REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CRIMINAL APPEAL NO. E008 OF 2025
ABDALLA OTIENO KITENGO…………………………….. APPELLANT
-VERSUS-
REPUBLIC………………………….. ……………………… RESPONDENT
JUDGMENT
1. Abdalla Otieno Kitengo alias Matengo has brought this appeal against the conviction and sentence in the judgment delivered by Hon. L.N. Kiniale SPM in CRC No. E212 of 2021.
2. In that case the appellant was charged together with his wife Lorna Akeyo Omollo with the offence of obtaining registration by false pretence contrary to Section 320 of the penal code. Particulars were that on 23/1/2020 at the registrar of births and deaths office Awasi in Nyando sub-county the accused jointly and unlawfully procured for Everlyn Akoth a certificate of birth no. A300277 entry number 0622001788 by falsely pretending to be her biological parents a fact they knew to be untrue only to exploit her sexually.
3. The accused persons denied the charges. After a full trial they were convicted. The appellant was sentenced to one year in prison while the wife was fined Kshs. 20,000/= in default four months’ imprisonment.
4. In the petition of appeal, the appellant had listed nine (9) grounds of appeal. Apart from the 6 th ground which is against the sentence the others are repetitive stating in different ways that the particulars of the charge were not proved to the required standard.
5. The appeal was canvassed by way of written submissions. On 22/5/2026 when I mentioned the case for compliance the prosecution counsel had not filed her submissions. Leave was granted to do so. That has not happened at the time of writing this judgment. The appellant’s submissions are on record.
PROSECUTION CASE
6. PW1 E.A.O introduced herself as a 15-year-old girl. She stated that the accused persons were not her parents but she had lived with them since 2019. That she was not taken to the registrar of birth offices. That the appellant at one time went home with a certificate being his name and those of the appellant and his wife.
7. It was her further testimony that her father is Joseph Atieno and her mother is Caren Odongo who is deceased. In cross examination she said it is the appellant who took the certificate to the police claiming to be her father. That she did not have a birth certificate when she joined school.
8. In re-examination she said that the certificate was prepared in 2020. That she was born in the year 2007.
9. PW2 Patricia Akoth Achieng introduced herself as a Deputy Registrar in Nyando Sub-County. That she approved birth and death certificates. She identified the documents used to register PW1 at her office. They included an application for late registration for copies of ID sent for appellant and her wife child dedication certificate and letter from the registrar. The date of birth was indicated as 15/08/2005.
10. PW2 confirmed that the registration was done in the office by the appellant and his wife. That the one who presented the documents was Lovinah Akeyo according to the applicant’s form. That the applicant met all the requirements and a birth certificate was issued.
11. PW3 Josiah Owino stated that he is father to PW1. He claimed that he got information that she had been defiled while living with the appellant. He claimed that he did not know the two accused persons. That he met them in court. He could not tell when PW1 was born. He told the court that PW1’s mother died in 2013. He went to live with the appellant.
12. PW4 Joseph Ogalo Ambila told the trial court that he was a retired chief. He denied processing the birth certificate application documents. He stated that the stamp used was from his office. That it could have been used by one of the assistant chiefs. That he did not attend the appellant in the matter.
13. In cross-examination he said that assistant chief Sidho East was one of his assistants.
14. PW5 pastor, George Otieno, stated that he was a pastor with SDA church. That at one time he worked at North East Kano, Pap Onditi. He identified the child dedication certificates. One signed by himself and another forged. He denied signing the one used to register PW1 at the registrar of births office.
15. The investigating officer, PC Dickson Momanyi, was the last witness. He told the trial court that while investigating a defilement case involving PW1 and appellant he got to know that the two accused, alleged parents, were actually not genuine. That information contained in a birth certificate presented by the appellant was not true. That he charged the appellant with defilement and the present charge.
DEFENCE CASE
16. On being part of his defence the appellant in his sworn statement denied the charges. He suspected the complainant and her brother for procuring the birth certificate. He called Jackline Adigo his other wife. She did not testify directly to this case but stated that she had complaints against the registrar of births.
ANALYSIS AND DETERMINATION
17. I have duly considered the evidence adduced before the learned magistrate the grounds of appeal and the submissions by the appellant.
18. This is a first appeal. I am enjoined to re-evaluate and re-consider the evidence before the trial court and come up with my own independent conclusion. As I do this I should have it in my mind that I did not get to see and hear the witnesses as they testified. I did not have the advantage of watching their demeanour an advantage that the trial court enjoyed. (see the Court of Appeal decision on Okeno versus Republic (1972) EA 32.
19. The first issue for determination is whether the prosecution proved the case against the appellant beyond reasonable doubt.
20. As noted above, the accused person is charged with obtaining registration by false pretence under Section 320 of the penal code. The section provides: -
“any person who unlawfully procures and attempts to procure for himself or any other person any registration, licence and certificate under any law by any false pretence is guilty of a misdemeanour and is liable to imprisonment for one year.”
21. To clarify this the offence further Section 312 of the penal code defines false pretence as follows: -
“Any representation made by words, writing and 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 and does not believe to be true is a false pretence.”
22. From the definition above the misrepresentation must be on matter of fact. It must about past or present. It must be false and made with intent to defraud.
23. In the present case the appellant is said to have made a false registration of a birth certificate. Was it done by the appellant? What is not in dispute is that PW1 was living with the appellant and his wife. She was not their child whether biological and adopted. It is a fact that at some point the appellant presented a birth certificate to the police showing that the child was their daughter. This was false. The appellant was indicated as father. At no time did the appellant complain that his name had been falsely inserted in the certificate. He had actually presented the certificate to show that the complaint in the defilement case was an adult and the daughter.
24. I have seen his defence that the erroneous registration may have been done by the complaint and her brother. To what end? The only person who stood to benefit from the false registration is the appellant. He is the one who took the birth certificate to the police and presented it as genuine.
25. I have considered the findings by the learned magistrate on this aspect. I agree with the weight put on the fact that it is the appellant who came up with the certificate. The fact that he stood to benefit from the fraudulent certificate made him the only person linked to it.
I find that it was proved beyond reasonable doubt that he is the one who obtained the false registration. He went to the extent of forging chief stamp and church dedication certificate. All this was aimed at saving him from the defilement charge.
26. In the result I do not find any reason to disturb the learned magistrate finding or conviction. The same is safe. The appeal on this limb is hereby dismissed.
27. On sentence it is clear that Section 320 of the penal code provides one year as the maximum sentence. The appellant felt that he should have been sentenced to a lesser sentence. The record shows that he was already serving sentence having been convicted of defilement. The order on custodial sentence is not in the circumstances harsh. Again this limb of the appeal is also dismissed.
28. Finally, the dispositive order is that the appeal is hereby dismissed on both conviction and sentence. It is so ordered.
DATED, SIGNED AND DELIVERED IN VIRTUAL COURT IN MAKADARA THIS…10 TH DAY OF JULY… .. 2026.
HON. ALEX. K. ITHUKU
JUDGE
Ms. Onyango for the state.
The appellant appearing virtually.
HON. ALEX. K. ITHUKU
JUDGE
6 | Page KISUMU HCCA E008 OF 2026
IN THE HIGH COURT OF KENYA AT KISUMU
CRIMINAL APPEAL NO. E008 OF 2025
ABDALLA OTIENO KITENGO…………………………….. APPELLANT
-VERSUS-
REPUBLIC………………………….. ……………………… RESPONDENT
JUDGMENT
1. Abdalla Otieno Kitengo alias Matengo has brought this appeal against the conviction and sentence in the judgment delivered by Hon. L.N. Kiniale SPM in CRC No. E212 of 2021.
2. In that case the appellant was charged together with his wife Lorna Akeyo Omollo with the offence of obtaining registration by false pretence contrary to Section 320 of the penal code. Particulars were that on 23/1/2020 at the registrar of births and deaths office Awasi in Nyando sub-county the accused jointly and unlawfully procured for Everlyn Akoth a certificate of birth no. A300277 entry number 0622001788 by falsely pretending to be her biological parents a fact they knew to be untrue only to exploit her sexually.
3. The accused persons denied the charges. After a full trial they were convicted. The appellant was sentenced to one year in prison while the wife was fined Kshs. 20,000/= in default four months’ imprisonment.
4. In the petition of appeal, the appellant had listed nine (9) grounds of appeal. Apart from the 6 th ground which is against the sentence the others are repetitive stating in different ways that the particulars of the charge were not proved to the required standard.
5. The appeal was canvassed by way of written submissions. On 22/5/2026 when I mentioned the case for compliance the prosecution counsel had not filed her submissions. Leave was granted to do so. That has not happened at the time of writing this judgment. The appellant’s submissions are on record.
PROSECUTION CASE
6. PW1 E.A.O introduced herself as a 15-year-old girl. She stated that the accused persons were not her parents but she had lived with them since 2019. That she was not taken to the registrar of birth offices. That the appellant at one time went home with a certificate being his name and those of the appellant and his wife.
7. It was her further testimony that her father is Joseph Atieno and her mother is Caren Odongo who is deceased. In cross examination she said it is the appellant who took the certificate to the police claiming to be her father. That she did not have a birth certificate when she joined school.
8. In re-examination she said that the certificate was prepared in 2020. That she was born in the year 2007.
9. PW2 Patricia Akoth Achieng introduced herself as a Deputy Registrar in Nyando Sub-County. That she approved birth and death certificates. She identified the documents used to register PW1 at her office. They included an application for late registration for copies of ID sent for appellant and her wife child dedication certificate and letter from the registrar. The date of birth was indicated as 15/08/2005.
10. PW2 confirmed that the registration was done in the office by the appellant and his wife. That the one who presented the documents was Lovinah Akeyo according to the applicant’s form. That the applicant met all the requirements and a birth certificate was issued.
11. PW3 Josiah Owino stated that he is father to PW1. He claimed that he got information that she had been defiled while living with the appellant. He claimed that he did not know the two accused persons. That he met them in court. He could not tell when PW1 was born. He told the court that PW1’s mother died in 2013. He went to live with the appellant.
12. PW4 Joseph Ogalo Ambila told the trial court that he was a retired chief. He denied processing the birth certificate application documents. He stated that the stamp used was from his office. That it could have been used by one of the assistant chiefs. That he did not attend the appellant in the matter.
13. In cross-examination he said that assistant chief Sidho East was one of his assistants.
14. PW5 pastor, George Otieno, stated that he was a pastor with SDA church. That at one time he worked at North East Kano, Pap Onditi. He identified the child dedication certificates. One signed by himself and another forged. He denied signing the one used to register PW1 at the registrar of births office.
15. The investigating officer, PC Dickson Momanyi, was the last witness. He told the trial court that while investigating a defilement case involving PW1 and appellant he got to know that the two accused, alleged parents, were actually not genuine. That information contained in a birth certificate presented by the appellant was not true. That he charged the appellant with defilement and the present charge.
DEFENCE CASE
16. On being part of his defence the appellant in his sworn statement denied the charges. He suspected the complainant and her brother for procuring the birth certificate. He called Jackline Adigo his other wife. She did not testify directly to this case but stated that she had complaints against the registrar of births.
ANALYSIS AND DETERMINATION
17. I have duly considered the evidence adduced before the learned magistrate the grounds of appeal and the submissions by the appellant.
18. This is a first appeal. I am enjoined to re-evaluate and re-consider the evidence before the trial court and come up with my own independent conclusion. As I do this I should have it in my mind that I did not get to see and hear the witnesses as they testified. I did not have the advantage of watching their demeanour an advantage that the trial court enjoyed. (see the Court of Appeal decision on Okeno versus Republic (1972) EA 32.
19. The first issue for determination is whether the prosecution proved the case against the appellant beyond reasonable doubt.
20. As noted above, the accused person is charged with obtaining registration by false pretence under Section 320 of the penal code. The section provides: -
“any person who unlawfully procures and attempts to procure for himself or any other person any registration, licence and certificate under any law by any false pretence is guilty of a misdemeanour and is liable to imprisonment for one year.”
21. To clarify this the offence further Section 312 of the penal code defines false pretence as follows: -
“Any representation made by words, writing and 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 and does not believe to be true is a false pretence.”
22. From the definition above the misrepresentation must be on matter of fact. It must about past or present. It must be false and made with intent to defraud.
23. In the present case the appellant is said to have made a false registration of a birth certificate. Was it done by the appellant? What is not in dispute is that PW1 was living with the appellant and his wife. She was not their child whether biological and adopted. It is a fact that at some point the appellant presented a birth certificate to the police showing that the child was their daughter. This was false. The appellant was indicated as father. At no time did the appellant complain that his name had been falsely inserted in the certificate. He had actually presented the certificate to show that the complaint in the defilement case was an adult and the daughter.
24. I have seen his defence that the erroneous registration may have been done by the complaint and her brother. To what end? The only person who stood to benefit from the false registration is the appellant. He is the one who took the birth certificate to the police and presented it as genuine.
25. I have considered the findings by the learned magistrate on this aspect. I agree with the weight put on the fact that it is the appellant who came up with the certificate. The fact that he stood to benefit from the fraudulent certificate made him the only person linked to it.
I find that it was proved beyond reasonable doubt that he is the one who obtained the false registration. He went to the extent of forging chief stamp and church dedication certificate. All this was aimed at saving him from the defilement charge.
26. In the result I do not find any reason to disturb the learned magistrate finding or conviction. The same is safe. The appeal on this limb is hereby dismissed.
27. On sentence it is clear that Section 320 of the penal code provides one year as the maximum sentence. The appellant felt that he should have been sentenced to a lesser sentence. The record shows that he was already serving sentence having been convicted of defilement. The order on custodial sentence is not in the circumstances harsh. Again this limb of the appeal is also dismissed.
28. Finally, the dispositive order is that the appeal is hereby dismissed on both conviction and sentence. It is so ordered.
DATED, SIGNED AND DELIVERED IN VIRTUAL COURT IN MAKADARA THIS…10 TH DAY OF JULY… .. 2026.
HON. ALEX. K. ITHUKU
JUDGE
Ms. Onyango for the state.
The appellant appearing virtually.
HON. ALEX. K. ITHUKU
JUDGE
6 | Page KISUMU HCCA E008 OF 2026