Paul Nguru Kiarie VS State Law Office Paul Nguru Kiarie VS State Law Office

(An Appeal from the Judgment of Hon. S.K. Ngii, PM, in Siakago MCCR No. E290 of 2022 delivered on 09^th July 2024)

The appellant filed a petition of appeal dated 22^nd July 2024 seeking that the appeal be allowed and the conviction be quashed and set aside, on the grounds that:
1. The learned trial magistrate erred in law and facts in convicting and sentencing the appellant when the prosecution did not prove its case beyond reasonable doubt;
2. The learned trial magistrate erred in law and facts in failing to give the appellant the benefit of doubt which the appellant was clearly entitled to;
3. The learned trial magistrate erred in law and facts in convicting and sentencing the appellant when there was completely no evidence in support of the charges;
4. The learned trial magistrate erred in law and facts by relying on evidence which was contradictory;
5. The proceedings were conducted in a language not understood by the appellant; and
6. The language used was not recorded in the proceedings.
The appellant was charged with obtaining registration by false pretences contrary to section 320 of the Penal Code, whose particulars are that on 09^th March 2011 at Mbeere Lands Registry in Mbeere North sub-county within Embu County, the appellant willfully procured for himself a registration of land parcel number Embu/Gangara/2714 by falsely pretending that he is the bonafide owner of the said land. When he was arraigned, the appellant pleaded not guilty and a plea of not guilty was duly entered. The matter proceeded to trial.
PW1 was Njiru Ngware alias Samuel Njiru of the Nditi clan who stated that the clan gave land to Kiarie Nguru who is the son of Nguru Kiarie. That the said Kiarie Nguru sold the land to one Ireri Mwarania for Kshs.10,000/= although prior to the land being sold, the purchaser was still the one cultivating it. He stated that he witnessed the sale but he did not know where the agreement was executed. He didn’t recall whether there were other witnesses present. On cross-examination, he stated that he did not know if there was any document to show that Kiarie Nguru sold the land to Ireri Mwarania.
PW2 was Justin Nyaga Ireri who stated that Ireri Mwarania is his father and the owner of land parcel number Embu/Gangara/2714 which he purchased from Kiarie Nguru. He stated that he was present during the sale and purchase transaction in 1996 and that the land initially belonged to Nditi clan but it was sold to his father of the Ngari clan. That the land was going for Kshs.17,000/= and in 2002, the parties went before Samuel lNjeru Nyaga who was the area chief then and Ireri paid Kiarie Kshs.15,100/= leaving a balance of Kshs.1,900/=. That the balance was paid in 2003 together with a female goat and then the purchase was required to pay a he-goat later in addition. That all the agreements reached were reduced into writing and were produced as evidence.
That PW1 showed him the boundaries of the land and some of the elders were present. He stated that he later received a letter from Kalamu Ndolo & Co. Advocates asking him to vacate the land and his brother Elias Ireri reported the matter to the DCIO and it led to this case. That his father died in 2008 and was buried in the said land. That they discovered that the appellant had changed the land from his father’s name to his name through an application for correction of name. On cross-examination, he stated that all the records for the land were given to him and his brother before the death of their father. That it was not true that the appellants’ father gave him the land before he died. That by the time the appellant’s father died, the sale transaction was complete.
PW3 was Elias Ndwiga Ireri, son of Ireri Mwarania who stated that his late father bought the land from his friend Kiarie Nguru of the Nditi clan. That Kiarie Nguru retired before his children had finished school thus he needed to sell the land to raise the money needed. That Ireri Mwarania agreed to purchase that land for Kshs.17,000/= and the agreement was reduced into writing, which agreement was written before the chief for payment of Kshs.15,100/= in 2002 and the balance together with 2 goats in 2003. That his father died before the land was transferred to him and when he (PW4) went to inquire about the transfer from the appellant, he did not answer him.
Later, they received a demand notice to vacate the land and that is when they reported the matter to the DCI. He stated that his father, the purchaser of the land, died before the appellant’s father, the vendor but it was always the vendor’s intention to have the land transferred to the purchaser. That they found out that the appellant had changed the land to his name. On cross-examination, he stated that the appellant is called Nguru Kiarie and the appellant is called Paul Nguru Kiarie thus it was easy to change the name on the title deed. That the appellant was present during the negotiations for the land sale and during drawing of the sale agreement.
PW4 was Samuel Njeru Nyaga, retired chief of Muminji location, who stated that Nguru Kiarie, the vendor and Ireri Mwarania, the purchaser had a transaction which they brought to his attention. That the vendor told him that he needed school fees and he wanted to sell his land to the purchaser to raise the money. That at the point of making a sale agreement in his office, the purchaser had received Kshs.15,100/= as part payment of the purchase price of Kshs.17,000/= and the balance was settled in 2003. He stated that at the time of making the agreement, the parties were accompanied by elders from the Nditi clan and the appellant was present. That the purchaser had been living on the said land before adjudication and after adjudication, the land was allotted to Nguru Kiarie since he was a member of the clan and the purchaser wasn’t. That Nguru Kiarie later sold the land to Ireri. On cross-examination, he stated that the appellant would be lying to say that he was not at the meeting where the sale agreement was written. That he was present although he did not sign any documents.
PW5 was Isaac Ireri Ngari, the sub-chief who stated that the appellant went to his office seeking assistance to facilitate change of his name on the title deed for the subject land which was registered to Nguru Kiarie. That he later discovered from his colleague that the appellant had used him to enable fraudulent change of the name on the tile deed which belonged to his late father. That he called the appellant and told him that since the process could not be reversed, the matter will be reported to the police.
The appellant later told him that he would transfer the land to the rightful purchasers. He stated that at he time of land adjudication by the clan, the appellant was a minor and so the land could not have been allotted to him by the clan. That the family of the purchaser who is Ireri Mwarania sought his help at some point to have the land transferred to them. On cross-examination, he stated that the appellant’s father is Nguru Kiarie but the appellant is Paul Nguru Kiarie and that the land was registered in the name of the appellant’s father.
PW6 was Sgt. Awadh Issa Mohammed of DCI Mbeere North who stated that PW3 reported that he had received an eviction notice from the appellant’s advocates demanding that he vacants the land parcel number Embu/Gangara/2714 measuring 7¾ acres. PW3 stated that the land was bought by his father from the appellant’s father but the appellant has gotten it registered in his name since he shares his father’s name. He wrote to the registrar of person to verify the identities of the appellant and his father given the similarity in their names. He ascertained that the appellant’s father was born in 1933 while the appellant was born in 1962.
That the signatures of the appellant’s father on the sale agreement and the ID looked similar. It was his testimony that he recorded witness statements in the case and established that the appellant changed the name on the title deed through the process of correction of name and he lied to the registrar. That the land was first allotted to the appellant’s father as the first-born son according to the norms of the clan. That Ieri Mwirania had lived on that land for so long that the appellant’s father decided to sell it to him through a transaction that was done at the chief’s office. He established that the appellant got the title registered in his name to seek KPLC compensation for compulsory acquisition.
At the close of the prosecution case, the trial court was persuaded that a prima facie case had been established and the appellant was placed on his defence.
In his defense, the appellant, DW1, stated that the complainant’s description of the land is incorrect and that the DCI officers did not ascertain the status of the land from the lands office. That he was the first registered owner of the land and not his father who died in 1975. That the date when the clan gave the land to him is not captured on the title document but he is the one who applied for the title deed. That his father did not at any point sell the land to the complainant’s father and he requested the complainant to move out. That he was arrested without being given a chance to explain himself and that his title deed was procured lawfully. On cross-examination, he stated that he never occupied the suit land since it was occupied by the complainant. That in 2008, his father and the clan elders told him that the land belonged to him and that is why he demanded that the complainant moves out. That he processed the documents knowing that the complainant lives on the land but it was not his intention to defraud them.
DW2 was Jacob Mugo Kiarie who stated that the land belonged to the appellant. On cross-examination, he stated that the appellant’s father gave the complainant and his family permission to use the land but he was not aware that the land had been sold to the complainant’s father. That the land was given to the appellant by his grandfather after the death of his father. That the appellant’s father could not distribute the land before his death because it belonged to the appellant.
DW3 was Francis Ngari Njiru who stated that the land belonged to the appellant since it was given to him by the clan. On cross-examination, he stated that he is 57 years old and is a friend of the appellant. That the appellant was given the land by the clan but at the time, he (DW3) was too young and he wasn’t there. That the appellant is his cousin and that their father left the land for them when he died.
DW4 was Njeru Nyaga who stated that the land belonged to the appellant who is his friend. He stated that the appellant told him that he was given the land by the clan but he was not present.
At the close of the defense case, the trial court considered the evidence adduced and found the appellant guilty as charged. The appellant was sentenced to pay a fine of Kshs.300,000/= in default 6 months imprisonment.
The appeal was canvassed by way of written submissions.
In his submissions, the appellant argued the prosecution had failed to prove its case against him beyond reasonable doubt. That it is not the appellant’s fault that the complainant’s father did not transfer the land if he bought it from his father. That equity does not aid the indolent and that it is too late in time to transfer the property to the complainants. He argued that since the prosecution did not prove that the appellant was not in possession of the land at any given time, the benefit of doubt should have been given to the appellant in this case. That the conviction reached was unsafe and it ought to be overturned.
The respondent relied on sections 320 and 312 of the Penal Code and submitted that the appellant falsified documents to enable him transfer the land to himself and there is enough evidence to prove that. It also relied on the case of Morris Njuguna Mwirigi v. Attorney General (2012) eKLR. It was its argument that there were no contradictions in the evidence and if any were found, they are not fatal to the case. For this argument, reliance was placed on the cases of Philip Nzaka Watu v. Republic (2016) eKLR and Njuki v. Republic (2002) 1KLR 77. It relied on the case of Shadrack Kipkoech Kogo v. Republic Criminal Appeal No. 253 of 2003 for the argument that the sentence imposed by the trial court need not be reviewed.
From the foregoing, the issues for determination are:
- 1. Whether or not the prosecution proved the case against the appellant beyond reasonable doubt;
  2. Whether the sentence was excessive.
The role of this first appellate court is to reexamine the evidence adduced at trial and make an independent finding. In the case of David Njuguna Wairimu vs. Republic [2010] eKLR, the Court of Appeal held as follows:-

“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”

Section 320 of the Penal Code provides:

“Any person who wilfully procures or attempts to procure for himself or any other person any registration, licence or certificate under any law by any false pretence is guilty of a misdemeanour and is liable to imprisonment for one year.”

The appellant was charged with procuring registration of land parcel number Embu/Gangara/2714 to himself through an application for correction of name while knowing that the land did not belong to him. The prosecution witnesses PW1-PW4 stated that the appellant’s father acquired the land from the Nditi clan and since at that time the land was being occupied by the complainant’s father, he sold the land to him for Kshs.17,000/=. From the evidence, the transaction was completed but the purchaser died before the land was transferred to him. That the purchaser’s children, including the complainant, tried to follow up on the title deed transfer but the appellant did not respond and later, they learned that the land had been transferred to the appellant through an alleged name change.
PW1 stated that the land was allotted to the appellant’s father by the clan and he acquired a title deed for it. PW6 found the names of the appellant and his father strikingly similar and so he querried the official records to ascertain the difference. According to the National Registration Bureau, the appellant’s father was known as Kiarie Nguru and was born in 1939 while the appellant was born on 15^th May 1962. According to PW6, the allotments from the clan were done between 1962-1974, during which period the appellant’s father was old enough to be given land by the clan. PW1-PW3 stated that the complainant’s father bought the land from the appellant’s father between 2002-2003 and he paid the purchase price in full.
DW3 said that he was 57 years at the time of the testimony and he was too young at the time of allotment of the land but the appellant was his friend. The appellant was born in 1962 which means that he was about 56 years old at the time of the testimony. PW1 stated that clan land was never allotted to minors and that the appellant was too young at the time of adjudication of the land and that the land was given to his father. The foregoing analysis lays basis for my finding that there is plenty of evidence to show that the land was adjudicated to the appellant’s father and not to the appellant. In other words, the land belonged to Kiarie Nguru, the appellant’s father, who was also registered as the proprietor of the land.
The prosecution witnesses proved that the appellant’s father sold the land to the complainant’s father who is Ireri Mwarania. The transaction as done at the chief’s office and the appellant was present at the time. The prosecution produced a copy of a sale agreement as proof of the purchase. I am persuaded that the sale is sufficient evidence that the appellant’s father sold his land to the complainant’s father. After assisting the appellant with documentation to enable him apply for a change of name on the title deed, PW5 soon figured out that the appellant had toyed with his authority to enable the fraudulent transaction. He called the appellant and told him that the matter has since become criminal in nature and the appellant told him that he will transfer the land.
From the foregoing, it is clear to this court that the appellant willfully and unlawfully procured registration of the title deed in his name through falsely pretending that he was the proprietor of the land. He was convicted of the offence and sentenced to a fine of Kshs.300,000/= in default, 6 months’ imprisonment. I find the sentence to be fair in the circumstances.
Therefore, I find no merit in the appeal herein. It is hereby dismissed.
It is so ordered.

Delivered, dated and signed at Embu this 4^th day of December, 2024.