(Being an appeal from the judgment of Hon. D. Mikoyan (CM) delivered on 6/11/2023 in Eldoret Chief Magistrate’s Court Criminal Case No. 6586 of 2014)
1. Evans Mairura Omwenga, the Appellant, was charged before the Eldoret Chief Magistrate Court with two counts of offences. In Count 1, the Appellant was charged with the offence of Forgery of a Document of Title contrary to Section 350 (1) of the Penal Code.
2. The particulars of the first Count were that on 19th June 1996 at Ardhi House in Eldoret Township within Uasin Gishu County with intent to defraud, forged a certain document namely Certificate of Lease of Land parcel LR No. Eldoret Municipality/Block 14/783 while purporting that the said Certificate of Lease had been signed by a Land Registrar Daniel Mulili Musyoki.
3. On Count II, the Appellant was charged with conspiracy to defraud contrary to Section 317 of the Penal Code. The particulars of the offence in the second Count were that on 19th June 1996 at Ardhi House in Eldoret Township within Uasin Gishu County with others not before Court with the intent to defraud, conspired to defraud Daniel Chepkairor Chebet a parcel of land registered as LR No. Eldoret Municipality/Block 14/783 measuring 0.2000ha situated within Elgon View estate in Uasin Gishu County.
4. The Appellant pleaded not guilty to the abovementioned charges. The matter proceeded to trial at the conclusion of which the Court found guilty on Count I, convicted and sentenced him to a fine of Kshs. 30,000/= and in default 6 months’ imprisonment. The Appellant, being dissatisfied with the decision of Hon. D. Mikoyan (CM) he appealed against both conviction and sentence. The appeal is based on very lengthy grounds reproduced in verbatim as follows:
1) The Honourable Magistrate erred in law and fact in holding that the prosecution had proved its case that was premised on a defective charge sheet that lacked clarity and specificity thus rendering it defective for failure to provide adequate particulars of the alleged forgery and in process admitted wrong evidence which resulted in travesty of justice.
2) That the Honourable Magistrate erred in law and fact in admitting the evidence and testimony of the forensic document examiner who clearly stated he never saw the Certificate of Lease itself and concluded his report without seeing it, yet the charge against the accused was premised on forgery of title contrary to Section 350(1) of the Penal Code.
3) The trial Magistrate erred in law and in fact in convicting the Appellant in a charge that was preferred using the investigative evidence of the document examiner whose report was arrived and made from electronically generated documents and specimens that resulted in wrong conclusions on the question of forgery of title.
4) The Honourable Magistrate erred in law and fact in holding that the accused forged document of title of land contrary to Section 350(1) of the Penal Code.
5) The Honourable Magistrate erred in law and in fact in holding that the prosecution had proved its case beyond reasonable doubt when in reality the evidence tendered was insufficient, inconsistent and failed to establish a clear nexus between the Appellant and the alleged fraudulent allegations.
6) The Honourable Magistrate erred in law and fact in failing to take into account glaring inconsistencies in the prosecution case and thus give the benefit of doubt in favor of the Appellant.
7) The Honourable court erred in law and fact in failing to reconcile the testimony of the complainant vis-a vis that of the other witnesses.
8) The Hon Magistrate erred in law and fact by proceeding and ultimately delivering Judgment and conviction based on three categories of prosecution witnesses; to wit
a) Incompetent witnesses whose testimony is not credible at all, and have no value in the realm of conveyancing and land related transactions,
b) Witness, though competent, did not testify and produce evidential information that is compiling to make any a just determination, and
c) Competent witness whose credible testimony, either the Hon Magistrate ignored and/or twisted in terms of appreciation culminating to that impugned Judgment.
9) That the Hon Magistrate erred in law and fact by ignoring the import of the legal provisions of the law of conveyance and more specifically attestation of land related agreements and more particularly section 44 and section 38 of the land registration act and all other land conveyancing procedures and thus arrived at a wrong decision.
10) The Honourable Magistrate erred in law and fact in failing to capture and give legal import of the details of the transfer between the1st registered owner and the 2nd registered owner who transferred the land to the Appellant.
11) The Honorable court erred in law and in fact in failing to formulate proper issues for determination thus arriving at a wrong Judgment.
12) The trial Magistrate erred in law and in fact in his analysis of the evidence tendered verbal and or documentary thus arriving at a wrong finding of law on record.
13) The trial Magistrate erred in law and in fact in relying on irrelevant and an applicable Judicial precedent in his imputation of the guilt of the Appellant thus rendering a travesty of Justice.
14) The Honourable Magistrate erred in law and fact in failing to consider the evidence adduced by the defense witnesses and in arriving at his Judgment.
15) The Honourable Magistrate erred in law and fact in failing to satisfy himself that the accused had no case to answer in view of the compelling evidence on record.
16) The Honourable Magistrate erred in law and fact in not according the accused the benefit of doubt in view of the overwhelming evidence before it which he deliberately persistently and ultimately chose to ignore to the prejudice of the Appellant.
17) The Hon Magistrate erred in law and fact in clearly misconceiving and ignoring, the testimony and evidence of PW7, the then in Charge Land Registrar Dorothy Chepkosgei Letting who gave a clear analogy of ownership entries as had been captured in the white card and that no moment did she impute any wrong doing on the part of the Appellant.
18) The Hon Magistrate erred in law and fact by deliberately ignoring the fact in ELDORET ELC NO 256 OF 2013(Justice Munyao Sila) decreed on the issue of ownership of the suit parcel Eldoret Municipality Block 14/783 and certainly and permanently barred the then Defendant now complainant in the impugned criminal proceedings from any of interference in the property.
19) That Hon Magistrate erred in law and fact, by persistently and ultimately ignoring the fact that the complainant, then Appellant in the Eldoret Court of Appeal no 86 of 2017 before a three Judge bench (E.M Githinji, Hannah Okwengu & J. Mohammed, all Justices of the court Appeal) had his appeal against the Eldoret ELC 256 OF 2013 decision withdrawn with costs.
20) The trial Magistrate erred in law and in fact in not holding that ELC Court in Eldoret & Court of Appeal that were previously ceased with the matter had Jurisdiction and competent to make a determination were binding on his conviction and sentence.
21) That the Hon Magistrate erred in law and fact in concluding that supporting documents for the transfer never existed contrary to the land registrar PW7 whose evidence gave probable reasons as to why they may have been missing.
22) The Hon Magistrate erred in law and fact that the evidence of PW7 who was a very competent witness, was more credible and compelling than any other, and at no time did she say as alluded in the impugned Judgment, that there were no supporting documents in respect of the transfer of the suit property to the accused.
23) The trial Magistrate erred in law and in fact in not holding that ELC Court in Eldoret & Court of Appeal that were previously seized with the matter had Jurisdiction and competency to make a determination that were binding on it and ought to have been taken into consideration in the judgement conviction and sentence
Prosecution Evidence
5. The prosecution in support of its case called a total of 9 witnesses whose evidence is as summarised here below;
6. PW1 was Daniel Tanui Chepkairo. He testified that he is a retired employee of Eldoret Municipal Council. He stated that on 22nd July 2004, they agreed with the late Paul Kibor Kemboi who had land near his land and executed an agreement with respect to the said land being land parcel No. 14/783, for the purchase of the same whose total acreage was half an acre at an agreed price of Ks. 380,000/-. He stated that he paid for the land partly in cash and partly with cattle. That he paid 6 heads of cattle each then valued at Ks. 60,000/= and that he paid Ks. 200,000/- in cash.
7. He testified that the vendor’s witness was his wife and that his wife was his witness and that Chebii & Co. Advocates who was their Advocate drew the Agreement. He produced the said agreement in evidence and the same marked as PMFI-1. He stated that the vendor gave him the transfer forms already signed and that on 23rd July 2004 and he also signed the documents. He produced the transfer forms and the same was marked as PMFI-2. He stated that the transfer forms were however not registered because upon conducting a search, they found the Appellant’s name on the property. He stated that the Search Certificate is dated 2nd December 2012 and produced the same which was marked as PMFI-3
8. He testified that they subsequently called the Appellant, one Evans Marura Omwenga and asked him to avail his ownership documents but he failed to do so but only availed a copy of the title deed and so they decided to report the matter at the Eldoret Police Station where they were referred to an Officer called Njeru who recorded their statements and those of their witnesses.
9. He further testified that prior to the sale, Paul had initially given him the land in 1988 to be the farm’s caretaker. That the police officers then carried out their investigations. He maintained that the subject land was in Paul Kemboi’s name and that there is no evidence from the land registry to show that the Appellant was the owner of the suit land.
10. Upon cross examination, PW1 stated that he had a case before the Environment and Land Court and the Court ruled against him and added that he was not the complainant therein. He testified that he does not know if the Appellant forged the alleged documents but reiterated that his evidence is that he bought land form Paul Kemboi on 22nd July 2004.
11. He stated that he was not the owner of the suit land as at 19th June 1996. He testified that the Green Card indicates that the land exchanged hands from Kemboi to Ongoro and then to Appellant but stated that Mr. Ongoro has not claimed that the Appellant took his land. He further testified that he is the one who placed that restriction that was registered on the suit land on 25th April 2013.
12. PW2 was Susan Chebet who stated that she is the Woman Representative of Marakwet County and lives in Elgon View Estate in Eldoret. She testified that on 22nd July 2004, her husband who testified as PW1 bought land from Paul Kemboi, and that she was a witness. She testified that PW1 paid Ks. 200, 000/- to Paul Kemboi in cash and 6 heads of cattle whose value was Ks. 30,000/- per head. and the total value was Ks. 180,000/-.
13. She stated that the land that PW1 bought from Paul was No.14/783 and it was half an acre. She testified that Paul was a neighbour and his wife was his witness. PW2 then referred to the copy of the Sale Agreement marked as PMFI-1and testified that Paul’s signature on this exhibit was different from the agreement they executed.
14. She stated that the land was transferred to PW1 but she did not see the transfer documents and that they bought the land in the year 2004 and which land they used to take care of since 1998. She testified that the transfer was not registered in favour of PW1 because the land was in the name of Mr. Ongoro who then later transferred it to Evans the Appellant herein. She testified that the Green Card and the Agreement in favour of Mr. Ongoro were however fake.
15. She testified that she did not accompany PW1 to the Lands Registry, and that the document marked as DMFI-1 which she identified as a Transfer of Lease had a forged signature of Paul Kemboi. She further testified that the Green Card was found to be a forged one and that it was not in the name of Kemboi but it was in name of Evans. She then identified the Green Card and hat the same is in name of Ongoro. She stated that this is the document that was under investigations together with the title deed.
16. Upon cross- examination, PW2 stated that her signature was not on the Agreement and further stated that Mrs. Kemboi’s signature is also not on the Agreement. She testified that Mr. Chebii did not sign the Agreement and reiterated that she witnessed her husband give out the 6 heads of cattle and cash to the tune of Ks. 200,000/-. She conceded that it was prudent for PW1 to do a search before buying the land and stated that as at the year 2004 the registered owner of the suit land was Evan Omwenga according to the search. She asserted that the Agreement between Ongoro and Evans Omwenga was fake.
17. PW3 was Peter Arusei who stated that he stays at Ngeria and also at Elgon View estate within Eldoret Town. He testified that he knows PW1 and that the said PW1 bought land from Paul Kemboi Bor, who is now deceased, and that was about 10 years or 15 years ago. He testified that Paul Kemboi Bor was his uncle and that he used to live with him in Elgon View. He stated that PW1 bought from Paul land situated at Upper Elgon View within Eldoret Town. That the land was half an acre which was a plot. He testified that PW1 gave the late Paul 6 heads cattle for the said half acre of land and PW1 gave him the 6 heads of cattle and he drove them to Paul Bor Kemboi’s home. He testified that after Paul Kemboi died he heard about this case.
18. He stated that PW1 did not construct on the land. He testified that PW1 told him that someone had entered his half acre of the land but he did not know the person who entered PW1’s land. Upon being cross-examined, PW3 stated he started living with the late Bor when he was 12 years old. He testified that it was the late Paul who sent him for the cattle from PW1 in exchange of the half acre of land. He stated that he was not a party to the parties’ land Sale Agreement and he did not witness the parties execute their agreement and did not know if the parties exchanged any money.
19. PW4 was Samuel Kimaiyo Kosgei, he testified that he stays at Upper Elgon View in Eldoret. He stated that in October, 2010 at 12:00 midday, he was then coming from a shop and was going home when someone stopped him and introduced himself as Omwenga and he told him that he wanted to go to PW1’s place and he took him to PW2 and PW1’s home since PW1 was their village elder. He stated that they walked up to PW1’s home but he did not know what Omwenga wanted from PW1.
20. That when they reached PW1’s place, Omwenga told him to take him behind PW2’s land which he complied and that Mr. Omwenga told him that the land behind PW2’s home was his even though he told him that the land belonged to PW1. He testified that they returned to PW2’s home and they found her son who told them that PW1 was over to PW1 and he did not hear what they talked about. That he left Mr. Omwenga in PW1’s office.
21. Upon being cross-examined, PW4 stated that he is not new in this matter. He stated that he met the Appellant in the year 2010 and that he testified in the High Court matter in the year 2014. He stated that one must do a search before purchasing land. He testified that the agreement shows the first owner of LR No. Eldoret Municipality Block 14/783 was Paul Kemboi and the Green Card shows that it then moved to Joseph Ongoro and that from Joseph Ongoro the land went to Evans Omwenga.
22. PW5 was Jacob Oduor a Forensic Document Examiner working with EACCC Nairobi and previously with DCI as a document examiner at DCI Headquarters. He stated that he has 10 years’ experience and hold a BA Degree from Kenyatta University. He further stated that he had acquired training on Document Examination from the DCI Headquarters Forensic Lab, National Rabat Uni-Forensic Evidence Inspector in Khartoum, Fost and Freeman Forensic Eq. Co. UK and Regular Forensic Science Systems based in Republic of Latavia, East Europe.
23. He testified that in respect to the matter before Court on 8th September 2014, he received exhibits from Corporal Thomas Otho attached to CID Eldoret Office who submitted the following documents for examination; exhibit marked A1 and A2 bearing known signatures of Daniel Mulili Land Registrar, exhibit marked B, specimen signatures of Daniel Mulili Musyoka, exhibit marked BI, questioned documents, copy of green card for Eldoret Municipality Block 14/783. He stated that these documents were sent to him via an exhibit Memo form dated 5th September 2014 with a request to compare the known signatures in exhibit A1 and A2 with specimen signatures in the exhibit marked B and the questioned signatures in exhibit marked BI and confirm whether they were made by the same hand.
24. He testified that on 9th September 2014, he analysed the signatures as per the request by comparing signature indicated in the exhibit marked BI and specimen signatures in the exhibit marked B and known signatures marked A1 and A2 and his conclusion was that specimen signatures on the exhibit marked B and A1 and A2 were made by the same author. He stated that the disputed signature on the exhibit marked B1 was written in a different style and formation compared to that on the exhibit marked B, A1 and A2, in the sense that the questioned signature had a different stroke at the beginning of the signature, different curves and loops, pen lifts and writing quality.
25. He testified that based on the difference he made a conclusion that the signature in B1 was made by a different author. He stated that he made a report and signed his report dated 9th September 2014 which he then produced. He added that page 4-8 are comparison charts from VAC 5000 a customized instruction for document examiner. He stated that these are direct print outs from the machine and are not scans. Upon being cross-examined, PW5 stated that he deals with questions of authenticity of documents and that generally, they detect if a document is genuine and whether the signature is forged or not.
26. He conceded that he has not shown that the signature in question was signed by the Appellant and added that he has no evidence that the Appellant is the one who appended the signature of Mulili on the Certificate of Lease. He stated that time is a factor that affects signatures as well as age, sickness, drunkenness and the surface where the paper is placed and added that he has stated these natural variations in his report. He testified that the 4 signatures which are specimens are the same, they have natural variations which are psychological. He stated that they cannot be duplicate or identical, that they will have variations but the personalized forensic traits remain the same. He confirmed that he did not obtain the signatures of Paul Kemboi and also stated that he did not look at the signatures of Evans Omwenga Mairura and Joseph Ongoro.
27. On further cross-examination, PW5 stated that B1 is written in a different style and formation. He noted that it has a different initial stroke, terminal stroke character construction and design, letter spacing loops and curves, natural pen lifts, writing quality and ink holes. In regard to A1, B1, and A2 and B, he stated that in the report on comparison chats, he indicates the differences. Regarding the charts, he stated that there are no comments and that what he has told the Court in his report. He stated that natural pen lifts are in his exhibits but there are no comments in the comparison charts. In regard to specimen signatures 1 and 2, he stated that the signatures are not different. He testified that he is not aware of a Title deed and added that he was not given the white card.
28. PW6 was Daniel Mulili Musyoki, stated that he is a businessman and that he used to work as a Land Registrar and that he was a land Registrar from 1996 to 2002. He testified that on 2nd September 2014, a police of officer came looking for him and the officer introduced himself as Wanga from Eldoret Police Station. He stated that the officer told him that there was a plot which had some issues and he needed him to record a statement and that the officer showed him some documents and also asked for a specimen of his signature which he gave. He testified that he has a copy of the white card.
29. He testified that the officer told him that there was some dispute and he wanted to confirm whether the signature on the document marked as PMFI-9 was his. He stated that the white card relates to Eldoret Municipality Block 14 parcel No. 783 and that the last entry No.6 is a restriction stopping any dealings on the land without the consent of PW1 who is claiming a purchaser’s interest. He stated that the registered owner of the land was Evans Mairura Omwenga. He testified that he told the officer that he had retired from service in Jan 2008 and noted that this was 10 years since the document was written. He stated that the officer asked for his specimen signature and he gave it to him.
30. He testified that PMFI-8 was the specimen that he gave and that he also availed to the officer a letter dated 29th November 1995 marked as PMF-6, which he was not able to confirm whether it was him who wrote. He testified that he started working in Eldoret in 1996. He stated that the transfer of Lease document to John Changwo Cherongony was registered on 7th February 1996 but he could not exactly confirm if this was his signature because it was a long time ago.
31. Upon being cross-examined PW6, he stated that in the white card, the 1st registered owner was Paul Kibor Arap Kemboi, the second was Joseph and the 3rd was Evans. He added that in the card, PW1 has never been registered as the owner of the land. He stated that the 1st restriction on the land was put by the registrar for purposes of valuation, and the 2nd restriction was registered on 25th April 2013 by PW1. He told the Court that Evans Mairura was registered on 19th June1996 and noted that there is a difference of 7 years. He stated that he was a land registrar and knows the process that entails a transfer of title and that the original has to be availed.
32. He stated that Paul Kibor was registered on 28th April 1987 but no Certificate of Lease was issued, Joseph Ongoro was registered on 23rd July 1987 and a Certificate of Lease was issued on the same day and that on 19th June 1996 when the land was transferred to Evans Mairura Omwenga, a Certificate of Lease was also issued the same day.
33. He told the Court that Ongoro must have surrendered the original and executed all relevant documents to facilitate the transfer. He stated that there is no indication that the 1st registered owner transferred the land directly to Evans Mairura but that it was transferred to Evans Mairura by Joseph Ongoro. He testified that in the process, a transfer form is filled, a consent obtained from the relevant authority and the documents signed by the transferor to the transferee and the land registrar.
34. He testified that there is an abstract registrar in the land registry and it contains all the documents submitted to facilitate a transfer. He stated that all documents must have been there and signed. He told the Court that the officer who came to see him had a copy of the white card and stated that it was after 10 years and that that if the officer had come with the original, he would have recognized his signature.
35. He stated that his specimen signature was taken after 10 years and stated that he has not changed his signature much even after 10 years. He stated that a pen and a paper can perhaps make a slight difference in the signature. He testified that he met the Appellant one time in the year 2015 or 2016 at Karen Shopping Centre. He stated that the custodian of the documents in the land office is the District Land Registrar and added private citizens cannot access documents in the lands registry and that the same are kept in the strong room under key and lock.
36. PW7 was Dorothy Chepkogei Letting, Land Registrar County Government of Kisumu and previously at Uasin Gishu County from January 2014 up to May 2018. She stated that on 28th July 2012, she received a letter in respect of land parcel No. Eldoret Municipality Block 14/783 seeking that she records a statement and supplies documents for the mentioned parcel to the investigator. She testified that according to the white card, the land was 1st registered on 28th April 1987 in the name Paul Kibor Arap Kemboi and subsequently transferred to Joseph Ongoro on 23rd July 1987 and Certificate of Lease issued.
37. She stated that on 19th June 1996, the land was then transferred to Evans Mairura Omwenga and a Certificate of Lease issued. She testified that on 25th April 2013, a restriction was placed on the said land and that no dealings which (without the) consent of PW1 allowing for a purchaser’s interest order subject to the matter. She stated that they were not able to trace supporting documents from the 1st registered owner to Joseph Ongoro and also the subsequent transfer from Joseph Ongoro to Evans. She the produced the certified copy of the white card as PExh 10.
38. Upon being cross-examined PW7 stated that she was not the land registrar in 1996 and 1997. She testified that initially the land belonged to the Government of Kenya, then it moved to Paul Kibor Arap Kemboi. She stated save for the placing of the restriction upon the land, PW1 was never the registered owner. She testified that the Affidavit of PW1 was availed hence the restriction that was placed. She stated that according to the White card, Evans Mairura Omwenga was the registered as owner on 19th June 1996. She confirmed that only the White Card was taken to DCI for investigations. She testified that she had indicated in her statement with the police that documents that support the transfer of the land to Evans Omwenga could not be traced.
39. She stated that the parcel file is not available. That there was a transfer from Arap Kemboi to Ongoro then Ongoro transferred to Evans Mairura. She stated that she has two transfer forms from Paul Kibor Kemboi to Joseph Ongoro. She testified that what they use for the transfer of land in Court is a free bond or transfer of Lease respectively but an Agreement does not transfer land.
40. Upon being further cross-examined, PW7 stated that transferor and transferee must have executed the Lease for a transfer to be executed. She confirmed that the Land Registrar is the custodian of such documents, submitted for a transfer to be effected. She testified that documents could have been displaced at the Registry and that the Appellant is not to blame.
41. In re-examination, she clarified that in this leasehold, the documents that they ought to have are a) the original certificate of lease, b) transfer of lease documents duly executed by both parties, c) consent to transfer from Paul to Ongoro, d) rate clearance certificate, e) payment of stamp duty, f) registration fees payment. She stated that none of these documents are available and she did not know what happened to the and that it is irregular that they didn’t trace all the documents. She stated that the documents are usually archived in the registry and that sometimes documents get misfiled and other times they can be plucked out in collusion with interested parties.
42. PW8 was Boniface Cheruiyot, an Advocate and Legal Officer at Uasin Gishu, County Government. He stated that he is in Court on behalf of the County Attorney who was vide the letter dated 18/04/2018 asked to testify. He told the Court that he was worked with Mr. Lelei for 2 years and his is conversant with handwriting and signature. He stated that they were asked to confirm if parcel number 14/783 per the Land Rates Clearance Certificate was authentic and it was their conclusion that the property rate request was a forgery. He then produced the letter from the DCI and accompanying documents.
43. Upon being cross-examined PW8 confirmed that he has not produced any register of files open at the County Government of Uasin Gishu. He further confirmed that he has not produced the list of print outs of 2/12/2015- Rate payments and also he has not highlighted any features to show that the forgery request from is not genuine, nor any Forensic report to confirm the forgery. He also confirmed that he has no Report if investigations save for the letter marked as PExh 11.
44. He stated that the County Government does not issue titles. He testified that they receive rates against people who ought to pay rates. He told the Court that Paul Kibor had been paying rates, from the year 2012 to the said time. In regard to DMFI-8, PW8 confirmed that he has seen HC SUCC No.319/2014 in relation to the estate of Paul Kibor Kemboi and noted that the deceased died on 17/10/2013 according to the said Succession Cause. He told the Court that as of the year 2019 all rates were paid. He testified that they do not know who is the registered owner of the parcel at the rates section.
45. PW9 was Sergeant Samson Owaga based at the DCI Kisumu West and was formerly at DCI Eldoret. He testified that in the year 2012, when matter in question came to the attention of Eldoret Police Station, it was handled by Sergeant Owuor then when it came to DCI Eldoret, he investigated the same. He told the Court by then the
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1. Evans Mairura Omwenga, the Appellant, was charged before the Eldoret Chief Magistrate Court with two counts of offences. In Count 1, the Appellant was charged with the offence of Forgery of a Document of Title contrary to Section 350 (1) of the Penal Code.
2. The particulars of the first Count were that on 19th June 1996 at Ardhi House in Eldoret Township within Uasin Gishu County with intent to defraud, forged a certain document namely Certificate of Lease of Land parcel LR No. Eldoret Municipality/Block 14/783 while purporting that the said Certificate of Lease had been signed by a Land Registrar Daniel Mulili Musyoki.
3. On Count II, the Appellant was charged with conspiracy to defraud contrary to Section 317 of the Penal Code. The particulars of the offence in the second Count were that on 19th June 1996 at Ardhi House in Eldoret Township within Uasin Gishu County with others not before Court with the intent to defraud, conspired to defraud Daniel Chepkairor Chebet a parcel of land registered as LR No. Eldoret Municipality/Block 14/783 measuring 0.2000ha situated within Elgon View estate in Uasin Gishu County.
4. The Appellant pleaded not guilty to the abovementioned charges. The matter proceeded to trial at the conclusion of which the Court found guilty on Count I, convicted and sentenced him to a fine of Kshs. 30,000/= and in default 6 months’ imprisonment. The Appellant, being dissatisfied with the decision of Hon. D. Mikoyan (CM) he appealed against both conviction and sentence. The appeal is based on very lengthy grounds reproduced in verbatim as follows:
1) The Honourable Magistrate erred in law and fact in holding that the prosecution had proved its case that was premised on a defective charge sheet that lacked clarity and specificity thus rendering it defective for failure to provide adequate particulars of the alleged forgery and in process admitted wrong evidence which resulted in travesty of justice.
2) That the Honourable Magistrate erred in law and fact in admitting the evidence and testimony of the forensic document examiner who clearly stated he never saw the Certificate of Lease itself and concluded his report without seeing it, yet the charge against the accused was premised on forgery of title contrary to Section 350(1) of the Penal Code.
3) The trial Magistrate erred in law and in fact in convicting the Appellant in a charge that was preferred using the investigative evidence of the document examiner whose report was arrived and made from electronically generated documents and specimens that resulted in wrong conclusions on the question of forgery of title.
4) The Honourable Magistrate erred in law and fact in holding that the accused forged document of title of land contrary to Section 350(1) of the Penal Code.
5) The Honourable Magistrate erred in law and in fact in holding that the prosecution had proved its case beyond reasonable doubt when in reality the evidence tendered was insufficient, inconsistent and failed to establish a clear nexus between the Appellant and the alleged fraudulent allegations.
6) The Honourable Magistrate erred in law and fact in failing to take into account glaring inconsistencies in the prosecution case and thus give the benefit of doubt in favor of the Appellant.
7) The Honourable court erred in law and fact in failing to reconcile the testimony of the complainant vis-a vis that of the other witnesses.
8) The Hon Magistrate erred in law and fact by proceeding and ultimately delivering Judgment and conviction based on three categories of prosecution witnesses; to wit
a) Incompetent witnesses whose testimony is not credible at all, and have no value in the realm of conveyancing and land related transactions,
b) Witness, though competent, did not testify and produce evidential information that is compiling to make any a just determination, and
c) Competent witness whose credible testimony, either the Hon Magistrate ignored and/or twisted in terms of appreciation culminating to that impugned Judgment.
9) That the Hon Magistrate erred in law and fact by ignoring the import of the legal provisions of the law of conveyance and more specifically attestation of land related agreements and more particularly section 44 and section 38 of the land registration act and all other land conveyancing procedures and thus arrived at a wrong decision.
10) The Honourable Magistrate erred in law and fact in failing to capture and give legal import of the details of the transfer between the1st registered owner and the 2nd registered owner who transferred the land to the Appellant.
11) The Honorable court erred in law and in fact in failing to formulate proper issues for determination thus arriving at a wrong Judgment.
12) The trial Magistrate erred in law and in fact in his analysis of the evidence tendered verbal and or documentary thus arriving at a wrong finding of law on record.
13) The trial Magistrate erred in law and in fact in relying on irrelevant and an applicable Judicial precedent in his imputation of the guilt of the Appellant thus rendering a travesty of Justice.
14) The Honourable Magistrate erred in law and fact in failing to consider the evidence adduced by the defense witnesses and in arriving at his Judgment.
15) The Honourable Magistrate erred in law and fact in failing to satisfy himself that the accused had no case to answer in view of the compelling evidence on record.
16) The Honourable Magistrate erred in law and fact in not according the accused the benefit of doubt in view of the overwhelming evidence before it which he deliberately persistently and ultimately chose to ignore to the prejudice of the Appellant.
17) The Hon Magistrate erred in law and fact in clearly misconceiving and ignoring, the testimony and evidence of PW7, the then in Charge Land Registrar Dorothy Chepkosgei Letting who gave a clear analogy of ownership entries as had been captured in the white card and that no moment did she impute any wrong doing on the part of the Appellant.
18) The Hon Magistrate erred in law and fact by deliberately ignoring the fact in ELDORET ELC NO 256 OF 2013(Justice Munyao Sila) decreed on the issue of ownership of the suit parcel Eldoret Municipality Block 14/783 and certainly and permanently barred the then Defendant now complainant in the impugned criminal proceedings from any of interference in the property.
19) That Hon Magistrate erred in law and fact, by persistently and ultimately ignoring the fact that the complainant, then Appellant in the Eldoret Court of Appeal no 86 of 2017 before a three Judge bench (E.M Githinji, Hannah Okwengu & J. Mohammed, all Justices of the court Appeal) had his appeal against the Eldoret ELC 256 OF 2013 decision withdrawn with costs.
20) The trial Magistrate erred in law and in fact in not holding that ELC Court in Eldoret & Court of Appeal that were previously ceased with the matter had Jurisdiction and competent to make a determination were binding on his conviction and sentence.
21) That the Hon Magistrate erred in law and fact in concluding that supporting documents for the transfer never existed contrary to the land registrar PW7 whose evidence gave probable reasons as to why they may have been missing.
22) The Hon Magistrate erred in law and fact that the evidence of PW7 who was a very competent witness, was more credible and compelling than any other, and at no time did she say as alluded in the impugned Judgment, that there were no supporting documents in respect of the transfer of the suit property to the accused.
23) The trial Magistrate erred in law and in fact in not holding that ELC Court in Eldoret & Court of Appeal that were previously seized with the matter had Jurisdiction and competency to make a determination that were binding on it and ought to have been taken into consideration in the judgement conviction and sentence
Prosecution Evidence
5. The prosecution in support of its case called a total of 9 witnesses whose evidence is as summarised here below;
6. PW1 was Daniel Tanui Chepkairo. He testified that he is a retired employee of Eldoret Municipal Council. He stated that on 22nd July 2004, they agreed with the late Paul Kibor Kemboi who had land near his land and executed an agreement with respect to the said land being land parcel No. 14/783, for the purchase of the same whose total acreage was half an acre at an agreed price of Ks. 380,000/-. He stated that he paid for the land partly in cash and partly with cattle. That he paid 6 heads of cattle each then valued at Ks. 60,000/= and that he paid Ks. 200,000/- in cash.
7. He testified that the vendor’s witness was his wife and that his wife was his witness and that Chebii & Co. Advocates who was their Advocate drew the Agreement. He produced the said agreement in evidence and the same marked as PMFI-1. He stated that the vendor gave him the transfer forms already signed and that on 23rd July 2004 and he also signed the documents. He produced the transfer forms and the same was marked as PMFI-2. He stated that the transfer forms were however not registered because upon conducting a search, they found the Appellant’s name on the property. He stated that the Search Certificate is dated 2nd December 2012 and produced the same which was marked as PMFI-3
8. He testified that they subsequently called the Appellant, one Evans Marura Omwenga and asked him to avail his ownership documents but he failed to do so but only availed a copy of the title deed and so they decided to report the matter at the Eldoret Police Station where they were referred to an Officer called Njeru who recorded their statements and those of their witnesses.
9. He further testified that prior to the sale, Paul had initially given him the land in 1988 to be the farm’s caretaker. That the police officers then carried out their investigations. He maintained that the subject land was in Paul Kemboi’s name and that there is no evidence from the land registry to show that the Appellant was the owner of the suit land.
10. Upon cross examination, PW1 stated that he had a case before the Environment and Land Court and the Court ruled against him and added that he was not the complainant therein. He testified that he does not know if the Appellant forged the alleged documents but reiterated that his evidence is that he bought land form Paul Kemboi on 22nd July 2004.
11. He stated that he was not the owner of the suit land as at 19th June 1996. He testified that the Green Card indicates that the land exchanged hands from Kemboi to Ongoro and then to Appellant but stated that Mr. Ongoro has not claimed that the Appellant took his land. He further testified that he is the one who placed that restriction that was registered on the suit land on 25th April 2013.
12. PW2 was Susan Chebet who stated that she is the Woman Representative of Marakwet County and lives in Elgon View Estate in Eldoret. She testified that on 22nd July 2004, her husband who testified as PW1 bought land from Paul Kemboi, and that she was a witness. She testified that PW1 paid Ks. 200, 000/- to Paul Kemboi in cash and 6 heads of cattle whose value was Ks. 30,000/- per head. and the total value was Ks. 180,000/-.
13. She stated that the land that PW1 bought from Paul was No.14/783 and it was half an acre. She testified that Paul was a neighbour and his wife was his witness. PW2 then referred to the copy of the Sale Agreement marked as PMFI-1and testified that Paul’s signature on this exhibit was different from the agreement they executed.
14. She stated that the land was transferred to PW1 but she did not see the transfer documents and that they bought the land in the year 2004 and which land they used to take care of since 1998. She testified that the transfer was not registered in favour of PW1 because the land was in the name of Mr. Ongoro who then later transferred it to Evans the Appellant herein. She testified that the Green Card and the Agreement in favour of Mr. Ongoro were however fake.
15. She testified that she did not accompany PW1 to the Lands Registry, and that the document marked as DMFI-1 which she identified as a Transfer of Lease had a forged signature of Paul Kemboi. She further testified that the Green Card was found to be a forged one and that it was not in the name of Kemboi but it was in name of Evans. She then identified the Green Card and hat the same is in name of Ongoro. She stated that this is the document that was under investigations together with the title deed.
16. Upon cross- examination, PW2 stated that her signature was not on the Agreement and further stated that Mrs. Kemboi’s signature is also not on the Agreement. She testified that Mr. Chebii did not sign the Agreement and reiterated that she witnessed her husband give out the 6 heads of cattle and cash to the tune of Ks. 200,000/-. She conceded that it was prudent for PW1 to do a search before buying the land and stated that as at the year 2004 the registered owner of the suit land was Evan Omwenga according to the search. She asserted that the Agreement between Ongoro and Evans Omwenga was fake.
17. PW3 was Peter Arusei who stated that he stays at Ngeria and also at Elgon View estate within Eldoret Town. He testified that he knows PW1 and that the said PW1 bought land from Paul Kemboi Bor, who is now deceased, and that was about 10 years or 15 years ago. He testified that Paul Kemboi Bor was his uncle and that he used to live with him in Elgon View. He stated that PW1 bought from Paul land situated at Upper Elgon View within Eldoret Town. That the land was half an acre which was a plot. He testified that PW1 gave the late Paul 6 heads cattle for the said half acre of land and PW1 gave him the 6 heads of cattle and he drove them to Paul Bor Kemboi’s home. He testified that after Paul Kemboi died he heard about this case.
18. He stated that PW1 did not construct on the land. He testified that PW1 told him that someone had entered his half acre of the land but he did not know the person who entered PW1’s land. Upon being cross-examined, PW3 stated he started living with the late Bor when he was 12 years old. He testified that it was the late Paul who sent him for the cattle from PW1 in exchange of the half acre of land. He stated that he was not a party to the parties’ land Sale Agreement and he did not witness the parties execute their agreement and did not know if the parties exchanged any money.
19. PW4 was Samuel Kimaiyo Kosgei, he testified that he stays at Upper Elgon View in Eldoret. He stated that in October, 2010 at 12:00 midday, he was then coming from a shop and was going home when someone stopped him and introduced himself as Omwenga and he told him that he wanted to go to PW1’s place and he took him to PW2 and PW1’s home since PW1 was their village elder. He stated that they walked up to PW1’s home but he did not know what Omwenga wanted from PW1.
20. That when they reached PW1’s place, Omwenga told him to take him behind PW2’s land which he complied and that Mr. Omwenga told him that the land behind PW2’s home was his even though he told him that the land belonged to PW1. He testified that they returned to PW2’s home and they found her son who told them that PW1 was over to PW1 and he did not hear what they talked about. That he left Mr. Omwenga in PW1’s office.
21. Upon being cross-examined, PW4 stated that he is not new in this matter. He stated that he met the Appellant in the year 2010 and that he testified in the High Court matter in the year 2014. He stated that one must do a search before purchasing land. He testified that the agreement shows the first owner of LR No. Eldoret Municipality Block 14/783 was Paul Kemboi and the Green Card shows that it then moved to Joseph Ongoro and that from Joseph Ongoro the land went to Evans Omwenga.
22. PW5 was Jacob Oduor a Forensic Document Examiner working with EACCC Nairobi and previously with DCI as a document examiner at DCI Headquarters. He stated that he has 10 years’ experience and hold a BA Degree from Kenyatta University. He further stated that he had acquired training on Document Examination from the DCI Headquarters Forensic Lab, National Rabat Uni-Forensic Evidence Inspector in Khartoum, Fost and Freeman Forensic Eq. Co. UK and Regular Forensic Science Systems based in Republic of Latavia, East Europe.
23. He testified that in respect to the matter before Court on 8th September 2014, he received exhibits from Corporal Thomas Otho attached to CID Eldoret Office who submitted the following documents for examination; exhibit marked A1 and A2 bearing known signatures of Daniel Mulili Land Registrar, exhibit marked B, specimen signatures of Daniel Mulili Musyoka, exhibit marked BI, questioned documents, copy of green card for Eldoret Municipality Block 14/783. He stated that these documents were sent to him via an exhibit Memo form dated 5th September 2014 with a request to compare the known signatures in exhibit A1 and A2 with specimen signatures in the exhibit marked B and the questioned signatures in exhibit marked BI and confirm whether they were made by the same hand.
24. He testified that on 9th September 2014, he analysed the signatures as per the request by comparing signature indicated in the exhibit marked BI and specimen signatures in the exhibit marked B and known signatures marked A1 and A2 and his conclusion was that specimen signatures on the exhibit marked B and A1 and A2 were made by the same author. He stated that the disputed signature on the exhibit marked B1 was written in a different style and formation compared to that on the exhibit marked B, A1 and A2, in the sense that the questioned signature had a different stroke at the beginning of the signature, different curves and loops, pen lifts and writing quality.
25. He testified that based on the difference he made a conclusion that the signature in B1 was made by a different author. He stated that he made a report and signed his report dated 9th September 2014 which he then produced. He added that page 4-8 are comparison charts from VAC 5000 a customized instruction for document examiner. He stated that these are direct print outs from the machine and are not scans. Upon being cross-examined, PW5 stated that he deals with questions of authenticity of documents and that generally, they detect if a document is genuine and whether the signature is forged or not.
26. He conceded that he has not shown that the signature in question was signed by the Appellant and added that he has no evidence that the Appellant is the one who appended the signature of Mulili on the Certificate of Lease. He stated that time is a factor that affects signatures as well as age, sickness, drunkenness and the surface where the paper is placed and added that he has stated these natural variations in his report. He testified that the 4 signatures which are specimens are the same, they have natural variations which are psychological. He stated that they cannot be duplicate or identical, that they will have variations but the personalized forensic traits remain the same. He confirmed that he did not obtain the signatures of Paul Kemboi and also stated that he did not look at the signatures of Evans Omwenga Mairura and Joseph Ongoro.
27. On further cross-examination, PW5 stated that B1 is written in a different style and formation. He noted that it has a different initial stroke, terminal stroke character construction and design, letter spacing loops and curves, natural pen lifts, writing quality and ink holes. In regard to A1, B1, and A2 and B, he stated that in the report on comparison chats, he indicates the differences. Regarding the charts, he stated that there are no comments and that what he has told the Court in his report. He stated that natural pen lifts are in his exhibits but there are no comments in the comparison charts. In regard to specimen signatures 1 and 2, he stated that the signatures are not different. He testified that he is not aware of a Title deed and added that he was not given the white card.
28. PW6 was Daniel Mulili Musyoki, stated that he is a businessman and that he used to work as a Land Registrar and that he was a land Registrar from 1996 to 2002. He testified that on 2nd September 2014, a police of officer came looking for him and the officer introduced himself as Wanga from Eldoret Police Station. He stated that the officer told him that there was a plot which had some issues and he needed him to record a statement and that the officer showed him some documents and also asked for a specimen of his signature which he gave. He testified that he has a copy of the white card.
29. He testified that the officer told him that there was some dispute and he wanted to confirm whether the signature on the document marked as PMFI-9 was his. He stated that the white card relates to Eldoret Municipality Block 14 parcel No. 783 and that the last entry No.6 is a restriction stopping any dealings on the land without the consent of PW1 who is claiming a purchaser’s interest. He stated that the registered owner of the land was Evans Mairura Omwenga. He testified that he told the officer that he had retired from service in Jan 2008 and noted that this was 10 years since the document was written. He stated that the officer asked for his specimen signature and he gave it to him.
30. He testified that PMFI-8 was the specimen that he gave and that he also availed to the officer a letter dated 29th November 1995 marked as PMF-6, which he was not able to confirm whether it was him who wrote. He testified that he started working in Eldoret in 1996. He stated that the transfer of Lease document to John Changwo Cherongony was registered on 7th February 1996 but he could not exactly confirm if this was his signature because it was a long time ago.
31. Upon being cross-examined PW6, he stated that in the white card, the 1st registered owner was Paul Kibor Arap Kemboi, the second was Joseph and the 3rd was Evans. He added that in the card, PW1 has never been registered as the owner of the land. He stated that the 1st restriction on the land was put by the registrar for purposes of valuation, and the 2nd restriction was registered on 25th April 2013 by PW1. He told the Court that Evans Mairura was registered on 19th June1996 and noted that there is a difference of 7 years. He stated that he was a land registrar and knows the process that entails a transfer of title and that the original has to be availed.
32. He stated that Paul Kibor was registered on 28th April 1987 but no Certificate of Lease was issued, Joseph Ongoro was registered on 23rd July 1987 and a Certificate of Lease was issued on the same day and that on 19th June 1996 when the land was transferred to Evans Mairura Omwenga, a Certificate of Lease was also issued the same day.
33. He told the Court that Ongoro must have surrendered the original and executed all relevant documents to facilitate the transfer. He stated that there is no indication that the 1st registered owner transferred the land directly to Evans Mairura but that it was transferred to Evans Mairura by Joseph Ongoro. He testified that in the process, a transfer form is filled, a consent obtained from the relevant authority and the documents signed by the transferor to the transferee and the land registrar.
34. He testified that there is an abstract registrar in the land registry and it contains all the documents submitted to facilitate a transfer. He stated that all documents must have been there and signed. He told the Court that the officer who came to see him had a copy of the white card and stated that it was after 10 years and that that if the officer had come with the original, he would have recognized his signature.
35. He stated that his specimen signature was taken after 10 years and stated that he has not changed his signature much even after 10 years. He stated that a pen and a paper can perhaps make a slight difference in the signature. He testified that he met the Appellant one time in the year 2015 or 2016 at Karen Shopping Centre. He stated that the custodian of the documents in the land office is the District Land Registrar and added private citizens cannot access documents in the lands registry and that the same are kept in the strong room under key and lock.
36. PW7 was Dorothy Chepkogei Letting, Land Registrar County Government of Kisumu and previously at Uasin Gishu County from January 2014 up to May 2018. She stated that on 28th July 2012, she received a letter in respect of land parcel No. Eldoret Municipality Block 14/783 seeking that she records a statement and supplies documents for the mentioned parcel to the investigator. She testified that according to the white card, the land was 1st registered on 28th April 1987 in the name Paul Kibor Arap Kemboi and subsequently transferred to Joseph Ongoro on 23rd July 1987 and Certificate of Lease issued.
37. She stated that on 19th June 1996, the land was then transferred to Evans Mairura Omwenga and a Certificate of Lease issued. She testified that on 25th April 2013, a restriction was placed on the said land and that no dealings which (without the) consent of PW1 allowing for a purchaser’s interest order subject to the matter. She stated that they were not able to trace supporting documents from the 1st registered owner to Joseph Ongoro and also the subsequent transfer from Joseph Ongoro to Evans. She the produced the certified copy of the white card as PExh 10.
38. Upon being cross-examined PW7 stated that she was not the land registrar in 1996 and 1997. She testified that initially the land belonged to the Government of Kenya, then it moved to Paul Kibor Arap Kemboi. She stated save for the placing of the restriction upon the land, PW1 was never the registered owner. She testified that the Affidavit of PW1 was availed hence the restriction that was placed. She stated that according to the White card, Evans Mairura Omwenga was the registered as owner on 19th June 1996. She confirmed that only the White Card was taken to DCI for investigations. She testified that she had indicated in her statement with the police that documents that support the transfer of the land to Evans Omwenga could not be traced.
39. She stated that the parcel file is not available. That there was a transfer from Arap Kemboi to Ongoro then Ongoro transferred to Evans Mairura. She stated that she has two transfer forms from Paul Kibor Kemboi to Joseph Ongoro. She testified that what they use for the transfer of land in Court is a free bond or transfer of Lease respectively but an Agreement does not transfer land.
40. Upon being further cross-examined, PW7 stated that transferor and transferee must have executed the Lease for a transfer to be executed. She confirmed that the Land Registrar is the custodian of such documents, submitted for a transfer to be effected. She testified that documents could have been displaced at the Registry and that the Appellant is not to blame.
41. In re-examination, she clarified that in this leasehold, the documents that they ought to have are a) the original certificate of lease, b) transfer of lease documents duly executed by both parties, c) consent to transfer from Paul to Ongoro, d) rate clearance certificate, e) payment of stamp duty, f) registration fees payment. She stated that none of these documents are available and she did not know what happened to the and that it is irregular that they didn’t trace all the documents. She stated that the documents are usually archived in the registry and that sometimes documents get misfiled and other times they can be plucked out in collusion with interested parties.
42. PW8 was Boniface Cheruiyot, an Advocate and Legal Officer at Uasin Gishu, County Government. He stated that he is in Court on behalf of the County Attorney who was vide the letter dated 18/04/2018 asked to testify. He told the Court that he was worked with Mr. Lelei for 2 years and his is conversant with handwriting and signature. He stated that they were asked to confirm if parcel number 14/783 per the Land Rates Clearance Certificate was authentic and it was their conclusion that the property rate request was a forgery. He then produced the letter from the DCI and accompanying documents.
43. Upon being cross-examined PW8 confirmed that he has not produced any register of files open at the County Government of Uasin Gishu. He further confirmed that he has not produced the list of print outs of 2/12/2015- Rate payments and also he has not highlighted any features to show that the forgery request from is not genuine, nor any Forensic report to confirm the forgery. He also confirmed that he has no Report if investigations save for the letter marked as PExh 11.
44. He stated that the County Government does not issue titles. He testified that they receive rates against people who ought to pay rates. He told the Court that Paul Kibor had been paying rates, from the year 2012 to the said time. In regard to DMFI-8, PW8 confirmed that he has seen HC SUCC No.319/2014 in relation to the estate of Paul Kibor Kemboi and noted that the deceased died on 17/10/2013 according to the said Succession Cause. He told the Court that as of the year 2019 all rates were paid. He testified that they do not know who is the registered owner of the parcel at the rates section.
45. PW9 was Sergeant Samson Owaga based at the DCI Kisumu West and was formerly at DCI Eldoret. He testified that in the year 2012, when matter in question came to the attention of Eldoret Police Station, it was handled by Sergeant Owuor then when it came to DCI Eldoret, he investigated the same. He told the Court by then the
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