[2022] KEHC 15172 (KLR)

Wanjeri v Republic (Criminal Appeal 53 of 2019) [2022] KEHC 15172 (KLR) (10 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15172 (KLR)

Republic of Kenya

In the High Court at Nyeri

Criminal Appeal 53 of 2019

M Muya, J

November 10, 2022

Between

John Warungu Wanjeri

Appellant

and

Republic

Respondent

Judgment

1. John Warungu Wanjeri hereinafter referred to as the appellant was arraigned in court with another for the offence of obtaining money by false pretences contrary to section 313 of the Penal Code.Subsequently, after a full hearing the appellant who was the 2nd accused in the lower court was convicted and ordered to pay a fine of Kshs 1000,000/= in default to serve a term of 2 years. Being dissatisfied with both the conviction and sentence he lodged this appeal premised on the following grounds.a.That the learned trial magistrate erred in both law and fact in convicting the appellant against the weight of evidence adduced by the prosecution.b.That the learned trial magistrate erred in both law and fact in convicting the appellant on counts that he was not charged with.

2. The appellant was together with another already convicted charged with the offence of obtaining by false pretences contrary to section 313 of the Penal Code.The particulars being that on the diverse dates between July 15, 2006 and January 26, 2007 at Nyeri township, Nyeri County, with intent to defraud jointly with others not before the court obtained from Patrick Thiga Mugwara a sum of Kshs 1. 8 million by falsely pretending that they were in a position to sell him a piece of land No. L.R.Nyeri Municipality Block 3/198, a fact they knew was false. Duty of appellate courtIn the case of OkenovsRepublic(1972) e KLR 32 It was held:- “An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must weigh conflicting evidence and draw its own conclusion….”

3. Brief factsThe complainant Patrick Ihiga Mugwara is a businessman at Nyeri County. In the month of April 2006 he was approached by the appellant (whom he had known before for a period of over one year) who intimated to him that there was a plot in Nyeri which was up for sale and demanded to know whether he was interested in buying. Thereafter after a month the appellant went and showed him a plot Nyeri Municipality/block 3/1198. The complainant proceeded to conduct a search on 23/5/2006 which showed that the Registered owner was one Lavan Ngatia Muchemi.

4. Later a Sale Agreement was prepared by Nderi Kingoti and Co. advocates for the greed purchase price of Kshs 1. 8 million. The appellant presented the seller one Lavan Ngatia Muchemi at the advocates offices and both parties signed the agreement which was dated 15/7/2006 Kshs100,000 was paid to the seller on 15/7/2006 as commitment fees. A further sum Kshs 130,000/= was paid to Laban on 23/7/2006. Kshs 150,000/= was paid to Lavan on August 8, 2006. On 30/8/2006 he paid a further sum of Kshs 555,000/=. On 13/11/2006 he paid a sum of 132,000/= on 22/12/2006 he paid another sum of Kshs 538,000/=

5. A further sum of Kshs 100,000/= was paid to Lavan on January 26, 2007All these sums were paid in the presence of the appellant and Lavan Ngatia Muchemi. He proceeded to acquire transfer of Certificate of Lease from Lavan Ngatia Muchemi to himself. The transfer was dated 26/1/2017. He obtained a rate clearance certificate dated 22/12/2006. He had obtained a consent letter dated 15/12/2006, a copy of identity card in the names of Lavan Ngatia Muchemi identity No.xxxxx, Pin No.A003888 457 T. The complainant procured a title deed in his names. A search conducted on 10/5/2007 showed the registered owner as Patrick Ihiga Mugwara (the complainant).A certificate of lease was issued in his name. In the plot were some mechanics who were in occupation. They refused to vacate and the matter was reported to police.

6. Later on 19/4/2007 he applied for a loan of Kshs 2,000,000/= from Barclays Bank using the title as a collateral. He finished paying the owner. Later he was called at the Police Station and he was asked to produce documents for the plot. The real owners produced theirs and the police arrested Lavan Ngatia 1st accused and John Warungu 2nd accused (appellant).

7. Mwangi Muchemi testified as PW2. He informed the court that Nyeri Municipality Block 3/198 belongs to his late father Laban Ngatia Gacheru. He produced in court the original title of the parcel of land his father passed away on 26/3/1995 and he showed the court the death certificate.

8. Sometimes in the month of May 2002 a tenant by the name of Jackson Macharia informed the family that their land was being sold. They conducted investigations at the Lands Office and found the land had been transferred to one Patrick Mugwara on 2/2/2007. They reported the matter to police in Nyeri and lodged a caution over the said land. The purchaser Mr. Mugwara showed them the people he had been transacting with.

9. Police informed the family that one of the accused persons had forged an identity card in the name of the deceased and purported to own the land in question and proceeded to transfer it to another person.

10. In his defence the 1st accused told the court that his name was Nicasio Kamau Wambui and a resident of Nairobi dealing with stationaries. He denied having sold a plot to the complainant. He also denied knowing the 2nd accused (appellant in this case). He also denied ever visiting the offices of Mr. Muhoho advocate to sign documents and receive monies.

11. The appellant gave a sworn statement. He admitted having gone to his advocates office. He denied having taken PW1 to the plot in question and showing him the owner. He also testified that he was not given any moneys towards the alleged transaction.

12. Factual and Legal Analysis and ConclusionI have extensively reproduced at length the evidence adduced before the trial court and the Judgment of the learned trial magistrate and I have no option but to truly empathize with her in the twists and turns in this matter.

13. From perusal of the proceedings, the plea was taken on 2/8/2007. This Criminal Case did not take off till the 19th day of September 2017. That is a whole decade later. Even when it was supposed to take off. The accused persons were still giving various reasons why the case should not start. The 2nd accused (appellant) in particular was imploring the court to grant him more time as he was negotiating with the complainant.The appellant in this case was jointly charged with the 1st accused with the offence of obtaining by false pretences.

14. Section 313 of the Penal Code provides:- “Any person who by false pretenses, 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 three years”

15. False pretenceSection 312 of the Penal Code provides:- “ Any representation, made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact and which the person making it knows to be false or does not believe to be true, is a false pretense.”

16. A perusal of the record of proceedings goes to show that there was overwhelming evidence to the effect that it is the appellant who approached the complainant and informed him that there was a plot that was being sold at Nyeri Municipality.

17. The complainant did testify that it is the appellant who took him to the plot about a month later. This was Nyeri block 3/198. The appellant showed him the beacons for the plot. The complainant fenced it with the assistance of the appellant.

18. During cross-examination by the appellant, the complainant informed the court that when they went to the plot they found some people there who appeared to know the appellant. Later they fenced the plot and fixed the gate together with the appellant. Later the appellant showed him the owner who was going by the name of Lavan Ngatia. He further testified that during the transaction the appellant was present and he was the one carrying the money from the advocate’s offices.

19. This Lavan Ngatia Muchemi presented himself as the owner of the plot in question and purported to be in a position of transferring the plot to the complainant for the purchase price of Kshs1. 8 million.There is evidence from PW1, PW2, PW3, and PW4 that the 1st accused received the said sum of money in their presence and that of the appellant. Later on it transpired that he made false documents and altered them in purported attempt of transferring the plot to the purchaser (PW1)

20. This appeal is an attempt by the appellant to extricate himself from the fraudulent, transaction which he principally initiated when he showed the complainant the land in question and later introduced him to a man purporting to be the owner but who turned out to be a fraudster. There is overwhelming evidence that the two acted in concert all through the transaction and the proceedings in court. It is noted that the two (the 1st accused and the appellant) made numerous adjournments and a Plethora of applications both in the lower court and in the High Court in a clear bid to stall the proceedings in the court. They did succeed in adjourning the case for a period of ten years before the first witness by the prosecution could testify. It had to take a no nonsense trial magistrate to have the matter heard with or without counsels for the accused persons who were giving all kinds of grounds for adjournments.

21. It is also noted that part of the delay was as a result of presentations by the accused persons on their willingness to refund the complainant Kshs 1. 8 million.

22. It is further noted that on the 19th day of September 2017 the 2nd accused (now the appellant) did inform the court that he would like to be given time to negotiate with the complainant. The learned trial magistrate adjourned the case to 11. 30 a.m.

23. The second accused (now the appellant) told the court that he had made a proposal to the complainant. The complainant told the court that the 2nd accused (appellant) had proposed to pay him by Monday.

24. Before the Judgment was delivered the two accused persons once more asked for adjournment stating that they wanted to compromise the matter by paying the complainant the amount within a months’ time. This request was declined by the court.

25. After the Judgment the 1st accused asked for more time so as to pay and the amount to be split into two, the 2nd accused (now the appellant) did not object and asked to be given a month so as to clear the amount. The court did order that each of the accused persons to compensate the complainant Kshs 900,000/= within a months’ time.The 1st accused in 30/11/2018 informed the court that he had paid Kshs700,000/= to the complainant.

26. The appellant had not paid a cent. The complainant later confirmed that he had been paid by the 1st accused the sum of Kshs900,000/=. The 2nd accused (appellant) was given one and a half months to pay. The matter was mentioned severally and on June 18, 2019 the 2nd accused (appellant) was sentenced to a fine of Kshs1000,000/= in default 2 years imprisonment.

27. From the foregoing, it is my considered view and finding that for all intents and purposes, the accused persons had admitted the charges or charge facing them and in respect of the appellant, that he obtained by false pretences. The two in court obtained Kshs1. 8 million pretending that they were in a position to transfer land to the complainant.

28. Their representation was false and they were well aware of it. I see and find no good reason to interfere with both the conviction and sentence.

29. It is alleged that the appellant was convicted on counts he was not charged with. I have perused the Judgment and notes that the learned trial magistrate did find that count No.1 was proved against both accused No. 1 and 2. In respect of count No.2, 3 and 6 accused 1 was convicted accordingly and count No. 4, 5 and 7. It is also shown and indicated that accused No.2 was convicted in respect of count II – VIII. This must have been a typographical error which is curable and which does not go to the root of the case.This appeal has no merit and it is dismissed.

JUDGMENT READ, SIGNED AND DELIVERED AT NYERI DATED THIS DAY 10TH OF NOVEMBER, 2022. HON. JUSTICE M. MUYAJUDGEIn the presence of:Muhoho: AppellantMiss Mwaniki: RespondentCourt Assistant: KinyuaR/A 30 days.