REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E007 OF 2023
CONSOLIDATED WITH
CRIMINAL APPEAL NO. E010 OF 2023
FRANCIS KINYANJUI OMENYA LUSIEBA …………………1ST APPELLANT
FRANCIS K. OMENYA ADVOCATE &
COMMISSIONER FOR OATHS…….……………………….2ND APPELLANT
CECILY WANGECI KAGATI…………………………………3RD APPELLANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS …………….……RESPONDENT
(Being an appeal from the conviction and sentence of Hon. Cheruto C. Kipkorir (P.M). in Kerugoya Magistrates Court Criminal Case No. 753 of 2020 decided on 23/2/2023 and 3/11/2021 respectively)
J U D G M E N T
1. The appellants, Francis Kinyanjui Omenya Lusieba, Francis K. Omenya Advocate & Commissioner for Oaths and Cecily Wangeci Kagati were tried before the magistrates’ court on seven counts consolidated on 26/4/2021 as follows:
I. Forgery of judicial documents contrary to section 351 of the Penal Code that on 18/10/2017 at an unknown place in Kerugoya town, in Kirinyaga Central Sub-County within Kirinyaga County jointly forged a certain document purporting to be a genuine court order issued in ELC Miscellaneous Case No. 16 of 2017 authorizing the Land Registrar Kirinyaga Land Registry to transfer land parcel No. L.R. Mutira/Kiaga/429 to Cecily Wangeci Kagati.
II. Uttering a forged document contrary to section 353 of the Penal Code that on 17/10/2017 at Kirinyaga Land Registry in Kirinyaga Central Sub-County within Kirinyaga County jointly uttered a certain forged document purporting to be a genuine court order issued in ELC Miscellaneous Case No. 116 of 2017 authorizing the Land Registrar Kirinyaga to transfer land parcel No. L.R. Mutira/Kiaga/429 to Cecily Wangeci Kagati.
III. Fraudulent procurement of land certificate contrary to section 103(1)(c)(i) of the Land Registration Act (Cap. 300) Laws of Kenya that on 18/10/2017 at Kirinyag Land registry in Kirinyaga Central Sub-County within Kirinyaga County jointly fraudulently procured the registration of land parcel No. L.R. Mutira/Kiaga/429 in favour of Cecily Wangeci Kagati.
IV. Forgery contrary to section 345 as read with section 349 of the Penal Code that on 9/10/2017 at an unknown place in Kerugoya town of Kirinyaga Central Sub-County within Kirinyaga County jointly forged application for consent of Land Control Board in respect of land parcel Mutira/Kiaga/429 purporting it to be a genuine document endorsed by Deputy Registrar, Kerugoya High Court.
V. Uttering a forged document contrary to section 353 of the Penal Code that on 18/10/2017 at Deputy County Commissioner’s office in Kirinyaga Central Sub-County within Kirinyaga County uttered a certain document purporting to be a genuine application for consent of Land Control Board duly endorsed by Deputy Registrar, Kerugoya High Court for transfer of land parcel L.R. Mutira/Kiaga/429 to Cecily Wangeci Kagati.
VI. Giving false information to a person employed in the public service contrary to section 129(a) of the Penal Code that on 18/10/2017 at Deputy County Commissioner’s office in Kirinyaga Central Sub-County within Kirinyaga County jointly Lillian Njagi a person employed in the public service as an assistant County Commissioner that you were authorized by Court order in ELC Misc. Case No. 16 of 2017 at Keugoya Law Courts to transfer land parcel L.R. Mutira/Kiaga/429 to Cecily Wangeci Kagati information you knew to be false intending thereby to cause the said Lillian Njagi to issue a letter of consent to transfer land parcel No. L.R. Mutira/Kiaga/429 to Cecily Wangeci Kagatian act which he ought not to have done if the true state of facts respecting which such information was given had been known to him.
VII. Uttering a forged document contrary to section 353 of the Penal Code that on 18/10/2017 at Kirinyaga County Lands Registry in Kirinyaga Central Sub-County within Kirinyaga County uttered a certain forged document purporting to be a genuine application for consent of Land Control Board duly endorsed by Deputy Registrar, Kerugoya High Court authorizing the transfer of land parcel L.R. Mutira/Kiaga/429 to Cecily Wangeci Kagati.
2. The prosecution called 8 witnesses in support of its case. PW 1, Lucy Muthoni Kinyua was the complainant. She is wife of Stanley Kinyua Gachara who died on 16/7/2005 aged 65 years asper the certificate of death dated 30/8/2005 (Exh. 2). Stanley Kinyua Gachara (deceased) was registered as proprietor of land parcel No. Mutira/Kiaga/429 as per the title deed dated 15/2/1995. PW 1 said the title deed was kept in a drawer and thus produced it in court as exhibit. She gave evidence that she had never sold the land and she did not know if it was sold.
3. In cross-examination PW 1 said that she was the administrator of her husband’s estate. She said she was aware of the subject land which was purchased by her husband. He had purchased many parcels of land. She also said she knew one Ciuma whom she had employed for many years and he was a worker on that land and cultivating it when her husband was alive. She also knows the 3rd accused person Cecily but she could not recall if they had a case in court.
4. PW 1 said she suffers from memory lapses due to her advanced age which she could not remember and so she could not recall some things that she was asked questions on. For instance, she said she could not tell how she knew the 3rd accused person and that she could not even recognize her in court. She also said that her son Mureithi PW 2 did not tell her anything.
5. PW 2, Joseph Mureithi is a son of PW 1. He learnt that the subject land was under sale. He conducted a search at the lands registry and found that it was now registered in the name of Cecily Wangeci, the 3rd accused person. He took action to report the matter to the police.
6. PW 3, Samuel Muriithi Magondu is a land broker. He said he is a nephew to Stanley Kinyua, husband of PW 1 and father of PW 2. He was the one who got word from one Njiraini on 20/11/2017 that the subject land was under sale. He notified PW 2 after which they met the following day and they went together to the lands registry at Kerugoya where they conducted an official search and confirmed the land was registered in the name of Cecily Wangeci. He accompanied PW 2 to the police station and made a report.
7. PW 4, Agnes Karuana Njiraini worked for the firm of Irungu Magondu Surveys where for some reasons, the 1st accused person had his advocates offices in the name of the 2nd accused person. PW 2 also said that she worked for the 1st accused person as a secretary. Sometime in 2017, the 1st accused person was away from the office. He called and instructed her to pick a court order that had been left at the office in Magistrates Court Civil Case No. 188 of 2013 and take it to the lands offices. The order was for to be registered to removal a caution in respect of land parcel No. Mutira/Kiaga/429. She did as instructed.
8. The following day, PW 4 conducted a search at the Lands registry and found the caution had been removed. The 3rd accused person, Warui and another third person later went to the office and signed as purchasers the LCB and land transfer forms in the presence of PW 4. She informed the 1st accused person who then took the forms to be signed by the vendor. He later returned them to her and she gave them to the 3rd accused person who later told her that the application for LCB consent had been approved. PW 4 then took all the requisite documents for processing of the transfer and lodged them at the lands registry. She signed the transfer form on behalf of the 1st accused person. A title deed was issued in the name of Cecily, the 3rd accused person.
9. PW 5, Rosary Mutito Nyaga was at the time working as an assistant land registration officer at Kerugoya. In 2017 she was working as a Land Registrar. She registered the transfer of the subject land in favour of the 3rd accused person on 18/10/2027. She said she does not come into contact with the person who lodges the documents. The typed proceedings seem to have a typographical error as, “It can be availed by the Advocate and something he did himself.” However, the handwritten proceedings are that “it can be availed by the advocate & sometimes the client himself.”
10. PW 6 Vincent Chalengi is a document examiner.
11. PW 7 Cpl Aaron Koros was the investigating officer in the case. He gave evidence of the investigations he carried out leading to the arrest and charging of the appellants in court…. that on 30/11/2017, PW 1, Lucy Muthoni made a report of the subject land parcel No. Mutira/Kiaga/429 being sold by Cecily Wangeci, the 3rd accused person.
12. PW 7, obtained a green card dated 6/8/2020 for the said parcel of land from the Lands Registry at Kerugoya and he was able to appraise himself of the history.
13. The investigating officer gave evidence relating to the transactions of the land as entered in the various documents presented in court. Although PW 5 an officer from the Lands Registry gave evidence in court, she did not testify on many of the things the investigating officer testified on. PW 7 also gave evidence relating to various court proceedings and orders. He however did not make available any officer from the court to testify. What he said in that respect was therefore largely hearsay.
14. The investigating officer said that the purported court order dated 27/9/2017 lifting the respective entries on the green card Nos. 8, 9 and 10 dated 25/6/2001, 18/12/2002 and 6/12/2006 being the restriction by the DCIO, cation by John Kagati Kibuti claiming purchaser’s interest and court order directing no dealings on the land the mess, which purported court order led to the unearthing of the alleged shady transaction leading to the 3rd accused person getting the title for the subject land was made at the office of the 2nd accused person and that the 2nd accused person conspired with the 3rd accused person to prepare the fake documents. He did not substantiate how he came to that conclusion. This was therefore speculative.
15. The evidence tendered at trial on that issue and which the learned trial magistrate accepted was that the document was taken to the office of the 1st accused person and therefore by extension the 2nd accused person and handed over to the 3rd accused person on 17/10/2017 (the entries on the court order and the green card show that the order was actually dated 27/9/2017 and registered on the green card on 31/9/2017.). There was also evidence that a certain court officer called Kabue was the one who had filed the case on behalf of the 3rd accused person. There was evidence from none other than the investigating officer himself that there was a file at the court registry which purported to issue those court orders. PW 4 and the 1st accused person said that it was only after the purported order was obtained that it was taken to PW 4, Agnes who was working at the office of the 1st accused person and 2nd accused person. Kabue was not made available as a witness and interestingly the investigating officer never mentioned him in his evidence.
16. Several of the dates of the events as indicated in the proceedings do not correspond to the activities as captured. For instance, the proceedings show that the LCB application for consent form was filled by Agnes on 18/8/2020 and the same was carried out on 15/9/2020 which dates are way after the alleged transactions were carried out.
17. The investigating officer also said that according to his investigations, the LCB minutes obtained from the office of the DCC Kirinyaga Central indicated that the board sat on 18/10/2017 and under Minute No. 23 approved the transfer of the subject land, Mutira/Kiaga/429 by way of sale from Stanley Kinyua. This is in contrast to the rest of the evidence that in fact, that transfer was purportedly by way of a court order which authorized the DR to sign on behalf of the vendor Stanley Kinyua. The maker of that document, being the DCC/ACC as chair of the LCB or at least a member thereof should have attended court to explain whether the consent for transfer was approved based on a court order or by way of sale in which case the vendor himself should have been present. The investigations were therefore incomplete in that respect.
18. In cross-examination, the investigating officer said that he was aware that John Kagati Kibuti in whose favour entry No. 9 a caution registered on the green card was the husband of the 3rd accused person.
19. It came out in cross-examination of the investigating officer that the ownership of the subject land is mired in controversy right from the second registered owner Ciuma Njambuya onwards. There are civil cases pending in court awaiting resolution of the issue. Before Ciuma Njambuya was registered as owner through a court order in HCCC No. 61 of 1986, one John M. Karanja had registered a caution on the land through entry number 2 dated 17/4/1985 claiming purchaser’s interest. Even then, according to the investigating officer, the manner in which Ciuma became registered owner of the land is questionable and the cases pending in court are supposed to resolve this.
20. The investigating officer also said that he was not aware that PW 1 herein was restrained by court order in CC No. 188 of 2013 from using the land. Yet that case exists and it was the one from which the issues herein arose because the caution by John Kagati Kibuti claiming purchaser’s interest was against the title of Stanley Kinyua Gachara, the husband of PW 1 herein.
21. The investigating officer also said in cross-examination that the person who made the report leading to the case herein was Leah Wanjiru Njogu. She is the plaintiff in CC No. 188 of 2013. However, she did not get instructions from PW 1 to pursue the case on her behalf.
22. Each of the appellants gave sworn evidence in defence and denied that they committed the offences. The 1st accused and 2nd accused persons did call one witness DW 2, Dennis Ngaki. The 3rd accused person called one witness DW 4 Daniel Ndui.
23. The 1st accused person said in evidence that he was instructed as an advocate to conduct the process of transfer of the subject land Mutira/Kiaga/429 by the 3rd appellant in October 2017. The 3rd accused person told him that the transaction to transfer the land was being handled by Kinyua Kabue but it had stalled. The 1st appellant contacted Kabue who gave his office the court order in ELC Misc. Case No. 116 of 2017. At that time, the 1st appellant had travelled upcountry in Kakamega to attend to his ailing father. The transaction was handled at his office by one of the advocates Finnet Otieno. His office prepared the LCB application for consent form. The transfer and the LCB application for consent were taken to the court where they were signed by the Deputy Registrar. The LCB consent for transfer was obtained and the land transferred in favour of the 3rd accused person. He was later called by a police officer and told that the court order used in the transfer of the land was not genuine.
24. The 1st accused person later learned that there was another related case being Civil Suit No. 188 of 2013 where the 3rd accused person was sued as the 3rd defendant, the complainant herein PW 1, Lucy Muthoni Kinyua and one Ciuma Njambuya were also defendants. The same had been dismissed for want of prosecution but now it had to be revived. The 3rd accused person then informed the 1st accused person that she had purchased and she had been in occupation since 2001 and the complainant herein had been restrained from using the land since 2006.
25. The 1st accused person said he was only arrested on 17/9/2020 in relation to the transaction of the transfer of the land to the 3rd accused person. He produced various documents as exhibits to support his case.
26. DW 2, Dennis Ngaki said that towards the end of the year 2017, at the offices of Irungu Surveyors while the 1st accused person was away, one Kinyua took to him a copy of a document the 1st accused person then asked him to hand over the document to his colleague Agnes, PW 4 and he did.
27. The 3rd accused person gave evidence that her husband purchased the land together with her husband for KShs 200,000/= in 2001 from one Njogo Karonji. She had been on the land ever since. Stanley, husband of the complainant was alive and he never asked them anything about it. She had a problem regarding the land from 2017 and Mureithi, PW 2 had disturbed her a lot yet his father had not. She said the complainant’s family should ask Ciuma their land as he was the one who sold to them. In October 2017 she had a case and she gave it to Kinyua Kabue who did work for them. She then gave the work to the 1st accused person and they obtained a title deed for the land.
28. The 3rd accused person said that she went to the advocate to do the transfer of the land. She denied that she made any documents at the advocate, the 1st accused person’s offices. She denied that she lied to any government officer about the land. She said she has a civil case pending in court over the land.
29. DW 4, (not DW 5 as per the trial court proceedings), Daniel Ndui said he was aware that John Kagaiti Kibuti purchased the subject land in 1998 from the wife of one Ngungu. It then turned out that it had some challenges as the owner found that the title had been transferred to Ciuma Njambuya but through court intervention it was surrendered to the owner, the family of Ngungu who were selling to John Kagati Kibuti.
30. Upon considering the evidence the learned trial magistrate acquitted the 1st and 2nd accused persons on count I (Forgery of judicial document, the court order) and count II (uttering a false document, the same court order).
31. She acquitted all the accused persons on counts IV, forgery (of the application for consent of the LCB consent to transfer land) contrary to section 345 as read with section 349 of the Penal Code, count V, uttering the said document in IV above at the Assistant County Commissioner’s office, and count VII, uttering the same document above at the Kirinyaga County Lands Registry.
32. The learned trial magistrate convicted the 3rd accused person on counts I (Forgery of judicial document) and count II (uttering a false document).
33. She then convicted all the accused persons in count III for the offence of fraudulent procurement of land certificate and count VI on the charge of giving false information to a person employed in the public service.
34. The appellants were dissatisfied with the convictions and sentences. The 1st and 2nd appellants; filed a common memorandum of appeal dated 27/2/2023 while the 3rd appellant filed hers on 1/3/2023. Their common grounds of appeal are that the prosecution had failed to prove the cases against them by failing to establish the ingredients of the respective offences beyond a reasonable doubt; convicting the appellants against the weight of the evidence by failing to consider the evidence and submissions tendered by the appellant and thereby arriving at the wrong decision; failing to consider the fact that a key witness for the offence of giving false information to a person employed in the public service namely Lillian Njagi had not been called as a witness a and by shifting the burden of proof to the appellants.
35. The 1st and 2nd appellants had additional grounds that the learned trial magistrate erred in law and fact by failing to consider the defence of alibi tendered by the 1st appellant; by holding that the 1st and 2nd appellants were separate entities and thereby occasioned double jeopardy to the 1st appellant.
36. The appellants therefore pray that the appeals be allowed, the judgment of the trial court be quashed and the sentence set aside and be substituted with an acquittal.
37. The appeal was disposed of by way of written submissions filed by the appellants and the respondent.
38. Learned counsels for the appellant submit that the learned trial magistrate erred in convicting the appellants as she did while the learned counsel for the respondent submits supporting the convictions. I have duly considered the submissions in the analysis following.
39. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32.
40. I have examined, re-evaluated and reanalyzed the evidence tendered at trial by both the prosecution (the respondent herein and the accused persons (the appellants herein).
41. A preliminary issue which the learned trial magistrate does not seem to have addressed was the propriety of charging the 1st accused person, an individual, and the so named 2nd accused person, a professional title of the 1st accused person. It is apparent that what was charged as the 2nd accused person was not a firm of advocates going by that name so that it would fall under section 23 of the Penal Code which provides for offences by corporations, societies and other corporate bodies thus:
s. 23. Where an offence is committed by any company or other body corporate, or by any society, association or body of persons, every person charged with, or concerned or acting in, the control or management of the affairs or activities of such company, body corporate, society, association or body of persons shall be guilty of that offence and liable to be punished accordingly, unless it is proved by such person that, through no act or omission on his part, he was not aware that the offence was being or was intended or about to be committed, or that he took all reasonable steps to prevent its commission.
42. The evidence by the investigating officer indicates that he brought into the case the 2nd accused person because of the name stamp “Francis K. Omenya Advocate & Commissioner for Oaths” used by PW 4 on the LCB application for consent for transfer form and which was later recovered from the 1st appellant’s office. There is no dispute that in fact that name stamp was used as such by PW 4. But the fact is that the name stamp is simply one of the tools of trade used by the 1st accused person in his business of advocate. It is not the name of the firm under which he was operating whose certificate of registration he produced (D. Exh. 1) in the name of F.K. Omenya & Co. issued under the Registration of Business Names Act (Cap. 499) Laws of Kenya. It is only if the firm had been charged that the stamp would have been used as evidence to show that the firm was involved in the commission of the offence. If the firm had been charged then it would have been upon the prosecution to show that the 1st accused person was concerned or acting in, the control or management of the firm, in which case he would appear for it (not as an advocate but as its proprietor) and therefore the charges would be sustainable against the firm. As it were, the firm was not charged and therefore, the 1st accused person, by pleading on behalf of and appearing for the 2nd person was simply being charged twice for the same offences thereby breaching the rule of double jeopardy when in fact there was no entity to appear for as a 2nd accused person.
43. Consequently, I find that the charges in respect of the alleged 2nd accused person were defective for charging a non-existent person and the same are for striking out as I hereby do. The conviction of the alleged 2nd accused person is hereby set aside and the sentence is quashed.
44. The 3rd accused person was convicted in counts I and II for the offences of forgery of a judicial document and uttering a false document respectively.
45. The offence of forgery is provided for in the Penal Code as follows:
s. 345: Forgery is the making of a false document with intent to defraud or to deceive.
s. 347: Any person makes a false document who—
(a)makes a document purporting to be what in fact it is not; or …
46. The punishment for forgery of a judicial document is provided for under section 351 of the Penal Code as imprisonment for seven years.
47. In the case of Caroline Wanjiku Ngugi v Republic [2015] KEHC 854 (KLR) the High Court considered the ingredients of section 345 of the Penal Code which defines forgery as 'the making of a false document with intent to defraud or deceive as follows:
“Forgery is the false making or material alteration of a writing, where the writing has the apparent ability to defraud and is of apparent legal efficacy with the intent to defraud. Thus, the elements of forgery are: -
i. False making of- The person must have taken paper and ink and created a false document from scratch. Forgery is limited to documents. "Writing" includes anything handwritten, type written, computer generated, printed or engraved.
ii. Material alteration- The person must have taken a genuine document and changed it in some significant way. It is intended to cover situations involving false signatures or improperly filing in blanks on a form or altering the genuine content of a document.
iii. Ability to defraud- The document or writing has to look genuine enough to qualify as having ability to mislead others to think its genuine.
iv. Legal efficacy- The document or writing has to have some legal significance.
v. Intent to defraud- The specific state of mind for forgery does not require intent to steal, but only intent to fool people. The person must have intended that other people regard something false as genuine. A forgery may be committed either by handwriting, through the use of type writer or a computer.”
48. The High Court went further and considered the Nigerian case of Alake vs The State {1997} 7 NWLR 568 where the court listed the following as the ingredients of the offence of forgery: -
i. That there is a document or writing;
ii. That the document or writing is forged;
iii. That the forgery is by the accused person;
iv. That the accused person knows that the document or writing is false;
v. That he intends the forged document to be acted upon to the prejudice of the victim in the belief that it is genuine.
49. The judicial document, the court order in ELC Misc. Case No. 116 of 2017 was the document that apparently initiated the process of what is alleged to be forgeries leading to the transfer and registration of the subject land in the name of the 3rd accused person. The 3rd accused person concedes in her defence that indeed she had the land registered in her name. For her, this was just a follow-up process after she together and her husband purchased the land in 2001. She had a case in court, which she did not name but I believe it was Misc. ELC No. 116 of 2017 which was handled for her by Kinyua Kabue after which she passed the process of transfer of the land to the 1st accused person.
50. The investigating officer adduced evidence that the order was a forgery because he wrote a letter dated 21/12/2017 (Exh. 15) inquiring about its authenticity from Kerugoya court and received a reply dated 27/12/2017 from the then deputy registrar S.M. Soita that in fact it was not authentic. That evidence was not disputed by the defence and for that reason I find as the learned trial magistrate did, that indeed the purported order was a forgery.
51. That forged court order is indicated to have been given on 28/7/2017 and issued on 22/7/2017, a discrepancy which the D.R. S.M. Soita noted in his letter of response to the investigating officer. Now, the green card entry No. 11 of 31/9/2017 indicates that the order was dated 27/9/2017 issued in CMC (presumably Chief Magistrates Court) in Civil Suit No. 188 of 2013 entry Nos. 8, 9 and 10 being a restriction by DCIO, caution in favour of John Kagati Kibuti and court order dated 29/11/2006 prohibiting any dealings in Civil Suit No. 110 of 2006 – High Court Embu respectively. But the forged order of 22/7/2017 shows at the bottom that it was registered on 31/9/2017. It is worth noting that Kerugoya CMC Civil Case No. 188 of 2013 which was formerly Embu HC CC No. 110 of 2006 and then Kerugoya ELC Case No. 444 of 2013 was dismissed for want of prosecution on 27/9/2017 and the temporary order issued in Embu HC CC No. 110 of 2006 and which had been registered on the title of the land as entry No. 10 was vacated. It did not however lift entry Nos. 8 and 9 on the register. This means that the scheme to forge the order of 22/7/2017 was elaborate. It was done by people who knew that in fact there existed a case involving the 3rd accused person that is CMC CC No. 188 of 2013 which had been dismissed on 27/9/2017 so that any person looking at the entry would easily think that the order lifting entries 8 and 9 was obtained CMC CC No. 188 of 2013 when in fact it was not. Indeed, PW 5 conceded in her evidence that this entry the green card entry No. 11 of 31/9/2017 indicating that the purported court order was dated 27/9/2017 could not have been made on the register without the connivance of officials at the Lands Registry. That is because, the lands official using the order of dismissal of CMC CC No. 188 of 2013 could not have lifted entries 8 and 9. So, an order that purported to lift these two entries had to be brought in and that was the forged order purportedly issued earlier on 22nd/28th July 2017.
52. Obviously, such a scheme could not have been perpetrated without the involvement of the 3rd accused person. As observed by the learned trial magistrate, the 3rd accused person was the one to benefit from that forgery.
53. In convicting the 3rd accused person on counts I and II, the learned trial magistrate found that the 3rd accused person was the one who deliberately forged the court order in conjunction with a court assistant known as Kinyua Kibue who, according to the learned trial magistrate, the 3rd accused person admitted in her evidence that he assisted her. The learned trial magistrate also found that the 1
[...truncated]
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E007 OF 2023
CONSOLIDATED WITH
CRIMINAL APPEAL NO. E010 OF 2023
FRANCIS KINYANJUI OMENYA LUSIEBA …………………1ST APPELLANT
FRANCIS K. OMENYA ADVOCATE &
COMMISSIONER FOR OATHS…….……………………….2ND APPELLANT
CECILY WANGECI KAGATI…………………………………3RD APPELLANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS …………….……RESPONDENT
(Being an appeal from the conviction and sentence of Hon. Cheruto C. Kipkorir (P.M). in Kerugoya Magistrates Court Criminal Case No. 753 of 2020 decided on 23/2/2023 and 3/11/2021 respectively)
J U D G M E N T
1. The appellants, Francis Kinyanjui Omenya Lusieba, Francis K. Omenya Advocate & Commissioner for Oaths and Cecily Wangeci Kagati were tried before the magistrates’ court on seven counts consolidated on 26/4/2021 as follows:
I. Forgery of judicial documents contrary to section 351 of the Penal Code that on 18/10/2017 at an unknown place in Kerugoya town, in Kirinyaga Central Sub-County within Kirinyaga County jointly forged a certain document purporting to be a genuine court order issued in ELC Miscellaneous Case No. 16 of 2017 authorizing the Land Registrar Kirinyaga Land Registry to transfer land parcel No. L.R. Mutira/Kiaga/429 to Cecily Wangeci Kagati.
II. Uttering a forged document contrary to section 353 of the Penal Code that on 17/10/2017 at Kirinyaga Land Registry in Kirinyaga Central Sub-County within Kirinyaga County jointly uttered a certain forged document purporting to be a genuine court order issued in ELC Miscellaneous Case No. 116 of 2017 authorizing the Land Registrar Kirinyaga to transfer land parcel No. L.R. Mutira/Kiaga/429 to Cecily Wangeci Kagati.
III. Fraudulent procurement of land certificate contrary to section 103(1)(c)(i) of the Land Registration Act (Cap. 300) Laws of Kenya that on 18/10/2017 at Kirinyag Land registry in Kirinyaga Central Sub-County within Kirinyaga County jointly fraudulently procured the registration of land parcel No. L.R. Mutira/Kiaga/429 in favour of Cecily Wangeci Kagati.
IV. Forgery contrary to section 345 as read with section 349 of the Penal Code that on 9/10/2017 at an unknown place in Kerugoya town of Kirinyaga Central Sub-County within Kirinyaga County jointly forged application for consent of Land Control Board in respect of land parcel Mutira/Kiaga/429 purporting it to be a genuine document endorsed by Deputy Registrar, Kerugoya High Court.
V. Uttering a forged document contrary to section 353 of the Penal Code that on 18/10/2017 at Deputy County Commissioner’s office in Kirinyaga Central Sub-County within Kirinyaga County uttered a certain document purporting to be a genuine application for consent of Land Control Board duly endorsed by Deputy Registrar, Kerugoya High Court for transfer of land parcel L.R. Mutira/Kiaga/429 to Cecily Wangeci Kagati.
VI. Giving false information to a person employed in the public service contrary to section 129(a) of the Penal Code that on 18/10/2017 at Deputy County Commissioner’s office in Kirinyaga Central Sub-County within Kirinyaga County jointly Lillian Njagi a person employed in the public service as an assistant County Commissioner that you were authorized by Court order in ELC Misc. Case No. 16 of 2017 at Keugoya Law Courts to transfer land parcel L.R. Mutira/Kiaga/429 to Cecily Wangeci Kagati information you knew to be false intending thereby to cause the said Lillian Njagi to issue a letter of consent to transfer land parcel No. L.R. Mutira/Kiaga/429 to Cecily Wangeci Kagatian act which he ought not to have done if the true state of facts respecting which such information was given had been known to him.
VII. Uttering a forged document contrary to section 353 of the Penal Code that on 18/10/2017 at Kirinyaga County Lands Registry in Kirinyaga Central Sub-County within Kirinyaga County uttered a certain forged document purporting to be a genuine application for consent of Land Control Board duly endorsed by Deputy Registrar, Kerugoya High Court authorizing the transfer of land parcel L.R. Mutira/Kiaga/429 to Cecily Wangeci Kagati.
2. The prosecution called 8 witnesses in support of its case. PW 1, Lucy Muthoni Kinyua was the complainant. She is wife of Stanley Kinyua Gachara who died on 16/7/2005 aged 65 years asper the certificate of death dated 30/8/2005 (Exh. 2). Stanley Kinyua Gachara (deceased) was registered as proprietor of land parcel No. Mutira/Kiaga/429 as per the title deed dated 15/2/1995. PW 1 said the title deed was kept in a drawer and thus produced it in court as exhibit. She gave evidence that she had never sold the land and she did not know if it was sold.
3. In cross-examination PW 1 said that she was the administrator of her husband’s estate. She said she was aware of the subject land which was purchased by her husband. He had purchased many parcels of land. She also said she knew one Ciuma whom she had employed for many years and he was a worker on that land and cultivating it when her husband was alive. She also knows the 3rd accused person Cecily but she could not recall if they had a case in court.
4. PW 1 said she suffers from memory lapses due to her advanced age which she could not remember and so she could not recall some things that she was asked questions on. For instance, she said she could not tell how she knew the 3rd accused person and that she could not even recognize her in court. She also said that her son Mureithi PW 2 did not tell her anything.
5. PW 2, Joseph Mureithi is a son of PW 1. He learnt that the subject land was under sale. He conducted a search at the lands registry and found that it was now registered in the name of Cecily Wangeci, the 3rd accused person. He took action to report the matter to the police.
6. PW 3, Samuel Muriithi Magondu is a land broker. He said he is a nephew to Stanley Kinyua, husband of PW 1 and father of PW 2. He was the one who got word from one Njiraini on 20/11/2017 that the subject land was under sale. He notified PW 2 after which they met the following day and they went together to the lands registry at Kerugoya where they conducted an official search and confirmed the land was registered in the name of Cecily Wangeci. He accompanied PW 2 to the police station and made a report.
7. PW 4, Agnes Karuana Njiraini worked for the firm of Irungu Magondu Surveys where for some reasons, the 1st accused person had his advocates offices in the name of the 2nd accused person. PW 2 also said that she worked for the 1st accused person as a secretary. Sometime in 2017, the 1st accused person was away from the office. He called and instructed her to pick a court order that had been left at the office in Magistrates Court Civil Case No. 188 of 2013 and take it to the lands offices. The order was for to be registered to removal a caution in respect of land parcel No. Mutira/Kiaga/429. She did as instructed.
8. The following day, PW 4 conducted a search at the Lands registry and found the caution had been removed. The 3rd accused person, Warui and another third person later went to the office and signed as purchasers the LCB and land transfer forms in the presence of PW 4. She informed the 1st accused person who then took the forms to be signed by the vendor. He later returned them to her and she gave them to the 3rd accused person who later told her that the application for LCB consent had been approved. PW 4 then took all the requisite documents for processing of the transfer and lodged them at the lands registry. She signed the transfer form on behalf of the 1st accused person. A title deed was issued in the name of Cecily, the 3rd accused person.
9. PW 5, Rosary Mutito Nyaga was at the time working as an assistant land registration officer at Kerugoya. In 2017 she was working as a Land Registrar. She registered the transfer of the subject land in favour of the 3rd accused person on 18/10/2027. She said she does not come into contact with the person who lodges the documents. The typed proceedings seem to have a typographical error as, “It can be availed by the Advocate and something he did himself.” However, the handwritten proceedings are that “it can be availed by the advocate & sometimes the client himself.”
10. PW 6 Vincent Chalengi is a document examiner.
11. PW 7 Cpl Aaron Koros was the investigating officer in the case. He gave evidence of the investigations he carried out leading to the arrest and charging of the appellants in court…. that on 30/11/2017, PW 1, Lucy Muthoni made a report of the subject land parcel No. Mutira/Kiaga/429 being sold by Cecily Wangeci, the 3rd accused person.
12. PW 7, obtained a green card dated 6/8/2020 for the said parcel of land from the Lands Registry at Kerugoya and he was able to appraise himself of the history.
13. The investigating officer gave evidence relating to the transactions of the land as entered in the various documents presented in court. Although PW 5 an officer from the Lands Registry gave evidence in court, she did not testify on many of the things the investigating officer testified on. PW 7 also gave evidence relating to various court proceedings and orders. He however did not make available any officer from the court to testify. What he said in that respect was therefore largely hearsay.
14. The investigating officer said that the purported court order dated 27/9/2017 lifting the respective entries on the green card Nos. 8, 9 and 10 dated 25/6/2001, 18/12/2002 and 6/12/2006 being the restriction by the DCIO, cation by John Kagati Kibuti claiming purchaser’s interest and court order directing no dealings on the land the mess, which purported court order led to the unearthing of the alleged shady transaction leading to the 3rd accused person getting the title for the subject land was made at the office of the 2nd accused person and that the 2nd accused person conspired with the 3rd accused person to prepare the fake documents. He did not substantiate how he came to that conclusion. This was therefore speculative.
15. The evidence tendered at trial on that issue and which the learned trial magistrate accepted was that the document was taken to the office of the 1st accused person and therefore by extension the 2nd accused person and handed over to the 3rd accused person on 17/10/2017 (the entries on the court order and the green card show that the order was actually dated 27/9/2017 and registered on the green card on 31/9/2017.). There was also evidence that a certain court officer called Kabue was the one who had filed the case on behalf of the 3rd accused person. There was evidence from none other than the investigating officer himself that there was a file at the court registry which purported to issue those court orders. PW 4 and the 1st accused person said that it was only after the purported order was obtained that it was taken to PW 4, Agnes who was working at the office of the 1st accused person and 2nd accused person. Kabue was not made available as a witness and interestingly the investigating officer never mentioned him in his evidence.
16. Several of the dates of the events as indicated in the proceedings do not correspond to the activities as captured. For instance, the proceedings show that the LCB application for consent form was filled by Agnes on 18/8/2020 and the same was carried out on 15/9/2020 which dates are way after the alleged transactions were carried out.
17. The investigating officer also said that according to his investigations, the LCB minutes obtained from the office of the DCC Kirinyaga Central indicated that the board sat on 18/10/2017 and under Minute No. 23 approved the transfer of the subject land, Mutira/Kiaga/429 by way of sale from Stanley Kinyua. This is in contrast to the rest of the evidence that in fact, that transfer was purportedly by way of a court order which authorized the DR to sign on behalf of the vendor Stanley Kinyua. The maker of that document, being the DCC/ACC as chair of the LCB or at least a member thereof should have attended court to explain whether the consent for transfer was approved based on a court order or by way of sale in which case the vendor himself should have been present. The investigations were therefore incomplete in that respect.
18. In cross-examination, the investigating officer said that he was aware that John Kagati Kibuti in whose favour entry No. 9 a caution registered on the green card was the husband of the 3rd accused person.
19. It came out in cross-examination of the investigating officer that the ownership of the subject land is mired in controversy right from the second registered owner Ciuma Njambuya onwards. There are civil cases pending in court awaiting resolution of the issue. Before Ciuma Njambuya was registered as owner through a court order in HCCC No. 61 of 1986, one John M. Karanja had registered a caution on the land through entry number 2 dated 17/4/1985 claiming purchaser’s interest. Even then, according to the investigating officer, the manner in which Ciuma became registered owner of the land is questionable and the cases pending in court are supposed to resolve this.
20. The investigating officer also said that he was not aware that PW 1 herein was restrained by court order in CC No. 188 of 2013 from using the land. Yet that case exists and it was the one from which the issues herein arose because the caution by John Kagati Kibuti claiming purchaser’s interest was against the title of Stanley Kinyua Gachara, the husband of PW 1 herein.
21. The investigating officer also said in cross-examination that the person who made the report leading to the case herein was Leah Wanjiru Njogu. She is the plaintiff in CC No. 188 of 2013. However, she did not get instructions from PW 1 to pursue the case on her behalf.
22. Each of the appellants gave sworn evidence in defence and denied that they committed the offences. The 1st accused and 2nd accused persons did call one witness DW 2, Dennis Ngaki. The 3rd accused person called one witness DW 4 Daniel Ndui.
23. The 1st accused person said in evidence that he was instructed as an advocate to conduct the process of transfer of the subject land Mutira/Kiaga/429 by the 3rd appellant in October 2017. The 3rd accused person told him that the transaction to transfer the land was being handled by Kinyua Kabue but it had stalled. The 1st appellant contacted Kabue who gave his office the court order in ELC Misc. Case No. 116 of 2017. At that time, the 1st appellant had travelled upcountry in Kakamega to attend to his ailing father. The transaction was handled at his office by one of the advocates Finnet Otieno. His office prepared the LCB application for consent form. The transfer and the LCB application for consent were taken to the court where they were signed by the Deputy Registrar. The LCB consent for transfer was obtained and the land transferred in favour of the 3rd accused person. He was later called by a police officer and told that the court order used in the transfer of the land was not genuine.
24. The 1st accused person later learned that there was another related case being Civil Suit No. 188 of 2013 where the 3rd accused person was sued as the 3rd defendant, the complainant herein PW 1, Lucy Muthoni Kinyua and one Ciuma Njambuya were also defendants. The same had been dismissed for want of prosecution but now it had to be revived. The 3rd accused person then informed the 1st accused person that she had purchased and she had been in occupation since 2001 and the complainant herein had been restrained from using the land since 2006.
25. The 1st accused person said he was only arrested on 17/9/2020 in relation to the transaction of the transfer of the land to the 3rd accused person. He produced various documents as exhibits to support his case.
26. DW 2, Dennis Ngaki said that towards the end of the year 2017, at the offices of Irungu Surveyors while the 1st accused person was away, one Kinyua took to him a copy of a document the 1st accused person then asked him to hand over the document to his colleague Agnes, PW 4 and he did.
27. The 3rd accused person gave evidence that her husband purchased the land together with her husband for KShs 200,000/= in 2001 from one Njogo Karonji. She had been on the land ever since. Stanley, husband of the complainant was alive and he never asked them anything about it. She had a problem regarding the land from 2017 and Mureithi, PW 2 had disturbed her a lot yet his father had not. She said the complainant’s family should ask Ciuma their land as he was the one who sold to them. In October 2017 she had a case and she gave it to Kinyua Kabue who did work for them. She then gave the work to the 1st accused person and they obtained a title deed for the land.
28. The 3rd accused person said that she went to the advocate to do the transfer of the land. She denied that she made any documents at the advocate, the 1st accused person’s offices. She denied that she lied to any government officer about the land. She said she has a civil case pending in court over the land.
29. DW 4, (not DW 5 as per the trial court proceedings), Daniel Ndui said he was aware that John Kagaiti Kibuti purchased the subject land in 1998 from the wife of one Ngungu. It then turned out that it had some challenges as the owner found that the title had been transferred to Ciuma Njambuya but through court intervention it was surrendered to the owner, the family of Ngungu who were selling to John Kagati Kibuti.
30. Upon considering the evidence the learned trial magistrate acquitted the 1st and 2nd accused persons on count I (Forgery of judicial document, the court order) and count II (uttering a false document, the same court order).
31. She acquitted all the accused persons on counts IV, forgery (of the application for consent of the LCB consent to transfer land) contrary to section 345 as read with section 349 of the Penal Code, count V, uttering the said document in IV above at the Assistant County Commissioner’s office, and count VII, uttering the same document above at the Kirinyaga County Lands Registry.
32. The learned trial magistrate convicted the 3rd accused person on counts I (Forgery of judicial document) and count II (uttering a false document).
33. She then convicted all the accused persons in count III for the offence of fraudulent procurement of land certificate and count VI on the charge of giving false information to a person employed in the public service.
34. The appellants were dissatisfied with the convictions and sentences. The 1st and 2nd appellants; filed a common memorandum of appeal dated 27/2/2023 while the 3rd appellant filed hers on 1/3/2023. Their common grounds of appeal are that the prosecution had failed to prove the cases against them by failing to establish the ingredients of the respective offences beyond a reasonable doubt; convicting the appellants against the weight of the evidence by failing to consider the evidence and submissions tendered by the appellant and thereby arriving at the wrong decision; failing to consider the fact that a key witness for the offence of giving false information to a person employed in the public service namely Lillian Njagi had not been called as a witness a and by shifting the burden of proof to the appellants.
35. The 1st and 2nd appellants had additional grounds that the learned trial magistrate erred in law and fact by failing to consider the defence of alibi tendered by the 1st appellant; by holding that the 1st and 2nd appellants were separate entities and thereby occasioned double jeopardy to the 1st appellant.
36. The appellants therefore pray that the appeals be allowed, the judgment of the trial court be quashed and the sentence set aside and be substituted with an acquittal.
37. The appeal was disposed of by way of written submissions filed by the appellants and the respondent.
38. Learned counsels for the appellant submit that the learned trial magistrate erred in convicting the appellants as she did while the learned counsel for the respondent submits supporting the convictions. I have duly considered the submissions in the analysis following.
39. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32.
40. I have examined, re-evaluated and reanalyzed the evidence tendered at trial by both the prosecution (the respondent herein and the accused persons (the appellants herein).
41. A preliminary issue which the learned trial magistrate does not seem to have addressed was the propriety of charging the 1st accused person, an individual, and the so named 2nd accused person, a professional title of the 1st accused person. It is apparent that what was charged as the 2nd accused person was not a firm of advocates going by that name so that it would fall under section 23 of the Penal Code which provides for offences by corporations, societies and other corporate bodies thus:
s. 23. Where an offence is committed by any company or other body corporate, or by any society, association or body of persons, every person charged with, or concerned or acting in, the control or management of the affairs or activities of such company, body corporate, society, association or body of persons shall be guilty of that offence and liable to be punished accordingly, unless it is proved by such person that, through no act or omission on his part, he was not aware that the offence was being or was intended or about to be committed, or that he took all reasonable steps to prevent its commission.
42. The evidence by the investigating officer indicates that he brought into the case the 2nd accused person because of the name stamp “Francis K. Omenya Advocate & Commissioner for Oaths” used by PW 4 on the LCB application for consent for transfer form and which was later recovered from the 1st appellant’s office. There is no dispute that in fact that name stamp was used as such by PW 4. But the fact is that the name stamp is simply one of the tools of trade used by the 1st accused person in his business of advocate. It is not the name of the firm under which he was operating whose certificate of registration he produced (D. Exh. 1) in the name of F.K. Omenya & Co. issued under the Registration of Business Names Act (Cap. 499) Laws of Kenya. It is only if the firm had been charged that the stamp would have been used as evidence to show that the firm was involved in the commission of the offence. If the firm had been charged then it would have been upon the prosecution to show that the 1st accused person was concerned or acting in, the control or management of the firm, in which case he would appear for it (not as an advocate but as its proprietor) and therefore the charges would be sustainable against the firm. As it were, the firm was not charged and therefore, the 1st accused person, by pleading on behalf of and appearing for the 2nd person was simply being charged twice for the same offences thereby breaching the rule of double jeopardy when in fact there was no entity to appear for as a 2nd accused person.
43. Consequently, I find that the charges in respect of the alleged 2nd accused person were defective for charging a non-existent person and the same are for striking out as I hereby do. The conviction of the alleged 2nd accused person is hereby set aside and the sentence is quashed.
44. The 3rd accused person was convicted in counts I and II for the offences of forgery of a judicial document and uttering a false document respectively.
45. The offence of forgery is provided for in the Penal Code as follows:
s. 345: Forgery is the making of a false document with intent to defraud or to deceive.
s. 347: Any person makes a false document who—
(a)makes a document purporting to be what in fact it is not; or …
46. The punishment for forgery of a judicial document is provided for under section 351 of the Penal Code as imprisonment for seven years.
47. In the case of Caroline Wanjiku Ngugi v Republic [2015] KEHC 854 (KLR) the High Court considered the ingredients of section 345 of the Penal Code which defines forgery as 'the making of a false document with intent to defraud or deceive as follows:
“Forgery is the false making or material alteration of a writing, where the writing has the apparent ability to defraud and is of apparent legal efficacy with the intent to defraud. Thus, the elements of forgery are: -
i. False making of- The person must have taken paper and ink and created a false document from scratch. Forgery is limited to documents. "Writing" includes anything handwritten, type written, computer generated, printed or engraved.
ii. Material alteration- The person must have taken a genuine document and changed it in some significant way. It is intended to cover situations involving false signatures or improperly filing in blanks on a form or altering the genuine content of a document.
iii. Ability to defraud- The document or writing has to look genuine enough to qualify as having ability to mislead others to think its genuine.
iv. Legal efficacy- The document or writing has to have some legal significance.
v. Intent to defraud- The specific state of mind for forgery does not require intent to steal, but only intent to fool people. The person must have intended that other people regard something false as genuine. A forgery may be committed either by handwriting, through the use of type writer or a computer.”
48. The High Court went further and considered the Nigerian case of Alake vs The State {1997} 7 NWLR 568 where the court listed the following as the ingredients of the offence of forgery: -
i. That there is a document or writing;
ii. That the document or writing is forged;
iii. That the forgery is by the accused person;
iv. That the accused person knows that the document or writing is false;
v. That he intends the forged document to be acted upon to the prejudice of the victim in the belief that it is genuine.
49. The judicial document, the court order in ELC Misc. Case No. 116 of 2017 was the document that apparently initiated the process of what is alleged to be forgeries leading to the transfer and registration of the subject land in the name of the 3rd accused person. The 3rd accused person concedes in her defence that indeed she had the land registered in her name. For her, this was just a follow-up process after she together and her husband purchased the land in 2001. She had a case in court, which she did not name but I believe it was Misc. ELC No. 116 of 2017 which was handled for her by Kinyua Kabue after which she passed the process of transfer of the land to the 1st accused person.
50. The investigating officer adduced evidence that the order was a forgery because he wrote a letter dated 21/12/2017 (Exh. 15) inquiring about its authenticity from Kerugoya court and received a reply dated 27/12/2017 from the then deputy registrar S.M. Soita that in fact it was not authentic. That evidence was not disputed by the defence and for that reason I find as the learned trial magistrate did, that indeed the purported order was a forgery.
51. That forged court order is indicated to have been given on 28/7/2017 and issued on 22/7/2017, a discrepancy which the D.R. S.M. Soita noted in his letter of response to the investigating officer. Now, the green card entry No. 11 of 31/9/2017 indicates that the order was dated 27/9/2017 issued in CMC (presumably Chief Magistrates Court) in Civil Suit No. 188 of 2013 entry Nos. 8, 9 and 10 being a restriction by DCIO, caution in favour of John Kagati Kibuti and court order dated 29/11/2006 prohibiting any dealings in Civil Suit No. 110 of 2006 – High Court Embu respectively. But the forged order of 22/7/2017 shows at the bottom that it was registered on 31/9/2017. It is worth noting that Kerugoya CMC Civil Case No. 188 of 2013 which was formerly Embu HC CC No. 110 of 2006 and then Kerugoya ELC Case No. 444 of 2013 was dismissed for want of prosecution on 27/9/2017 and the temporary order issued in Embu HC CC No. 110 of 2006 and which had been registered on the title of the land as entry No. 10 was vacated. It did not however lift entry Nos. 8 and 9 on the register. This means that the scheme to forge the order of 22/7/2017 was elaborate. It was done by people who knew that in fact there existed a case involving the 3rd accused person that is CMC CC No. 188 of 2013 which had been dismissed on 27/9/2017 so that any person looking at the entry would easily think that the order lifting entries 8 and 9 was obtained CMC CC No. 188 of 2013 when in fact it was not. Indeed, PW 5 conceded in her evidence that this entry the green card entry No. 11 of 31/9/2017 indicating that the purported court order was dated 27/9/2017 could not have been made on the register without the connivance of officials at the Lands Registry. That is because, the lands official using the order of dismissal of CMC CC No. 188 of 2013 could not have lifted entries 8 and 9. So, an order that purported to lift these two entries had to be brought in and that was the forged order purportedly issued earlier on 22nd/28th July 2017.
52. Obviously, such a scheme could not have been perpetrated without the involvement of the 3rd accused person. As observed by the learned trial magistrate, the 3rd accused person was the one to benefit from that forgery.
53. In convicting the 3rd accused person on counts I and II, the learned trial magistrate found that the 3rd accused person was the one who deliberately forged the court order in conjunction with a court assistant known as Kinyua Kibue who, according to the learned trial magistrate, the 3rd accused person admitted in her evidence that he assisted her. The learned trial magistrate also found that the 1
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