1. The Appellant was charged with two counts, one being fraudulently procuring the registration of a land title deed contrary to Section 103 (1) (c) (i) of the Land Registration Act and the other being forgery of a document of the title deed to land contrary to Section 350(1) of the Penal Code.
2. Upon the conclusion of the prosecution case, the trial court took the position that the Appellant had a case to answer as can be seen from the Ruling of 22nd November 2021.
3. In exercise of his right under Section 306 (3) as read with Section 311 of the Criminal Procedure Code, the Appellant did not adduce evidence and the trial court proceeded to deliver Judgment on 3rd February 2022 where it convicted him of both Count I and III. The Appellant would later on 14th February 2022 be sentenced to a fine of Kshs. 180,000/= and in default serve 3 years imprisonment for Count I and serve 5 years imprisonment for Count II.
4. Aggrieved by this series of events, the Appellant proffered an Appeal before this Court against both the Conviction and Sentence. The grounds of appeal are;
(a) In passing its Sentence, the Learned trial magistrate exceeded her jurisdiction by imposing a fine of Kshs. 180,000/= and in the alternative the Appellant herein to serve 3 years imprisonment in one Count and imprisonment for a term of 5 years in another Count in manifest contradiction to Section 7 of the Criminal Procedure Code.
(b) The Learned Trial Magistrate erred in law and in fact in finding the Appellant guilty of the offence of forging a document of title to land when all the essential Trial ingredients of the offence were not proved.
(c) The Learned Trial Magistrate erred in law and in fact in finding the Appellant guilty of the offence of procuring the registration of the title deed when all the essential ingredients of the offence were not proved.
(d) The Learned Trial Magistrate violated Section 169(2) of the Criminal Procedure Code by failing to specify which section of the Penal Code the Appellant was convicted.
(e) The learned Trial Magistrate erred in law in failing to consider and pronounce himself on the circumstances prevailing during the period during which the offences were alleged to have happened.
(f) The learned Trial Magistrate misconstrued himself in law and in fact by failing to reevaluate how it was concluded that it was only the Appellant who would be charged in a Court of Law over a document originating from of public office.
(g) The learned Trial Magistrate gravely misdirected himself in Law and in fact in failing to appreciate that the prosecution was obligated to prove beyond reasonable doubt from which office the forged Title Deed was issued.
(h) The Learned Trial Magistrate erred in law and in fact in convicting the Appellant for the offence of forging a document of title to land when no evidence was adduced to prove that the Appellant was tasked with the responsibility of issuance of Title Deeds which remains a reserve of the Registrar of Lands.
(i) The Learned Trial Magistrate erred in law and in fact in finding the Appellant guilty of the offence of forging a document of title to land whereas the circumstances under which the Appellant obtained the same Title Deed did not lend credence to the assertion that he forged the Title Deed noting that he remained silent though out the trial and such forged Title Document was never produced in Court.
(j) The Learned Trial magistrate misdirected himself in law and in fact in convicting the Appellant whilst failing to appreciate that the prosecution did not adduce sufficient evidence to establish, to the required standard of proof beyond reasonable doubt that the Appellant was guilty of the offences he was charged with.
(k) The Learned Trial Magistrate erred in law and in fact by failing to observe that the evidence of exhibit adduced was manifestly suspicious and there was constructive material nondisclosure.
(l) The Learned Trial Magistrate misdirected himself in law and in fact by finding that the prosecution had proved its case beyond reasonable doubt.
(m) The Learned Trial magistrate erred both in law and fact by meting a manifestly harsh and cruel sentence against the Appellant whit considering all the circumstances.
5. The matter proceeded by way of submissions.
6. I will analyze each of the grounds of appeal alongside the evidence to establish if the offences were proved to the right standard.
7. Section 345 of the penal Code expresses that “forgery is the making of a false document with intent to defraud or deceive.
8. The seriousness of the offence of forgery, particularly forgery of a document of title to land such as the one Appellant before you was charged with and convicted for, is to be found in Section 350 (1) of the Penal Code. The said Section provides the punishment for the said offence being “imprisonment for life”.
9. The essential ingredients of the offence of forgery whilst placing reliance on the definition alluded to above are: -
a) The actual act of making false documents;
b) The said act of making the false document is by the accused (read the Appellant); and
c) The intent to defraud or deceive.
10. The Respondent submitted that the case was proven beyond reasonable doubt as required by law as follows:-
a) Count 1: - Fraudulent procuring registration of land title deed contrary to Section 103 9 1 0 (c) (i) of the Land Registration Act No. 3 of 2012 Laws of Kenya.
Section 103. (1) (c) (i) of the Land Registration Act No. 3 of 2012 provides that: -
“A person who – (c) fraudulently procures (i) the registration or issue of any certificate of ownership, or any other document or instrument relating to the land ... commits an offence and is liable on conviction to a fine not exceeding five million shillings or imprisonments for a term not exceeding five years or to both such fine and imprisonment.”
11. The main issue in this charge is the false representation of facts made by the Appellant to the Land Registry with the intention of procuring the registration of land Title Number Mutara/Mutara Bock II/217 (URUKU) as its sole rightful proprietor. This evidence has been proven as follows: -
12. The totality of the evidence of PW3, PW5, PW7, PW9, PW10 and PW12 is that one had to produce a share certificate, clearance certificate and ballot.
13. The share certificate No. 641 presented by the accused showed the name of Gladys Muthoni Gatere which was cancelled out. The accused did not shed light on who Gladys Muthoni Gatere was. The document examiner found that the signatures on the said document were made by different authors when compared with the known signatures of the officials alleged to have signed the document.
14. The clearance certificate in the name of the caused (P EXH. 19) was also found not to be a forgery when subjected to forensic document examination. The clearance certificate also relates to plot number 217 yet the accused was registered for plot number 217.
15. All the witnesses testified to the effect that plot number 217 belonged to the late Gichu Muteru by virtue of receipts showing that the deceased had paid for the said parcel of land (P EXH. 3, 17 and 18); Gichu Mucheru’s copy of ID indicated his identification number as 1833317/64 which was captured under entry 217 in the registers produced in court.
16. Count 2 was that of Forgery of a document of the title deed to land contrary to section 350 (1) of the penal Code.
17. Section 350(1) of the Penal Code provides that: -
“Any person who forges any will, document of title to and, judicial record, power of attorney, banknote, currency note, bill of exchange, promissory note or other negotiable instrument, policy of insurance, cheque or other authority for the payment of money by a person carrying on business as a banker, is liable to imprisonment for life, and the court may, in addition, order that any such document as aforesaid shall be forfeited.”
18. Section 345 of the Penal Code defines forgery as “making false documents with intent to defraud or to deceive.”
19. “According to the particulars of the offence, the Appellant forged the signature and stamps imprecision of the land Registrar (Joseph Kinyanjui Mundia) on the title for land reference number Mutara/Mutara/ Bock II/217 (URUKU). This has been proven as follows; -
20. To prove this charge, we have the evidence of PW9 where he denied that he signed the title deed in the Appellant’s name as shown to the said title.
21. The evidence of the document examiner, PW8, stated that after subjecting the document to examination against the sample signature and stamp impression of PW9, the Appellant was found to have been the sole beneficiary of the forged document. He was given a chance to rebut the evidence by the state and he opted to keep quiet. The trial court found that the signature and stamp impression on the title was not that of PW9. It was a forged document and as pointed out above all the elements of the offence were proved,
22. The trial court set the main issues for determination as to whether the prosecution has proved its case against the accused person beyond any reasonable doubt. In the first Count, the accused is charged with fraudulent procuring registration of a land title deed contrary to section 103 (1) (c) (i) of the Land Registration Act, 2012 which provides as follows: -
“A person who –
(a) ….
(b) …..
(c) Fraudulently procures –
(i) The registration or issue of any tile or certificates of lease ownership, or any other document or instrument relating to the land;
(d) ……….
(e) Suppresses or conceals from the Registrar, or any authorized officer exercising powers under this act, or assists or joins in so doing any material document, factor matter, commits an offence and is liable on conviction to a fine not exceeding five million shillings or imprisonment for a term not exceeding five years or to both such fine and imprisonment.”
23. He then said what is fraud in relation to fraudulent procurement of registration of land tile deed. The term fraud is defined in Black’s Law Dictionary by Bryan A. Garner, 8th Edition, as follows: -
“A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment; a misrepresentation made recklessly without belief in its truth to induce another person to act …”
24. Fraud thus consists of some deceitful practice with intent to deprive another of his or her right or in some manner to do him or her an injury. Applying the above definition, the question now is whether the prosecution has proved that the accused person fraudulently procured registration of LR No. Mutara/Mutara/ Bock II/217 (Uruku) through misrepresentation of facts and deceitful acts with the intent to deprive the rightful owners of that land. The copy of the title deed produced as P. exhibit 8 shows the accused person as the registered owner of the land having been registered as such on 28/7/2011.
25. This interpretation is further inline with the findings of the Appellate Court of Judge R. E. Aburili in Elizabeth Achieng’ Ng’ang’a vs Republic [2018] eKLR, which, drawing from the High Court of India’s Sukanti Choudry vs Sttate of Orisa, found that the ingredients necessary for an offence of such nature is;
a. That the document must be forged;
b. That the accused must use such document as genuine;
c. That the accused knew or had reason to believe that it was a forged document; and
d. That the accused used it fraudulently or dishonestly, knowing or having reason to believe that it was a forged document.
26. The findings of the Appellate Court in Charles Gitonga Kioki v Republic 2021 Eklr also considered the element of misrepresentation with knowledge of the particular misrepresented document being forged as the decisive factor in its determination of a violation of this provision.
27. The record shows that court was taken through the process of acquiring a titled deed by members of Othaya Mahiga Chinga Exffaco Limited. Some of the documents which the land registries relied upon are the member registered, are certificates, clearance certificates among other documents. They then asked Did the accused person present the requisite documents for the registration of the land in his name? It is to be noted that the accused did not give evidence in this matter which was within his constitutional right. It thus means the accused did not give an explanation of the court as to the process they went through up until the time they was registered as the owner of the disputed land.
28. Section 111(1) of the Evidence Act places the burden of proving any fact on a person, especially within the knowledge of said fact to such person. As stated, the appellant’s father died in the year 2005. The deceased’s land was subdivided in the year 2013 using a forged mutation and forged consent. Part of the deceased’s land was transferred to the appellant using forged documents. In the common course of human conduct, all these could not have taken place without the knowledge and approval of the appellant. The forgeries can only have taken place with the connivance of the appellant. Similarly, his defence that he was just called by the lands office to collect his title deed cannot have been true. Somebody must have moved the lands office to prepare the tile deed. It is only the appellant who could have done so. The presumption is therefore that the appellant and others not before court forged the documents.
29. The accused person was found in actual possession of the forged title deed. although none saw him preparing the forged title deed, the fact that it was found in his possession means that the forgery took place with the connivance of the accused person. Someone must have moved the land registry Nanyuki to prepare the subject tile deed and that person must be the caused person. Accused did to give an explanation how the forged title deed found its way into his possession and the inevitable presumption is that it is him and others not before court who forged the document with the sole intention of defrauding the rightful owners of the piece of land number Mutarsa/Mutara Block II/ 217.
30. It is my finding thereof that the prosecution has also proved two count against the Appellant and the trial court arrived at the correct finding.
31. The Appellant also submitted that the trial court violated section 169(2) of the Criminal Procedure Code by failing to specify which section of the Penal Code the accused was convicted.
32. The respondent’s position was that;
“While it is true that the trial court did not specify the section of the Penal Code the accused was convicted, the trial court stated that the accused was convicted of Count 1 which is a charge under section 103 (1) (c) (i) of her land Registration Act No. 3 of 2012 laws of Kenya. On the other hand, Count 2 under section 350(1) of the penal code.
The charge sheet was read to the Appellant, and he understood under what section of the law he was being charged he cannot allege that he was prejudiced by the trial court's failure to state under which provisions of the law he was convicted but merely sting that he has been convicted in Count 1 and Count 2.”
33. Only the Appellant was charged over a document originating from public office which is the reserve of the Registrar of Lands.
The Appellant’s charge as relates to the document of title that originates from the registrar’s office was in Count 2 for forgery.
The particulars stated that “the Appellant …. jointly with others not before the court, with intent to steal, forged certain document namely Title Deed for land reference No. Mutara/Mutara Block II/217 (URUKU)…” The facts are stated in such a way that the Appellant had liaised with others not before the court in forging the title document, which would be staff at the registry.
It is from this point that the investigating officer collected sample signature and stamp impression for the registrar of lands (J.K MNdia ) who signed the title off to verify that the registrar was not a party to the illegal transaction. If his signature would have matched that on the title, he would have definitely been charged.
The court is satisfied that the Appellant was fully aware of the charges he was facing and what he was convicted for, his right to a fair trial was not breached
34. The other ground was that the evidence of exhibits produced was suspicious and there was constructive material non- disclosure.
The court notes that trial was conducted in the presence of the accused who was properly represented by his advocate. The advocate had the chance to cross-examine the witness and especially on the documents that were produced. As such, the appellant cannot allege at this point that there was no constructive material disclosure yet his advocate did not raise this issue at any point during the trial nor did he object to the production of any document. The appellant has not been prejudiced in any way by the production of the said documents as his advocate had the chance to cross-examine the witnesses on the same. The court therefore finds no substance on this ground
35. The final ground was that the Resident magistrate exceeded her mandate in meeting out the sentence. Section 7 (2) of the CPC and as expounded in the case of Ceceli Lelito VS Republic is clear that the maximum sentence a Resident Magistrate can give in such a case is 3 years . Each side made lengthy submissions under this head.
36. I have looked at the sentence and definitely it was beyond what the Magistrate ought to have given. That gives this court reason to interfere with the sentence imposed as the trial magistrate exceeded her jurisdiction. I must point out that the trial had proceeded up to the Judgment stage under Hon D.M IRERI SRM AND HON.M WANJA only handed the sentence The record however, at page 118 , shows that the appellant was sentenced on 14.2.2024 and that the sentence was reviewed and a ruling delivered on 28.2.2022. I do not have the particulars of the said review. None of the two sides brought it up.
37. Under the circumstances, the court finds that the Appeal on sentence succeeds.
38. This is however subject to the confirmation of the existence or otherwise of the Review of the sentence. If the sentence herein was reviewed, then that sentence GIVEN UNDER REVIEW will stand. If on the other hand there was no review, then the file be placed before the Head of station Nyeri CMS COURT for resentencing.
39. The trial file be mentioned on 26th September 2024 before the deputy registrar Nyeri for purposes of confirming if the sentence was reviewed.
40. The upshot is that the appeal on conviction fails and is dismissed on the two counts but the Appeal on sentence succeeds and the trial courts sentence is set aside. The resentencing is however subject to confirmation of the existence in the review sentence
DATED , SIGNED and delivered virtually this 31st day of July 2024.
WENDY KAGENDO
JUDGE
PRESENT
APPELLANT AND HIS ADVOCATE MR MAHUGU
MS MAINA AND MR MWANGI FOR THE STATE