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JudgmentELIAS MUGENDI NJERU VS The Republic11 min read

ELIAS MUGENDI NJERU VS The Republic

High Court at Embu High Court · · Lucy Njuguna


(An Appeal from the Judgment of Hon. J.N. Githaiga, RM, in Siakago MCCR No. E813 of 2023 delivered on 18th July 2024)


  1. The appellant has filed a petition of appeal dated 24th July 2024 on the grounds that the learned trial magistrate erred in law and facts:
    1. By not considering the irregularities which occasioned the prosecution’s case;
    2. By imposing a harsh sentence;
    3. By showing open bias in the complainant’s testimony which was unclear to lead to conviction of the appellant;
    4. By relying much on documents which were private and no report from the authorities showing the key suspect from whom the said title deeds were found with; and
    5. By not availing the key suspect who was found with the title deeds.
  2. The appellant was charged with 4 counts as follows:
    1. The 1st count was obtaining registration by false pretence contrary to section 320 of the Penal Code whose particulars are that on 17th March 2023 at Siakago town, Mbeere North subcounty in Embu County, the appellant willfully obtained land registration number Nthawa/Riandu/1966 of one Elius Migwi Njiru by falsely pretending that he was the administrator of the estate of Elius Migwi Njiru.
    2. The 2nd count was forgery of official document contrary to section 351 of the Penal Code, whose particulars are that on 30th July 2020 at unknown place within the Republic of Kenya, the appellant forged an official document namely Kenya Gazette notice number 5326 dated 30th July 2020 purporting it to be the correct Kenya Gazette notice number 5326 dated 30th July 2020.
    3. The 3rd count was uttering a false document contrary to section 349 of the Penal Code whose particulars are that on 16th March 2023 at Siakago town within Mbeere North sub-county in Embu County, the appellant knowingly and fraudulently uttered a forged copy of Kenya Gazette notice number 5326 dated 30th July 2020 purporting it to be the original Kenya Gazette notice number 5326 dated 30th July 2020.
    4. The 4th count was uttering a false document contrary to section 349 of the Penal Code, whose particulars are that on 20th march 2023 at Siakago within Mbeere North subcounty, Embu County, the appellant fraudulently uttered a false certificate of confirmation of grant purporting that it was a grant of representation in the estate of the late Elius Migwi Njiru.
  3. When he was arraigned in court, the appellant pleaded not guilty on all the counts and a plea of not guilty was duly entered. The matter proceeded to trial.
  4. PW1 was Elias Migwi Njiru who stated that he bought 4 acres out of land parcel number Nthawa/Riandu/1966 from Njiru Kirangi Rumbia in 1988 and he had a sale agreement dated 13th June 1988. He could not remember the purchase price for the land but he procured a title deed in August 1990 after the said purchase and he has the original title document which he produced as evidence. He stated that the land he bought was Nthawa/Riandu/1966 that was hived out of Nthawa/Riandu/286. That after the transaction, he went to the USA in 2005 leaving his title deed with his brother for safekeeping until he returned in June 2023. That when he went to do a search of the property, he found that the title was in the name of the appellant and then he reported the matter at DCI. He stated that he learned from the greencard of the land that the appellant had filed succession purporting that he (PW1) was deceased. That before he did the search at the lands office, he had not heard anything concerning the land being transferred to the appellant on 15th March 2023. That the greencard indicates that he had lost the title deed at some point but this is not true since he never reported loss of his title deed. That he saw the appellant for the first time during the trial. He stated that it was the appellant who caused the property to be registered into his name.
  5. PW2 was Danson Njogu Njiru, PW1’s brother who stated that PW1 gave him the title for Nthawa/Riandu/1966 for safekeeping as he went to the U.S.A. That he kept the title deed in his house and in June 2023, PW1 returned and asked for the same and he gave it to him. That they went to the lands office to conduct a search and it was established that the property had been transferred to the appellant. That he advised PW1 to report the matter at Siakago Police Station and he did so. He stated that the title deed remained in his custody until PW1 asked for it and it never got lost at any given point.
  6. PW3 was Charles Thuo Mwaura who stated that he is the owner of land parcel number Nthawa/Riandu/3171. That he lost his title deed and he reported the matter to the police where he was given a letter to take to government press in Nairobi for publication of the lost title. That the lost title was gazetted in the Kenya Gazette volume no. CXXII-147 under notice number 5326 on 30th July 2020. That he took the gazette notice to the lands office and they told him to wait. That any other gazette notice number is false.
  7. PW4 was Kelvin Githaiga of Meru Law Courts who stated that in Meru Succession Cause No. 11 of 2019 the deceased was Samuel Ringera Mwithiga and the petitioner was Douglas Murimi Samuel. He confirmed that there was no succession file no. 11B of 2019 for the estate of Elias Migwi Njiru (deceased) whose documents were presented to the land registrar. That succession cause no. 25 of 2019 as filed in Meru Law Courts was for the estate of Samuel Mutokeria and the documents held by the appellant purportedly for that case are different from those in the court’s record. On cross-examination, he stated that the confirmation of grant presented by the appellant at the lands office was issued in Embu and not Meru. That the document emanates from the court where it was made and, in this case, it was not made in Meru thus it was forged.
  8. PW5 was Cpl. Peter Chepkwony of DCI Mbeere North who was the investigating officer in the case. He stated that PW1 reported the case at the police station stating that in 1990, he purchased Nthawa/Riandu/1966 from Njiru Kirangi Rubia. That PW1 obtained a title deed after the purchase and he also produced a copy of the sale agreement to the police. He stated that PW1 told the police that he left the title deed with PW2 when he was going to the U.S.A and when he returned, he did a search and found out that the property had been transferred to the appellant.
  9. He stated that he wrote a letter to the registrar requesting for the documents used to transfer the title deed to his name and he established that the transfer was done through succession on 17th March 2023. He also obtained the Kenya Gazette notice number 5326 on 30th July 2023 showing that PW1 reported loss of his title deed and the same was published. He also procured copies of succession documents showing that PW1 was supposedly deceased and there were succession proceedings in his estate. His investigations revealed that gazette notice was published by Charles Thuo and the property was Nthawa/Riandu/3117 which information he verified from the government press. He stated that he wrote to Meru Law Courts who confirmed that the succession documents were forged. On cross-examination, he stated that from the Land registrar, he obtained copies of the transfer documents and the appellant’s national ID and photograph.
  10. At the close of the prosecution case, the trial court was persuaded that a prima facie case had been established and the appellant was placed on his defence.
  11. In his defense, the appellant stated that he had not been to Siakago for 20 years and he only returned on 25th October 2023. He denied forging any documents or filing a succession cause in the estate of Elias Migwi Njiru. He denied that the signatures on the document were his and he said he did not know where the property is. He stated that he was not arrested with any documents regarding the said transaction and that the person who did the transaction was someone else who is deceased.
  12. At the close of the defense case, the trial court considered the evidence adduced and found that counts 3 and 4 were incurably defective but convicted the appellant of the 1st and 2nd counts. The appellant was sentenced to 1 year imprisonment on the 1st count and 4 years imprisonment on the 2nd count, the sentences running consecutively.
  13. The appeal was canvassed by way of written submissions.
  14. In his submissions, the appellant argued that the advocate who witnessed the transfer forms was not called as a witness yet he would have been the best witness to verify that the appellant indeed appeared before him. He relied on the case of Bukenya & Others v. Uganda (1972) EA 549 and urged that the land registrar was also not called as a witness, to the detriment of the appellant. That the case was not well investigated as his signature was not subjected to forensic analysis to ascertain that he signed the documents. It was his argument that the conviction was unsafe thus it should be overturned. 
  15. The respondent relied on sections 320 and 312 of the Penal Code and submitted that the appellant falsified documents to enable him transfer the land to himself and there is enough evidence to prove that. It also relied on the case of Morris Njuguna Mwirigi v. Attorney General (2012) eKLR and argued that the prosecution is under no obligation to call a specific number of witnesses in support of its case, so long as the witnesses available can prove the offence. That failure to call the land registrar or the advocate who witnessed the transfer documents did not prejudice the prosecution’s case since the falsified documents spoke for themselves. It relied on the case of Shadrack Kipkoech Kogo v. Republic Criminal Appeal No. 253 of 2003 for the argument that the sentences imposed by the trial court need not be reviewed.
  16. 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 sentences were excessive.
  17. 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 320 of the Penal Code provides:

“Any person who wilfully procures or attempts to procure for himself or any other person any registration, licence or certificate under any law by any false pretence is guilty of a misdemeanour and is liable to imprisonment for one year.”

While section 351 of the Penal Code provides:

“Any person who forges any judicial or official document is liable to imprisonment for seven years.”

  1. The appellant was charged with procuring registration of land parcel number Nthawa/Riandu/1966 to himself through forged documents including a forged Kenya Gazette notice, which is an official document. As part of evidence, and as testified by PW5, there are copies of RL7 and RL19 which are transfer forms by personal representative to a beneficiary and application for registration of a beneficiary as a proprietor. These forms were signed by Elias Mugendi Njeru in 15th March 2023, who is named as the sole beneficiary of Nthawa/Riandu/1966 in the certificate of confirmation of grant through Meru CM’s Succession Cause No. 25B of 2019 in the estate of Elias Migwi Njiru alias Elias Njiru M.
  2. PW4 testified that this case number does not exist at Meru Law courts and that Meru CM’s Succession Cause No. 25 of 2019 regards a different estate and not that of Elias Migwi Njiru, who is the complainant herein and who is alive and well. From a perusal of the copy of green card, the title deed was reported lost through a Kenya gazette notice number 5326 on 30th July 2020 but the original Kenya gazette notice shows that the person who published that notice is PW3 for his land parcel number Nthawa/Riandu/3117 and the Government Press verified this entry through their letter dated 15th March 2024.
  3. PW1 produced a sale agreement between himself and the vendor, one Njiru Kirangi Rumbia. It was his evidence that he purchased a part of Nthawa/Riandu/286 and a subdivision was to be done to hive out his portion. This was done and he procured his title deed for the portion known as Nthawa/Riandu/1966 and the original title deed is part of the evidence. PW1 denied having reported loss of his title deed at any point in time since he was living abroard between 2005 and 2023 during which period the title deed was in PW2’s custody. PW2 stated that he never lost the title deed at any given point.
  4. From the evidence adduced, both counts were proved beyond reasonable doubt and I agree with the findings of the trial court on the convictions, which are safe. As regards the sentences, for the 1st count, the appellant was sentenced to 1-year imprisonment as prescribed in law while for the 2nd count, he was sentenced to 4 years imprisonment, a departure from the 7-year prescribed in law. I think that the trial court proceeded correctly in sentencing the appellant.
  5. The appellant raised issues of failure by the respondent to call key witnesses who would have given reliable evidence. It is my view that the prosecution exercised its discretion in arranging the witnesses it saw most relevant to its case. The court in the case of Mutithi v. Republic (Criminal Appeal 13 of 2020) [2022] KEHC 390 (KLR) relied on the Ugandan case of Bukenya & Others v. Uganda (1972) EA 549 and held:

“In the case of Bukenya & Others vs Uganda (supra), the court was categorical that the prosecution is not expected to call a superfluity of witnesses. The adverse inference will only be made by the court if the evidence by the prosecution is not or is barely adequate. Accordingly, it will not be inferred where evidence tendered is sufficient to prove the particular matter in issue or the entire case.”

  1. Therefore, the appeal has no merit and it is hereby dismissed.
  2. It is so ordered.

Delivered, dated and signed at Embu this 5th day of December, 2024.


    ELIAS MUGENDI NJERU VS The Republic ELIAS MUGENDI NJERU VS The Republic