[2023] KEHC 26396 (KLR)

Wainaina v Republic (Criminal Appeal E029 of 2023) [2023] KEHC 26396 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26396 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal E029 of 2023

AC Mrima, J

December 14, 2023

Between

Stanley Ngugi Wainaina

Appellant

and

Republic

Respondent

(Appeal arising out of the conviction and sentence of Hon. S. K. Mutai (Senior Principal Magistrate) in Kitale Chief Magistrate’s Court Criminal Case No. E333 of 2022 delivered on 6th April, 2023)

Judgment

Introduction and Background: 1. Stanley Ngugi Wainaina, the Appellant herein, was charged with the offence of Cheating contrary to Section 315 of the Penal Code, Cap. 63 of the Laws of Kenya.

2. The particulars of the offence were as follows: -On diverse dates between 7th September 2018 and 1st July 2019 at Kitale Township in Trans Nzoia County West Sub-County within Trans Nzoia County by means of fraudulent trick obtained a sum of Kshs. 3,616,800/= from Jonah Wandungu Njeri that he was in a position to import a Toyota Fortuner from Japan, a fact he knew to be false.

3. The Appellant denied the charge and he was tried. He was subsequently found guilty, convicted as charged and sentenced to a prison term of 12 months. That was on 6th April, 2023.

4. The Appellant, by now must have served the sentence. However, there is need to render this decision since it may have some ramifications on other related matters.

5. The Appellant was represented by Counsel both at trial and on appeal.

The Appeal: 6. In a Petition of Appeal dated 11th April, 2023, the Appellant preferred the following seven grounds of appeal: -a.That ……..b.………c.…..d.……e.…..f.…..g.…..

7. By the directions of this Court, the appeal was heard by way of written submissions. Both parties duly complied. Parties referred to several decisions in support of their rival positions.

Analysis: 8. This being the Appellant's first appeal, the role of this Court, as the first appellate Court, has been discussed in various decisions. In Okemo vs. R (1977) EALR 32 and in Mark Oiruri Mose vs. R (2013)eKLR, the Court of Appeal restated the role of this Court as being duty-bound as to revisit the evidence tendered before the trial Court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial Court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and that this Court ought to give allowance for that.

9. To enable this Court, discharge the said duty, a brief look at the evidence becomes eminent.

10. The prosecution called three witnesses in a bid to prove its case. The complainant testified as PW1. He was one Jonah Wandungu Njeri. He was a business man and hailed from Kiminini within Trans Nzoia County. He testified on how he agreed with the Appellant for the Appellant to import for him a Toyota Fortuner from Japan at a cost of Kshs. 3,500,000/=. That, he and his wife transferred a total of Kshs. 3,645,800/= to the Appellant who delivered a Toyota Fortuner registration number KCV 177Q. He promised to deliver the vehicle’s registration book (Log book) within 2 weeks. That never happened.

11. Sometimes in May 2021, as PW1 drove his vehicle within Kitale town, the vehicle was arrested by Auctioneers on allegations that the full price had not been paid and the vehicle was due for repossession. PW1 called the Appellant and informed him of what was happening. Surprisingly, the Appellant switched off his phone and disappeared.

12. Undeterred, PW1 conducted a search of the vehicle and found that it was registered in the name of Canon Motors Limited.

13. PW1 visited Canon Motors Limited in Mombasa and found out that the Appellant had a balance of Kshs. 2,030,500/= to clear so that he would be granted the vehicle’s log book. PW1 cleared the balance to curtail repossession. He then reported the matter to the police.

14. At the hearing, PW1 identified documents in support of the payments made to the Appellant and Canon Motors Limited.

15. PW2 was a spouse to PW1. She was one Tabitha Waruguru Kariuki. She largely corroborated the evidence of PW1. She was surprised of what the Appellant had done.

16. PW3 was the Investigating Officer one No. 69287 Cpl. Peter Maritim. He was stationed at the Trans Nzoia West DCI office.

17. He testified on the investigations he undertook when PW1 reported the matter to the police. He gathered evidence and travelled to Mombasa where he interrogated the owners of Canon Motors Limited, a duly registered dealing with importation and sell of vehicles. He recovered several documents including an agreement between the Appellant and the Company in respect of the vehicle.

18. On completion of investigations, he arrested the Appellant and charged him accordingly. He produced evidence of the amount of money the Appellant received from PW1 and the documents he collected from Canon Motors Limited.

19. At the close of the prosecution’s case, the trial Court found the Appellant had a case to answer and he was placed on his defence. He gave an unsworn defence without any witnesses.

20. The Appellant explained how he had agreed with PW1 on the importation of the vehicle which was a 2012 model at the total cost of Kshs. 4,500,000/=. He, however, realized that the 2012 model which PW1 wanted would take too long to be delivered due to the then prevailing Covid-19 restrictions. He, instead, decided to get a similar vehicle which had already been imported by Canon Motors Limited and was at the Company’s showroom in Mombasa, but its price was Kshs. 4,900,000/=. The vehicle was a 2016 model.

21. That, he paid the sum of Kshs. 2,500,000/= to Canon Motors Limited out of the Kshs. 2,966,800/= which he had received from PW1. He then delivered the vehicle to PW1. According to the Appellant, PW1 failed to pay the balance of the consideration.

22. At the close of the defence, parties filed written submissions and the trial Court rendered itself vide a judgment wherein the Appellant was found guilty and convicted.

23. It is the above body of evidence that the Appellant mounted the appeal against.

24. Section 315 of the Penal Code creates the offence of Cheating. The provision states as follows: -Any person who by means of any fraudulent trick or device 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 or to pay or deliver to any person any money or goods or any greater sum of money or greater quantity of goods than he would have paid or delivered but for such trick or device, is guilty of a misdemeanour and is liable to imprisonment for three years.

25. The Black’s Law Dictionary, 10th Edition defines cheating it as follows: -The fraudulent obtaining of another’s property by means of a false symbol or token, or by other illegal practices.

26. For an offence of cheating contrary to Section 315 of the Penal Code to be established, the following ingredients ought to be proved beyond any reasonable doubt: -i.That the accused obtained by means of fraudulent trick or device anything capable of being stolen; orii.That the accused, by means of fraudulent trick or device: induced or caused any other person to deliver to any person anything capable of being stolen; or

induced or caused any other person to pay or deliver to any person any money or goods or any greater sum of money or greater quantity of goods than he would have paid or delivered but for such trick or device.

27. This Court will now apply the foregoing to the matter at hand. It is on record that the Appellant agreed with PW1 to assist him import a vehicle from Japan at the cost of Kshs. 3,500,000/=. PW1 ended up paying the sum of Kshs. 3,645,800/= for the vehicle. The vehicle was truly delivered to PW1 by the Appellant.

28. According to the agreement entered into between the Appellant and Canon Trading Limited, the cost of the vehicle was Kshs. 4,495,000/= and not Kshs. 3,500,000/= as agreed between the Appellant and PW1. After PW1 paid the sum of Kshs. 3,645,800/= to the Appellant, the Appellant instead paid the sum of Kshs. 2,500,000/= to Canon Motors Limited leaving a balance of Kshs. 1,995,000/=. The Appellant therefore, retained the sum of Kshs. 1,145,800/=.

29. To avoid the vehicle being repossessed, PW1 had to pay the balance sum of Kshs. 2,030,500/= to Canon Motors Limited. The company, therefore, received the correct purchase price for the vehicle. However, PW1 spent a total sum of Kshs. 5,676,300/= (both to the Appellant and Canon Motors Limited) for the vehicle which it would ordinarily have costed him Kshs. 4,495,000/=, but for the actions of the Appellant. PW1, hence, paid a sum of Kshs. 1,181,300/= over and above the vehicle’s cost price to the Appellant.

30. The Appellant, therefore, obtained the sum of Kshs. 1,181,300/= from PW1 by means of fraudulent trick. The offence of cheating was, hence, proved.

31. For clarity, the fraudulent trick committed by the Appellant comprised of a chain of actions including agreeing with PW1 to import the vehicle for him from Japan knowing that he will not do so. This Court says so since the Appellant did not adduce any evidence to prove that he attempted to import the vehicle, but for the Covid-19 restrictions. Further, the Appellant did not inform PW1 of any difficulty in importing the vehicle. Instead, the Appellant kept on assuring PW1 and PW2 that the vehicle had been shipped and was awaiting clearance at the Port of Mombasa. He subsequently obtained more sums of money from PW1 alleging that the cost of clearance had risen.

32. The Appellant then unilaterally decided to, and entered into a sale agreement with Canon Motors Limited for the purchase of a similar vehicle and at a higher cost. PW1 was never made aware of such. The Appellant then obtained the vehicle and delivered it to PW1. He, again, never informed PW1 of any balance at Canon Motors Limited.

33. When the vehicle was about to be repossessed and PW1 informed the Appellant, the Appellant instead disconnected the call, put off his phone and disappeared forcing PW1 to travel all the way to Mombasa where the ordeal was unearthed.

34. This Court has considered the defence as well. It seems it cannot aid the Appellant. The allegation that he agreed with PW1 to buy for him a 2012 model, but instead he bought a 2016 model is not supported by any evidence. Instead, the agreement the Appellant entered with Canon Motors Limited indicates the vehicle was a 2012 and not a 2016 model.

35. Also, the Appellant’s contention that the cost of the 2012 model was Kshs. 4,500,000/= and that of the 2016 model was Kshs. 4,900,000/= is not realistic. The price difference is too small, an indication that the Appellant was just out to push for a certain narrative to justify the use of the money he received from PW1. The defence was, rightly so, declined by the trial Court.

36. It is on the basis of the foregoing that this Court is satisfied that the charge of Cheating was duly proved and the Appellant properly convicted. The appeal against the conviction is, hence, unsuccessful.

37. Since the Appellant did not contest the sentence, the entire appeal is rendered unsuccessful.

Disposition: 38. Deriving from the above discussion, the appeal fails and is dismissed.It is so ordered.

DELIVERED, DATED AND SIGNED AT KITALE THIS 14TH DAY OF DECEMBER, 2023. A. C. MRIMAJUDGEJudgment delivered virtually and in the presence of: -Mr. Khisa, Learned Counsel for the Appellant.Miss Kagali, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Respondent.Chemosop/Duke – Court Assistants.