NAFTALI GETHI WANJUGU VS The Republic NAFTALI GETHI WANJUGU VS The Republic

(Being an appeal from the judgment delivered on 26/7/2021 by Hon. Kagendo C.M. in Nyeri Magistrates Court Criminal Case No. 1227 of 2021)

The appellant, Naftali Gethi Wanjugu was charged with the offence of obtaining by false pretences contrary to section 313 of the Penal Code that on diverse dates between 8/1/2019 and 16/5/2019 in Nyeri township, within Nyeri County, with intent to defraud obtained KShs 550,000/= from Kevin Kingori Wangeci by falsely pretending that he was in a position to buy for him a good second hand matatu, a fact he knew to be false or did not believe to be true.
The appellant pleaded not guilty. The case proceeded to a full trial. He was found guilty and convicted in a judgment dated 29/6/2021. He was subsequently sentenced to probation for a period of two years and further that he facilitates the transfer of the subject motor vehicle to the complainant and further that he compensates the complainant to the tune of KShs 200,000/=.
The appellant was dissatisfied with the judgment, conviction and sentence of the trial court and preferred an appeal through a petition of appeal dated 25/8/2021. He cited six grounds indicating that the trial magistrate erred in law and in fact:
1. by failing to appreciate that the charged facts lacked the necessary ingredients to constitute the offence as charged or at all;
2. in finding that an offence was disclosed by the facts and evidence on record while none existed.
3. in basing the judgment on conjectures, assumptions and speculations thus formulating a judgment that was against the weight of the evidence and the law;
4. in failing to consider the appellant’s defence and;
5. the sentence was excessive and unreasonable.
This appeal was disposed of by way of written submissions filed by both parties.
On a first appeal this court is required to subject the entire evidence adduced before the trial court to a fresh evaluation and analysis and draw its conclusions, but remaining alive to the fact that it neither saw nor heard any of the witnesses and so cannot comment on their demeanor. In the case of Okeno vs. Republic (1972) EA 32 where the Court of Appeal for Eastern Africa stated that:

“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya V R [1975] E.A. 336)) and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala V. R [1957] E.A. 570). It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see (Peters V Sunday Post [1978] E.A. 424).”

The prosecution called three witnesses to support the charge. PW 1, Kelvin Kingori Wangechi is the complainant and a step son of the appellant; PW 2, Teresa Wangechi Kingori is the mother of the complainant and wife of the appellant and PW 3, CIP Raymond Malel was the investigating officer.
When placed on his defence the accused person gave sworn evidence and denied that he committed the offence.
The facts of the case are straightforward. It is not disputed that on various dates between 9/1/2019 and 16/5/2019 money passed from the complainant to the appellant, twice by way of cheques and once by way of cash deposit into the appellant’s account with Taifa Sacco. It is also not disputed that the appellant was working as a matatu driver and PW 2, his wife was working in the same industry at the Nyeri stage either as a clerk to one of the matatu Saccos or a tout as the appellant put it. It is also not disputed that the accused person purchased motor vehicle registration number KAS 908W and began operating it.
According to the complainant’s evidence which is supported by that of his mother PW 2, the complainant gave the appellant the money in order to purchase for him a used matatu in order for the complainant to start a matatu business. The appellant indeed applied the money to purchase a matatu registration number KAS 908W. However, he declined to have the same registered in the complainant’s name. Instead, he had it registered in his name. At the time of his arrest, the appellant was operating the matatu for business in his name.
The appellant on his part said that the complainant gave him the money as a gift in appreciation of the fact that the appellant had assisted in paying his school fees while the complainant was a student at Multi Media University. He applied the proceeds to pay for fees for the accused younger brother who was also studying law at university and undertake other family projects jointly with his wife, PW 2. He obtained his own funds and purchased the matatu, the subject of the charge herein, which he was operating in his name at the time of arrest.
However, differences arose between him and his wife. He wanted the wife to leave town and go back to their rural home in Naromoru which they had established and were developing together. The wife declined and insisted on staying in Nyeri town. The complainant supported the mother that she would not move to the village. The situation became hostile and the appellant moved to Naromoru. The appellant was eventually arrested and charged for the offence herein.
I have considered the grounds of appeal, the submissions by both parties and the evidence tendered at the trial of the appellant. I find the issues for determination in this appeal to be as follows:
1. Whether the prosecution proved its case against the appellant beyond a reasonable doubt.
2. Whether the trial court failed to consider the appellant’s defence.
3. Whether the sentence imposed by the trial court upon the appellant was lawful and/or warranted.
The offence of obtaining by false pretences as provided for under section 313 of the Penal Code is proved when the prosecution establishes each of the following ingredients beyond a reasonable doubt:
1. obtaining something capable of being stolen.
2. obtaining the thing through a false pretence.
3. obtaining the thing with an intention to defraud.
Learned counsel for the appellant submits that the learned trial magistrate misapplied the law by failing to appreciate that all the elements of the offence of obtaining by false pretences had not been proved by the prosecution.
He has cited various decisions under the English law to underscore his submissions.
The first ingredient is easy to dispose of as there is no dispute that the appellant obtained KShs 550,000/= from the complainant. I am satisfied and find that this ingredient was proved beyond a reasonable doubt.
The second ingredient is obtaining the thing through false pretence. It is this ingredient that is contested by the appellant. He maintains that the money was given to him as a gift by the complainant. His position is however denied by both the complainant and his mother PW 2 both who say that the money was for him to purchase the vehicle for the complainant.
The complainant’s evidence that he gave the appellant money for purchase of a matatu and not as a gift is supported by that of PW 2. I have no reason to doubt these two witnesses and I believe they are witnesses of truth. Throughout the trial, there was no indication by the appellant that the two had any reason to fabricate a case against him.
False pretense is defined under section 312 of the Penal Code and it has been explained in various authorities (see the case of Joseph Wanyonyi Wafukho v Republic [2014] eKLR) to bear the following ingredients:

a) A representation of fact by word, writing or conduct;

b) The representation is either past or present;

c) The representation must be false; and

d) The person made the representation knowing it to be false or did not believe it to be true.

In the case of Gerald Ndoho Munjuga v Republic [2016] eKLR these ingredients are extensively discussed by the High Court. In that case, Mativo, J. (as he then was) held that:

“The offence of obtaining by false pretence means knowingly obtaining another person's property by means of a misrepresentation of fact with intent to defraud. For the offence of obtaining by false pretences to be committed, the prosecution must prove that the accused had an intention to defraud and the thing is capable of being stolen. An inducement on the part of an accused to make his victim part with a thing capable of being stolen or to make his victim deliver a thing capable of being stolen will expose the accused to imprisonment for the offence.”

A key element of the offence is inducement by the accused person to the complainant to part with the ownership of the thing. In the present case, the complainant asked the appellant to help in purchasing a vehicle, the appellant agreed that he was able to and indeed he sourced for one and purchased it. The prosecution’s case is that the appellant purchased the vehicle using the money he obtained from the complainant. The appellant says those were his funds he had been saving over time.
I am not persuaded by the appellant’s story, just like the trial court, that he purchased the vehicle using his own funds. I find it untenable. It could not have been a coincidence that immediately the complainant made the final deposit of KShs 150,000/= on 15/5/2019, the appellant immediately decided on a vehicle to purchase using his own funds. It is only logical to conclude that he had sourced for the vehicle and he was waiting for the money from the complainant and once the final bit came in, he went and paid for the same, had the agreement drawn and then took possession of the vehicle.
I am satisfied from the evidence from the appellant and his mother that the money used to purchase the vehicle came from the complainant. It was not a gift as alleged by the accused person but it was given specifically for purchase of a vehicle.
Learned counsel for the appellant submits that the trial court erred in finding that the moment of deception occurred when the appellant registered the vehicle in his name and not that of the complainant and yet the deception must precede the obtaining. He has cited the case of Regina v Collins-Smith [1971] EWCA Crim 1. What was charged in this case was obtaining the money and not the vehicle. It was not the vehicle but the money.
The point is, was there a false representation by the appellant that he would purchase a vehicle for the complainant using the funds that he had been entrusted with? It is difficult for me to find in the affirmative because the appellant indeed purchased the vehicle using the funds given to him by the complainant and he was operating it all along while staying as a family with the complainant and his mother and wife of the appellant.
The prosecution’s argument is that all along, he never had the intention to pass over ownership of the vehicle to the complainant and that he intended that it be his.
What the appellant did, to me would amount to conversion of the vehicle meant to be for the complainant into his when he registered it in his name. But it was not making a false representation about the nature of the transaction that he entered into with the complainant.
There does not appear to have been a false pretence as envisaged in section 312 of the Penal Code or intention to defraud the money on the part of the appellant herein. The ingredients of fraud were also absent. The ingredients are false representation of a fact with the intention that the other party should act on it and that party suffers damage. Concealment of a material fact to induce another party to act on false misrepresentation is another important ingredient (see the case of Charles Mutua Mutemi v Republic [2022] eKLR).
Whereas PW 1 appeared to have suffered damage as the vehicle was not registered in his name as was his wish the prosecution did not adduce any evidence to demonstrate that the appellant herein made a false representation of an existing fact, that he intended PW 1 to act on that false representation, that PW 1 acted on false representations made by the appellant, if at all and which this court found not to have been present. The prosecution failed to demonstrate that the appellant concealed a material fact to induce PW 1 to act on false representation.
The reason for so finding is that, the complainant and the mother appear to have left the appellant to be in control of the vehicle all along. It should be remembered that the appellant was a matatu driver employed and once he purchased this vehicle, he left his employment and he started operating the vehicle. PW 2 conceded in cross-examination that the proceeds of the business were used to support the family. Indeed, there is no indication that the complainant was receiving the proceeds of his investment as he alleged. I find it quite possible that whereas it is true that the funds for the purchase of the vehicle came from the complainant, the parties have not been candid on how the vehicle was to be operated. So that when differences arose between the appellant and his wife about relocating upcountry, it became obvious that part of the family source of income was being taken away by the appellant and that irked the complainant and most probably his mother, the accused person’s wife. This is why it took so long to have the matter reported to the police. In fact, the vehicle was only impounded after it was detained at the police station for a different issue. Otherwise, the appellant was always enjoying the use of it.
The upshot is that I find that the trial court fell in error both in law and fact in finding the appellant guilty on a charge which was not supported by evidence. This is a borderline case which should have entitled the appellant to the benefit of doubt and therefore an acquittal by the trial court.
Consequently, I find that the charge of obtaining money through false pretences was not proved beyond a reasonable doubt as required by law. For the said reasons, I allow the appeal; quash the conviction and set aside the sentence imposed including the orders of transfer of the vehicle and compensation of the complainant. If the vehicle is still being held at the police station then it be released to the appellant since it was taken there from him in a different matter. However, if it has since been released to either of the parties, that will require a civil suit to change hands again. Whoever has it will retain it for the reason that I have found above that the funds used to purchase it came from the complainant and appellant had possession and control of it at the time of his arrest but with the blessings of the complainant.
The complainant may perhaps wish to have a try in a civil court on the tort of conversion if he is convinced that he can prove his case on a balance of probability rather than the high standard of beyond a reasonable doubt in a criminal case. But again, seeing that this is a family, the better thing to do is to sort out the matter amicably by way of negotiation.
Execution of the sentence imposed upon the appellant was stayed by this court. The appellant will therefore continue to enjoy his liberty, his conviction having been quashed.

Dated and delivered at Nyeri on the Virtual Platform, Teams, this 15^th day of July 2024 in the presence of:

King’ori for the appellant.

Kaniu (Ms) for the respondent.

Etropia Court assistant.