[2023] KEHC 26521 (KLR)

Wasike v Republic (Criminal Appeal 78 of 2023) [2023] KEHC 26521 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26521 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Appeal 78 of 2023

DR Kavedza, J

December 8, 2023

Between

Major Ibrahim Juma Wasike

Appellant

and

Republic

Respondent

(Being an appeal against the original conviction and sentence delivered by the Court Martial at Lang’ata Barracks no. 26 of 2021 Republic vs Major Ibrahim Juma Wasike)

Judgment

1. The appellant was charged and after a full trial convicted of two counts for the offence of committing a civil offence contrary to section 133 (1) (b) of the Kenya Defence Forces Act, that is to say, obtaining by false presences contrary to section 313 of the Penal Code. He was sentenced to serve 2 years and 9 months on each count which were to run concurrently.

2. Being aggrieved, he filed an appeal challenging his conviction and sentence. in his appeal, he raised grounds which have been coalized as follows: He challenged the totality of the prosecution's evidence against which he was convicted. He argued that the court failed to consider his defence. He contended that the sentenced imposed was manifestly harsh and excessive. He urged the court to quash the conviction and set aside the sentence.

3. The respondent filed grounds of opposition to the appeal. They contended that the appellant was properly convicted and that the trial court discharged the burden of proof beyond reasonable doubt. In addition, the appeal lacks merit and should be dismissed.

4. 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 vs Republic [1973] EA 32).

5. The prosecution called six (6) witnesses in support of their case.

6. Charles Koome Kiambati,(PW 1) recounted an incident during his employment at 42 Fields Workshop in Nanyuki Barracks. Constable Job Lukale inquired if PW1 had any family members interested in joining the Kenya Defence Forces (KDF). Despite not having a suitable candidate, Constable Lukale suggested the possibility of recruiting a friend through someone at the Department of Defence headquarters, known as Wasike.

7. Following this, PW1 informed his colleague Caroline Murugi (PW3) about the opportunity. Despite Murugi not having a suitable family member, she expressed willingness to discuss the matter with her sister. Subsequently, Murugi's sister, Colley Njeru (PW2), showed interest in having his nephew, Kevin Munene (PW4), recruited into the KDF. Constable Lukale provided Njeru with the appellant’s contact details, and they planned a trip to Nairobi on February 13, 2021.

8. During their visit, PW1, PW2, PW3, PW4, and the appellant had a discussion. The appellant requested PW4's documents and instructed them to provide a Kshs 100,000 deposit. PW2 withdrew the amount from an M-Pesa agent, handed it to PW3 for verification, and passed it on to the appellant.

9. PW2, Colley Njeru Kamunge, recounted being introduced to the appellant by PW1 after learning of a KDF job opportunity. On February 13, 2020, they met the appellant at Beams Hotel in Nairobi, where the appellant requested Kshs 400,000 for the job and a Kshs 100,000 deposit. PW2 withdrew the deposit, gave it to PW3 for verification, and passed it to Major Wasike. They later met Major Wasike at DOD, who claimed to have processed the job. Subsequently, PW4 underwent a medical check-up, but despite various payments totaling Kshs 425,500, he was never recruited.

10. PW3, Caroline Murugi Munene, a civilian staff at 42 Field Workshop in Nanyuki barracks, testified that PW1 informed her of a KDF recruitment opportunity. As she couldn't afford the fee, she passed it to her sister, who then involved PW2. PW1 provided the appellant’s number for recruitment assistance, leading to an appointment on February 13, 2021, in Nairobi. PW3, along with PW1, PW2, and PW4, met the appellant at Beams Hotel, where a Kshs 100,000 deposit was requested. PW2 withdrew the amount, and after verification, PW3 handed it to Major Wasike. Despite subsequent payments, PW4 was never recruited, as disclosed during a medical examination at DOD.

11. PW4, Kelvin Munene, testified that Koome (PW1) and Caro (PW3) introduced him to a KDF recruiter. During a meeting in a hotel with the accused, PW1, PW2, and PW3, he submitted his certificates. The accused requested Kshs 100,000, which his uncle obtained from his mother through M-Pesa. PW3 passed the money to the accused, promising a calling letter for KDF. In a subsequent meeting with Joseph and a doctor, PW2 gave Joseph Kshs 90,000, and despite additional payments through M-Pesa, PW4 was not recruited, as revealed through a soft copy of the letter.

12. PW5, Captain Nyamita Elsie of the military police, investigated a complaint by PW2, who alleged being swindled Kshs 401,000 by the appellant and CPL Lukale. The promise was to secure a KDF slot for PW4 in the 2021 recruitment. During her inquiry, PW5 found that Kshs 100,000 cash was given to the appellant at Beams Hotel in the presence of PW3. She discovered that Joseph Adiedo Mola was CPL Lukale, acting as a contact person for the appellant. The complainant sent a total of Kshs 209,500 and Kshs 60,263 to Mola's line and Kshs 60,263 to the appellant through M-Pesa, confirmed via court-ordered Mpesa statements. The appellant received various amounts from Mola between March and April 2021.

13. PW6, Daniel Hamisi, a Safaricom liaison officer, testified that they received a warrant to investigate multiple accounts, including numbers */*/*/*/* and /*/*/*/*/*, following a court order from the Kibera Chief Magistrate dated July 20, 2021. The order requested registration details and Mpesa statements for the accounts from March 1, 2021, to April 30, 2021. Account */*/*/*/*/ was registered to Joseph Adiedo Mola, and account /*/*/*/*/* was registered to Ibrahim Juma Wasike. The provided details were submitted as exhibits.

14. In the defense case, the accused, the sole witness, denied receiving money from PW2, claiming no knowledge of the alleged meetings and refuting any association with CPL Lukale or Adiedo Mola.

Analysis And Determination. 15. In arguing his appeal, the appellant filed written submissions which I have duly considered.

16. On re-evaluation of the evidence adduced before the trial court, it was clear to this court that the trial court appreciated the charge that the prosecution was supposed to prove in order to secure the conviction of the Appellant. The Appellant was charged with a civilian offence of obtaining money by false pretences contrary to Section 313 of the Penal Code.“False pretence is defined as “any representation whereby words, writing or conduct of a matter of fact either past or present which representation is false and which the person making it knows it to be false or does that which he believes it not to be true.” The ingredients proving this offence are:-i.That a representation made by words in writing or by conduct must be made:-ii.That the representation must relate to a matter of fact which is made to mislead:-iii.That the representation is false in fact andiv.That the person making it knows it to be false or does not believe it to be true.”

17. On the merits, it was the prosecution’s case that the Appellant had obtained money from the complainants by falsely pretending that he was in a position to have the complainants join the armed forces. The corroborated evidence revolves around a recruitment scam involving the appellant and CPL Lukale, targeting Kevin Munene (PW4) for a KDF slot. PW1, Charles Koome, and PW3, Caroline Murugi, introduced the scheme, with PW2, Colley Njeru Kamunge, being the uncle of the aspiring recruit. The appellant, posing as a KDF recruiter, allegedly received a Kshs 100,000 deposit at Beams Hotel from PW2, confirmed by Captain Nyamita Elsie's investigation. Further payments were made through M-Pesa, totaling Kshs 425,500. Despite this, PW4 was never recruited. Additionally, Daniel Hamisi, a Safaricom liaison officer, presented evidence of financial transactions linked to Joseph Adiedo Mola and the appellant, corroborating the scam's financial aspect

18. The prosecution adduced evidence which was contemporaneous with the exchange of monies. This court therefore holds that the prosecution did prove, to the required standard of proof beyond any reasonable doubt that the Appellant obtained the said sums from PW 2 by falsely pretending that he was in a position to secure recruitment for PW 4 into the Armed Forces. This fact, the Appellant knew to be false. The Appellant’s defence in that regard did not dent the otherwise cogent, consistent, and culpatory evidence that was adduced against him by the prosecution witnesses. His appeal against conviction therefore lacks merit and is hereby dismissed.

19. On sentence, the appellant was sentenced to serve 2 years and 9 moths on each count. From the record, the sentence imposed by the trial court is lawful. However, this court can interfere with judicial discretion when it is found that it was not exercised judiciously. The sentences were to run consecutively.

20. The upshot of the above analysis is that the appeal partially succeeds. The sentence imposed in counts 1 and II is substituted with a sentence of 1 year imprisonment on each count. The sentences are to run concurrently from the date of his arrest by the court martial.

It is so ordered.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF DECEMBER 2023______________D. KAVEDZAJUDGEIn the presence of:Kiragu for the StateSichangi for the AppellantNaomi C/A