CHARLES MURITHI MWENDA VS Office of the Director of Public Prosecution

](An Appeal from the Judgment of Hon. J.A. Otieno, PM in Embu MCCR E1423 of 2021 delivered on 9^th May 2024)

1. The appellant filed a petition of appeal dated 05^th June 2024 seeking that the appeal be allowed, the judgment of the trial court be set aside/vacated and the Kshs.14,000/= recovered from the appellant and remitted to the complainant by the prosecution be refunded to the appellant. The grounds for appeal are as follows:
2. That in the circumstances of the case, the sentence meted out upon the Appellant by the trial court was unlawful and/or unwarranted;
3. That the learned trial magistrate erred in law and in fact in noting in the courts proceedings that the Appellant is fined Kshs.200,000/= and in default he be imprisoned for 3 years but the option of the fine does not feature in the judgement;
4. That the learned trial magistrate erred in law and in fact in ordering that the Kshs.14,000/= recovered from the Appellant be remitted to the complainant by the prosecution;
5. That the learned trial magistrate erred in law and in fact in failing to find that there was no evidence that the Appellant received money;
6. That the learned trial magistrate erred in law and in fact in failing to find that the prosecution's case was marred with inconsistencies and proceeded to convict the Appellant on the basis of the inconsistent evidence;
7. That the learned trial magistrate erred in law and in fact in failing to find that key witnesses were not called to support the prosecution's case;
8. That the learned trial magistrate erred in law and in fact in considering extraneous evidence which was neither supported by evidence nor the proceedings on record;
9. That the learned trial magistrate erred in law and in fact in relying on unlawful, unprocedural identification parade which was unnecessary and unwarranted as it had no probative value and/or necessity;
10. That the learned trial magistrate erred in law and in fact by finding that the Appellants defense was an afterthought and ignoring the Appellants defense;
11. That the learned trial magistrate erred in law and in fact in relying entirely on corroboration and chain of events to convict the Appellant which are not ingredients of the offence;
12. That the learned trial magistrate erred in law and in fact in failing to find that there was no representation by the Appellant as the Appellant was categorical, honest and made full disclosure that the decision on whether Peter Murithi Munyi would supply goods or not was solely to be made by the appellant’s boss;
13. That the learned trial magistrate erred in law and in fact in failing to find that all the ingredients of the offence were not proved to the required threshold;
14. That the learned trial magistrate erred in law and in fact in failing to accord the Appellant a chance to have his case heard afresh after the court transfer;
15. That the learned trial magistrate erred in law and in fact in disregarding the Appellants mitigation and the local administration’s input in the pre-sentencing report as the judgement and sentencing had been predetermined.
16. The appellant was charged with the offence of obtaining money by false pretences contrary to section 313 of the Penal Code. Particulars of the offence are that on 21^st September 2021, at Embu Township within Embu County, the appellant, with the intent to defaud, obtained a sum of Kshs.130,000/= from Peter Murithi Munyi by falsely pretending that he was in a position to sell him sacks full of sugar, a fact he knew to be false or untrue. He pleaded not guilty to the charge and the matter proceeded to trial.
17. PW1 was Peter Muriithi Munyi who is the owner of Ahadi Best suppliers which is a wholesale and retail shop and it does food supplies to schools and institutions. He stated that on 16^th September, 2021 he was at his shop when the accused went to his shop asking to see him. That the appellant introduced himself as a county officer and told him that he had flaunted county by-laws by extending the front of his shop. He told the appellant that he would remove the extension and the appellant told him that he wanted to contract him to supply goods at Embu Level 5 Hospital.
18. He stated that they exchanged phone numbers and the appellant promised to call him the following day. That the following day, the appellant told him that the officer in charge of procurement at the county wanted to meet him in Embu town and since he was at home, he reached town after about 30 minutes with his cheque book. He withdrew Kshs.130,000/= from DTB Embu Branch and the appellant told him that his boss was about to leave thus they had to hurry to the County Offices. That they went to the county offices where he saw a lorry offloading goods. That the appellant took him to a hotel and bought him tea and then offered to sell him the excess goods in the lorry as they awaited the appellant’s boss.
19. The goods were worth Kshs.148,850/= and he told him that all he had was Kshs.130,000/= for buying construction materials. The appellant told him to give him the money so that he could take it to the procurement boss and then they would go to his shop for the balance. The appellant took the money and entered the county office but he did not come back. He asked one Mr. Kones, whom he knew at the county office, if he had seen the appellant but he told him that the appellant only roams around county offices and that he did not have an office there. He testified that when he tried to call the appellant, the number he gave him was off and that is when he reported the matter to the police. That the police referred to the CCTV footage from his shop to identify the appellant and he was arrested.
20. He stated that later on, his cousin told him that the appellant had defrauded him of Kshs.14,000/= which money was found hidden in the appellant’s left foot in denominations of Kshs.1,000/= notes. That the phone number used to defraud his cousin was the same one that he also gave to the police and it belonged to the appellant. It was his testimony that the appellant told him that he was a county procurement officer and he made him believe as much. That when he met the appellant, he had gone to withdraw money from the ATM to buy construction materials. That the appellant told him that the excess goods he wanted to sell to him were sugar, rice and cooking oil and they were in a lorry. That he withdrew the money from his personal account using a cheque.
21. On cross-examination, he stated that he was meeting the appellant who was meant to introduce him to his boss, the officer in charge of procurement. That when the appellant offered to sell him the excess goods, he saw the goods in a lorry whose registration number he could not recall but he spoke to the driver of the lorry who told him that the appellant was in charge of the goods. That he did not know how his cousin was defrauded by the appellant. That when he was arrested, the appellant tried to reach out to him so that they could settle the matter out of court. That when Mr. Kones, a county officer asked him if he knew the appellant, he said he had known him for a few days.
22. PW2 was Mercy Chelimo Masai, PW1’s employee who stated that the first time the appellant went to PW1’s shop, he asked her to show him the boss and she showed him PW1 immediately. That the appellant introduced himself as a procurement officer at the county government and he spoke to PW1 outside the shop which has CCTV cameras. On cross-examination, she stated that she did not know what PW1 and the appellant discussed. That the appellant was arrested near the shop and she learned about the offence after the appellant was arrested and charged.
23. PW3 was Stanley Bett Kones, an enforcement officer at Embu County Government who stated that he met the appellant and PW1 and he greeted them. That he asked PW1 how long he had known the appellant and he said that he had not known him for long. That later on, PW1 asked him if he knew the person he was with and he said he only saw him around but could identify him if he saw him. Later, he identified the appellant through an identification parade and he learned that the appellant had defrauded PW1. That he knew the appellant outside work as a businessman.
24. PW4 was Joshua Njue Njeru who stated that the appellant went to his shop and told him that he was an officer of Embu County Government in charge of community assistance. He told him that he had left over food but the year was closing and so he wanted to sell the foodstuffs to him. The appellant gave him his Airtel number and told him to collect the items and reduce transportation costs. He stated that he went to the County Government offices and when he arrived, the appellant showed him a vehicle parked there with some goods inside.
25. That he asked for Kshs.14,000/= and told him that he was leaving for a meeting at the county offices. After he gave him the money, he called the appellant who told him to wait at Rubis petrol station and later he told him to go to Kindaruma then his phone was switched off. He stated that he waited for a long time and then he went to report the matter at the police station and was surprised to find the appellant there already. That he reported his case and the police searched him and found Kshs.14,000/= in cash in his shoe, together with a phone and simcard.
26. PW5 was PC. Kinyua Mutegi of Municipal Police Post who stated that PW1 reported the incident and he produced a copy of the cheque slip he used to withdraw the money from his bank. That PW1 gave him the appellant’s phone number and he obtained further details from the service provider Airtel showing that the number was registered to Anthony Mbaka. That PW1 saw the appellant near his shop and he raised alarm causing members of the public to arrest the appellant and he was taken to the police station. That at the police station, PW4 went to report his incident when he found that the appellant had already been arrested. PW4 told the police that he had given the appellant Kshs.14,000/= being in denominations of Kshs.1,000/= notes, which money was recovered from his left sock. PW3 identified the appellant through an identification parade and he was charged with the offence. At the time of this testimony, the accused had other pending cases where he was suspected to have impersonated Embu County Government Officers in different capacities. On cross-examination, he stated that the appellant had promised PW4 county government tenders and that he would be an intermediary. That he did not find the lorry driver.
27. PW6 was Regina Syombua of Maragua police station who stated that she conducted an identification parade for the appellant, who was positively identified by PW3. That the appellant was satisfied with how the parade was conducted. She produced the identification parade form as evidence. On cross-examination, she stated that her role was limited to conducting the identification parade and she did not know how long after the arrest the appellant was identified through the parade. That the appellant willfully signed the identification parade form.
28. At the close of the prosecution’s case, the appellant was placed on his defense.
29. DW1, the appellant, stated that he is a former employee of the county government who was dismissed. That he worked for the County Government as an accountant and he was dismissed on allegations of a faulty cheque but he was reinstated through a judgment from the ELRC court. He stated that he had a business deal with PW4 and he owed him Kshs.14,000/=. That he wanted to repay PW4 his money but he refused and the police officers who were nearby arrested him. That on that day, he had gone to see the county secretary at the county government offices.
30. He stated that the charges brought by PW1 are false as he could not have engaged in criminal activities in the pendency of the ELRC case. On cross-examination, he stated that he had 2 simcards in 2021 but they were taken by police. That he was arrested because of the issue he had with PW4 and not PW1.That he owns a business of selling animal feeds and he has a permit for the business. That he had done business with PW4 severally and had issued him signed receipts even though PW4 did not sign them. He produced the receipts as evidence. That the complainant in this case saw him at the station and that he had a total of Kshs.16,650/= when he was arrested and they returned kshs.2,650/= to him. He said that the other cases were fabricated against him.
31. After the close of the defense case, the trial court considered the evidence and found the appellant guilty of the charge and was sentenced to a fine of Kshs.200,000/= in default, 3 years imprisonment. It also ordered that the Kshs.14,000/= recovered by the prosecution be given to the complainant as part of compensation and then the appellant compensates the complainant a sum of Kshs.130,000/= and in default, execution to issue. 
32. The appeal was canvassed by way of written submissions.
33. It was the appellant’s submission that the prosecution did not prove its case beyond reasonable doubt. He relied on the case of Charles Mutual Mutemi v. Republic (2022) eKLR where the court relied on the case of Selle & Another v. Associated Motor Boat Co. Ltd & Others [1968] EA 123. He stated that the trial court’s order on compensation alongside the sentence imposed is excessive and it contravenes section 313 of the Penal Code and the sentencing guidelines. That it is suspect that on the same day that the appellant was arrested, he was also alleged to have conned PW4. He termed it as a questionable coincidence. He pointed out the contradictions in the prosecution’s case, including the dates of his arrest. He relied on the cases of Gerald Ndoho Munjuga v. Republic (2016) eKLR and Argut v Republic [2023] KEHC 3175 (KLR) where the court cited the case of Richard Munene v. Republic (2018) eKLR. It was his argument that there is reasonable doubt arising through the prosecution’s case and that the benefit of doubt should be given to the appellant. Further reliance was placed on the cases of Peter Nyamu Mutithi v. Republic (2021) eKLR and Kenneth Njiru Njagi v. Republic (2021) eKLR for the argument that all the ingredients of the offence as provided under section 313 of the Penal Code must be proved for a conviction to stand. It was his argument that neither direct nor circumstantial evidence proves the charges against him.
34. The respondent argued that its evidence satisfied the elements of the offence according to section 313 of the Penal Code. It relied on the cases of Mathlida Akinyi Oware v. Republic (Criminal Appeal 12 of 1989) [1989] KECA 59 (KLR), Joseph Wanyonyi Wafukho v Republic (2014) eKLR and Gerald Ndoho Munjuga v. Republic (2016) eKLR. That the appellant made the complainant to believe that he had foodstuffs that he was selling and the complainant gave him the money hoping for the goods. It relied on the case of Philip Nzaka Watu v. Republic (2016) eKLR and Njuki v. Republic (2002) 1 KLR 77.
35. Further reliance was placed on Chapter 42 paragraph 7 of the National Police Service Standing Orders and it argued that the identification parade was conducted according to the law and it was above par. That the provisions of section 200(3) of the Criminal Procedure Code are not couched in mandatory terms thus the case does not need to start afresh when a magistrate goes on transfer. It relied on the case of Parkinyaro Ole Pursumari Koroi & another v Republic [2016] KEHC 8313 (KLR). It added that there is no legal basis for reviewing the sentence imposed and the further orders for compensation made since the same were made within the confines of the law.
36. From the foregoing, the issues for determination are:
    1. Whether or not the prosecution proved the case against the appellant beyond reasonable doubt;
    2. Whether the prosecution’s evidence was marred with fatal contradictions;
    3. Whether the sentence imposed by the trial court is excessive.
37. The role of this first appellate court is to reexamine the evidence adduced at trial and make an independent finding. In the case of David Njuguna Wairimu vs.  Republic [2010] eKLR, the Court of Appeal held as follows:- 

“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court.  It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”

1. Section 313 of the penal code provides:

“Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanour and is liable to imprisonment for three years.”

1. The elements making the offence were discussed in the case of Gerald Ndoho Munjuga v Republic (2016) eKLR, where the High Court stated:

“The offence of obtaining by false pretence means knowingly obtaining another person’s property by means of a misrepresentation of fact with intent to defraud. For the offence of obtaining by false pretences to be committed, the prosecution must prove that the accused had an intention to defraud and the thing is capable of being stolen. An inducement on the part of an accused to make his victim part with a thing capable of being stolen or to make his victim deliver a thing capable of being stolen will expose the accused to imprisonment for the offence.”

1. PW1 testified that the appellant went to his shop and asked why the front of the shop was extended and he promised to demolish the extension. That the appellant then left his contact and told him that he would put him in touch with the officer in charge of procurement at the county government, who would give him some supply contracts. PW1 saw a good business opportunity since that supplies was his line of business and when the appellant called him the next day, he was confident to meet him in Embu town where he had gone to withdraw some money from the bank for his construction at home. The appellant told him to join him for a cup of tea as they await the procurement officer and since he was in a hurry, he asked PW1 to buy some goods in a lorry that was at the county offices.
2. PW1 said that he saw the goods in a lorry and the appellant told him that they were a surplus of a supply that had been made and that he could buy the goods. PW1 saw another good opportunity and he gave the appellant Kshs.130,000/= but he never heard from the appellant again. He stated that later, he saw the appellant outside his business and he confronted him before members of the public arrested him. From the evidence, PW4 was also a victim of the appellant on the same day when he was arrested for defrauding PW1.
3. PW4 stated that the appellant had asked for Kshs.14,000/= in exchange for some goods in a lorry at the county offices, just like he had told PW1. That when the appellant took the money and switched off his phone, he reported the matter to the police but as soon as he entered the police station to report, lo and behold! The appellant was there already!
4. In his submissions, the appellant has argued that it is such an unusual coincidence that PW4 reported the incident as soon as the appellant had been arrested. He stated that it seemed like a setup. In my view, the case at hand regards PW1. Any defrauding from PW4 constitutes a different case altogether although his testimony builds the case herein. This means that the testimony of PW4 does not change the facts of the case herein in any way. Therefore, I do not think that the circumstances surrounding the arrest of the appellant are questionable since it is clear that, in this case, he was arrested by members of the public at the behest of PW1.
5. The testimony of PW1 was sufficient to prove that the appellant’s moves were calculated towards intentionally defrauding PW1 of his money. The appellant pretended to be an officer of the county government of Embu, a status that he had lost when he was dismissed from his position. The incident occurred before the ELRC ordered his reinstatement. The appellant knew that he was not employed by the county government but he made PW1 to believe that he was, thus he would connect him to the person who would give him some good business opportunities. In the process, PW1 lost the money he gave to the appellant. In dealing with the offence, the Supreme Court of Nigeria in Dr. Edwin U. Onwudiwe vs Federal Republic of Nigeria SC 41/2003 stated as follows:

“In order to succeed in a charge of obtaining by false pretences, the prosecution must prove:

• 1. that there is a pretence;
  2. that the pretence emanated from the accused person;
  3. that it was false;
  4. that the accused person knew of its falsity or did not believe in its truth;
  5. that there was an intention to defraud;
  6. that the thing is capable of being stolen;
  7. that the accused person induced the owner to transfer his whole interest in the property.

The offence could be committed by oral communication, or in writing, or even by conduct of the accused person. However, an honest believe in the truth of the statement on the part of the accused which later turns out to be false, cannot found a conviction on false pretence. The above adequately presents the law as in the Penal Code.” (see also the case of Republic v Nyakundi [2023] KEHC 26867 (KLR))

1. It is my view that the prosecution did prove its case against the appellant beyond reasonable doubt. As to whether the evidence adduced by the prosecution was marred with contradictions, the real question is, were the contradictions fatal to the case? or did they create reasonable doubt. As I have stated earlier, there it is possible that the details given by PW4 were to be subjected to scrutiny but it was not the role of the court in this case to do so given that the complainant herein is PW1 and not PW4.
2. Also, any other contradictions in this case cannot be held to be fatal to the case since there is enough direct evidence to prove that the appellant went to PW1’s shop with the intention of initiating fraud which he saw through. In the case of Richard Munene v Republic [2018] eKLR, it was stated:

“It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.”

1. On the question of whether the sentence was unjust, the appellant was sentenced to a fine of Kshs.200,000/= in default, 3 years imprisonment. The trial court also ordered that the Kshs.14,000/= recovered by the prosecution be given to the complainant as part of compensation and then the appellant compensates the complainant a sum of Kshs.130,000/= and in default, execution to issue. In this appeal, the appellant contended that he was not offered a fine sentence. It is clear from the trial court sentence ruling that he was sentenced to pay a fine, in default of which he would be imprisoned for 3 years. Moreover, the sentence is not unlawful or excessive since the imprisonment term is anchored on the relevant provision of the Penal Code. The appellant also has the option of paying a fine as stated by the trial court.
2. In the end, having considered the evidence adduced at trial and the relevant law, I find that the appeal lacks merit and the same is hereby dismissed.
3. It is so ordered.

Delivered, dated and signed at Embu this 4^th day of December, 2024.