FAITH SYOMBUA MUNYAO VS The Republic FAITH SYOMBUA MUNYAO VS The Republic

(Being an appeal from conviction and sentencing of the appellant on the 4^th June 2024 by the Principal Magistrate Honorable Monica Kivuti in Makadara.
INTRODUCTION

The appellant in this matter was charged with the offence of obtaining money by false pretences contrary to Section 313 of the Penal Code.
The particulars were that in the 11^th day of May 2019 Biafra Estate in Kamukunji Sub county with intent to defraud obtained from Magdalene Kamanthe Cash Kshs. 48,000 by falsely pretending that she was in a position to purchase for her second -hand motor vehicle affect that she knew to be false.
The appellant was convicted and sentenced to serve 1 year and 6 months imprisonment.
It is the conviction and sentence that the appellant has approached this court to have quashed and the sentence set aside.
The appellant’s main grounds of appeal are that she was not accorded a fair trial by the lower court contrary to Article 50 of the Constitution.
According to the appellant she intends to call two witnesses to give evidence in her defence but on the date the witnesses were available the matter was adjourned thus she was unable to have them give evidence in support of her defence.
Secondly, the appellant has contended that she was not allowed to tender submissions at the close of the matter thus she was prejudiced and this court should therefore find that her conviction was unsafe, quash it and set the sentence aside.
Lastly, the appellant urges the court to find that the sentence imposed was manifestly excessive and harsh in the circumstances

ANALYSIS AND DETERMINATION.

On the right to a fair trial this appellant has urged the court to consider that she was unrepresented at the hearing thus the court ought to have accorded her every right available under the law noting that the court is the custodian of the law and ought to ensure all the constitutional rights of an accused person are protected and safe guarded during trial.
In support of that argument the appellant cited the case of Joseph Ndungú Kagiri Vs Republic Criminal Appeal No.69 of 2012 where the court held:-

"The court is the custodian of the law and ought to ensure that these constitutional safe guards are jealously protected and upheld at all times. The trial should be judicious, fair, transparent and expeditious but must ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 50 of the Constitution of Kenya 2010. The Right to a Fair Trial is one of the cornerstones of a just society."

The appellant throughout the submissions has not addressed herself to the sufficiency or insufficiency of the prosecution’s case.
It therefore remains unclear to this court whether indeed the appellant only desired to have the court analyze the record for procedural flows only and determine that the trial was unfair and proceed to have the entire decision quashed or the merits of the case were of concern to the appellant as well.
The concern of the court is based on the attack on sentence since the facts of the matter are very crucial in determining an appropriate sentence.
Be that as it may, the appellant maintains that the sentence is excessive and should be reviewed if the conviction is upheld.
The prosecution has submitted that the conviction is safe and the sentence is not manifestly excessive.
I must say that counsel for the prosecution did not do justice to this case because they did not address themselves to the issue of breach of the right to a fair trial.
In the considered view of this court the issue of breach of fundamental rights once raised by an accused persons must be closely considered not only by the court but also the prosecutor whose duty is not simply to secure a conviction but also ensure that just like the court the rights of accused persons are protected throughout the trial. See Beger Vs United States 295 U.S 78 ,88 (1935) on the duty of a prosecutor which is not only to ensure that the guilty are put to punishment but also that the innocent are set at liberty.
The court has considered the record of the lower court and noted that the appellant upon being placed on her defense indicated to the court that she had 2 witnesses to call. The indication to the court was given on the 18/8/2023.
The record shows that defense hearing was fixed for 19/10/2023 and when the appellant appeared on 19^thOctober 2023 she indicated that she was ready to proceed.
The matter did not however proceed on that day and it was taken out and rescheduled to the 31/11/2023.
In 3/11/2023 the accused is recorded to have been absent and a warrant of arrest was issued against her.
On 18/12/2023 when she appeared the warrant of arrest was lifted upon her explanation to court.
The defense hearing was adjourned to 17/1/2024 but it did not proceed an account of absence of the prosecution counsel.
It was then fixed for hearing on the 7^th February 2024 when the appellant appeared and indicated to the court that she was ready to proceed and would not call any witnesses.
In her defense the appellant simply said that the prosecution witnesses were lying and that all that the complainant wanted was, was to see her in jail. She pleaded for court’s intervention.
It is therefore clear to this court that the appellant was accorded the necessary opportunity to present her case.
She deliberately chose not to call any witnesses thus the submission by the appellant’s counsel is to say the least incorrect and misleading to this court.
If indeed it were to be that she was denied an opportunity to call her witnesses this court would not have hesitated in quashing the conviction and setting the sentence aside.
However, this court notes that there is no indication by the court that parties were called upon to make submissions at the close of the defense case.
The question that arises is whether the omission to invite parties to make submissions in a Criminal trial can vitiate a trial.
Section 215 of the Criminal Procedure Code reads:

“The court having heard both the complainant and the accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an order against him according to law or shall acquint him.”

The section makes it abundantly clear that the court must hear the complainant and the accused plus their witnesses.
The Section is silent on the mode of hearing thus hearing must be accorded its ordinary meaning. That is to say parties must be allowed to present their respective cases.
Black’s law Dictionary defines hearing as:

“ a formal proceeding before a judge or other magistrate without a jury.”

It is the formal examination of a case Civil or Criminal before a judge or a Judicial officer.
During hearing the parties may present evidence or arguments to determine issues of law or fact.
In the considered view of this court, it is not mandatory for a court to invite parties to make submissions before judgments.
It is not uncommon even when parties are given such an opportunity for them not to offer any submissions.
The fact that parties were not given an opportunity to submit cannot vitiate a trial the trail since the evidence was duly considered. That in my view is a curable defect under Section 382 of the Criminal Procedure Code.,
It is a procedural lapse that can be deemed curable upon a full and exhaustive evaluation of evidence.
In this case the complainant who described herself as having been a friend to the appellant gave evidence that they entered into an agreement with the appellant that she would secure her a second- hand motor bike at Ksh. 48,000. The two signed an agreement between them and the same was witnessed by one Urbanus who also affixed his signature.
The agreement was presented by the complainant as PMFI -1 and later produced by PW3 as PEXH 1. The same was received in evidence in the presence of the appellant.
It is apparent from the record when the appellant cross-examined PW3 she did not challenge the agreement and similarly during her defence she never commented on it.
I have no doubt in my mind that the charge of obtaining money by false pretenses was proved. The appellant received money from the complainant but never delivered the motor bike as promised.
The appellant’s defense was a mere denial thus the learned Honorable magistrate was right in rejecting it.
The appellant did not even challenge the agreement produced as prosecution Exhibit 1 and which was tendered as proof of the payment of the money.
The conviction was therefore safe.
As regards sentence the learned Honorable court imposed a 1 year 6 (six) months period of imprisonment.
The issue of sentencing is one of exercise of judicial discretion. As a first appellate court to interfere with the sentence this court ought to be satisfied that the court misapplied the principles of sentencing thus causing an injustice to the appellant.
I have carefully taken into account all the facts of the matter as well as considered the sentence provided for under Section 313 of the Penal Code.
The offence of obtaining by false pretenses as a misdemeanor would attract less than 3 years imprisonment.
In my considered view the sentence imposed by the trial court was outrightly disproportionate considering the amount of money involved.
The sum involved was Kshs. 48,000 and in my considered view the trial court should have imposed a sentence that would be proportionate and probably consider an order for restitution.
As a consequence, therefore this court is inclined to interfere with sentence.
The sentence of 1 year 6 months imprisonment is hereby substituted with a sentence of 7 months imprisonment from the date of sentence with a further order that the appellant shall pay to the complainant the sum of Kshs. 48,000 being the sum of money obtained from the complainant in default she shall serve a further 30days after which she may be released from prison custody.
The officer in charge Langata women prison to inform the deputy registrar of this court once the sum is paid for processing of release warrant.
The appeal therefore succeeds on sentence only.
It is so ordered.