REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL APPEAL NO E140 OF 2024
FREDRICK MUSOWO NDIEMA……………………..…..APPELLANT
VERSUS
REPUBLIC…………………………………………………..RESPONDENT
(Being an appeal arising from the judgment of the learned Trial Magistrate of Hon .O. Manasses Resident Magistrate at Sirisia delivered on the 9 th October, 2024)
JUDGMENT
1. The appellant was charged with the offence of forgery contrary to section 350 of the Penal Code . The particulars were that on 15 September 2020, at an unknown location within the Republic of Kenya, with intent to deceive, forged succession documents purporting to have been signed by George Mlango.
2. The prosecution called George Mlango Wandiema (Pw1), half-brother to the appellant. He testified that their father died, leaving two units with 14 children, but they never undertook succession. In November 2022, he received a summons. According to the records, he petitioned the Sirisia Law Courts together with the appellant, seeking the grant of letters of administration in his father’s estate. However, Pw1 testified that he never filed such a case. He reported the matter to Cheptais Police Station. They took a statement, and the investigator also took sample signatures. Pw1 testified that the appellant had sent his friend to collect Pw1’s identity card on the pretext that they would use it to get Pw1’s money for old age.
3. Rashid Wasama Ndiema (Pw2) testified that the appellant and Pw1 were listed as administrators and they are all brother, the appellant being half a brother. He testified that he was not aware of the succession suit despite being named in it.
4. The investigating officer, No. 77098 (Pw4), testified that once they received the complaint from Pw1, they requested the court administrator at Sirisia Law Courts for certified copies of the Succession Cause No. 14/2020. On 27/3/2023, they took a signature and handwriting specimen from Pw1. In an exhibit memo, they requested a forensic document examiner to undertake further professional investigations. The report from the forensic document examiner stated that the subject signature in question belonged to the appellant.
5. On cross-examination, he testified that he doesn’t recall when they took D1-D3, being the specimen signature of the appellant and his handwriting. However, it was taken in the presence of the investigating officer and P.C Karisa.
6. No 240526, Inspector Martin Kitayi (Pw3), testified that he is a qualified forensic document examiner with the DCI based in Nairobi. He holds a bachelor’s degree in criminology from Egerton University. He is also trained in forensic document examination, machines from Foster and Freemaps in the UK. Pw3 also trained as a document examiner at the University in India. He produced the report by his colleague, Inspector Iranda Masiko, who had been his colleague for 9 months.
7. The appellant testified as Dw1. He testified that he is aware of the succession cause in which he is listed as a petitioner, together with Pw1. He testified that the family of the deceased had a series of meetings and there was consensus that they process the succession cause in respect of the deceased. They also sought advice from the chief, who required the list of beneficiaries, the deceased’s death certificate, and an official search certificate of the land held by the deceased. The chief issued a letter on 13/08/2020, and on 15/09/2020, Pw1 and the deceased's family, together with the appellant, approached an advocate to commence succession proceedings. He testified that he was never asked to sign any document. He denied writing specimen D1-D3. The specimens do not indicate when they were taken or in whose presence they were collected.
8. Godfrey Wekesa Ng’ar (Dw2) testified that during his tenure as chief, there was a dispute regarding the deceased’s family regarding the distribution of the estate. He went to the deceased’s home for a meeting and advised the two houses to agree to share the estate equally or to have the court decide the case in a succession cause. The appellant and the complainant came to his office, and he wrote them a letter for purposes of succession.
9. Robinson Kuruswa Ndiema (Dw3) testified that he stood as surety in the succession cause. He testified that on the date he signed the surety documents, the appellant, Pw1 and Isaac Chemabus all met at the advocate's office, where they signed the documents. He testified that he saw Pw1 sign the documents.
10. The trial court in its judgment found that the prosecution proved its case and sentenced the appellant to three years' imprisonment. The appellant is dissatisfied with the findings of the appeal on the following grounds:
1. That the prosecution did not prove the case beyond a reasonable doubt.
2. That the learned magistrate erred in law and in fact by convicting the appellant based on insufficient and contradictory evidence short of the required legal threshold.
3. That the learned magistrate erred in law when he relied solely on the evidence of the handwriting expert as the basis of the conviction of the appellant.
4. That the learned magistrate erred in law in not considering the doubts and gaps that were noted and remained unexplained in the process of preparation of the handwriting expert’s report, which doubts should have been resolved in the appellant’s favour.
5. That the learned magistrate erred in law and in fact by failing to acknowledge that the appellant’s signature and handwriting samples were never collected for comparison with that of the alleged complainant, Pw1, thus arriving at an erroneous conclusion devoid of factual basis.
6. That the learned magistrate failed to consider, and significantly so, that the prosecution relied on a P52 form served upon the appellant, compelling him to report to the police station as a known handwriting sample/signature of the appellant, instead of procedurally collecting the appellant’s signature in line with provisions of the Evidence Act.
7. That the learned judicial officer failed to consider that no evidence was tendered by the prosecution confirming that indeed the appellant had signed the P52 form.
8. That the learned trial magistrate failed to exercise impartiality by convicting the appellant upon the close of the prosecution's case, thereby violating the appellant’s rights to be presumed innocent until proven guilty, as according to the ruling delivered on a case to answer, the appellant was already convicted.
9. That the learned trial magistrate erred in law and in fact by convicting the appellant while relying on the handwriting expert’s report, which report was produced unlawfully and un-procedurally.
10. That the learned magistrate erred in law and fact by directly allowing an expert who was not the maker of the report to produce the same without advancing the defence/appellant an opportunity to comment on the same.
11. That the learned magistrate erred in law and in fact by convicting the appellant without considering that the investigating officer’s testimony was marred with inconsistencies, hence unreliable.
12. That the learned magistrate erred in law and in fact by failing to put significant weight on the evidence that the chain of custody regarding the alleged P52 form was broken, hence unreliable.
13. That the learned magistrate erred in law and fact by failing to consider the appellant’s defence, the documentary exhibit he produced, as well as evidence tendered by the appellant’s witnesses during the defence hearing in blatant disregard of provisions of section 169 of the Criminal Procedure Code.
14. That the learned magistrate erred in law and in fact by not considering the appellant’s mitigation as well as the fact that the appellant was a first offender.
15. That the learned trial magistrate erred in law and fact in imposing a sentence that was manifestly excessive in the circumstances.
11. The appellant in his submissions states that the only issue for determination in the appeal is whether the prosecution proved its case beyond a reasonable doubt and whether the sentence was unlawful, harsh and excessive.
12. On the first limb of the appeal, the appellant argues that the trial court solely relied on the expert report to convict the appellant, produced by the person who was not the maker of the document. The appellant was denied the opportunity to cross-examine the maker of the document.
13. The appellant contends that the expert’s findings were based on form P52 and the handwriting samples, which were not properly obtained. The prosecution relied on the signature from an unverified P52 form. The appellant also argued that the court lacked impartiality, as the language used in its ruling at the prima facie stage suggested a finding of guilt.
14. On sentence, the appellant argued that the sentence was harsh given that he was a first offender.
15. The respondent at the appeal hearing stated that it would rely on its initial submissions on bail pending appeal. The prosecution argued that the court should order a retrial.
ANALYSIS AND DETERMINATION
16. The appellant has argued in his submissions that the samples and known handwriting were not properly obtained. The Rules applicable to this case are Police Standing Orders, Revised Edition 2001. Under these Rules, Chapter 46 is titled ‘Guide to criminal investigations’. Section 26 stipulates as follows:
i. all the documents which are required to be examined for handwriting or typewriting comparisons should be forwarded to the Director of Criminal Investigation, for the attention of the Document Examiner…
ii. When forwarding documents, it is essential that:-
a. a specimen of the suspect’s writing or typing is enclosed for comparison with that on the document in question. The specimen should include the same words and figures as are contained in the original, repeated several times to facilitate examination,
b. if the suspected document is written in ink, the specimen should also be written in ink. If a ballpoint pen has been used, the specimen should be written with the same type of pen, and so on. If possible, the same type of paper should be used for the specimen as was used for the original document,
c. when a suspect is asked to provide a specimen the investigating officer will dictate the words and/or figures at various speeds to prevent the suspect from attempting to disguise his/her handwriting or typewriting.
iii. When looking for specimens, it should be borne in mind that these can, in many cases, be obtained from the suspect’s place of employment; the school where he/she was educated or received further education (evening continuation classes- business colleges- correspondence courses, etc); or from persons with whom he/she has been in correspondence.
17. According to form P52, which summoned the appellant to the police station, his attendance was required on 30/3/2023. The exhibits collected by the police were forwarded to the document examiner by No. 236984 IP Jillo Komba. According to the exhibit memo, Jillo Komba signed for the documents on 29/3/2023. The exhibits were received by the document examiner on 30/3/2023. Pw4 testified that he collected the appellant’s sample of handwriting in the presence of Jillo Komba; he could not recall when the samples were taken.
18. The appellant disputed providing the handwriting samples. According to form P52, the appellant appeared on 30/3/2023. Interestingly, No. 236984 IP Jillo Komba had the samples on 29/3/2023. The exhibit memo states the samples were forwarded to DCI Headquarters in Kiambu and received on 30/3/2023. According to the memo, on 29/3/2023, IP Jillo Komba had custody of the handwriting samples. However, from form P52, the appellant was expected to be at the station the following day. IP Jillo Komba was not called as a witness. PW4, on the other hand, could not specify when the samples were taken. There is doubt whether the samples were actually taken from the appellant, as he was summoned to appear at the police station on 30/3/2023; yet, on that date, the samples were already in Kiambu.
19. The exhibit memo also did not specify who received the exhibits. CI Iranda Masiko examined the exhibits listed in the memo and prepared a Forensic Document Examiner’s report. However, he did not give evidence, and instead, the report was submitted by his colleague, Pw3.
20. There was a dispute over when the samples were taken, and if CI Iranda Masiko and IP Jillo Komba had been summoned to testify as witnesses, the appellant could have had the opportunity to cross-examine them to clarify the timing of the sample collection.
21. The appellant has denied providing a sample of handwriting. There was also no evidence that the P52 was completed by the appellant. The prosecution's evidence, namely P52 and the exhibit memo, reveals a discrepancy regarding the timing of the sample collection. Additionally, the investigating officer did not provide evidence to resolve this issue, as he was unaware of when the sample handwriting was taken. In Republic v Ali [2022] KEHC 10452 (KLR), the court stated as follows:
“…the person alleged to have prepared the exhibit memo was not called to explain the discrepancy. Such an issue upon which the success of the charge stands or falls is sufficient to create a reasonable doubt in the prosecution case. Reasonable doubt is not mere possible doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it can say it feels an abiding conviction to a moral certainty of the truth of the charge41. Further, the evidence in question is to be considered together with the rest of the evidence, which point to the occurrence of the incident and the culpability of the accused. Corroboration of the evidence is also a relevant factor. It is my finding that the inconsistency in the serial pistols serial number cannot by any stretch of imagination be described as trial or immaterial.”
22. Consequently, I find that the prosecution failed to prove beyond a reasonable doubt the offence of forgery. Although the prosecution submitted that this is a case for retrial, I think not. A retrial should not be ordered where the conviction is set aside due to insufficient evidence or to allow the prosecution to fill gaps in its case at the first trial.
23. In conclusion, I find that the conviction is unsafe, and I hereby quash it. The sentence of three years' imprisonment is also set aside. The Appellant is hereby set free forthwith unless lawfully held.
Dated, Signed and Delivered at BUNGOMA this 19 th day of March 2026.
R.E. OUGO
JUDGE
In the presence of:
Fredrick Musowo Ndiema /Appellant
Miss Matere -For the Respondent
Wilkister -C/A
HCCRA NO E140 OF 2024 - JUDGMENTHCCRA NO E140 OF 2024 - JUDGMENT HCCRA NO E140 OF 2024 - JUDGMENTHCCRA NO E140 OF 2024 - JUDGMENT 2222
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL APPEAL NO E140 OF 2024
FREDRICK MUSOWO NDIEMA……………………..…..APPELLANT
VERSUS
REPUBLIC…………………………………………………..RESPONDENT
(Being an appeal arising from the judgment of the learned Trial Magistrate of Hon .O. Manasses Resident Magistrate at Sirisia delivered on the 9 th October, 2024)
JUDGMENT
1. The appellant was charged with the offence of forgery contrary to section 350 of the Penal Code . The particulars were that on 15 September 2020, at an unknown location within the Republic of Kenya, with intent to deceive, forged succession documents purporting to have been signed by George Mlango.
2. The prosecution called George Mlango Wandiema (Pw1), half-brother to the appellant. He testified that their father died, leaving two units with 14 children, but they never undertook succession. In November 2022, he received a summons. According to the records, he petitioned the Sirisia Law Courts together with the appellant, seeking the grant of letters of administration in his father’s estate. However, Pw1 testified that he never filed such a case. He reported the matter to Cheptais Police Station. They took a statement, and the investigator also took sample signatures. Pw1 testified that the appellant had sent his friend to collect Pw1’s identity card on the pretext that they would use it to get Pw1’s money for old age.
3. Rashid Wasama Ndiema (Pw2) testified that the appellant and Pw1 were listed as administrators and they are all brother, the appellant being half a brother. He testified that he was not aware of the succession suit despite being named in it.
4. The investigating officer, No. 77098 (Pw4), testified that once they received the complaint from Pw1, they requested the court administrator at Sirisia Law Courts for certified copies of the Succession Cause No. 14/2020. On 27/3/2023, they took a signature and handwriting specimen from Pw1. In an exhibit memo, they requested a forensic document examiner to undertake further professional investigations. The report from the forensic document examiner stated that the subject signature in question belonged to the appellant.
5. On cross-examination, he testified that he doesn’t recall when they took D1-D3, being the specimen signature of the appellant and his handwriting. However, it was taken in the presence of the investigating officer and P.C Karisa.
6. No 240526, Inspector Martin Kitayi (Pw3), testified that he is a qualified forensic document examiner with the DCI based in Nairobi. He holds a bachelor’s degree in criminology from Egerton University. He is also trained in forensic document examination, machines from Foster and Freemaps in the UK. Pw3 also trained as a document examiner at the University in India. He produced the report by his colleague, Inspector Iranda Masiko, who had been his colleague for 9 months.
7. The appellant testified as Dw1. He testified that he is aware of the succession cause in which he is listed as a petitioner, together with Pw1. He testified that the family of the deceased had a series of meetings and there was consensus that they process the succession cause in respect of the deceased. They also sought advice from the chief, who required the list of beneficiaries, the deceased’s death certificate, and an official search certificate of the land held by the deceased. The chief issued a letter on 13/08/2020, and on 15/09/2020, Pw1 and the deceased's family, together with the appellant, approached an advocate to commence succession proceedings. He testified that he was never asked to sign any document. He denied writing specimen D1-D3. The specimens do not indicate when they were taken or in whose presence they were collected.
8. Godfrey Wekesa Ng’ar (Dw2) testified that during his tenure as chief, there was a dispute regarding the deceased’s family regarding the distribution of the estate. He went to the deceased’s home for a meeting and advised the two houses to agree to share the estate equally or to have the court decide the case in a succession cause. The appellant and the complainant came to his office, and he wrote them a letter for purposes of succession.
9. Robinson Kuruswa Ndiema (Dw3) testified that he stood as surety in the succession cause. He testified that on the date he signed the surety documents, the appellant, Pw1 and Isaac Chemabus all met at the advocate's office, where they signed the documents. He testified that he saw Pw1 sign the documents.
10. The trial court in its judgment found that the prosecution proved its case and sentenced the appellant to three years' imprisonment. The appellant is dissatisfied with the findings of the appeal on the following grounds:
1. That the prosecution did not prove the case beyond a reasonable doubt.
2. That the learned magistrate erred in law and in fact by convicting the appellant based on insufficient and contradictory evidence short of the required legal threshold.
3. That the learned magistrate erred in law when he relied solely on the evidence of the handwriting expert as the basis of the conviction of the appellant.
4. That the learned magistrate erred in law in not considering the doubts and gaps that were noted and remained unexplained in the process of preparation of the handwriting expert’s report, which doubts should have been resolved in the appellant’s favour.
5. That the learned magistrate erred in law and in fact by failing to acknowledge that the appellant’s signature and handwriting samples were never collected for comparison with that of the alleged complainant, Pw1, thus arriving at an erroneous conclusion devoid of factual basis.
6. That the learned magistrate failed to consider, and significantly so, that the prosecution relied on a P52 form served upon the appellant, compelling him to report to the police station as a known handwriting sample/signature of the appellant, instead of procedurally collecting the appellant’s signature in line with provisions of the Evidence Act.
7. That the learned judicial officer failed to consider that no evidence was tendered by the prosecution confirming that indeed the appellant had signed the P52 form.
8. That the learned trial magistrate failed to exercise impartiality by convicting the appellant upon the close of the prosecution's case, thereby violating the appellant’s rights to be presumed innocent until proven guilty, as according to the ruling delivered on a case to answer, the appellant was already convicted.
9. That the learned trial magistrate erred in law and in fact by convicting the appellant while relying on the handwriting expert’s report, which report was produced unlawfully and un-procedurally.
10. That the learned magistrate erred in law and fact by directly allowing an expert who was not the maker of the report to produce the same without advancing the defence/appellant an opportunity to comment on the same.
11. That the learned magistrate erred in law and in fact by convicting the appellant without considering that the investigating officer’s testimony was marred with inconsistencies, hence unreliable.
12. That the learned magistrate erred in law and in fact by failing to put significant weight on the evidence that the chain of custody regarding the alleged P52 form was broken, hence unreliable.
13. That the learned magistrate erred in law and fact by failing to consider the appellant’s defence, the documentary exhibit he produced, as well as evidence tendered by the appellant’s witnesses during the defence hearing in blatant disregard of provisions of section 169 of the Criminal Procedure Code.
14. That the learned magistrate erred in law and in fact by not considering the appellant’s mitigation as well as the fact that the appellant was a first offender.
15. That the learned trial magistrate erred in law and fact in imposing a sentence that was manifestly excessive in the circumstances.
11. The appellant in his submissions states that the only issue for determination in the appeal is whether the prosecution proved its case beyond a reasonable doubt and whether the sentence was unlawful, harsh and excessive.
12. On the first limb of the appeal, the appellant argues that the trial court solely relied on the expert report to convict the appellant, produced by the person who was not the maker of the document. The appellant was denied the opportunity to cross-examine the maker of the document.
13. The appellant contends that the expert’s findings were based on form P52 and the handwriting samples, which were not properly obtained. The prosecution relied on the signature from an unverified P52 form. The appellant also argued that the court lacked impartiality, as the language used in its ruling at the prima facie stage suggested a finding of guilt.
14. On sentence, the appellant argued that the sentence was harsh given that he was a first offender.
15. The respondent at the appeal hearing stated that it would rely on its initial submissions on bail pending appeal. The prosecution argued that the court should order a retrial.
ANALYSIS AND DETERMINATION
16. The appellant has argued in his submissions that the samples and known handwriting were not properly obtained. The Rules applicable to this case are Police Standing Orders, Revised Edition 2001. Under these Rules, Chapter 46 is titled ‘Guide to criminal investigations’. Section 26 stipulates as follows:
i. all the documents which are required to be examined for handwriting or typewriting comparisons should be forwarded to the Director of Criminal Investigation, for the attention of the Document Examiner…
ii. When forwarding documents, it is essential that:-
a. a specimen of the suspect’s writing or typing is enclosed for comparison with that on the document in question. The specimen should include the same words and figures as are contained in the original, repeated several times to facilitate examination,
b. if the suspected document is written in ink, the specimen should also be written in ink. If a ballpoint pen has been used, the specimen should be written with the same type of pen, and so on. If possible, the same type of paper should be used for the specimen as was used for the original document,
c. when a suspect is asked to provide a specimen the investigating officer will dictate the words and/or figures at various speeds to prevent the suspect from attempting to disguise his/her handwriting or typewriting.
iii. When looking for specimens, it should be borne in mind that these can, in many cases, be obtained from the suspect’s place of employment; the school where he/she was educated or received further education (evening continuation classes- business colleges- correspondence courses, etc); or from persons with whom he/she has been in correspondence.
17. According to form P52, which summoned the appellant to the police station, his attendance was required on 30/3/2023. The exhibits collected by the police were forwarded to the document examiner by No. 236984 IP Jillo Komba. According to the exhibit memo, Jillo Komba signed for the documents on 29/3/2023. The exhibits were received by the document examiner on 30/3/2023. Pw4 testified that he collected the appellant’s sample of handwriting in the presence of Jillo Komba; he could not recall when the samples were taken.
18. The appellant disputed providing the handwriting samples. According to form P52, the appellant appeared on 30/3/2023. Interestingly, No. 236984 IP Jillo Komba had the samples on 29/3/2023. The exhibit memo states the samples were forwarded to DCI Headquarters in Kiambu and received on 30/3/2023. According to the memo, on 29/3/2023, IP Jillo Komba had custody of the handwriting samples. However, from form P52, the appellant was expected to be at the station the following day. IP Jillo Komba was not called as a witness. PW4, on the other hand, could not specify when the samples were taken. There is doubt whether the samples were actually taken from the appellant, as he was summoned to appear at the police station on 30/3/2023; yet, on that date, the samples were already in Kiambu.
19. The exhibit memo also did not specify who received the exhibits. CI Iranda Masiko examined the exhibits listed in the memo and prepared a Forensic Document Examiner’s report. However, he did not give evidence, and instead, the report was submitted by his colleague, Pw3.
20. There was a dispute over when the samples were taken, and if CI Iranda Masiko and IP Jillo Komba had been summoned to testify as witnesses, the appellant could have had the opportunity to cross-examine them to clarify the timing of the sample collection.
21. The appellant has denied providing a sample of handwriting. There was also no evidence that the P52 was completed by the appellant. The prosecution's evidence, namely P52 and the exhibit memo, reveals a discrepancy regarding the timing of the sample collection. Additionally, the investigating officer did not provide evidence to resolve this issue, as he was unaware of when the sample handwriting was taken. In Republic v Ali [2022] KEHC 10452 (KLR), the court stated as follows:
“…the person alleged to have prepared the exhibit memo was not called to explain the discrepancy. Such an issue upon which the success of the charge stands or falls is sufficient to create a reasonable doubt in the prosecution case. Reasonable doubt is not mere possible doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it can say it feels an abiding conviction to a moral certainty of the truth of the charge41. Further, the evidence in question is to be considered together with the rest of the evidence, which point to the occurrence of the incident and the culpability of the accused. Corroboration of the evidence is also a relevant factor. It is my finding that the inconsistency in the serial pistols serial number cannot by any stretch of imagination be described as trial or immaterial.”
22. Consequently, I find that the prosecution failed to prove beyond a reasonable doubt the offence of forgery. Although the prosecution submitted that this is a case for retrial, I think not. A retrial should not be ordered where the conviction is set aside due to insufficient evidence or to allow the prosecution to fill gaps in its case at the first trial.
23. In conclusion, I find that the conviction is unsafe, and I hereby quash it. The sentence of three years' imprisonment is also set aside. The Appellant is hereby set free forthwith unless lawfully held.
Dated, Signed and Delivered at BUNGOMA this 19 th day of March 2026.
R.E. OUGO
JUDGE
In the presence of:
Fredrick Musowo Ndiema /Appellant
Miss Matere -For the Respondent
Wilkister -C/A
HCCRA NO E140 OF 2024 - JUDGMENTHCCRA NO E140 OF 2024 - JUDGMENT HCCRA NO E140 OF 2024 - JUDGMENTHCCRA NO E140 OF 2024 - JUDGMENT 2222