[2023] KEHC 23291 (KLR)

Wanjiru & another v Republic (Criminal Appeal E066 of 2023) [2023] KEHC 23291 (KLR) (Crim) (11 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23291 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E066 of 2023

DR Kavedza, J

October 11, 2023

Between

Marilyn Mercy Wanjiru

1st Appellant

Christopher Mutira

2nd Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence delivered by Hon B.M Ekhubi (P.M) on 23rd February 2023 at Milimani Chief Magistrate’s Court Criminal case no. 1996 of 2019 Republic vs Marilyn Mercy & Another vs Republic)

Judgment

1. The appellants were charged and after a full trial convicted with two counts for the offences of forgery contrary to Section 349 of the Penal Code and uttering a false document with intent to deceive contrary to Section 357 (b) of the Penal Code. They were each sentenced to pay a fine of Kshs. 200,000 in default to serve 1-year imprisonment in count I. In count II, they were each sentenced to pay a fine of Kshs. 50,000 in default to serve 6 months imprisonment. The default sentences were to run consecutively.

2. Being dissatisfied with the conviction and sentence, the appellants filed a petition of appeal dated March 8, 2023. In the appeal, the appellants challenged the totality of the prosecution’s evidence against which they were convicted. They also contended that the charge sheet as drafted was defective.

3. As this is a first appeal, I am required to re-evaluate the evidence tendered in the trial Court and come to an independent conclusion as to whether or not to uphold the convictions and sentences. This task must have regard to the fact that I never saw or heard the witnesses testify (see Okeno v Republic [1973] EA 32).

4. The prosecution called four (4) witnesses in support of their case. George Gachihi (PW 1) a state counsel told the court that in 2018, he was in charge of approving marriage registration certificates at the registrar marriages. He told the court that the first appellant and Kanwajit Signh Chadda (now deceased) made an application for a special license which was approved on July 26, 2018. After the verification process, they were issued with a special license. He told the court that the 1st appellant was 49 years old at the time while Kanwajit Signh was 76 years. From their records, their marriage was officiated by the 2nd appellant who was licensed under the law. He maintained that the special license and the marriage certificate were issued regularly.

5. No. 231663 C.I.P Daniel Gutu (PW 2) a forensic document examiner based at the DCI told the court that she received from PW 4 a signature specimen, accompanied by an exhibit memo form. He was required to identify whether the signature on the marriage certificate and the identification report from the National Registration Bureau was the known signature of the deceased. After conducting a forensic analysis, it was his opinion that the signatures were made by two different authors. He produced a report that effect.

6. Parminder Singh Chatta (PW 3) testified that he is a brother to the deceased Kanwajit Signh Chadda. He stated that since the 1960s, his family had tried to convince his deceased brother to marry but he refused. He maintained that although he did not live in Kenya, he was in constant communication with him. That at no particular time did his brother inform him that he was married to the 1st appellant. He was apprehensive that his brother’s death and subsequent cremation was peculiar, considering haste at which it was undertaken. He told the court that he knew the 1st appellant but maintained that she was not a wife to the deceased.

7. No. 660032 PC Dickson Gitonga (PW 4) the investigating officer told the court that he received a complaint from PW 3. The issue was why his deceased brother had celebrated a marriage under Customary Law at the International Pentecostal Wholeness Church. He raised doubts as to the authenticity of the marriage certificate issued. He told the court that he conducted investigations and made a finding that the 1st appellant was the deceased’s employee and 2nd appellant a pastor at the church where the marriage was allegedly conducted. On cross-examination, he conceded that the PW 1 acknowledged the anomaly in the marriage certificate as to the customary law entry.

8. After the close of the prosecution’s case, the 1st and 2nd appellants were found to have a case to answer and were put on their respective defences. The 1st appellant gave sworn testimony and stated that she met the deceased in 1989 and they started a romantic relationship. They parted ways and rekindled the relationship in 1999. She started living together as husband and wife in 2013. In 2018, they decided to solemnize their union. She told the court that they got married on July 27, 2018 in church presided over by the 2nd appellant. In addition, they followed the procedure prescribed in law. However, her husband met his demise on October 31, 2018. She maintained that before his demise, the deceased had embraced Christianity. She affirmed that the marriage certificate issued was genuine having been signed by the deceased.

9. Christopher Mutira (DW 2), in his defence, the 2nd appellant told the court that he is a church minister at International Pentecostal Holiness Church Africa. He testified that he knew the deceased from 2017. In 2018, he received a request from the 1st appellant and the deceased to solemnize their union. After taking them through the laid down procedure, a marriage ceremony was conducted on July 21, 2018. He stated that the ceremony was attended by 10 invited guests and Pastor Philomena. In addition, a marriage certificate was issued indicating that the marriage was conducted under customary law.

10. Martin Papa, (DW 3) a private forensic document examiner told the court that he received instructions to examine and compare signatures to determine whether they share a common origin. After a thorough analysis of the signature on the marriage certificate and the signature presented, it was his finding that they made by the same author.

Analysis and determination. 11. In the submissions, the appellants challenged the totality of the prosecution’s evidence against which they were convicted. It was submitted that the ingredients of the offences they were charged with were not proven beyond reasonable doubt. In addition, the prosecution's evidence particularly PW 1 confirmed that indeed the marriage certificate in issue was genuine and all procedures were followed in its acquisition.

12. In count 1, the appellant were charged with the offence of forgery. The offence of forgery is created and declared by section 349 of thePenal Code in the following terms –Any person who forges any document or electronic record is guilty of an offence which, unless otherwise stated, is a felony and he is liable, unless owing to the circumstances of the forgery or the nature of the thing forged some other punishment is provided, to imprisonment for three years.

13. Forgery is defined in section 345, as “the making of a false document with intent to defraud or deceive.” Section 347 deals with making of a document while section 348 defines intent to defraud. The prosecution was required to prove beyond reasonable doubt that the appellants forged the marriage certificate; that it was false the and that it was intended to defraud.

14. The prosecution called a witness from the registrar of marriages from where the document originated. The witness confirmed that the appellants followed due process in the issuance of a marriage certificate. He maintained that from the records, the 1st appellant presented himself with the deceased and applied for a marriage certificate. The same was approved after meeting all the requirements.

15. The prosecution attempted to establish the allegation of forgery through the evidence of a forensic document examiner. PW 2 testified that he received an exhibit memo from the investigating officer accompanied by signature specimens. The signature specimens were retrieved from the identification report from the National Registration Bureau which was the known signature of the deceased. His report concluded that the signatures did not match.

16. Conversely, DW 3, the private forensic examiner concluded that the signature on the marriage certificate matched the known signature of the deceased. These two experts gave conflicting evidence. In Musa Cherutich Sirma vs. Independent Electoral and Boundaries Commission (I.E.B.C) & 2 Others [2017] eKLR the court held that –‘... As may be discovered from case law on the matter, it is trite law that expert opinion is not binding on the court and in reaching its determination the court is entitled to consider other relevant facts. In cases where opinion of experts conflicts, the court is entitled to resolve the conflict or acquire the evidence of one exert in preference of the other. It is also trite that a person who is offered as an expert must be qualified by presentation of evidence indicating his expertise before his evidence on the facts of the case is accepted as expert evidence.’

17. From the record, this evidence of PW 2, was the only nexus between the appellants and the alleged forgery. His evidence was not corroborated with that of PW 1 or PW 3. The question is what weight should be given to contradictory expert opinion. InDhalay V Republic (1995-1998) 1 E.A., the Court of Appeal held that:“While courts were obliged to give proper respect to the opinions of experts, such opinions were not binding on the Courts. Expert evidence had to be considered along with all other available evidence and, where there was a proper and cogent basis for rejecting an expert opinion, a Court was perfectly entitled to do so. A trial Court had the duty of deciding whether or not it believed the expert and giving reasons for its decision."

18. DW 3, the forensic expert who produced the report indicated the factors and variances that cause changes in handwriting over a long period of time as is the case herein. On the other hand, it is unclear, when the signature specimen used by PW 2 was acquired. Considering factors such as time, and the ailments that were suffered by the deceased, it is my finding that the trial court was in error in dismissing the evidence of DW 3. In addition, the court also failed to consider the evidence of PW 2 against all other available evidence.

19. I find that the trial court relied on logical reasoning to convict the appellants, whereas there was no actual evidence that served to prove the case beyond any reasonable doubt.

20. As regards the offence of uttering a false document, the trial court had held as follows with regard to the other count;“……as already stated above, the prosecution did prove that the document was forged and that it was, therefore false. The prosecution did also show that the accused persons knew that the document was false and that it was intended to be used to defraud….Additionally, it was established that the accused person knowingly and fraudulently presented the marriage certificate knowing the same to be false, and forged in order to defraud and to gain unfairly to reap some benefit. With such knowledge, he proceeded to utter the same and present it as genuine. I am satisfied that the charge of uttering is proved.''

21. In my considered opinion, the trial court ought to have given the appellants the benefit of the doubt with respect to the second count because there was no proof that they uttered the document relating to the count. I have carefully re-evaluated all the evidence on record, but I found no evidence that proved that it is the appellant who uttered the marriage certificate which was alleged to be forged.

22. Accordingly, I allow the appeal, quash the conviction, and set aside the sentence against the 1st and 2nd appellants. The fine paid by the appellant be refunded fortwith. The appellants are set at liberty unless otherwise lawfully held.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 11TH DAY OF OCTOBER 2023D. KAVEDZAJUDGEIn the presence of:Ms. Chege for the stateMs. Nabayi h/b for Mr. Simiyu for the 1st appellantMr. Kamau for the 2nd appellantJoy & Nelson - Court Assistants