PRELIMINARY
This is an appeal which seeks to challenge two judgements from Webuye Senior Principal Magistrates Court in files Criminal Case 197 of 2016 and Criminal Case 198 of 20186 which addressed charges rising in similar circumstances involving two accused persons and several complainants. The charges were heard under two files because they were many and as such the accused persons risked being embarrassed in their defence if heard in one file. But the facts which informed the charges are very similar. I have noted that the Respondent has not objected to the two appeals being canvassed together. I am also guided by the decision of the Court of Appeal in Republic v Pepela & 24 others [2024] KECA 204 (KLR) where the court pointed out at paragraph 120 that a single Judgment can be given even without a formal order of consolidation as long as all issues are exhaustively addressed as required by section 169 of the Criminal Procedure Code. Hence, I will deal with both of the files in this appeal but separately. I will begin with the appeal emanating from Criminal Case 197 of 2016 and thereafter deal with the appeal emanating from Criminal Case 198 of 2016. Since some of the witness’s testimony apply to both files, some of the issues arising therefrom will only be addressed in the Appeal emanating for Criminal Case 197 and these paragraphs will be referred to when I am addressing these same issues in the Appeal emanating from Criminal Case 198. I will also endeavour to call witnesses in the two cases by their full names so as to avoid confusion given that “PW1” “PW2” etc.. mean different people for the two files. As such, however laborious it may be, I will give full names in all instances.
APEEAL EMANATING FROM CRIMINAL CASE 197 OF 2016
Introduction
1. This is an appeal by Erastus Nderitu Muthee (hereinafter “the Appellant”) against the Judgment of the Senior Principal Magistrates Court at Webuyu dated 30th July, 2024 in Criminal Suit No MCCR.197 of 2016. The learned Magistrate convicted the Appellant for the offences of obtaining money by false pretence and making documents without authority, contrary to section 313 and 375(a) of the Penal Code.
Background
2. The appellant together with one Mourine Nangila Wanjala (hereinafter “co-accused”) were charged with nine counts on 17th March 2016. The nature of the alleged offences was that the Appellant and co-accused took money from some parents in Bungoma on the presentation that they would secure for their children placement in the National Police Service (hereinafter “NPS”).
3. The prosecution alleged that with every parent so duped, bogus calling letters from Kenya Police Service bearing the names of their children were issued by the Appellant. As such the Appellant was charged with three counts for every parent whose money was so taken. For example, as regards taking money from Edward Lunganga Toili, the Appellant was charged with three counts namely, obtaining Kshs. 108,000 under false pretence, forgery of the NPS joining letter bearing the names Stephen Lunganga, Edward Lunganga’s son, and making a letter without authority, to wit NPS joining letter, in the names of Stephen Lunganga shown as Count I, II and III respectively.
4. The Appellant was accused of doing the same as regards two other parents namely Timothy Orono Omuse the father to Naomi Chesang Njomo and Milka Nasimiyu Toywa the mother to Nato Wandabwa who lost Kshs.120,000 and Kshs. 128,000 respectively in the dishonest enterprise.
5. The chargesheet reads as follows:
COUNT I
(1) ERASTUS NDERITU MUTHEE (2) MOURINE NANJALA WANJALA. On diverse dates between 11th day of May, 2015 and 1st June 2015, at Bokoli Market in Bungoma East Sub County within Bungoma County, Jointly with others not before court with intent to defraud obtained from Edward Lungaga Toili sum of Kshs. 108,00/- by pretending that you were to recruit his child to join Kenya police college and pay for his child to join Kenya police college and pay for his joining expenses a fact you knew to be false.
COUNT II
FORGERY CONTRARY TO SECTION 349 OF THE PENAL CODE.
(1) ERASTUS NDERITU MUTHEE (2) MOURINE NANJALA WANJALA; On diverse dates between 11th day of May, 2015 and 1st June 2015, at Bungoma township within Bungoma Sub County of Bungoma County, Jointly with others not before court, with intent to defraud or deceive forged a certain document namely National Police Service joining letter in names of Stephen lungaga purporting it to be genuine and lawful letter issued by the National Police Service.
COUNT III
MAKING A DOCUMENT WITHOUT AUTHORITY CONTRARY TO SECTION 357(a) OF THE PENAL CODE
(1) ERASTUS NDERITU MUTHEE (2) MOURINE NANJALA WANJALA; On diverse dates between 11th day of May, 2015 and 1st June 2015, at Bungoma township in Bungoma South Sub County, Jointly with others not before court, with intent to deceive and defraud without lawful authority or excuse made a certain document namely a National Police Service joining letter in the names of Stephen Lungaga purporting it to be a genuine and lawful document issued by the said National Police Service.
COUNT IV
OBTAINING MONEY BY FALSE PRETENCE CONTRARY TO SECTION 313 OF THE PENAL CODE
(1) ERASTUS NDERITU MUTHEE (2) MOURINE NANJALA WANJALA. On diverse dates 11th day of May, 2015 and 1st day of June 2015, at Misikhu Market in Bungoma East in Bungoma County, Jointly with others not before court by means of fraudulent tricks induced Timothy Orone Omuse to give you a sum of Kshs. 120,000/- that you were to take his child namely Naomi Chesang Njomo to join Kenya Police College, the payments which were to be used as college joining expenses a fact you knew to be false.
COUNT V
FORGERY CONTRARY TO SECTION 349 OF THE PENAL CODE.
(1) ERASTUS NDERITU MUTHEE (2) MOURINE NANJALA WANJALA; On diverse dates between 11th day of May, 2015 and 1st June 2015, at Bungoma township within Bungoma South Sub County of Bungoma County, Jointly with others not before court, with intent to defraud or deceive forged a certain document namely National Police Service joining letter in names of Naomi Chesang Njomo purporting it to be genuine and lawful letter issued by the National Police Service.
COUNT VI
MAKING A DOCUMENT WITHOUT AUTHORITY CONTRARY TO SECTION 357(a) OF THE PENAL CODE
(1) ERASTUS NDERITU MUTHEE (2) MOURINE NANJALA WANJALA; On diverse dates between 11th day of May, 2015 and 1st June 2015, at Bungoma township in Bungoma South Sub County, Jointly with others not before court, with intent to deceive and defraud without lawful authority or excuse made a certain document namely a National Police Service joining letter in the names of Stephen Naomi Chesang Njomo purporting it to be a genuine and lawful document issued by the said National Police Service.
COUNT VII
OBTAINING MONEY BY FALSE PRETENCE CONTRARY TO SECTION 313 OF THE PENAL CODE
(1)ERASTUS NDERITU MUTHEE (2) MOURINE NANJALA WANJALA. On diverse dates 11th day of May, 2015 and 1st day of June 2015, at Misikhu Market within Bungoma East in Bungoma County, Jointly with others not before court by means of fraudulent tricks induced Milka Nasimiyu Toywa to give you a sum of Kshs. 128,000/- that you were to take his child namely Nato Wandabwa to join Kenya Police College, the payments which were to be used as college joining expenses a fact you knew to be false.
COUNT VIII
FORGERY CONTRARY TO SECTION 349 OF THE PENAL CODE.
(1) ERASTUS NDERITU MUTHEE (2) MOURINE NANJALA WANJALA; On diverse dates between 11th day of May, 2015 and 1st June 2015, at Bungoma township within Bungoma South Sub-County of Bungoma County, Jointly with others not before the court, with intent to defraud or deceive forged a certain document namely National Police Service joining letter in names of Naomi Chesang Njomo purporting it to be genuine and lawful letter issued by the National Police Service.
COUNT IX
MAKING A DOCUMENT WITHOUT AUTHORITY CONTRARY TO SECTION 357(a) OF THE PENAL CODE
(1) ERASTUS NDERITU MUTHEE (2) MOURINE NANJALA WANJALA; On diverse dates between 11th day of May, 2015 and 1st June 2015, at Bungoma township in Bungoma South Sub County, Jointly with others not before court, with intent to deceive and defraud without lawful authority or excuse made a certain document namely a National Police Service joining letter in the names of Nato Wandabwa purporting it to be a genuine and lawful document issued by the said National Police Service.
6. The prosecution witnesses who testified to the foregoing narrative were Stephen Lugaga, Milka Nasimiyu Toywa, Edward Lugaga Toili, Irene Naliaka Toiywa, Vincent Chelongo, Senior Police Superintendent Maxwel Kaburo and Sergeant Julius Kivuva.
7. On 4th April 2024 the trial court ruled that the prosecution had established a prima facie case on all counts and placed the Appellant and the co-accused on their defence.
8. The Appellant testified on 27th May 2024.
9. The trial court delivered its judgment on 24th June 2024 and reconvened on 1st August 2024 for mitigation on sentencing.
Judgement by the Trial Court
10. With respect to the offence of obtaining money by false pretence under Counts I, IV and VII, the court found that the prosecution had established the necessary elements thereof as concerns Count I and VII from the testimony of Edward Lunganga and Milka Nasimiyu who testified to giving sums to the co-accused who then handed the same over to the Appellant in exchange for what was later revealed to be bogus NPS calling letters. The trial court acquitted the Appellant of Count IV because Timothy Orone Omuse and Naomi Chesang Njomo did not present themselves as witnesses and as such the allegations that they gave Appellant money in exchange for placement remained unproven.
11. With respect to the offence of making a document without lawful authority, under Counts III, VI and IX, the learned Magistrate observed the calling letters in the name of Stephen Lugaga, Evans Simiyu Wanjala, Abiud Wekesa, Linet Sitati, Nato Wandabwa as compared to the genuine letters from the NPS. The trial court held that the calling letters were not from the offices of the NPS. The trial court was further convinced by the testimony of Vincent Chelongo, the handwriting expert, that the handwriting on the face of the fake calling letters were the Appellant’s. The trial court convicted the Appellant of Counts III, VI and IX.
12. With regards to the offence of forgery, the under Counts II, V and VIII, the trial court held that one of the elements of forgery as espoused in Kilee v Republic [1967] EA 713 is that the false document must be made to be used as a genuine. The learned Magistrate found that the fake calling letters did not look anything like the genuine letters from the National Police Headquarters; that the Appellant intended to use the false letters to obtain money and not as genuine calling letters to Kiganjo Police Training College. As such the trial court acquitted the Appellant of Counts II, V and VIII pursuant to section 215 of the Criminal Procedure Code (hereinafter “CPC”).
13. The learned Magistrate sentenced the Appellant to fine of Kshs. 50,000 or in default 1 year imprisonment for Count I, a fine of Kshs. 70,000 or in default 2 years imprisonment for Count III, a fine of Kshs. 50,000 or in default 1 year imprisonment for Count VII and a fine of Kshs. 70,000 or in default 2 years imprisonment for Count IX. The sentences were to run consecutively.
Appeal
14. The Appellant was dissatisfied with the decision of the learned Magistrate and lodged this appeal through a Petition of Appeal dated 7th August 2024 and Amended Grounds of Appeal dated 19th March 2025, raising five grounds of appeal as follows:
a. That conviction was against weight of evidence.
b. That conviction and sentence was against the finding that the appellant was not given time to express himself over the matter nor he was not pointed out by the complainant during the hearing.
c. That the prosecutor did not prove its case beyond reasonable doubt.
d. That the sentence meted was excessive in the circumstances.
e. That the court shifted the burden of proof to the defence.
15. The Appellants prays that:
a. Appeal be allowed;
b. Conviction be quashed;
c. Sentence set aside; and
d. Appellant set at liberty.
Submissions
16. This appeal was disposed of by way of written submissions. The Appellant filed written submissions dated 24th March 2025 while the Respondent’s written submissions are dated 23rd April 2025.
Submissions by the Appellant
17. The Appellant has framed three issues for determination. The first is whether the prosecution proved to the required standard the offence(s) of obtaining money by false pretence to warrant a conviction of the Appellant. The Appellant relies on the Nigerian case of Dr. Edwin U. Onwudiwe v Federal Republic of Nigeria SC 41/2003 in stating that the in order for a charge of obtaining by false pretence to stand, the prosecution must prove that an accused constructed a pretence it knew to be false or of whose truth it did not believe to induce an owner of property to transfer his or her interest therein with an intention to defraud such owner of the thing capable of being stolen.
18. The Appellant argues that Edward Lugaga Toili, complainant in Count I, testified that he was approached by the co-accused who he met in a hotel at Sharrif Centre. That it was the co-accused who asked for Kshs. 300,000, received an advance payment of Kshs. 100,000, advised Edward Lugaga Toili to prepare the son’s papers, received the said papers and received Kshs. 11,000 as facilitation. The Appellant argues that Stephen Lugaga’s testimony confirms the foregoing as he stated that he gave the co-accused his academic certificates, that it is the co-accused who asked for Kshs. 130,000 from his parents and received the same and that when the calling letter came via North Rift Offices in Bungoma he went to collect it with the co-accused. The Appellant asserts that at no point do the testimonies of Edward and Stephen Lugaga implicate him. The Appellant avers that the co-accused used the names of the OCPD Bungoma and Mr. Njue based at Lari Police Station to demonstrate that she was capable of securing placements for the complainants but the Appellant was not present when the co-accused was making presentation of facts pertaining the said recruitment. The Appellant avers that no testimony or evidence presented confirms he received money from the complainants.
19. The Appellant maintains these assertion even as regarding Count VII with respect to which Milka Nasimiyu testified. The Appellant states that it was the co-accused who met the complainant, presented the idea of placement at Kiganjo and took money from her. The Appellants states he was convicted on the basis of surmise, suspicion and conjecture as there was neither evidence that the false pretence emanated from him nor that obtained anything from the complainants. As such the Appellant asks to be acquitted of this offence.
20. The second issue canvassed by the Appellant is whether the prosecution proved to the required standard the offence(s) of making a document without authority to warrant conviction of the Appellant. The Appellant points to the fact that none of the complainants ever reported to the police regarding the validity of the calling letters. The Appellant further states that he was convicted for Count VI which involved making letter bearing Naomi Chesang Njomo’s name yet the complainant did not even testify. The Appellant further faults the court for convicting on Count IX because Nato Nandabwa whose name was on the fake letter never testified, it was only the mother, Milka Nasimiyu Toyua who testified. The Appellant further states that he was never in the company of the complainants when they received the false letters which had been set from Nairobi by one James Kinyua. The Appellant further challenges the expert evidence of Vincent Chelongo as he had confirmed to court that he was not the maker of the forensic examination report and submits that Alex Mwongera who made the report was the suitable person to verify contents of the report. The Appellant adds that the investigation and or examination of documents was selective because only his signature was taken while the co-accused’s signature and signature of the mentioned James Kinyua were not taken for comparison. The Appellant contends that the letters were typed, serialized and printed and sent from Nairobi at the time when he was working and residing in Bungoma and as such it is not possible that he was involved. The Appellant concludes that the evidence of Maxwel Kaburo and Vincent Chelongo were mere expert opinions which could not be relied on without corroboration of other key witnesses.
21. The final issue discussed by the Appellant is whether this court ought to set aside or overturn the decision of the trial court as invited by the Appellant. The Appellant submits that he has sufficiently demonstrated that there was no sufficient evidence to warrant conviction as such this court ought to set it aside under section 354(3) of the CPC.
Submissions by the Respondent
22. The Respondent concedes to the appeal and submits that the co-accused person, Morine Nangila Wanjala, is adversely mentioned by all the complainants and witnesses and is clearly the master mind of the whole plan. The Respondent submits that it is the co-accused who solicited for and received the bribe money. The Respondent states that the only weighty evidence linking the Appellant to the offence is that of the handwriting expert, whose evidence is an opinion. The Respondent further stats that sentence meted in the circumstances were harsh even though they were within the law.
Determination
23. I have considered the appeal, submissions and decisions relied on by the Appellant. This appeal raises three issues for determination, namely; whether the Respondent established that the Appellant committed the offence of obtaining under false pretence, whether the Respondent established that the Appellant committed the offence of making a document without lawful authority and whether the court ought to interfere with the sentence imposed by the trial court.
24. Before embarking on analysis of the issues, we shall as a matter of preliminary concern, clarify the mandate of this court as the first appellate forum. The Court of Appeal in Wambui v Republic [2019] KECA 906 (KLR) delineated the task of the first appellate court in criminal matters as follows at paragraph 22 and 23:
The appellant’s complaint that the first appellate court did not subject the evidence to fresh scrutiny, analysis and re-evaluation is not an idle one. A first appeal always proceeds by way of re-hearing based on the evidence on record and an appellant is therefore entitled to expect that the first appellate court will go beyond a mere rehashing of what is on record or a repetition of the findings of the trial court.
It is required to and must be seen to be seen to have, consciously and deliberately subjected the entire evidence to thorough scrutiny so as to arrive at its own independent conclusions on the factual issues in contention, and to determine on its own, the guilt or otherwise of the appellant, the only limitation to its task being a remembrance that it is without the advantage, enjoyed by the trial court, of seeing and observing the witnesses as they testified, for which it must make due allowance [emphasis supplied].
Even as I seek to dive deeply into the evidence as contained in the Proceedings and Exhibits I will give deserved allowance to the learned Magistrate who had the priceless advantage of observing the demeanour of the witnesses.
Whether the Respondent Established that the Appellant committed the offence of Obtaining Under False Pretence
25. This issue will further be examined under different Counts as follows:
i. Count I involving Edward Lugaga Toili and Stephen Lugaga.
26. The Appellant’s major contention is that the testimony of Edward and Stephen Lugaga does not demonstrate that he received the money from them but rather that it was the co-accused that received the money at all material times. The Appellant has distanced himself from the cursed transaction that occurred in the following words at page 7 and 8 of his Written Submissions:
Your Ladyship, PW-3’s testimony was corroborated by the testimony of PW-1, Stephen Lugaga, who is his son. PW-1 stated that he was introduced to the lady (MOURINE WANJALA) his parents who told him that she was the person to assist him get a job. That it is this lady whom he handed over copies of his academic certificates. That it is the said lady who asked for Kshs. 130,000/- from his parent, which money was given to her at Shariff Centre. That when the admission letters came, he went to pick, he went to pick the letter from North Rift offices in Bungoma in company of the lady. (See page 10 to 14 of the Record of Appeal in proceedings in criminal case number 197 of 2016)
Your Ladyship, the foregoing evidence does not in any way implicate the Appellant in the recruitment scandal it is clear from from [sic] these testimony [sic] that the person who approached the complainant was NANGILA, the 2nd accused not the Appellant. It is apparent from the testimony of PW-3 and PW-1 that when the said NANGILA presented herself before PW-3 to be in a position to help in the police recruitment, she was alone. She was not accompanied by the Appellant…. At the moment of making the representation and presentation of facts pertaining the said recruitment, the Appellant was not present.
It is further evident from the testimony that the request for “recruitment bid money” was made by the said NANGILA (2nd Accused) and not the Appellant, and the said money was paid to the 2nd Accused. It was the evidence of PW-1 on cross-examination that [sic] was never given to the 1st Accused (Appellant) and that his father gave Kshs. 130,000/- to the 2nd accused. He said he did not see the Appellant receive money from his father.
27. The Proceedings reveal to me that the Appellant is substantially misstating what the witnesses said. Stephen Lugaga in his examination-in-chief, at page 5 and 6 of the Proceedings, stated that the Appellant was present when they were meeting with the co-accused at Sharif Centre where he was introduced as a Police Officer who would assist with the placement:
… She [co-accused] asked for Kshs. 130,000/= which my parent gave to her she took us from Sharif centre and took us aside to introduce us to a gentleman whom she said was a policeman. I talked to him and he asked for my cellphone No. and he said the following day I collect my admission letter from North Rift P.S.V shuttle. I do not know the name of lady but I can identify him [sic] if I saw her. She is before court (2nd accused identified). She took us to a person who said he will get me a job. I meet him often but avoids me when is seated. (1st accuded identified in the dock) [emphasis supplied].
28. Stephen Lugaga in his examination-in-chief also testified to meeting the Appellant on the after he collected the false calling letter and when he was supposed to travel at page 7 of the Proceedings as follows:
…I clarify that when I was collecting the letter I was with the 2nd accused [co-accused]. We left North Rift and went to sharif centre and I met the police officer (points at first accused). He read the letter and told me it is fine. Before I met 1st accused I had met with my parents and together with them and 2nd accused we met 1st accused who read the letter saying it is fine. He told me to go home and prepare and in the evening to join him so that he can take me to Nairobi on easy coach. I met them at Easy Coach, that is, both accused. We waited, at 9 pm he asked me to go home saying following day we will go to Nairobi. He kept on calling me asking me to be patient [emphasis supplied].
29. His cross-examination did not contradict the foregoing testimony. As such I do not agree with the Appellant that from the testimony of Stephen Lugaga, we can conclude that he was not present when the co-accused represented to Stephen Lugaga that he could receive employment. The actions of the Appellant were calculated to buttress and lend credence to whatever the co-accused had communicated to Stephen Lugaga and his parents. As per Stephen Lugaga’s testimony, the Appellant actively engaged in the affair by reading the false letter, assuring Stephen Lugaga and his parents that it was fine and even directing him to go and prepare for the journey and accompanying him to the Easy Coach bus station. The Appellant cannot in good conscience claim that Stephen Lugaga’s testimony does not show that he was involved in making the representation that there were job placements in the KPS which they could help Stephen Lugaga and his parents to get.
30. On whether Stephen Lugaga saw the Appellant actually take the money, his testimony is that he did not see his father hand over the money to the Appellant, but that he saw the co-accused hand money in the envelope to the Appellant. On cross-examination by the Appellant’s advocate, Stephen Lugaga states at page 7 of the Proceedings:
…I did not give money to the 1st accused [Appellant]. My father gave Kshs. 130,000/=. I did not see my father give money to 1st accused… I did not see any money being given to 1st accused.
31. During cross-examination by the co-accused’s advocate, at page 8 of the Proceedings, Stephen Lugaga stated:
…I saw the 2nd accused received kshs. 130,000/= from my father and hand it over to 1st accused on the same day. It was in an envelope.
32. At re-examination on page 10 of the Proceedings, he confirmed that:
I saw my father give money to 2nd accused [co-accused].
33. From the above we can deduce that in the very least Stephen Lugaga saw his father give money to the co-accused. I cannot, from his testimony, safely deduce that he saw money being given to the Appellant because of the contradiction.
34. Stephen Lugaga’s father, Edward Lugaga Toili, gave a more detailed account which confirms that the Appellant aided the co-accused in making the representation that they could help procure job placements at KPS. As per Edward Lugaga Toili, the events occurred over a 4-day period. On the first day he met the co-accused at Sherif Centre alone who informed him of the job recruitments and insinuated that she was working with OCPD Bungoma and her husband Njue to coordinate the recruitment. On this day he gave the co-accused Kshs. 100,000 in cash.
35. Edward Lugaga Toili stated that on the second day, his son, Stephen Lugaga, brought his academic certificates to the co-accused at Sharif Centre where he further gave another Khs. 10,000/= to the co-accused as facilitation. It was on the third day that Edward Lugaga Toili met the Appellant who he testified was the purported Bungoma OCPD; page 24 of the Proceedings reads as follows:
On the 3rd day we again met at Sharrif centre hotel. She told me that that there were young people who had received their letter. My son had not received his letter to join Kiganjo. On that day there were 13 young boys who at [sic] Sharrif centre. Nangila told us not to leave as the OCPD was going to come and check their height and health status just as in recruitment. We went to another building opposite the Sharrif Centre.
At the building, the OCPD came. The OCPD turned up to the [sic, should read “turned out to be”] Nderitu (witness points to the 1st accused). He was the one who came as the OCPD. When he came he examined the boys the ones who had got letters. When I saw Nderitu, I was shocked since I knew him. Nderitu was also shocked to see me since he knew me. He just checked the papers and also took height of the young men. I was shocked because I knew Nderitu was not OCPD he was junior officer.
36. Edward Lugaga Toili also confirms Stephen Lugaga’s account that on the day of collecting the false calling letter, he met the Appellant. Edward Lugaga Toili’s examination-in-chief at page 25 of the Proceedings:
On the 4th day, my son went to North Rift and he got a letter. Nangila and Nderitu talked to my son and he came to me and told me that they too said they will not deal with me but with him. I saw the letter that my son got. It was like a calling letter to Kiganjo.
37. Crucially, Edward Lugaga Toili also maintained that his wife paid the co-accused some money on this fourth day which money was handed to the Appellant. During examination-in-chief at page 25 he stated:
After the letter came the two Nangila and Nderitu began to organize the day of taking the young men to Kiganjo. The two asked Kshs.20,000/= from each young man.
On the said day in the evening, I saw Nderitu in uniform coming from court. I also saw my wife Agnes Lugaga give the money to Nangila and I saw Nangila go and give the money to Nderitu as he came from court. We then left the children with the two saying they be taken to the bus stage.
38. During cross-examination by the Appellant’s advocate, Edward Lugaga Toili affirmed the foregoing as follows at page 26 of the Proceedings:
I saw Nangila give Nderitu Kshs.20,000/= for transport to go to Kiganjo.
39. From the testimony by Stephen Lugaga and Edward Lugaga Toili, it is not true that the Appellant was absent when the co-accused made representations which induced payment for job placements. In fact, given that the co-accused was a primary school teacher, she needed a police officer to make her claims of being able to secure KPS placements seem authentic. I am convinced that the testimony of Stephen Lugaga and Edward Lugaga indicate that the Appellant was actively involved in making the false pretence, by certifying that the letters were correct, receiving payments for transport, accompanying Stephen Lugaga to the Easy Coach bus station and telling him to go home and wait for further communi
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This is an appeal which seeks to challenge two judgements from Webuye Senior Principal Magistrates Court in files Criminal Case 197 of 2016 and Criminal Case 198 of 20186 which addressed charges rising in similar circumstances involving two accused persons and several complainants. The charges were heard under two files because they were many and as such the accused persons risked being embarrassed in their defence if heard in one file. But the facts which informed the charges are very similar. I have noted that the Respondent has not objected to the two appeals being canvassed together. I am also guided by the decision of the Court of Appeal in Republic v Pepela & 24 others [2024] KECA 204 (KLR) where the court pointed out at paragraph 120 that a single Judgment can be given even without a formal order of consolidation as long as all issues are exhaustively addressed as required by section 169 of the Criminal Procedure Code. Hence, I will deal with both of the files in this appeal but separately. I will begin with the appeal emanating from Criminal Case 197 of 2016 and thereafter deal with the appeal emanating from Criminal Case 198 of 2016. Since some of the witness’s testimony apply to both files, some of the issues arising therefrom will only be addressed in the Appeal emanating for Criminal Case 197 and these paragraphs will be referred to when I am addressing these same issues in the Appeal emanating from Criminal Case 198. I will also endeavour to call witnesses in the two cases by their full names so as to avoid confusion given that “PW1” “PW2” etc.. mean different people for the two files. As such, however laborious it may be, I will give full names in all instances.
APEEAL EMANATING FROM CRIMINAL CASE 197 OF 2016
Introduction
1. This is an appeal by Erastus Nderitu Muthee (hereinafter “the Appellant”) against the Judgment of the Senior Principal Magistrates Court at Webuyu dated 30th July, 2024 in Criminal Suit No MCCR.197 of 2016. The learned Magistrate convicted the Appellant for the offences of obtaining money by false pretence and making documents without authority, contrary to section 313 and 375(a) of the Penal Code.
Background
2. The appellant together with one Mourine Nangila Wanjala (hereinafter “co-accused”) were charged with nine counts on 17th March 2016. The nature of the alleged offences was that the Appellant and co-accused took money from some parents in Bungoma on the presentation that they would secure for their children placement in the National Police Service (hereinafter “NPS”).
3. The prosecution alleged that with every parent so duped, bogus calling letters from Kenya Police Service bearing the names of their children were issued by the Appellant. As such the Appellant was charged with three counts for every parent whose money was so taken. For example, as regards taking money from Edward Lunganga Toili, the Appellant was charged with three counts namely, obtaining Kshs. 108,000 under false pretence, forgery of the NPS joining letter bearing the names Stephen Lunganga, Edward Lunganga’s son, and making a letter without authority, to wit NPS joining letter, in the names of Stephen Lunganga shown as Count I, II and III respectively.
4. The Appellant was accused of doing the same as regards two other parents namely Timothy Orono Omuse the father to Naomi Chesang Njomo and Milka Nasimiyu Toywa the mother to Nato Wandabwa who lost Kshs.120,000 and Kshs. 128,000 respectively in the dishonest enterprise.
5. The chargesheet reads as follows:
COUNT I
(1) ERASTUS NDERITU MUTHEE (2) MOURINE NANJALA WANJALA. On diverse dates between 11th day of May, 2015 and 1st June 2015, at Bokoli Market in Bungoma East Sub County within Bungoma County, Jointly with others not before court with intent to defraud obtained from Edward Lungaga Toili sum of Kshs. 108,00/- by pretending that you were to recruit his child to join Kenya police college and pay for his child to join Kenya police college and pay for his joining expenses a fact you knew to be false.
COUNT II
FORGERY CONTRARY TO SECTION 349 OF THE PENAL CODE.
(1) ERASTUS NDERITU MUTHEE (2) MOURINE NANJALA WANJALA; On diverse dates between 11th day of May, 2015 and 1st June 2015, at Bungoma township within Bungoma Sub County of Bungoma County, Jointly with others not before court, with intent to defraud or deceive forged a certain document namely National Police Service joining letter in names of Stephen lungaga purporting it to be genuine and lawful letter issued by the National Police Service.
COUNT III
MAKING A DOCUMENT WITHOUT AUTHORITY CONTRARY TO SECTION 357(a) OF THE PENAL CODE
(1) ERASTUS NDERITU MUTHEE (2) MOURINE NANJALA WANJALA; On diverse dates between 11th day of May, 2015 and 1st June 2015, at Bungoma township in Bungoma South Sub County, Jointly with others not before court, with intent to deceive and defraud without lawful authority or excuse made a certain document namely a National Police Service joining letter in the names of Stephen Lungaga purporting it to be a genuine and lawful document issued by the said National Police Service.
COUNT IV
OBTAINING MONEY BY FALSE PRETENCE CONTRARY TO SECTION 313 OF THE PENAL CODE
(1) ERASTUS NDERITU MUTHEE (2) MOURINE NANJALA WANJALA. On diverse dates 11th day of May, 2015 and 1st day of June 2015, at Misikhu Market in Bungoma East in Bungoma County, Jointly with others not before court by means of fraudulent tricks induced Timothy Orone Omuse to give you a sum of Kshs. 120,000/- that you were to take his child namely Naomi Chesang Njomo to join Kenya Police College, the payments which were to be used as college joining expenses a fact you knew to be false.
COUNT V
FORGERY CONTRARY TO SECTION 349 OF THE PENAL CODE.
(1) ERASTUS NDERITU MUTHEE (2) MOURINE NANJALA WANJALA; On diverse dates between 11th day of May, 2015 and 1st June 2015, at Bungoma township within Bungoma South Sub County of Bungoma County, Jointly with others not before court, with intent to defraud or deceive forged a certain document namely National Police Service joining letter in names of Naomi Chesang Njomo purporting it to be genuine and lawful letter issued by the National Police Service.
COUNT VI
MAKING A DOCUMENT WITHOUT AUTHORITY CONTRARY TO SECTION 357(a) OF THE PENAL CODE
(1) ERASTUS NDERITU MUTHEE (2) MOURINE NANJALA WANJALA; On diverse dates between 11th day of May, 2015 and 1st June 2015, at Bungoma township in Bungoma South Sub County, Jointly with others not before court, with intent to deceive and defraud without lawful authority or excuse made a certain document namely a National Police Service joining letter in the names of Stephen Naomi Chesang Njomo purporting it to be a genuine and lawful document issued by the said National Police Service.
COUNT VII
OBTAINING MONEY BY FALSE PRETENCE CONTRARY TO SECTION 313 OF THE PENAL CODE
(1)ERASTUS NDERITU MUTHEE (2) MOURINE NANJALA WANJALA. On diverse dates 11th day of May, 2015 and 1st day of June 2015, at Misikhu Market within Bungoma East in Bungoma County, Jointly with others not before court by means of fraudulent tricks induced Milka Nasimiyu Toywa to give you a sum of Kshs. 128,000/- that you were to take his child namely Nato Wandabwa to join Kenya Police College, the payments which were to be used as college joining expenses a fact you knew to be false.
COUNT VIII
FORGERY CONTRARY TO SECTION 349 OF THE PENAL CODE.
(1) ERASTUS NDERITU MUTHEE (2) MOURINE NANJALA WANJALA; On diverse dates between 11th day of May, 2015 and 1st June 2015, at Bungoma township within Bungoma South Sub-County of Bungoma County, Jointly with others not before the court, with intent to defraud or deceive forged a certain document namely National Police Service joining letter in names of Naomi Chesang Njomo purporting it to be genuine and lawful letter issued by the National Police Service.
COUNT IX
MAKING A DOCUMENT WITHOUT AUTHORITY CONTRARY TO SECTION 357(a) OF THE PENAL CODE
(1) ERASTUS NDERITU MUTHEE (2) MOURINE NANJALA WANJALA; On diverse dates between 11th day of May, 2015 and 1st June 2015, at Bungoma township in Bungoma South Sub County, Jointly with others not before court, with intent to deceive and defraud without lawful authority or excuse made a certain document namely a National Police Service joining letter in the names of Nato Wandabwa purporting it to be a genuine and lawful document issued by the said National Police Service.
6. The prosecution witnesses who testified to the foregoing narrative were Stephen Lugaga, Milka Nasimiyu Toywa, Edward Lugaga Toili, Irene Naliaka Toiywa, Vincent Chelongo, Senior Police Superintendent Maxwel Kaburo and Sergeant Julius Kivuva.
7. On 4th April 2024 the trial court ruled that the prosecution had established a prima facie case on all counts and placed the Appellant and the co-accused on their defence.
8. The Appellant testified on 27th May 2024.
9. The trial court delivered its judgment on 24th June 2024 and reconvened on 1st August 2024 for mitigation on sentencing.
Judgement by the Trial Court
10. With respect to the offence of obtaining money by false pretence under Counts I, IV and VII, the court found that the prosecution had established the necessary elements thereof as concerns Count I and VII from the testimony of Edward Lunganga and Milka Nasimiyu who testified to giving sums to the co-accused who then handed the same over to the Appellant in exchange for what was later revealed to be bogus NPS calling letters. The trial court acquitted the Appellant of Count IV because Timothy Orone Omuse and Naomi Chesang Njomo did not present themselves as witnesses and as such the allegations that they gave Appellant money in exchange for placement remained unproven.
11. With respect to the offence of making a document without lawful authority, under Counts III, VI and IX, the learned Magistrate observed the calling letters in the name of Stephen Lugaga, Evans Simiyu Wanjala, Abiud Wekesa, Linet Sitati, Nato Wandabwa as compared to the genuine letters from the NPS. The trial court held that the calling letters were not from the offices of the NPS. The trial court was further convinced by the testimony of Vincent Chelongo, the handwriting expert, that the handwriting on the face of the fake calling letters were the Appellant’s. The trial court convicted the Appellant of Counts III, VI and IX.
12. With regards to the offence of forgery, the under Counts II, V and VIII, the trial court held that one of the elements of forgery as espoused in Kilee v Republic [1967] EA 713 is that the false document must be made to be used as a genuine. The learned Magistrate found that the fake calling letters did not look anything like the genuine letters from the National Police Headquarters; that the Appellant intended to use the false letters to obtain money and not as genuine calling letters to Kiganjo Police Training College. As such the trial court acquitted the Appellant of Counts II, V and VIII pursuant to section 215 of the Criminal Procedure Code (hereinafter “CPC”).
13. The learned Magistrate sentenced the Appellant to fine of Kshs. 50,000 or in default 1 year imprisonment for Count I, a fine of Kshs. 70,000 or in default 2 years imprisonment for Count III, a fine of Kshs. 50,000 or in default 1 year imprisonment for Count VII and a fine of Kshs. 70,000 or in default 2 years imprisonment for Count IX. The sentences were to run consecutively.
Appeal
14. The Appellant was dissatisfied with the decision of the learned Magistrate and lodged this appeal through a Petition of Appeal dated 7th August 2024 and Amended Grounds of Appeal dated 19th March 2025, raising five grounds of appeal as follows:
a. That conviction was against weight of evidence.
b. That conviction and sentence was against the finding that the appellant was not given time to express himself over the matter nor he was not pointed out by the complainant during the hearing.
c. That the prosecutor did not prove its case beyond reasonable doubt.
d. That the sentence meted was excessive in the circumstances.
e. That the court shifted the burden of proof to the defence.
15. The Appellants prays that:
a. Appeal be allowed;
b. Conviction be quashed;
c. Sentence set aside; and
d. Appellant set at liberty.
Submissions
16. This appeal was disposed of by way of written submissions. The Appellant filed written submissions dated 24th March 2025 while the Respondent’s written submissions are dated 23rd April 2025.
Submissions by the Appellant
17. The Appellant has framed three issues for determination. The first is whether the prosecution proved to the required standard the offence(s) of obtaining money by false pretence to warrant a conviction of the Appellant. The Appellant relies on the Nigerian case of Dr. Edwin U. Onwudiwe v Federal Republic of Nigeria SC 41/2003 in stating that the in order for a charge of obtaining by false pretence to stand, the prosecution must prove that an accused constructed a pretence it knew to be false or of whose truth it did not believe to induce an owner of property to transfer his or her interest therein with an intention to defraud such owner of the thing capable of being stolen.
18. The Appellant argues that Edward Lugaga Toili, complainant in Count I, testified that he was approached by the co-accused who he met in a hotel at Sharrif Centre. That it was the co-accused who asked for Kshs. 300,000, received an advance payment of Kshs. 100,000, advised Edward Lugaga Toili to prepare the son’s papers, received the said papers and received Kshs. 11,000 as facilitation. The Appellant argues that Stephen Lugaga’s testimony confirms the foregoing as he stated that he gave the co-accused his academic certificates, that it is the co-accused who asked for Kshs. 130,000 from his parents and received the same and that when the calling letter came via North Rift Offices in Bungoma he went to collect it with the co-accused. The Appellant asserts that at no point do the testimonies of Edward and Stephen Lugaga implicate him. The Appellant avers that the co-accused used the names of the OCPD Bungoma and Mr. Njue based at Lari Police Station to demonstrate that she was capable of securing placements for the complainants but the Appellant was not present when the co-accused was making presentation of facts pertaining the said recruitment. The Appellant avers that no testimony or evidence presented confirms he received money from the complainants.
19. The Appellant maintains these assertion even as regarding Count VII with respect to which Milka Nasimiyu testified. The Appellant states that it was the co-accused who met the complainant, presented the idea of placement at Kiganjo and took money from her. The Appellants states he was convicted on the basis of surmise, suspicion and conjecture as there was neither evidence that the false pretence emanated from him nor that obtained anything from the complainants. As such the Appellant asks to be acquitted of this offence.
20. The second issue canvassed by the Appellant is whether the prosecution proved to the required standard the offence(s) of making a document without authority to warrant conviction of the Appellant. The Appellant points to the fact that none of the complainants ever reported to the police regarding the validity of the calling letters. The Appellant further states that he was convicted for Count VI which involved making letter bearing Naomi Chesang Njomo’s name yet the complainant did not even testify. The Appellant further faults the court for convicting on Count IX because Nato Nandabwa whose name was on the fake letter never testified, it was only the mother, Milka Nasimiyu Toyua who testified. The Appellant further states that he was never in the company of the complainants when they received the false letters which had been set from Nairobi by one James Kinyua. The Appellant further challenges the expert evidence of Vincent Chelongo as he had confirmed to court that he was not the maker of the forensic examination report and submits that Alex Mwongera who made the report was the suitable person to verify contents of the report. The Appellant adds that the investigation and or examination of documents was selective because only his signature was taken while the co-accused’s signature and signature of the mentioned James Kinyua were not taken for comparison. The Appellant contends that the letters were typed, serialized and printed and sent from Nairobi at the time when he was working and residing in Bungoma and as such it is not possible that he was involved. The Appellant concludes that the evidence of Maxwel Kaburo and Vincent Chelongo were mere expert opinions which could not be relied on without corroboration of other key witnesses.
21. The final issue discussed by the Appellant is whether this court ought to set aside or overturn the decision of the trial court as invited by the Appellant. The Appellant submits that he has sufficiently demonstrated that there was no sufficient evidence to warrant conviction as such this court ought to set it aside under section 354(3) of the CPC.
Submissions by the Respondent
22. The Respondent concedes to the appeal and submits that the co-accused person, Morine Nangila Wanjala, is adversely mentioned by all the complainants and witnesses and is clearly the master mind of the whole plan. The Respondent submits that it is the co-accused who solicited for and received the bribe money. The Respondent states that the only weighty evidence linking the Appellant to the offence is that of the handwriting expert, whose evidence is an opinion. The Respondent further stats that sentence meted in the circumstances were harsh even though they were within the law.
Determination
23. I have considered the appeal, submissions and decisions relied on by the Appellant. This appeal raises three issues for determination, namely; whether the Respondent established that the Appellant committed the offence of obtaining under false pretence, whether the Respondent established that the Appellant committed the offence of making a document without lawful authority and whether the court ought to interfere with the sentence imposed by the trial court.
24. Before embarking on analysis of the issues, we shall as a matter of preliminary concern, clarify the mandate of this court as the first appellate forum. The Court of Appeal in Wambui v Republic [2019] KECA 906 (KLR) delineated the task of the first appellate court in criminal matters as follows at paragraph 22 and 23:
The appellant’s complaint that the first appellate court did not subject the evidence to fresh scrutiny, analysis and re-evaluation is not an idle one. A first appeal always proceeds by way of re-hearing based on the evidence on record and an appellant is therefore entitled to expect that the first appellate court will go beyond a mere rehashing of what is on record or a repetition of the findings of the trial court.
It is required to and must be seen to be seen to have, consciously and deliberately subjected the entire evidence to thorough scrutiny so as to arrive at its own independent conclusions on the factual issues in contention, and to determine on its own, the guilt or otherwise of the appellant, the only limitation to its task being a remembrance that it is without the advantage, enjoyed by the trial court, of seeing and observing the witnesses as they testified, for which it must make due allowance [emphasis supplied].
Even as I seek to dive deeply into the evidence as contained in the Proceedings and Exhibits I will give deserved allowance to the learned Magistrate who had the priceless advantage of observing the demeanour of the witnesses.
Whether the Respondent Established that the Appellant committed the offence of Obtaining Under False Pretence
25. This issue will further be examined under different Counts as follows:
i. Count I involving Edward Lugaga Toili and Stephen Lugaga.
26. The Appellant’s major contention is that the testimony of Edward and Stephen Lugaga does not demonstrate that he received the money from them but rather that it was the co-accused that received the money at all material times. The Appellant has distanced himself from the cursed transaction that occurred in the following words at page 7 and 8 of his Written Submissions:
Your Ladyship, PW-3’s testimony was corroborated by the testimony of PW-1, Stephen Lugaga, who is his son. PW-1 stated that he was introduced to the lady (MOURINE WANJALA) his parents who told him that she was the person to assist him get a job. That it is this lady whom he handed over copies of his academic certificates. That it is the said lady who asked for Kshs. 130,000/- from his parent, which money was given to her at Shariff Centre. That when the admission letters came, he went to pick, he went to pick the letter from North Rift offices in Bungoma in company of the lady. (See page 10 to 14 of the Record of Appeal in proceedings in criminal case number 197 of 2016)
Your Ladyship, the foregoing evidence does not in any way implicate the Appellant in the recruitment scandal it is clear from from [sic] these testimony [sic] that the person who approached the complainant was NANGILA, the 2nd accused not the Appellant. It is apparent from the testimony of PW-3 and PW-1 that when the said NANGILA presented herself before PW-3 to be in a position to help in the police recruitment, she was alone. She was not accompanied by the Appellant…. At the moment of making the representation and presentation of facts pertaining the said recruitment, the Appellant was not present.
It is further evident from the testimony that the request for “recruitment bid money” was made by the said NANGILA (2nd Accused) and not the Appellant, and the said money was paid to the 2nd Accused. It was the evidence of PW-1 on cross-examination that [sic] was never given to the 1st Accused (Appellant) and that his father gave Kshs. 130,000/- to the 2nd accused. He said he did not see the Appellant receive money from his father.
27. The Proceedings reveal to me that the Appellant is substantially misstating what the witnesses said. Stephen Lugaga in his examination-in-chief, at page 5 and 6 of the Proceedings, stated that the Appellant was present when they were meeting with the co-accused at Sharif Centre where he was introduced as a Police Officer who would assist with the placement:
… She [co-accused] asked for Kshs. 130,000/= which my parent gave to her she took us from Sharif centre and took us aside to introduce us to a gentleman whom she said was a policeman. I talked to him and he asked for my cellphone No. and he said the following day I collect my admission letter from North Rift P.S.V shuttle. I do not know the name of lady but I can identify him [sic] if I saw her. She is before court (2nd accused identified). She took us to a person who said he will get me a job. I meet him often but avoids me when is seated. (1st accuded identified in the dock) [emphasis supplied].
28. Stephen Lugaga in his examination-in-chief also testified to meeting the Appellant on the after he collected the false calling letter and when he was supposed to travel at page 7 of the Proceedings as follows:
…I clarify that when I was collecting the letter I was with the 2nd accused [co-accused]. We left North Rift and went to sharif centre and I met the police officer (points at first accused). He read the letter and told me it is fine. Before I met 1st accused I had met with my parents and together with them and 2nd accused we met 1st accused who read the letter saying it is fine. He told me to go home and prepare and in the evening to join him so that he can take me to Nairobi on easy coach. I met them at Easy Coach, that is, both accused. We waited, at 9 pm he asked me to go home saying following day we will go to Nairobi. He kept on calling me asking me to be patient [emphasis supplied].
29. His cross-examination did not contradict the foregoing testimony. As such I do not agree with the Appellant that from the testimony of Stephen Lugaga, we can conclude that he was not present when the co-accused represented to Stephen Lugaga that he could receive employment. The actions of the Appellant were calculated to buttress and lend credence to whatever the co-accused had communicated to Stephen Lugaga and his parents. As per Stephen Lugaga’s testimony, the Appellant actively engaged in the affair by reading the false letter, assuring Stephen Lugaga and his parents that it was fine and even directing him to go and prepare for the journey and accompanying him to the Easy Coach bus station. The Appellant cannot in good conscience claim that Stephen Lugaga’s testimony does not show that he was involved in making the representation that there were job placements in the KPS which they could help Stephen Lugaga and his parents to get.
30. On whether Stephen Lugaga saw the Appellant actually take the money, his testimony is that he did not see his father hand over the money to the Appellant, but that he saw the co-accused hand money in the envelope to the Appellant. On cross-examination by the Appellant’s advocate, Stephen Lugaga states at page 7 of the Proceedings:
…I did not give money to the 1st accused [Appellant]. My father gave Kshs. 130,000/=. I did not see my father give money to 1st accused… I did not see any money being given to 1st accused.
31. During cross-examination by the co-accused’s advocate, at page 8 of the Proceedings, Stephen Lugaga stated:
…I saw the 2nd accused received kshs. 130,000/= from my father and hand it over to 1st accused on the same day. It was in an envelope.
32. At re-examination on page 10 of the Proceedings, he confirmed that:
I saw my father give money to 2nd accused [co-accused].
33. From the above we can deduce that in the very least Stephen Lugaga saw his father give money to the co-accused. I cannot, from his testimony, safely deduce that he saw money being given to the Appellant because of the contradiction.
34. Stephen Lugaga’s father, Edward Lugaga Toili, gave a more detailed account which confirms that the Appellant aided the co-accused in making the representation that they could help procure job placements at KPS. As per Edward Lugaga Toili, the events occurred over a 4-day period. On the first day he met the co-accused at Sherif Centre alone who informed him of the job recruitments and insinuated that she was working with OCPD Bungoma and her husband Njue to coordinate the recruitment. On this day he gave the co-accused Kshs. 100,000 in cash.
35. Edward Lugaga Toili stated that on the second day, his son, Stephen Lugaga, brought his academic certificates to the co-accused at Sharif Centre where he further gave another Khs. 10,000/= to the co-accused as facilitation. It was on the third day that Edward Lugaga Toili met the Appellant who he testified was the purported Bungoma OCPD; page 24 of the Proceedings reads as follows:
On the 3rd day we again met at Sharrif centre hotel. She told me that that there were young people who had received their letter. My son had not received his letter to join Kiganjo. On that day there were 13 young boys who at [sic] Sharrif centre. Nangila told us not to leave as the OCPD was going to come and check their height and health status just as in recruitment. We went to another building opposite the Sharrif Centre.
At the building, the OCPD came. The OCPD turned up to the [sic, should read “turned out to be”] Nderitu (witness points to the 1st accused). He was the one who came as the OCPD. When he came he examined the boys the ones who had got letters. When I saw Nderitu, I was shocked since I knew him. Nderitu was also shocked to see me since he knew me. He just checked the papers and also took height of the young men. I was shocked because I knew Nderitu was not OCPD he was junior officer.
36. Edward Lugaga Toili also confirms Stephen Lugaga’s account that on the day of collecting the false calling letter, he met the Appellant. Edward Lugaga Toili’s examination-in-chief at page 25 of the Proceedings:
On the 4th day, my son went to North Rift and he got a letter. Nangila and Nderitu talked to my son and he came to me and told me that they too said they will not deal with me but with him. I saw the letter that my son got. It was like a calling letter to Kiganjo.
37. Crucially, Edward Lugaga Toili also maintained that his wife paid the co-accused some money on this fourth day which money was handed to the Appellant. During examination-in-chief at page 25 he stated:
After the letter came the two Nangila and Nderitu began to organize the day of taking the young men to Kiganjo. The two asked Kshs.20,000/= from each young man.
On the said day in the evening, I saw Nderitu in uniform coming from court. I also saw my wife Agnes Lugaga give the money to Nangila and I saw Nangila go and give the money to Nderitu as he came from court. We then left the children with the two saying they be taken to the bus stage.
38. During cross-examination by the Appellant’s advocate, Edward Lugaga Toili affirmed the foregoing as follows at page 26 of the Proceedings:
I saw Nangila give Nderitu Kshs.20,000/= for transport to go to Kiganjo.
39. From the testimony by Stephen Lugaga and Edward Lugaga Toili, it is not true that the Appellant was absent when the co-accused made representations which induced payment for job placements. In fact, given that the co-accused was a primary school teacher, she needed a police officer to make her claims of being able to secure KPS placements seem authentic. I am convinced that the testimony of Stephen Lugaga and Edward Lugaga indicate that the Appellant was actively involved in making the false pretence, by certifying that the letters were correct, receiving payments for transport, accompanying Stephen Lugaga to the Easy Coach bus station and telling him to go home and wait for further communi
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