REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E031 OF 2024
JOSEPH GACHOKI MWANIKI……………………..APPELLANT
VERSUS
REPUBLIC…………………………………………..RESPONDENT
(Being an appeal from the original conviction and sentence of Hon. L.W. Kabaria, PM in Gichugu Magistrates Court Criminal Case No. 407 of 2020 delivered on 19/8/2024 and 23/8/2024 respectively)
J U D G M E N T
1. The appellant was charged with the offence of cheating contrary to section 315 of the Penal Code (Cap. 63) Laws of Kenya. Particulars were that on diverse dates between 30/10/2018 and 31/12/2018 at Rwamiti Sublocation, in Kirinyaga East Sub-County within Kirinyaga County by means of fraudulent trick he induced Ruth Kavindu Gitari to pay a sum of KShs. 310,000/= in pretense that he would sell her a parcel of land title Baragwi/Raimu 3494, a fact he knew to be false.
2. The prosecution called 5 witnesses in support of its case. PW 1, Reverend Ruth Kavindu Gitari was the complainant. PW 2, Moses Gitari is the husband of PW 1. Their evidence was that the appellant, their immediate neighbor approached them with an offer to sale a portion of his parcel of land No. Baragwe/Raimu/3493 to them. On 30/10/2018 when they went before an advocate for the transaction to be made into a written agreement, the land parcel was changed from Baragwe/Raimu/3493 to Baragwe/Raimu/3494 because the former was registered in a different person’s name. They entered into an agreement for the sale with the appellant. They paid him a total of KShs 362,500/= but the transaction became a cropper as it turned out that the property Baragwe/Raimu/3494 had been charged to Bingwa Savings & Credit Co-operative Society Ltd on 31/7/2017. The transaction could therefore not be completed and the appellant failed to refund the money despite several promises. PW 3, Antony Waweru Ndambiri was a witness to the transaction. His evidence supported that of PW 1 and PW 2. PW 4, CIP Bernard Cheruiyot is a document examiner from the DCI, Nairobi. He did a forensic examination of the documents, the subject of the transaction, specifically the various signatures on the agreement of sale of land dated 30/10/2018 as well as the rubber stamp impression for P.M. Muchira advocate. Nothing much turns on this evidence. PW 5, PC Robert Mwavu was the investigating officer in the case. He interrogated the witnesses, had their statements recorded, gathered the exhibits and prepared the evidence and had the appellant arrested and charged with the offence. His evidence is basically a reiteration of what PW 1, PW 2, PW 3 and PW 4 said.
3. The appellant Joseph Gachoki Mwaniki, DW 1, gave sworn evidence in defence. He did not call another witness. He denied that he committed the offence.
4. At the end of the trial, the appellant was found guilty of the offence and he was convicted and sentenced to serve one-year imprisonment.
5. The appellant was aggrieved by the decision of the trial court and has appealed to this court based on the following grounds as per the petition dated 4/9/2024:
a. That the learned trial magistrate erred in law and in fact for failing to give effect to the terms of the written sale agreement dated 30/10/2018 which would have led to the inference that the transaction was of a civil nature and had no criminal element in it.
b. That the learned trial magistrate erred in law and in fact in casting doubt about the disclosure by the appellant on the existence of a charge over the title of the property and made this to be the basis of the conviction whereas there was a clear term of the agreement that the property was charged at the time of the agreement.
c. That the sentence was too harsh in the circumstances as the appellant was not given an option of a fine yet the offence with which he was charged was a misdemeanor.
6. He prays that the appeal be allowed, the conviction be quashed and the sentence set aside.
7. The appeal was disposed of by way of written submissions filed by both learned counsels for the appellant and the respondent.
8. This being a first appeal, the court is required to examine, analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“…it is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.”
9. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
10. I have examined and reviewed the evidence tendered before the trial court. The facts of the case are rather straightforward and undisputed.
11. The complainant and the appellant knew each other well as they are neighbours. In October 2018, the appellant approached the complainant and her husband PW 2 with an offer to sell them a parcel of land next to their gate being land parcel No. Baragwe/Raimu/3493. They agreed at a purchase price of KShs 1 million. On 30/10/2018 the parties met at advocate P.M. Muchira’s office to start the process of carrying out the sale transaction. In the course of discussions, it turned out that the complainant had obtained a certificate of official search for the land and it showed the registered owner as Isaac Njiru. Indicating that he was not aware of that turn of events, the appellant offered to sell an alternative parcel No. Baragwe/Raimu/3494. He however had no certificate of official search for this parcel but promised to make it available in two weeks. He said he wanted to use KShs 300,000/= of the money immediately to pay off an outstanding loan with Fortune Sacco Society Ltd. Being well known to PW 1 and PW 2, they agreed to his offer and an agreement for sale was drafted and executed by the parties (Exh. 1). The purchasers paid him KShs 300,000/=. The balance of KShs 700,000/= was agreed to be paid after the Land Control Board consent was made available. PW 1 subsequently paid him another KShs 62,500/= at the request of the appellant making the total amount paid KShs 362,500/=. However, in his defence, the appellant acknowledged receipt of KShs 300,000/= only.
12. Later, the complainant obtained certificates of official searches for the various parcels of land related to the appellant and it was confirmed as earlier found that Parcel No. 3493 was not registered in his name but in the name of Isaac Njiru. The rest being parcel Nos 3494, 3495, 3496 and 3497 were found to be registered in the appellant’s name but had encumbrances registered upon them. Parcel No. 3494 was charged to Bingwa Savings and Credit Co-operative Society Ltd to secure a credit of KShs 2,200,000/= on 31/7/2017 and also had registered against it a caution in favour of Charles Mwaniki Moses claiming a purchaser’s interest. The other three parcel Nos 3495, 3496 and 3497 each bore a charge in favour of Fortune Sacco Ltd to secure a sum of KShs 800,000/= and also a caution in favour of Charles Mwaniki Moses claiming a purchaser’s interest.
13. When the complainant raised the issues with the appellant, he called her on 2/2/2019 and offered to cancel the sale transaction and refund the money as they appeared not to trust him. They met at the advocate’s offices and the appellant confirmed that he was the one who had offered to cancel the transaction. He indicated that he would refund the money in two weeks but that was never to be. Subsequent promises to refund never bore any fruit.
14. In his defence, the appellant conceded that there was the land sale transaction over parcel No. Baragwe/Raimu/3494 agreed at KShs one million as the purchase price. He said that the purchasers were aware of the existence of the charge on the property and the same was captured in the sale agreement as an encumbrance. He said he received KShs 300,000/= from the complainant and at the time, there was no caution on the land. He only came to find that one had been lodged on it illegally by one Charles Mwaniki later. He later had it lifted by a court order in 2019. However, the complainant and PW 2 said they had lost interest in the transaction and demanded their money back. He was however arrested before the refund could materialize. They had failed to agree on the amount to refund as the complainant demanded KShs 600,000/= and they could not agree on who was at default.
15. In cross-examination, the appellant denied that he initially offered to sale land parcel No. Baragwe/Raimu/3493 as he said he was aware that it was not registered in his name. He said he knew Charles Mwaniki as he was the first person he had sold parcel No. Baragwe/Raimu/3493 to. He confirmed that Charles Mwaniki had sued him over the other parcels of land but he had not informed the purchasers about this at the time of the transaction. He conceded that there was no mention of a caution registered over the land in the agreement for sale.
16. There is no much dispute about the facts of the transaction as recounted by both the complainant and her witnesses and the appellant in his defence. The only issue raised by the appellant in his defence is that at the time they made the agreement for sale, the complainant was aware of the charge registered upon the property and that he was not aware of the caution registered in favour of Charles Mwaniki.
17. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the offence of cheating against the appellant beyond a reasonable doubt and convicted him accordingly.
18. Learned counsel for the appellant turned the grounds of appeal into the issues for determination and outlined them as such.
19. After setting out the provisions of section 315 of the PC under which the appellant was charged, learned counsel outlined the ingredients of the offence of cheating as being:
a. obtaining something capable of being stolen OR inducing one to deliver to any person anything capable of being stolen OR inducing one to pay or deliver to any person any money or goods or any greater sum of money or greater quantity of goods than he would have paid or delivered;
b. attaining any of the above by way of fraudulent trick or device.
20. Learned counsel submits that the prosecution did not prove any of the ingredients of the offence and particularly that it did not demonstrate the fraudulent trick used to bring about the alleged cheating.
21. Learned counsel for the respondent on his part submits that the appellant concealed some information from the complainant that the land parcel he was selling had been charged to Bingwa Sacco for a loan of KShs 2.2 million. Instead, he indicated as per the sale agreement that the land parcel he was selling was charged to Fortune Sacco Ltd for KShs 300,000/=. Due to that information, the complainant agreed to pay the first KShs 300,000/= to enable the appellant to clear the loan with the bank. The charge to Bingwa Sacco for KShs 2.2 million was confirmed through a certificate of official search for the property dated 28/1/2019.
22. I have considered the grounds of appeal preferred by the appellant and his submissions in support thereof. I have also carefully examined and re-evaluated the evidence tendered before the trial court. The issue for determination is whether or not the learned trial magistrate reached a correct finding and whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
23. Section 315 of the Penal Code under which the appellant was charged provides that;
“Any person who by means of any fraudulent trick or device obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen or to pay or deliver to any person any money or goods or any greater sum of money or greater quantity of goods than he would have paid or delivered but for such trick or device, is guilty of a misdemeanour and is liable to imprisonment for three years.”
24. For an offence of cheating contrary to section 315 of the Penal Code to be established, the prosecution has the onus of proving the following ingredients beyond any reasonable doubt:
a) the culprit,
b) by use of fraudulent trick or device:
i. obtained from any other person anything capable of being stolen, or
ii. induced any other person to deliver to any person anything capable of being stolen or
iii. induced any other person to pay or deliver to any person any money or goods or
iv. induced any other person to pay or deliver any greater sum of money or greater quantity of goods than he would have paid or delivered but for such trick or device.
25. The appellant’s case falls under part (b)(iii), that is, use of a fraudulent trick to induce any other person (the complainant) to pay to any person (the appellant) money.
26. It is the appellant’s contention that when the agreement dated 30/10/2018 for sale of the land is given effect, then this is a civil rather than a criminal matter. The evidence on record by way of the certificate of official search dated 28/1/2019 shows that as at the time of getting into the sale agreement on 30/10/2018 the subject property was charged to Bingwa Savings & Credit Co-operative Society Ltd to secure KShs 2,200,000/=. This evidence was not disputed by the appellant. He failed to touch on it in his defence at all. Contrary to that evidence the appellant made a representation to the complainant that the subject land was charged to Fortune Sacco Society Ltd and that the outstanding sum thereon was KShs 300,000/= and he required this money to pay off that debt. The complainant paid him that money.
27. On the face of it, one would say that the appellant acted fraudulently because he was aware of the true state of the subject land.
28. The complainant and the appellant knew each other well. They are neighbours. The complainant’s family had purchased the land on which they stay from the appellant’s father. When the appellant approached the complainant, he offered to sell to them land parcel No. Baragwe/Raimu/3493. This was the parcel of land that took them to the advocate’s office to make the agreement for sale. Although he denied that he offered them this parcel, I find that his denial cannot displace the strong evidence tendered in support thereof by PW 1 and supported by PW 2 and PW 3. His denial cannot be believed and I reject it. According to the complainant, unknown to the appellant, she had obtained a certificate of official search for this parcel of land and it showed that it was in fact registered in the name of Isaac Nyaga Njiru. Indeed, the certificate of official search dated 28/1/2019 in respect of that parcel confirms that it was registered in the name of Isaac Nyaga Njiru.
29. According to the complainant, the appellant alleged that he was not aware of the same and it was a mistake after which he offered parcel No. Baragwe/Raimu/3494. However, in his defence, he conceded that indeed he was aware that the land was registered in the name of Isaac Nyaga Njiru. Once again, I choose to believe the complainant rather than the appellant for the reason that he had no certificate of official search at the time unlike the complainant who had one at the time. I find no reason why would she would have troubled herself to obtain one if that was not the parcel under sale.
30. Learned counsel for the appellant argues that it was incumbent upon the purchasers to carry out a due diligence to confirm the official status of that parcel. The purchasers had in fact done exactly that for the parcel they had been offered and it was found to be registered in another person’s name. Feigning ignorance about it, the appellant quickly offered an alternative parcel.
31. PW 1 explained clearly that the appellant insisted that he required the KShs 300,000/= to settle the debt with Fortune Sacco Ltd. This was entered in the agreement for sale. He was not a stranger to them. They trusted him and gave out the money. They did not have time at that time to go carrying out a fresh search.
32. Even then, it is apparent that the appellant had charges registered upon other parcels of land in favour of Fortune Sacco Society Ltd being Nos 3495, 3496 and 3497 each for a sum of KShs 800,000/=. Only No. 3494 was the charge for KShs 2.2 million. It cannot be that he would have confused this with the others especially given that he clearly described its location and relation to the complainant’s other parcel in the agreement for sale.
33. It is clearly apparent that at the time when the parties made the sale transaction on 30/10/2018, the land was charged to Bingwa Co-operative Society and not Fortune Sacco as represented by the appellant and captured in the sale agreement. I find that this was a deliberate misrepresentation by the appellant to the intending purchasers of the land, the fact that they had not as yet carried out a due diligence notwithstanding. He could not sell that property without the involvement of Bingwa Co-operative Spcoety because he would not have been able to transfer the same to the purchasers with the charge registered thereon.
34. It is apparent that the appellant wanted money badly. He begun by offering the complainant a parcel of land which was clearly not his as it was registered in another person’s name. When the certificate of official search revealed that the land was not his, he quickly switched his offer for another parcel. He did this well knowing that the complainant and her husband had a lot of trust in him. The alternative parcel of land which he offered them No. 3494 was encumbered with a charge by Bingwa Sacco Co-op. Society Ltd yet his representation was that the charge was for Fortune Sacco Society Ltd. That was a clear fraudulent trick to induce the complainant and her husband part with the money to him.
35. The appellant was clearly purporting to sell a property which he well knew that he could not pass a good title to the complainant. The argument that the complainant would have conducted due diligence and obtained the position of the charge and the caution on the land smacks of arrogance and holds no water because the appellant had represented to the purchasers that the parcel of land was charged to Fortune Sacco and he only required KShs 300,000/= to offset the loan and it would be free. Their immediate giving him of that money meant that they were convinced that upon that payment, the appellant would repay the outstanding loan and then transfer to them the land free from the encumbrance.
36. That in fact was not the case because in the first place, the land was not charged to Fortune Sacco and then the amount outstanding was not KShs 300,000/= but KShs 2.2 million. It is therefore apparent that the appellant’s intention was to obtain the money from the complainant for his own use and not to offset any loan for that parcel of the land purportedly with Fortune Sacco Society Ltd.
37. Purporting to sell property that was encumbered and using a trick that it only had an outstanding balance of KShs 300,000/= and with Fortune Sacco Ltd when in fact the encumbrance was by Bingwa Co-op Society Ltd with an outstanding and unserviced loan of KShs 2.2 million, double the purchase price was clearly a fraud upon the complainant. The appellant would never be able to transfer it to the name of PW 1 and PW 2 as purchasers because of the undischarged charge. When it became apparent that the appellant could neither carry on with the transaction to its logical conclusion in order to pass the interest therein to the purchasers, he was unable to refund the purchase money paid so that PW 1 could not have the land they were buying, nor the money they had paid as consideration. There is no other conclusion to be drawn from that transaction on the part of the appellant other than that it was fraudulent. I am satisfied and do find that the evidence was sufficient for conviction of the appellant for the offence of cheating.
38. The issue is not just a breach of contract as submitted by leaned counsel for the appellant. The issue is on the intention of the appellant in entering into the transaction. He was incapable of giving effect to the transaction from the word go due to the encumbrance of the charge registered thereon. Although he disclosed that there was an encumbrance, he cheated that the same was a charge in favour of Fortune Sacco with an outstanding sum of Kshs 300,000/= instead of Bingwa Co-op. Society Ltd with an outstanding sum of KShs 2.2 million that had never been serviced. He offered no evidence that he had taken any initiative to discharge the charge by Bingwa Co-op. Society Ltd. It was therefore a fraud for him to purport to sale that parcel of land in the manner he did.
39. In the result, I find that the appeal on conviction is without merit and the same is dismissed.
40. The last ground was on sentence. He indicated in the grounds that he ought to have been considered for a fine considering that the offence is a misdemeanor.
41. I agree that considering that the appellant was stated to be a first offender, the amount of money involved, the parties being well known to each other and being neighbours, the appellant offering to refund the amount even if he had failed to do so previously, the option of a fine as a non-custodial sentence ought to have been considered by the trial court. He had paid a cash bail of KShs 200,000/= in court which could easily have been applied as part compensation to the complainant and the appellant given a non-custodial sentence.
42. I am aware as submitted by learned counsel for the respondent that sentencing is at the discretion of the trial court. However, where the same is shown to be harsh and excessive, the appellate court can interfere as was held in the case of Wagude v. R (1983) KLR cited by learned counsel for the respondent.
43. I have noted that the trial court called for and was provided with a victim impact statement only but not a pre-sentence report. The learned trial magistrate heavily relied on the victim impact statement to find that the complainant was yet to recover from the economic loss she suffered as a result of the offence, that no effort had been made by the offender at restitution and so he could not be said to be truly remorseful even when he had expressed his remorse through his learned counsel. The victim impact statement, which contained views of the complainant only, was thus biased towards the impact of the offence upon the victim without providing the circumstances of the offender, including the community’s attitude towards him which information would ordinarily be contained in a pre-sentence report.
44. The offence is a misdemeanor attracting a maximum of three years’ imprisonment. Such an offence for a first offender without any aggravating circumstances should attract a non-custodial sentence. It is observed under the Sentencing Policy Guidelines, 2023 paragraph 2.3.6 that:
“The prisons in Kenya are overcrowded with one of the major contributing factors being the over-utilisation of custodial sentences. Offenders serving sentences of less than three years have in most cases been convicted of misdemeanours and so may have been more suitable candidates for non-custodial sentences.”
45. This observation means that trial courts should be inclined to pass non-custodial rather than custodial sentences when the offence is a misdemeanor unless there are aggravating circumstances.
46. In the circumstances, I find that the sentence of imprisonment was harsh and excessive. The offender ought to have been given the option of a non-custodial sentence.
47. Consequently, I find that the appeal on sentence is successful. I note that this court (R. Mwongo, J), on 18/11/2024 granted the appellant mixed bail/bond terms pending appeal of KShs 500,000/= of which KShs 200,000/= was cash bail and KShs 300,000/= bond to be secured with a surety of a like sum. However, there is no indication that he managed to raise the bail/bond terms and so he is still in custody.
48. I find that the time he has served in prison is sufficient punishment for the offence of cheating contrary to section 315 of the Penal Code under the circumstances. The sentence of one-year imprisonment is substituted with a sentence of imprisonment of the time so far served. He shall be released from custody forthwith unless otherwise lawfully held.
49. Orders accordingly.
50. Right of appeal in 14 days.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 11th day of April 2025 in the presence of:
The appellant in person in court.
Jamlick Muriithi for the respondent.
Job: Court assistant.
ANDAYI W. FRANCIS
JUDGE
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E031 OF 2024
JOSEPH GACHOKI MWANIKI……………………..APPELLANT
VERSUS
REPUBLIC…………………………………………..RESPONDENT
(Being an appeal from the original conviction and sentence of Hon. L.W. Kabaria, PM in Gichugu Magistrates Court Criminal Case No. 407 of 2020 delivered on 19/8/2024 and 23/8/2024 respectively)
J U D G M E N T
1. The appellant was charged with the offence of cheating contrary to section 315 of the Penal Code (Cap. 63) Laws of Kenya. Particulars were that on diverse dates between 30/10/2018 and 31/12/2018 at Rwamiti Sublocation, in Kirinyaga East Sub-County within Kirinyaga County by means of fraudulent trick he induced Ruth Kavindu Gitari to pay a sum of KShs. 310,000/= in pretense that he would sell her a parcel of land title Baragwi/Raimu 3494, a fact he knew to be false.
2. The prosecution called 5 witnesses in support of its case. PW 1, Reverend Ruth Kavindu Gitari was the complainant. PW 2, Moses Gitari is the husband of PW 1. Their evidence was that the appellant, their immediate neighbor approached them with an offer to sale a portion of his parcel of land No. Baragwe/Raimu/3493 to them. On 30/10/2018 when they went before an advocate for the transaction to be made into a written agreement, the land parcel was changed from Baragwe/Raimu/3493 to Baragwe/Raimu/3494 because the former was registered in a different person’s name. They entered into an agreement for the sale with the appellant. They paid him a total of KShs 362,500/= but the transaction became a cropper as it turned out that the property Baragwe/Raimu/3494 had been charged to Bingwa Savings & Credit Co-operative Society Ltd on 31/7/2017. The transaction could therefore not be completed and the appellant failed to refund the money despite several promises. PW 3, Antony Waweru Ndambiri was a witness to the transaction. His evidence supported that of PW 1 and PW 2. PW 4, CIP Bernard Cheruiyot is a document examiner from the DCI, Nairobi. He did a forensic examination of the documents, the subject of the transaction, specifically the various signatures on the agreement of sale of land dated 30/10/2018 as well as the rubber stamp impression for P.M. Muchira advocate. Nothing much turns on this evidence. PW 5, PC Robert Mwavu was the investigating officer in the case. He interrogated the witnesses, had their statements recorded, gathered the exhibits and prepared the evidence and had the appellant arrested and charged with the offence. His evidence is basically a reiteration of what PW 1, PW 2, PW 3 and PW 4 said.
3. The appellant Joseph Gachoki Mwaniki, DW 1, gave sworn evidence in defence. He did not call another witness. He denied that he committed the offence.
4. At the end of the trial, the appellant was found guilty of the offence and he was convicted and sentenced to serve one-year imprisonment.
5. The appellant was aggrieved by the decision of the trial court and has appealed to this court based on the following grounds as per the petition dated 4/9/2024:
a. That the learned trial magistrate erred in law and in fact for failing to give effect to the terms of the written sale agreement dated 30/10/2018 which would have led to the inference that the transaction was of a civil nature and had no criminal element in it.
b. That the learned trial magistrate erred in law and in fact in casting doubt about the disclosure by the appellant on the existence of a charge over the title of the property and made this to be the basis of the conviction whereas there was a clear term of the agreement that the property was charged at the time of the agreement.
c. That the sentence was too harsh in the circumstances as the appellant was not given an option of a fine yet the offence with which he was charged was a misdemeanor.
6. He prays that the appeal be allowed, the conviction be quashed and the sentence set aside.
7. The appeal was disposed of by way of written submissions filed by both learned counsels for the appellant and the respondent.
8. This being a first appeal, the court is required to examine, analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“…it is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.”
9. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
10. I have examined and reviewed the evidence tendered before the trial court. The facts of the case are rather straightforward and undisputed.
11. The complainant and the appellant knew each other well as they are neighbours. In October 2018, the appellant approached the complainant and her husband PW 2 with an offer to sell them a parcel of land next to their gate being land parcel No. Baragwe/Raimu/3493. They agreed at a purchase price of KShs 1 million. On 30/10/2018 the parties met at advocate P.M. Muchira’s office to start the process of carrying out the sale transaction. In the course of discussions, it turned out that the complainant had obtained a certificate of official search for the land and it showed the registered owner as Isaac Njiru. Indicating that he was not aware of that turn of events, the appellant offered to sell an alternative parcel No. Baragwe/Raimu/3494. He however had no certificate of official search for this parcel but promised to make it available in two weeks. He said he wanted to use KShs 300,000/= of the money immediately to pay off an outstanding loan with Fortune Sacco Society Ltd. Being well known to PW 1 and PW 2, they agreed to his offer and an agreement for sale was drafted and executed by the parties (Exh. 1). The purchasers paid him KShs 300,000/=. The balance of KShs 700,000/= was agreed to be paid after the Land Control Board consent was made available. PW 1 subsequently paid him another KShs 62,500/= at the request of the appellant making the total amount paid KShs 362,500/=. However, in his defence, the appellant acknowledged receipt of KShs 300,000/= only.
12. Later, the complainant obtained certificates of official searches for the various parcels of land related to the appellant and it was confirmed as earlier found that Parcel No. 3493 was not registered in his name but in the name of Isaac Njiru. The rest being parcel Nos 3494, 3495, 3496 and 3497 were found to be registered in the appellant’s name but had encumbrances registered upon them. Parcel No. 3494 was charged to Bingwa Savings and Credit Co-operative Society Ltd to secure a credit of KShs 2,200,000/= on 31/7/2017 and also had registered against it a caution in favour of Charles Mwaniki Moses claiming a purchaser’s interest. The other three parcel Nos 3495, 3496 and 3497 each bore a charge in favour of Fortune Sacco Ltd to secure a sum of KShs 800,000/= and also a caution in favour of Charles Mwaniki Moses claiming a purchaser’s interest.
13. When the complainant raised the issues with the appellant, he called her on 2/2/2019 and offered to cancel the sale transaction and refund the money as they appeared not to trust him. They met at the advocate’s offices and the appellant confirmed that he was the one who had offered to cancel the transaction. He indicated that he would refund the money in two weeks but that was never to be. Subsequent promises to refund never bore any fruit.
14. In his defence, the appellant conceded that there was the land sale transaction over parcel No. Baragwe/Raimu/3494 agreed at KShs one million as the purchase price. He said that the purchasers were aware of the existence of the charge on the property and the same was captured in the sale agreement as an encumbrance. He said he received KShs 300,000/= from the complainant and at the time, there was no caution on the land. He only came to find that one had been lodged on it illegally by one Charles Mwaniki later. He later had it lifted by a court order in 2019. However, the complainant and PW 2 said they had lost interest in the transaction and demanded their money back. He was however arrested before the refund could materialize. They had failed to agree on the amount to refund as the complainant demanded KShs 600,000/= and they could not agree on who was at default.
15. In cross-examination, the appellant denied that he initially offered to sale land parcel No. Baragwe/Raimu/3493 as he said he was aware that it was not registered in his name. He said he knew Charles Mwaniki as he was the first person he had sold parcel No. Baragwe/Raimu/3493 to. He confirmed that Charles Mwaniki had sued him over the other parcels of land but he had not informed the purchasers about this at the time of the transaction. He conceded that there was no mention of a caution registered over the land in the agreement for sale.
16. There is no much dispute about the facts of the transaction as recounted by both the complainant and her witnesses and the appellant in his defence. The only issue raised by the appellant in his defence is that at the time they made the agreement for sale, the complainant was aware of the charge registered upon the property and that he was not aware of the caution registered in favour of Charles Mwaniki.
17. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the offence of cheating against the appellant beyond a reasonable doubt and convicted him accordingly.
18. Learned counsel for the appellant turned the grounds of appeal into the issues for determination and outlined them as such.
19. After setting out the provisions of section 315 of the PC under which the appellant was charged, learned counsel outlined the ingredients of the offence of cheating as being:
a. obtaining something capable of being stolen OR inducing one to deliver to any person anything capable of being stolen OR inducing one to pay or deliver to any person any money or goods or any greater sum of money or greater quantity of goods than he would have paid or delivered;
b. attaining any of the above by way of fraudulent trick or device.
20. Learned counsel submits that the prosecution did not prove any of the ingredients of the offence and particularly that it did not demonstrate the fraudulent trick used to bring about the alleged cheating.
21. Learned counsel for the respondent on his part submits that the appellant concealed some information from the complainant that the land parcel he was selling had been charged to Bingwa Sacco for a loan of KShs 2.2 million. Instead, he indicated as per the sale agreement that the land parcel he was selling was charged to Fortune Sacco Ltd for KShs 300,000/=. Due to that information, the complainant agreed to pay the first KShs 300,000/= to enable the appellant to clear the loan with the bank. The charge to Bingwa Sacco for KShs 2.2 million was confirmed through a certificate of official search for the property dated 28/1/2019.
22. I have considered the grounds of appeal preferred by the appellant and his submissions in support thereof. I have also carefully examined and re-evaluated the evidence tendered before the trial court. The issue for determination is whether or not the learned trial magistrate reached a correct finding and whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
23. Section 315 of the Penal Code under which the appellant was charged provides that;
“Any person who by means of any fraudulent trick or device obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen or to pay or deliver to any person any money or goods or any greater sum of money or greater quantity of goods than he would have paid or delivered but for such trick or device, is guilty of a misdemeanour and is liable to imprisonment for three years.”
24. For an offence of cheating contrary to section 315 of the Penal Code to be established, the prosecution has the onus of proving the following ingredients beyond any reasonable doubt:
a) the culprit,
b) by use of fraudulent trick or device:
i. obtained from any other person anything capable of being stolen, or
ii. induced any other person to deliver to any person anything capable of being stolen or
iii. induced any other person to pay or deliver to any person any money or goods or
iv. induced any other person to pay or deliver any greater sum of money or greater quantity of goods than he would have paid or delivered but for such trick or device.
25. The appellant’s case falls under part (b)(iii), that is, use of a fraudulent trick to induce any other person (the complainant) to pay to any person (the appellant) money.
26. It is the appellant’s contention that when the agreement dated 30/10/2018 for sale of the land is given effect, then this is a civil rather than a criminal matter. The evidence on record by way of the certificate of official search dated 28/1/2019 shows that as at the time of getting into the sale agreement on 30/10/2018 the subject property was charged to Bingwa Savings & Credit Co-operative Society Ltd to secure KShs 2,200,000/=. This evidence was not disputed by the appellant. He failed to touch on it in his defence at all. Contrary to that evidence the appellant made a representation to the complainant that the subject land was charged to Fortune Sacco Society Ltd and that the outstanding sum thereon was KShs 300,000/= and he required this money to pay off that debt. The complainant paid him that money.
27. On the face of it, one would say that the appellant acted fraudulently because he was aware of the true state of the subject land.
28. The complainant and the appellant knew each other well. They are neighbours. The complainant’s family had purchased the land on which they stay from the appellant’s father. When the appellant approached the complainant, he offered to sell to them land parcel No. Baragwe/Raimu/3493. This was the parcel of land that took them to the advocate’s office to make the agreement for sale. Although he denied that he offered them this parcel, I find that his denial cannot displace the strong evidence tendered in support thereof by PW 1 and supported by PW 2 and PW 3. His denial cannot be believed and I reject it. According to the complainant, unknown to the appellant, she had obtained a certificate of official search for this parcel of land and it showed that it was in fact registered in the name of Isaac Nyaga Njiru. Indeed, the certificate of official search dated 28/1/2019 in respect of that parcel confirms that it was registered in the name of Isaac Nyaga Njiru.
29. According to the complainant, the appellant alleged that he was not aware of the same and it was a mistake after which he offered parcel No. Baragwe/Raimu/3494. However, in his defence, he conceded that indeed he was aware that the land was registered in the name of Isaac Nyaga Njiru. Once again, I choose to believe the complainant rather than the appellant for the reason that he had no certificate of official search at the time unlike the complainant who had one at the time. I find no reason why would she would have troubled herself to obtain one if that was not the parcel under sale.
30. Learned counsel for the appellant argues that it was incumbent upon the purchasers to carry out a due diligence to confirm the official status of that parcel. The purchasers had in fact done exactly that for the parcel they had been offered and it was found to be registered in another person’s name. Feigning ignorance about it, the appellant quickly offered an alternative parcel.
31. PW 1 explained clearly that the appellant insisted that he required the KShs 300,000/= to settle the debt with Fortune Sacco Ltd. This was entered in the agreement for sale. He was not a stranger to them. They trusted him and gave out the money. They did not have time at that time to go carrying out a fresh search.
32. Even then, it is apparent that the appellant had charges registered upon other parcels of land in favour of Fortune Sacco Society Ltd being Nos 3495, 3496 and 3497 each for a sum of KShs 800,000/=. Only No. 3494 was the charge for KShs 2.2 million. It cannot be that he would have confused this with the others especially given that he clearly described its location and relation to the complainant’s other parcel in the agreement for sale.
33. It is clearly apparent that at the time when the parties made the sale transaction on 30/10/2018, the land was charged to Bingwa Co-operative Society and not Fortune Sacco as represented by the appellant and captured in the sale agreement. I find that this was a deliberate misrepresentation by the appellant to the intending purchasers of the land, the fact that they had not as yet carried out a due diligence notwithstanding. He could not sell that property without the involvement of Bingwa Co-operative Spcoety because he would not have been able to transfer the same to the purchasers with the charge registered thereon.
34. It is apparent that the appellant wanted money badly. He begun by offering the complainant a parcel of land which was clearly not his as it was registered in another person’s name. When the certificate of official search revealed that the land was not his, he quickly switched his offer for another parcel. He did this well knowing that the complainant and her husband had a lot of trust in him. The alternative parcel of land which he offered them No. 3494 was encumbered with a charge by Bingwa Sacco Co-op. Society Ltd yet his representation was that the charge was for Fortune Sacco Society Ltd. That was a clear fraudulent trick to induce the complainant and her husband part with the money to him.
35. The appellant was clearly purporting to sell a property which he well knew that he could not pass a good title to the complainant. The argument that the complainant would have conducted due diligence and obtained the position of the charge and the caution on the land smacks of arrogance and holds no water because the appellant had represented to the purchasers that the parcel of land was charged to Fortune Sacco and he only required KShs 300,000/= to offset the loan and it would be free. Their immediate giving him of that money meant that they were convinced that upon that payment, the appellant would repay the outstanding loan and then transfer to them the land free from the encumbrance.
36. That in fact was not the case because in the first place, the land was not charged to Fortune Sacco and then the amount outstanding was not KShs 300,000/= but KShs 2.2 million. It is therefore apparent that the appellant’s intention was to obtain the money from the complainant for his own use and not to offset any loan for that parcel of the land purportedly with Fortune Sacco Society Ltd.
37. Purporting to sell property that was encumbered and using a trick that it only had an outstanding balance of KShs 300,000/= and with Fortune Sacco Ltd when in fact the encumbrance was by Bingwa Co-op Society Ltd with an outstanding and unserviced loan of KShs 2.2 million, double the purchase price was clearly a fraud upon the complainant. The appellant would never be able to transfer it to the name of PW 1 and PW 2 as purchasers because of the undischarged charge. When it became apparent that the appellant could neither carry on with the transaction to its logical conclusion in order to pass the interest therein to the purchasers, he was unable to refund the purchase money paid so that PW 1 could not have the land they were buying, nor the money they had paid as consideration. There is no other conclusion to be drawn from that transaction on the part of the appellant other than that it was fraudulent. I am satisfied and do find that the evidence was sufficient for conviction of the appellant for the offence of cheating.
38. The issue is not just a breach of contract as submitted by leaned counsel for the appellant. The issue is on the intention of the appellant in entering into the transaction. He was incapable of giving effect to the transaction from the word go due to the encumbrance of the charge registered thereon. Although he disclosed that there was an encumbrance, he cheated that the same was a charge in favour of Fortune Sacco with an outstanding sum of Kshs 300,000/= instead of Bingwa Co-op. Society Ltd with an outstanding sum of KShs 2.2 million that had never been serviced. He offered no evidence that he had taken any initiative to discharge the charge by Bingwa Co-op. Society Ltd. It was therefore a fraud for him to purport to sale that parcel of land in the manner he did.
39. In the result, I find that the appeal on conviction is without merit and the same is dismissed.
40. The last ground was on sentence. He indicated in the grounds that he ought to have been considered for a fine considering that the offence is a misdemeanor.
41. I agree that considering that the appellant was stated to be a first offender, the amount of money involved, the parties being well known to each other and being neighbours, the appellant offering to refund the amount even if he had failed to do so previously, the option of a fine as a non-custodial sentence ought to have been considered by the trial court. He had paid a cash bail of KShs 200,000/= in court which could easily have been applied as part compensation to the complainant and the appellant given a non-custodial sentence.
42. I am aware as submitted by learned counsel for the respondent that sentencing is at the discretion of the trial court. However, where the same is shown to be harsh and excessive, the appellate court can interfere as was held in the case of Wagude v. R (1983) KLR cited by learned counsel for the respondent.
43. I have noted that the trial court called for and was provided with a victim impact statement only but not a pre-sentence report. The learned trial magistrate heavily relied on the victim impact statement to find that the complainant was yet to recover from the economic loss she suffered as a result of the offence, that no effort had been made by the offender at restitution and so he could not be said to be truly remorseful even when he had expressed his remorse through his learned counsel. The victim impact statement, which contained views of the complainant only, was thus biased towards the impact of the offence upon the victim without providing the circumstances of the offender, including the community’s attitude towards him which information would ordinarily be contained in a pre-sentence report.
44. The offence is a misdemeanor attracting a maximum of three years’ imprisonment. Such an offence for a first offender without any aggravating circumstances should attract a non-custodial sentence. It is observed under the Sentencing Policy Guidelines, 2023 paragraph 2.3.6 that:
“The prisons in Kenya are overcrowded with one of the major contributing factors being the over-utilisation of custodial sentences. Offenders serving sentences of less than three years have in most cases been convicted of misdemeanours and so may have been more suitable candidates for non-custodial sentences.”
45. This observation means that trial courts should be inclined to pass non-custodial rather than custodial sentences when the offence is a misdemeanor unless there are aggravating circumstances.
46. In the circumstances, I find that the sentence of imprisonment was harsh and excessive. The offender ought to have been given the option of a non-custodial sentence.
47. Consequently, I find that the appeal on sentence is successful. I note that this court (R. Mwongo, J), on 18/11/2024 granted the appellant mixed bail/bond terms pending appeal of KShs 500,000/= of which KShs 200,000/= was cash bail and KShs 300,000/= bond to be secured with a surety of a like sum. However, there is no indication that he managed to raise the bail/bond terms and so he is still in custody.
48. I find that the time he has served in prison is sufficient punishment for the offence of cheating contrary to section 315 of the Penal Code under the circumstances. The sentence of one-year imprisonment is substituted with a sentence of imprisonment of the time so far served. He shall be released from custody forthwith unless otherwise lawfully held.
49. Orders accordingly.
50. Right of appeal in 14 days.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 11th day of April 2025 in the presence of:
The appellant in person in court.
Jamlick Muriithi for the respondent.
Job: Court assistant.
ANDAYI W. FRANCIS
JUDGE