'
( Being an Appeal from the Judgment of the Hon. J. Omburah (SPM)at the Chief Magistrate’s Court Milimani Criminal Case No. 255 of 2013 delivered
on 22 nd March 2021)
BACK GROUND
1 st Accused Joshua Maina Kabuthia alias Michael, 2 nd Accused Maina Karanja & 3 rd Accused Hesbon Ongetta Momanyi were jointly charged with 10 assorted offences of conspiracy to defraud contrary to Section 317 of Penal Code; Forgery c/s 350 (1) of Penal Code; making a document with intent defraud c/s 357 (a) Penal Code; Uttering a Document with intent to defraud c/s 353 of Penal Code & Obtaining money by false pretenses c/s 313 of Penal Code.
TRIAL COURT EVIDENCE
The evidence before Trial Court Hon. T. Murigi CM was as follows;
PW1 Esther Njambi Kangethe, resident of Zimmerman asked the painter in her house to find out if there was land to buy. The painter, Chalo brought her one John Kamau, who told her that owner of Land parcel No 116/276 authorized him to sell the land. The owner was Julius Irungu Waiharo.
PW1 met John Kamau, Chalo (Painter) Sammy Machogu, Mugo & Kihoro and she was shown New Roysambu Housing Coop Society Ltd Receipts No 1721 of 30/3/76 & No 2139 of 4/3/76 issued to Julius Irungu Kihoro & ID all produced Exh 3A & 3B & 4 respectively. The sale purchase price was Ksh 2.5 m and he needed to consult family first. Later, PW1, Julius Kihoro, Maina Karanja went to the Society’s offices and confirmed Julius Kihoro was owner of the suit property for sale. PW1 went to Ardhi House 4 th Floor and the Allotment Letter & Share Certificate were confirmed to belong to Julius Kihoro.
PW1 went to Registration of Persons Bureau and confirmed Copy of ID No 1865472 belonged to Julius Kihoro. Thereafter, the seller, Julius Kihoro said that his family agreed to purchase price of Ksh 2m.PW1 paid Ksh 58,000/- to Land Office -Receipt Exh 15.
Julius Kihoro took PW1 to Advocate OH Momanyi and each paid Ksh 25,000/- and Sale Agreement was drawn – Exh 16.
PW1 paid total of Ksh 1,875,000/- through Bank Transfer Equity bank Moi Avenue Branch OH Momanyi & Co Adv Acc No 0240291466290; Ksh 58,000/- Land Rates and Ksh 50,000/- to Julius Kihoro. 2 Agreements for Sale were drawn 1 st Agreement for Ksh 2,000,000/- and 2 nd Agreement for Ksh 800,000/-. PW1 took the Agreement, Allotment & Certificate to Lands Office many times but not transfer was done. PW1 was told to go with the seller & was to bring letter from the Society. Julius Kihoro had disappeared for 3 months.
PW1 went to Advocate Momanyi who stated Julius Kihoro was suffering diabetes.
PW1 went to Lands Office found one Phyllis who demanded the letter and she met Michael Kinuthia and Maina 2 nd Accused person. They told her to go to Advocate Momanyi to get the letter which he gave her dated 4/9/2012 to take to Roysambu Housing Exh 12. The 1 st & 2 nd Accused persons demanded Ksh 200,000/- to issue her with Title. PW1 paid Ksh 100,000/- and then Ksh 70,000/- They gave her Certificate of Lease for NBI/Block 116/276 of 7/10/1999 Exh 13 & Lease document registered on 8/9/1999 Exh 14.
PW1 went with 1 st Accused person to Lands Office, paid Ksh 45,000/- Valuation Fees & Ksh 32,040/- Stamp Duty. Thereafter, PW1 met Phyllis who told her the documents were fake and she was to bring the seller. The Lease & title Deed were fake.
After 1 year, PW1 met the real Kihoro genuine owner of the Suit property and they went to the Chief who was not in . The ID cards were identical. They extorted more funds from her; she paid Ksh 50,000/- to 1 st & 2 nd Accused persons; PW1 deposited Ksh 150,000/- in 2 nd Accused person’s Account No 004500001546 Equity Bank Githurai Branch and later Ksh 50,000/- on 18/9/2012 and Ksh 100,000/- on 21/9/2012 and they wrote Agreements to that effect. PW1 was to pay further Ksh 400,000/- but had no funds.
10. PW1 reported the matter at Kasarani Police Station, the Accused persons were summoned but no action was taken. Later, 2 nd Accused paid her Ksh 200,000 vide cheque and agreed to pay Ksh 270,000/- later.
11. PW1 reported the matter to Nairobi Area Police and investigations were underway culminating with arrest & arraignment of the 3 Accused persons in Court charged with various charges highlighted above.
12. PW2 Sammy Mandela Gachugu; neighbour and friend to PW1 testified and confirmed he accompanied PW1 to the Roysambu Society offices to confirm sale documents from Julius Irungu Kihoro who claimed to be seller of the Plot NBI block 116276 and found the 2 nd Accused, Maina Karanja, a neighbour too, in the Society’s office. PW2 told PW1 to confirm identity of seller with Registrar of Persons and she came with document duly stamped that 1 st Accused was seller. PW2 accompanied PW1 to 3 rd Accused’s offices, Advocate OH Momanyi Advocates, where they all met seller 1 st Accused person with his witnesses and brokers. The Agreement for Sale was prepared and he signed as witness Purchase price was Ksh 2m he was not part of price negotiations.
13. PW 2 witnessed PW1 make various payments and went and did electronic transfer of Purchase price to Mr Momanyi’s Account of Ksh 1, 875,000/- and the funds were for 1 st Accused person who was accompanied by 2 men Kamau & Wa Muthee. After 2 weeks, PW1 called PW2 to take her to the Society’s offices; 2 nd Accused Maina Karanja & PW1 paid Ksh 100,000/- Later, 1 st & 2 nd Accused person came to her house and she called him to witness them having brought title in PW1’s name.
14. Later, someone reported to the Chief that someone PW1 was building on their Plot. As Chairman of the Community, he enquired and found it was the real Julius Irungu Kihoro who appeared younger, taller than the 1 st Accused who posed as owner who did not have front teeth. The Transfer of Lease Exh 11 from 1 st Accused person to PW1and stamped by the 3 rd Accused Momanyi Advocate was fake. PW1 paid Ksh 2m for sale of land.
13. PW3 Bernard Kipkemoi Letich from Ministry of Lands Nairobi testified that CID wrote letter dated 5/12/2012 Exh 12 and sought information history of ownership of Land Parcel NBI/Block 116/276; certified copies of green card, certified copy of letter of allotment and certified copy of letter of lease and any other relevant information or letter/document. By letter by his colleague dated 20/12/2012 Exh 28 which indicated registered owner as Julius Irungu Kihoro of Box 74657 Nairobi leased from GOK for 99 years lease as shown by Green card opened on 18/12/2012 for Portion 0.0347 hectares. White Card Exh 34 Letter in Response Green Card and other documents Exh 28, 29, 33& 34 were genuine from Lands Office. Exh 31 & 32 were not from Lands Office.
14. PW4 Julius Irungu Kihoro, Purchaser/owner of 3 Parcel Numbers 276, 987 & 1077 purchased on 7/9/1976 and registered with New Roysambu Land Company and he paid over the years by instalments; he produced receipts of payments made for purchase price, survey fees Advocates Fees from Maosa Advocates & processing of Title documents.
15. PW4 found on the ground encroachment onto the properties he reported to New Roysambu Company Treasurer Joshua Maina & Security Maina Karanja (both 1 st & 2 nd Accused persons respectively) and after investigations, PW1 was fencing Nairobi Block 116/276.PW1 called the Chief and both produced documents of ownership and PW1 confirmed PW4 had not sold her the property yet the documents ID card and names of seller were similar.
16. PW5 CI Iranda Masiku; Foresic Document Examiner, examined the questioned document, Copy of Lease with known signatures C1 -C2 specimen signatures of one Julius Irungu Kihoro and Specimen signature of Commissioner of Lands & the signatures were not by the same hand. The documents were not genuine.
17. PW6 Filbert Liwa from Registrar of Persons on 8/6/2016 received from CID HQ letter Exh 39 ID 18654472 with attached form with fingerprints impressions- Form P20 Exh 40(a) & ID card of Julius Irungu Kihoro No 18654472. A search confirmed the name Julius Irungu Kihoro ID 1865472 and confirmed extract of register from our office to confirm that ID belongs Julius Irungu Kihoro and it has its particulars and finger prints impressions P Exhibit 42.
18. PW7 CPL Samuel Kamau of DCI Investigation Officer received Complainant Esther Njambi Kangethe, PW1 who reported Julius Irungu Kihoro selling Parcel Land Nairobi Block 116/276 situated in Zimmerman. To prove ownership he provided Lease Certificate of New Roysambu Housing Co Ltd in the name of Julius Irungu Kihoro dated 19/4/79. He carried out investigations of 1 st & 2 nd Accused persons lodging documents and that were found by expert witnesses to be fake and forged despite PW1having made various payments over and above purchase price to 1 st & 2 nd Accused persons.
19. PW8 No 57399 PC David Kweomi Ndiema of Land Fraud Investigations DCIO HQ testified that he took over the matter when colleagues were transferred and during hearing, PW3 Bernard Kipkemoi Letich testified and pointed to 1 of Accused persons appearing in the documents, Defense Counsel pointed to the real owner of the property PW4 Julius Irungu Kihoro. He later took his fingerprints and Statement recording and copy of ID card and took to Registrar of Persons who confirmed to be bona fide owner of the property.
20. The Accused persons were placed on their Defenses;1st Accused was Treasurer later Secretary of Waisambu Housing Cooperative Society and narrated how he denied receipt of any monies by PW1 to him. 1st Accused admitted refund of Ksh 200,000/- vide cheque as another person with similar names came claiming same property.
21. 2 nd Accused Secretary of Roysambu Cooperative Society claimed that PW1 came to ask for clearance letter to enable her process a title and that PW1 came with a Certificate and claimed she bought from Julius Irungu Kihoro and he knew nothing about the transfer. He knew nothing of the Ksh 2 million as he was not given the money and he did not forge any lease certificate from Ardhi House.
22. 3 rd Accused/Appellant stated that on 9/12/2009, PW1 Complainant and Julius Irungu Kihoro; came to his office; St Georgis House within Parliament Road, Nairobi and requested he draws a Sale Agreement and they came with a witness. They brought Allotment Letter Exh 3, Payment Receipt for Plot No. Nairobi Block 116/276 Exh 3(a) & (b) for New Roysambu Housing Company Ltd and Certificate of the Company Exh 6.
23. He drew Sale Agreement of Ksh 2m and was advised to draw another Agreement for Ksh 800,000/- by Kariuki who was to assist in transfer of the property to Purchaser’s name. 3 rd Accused advised them to check with Lands Office the rates pending for payment. The 2 nd Agreement was by Kariuki and he witnessed the Complainant and seller Julius Irungu Kihoro as they appeared before him and gave him Identity cards and they had their witnesses too.
24. The Purchase price Ksh 1,875,000/- was deposited in his Account Equity Bank AC 0240291466290 Harambee Avenue Branch Exh 9 deposited by PW1 buyer Esther Njambi Kangethe for onward transmission to the seller. He was paid Ksh 50,000/- by PW1 and he spent Ksh 20,000/- during the meeting and the rest was to settle rates at Lands Office. He paid the seller Ksh 1,835,000/- as per discharge D Exh 2. His role ended there.
25. 2 years thereafter; 14/9/2012, PW1 and witnesses/parties came to his office and asked him to confirm that Julius Irungu Kihoro sold property to PW1 and sought clearance from Roysambu Housing Co. He prepared the letter PExh 12 and all parties signed, Samuel Mandela Gachugu & John Kamau Mwangi but Julius Irungu Kihoro failed to turn up.
26. A year later, he was summoned to DCI Headquarters to confirm that he witnessed the Complainant PW1 & Julius Irungu Kihoro transact in his office, he was locked up and next day he was arraigned in Court charged with witness in Criminal Case 314/2013 with 2nd Accused and later consolidated with the present matter.
27. He was charged with conspiracy to defraud Ksh 2m together with 2 nd Accused person which was not true, he did not meet 2 nd Accused until they were charged together in the matter. The 3 rd Accused person stated that he did not participate in any of meetings for purchase of property until the parties came to his office. He was not instructed to conduct due diligence as parties had resolved the same prior to coming to his office. He did not negotiate, sell, transfer any property, the parties agreed then came to his office and handed him documents and he prepared the Sale Agreement. Before being arraigned in Court 1 in this matter, he was sued in Civil Case ELC 776 of 2012 as 5 th Defendant.
28, The Trial Court delivered judgment on 22/3/2021 and found All/Each of the Accused persons guilty as charged in Counts 2,5,6,7,8,9 & 10 under Section 215 CPC . On 1/4/2021after Pre-sentence proceedings the Trial Court sentenced each of Accused persons Ksh 50,000/- fine in default 6 months imprisonment for each of the Counts found guilty.
PETITION OF APPEAL
On 13th October 2021 Hesbon Ongetta Momanyi, 3 rd Accused person; the Appellant herein filed a Petition of Appeal with 14 grounds of appeal condensed as follows;
1. Convicting the Appellant not withstanding that he was an advocate working in the ordinary course of his duties and failed to take judicial notice of the mandatory provisions and in contravention of Section 80 of the Advocates Act.
2. Finding-that the prosecution had established prima facie case against the Appellant on entirely wrong principles and key ingredients of the offences the appellant was facing were proved in accordance with the required standards of proof beyond any reasonable doubt. The offence of conspiracy to defraud contrary to section 317 of the Penal Code without proof of the salient ingredients of the offence-conspiracy to defraud.
3. Count-one-was-defective-and-untenable in law in the circumstances hence conviction on it was unsafe.
4 . The Complainant had done due diligence in ascertaining the identity of the seller and verified her ownership documents from the relevant authorities before going to the Appellant''s office for making and executing a sale agreement accompanied by the seller and their respective witnesses, therefore the appellant''s role as conveyancing lawyer was limited. The Appellant had no prior knowledge, that the documents presented to him were fake and had no mechanism of detecting their status particularly when the complainant and the seller checked their validity together at the land buying company before executing sale agreement hence conviction was without basis and unsafe.
5. The offence of making a document without authority with intent to defraud contrary to Section 357(a) of the Penal Code disregarding the evidence on record without justifiable reason that the complainant and the seller had appeared together at the appellant''s office with their express authority to attest/witness the signing of transfer of lease against their affixed photos (passport size) in the ordinary cause of his duties as an Advocate.
6. Convicting the Appellant on the offence of obtaining money by false pretenses contrary to section 313-of the Penal Code as detailed in Count 9 thereby failing to appreciate that the appellant''s involvement in the sale agreement in question was in the ordinary cause of his duty as an Advocate between complainant and seller who received money for onward transmission to the seller.
7. Failing to take into account the defense and uncontroverted evidence adduced by the appellant thereby disregarded and refused to see, consider, examine and evaluate such evidence and attached authorities or decisions from the Court of Appeal and the High Court.
8. Failing to note and consider that crucial witness the Painter and one Samuel Kamau who linked the Complainant and the Seller were never called by Prosecution to shed more light on the origin of the transaction in question.
SUBMISSIONS BY THE APPELLANT
“On diverse dates between 1991 – 2009 at unknown place within the Republic of Kenya jointly with others not before court conspired with intent to defraud ESTHER NJAMBI KANGETHE Kshs.2,000,000 by purporting that you were in position to sell her a piece of land Nairobi/Block/116/276 a fact you knew not to be false”.
Points to Note
The charge is defective ‘a fact you knew not to be false.’ This is ambiguous, it is not clear as what is meant and the same was not amended hence conviction on the same is not safe.
The period of conspiracy is 18 years.
The complainant expressed intention to purchase land in 2009 to her painter – Kyalo.
The painter introduced one John Kamau Mwangi to the complainant Esther Njambi Kangethe.
The said John Mwangi introduced the seller Julius Irungu Kihoro to the complainant.
There were series of meetings between the seller, the complainant and other people in the absence of the appellant.
I rely in the case of;
Bukenye and others vs. Uganda [1972] EA 549 where the court stated;
“ In our view, the failure by the prosecution to call crucial witness weakened their case to an extent that they failed to prove the case against the appellant beyond reasonable doubt as required in criminal cases. The gap created by failure of the prosecution to call important witness is a doubt where benefits we must give to the appellant which we hereby do.”
Points to Note
It is in evidence that the complainant and the seller presented themselves before me in my office with the transfer of lease already prepared for witnessing.
They both signed the transfer willingly in my presence.
I only witnessed their signing their authority to do so.
I did not execute/witness signing of the transfer on behalf of another person.
There is no evidence that I intended to defraud or deceive anybody and I did the witnessing as a conveyance lawyer not a beneficiary, a seller or otherwise.
Ingredients of Making a Document
The document was made by accused person.
The document must be intended to deceive or defraud.
The making, signing or execution was done without authority.
5. The complainant buyer and seller both willingly signed the transfer in my presence hence the charge cannot stand as there is no evidence that I made the transfer on behalf of Julius Irungu Kihoro.
The prosecution did not prove that the document was made by me and I made the same on behalf of another person hence they failed to prove their case beyond any reasonable doubt. The drawer of the transfer documents is not known nor was he disclosed.
6. Points to Note
There are two (2) sale agreements between the complainant and one Julius Irungu Kihoro.
The land parcel is Nairobi Block 116/276.
Purchase price in the two agreements is Kshs.2,000,000/= and Kshs.800,000/= (contractual)
The complainant and the seller both signed the said agreements together with their respective witnesses – the intention was to sell and purchase.
Ground 1
7. It is my submission that there was no complaint lodged against me as per the provisions of section 80 of the Advocate Act hence referring the same to the Tribunal as proposed but the prosecution is overtaken by events.
WRITTEN SUBMISSIONS BY THE RESPONDENT
In the appeal the issue for determination is whether in the whole transaction of the land sale agreement in question, the appellant did an overt act/act that resulted in commission of offences of conspiracy, fraud and forgery. The answer to that question is founded on the scope of limitation of the advocate’s role when undertaking or pursuing duties of profession nature in line with his duties as an advocate.
A section of the Advocates Act Cap 16 Laws of Kenya, provides in sub-section (1) that a complaint against an Advocate of professional misconduct, which expression includes disgraced or dishonorable conduct incompatible with the status of an advocate may be made to the tribunal by any person. Under sub-section (3) the advocate may then be required to appear before the tribunal and file a response if any.
Section 55 of the said Act highlights savings of disciplinary powers of court. It says; nothing in this Act shall supersede, lessen or interfere with the powers vested in the Chief Justice or any of the Judges of the court to deal with misconduct or offences by an advocate, committed during, or in the course of, or relating to proceedings before the Chief Justice or any Judge.
In brief, the alleged conduct of the appellant amounted to professional misconduct, if sufficiently proved, and the right forum to deal with the same would be by way of a duly constituted tribunal pursuant to the provisions of section 60 of the Advocates Act Cap 16 Laws of Kenya. That is the remedy laid down, available to an aggrieved party who has suffered loss and damage due to professional misconduct by an Advocate, while acting in the course of his ordinary duties. One tried and found guilty the penalty is provided under those provisions.
Authority in Support of Respondents Submissions
Court of Appeal at Nairobi.
Criminal appeals Nos. 118, 120 of 1981.
(Appeal from the High Court at Kisumu. Seriven J. 1985 KLR. Makokha vs . Republic )
The appellants were jointly charged in Resident Magistrate’s Court under section 308(1) of the penal code (Cap.63) in that they were found with dangerous weapons with intent to commit a felony of robbery with violence. The prosecution alleged that the complainants had encountered the appellants at a bridge who attacked them with pangas and ran away. The appellants denied the charge and stated in their defence that they hadn’t known each other prior to their arrests. After they were convicted and sentenced, the appellants appealed to the High Court asserting their earlier defences. The Judge purporting to act under section 352 (2) of the CPC (Cap 75) summarily rejected the appeals. The appellants appealed against this summary rejection to the Court of Appeal.
The Court held that; It follows that where 2 or more persons are jointly charged with an offence under Section 308 (1) of the Penal Code, an essential ingredient of the offence must be proof of a common intention between the persons charged jointly to commit a specific felony in future.
The assertion by the Appellant that they were strangers to each other amounted to a contention that they could not jointly, acting in concert, have formed the intention or made preparation to commit a felony.
ANALYSIS & DETERMINATION
The Court considered the Trial Court record, Petition of Appeal and detailed submissions made herein on behalf of the Appellants and the Respondents. This appeal lies on whether the prosecution proved its case against the Appellant, 3 rd Accused to the required legal standard, and in particular, whether the Prosecution proved all the essential ingredients of the charges preferred against 3 rd Accused person/Appellant, Counts 1,2,3,4,5 & 9.
As first appellate court, the court is obligated to re-evaluate the evidence afresh, and make its own conclusions bearing in mind that it did not have the advantage of hearing and observing the demeanor of the witnesses as elaborated in the case of Okeno vs. Republic [1972] E.A 32 .
It is trite that all criminal offences require proof beyond reasonable doubt. In Peter Wafula Juma & 2 Others v Republic [2014] eKLR ; Court referred to
Viscount Sankey L.C in the case of H.L. (E)* WOOLMINGTON V DPP [1935] A.C 462 pp 481 on legal burden of proof in criminal matters, that;
‘Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception…No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’
Lord Denning in Miller vs. Ministry of Pensions (1947) 2 All ER, 372 stated as follows:
“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.”
With regard to Count1the 3 rd Accused person jointly with 1 st & 2 nd Accused persons were charged with the offence hereinbelow;
Section 317 of the Penal Code provides for Conspiracy to defraud as states as follows:
“Any person who conspires with another by deceit or any fraudulent means to affect the market price of anything publicly sold, or to defraud the public or any person, whether a particular person or not, or to extort any property from any person, is guilty of a misdemeanor and is liable to imprisonment for three years.”
Shah v Republic (Criminal Appeal E070 of 2021) [2024] KEHC 837 (KLR) (25 January 2024) (Judgment) The case-law relating to proof of the offence of conspiracy c/s 317 Penal Code is as follows;
Ronald Kiptoo Yator vs Republic 2019 eKLR, the Court observed;
This court agrees with the Appellant’s counsel that for the offence of conspiracy to defraud to be complete evidence must be adduced to show that there existed an agreement, consent or combination of the two or more persons.
For that proposal, the Appellant’s counsel relied on the case of Christopher Wafula Makhoha –vs- Republic [2014] eKLR. This court agrees with the holding in that case where the court (Mabeya J) held that the charge of conspiracy to defraud must involve two or more persons and not a single accused person.
Evanson Mwangi Kihumba v Republic [2022] eKLR , the Court considered conspiracy as; In Black Law Dictionary 9th Edition at page 351 Conspiracy is defined as follows;
“ An agreement by two or more persons to commit an unlawful act coupled with an intent to achieve the agreements motive, and (in most cases), action or conduct that furthers the agreement; a combination for unlawful purpose.
The agreement may be proved in the usual way or by proving circumstances which the jury may presume it. Proof of the existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in principle of an apparent criminal purpose in common between them.”
The High Court in Ann Wangechi Mugo & 6 others v Republic [2022] eKLR also elaborated on how to prove conspiracy and held as follows:
“To prove a conspiracy, the prosecution had to establish that the respondents together with others, agreed by common mind to defraud the complainant. The inference must be made both from the actions of the accused and the evidence tendered in court (see Republic Vs Anne Atieno Abdul & Others [2017] Eklr
In Abdi & another v Republic (Criminal Appeal E033 of 2020) [2024] KEHC 8021 (KLR), the court held as follows;
“167.Having evaluated the evidence adduced, I find that the trial was well guided in its finding on conspiracy. The intention of the conspirators cannot be supported by direct evidence “for not even the devil knoweth the mind of man”. Conspiracy by its nature is an opaque offence heavily guarded and clouded.
168.It is not easy to find direct evidence and indeed part of commission the offence is to conceal the evidence. Thus, if the court were to insist on direct evidence per se, no one will be convicted of the offence. The knowledge and involvement in the offence can be inferred from the conduct of the parties with a common desire to commit a criminal offence”
7. The prosecution ought to prove beyond reasonable doubt, common intention among between the Accused persons that depict knowledge, consent and/or agreement to act in concert to achieve desired or earmarked illegal or unlawful outcome through deceit, dishonesty or fraud.
8. In the instant case, evidence on record PW1 & PW2 stated, that the meeting and discussions on sale and purchase of suit property was by PW1 enquiring from her Painter Kyalo who brought on board one John Kamau, who told her that owner of Land parcel No 116/276 authorized him to sell the land. The owner was Julius Irungu Waiharo & Sammy Machogu Mugo & Kihoro &PW1 went to Ardhi House 4th Floor and the Allotment Letter & Share Certificate were confirmed to belong to Julius Kihoro. PW1 went to Registration of Persons Bureau and confirmed Copy of ID No 1865472 belonged to Julius Kihoro who took PW1 to Advocate OH Momanyi.
9. At the 3 rd Accused Person’s office, Agreements were drawn based on documents that were handed over to Advocate to draw the Sale Agreement. It is also confirmed that 2 Agreements were drawn 1 st for Ksh 2m and the other for 800,000/- which one Kamau/Karanja brought prepared requiring signage and witnessing.
10. The 3 rd accused/Appellant conceded the parties came to his office the Agreement for 2 m he drew and Agreement for Ksh 800,000/- already prepared and he executed both documents. The Sale Agreement was drawn from documents given to him by parties and which PW1 had confirmed to be genuine as per her testimony; they went to Roysambu Housing Coop Ltd Checked with Lands/Ardhi House and Registrar of Persons BEFORE going to 3 rd Accused person’s office.
11. Secondly, the 3 rd Accused received monies on behalf of Seller 1 st Accused person and the funds were deposited in his Account and after signing Sale Agreement released funds to Seller, 1 st Accused person. Thereafter, when 1 st Accused disappeared, the Parties came to 3 rd Accused person’s office, he told them the 1 st Accused /seller was sick, he did not hide or ran away or refuse to talk engage with them.
12. Late
[...truncated]
( Being an Appeal from the Judgment of the Hon. J. Omburah (SPM)at the Chief Magistrate’s Court Milimani Criminal Case No. 255 of 2013 delivered
on 22 nd March 2021)
BACK GROUND
1 st Accused Joshua Maina Kabuthia alias Michael, 2 nd Accused Maina Karanja & 3 rd Accused Hesbon Ongetta Momanyi were jointly charged with 10 assorted offences of conspiracy to defraud contrary to Section 317 of Penal Code; Forgery c/s 350 (1) of Penal Code; making a document with intent defraud c/s 357 (a) Penal Code; Uttering a Document with intent to defraud c/s 353 of Penal Code & Obtaining money by false pretenses c/s 313 of Penal Code.
TRIAL COURT EVIDENCE
The evidence before Trial Court Hon. T. Murigi CM was as follows;
PW1 Esther Njambi Kangethe, resident of Zimmerman asked the painter in her house to find out if there was land to buy. The painter, Chalo brought her one John Kamau, who told her that owner of Land parcel No 116/276 authorized him to sell the land. The owner was Julius Irungu Waiharo.
PW1 met John Kamau, Chalo (Painter) Sammy Machogu, Mugo & Kihoro and she was shown New Roysambu Housing Coop Society Ltd Receipts No 1721 of 30/3/76 & No 2139 of 4/3/76 issued to Julius Irungu Kihoro & ID all produced Exh 3A & 3B & 4 respectively. The sale purchase price was Ksh 2.5 m and he needed to consult family first. Later, PW1, Julius Kihoro, Maina Karanja went to the Society’s offices and confirmed Julius Kihoro was owner of the suit property for sale. PW1 went to Ardhi House 4 th Floor and the Allotment Letter & Share Certificate were confirmed to belong to Julius Kihoro.
PW1 went to Registration of Persons Bureau and confirmed Copy of ID No 1865472 belonged to Julius Kihoro. Thereafter, the seller, Julius Kihoro said that his family agreed to purchase price of Ksh 2m.PW1 paid Ksh 58,000/- to Land Office -Receipt Exh 15.
Julius Kihoro took PW1 to Advocate OH Momanyi and each paid Ksh 25,000/- and Sale Agreement was drawn – Exh 16.
PW1 paid total of Ksh 1,875,000/- through Bank Transfer Equity bank Moi Avenue Branch OH Momanyi & Co Adv Acc No 0240291466290; Ksh 58,000/- Land Rates and Ksh 50,000/- to Julius Kihoro. 2 Agreements for Sale were drawn 1 st Agreement for Ksh 2,000,000/- and 2 nd Agreement for Ksh 800,000/-. PW1 took the Agreement, Allotment & Certificate to Lands Office many times but not transfer was done. PW1 was told to go with the seller & was to bring letter from the Society. Julius Kihoro had disappeared for 3 months.
PW1 went to Advocate Momanyi who stated Julius Kihoro was suffering diabetes.
PW1 went to Lands Office found one Phyllis who demanded the letter and she met Michael Kinuthia and Maina 2 nd Accused person. They told her to go to Advocate Momanyi to get the letter which he gave her dated 4/9/2012 to take to Roysambu Housing Exh 12. The 1 st & 2 nd Accused persons demanded Ksh 200,000/- to issue her with Title. PW1 paid Ksh 100,000/- and then Ksh 70,000/- They gave her Certificate of Lease for NBI/Block 116/276 of 7/10/1999 Exh 13 & Lease document registered on 8/9/1999 Exh 14.
PW1 went with 1 st Accused person to Lands Office, paid Ksh 45,000/- Valuation Fees & Ksh 32,040/- Stamp Duty. Thereafter, PW1 met Phyllis who told her the documents were fake and she was to bring the seller. The Lease & title Deed were fake.
After 1 year, PW1 met the real Kihoro genuine owner of the Suit property and they went to the Chief who was not in . The ID cards were identical. They extorted more funds from her; she paid Ksh 50,000/- to 1 st & 2 nd Accused persons; PW1 deposited Ksh 150,000/- in 2 nd Accused person’s Account No 004500001546 Equity Bank Githurai Branch and later Ksh 50,000/- on 18/9/2012 and Ksh 100,000/- on 21/9/2012 and they wrote Agreements to that effect. PW1 was to pay further Ksh 400,000/- but had no funds.
10. PW1 reported the matter at Kasarani Police Station, the Accused persons were summoned but no action was taken. Later, 2 nd Accused paid her Ksh 200,000 vide cheque and agreed to pay Ksh 270,000/- later.
11. PW1 reported the matter to Nairobi Area Police and investigations were underway culminating with arrest & arraignment of the 3 Accused persons in Court charged with various charges highlighted above.
12. PW2 Sammy Mandela Gachugu; neighbour and friend to PW1 testified and confirmed he accompanied PW1 to the Roysambu Society offices to confirm sale documents from Julius Irungu Kihoro who claimed to be seller of the Plot NBI block 116276 and found the 2 nd Accused, Maina Karanja, a neighbour too, in the Society’s office. PW2 told PW1 to confirm identity of seller with Registrar of Persons and she came with document duly stamped that 1 st Accused was seller. PW2 accompanied PW1 to 3 rd Accused’s offices, Advocate OH Momanyi Advocates, where they all met seller 1 st Accused person with his witnesses and brokers. The Agreement for Sale was prepared and he signed as witness Purchase price was Ksh 2m he was not part of price negotiations.
13. PW 2 witnessed PW1 make various payments and went and did electronic transfer of Purchase price to Mr Momanyi’s Account of Ksh 1, 875,000/- and the funds were for 1 st Accused person who was accompanied by 2 men Kamau & Wa Muthee. After 2 weeks, PW1 called PW2 to take her to the Society’s offices; 2 nd Accused Maina Karanja & PW1 paid Ksh 100,000/- Later, 1 st & 2 nd Accused person came to her house and she called him to witness them having brought title in PW1’s name.
14. Later, someone reported to the Chief that someone PW1 was building on their Plot. As Chairman of the Community, he enquired and found it was the real Julius Irungu Kihoro who appeared younger, taller than the 1 st Accused who posed as owner who did not have front teeth. The Transfer of Lease Exh 11 from 1 st Accused person to PW1and stamped by the 3 rd Accused Momanyi Advocate was fake. PW1 paid Ksh 2m for sale of land.
13. PW3 Bernard Kipkemoi Letich from Ministry of Lands Nairobi testified that CID wrote letter dated 5/12/2012 Exh 12 and sought information history of ownership of Land Parcel NBI/Block 116/276; certified copies of green card, certified copy of letter of allotment and certified copy of letter of lease and any other relevant information or letter/document. By letter by his colleague dated 20/12/2012 Exh 28 which indicated registered owner as Julius Irungu Kihoro of Box 74657 Nairobi leased from GOK for 99 years lease as shown by Green card opened on 18/12/2012 for Portion 0.0347 hectares. White Card Exh 34 Letter in Response Green Card and other documents Exh 28, 29, 33& 34 were genuine from Lands Office. Exh 31 & 32 were not from Lands Office.
14. PW4 Julius Irungu Kihoro, Purchaser/owner of 3 Parcel Numbers 276, 987 & 1077 purchased on 7/9/1976 and registered with New Roysambu Land Company and he paid over the years by instalments; he produced receipts of payments made for purchase price, survey fees Advocates Fees from Maosa Advocates & processing of Title documents.
15. PW4 found on the ground encroachment onto the properties he reported to New Roysambu Company Treasurer Joshua Maina & Security Maina Karanja (both 1 st & 2 nd Accused persons respectively) and after investigations, PW1 was fencing Nairobi Block 116/276.PW1 called the Chief and both produced documents of ownership and PW1 confirmed PW4 had not sold her the property yet the documents ID card and names of seller were similar.
16. PW5 CI Iranda Masiku; Foresic Document Examiner, examined the questioned document, Copy of Lease with known signatures C1 -C2 specimen signatures of one Julius Irungu Kihoro and Specimen signature of Commissioner of Lands & the signatures were not by the same hand. The documents were not genuine.
17. PW6 Filbert Liwa from Registrar of Persons on 8/6/2016 received from CID HQ letter Exh 39 ID 18654472 with attached form with fingerprints impressions- Form P20 Exh 40(a) & ID card of Julius Irungu Kihoro No 18654472. A search confirmed the name Julius Irungu Kihoro ID 1865472 and confirmed extract of register from our office to confirm that ID belongs Julius Irungu Kihoro and it has its particulars and finger prints impressions P Exhibit 42.
18. PW7 CPL Samuel Kamau of DCI Investigation Officer received Complainant Esther Njambi Kangethe, PW1 who reported Julius Irungu Kihoro selling Parcel Land Nairobi Block 116/276 situated in Zimmerman. To prove ownership he provided Lease Certificate of New Roysambu Housing Co Ltd in the name of Julius Irungu Kihoro dated 19/4/79. He carried out investigations of 1 st & 2 nd Accused persons lodging documents and that were found by expert witnesses to be fake and forged despite PW1having made various payments over and above purchase price to 1 st & 2 nd Accused persons.
19. PW8 No 57399 PC David Kweomi Ndiema of Land Fraud Investigations DCIO HQ testified that he took over the matter when colleagues were transferred and during hearing, PW3 Bernard Kipkemoi Letich testified and pointed to 1 of Accused persons appearing in the documents, Defense Counsel pointed to the real owner of the property PW4 Julius Irungu Kihoro. He later took his fingerprints and Statement recording and copy of ID card and took to Registrar of Persons who confirmed to be bona fide owner of the property.
20. The Accused persons were placed on their Defenses;1st Accused was Treasurer later Secretary of Waisambu Housing Cooperative Society and narrated how he denied receipt of any monies by PW1 to him. 1st Accused admitted refund of Ksh 200,000/- vide cheque as another person with similar names came claiming same property.
21. 2 nd Accused Secretary of Roysambu Cooperative Society claimed that PW1 came to ask for clearance letter to enable her process a title and that PW1 came with a Certificate and claimed she bought from Julius Irungu Kihoro and he knew nothing about the transfer. He knew nothing of the Ksh 2 million as he was not given the money and he did not forge any lease certificate from Ardhi House.
22. 3 rd Accused/Appellant stated that on 9/12/2009, PW1 Complainant and Julius Irungu Kihoro; came to his office; St Georgis House within Parliament Road, Nairobi and requested he draws a Sale Agreement and they came with a witness. They brought Allotment Letter Exh 3, Payment Receipt for Plot No. Nairobi Block 116/276 Exh 3(a) & (b) for New Roysambu Housing Company Ltd and Certificate of the Company Exh 6.
23. He drew Sale Agreement of Ksh 2m and was advised to draw another Agreement for Ksh 800,000/- by Kariuki who was to assist in transfer of the property to Purchaser’s name. 3 rd Accused advised them to check with Lands Office the rates pending for payment. The 2 nd Agreement was by Kariuki and he witnessed the Complainant and seller Julius Irungu Kihoro as they appeared before him and gave him Identity cards and they had their witnesses too.
24. The Purchase price Ksh 1,875,000/- was deposited in his Account Equity Bank AC 0240291466290 Harambee Avenue Branch Exh 9 deposited by PW1 buyer Esther Njambi Kangethe for onward transmission to the seller. He was paid Ksh 50,000/- by PW1 and he spent Ksh 20,000/- during the meeting and the rest was to settle rates at Lands Office. He paid the seller Ksh 1,835,000/- as per discharge D Exh 2. His role ended there.
25. 2 years thereafter; 14/9/2012, PW1 and witnesses/parties came to his office and asked him to confirm that Julius Irungu Kihoro sold property to PW1 and sought clearance from Roysambu Housing Co. He prepared the letter PExh 12 and all parties signed, Samuel Mandela Gachugu & John Kamau Mwangi but Julius Irungu Kihoro failed to turn up.
26. A year later, he was summoned to DCI Headquarters to confirm that he witnessed the Complainant PW1 & Julius Irungu Kihoro transact in his office, he was locked up and next day he was arraigned in Court charged with witness in Criminal Case 314/2013 with 2nd Accused and later consolidated with the present matter.
27. He was charged with conspiracy to defraud Ksh 2m together with 2 nd Accused person which was not true, he did not meet 2 nd Accused until they were charged together in the matter. The 3 rd Accused person stated that he did not participate in any of meetings for purchase of property until the parties came to his office. He was not instructed to conduct due diligence as parties had resolved the same prior to coming to his office. He did not negotiate, sell, transfer any property, the parties agreed then came to his office and handed him documents and he prepared the Sale Agreement. Before being arraigned in Court 1 in this matter, he was sued in Civil Case ELC 776 of 2012 as 5 th Defendant.
28, The Trial Court delivered judgment on 22/3/2021 and found All/Each of the Accused persons guilty as charged in Counts 2,5,6,7,8,9 & 10 under Section 215 CPC . On 1/4/2021after Pre-sentence proceedings the Trial Court sentenced each of Accused persons Ksh 50,000/- fine in default 6 months imprisonment for each of the Counts found guilty.
PETITION OF APPEAL
On 13th October 2021 Hesbon Ongetta Momanyi, 3 rd Accused person; the Appellant herein filed a Petition of Appeal with 14 grounds of appeal condensed as follows;
1. Convicting the Appellant not withstanding that he was an advocate working in the ordinary course of his duties and failed to take judicial notice of the mandatory provisions and in contravention of Section 80 of the Advocates Act.
2. Finding-that the prosecution had established prima facie case against the Appellant on entirely wrong principles and key ingredients of the offences the appellant was facing were proved in accordance with the required standards of proof beyond any reasonable doubt. The offence of conspiracy to defraud contrary to section 317 of the Penal Code without proof of the salient ingredients of the offence-conspiracy to defraud.
3. Count-one-was-defective-and-untenable in law in the circumstances hence conviction on it was unsafe.
4 . The Complainant had done due diligence in ascertaining the identity of the seller and verified her ownership documents from the relevant authorities before going to the Appellant''s office for making and executing a sale agreement accompanied by the seller and their respective witnesses, therefore the appellant''s role as conveyancing lawyer was limited. The Appellant had no prior knowledge, that the documents presented to him were fake and had no mechanism of detecting their status particularly when the complainant and the seller checked their validity together at the land buying company before executing sale agreement hence conviction was without basis and unsafe.
5. The offence of making a document without authority with intent to defraud contrary to Section 357(a) of the Penal Code disregarding the evidence on record without justifiable reason that the complainant and the seller had appeared together at the appellant''s office with their express authority to attest/witness the signing of transfer of lease against their affixed photos (passport size) in the ordinary cause of his duties as an Advocate.
6. Convicting the Appellant on the offence of obtaining money by false pretenses contrary to section 313-of the Penal Code as detailed in Count 9 thereby failing to appreciate that the appellant''s involvement in the sale agreement in question was in the ordinary cause of his duty as an Advocate between complainant and seller who received money for onward transmission to the seller.
7. Failing to take into account the defense and uncontroverted evidence adduced by the appellant thereby disregarded and refused to see, consider, examine and evaluate such evidence and attached authorities or decisions from the Court of Appeal and the High Court.
8. Failing to note and consider that crucial witness the Painter and one Samuel Kamau who linked the Complainant and the Seller were never called by Prosecution to shed more light on the origin of the transaction in question.
SUBMISSIONS BY THE APPELLANT
“On diverse dates between 1991 – 2009 at unknown place within the Republic of Kenya jointly with others not before court conspired with intent to defraud ESTHER NJAMBI KANGETHE Kshs.2,000,000 by purporting that you were in position to sell her a piece of land Nairobi/Block/116/276 a fact you knew not to be false”.
Points to Note
The charge is defective ‘a fact you knew not to be false.’ This is ambiguous, it is not clear as what is meant and the same was not amended hence conviction on the same is not safe.
The period of conspiracy is 18 years.
The complainant expressed intention to purchase land in 2009 to her painter – Kyalo.
The painter introduced one John Kamau Mwangi to the complainant Esther Njambi Kangethe.
The said John Mwangi introduced the seller Julius Irungu Kihoro to the complainant.
There were series of meetings between the seller, the complainant and other people in the absence of the appellant.
I rely in the case of;
Bukenye and others vs. Uganda [1972] EA 549 where the court stated;
“ In our view, the failure by the prosecution to call crucial witness weakened their case to an extent that they failed to prove the case against the appellant beyond reasonable doubt as required in criminal cases. The gap created by failure of the prosecution to call important witness is a doubt where benefits we must give to the appellant which we hereby do.”
Points to Note
It is in evidence that the complainant and the seller presented themselves before me in my office with the transfer of lease already prepared for witnessing.
They both signed the transfer willingly in my presence.
I only witnessed their signing their authority to do so.
I did not execute/witness signing of the transfer on behalf of another person.
There is no evidence that I intended to defraud or deceive anybody and I did the witnessing as a conveyance lawyer not a beneficiary, a seller or otherwise.
Ingredients of Making a Document
The document was made by accused person.
The document must be intended to deceive or defraud.
The making, signing or execution was done without authority.
5. The complainant buyer and seller both willingly signed the transfer in my presence hence the charge cannot stand as there is no evidence that I made the transfer on behalf of Julius Irungu Kihoro.
The prosecution did not prove that the document was made by me and I made the same on behalf of another person hence they failed to prove their case beyond any reasonable doubt. The drawer of the transfer documents is not known nor was he disclosed.
6. Points to Note
There are two (2) sale agreements between the complainant and one Julius Irungu Kihoro.
The land parcel is Nairobi Block 116/276.
Purchase price in the two agreements is Kshs.2,000,000/= and Kshs.800,000/= (contractual)
The complainant and the seller both signed the said agreements together with their respective witnesses – the intention was to sell and purchase.
Ground 1
7. It is my submission that there was no complaint lodged against me as per the provisions of section 80 of the Advocate Act hence referring the same to the Tribunal as proposed but the prosecution is overtaken by events.
WRITTEN SUBMISSIONS BY THE RESPONDENT
In the appeal the issue for determination is whether in the whole transaction of the land sale agreement in question, the appellant did an overt act/act that resulted in commission of offences of conspiracy, fraud and forgery. The answer to that question is founded on the scope of limitation of the advocate’s role when undertaking or pursuing duties of profession nature in line with his duties as an advocate.
A section of the Advocates Act Cap 16 Laws of Kenya, provides in sub-section (1) that a complaint against an Advocate of professional misconduct, which expression includes disgraced or dishonorable conduct incompatible with the status of an advocate may be made to the tribunal by any person. Under sub-section (3) the advocate may then be required to appear before the tribunal and file a response if any.
Section 55 of the said Act highlights savings of disciplinary powers of court. It says; nothing in this Act shall supersede, lessen or interfere with the powers vested in the Chief Justice or any of the Judges of the court to deal with misconduct or offences by an advocate, committed during, or in the course of, or relating to proceedings before the Chief Justice or any Judge.
In brief, the alleged conduct of the appellant amounted to professional misconduct, if sufficiently proved, and the right forum to deal with the same would be by way of a duly constituted tribunal pursuant to the provisions of section 60 of the Advocates Act Cap 16 Laws of Kenya. That is the remedy laid down, available to an aggrieved party who has suffered loss and damage due to professional misconduct by an Advocate, while acting in the course of his ordinary duties. One tried and found guilty the penalty is provided under those provisions.
Authority in Support of Respondents Submissions
Court of Appeal at Nairobi.
Criminal appeals Nos. 118, 120 of 1981.
(Appeal from the High Court at Kisumu. Seriven J. 1985 KLR. Makokha vs . Republic )
The appellants were jointly charged in Resident Magistrate’s Court under section 308(1) of the penal code (Cap.63) in that they were found with dangerous weapons with intent to commit a felony of robbery with violence. The prosecution alleged that the complainants had encountered the appellants at a bridge who attacked them with pangas and ran away. The appellants denied the charge and stated in their defence that they hadn’t known each other prior to their arrests. After they were convicted and sentenced, the appellants appealed to the High Court asserting their earlier defences. The Judge purporting to act under section 352 (2) of the CPC (Cap 75) summarily rejected the appeals. The appellants appealed against this summary rejection to the Court of Appeal.
The Court held that; It follows that where 2 or more persons are jointly charged with an offence under Section 308 (1) of the Penal Code, an essential ingredient of the offence must be proof of a common intention between the persons charged jointly to commit a specific felony in future.
The assertion by the Appellant that they were strangers to each other amounted to a contention that they could not jointly, acting in concert, have formed the intention or made preparation to commit a felony.
ANALYSIS & DETERMINATION
The Court considered the Trial Court record, Petition of Appeal and detailed submissions made herein on behalf of the Appellants and the Respondents. This appeal lies on whether the prosecution proved its case against the Appellant, 3 rd Accused to the required legal standard, and in particular, whether the Prosecution proved all the essential ingredients of the charges preferred against 3 rd Accused person/Appellant, Counts 1,2,3,4,5 & 9.
As first appellate court, the court is obligated to re-evaluate the evidence afresh, and make its own conclusions bearing in mind that it did not have the advantage of hearing and observing the demeanor of the witnesses as elaborated in the case of Okeno vs. Republic [1972] E.A 32 .
It is trite that all criminal offences require proof beyond reasonable doubt. In Peter Wafula Juma & 2 Others v Republic [2014] eKLR ; Court referred to
Viscount Sankey L.C in the case of H.L. (E)* WOOLMINGTON V DPP [1935] A.C 462 pp 481 on legal burden of proof in criminal matters, that;
‘Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception…No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’
Lord Denning in Miller vs. Ministry of Pensions (1947) 2 All ER, 372 stated as follows:
“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.”
With regard to Count1the 3 rd Accused person jointly with 1 st & 2 nd Accused persons were charged with the offence hereinbelow;
Section 317 of the Penal Code provides for Conspiracy to defraud as states as follows:
“Any person who conspires with another by deceit or any fraudulent means to affect the market price of anything publicly sold, or to defraud the public or any person, whether a particular person or not, or to extort any property from any person, is guilty of a misdemeanor and is liable to imprisonment for three years.”
Shah v Republic (Criminal Appeal E070 of 2021) [2024] KEHC 837 (KLR) (25 January 2024) (Judgment) The case-law relating to proof of the offence of conspiracy c/s 317 Penal Code is as follows;
Ronald Kiptoo Yator vs Republic 2019 eKLR, the Court observed;
This court agrees with the Appellant’s counsel that for the offence of conspiracy to defraud to be complete evidence must be adduced to show that there existed an agreement, consent or combination of the two or more persons.
For that proposal, the Appellant’s counsel relied on the case of Christopher Wafula Makhoha –vs- Republic [2014] eKLR. This court agrees with the holding in that case where the court (Mabeya J) held that the charge of conspiracy to defraud must involve two or more persons and not a single accused person.
Evanson Mwangi Kihumba v Republic [2022] eKLR , the Court considered conspiracy as; In Black Law Dictionary 9th Edition at page 351 Conspiracy is defined as follows;
“ An agreement by two or more persons to commit an unlawful act coupled with an intent to achieve the agreements motive, and (in most cases), action or conduct that furthers the agreement; a combination for unlawful purpose.
The agreement may be proved in the usual way or by proving circumstances which the jury may presume it. Proof of the existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in principle of an apparent criminal purpose in common between them.”
The High Court in Ann Wangechi Mugo & 6 others v Republic [2022] eKLR also elaborated on how to prove conspiracy and held as follows:
“To prove a conspiracy, the prosecution had to establish that the respondents together with others, agreed by common mind to defraud the complainant. The inference must be made both from the actions of the accused and the evidence tendered in court (see Republic Vs Anne Atieno Abdul & Others [2017] Eklr
In Abdi & another v Republic (Criminal Appeal E033 of 2020) [2024] KEHC 8021 (KLR), the court held as follows;
“167.Having evaluated the evidence adduced, I find that the trial was well guided in its finding on conspiracy. The intention of the conspirators cannot be supported by direct evidence “for not even the devil knoweth the mind of man”. Conspiracy by its nature is an opaque offence heavily guarded and clouded.
168.It is not easy to find direct evidence and indeed part of commission the offence is to conceal the evidence. Thus, if the court were to insist on direct evidence per se, no one will be convicted of the offence. The knowledge and involvement in the offence can be inferred from the conduct of the parties with a common desire to commit a criminal offence”
7. The prosecution ought to prove beyond reasonable doubt, common intention among between the Accused persons that depict knowledge, consent and/or agreement to act in concert to achieve desired or earmarked illegal or unlawful outcome through deceit, dishonesty or fraud.
8. In the instant case, evidence on record PW1 & PW2 stated, that the meeting and discussions on sale and purchase of suit property was by PW1 enquiring from her Painter Kyalo who brought on board one John Kamau, who told her that owner of Land parcel No 116/276 authorized him to sell the land. The owner was Julius Irungu Waiharo & Sammy Machogu Mugo & Kihoro &PW1 went to Ardhi House 4th Floor and the Allotment Letter & Share Certificate were confirmed to belong to Julius Kihoro. PW1 went to Registration of Persons Bureau and confirmed Copy of ID No 1865472 belonged to Julius Kihoro who took PW1 to Advocate OH Momanyi.
9. At the 3 rd Accused Person’s office, Agreements were drawn based on documents that were handed over to Advocate to draw the Sale Agreement. It is also confirmed that 2 Agreements were drawn 1 st for Ksh 2m and the other for 800,000/- which one Kamau/Karanja brought prepared requiring signage and witnessing.
10. The 3 rd accused/Appellant conceded the parties came to his office the Agreement for 2 m he drew and Agreement for Ksh 800,000/- already prepared and he executed both documents. The Sale Agreement was drawn from documents given to him by parties and which PW1 had confirmed to be genuine as per her testimony; they went to Roysambu Housing Coop Ltd Checked with Lands/Ardhi House and Registrar of Persons BEFORE going to 3 rd Accused person’s office.
11. Secondly, the 3 rd Accused received monies on behalf of Seller 1 st Accused person and the funds were deposited in his Account and after signing Sale Agreement released funds to Seller, 1 st Accused person. Thereafter, when 1 st Accused disappeared, the Parties came to 3 rd Accused person’s office, he told them the 1 st Accused /seller was sick, he did not hide or ran away or refuse to talk engage with them.
12. Late
[...truncated]