[2008] KEHC 950 (KLR)
The court found that the conviction of the appellant for obtaining by false pretences was not supported by evidence. The agreement in question was made by another individual, Mwai (also known as Warutere), who received the money and was not arrested or charged. The charge sheet did not disclose a conspiracy to...
Source-derived case information.
- Citation
- [2008] KEHC 950 (KLR)
- Parties
- Appellant: Wanjohi Kamonde; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 18 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
- Legal Topics
- False Pretences, Making False Documents, Acquittal, Conviction Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wanjohi Kamonde
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction of the appellant for obtaining by false pretences was supported by evidence.
- 2 Whether the absence of a conspiracy charge and the non-arrest of the main perpetrator affected the appellant's conviction.
Ratio Decidendi
The court found that the conviction of the appellant for obtaining by false pretences was not supported by evidence. The agreement in question was made by another individual, Mwai (also known as Warutere), who received the money and was not arrested or charged. The charge sheet did not disclose a conspiracy to obtain money by false pretences, and there was no evidence directly implicating the appellant. Both the state counsel and the appellant's counsel agreed that the conviction could not be sustained. Consequently, the court allowed the appeal, quashed the conviction, and set aside the sentence.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
Orders
- The appeal is allowed.
- The conviction is quashed and the sentence set aside.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Criminal Appeal 18 of 2008
WANJOHI KAMONDE…………………..………………..APPELLANT
VERSUS
REPUBLIC…………….…………………………………RESPONDENT
JUDGMENT
In this case the appellant with another were charged with offence of making a document and in count II obtaining by false pretenses. Both accused were acquitted under count one. But the Appellant alone was convicted on the second count.
There is evidence that agreement was made by one Mwai who is in reality called Warutere. He is the one who received the money. This Mwai has not been arrested and the charge sheet does not disclose a charge of conspiracy to obtain the money by false pretences. In that case there is no evidence to support the conviction of the appellant. I agree with state counsel that the conviction cannot be supported. The appellant’s Counsel is of the same view.
In the circumstances it is my finding that the appeal has merit and I do allow the same and quash conviction and set aside the sentence. I order that the Appellant shall be set at liberty forthwith unless otherwise lawfully held.
Dated this 10th June, 2008.
J. N. KHAMINWA
JUDGE