probate nature. **c).** whether the trial court had jurisdiction to try the offences given the circumstances under which the offences were allegedly committed. **d).** whether the trial court was biased against the appellant. 1. The parties agreed to dispose off the matter through written submissions but it was the appellant who managed to file their submissions and at the hearing Counsel for the respondent elected to make oral submissions with the leave of the court. **APPELLANT’S SUBMISSIONS** 1. The appellant challenges the conviction and sentence arising from Milimani Criminal Case No. 595 of 2013, wherein he was convicted on four counts of forgery in relation to the preparation and execution of sale agreements and transfer documents concerning partnership properties belonging to Gakurwe Land and Estate Agencies. 2. The Appellant submitted that the criminal trial was improperly founded upon what was, in substance, a family and succession dispute among beneficiaries of deceased partners, rather than a genuine criminal enterprise. 3. The appellant further argued that whereas a minority of beneficiaries later complained, the broader evidence demonstrated that the majority of the nine families had participated in meetings, sanctioned the sale, appointed representatives, and received proceeds of sale, thereby revealing that the complaint was largely motivated by dissatisfaction over distribution rather than forgery or fraud. 4. The appellant further submitted that the learned trial court erred in law by venturing into matters properly falling within probate and succession jurisdiction. 5. Counsel contended that the central issue was whether beneficiaries and representatives of deceased partners properly dealt with estate property absent complete letters of administration, a matter more appropriately addressed under Section 45 of the Law of Succession Act on intermeddling, rather than through criminal prosecution under Section 350 of the Penal Code. 6. In this regard, reliance was placed on ***Gerald Mwangi Gatimu v******Republic (Muranga HCCA No. E003 of 2023****)* where the court held; “35. whenever a private individual makes a report that concerns a matter that is clearly of a civil nature to the police and the same finds its way to a criminal court, it gives the impression that the conduct of such prosecution is being managed outside the circumference provided by Article 157 of the constitution, which should never be allowed. Such prosecutions amount to abuse of both the criminal justice system and the court process.” 1. The appellant therefore submitted that the prosecution herein was weaponized to advance private dissatisfaction in a succession dispute, despite the trial court itself acknowledging that disputes concerning entitlement were matters better suited for probate determination. 2. On the legal ingredients of forgery, the appellant submitted that the trial court failed to properly direct itself on the essential requirement of mens rea. The appellant relied on ***Caroline Wanjiku Ngugi v Republic (Criminal Appeal 11 of 2013) [2015] KEHC 854 (KLR)*,** wherein the court restated the ingredients of forgery and cited *Sukanti Choudhury vs State of Orisa* to the effect that for forgery to be proved, the prosecution must establish that the document was forged, that it was used as genuine, that the accused knew or had reason to believe it was forged, and that it was used fraudulently or dishonestly. 3. The same authority further emphasized that forgery consists of false making or material alteration of a document with intent to defraud. 4. The Appellant also cited *Alake vs The State*, as adopted in *Caroline Wanjiku Ngugi v Republic*, for the proposition that the prosecution must prove not only existence of a false document, but also that the accused personally forged it, knew it to be false, and intended it to be acted upon to the prejudice of another. 5. On fraud, the Appellant relied on *Margaret Mukomugaa v Samuel Kingirwa Amuru, Ciabaipwi Amuru, Kaberia Amuru, Land Adjudication Officer Tigania District & Attorney General (Environment and Land Appeal 132 of 2019) [2021] KEELC 3099 (KLR)*, where the court stated: “Fraud is essentially a common law tort of deceit… It is, of course, possible for the tort of fraud to constitute a criminal offence when accompanied by the appropriate mens rea.” 1. Similarly, in ***Felix Cira Misheck v Republic [2020] KEHC 8874 (KLR****)*, cited by the appellant, the court held that in forgery cases the prosecution must establish that the accused knowingly and fraudulently uttered a false document with intent to deceive, injure, or defraud. 2. The Appellant submitted that the authorities cited above demonstrate that criminal liability for forgery cannot arise merely from irregular documentation, negligence, or mistaken legal procedure absent proof of guilty intent. 3. Counsel argued that although some discrepancies existed in names, photographs, or execution of documents, the evidence showed that beneficiaries themselves initiated, negotiated, and approved the sales process through meetings, letters, and advocates. 4. The appellant therefore maintained that his role was limited to facilitating a transaction authorized by the beneficiaries and that no evidence established that he acted with intent to deceive or personally benefit from fraud. 5. In further support of the indispensability of criminal intent, reliance was placed on ***Philip Muiruri Ndaruga v Republic (Criminal Appeal 76 of 2012) [2016] KEHC 4252 (KLR)***where the court held: “it is a cardinal principle of criminal jurisprudence that mens rea of the accused persons is very much essential ingredient to prove the guilty against the accused… The essence of criminal law has been said to lie in the maxim actus non facit reum nisi mens sit rea.” 1. The appellant thus argued that no mens rea was established against him and that, at highest, the facts disclosed negligence arising from statutory confusion involving succession law, partnership law, and conveyancing procedure. 2. The appellant went on to posit that the properties were partnership assets and that the Appellant’s reliance on the Partnership Act, beneficiary instructions, and existing letters of administration for several estates reflects legal confusion rather than fraudulent design. 3. Finally, the appellant contended that the trial court’s hostile language against him, including characterizing aspects of his testimony as “an outright lie” and using disparaging expressions, betrayed judicial hostility inconsistent with Article 50’s guarantee of a fair and impartial hearing. 4. In conclusion, the appellant submitted that the prosecution failed to prove forgery or fraud beyond reasonable doubt because the authorities cited consistently require proof of intentional deception, fraudulent knowledge, and mens rea, none of which were established. 5. The appellant urged this Honourable Court to find that the conviction was founded upon mischaracterization of a succession dispute, quash the conviction, set aside the sentence, and allow the appeal. **RESPONDENT’S SUBMISSIONS** 1. The respondent’s counsel made oral submissions and referring the court to Page 23 of the original record and Page 25- Mwangi Kagoe’s – photo, signature, PIN, ID, it was submitted that he had already died thus the signature appearing on the document could not be his signature as of 3rd March 2010. 2. Counsel went on to refer to Page 25 of the record and submitted that Gichatha Githinji was also dead as at the time he was purported to have signed documents since he had died in 2002. 3. Counsel further highlighted Page 26 of the record and submitted that Mwangi Gathira died on 12th May 2010 but was said to have signed on 3/3/2010. Evidence showed at the time he was said to have signed the documents he was unwell and could not have signed. 4. The prosecution counsel urged the court to consider the evidence of Pw5 who denied that the father was aware of the sale as at the time he died and that the signature appearing on the document of sale was not that of the deceased for he used to sign as Mwangi Githira yet the document indicated M. Mwangi thus asserting that the signature was not that of the father. 5. Counsel went on to submit that the people named in the sale agreement were deceased when the document was said to have been signed by them. 6. The court was also referred to the evidence of PW2 who denied knowledge of the sale. 7. It was further submitted that the Advocates should have ensured all beneficiaries consented to the sale. 8. According to the respondents counsel an advocate of 30 years should have been truthful in his dealings. 9. Further the respondents urged the court to find that he made the document. He knew the some of the signatories were deceased at the time of making the documents. 10. The court was urged to invoke constructive mens rea and presume that it existed throughout the transaction, counsel invoked Section 348 of Penal Code and submitted that the families of the deceased persons were defrauded. 11. Further, counsel submitted that the buyer was also defrauded. According to Counsel the buyer didn’t know that the documents were false. The advocate for the buyer was innocent. 12. According to the respondents the duty of disclosure of the true state of affairs lay on the appellant to ensure the right people signed the documents. The issue of the sale whether eventually cancelled did not feature and was immaterial. 13. The respondents further argued that even under Section 45 of the Law of Succession Act which the appellant sought to invoke charges would still have been laid in the Criminal court. Counsel argued that Offences under the Law of Succession Act are to be tried in the ordinary criminal court and not the family court thus the trial magistrate was properly seized of the matter. 14. The appellants defence in the Lower court was considered and correctly dismissed as an advocate is not allowed to forge documents even when acting on the instructions of a client. 15. Counsel urged this court to reject the new line of defence that they were simply negligent. According to the respondents the consequences of the forgery were foreseeable and the appellant must be held accountable. 16. Further, the respondent urged the court to find that there was no Judicial bias on the part of the magistrate. Counsel urged the court to apply the standard of a fair minded and objective observer. In any event no complaint of bias was raised all through. 17. According to the respondents the intention to commit the offenses of forgery and fraud could be inferred thus the conviction was safe and the sentence imposed was proper. **ANALYSIS AND DETERMINATION** 1. This being a first appeal this court is expected to undertake a re-evaluation of the evidence tendered before the trial court and subject the same to afresh and exhaustive examination and draw its conclusions and findings whilst remembering that unlike the trial court, the court did not have the advantage of seeing or hearing the witnesses. See **Okeno vs Rep {1972} EA 32** 2. The appellant raised the issue of jurisdiction of the Magistrate to try what according to him were offenses committed within a probate cause. 3. The appellant argued that the issue fell under Section 45 of the Law of Succession Act and in his view the appropriate court would have been the family court dealing with the matters in connection with the properties and estates of the deceased persons. 4. The respondents maintained that the Criminal court was the court vested with jurisdiction to deal with the charges preferred against the appellant because they were Penal code offences and even the offence under Section 45 of the Law of Succession Act would be triable by the Magistrate court exercising criminal jurisdiction. 5. Jurisdiction is a threshold issue that should be determined *in limine*. The courts jurisdiction once found to have been wanting, all that was done by the court would be rendered null and void. See **Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) ltd (1989) KECA 48**. 6. This court in addressing this appeal must therefore determine whether the trial court was properly seized of the matter and as such whether the conviction and sentence were safe. 7. The appellant was charged with four counts of Forgery of a document of Title to land contrary to Section 350(1) as read with Section 349 of the Penal Code. 8. He was also charged with two counts of Fraudulent Disposal of Trust property contrary to section 327 of the Penal Code. 9. In addition, he also faced two counts of Obtaining Registration of Land by false pretences contrary to Section 320 of the Penal Code. 10. All the offences charged were penal code offenses and he was tried and convicted by the learned Hon Senior Principal Magistrate P.O Ooko sitting at Milimani Chief Magistrates Court. 11. The penal Code under Sections 2 and 5 confers jurisdiction upon the courts of Kenya to try any person for offences committed within the terra firma of Kenya. The trial for the appellant was conducted by a competent court and the offences that the appellant was charged with were offences known in law. 12. The fact that the circumstances of the offences involved matters probate, that by itself could not oust the jurisdiction of the court. 13. The Magistrates Court Act Section 6 further confers criminal jurisdiction on the Magistrates court and the jurisdiction is to be exercised in line with the Criminal procedure code or any other written law. 14. The appellant thus cannot be heard to argue that since the alleged offences were connected to succession issues the Magsitrate could not try them. 15. The jurisdiction of the family court in dealing with estates of deceased persons does not exclude the criminal courts from entertaining criminal matters that arise from Succession related matters. 16. The issue of jurisdiction therefore was taken without merit and it is important to note that during the trial in the lower court the matter was not raised at the plea stage and throughout the proceedings. The challenge is clearly an afterthought. This court finds that the learned Honorable Magistrate was within the law to try the matter thus the court finds no merit in that ground of appeal and is accordingly dismissed. 17. The second issue that the appellant raised was on bias on the part of the trial court during the trial. 18. The question of bias ought to have been raised with the trial court and established by the appellant. The appellant having failed to seek disqualification of the Magistrate during the trial cannot seek to overturn the judgment of the trial court at this stage on the basis of judicial bias. 19. As correctly submitted by counsel for the respondent, the test to be applied on the issue of bias is that of a reasonable fair-minded informed observer to determine whether indeed there was real possibility or reasonable suspicion of bias. See **Metropolitan Properties Co. (FCG) Ltd Vs Lannon {1969}1 Q.B 577** 20. I have gone through the proceedings of the lower court and did not find any evidence to suggest biasness on the part of the court. The appellant was accorded opportunity to test the evidence of all the prosecution witness as well as tender his defense. 21. This court did not find anything on record that could point to bias on the part of the court and the appellant in this courts view, only seems to be aggrieved by the language and tone of the magistrate in the judgment. Having read the judgment, this court did not find use of any objectionable language by the court that could invite a presumption of bias. 22. The ground of judicial bias cannot therefore succeed. 23. Thirdly, the appellant urged the court to find that there was no mens rea proved against him and that there was no evidence to suggest that he stood to benefit from the commission of the offences. 24. The appellant urged this court to find that there was no criminal intent and that all there was confusion as a result of erroneous application of multiple laws. The appellants pleaded innocence by stating that there was a mix-up of the application and implication of the repealed Partnerships Act, Cap 29, the repealed Business Names Act, Cap 488, the repealed Registration of Titles Act, Cap 281 and the Laws of Succession Act, Cap 160 laws of Kenya; such a mix-up was in good faith for the benefit of the deceased heirs. 25. The court finds this ground of appeal perplexing because the issue that was of concern in the trial court was whether documents prepared by the appellant and executed by the appellants clients were forgeries and that some of the alleged signatories were deceased at the time of the execution of the document except one who was said to have been unwell at the time he was alleged to have signed the document. 26. The court is unable to understand how counsel could attribute the signing of documents by deceased persons to confusion and misapplication of the law. 27. Further, the appellant in his defence admitted that he handled the transactions and that indeed the documents were prepared by his firm. The fact that there was evidence of deceased persons having signed the documents in issue is sufficient enough to prove that the forgery of the documents was a deliberate and calculated act at effecting a sale or disposal of the properties. 28. The evidence of PW1 Stephen Nganga Ndungu was that he is an advocate of the High Court of Kenya practicing under the firm of Wachira Ndungu & Co. Advocates. 29. He stated that he acted for David Gitonga Amuru in a conveyancing transaction involving Land Reference Numbers 209/136/128 and 209/136/129 located around River Road and Kirinyaga Road within Nairobi. He testified that sometime in January 2010 his client approached him after identifying the said properties and negotiating for their purchase at an agreed consideration of Kshs. 52 million. 30. He further stated that the vendors were represented by Munene & Co. Advocates. He received a draft sale agreement from Munene & Co. Advocates, proposed amendments which were incorporated, and the final agreement dated 21st January 2010 was executed. He confirmed that he witnessed the execution by the purchaser, David Gitonga Amuru, in his presence, while execution by the vendors was done before Munene $ Nganga Advocate. He listed the vendors as Peter alias Wamuthi Kairo, Mwangi Kagoe, Gichuthu Githindi, Kinyeru Githinji, Maheru Njenga, Mwangi Gathra, Muya Kamami, Hannah Kirigu Thuku as personal representative of Eliud Thuku Mwangi deceased, Hellena Gathoni Kibuthe, and Mwangi Kayoe as personal representative of Kibuthu Kayoe deceased. 31. He further told the court that although he did not meet the vendors personally, he was provided with copies and later originals of title documents which he perused before completion of the transaction. 32. He produced copies of the titles, the transfer documents, and the vesting assent. He explained that personal representatives derive authority from grants of probate or letters of administration and that the responsibility of confirming the vendors’ capacity to pass title lay with the vendor’s advocate, Munene Nganga. He further testified that police officers including PC Langat and Mary Ademo later questioned him regarding the transaction. 33. The evidence of Pw1 connected the appellant to the transaction in material particulars and the fact that he argues that all that he did was out of an error the court is persuaded that the appellant quietly acknowledges his role in drawing the documents thus he cannot run away from them in the face of the evidence adduced by the prosecution which this court finds overwhelming and sufficiently established all the ingredients of the offences charged. 34. The appellant had a duty to undertake due diligence before preparing documents that were essentially forgeries and were utilized to dispose of trust properties. 35. In forgery related offences the burden on the prosecution is to prove beyond a reasonable doubt the ingredients of the offence in order to succeed. The Court of Appeal in Joseph Mukuha Kimani v Republic (Criminal Appeal No. 76 of 83) [1984] eKLR held: “The prosecution must prove that: **(a)** The document was false; in the sense that, it was forged **(b)** The accused knew it was forged **(c)** The utterer intended to defraud. 36. In the case of KILEE v REPUBLIC [1967] EA 713 at p 717, it was said that, the false document must tell a lie about itself and not about the maker. We think the position is better put, by stating that, the false document is forged if it is made to be used as genuine. To defraud is, by deceit, to induce a course of action: OMAR BIN SALEM v R[1950] 17 EACA 158, and to defraud, is not confined to the idea of depriving a man by deceit of some economic advantage or inflicting upon him some economic loss, see SAMUELS v REPUBLIC[1968] 1.” 37. Mativo J in Caroline Wanjiku Ngugi v Republic[2015] eKLR held that: “Forgery is the false making or material alteration of a writing, where the writing has the apparent ability to defraud and is of apparent legal efficacy with the intent to defraud. Thus the elements of forgery are:- **i.** False making of – The person must have taken paper and ink and created a false document from scratch. Forgery is limited to documents. “Writing” includes anything handwritten, type written, computer generated or engraved. **ii.** Material alteration – the person must have taken a genuine document and changed it in some significant way. It is meant to cover situations involving false signatures or improperly filing in blanks on a form or altering the genuine contents of the document. **iii.** Ability to defraud – The document or writing has to look genuine enough to qualify as having ability to mislead others to think its genuine. **iv.** Legal efficacy – the document or writing has to have some legal significance. **v.** Intent to defraud – the specific state of mind for forgery does not require intent to steal but only intent to fool people. The person must have intended that other people regard something false as genuine. A forgery may be committed either by handwriting, through the use of type writer or a computer.” 1. The prosecution was able to establish beyond a reasonable doubt that the documents prepared by the appellant were forgeries and they were intended to deceive the buyer of the property that they were genuine. 2. The appellant cannot hide behind the fact of a succession dispute on distribution of properties to evade liability. 3. He drew documents that were established to be forgeries thus it matters not whether he stood to benefit from the proceeds of the sale. Forgery is complete once the document is proved to be false and is made with the intention to deceive and in this case the intention was to deceive the buyer as per the evidence of Pw1. 4. The actions of the appellant were clearly not innocent when one considers the evidence of PW2 Lucy Njoki Kinyeru who testified that she owned property comprising two houses in Grogan and that the same was sold without her knowledge or consent. She identified documents presented to her and stated that although her photograph appeared on the documents, she did not sign them and the signature attributed to her was not hers but that of her co-wife’s son Julius Kihia Kinyeru. 5. She testified that her husband Zedekiah Kinyeru Githanji died in July 2000 and that she together with Hannah Mbaire were administrators of his estate. She further stated that she was not consulted regarding the sale and would not have agreed to it. She confirmed that she received Kshs. 2.5 million deposited into her account by Munene but stated that she did not know that the money was proceeds of the sale of the property. She identified Mwangi Kayoe as the father of the 3rd accused and stated that many of the original owners of the property were deceased. She maintained that she never consented to the sale and that her identification details appearing on the documents were incorrect. 6. During cross-examination by Mr. Mutitu for the 3rd accused, she admitted that she shared the Kshs. 2.5 million among her children and attended one meeting but maintained that she did not consent to the sale. 7. The transaction was therefore fraudulent and all the documents in this courts view were executed knowingly by the appellant and the distribution of money to some of the witnesses such as Pw2 was in a bid to sanitize an illegal transaction. 8. Having considered the totality of the evidence adduced by the prosecution in this case, the defense of the appellant and the submission by counsel for both parties, this court finds that the conviction and sentencing of the appellant was safe. 9. The appeal has no merit and is accordingly dismissed in its entirety. 10. It is so ordered. **DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 23rd day of JUNE 2026**. **A. M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Odhiambo for Appellant Mogere for Respondent