INTRODUCTION
1. The appellant was charged with the following counts:
COUNT 1
FORGERY CONTRARY TO SECTION 345 AS READ WITH SECTION 349 OF THE PENAL CODE.
PERISTER KWAMBOKA OMWENGA on the 18 th day of June 2018 at Uniafric house 3rd floor suite 317 in Nairobi within Nairobi County with the intent to defraud forged the signature of Kitei Peter in a plaintiffs Witness Statement purporting it to be a genuine signature signed by Kitei Peter dated 18 th June 2018 in Mavoko Principal Magistrate Court Civil Case number 881/2018.
COUNT 2
FORGERY CONTRARY TO SECTION 345 AS READ WITH SECTION 349 OF THE PENAL CODE
PERISTER KWAMBOKA OMWENGA On the 18th day of June 2018 at Uniafric house 3rd floor Suite 317 in Nairobi within Nairobi County, with intent to defraud forged the signature of KITEI PETER in a Verifying affidavit purporting it to be a genuine signature signed by KITEI PETER dated 18th June 2018 in Mavoko Principal Magistrate Court Civil Case number.881/2018.
COUNT 3
FORGERY CONTRARY TO SECTION 345 AS READ WITH SECTION 349 OF THE PENAL CODE
PERISTER KWAMBOKA OMWENGA: On the 18th day of June 2018 at Uniafric house 3rd floor Suite 317 in Nairobi Within Nairobi County, with intent to defraud forged the signature of JOHN. M. KIMATHI in a Verifying affidavit purporting it to be a genuine signature signed by JOHN.M. KIMATHI dated 18th June 2018 in Mavoko Principal Magistrate Court Civil Case number 881/2018.
COUNT 4
FORGING STAMP CONTRARY TO SECTION 352(a) OF THE PENAL CODE
PERISTER KWAMBOKA OMWENGA: On the 18th day of June 2018 at Uniafric house 3rd floor Suite 317 in Nairobi within Nairobi County, made a false stamp impression used by JOHN. M. KIMATHI an advocate and commissioner for oaths for the purpose 'of commissioning documents with intent to defraud.
COUNT 5
MAKING A DOCUMENT WITHOUT AUTHORITY CONTRARY TO SECTION 357(a) OF THE PENAL CODE.
PERISTER KWAMBOKA OMWENGA. On the 18th day of June 2018 at Uniafric house 3rd floor Suite 317 in Nairobi within Nairobi County, with intent to defraud without lawful authority or excuse made a plaintiffs statement purporting it to be a genuine statement made and signed by KITEI PETER.
COUNT 6
MAKING A DOCUMENT WITHOUT AUTHORITY CONTRARY TO SECTION 357(a) OF THE PENAL CODE.
PERISTER KWAMBOKA OMWENGA. On the 18th day of June 2018 at Uniafric house 3rd floor, Suite 317 in Nairobi within Nairobi County, with intent to defraud without lawful authority or excuse made a verifying affidavit purporting it to be a genuine Verifying affidavit made and signed by JOHN. M. KIMATHI an advocate and commissioner for oaths.
2. The appellant was tried, convicted and sentenced in respect of all the counts.
3. The appellant, dissatisfied with the Judgment appealed against both conviction and sentence on the following grounds: -
a) The Honorable Magistrate erred in law and fact by failing to appreciate that the evidence tendered by the prosecution was inadequate, devoid of probative value, shambolic, deficient, lacking cogency and incongruent and thus made an erroneous finding of guilty against the appellant.
b) The Honorable Magistrate erred in law and fact in the entirety of the proceedings by failing to invoke and avail to the appellant fundamental rights constituting and underpinned in Article 50 and Article 25 (c) of the Constitution pertinent to fair trial and thus delivered a travesty of justice.
c) The learned Magistrate erred in law and in fact the evidence tendered in the proceedings offends the principle and parameters of Section 107 and 108 of the Evidence Act
d) The Honorable Magistrate erred in law and fact in finding that the appellant was negligent was incompatible with incompatible with the evidence on record and at variance with the specific charges preferred and is in breach of the principle of proof beyond a reasonable doubt.
e) The Honorable Magistrate erred in law and fact in failing to appreciate that the prosecution evidence as summed up by the Investigating Officer was in favour of an acquittal rather than the conviction of the appellant.
f) The Honorable Magistrate erred in law and fact by failing to consider the defense evidence in its totality which evidence points to the lack of culpability on the part of the appellant.
g) The Honorable Magistrate erred in law and fact failed to correctly deduce that the prosecution had failed to discharge their burden of proof and instead shifted the burden to proof her innocence to the appellant herein
h) The learned Magistrate erred in law and fact in convicting and sentencing the appellant notwithstanding that the evidence tendered by the Prosecution Witnesses pointed to the innocence rather than the guilty of the appellant.
i) The learned Magistrate relied on inadequate and shambolic evidence of the prosecution and thereby derived a conviction disregarding failure on the part of the prosecution to discharge the burden of proof beyond reasonable doubt as provided and contemplated in the Law.
j) The learned Magistrate erred in Law in failing to appreciate that the weight of evidence leaned in favour of exonerating the appellant than attracting conviction and thus arrived at speculative and unjustified far-fetched inferences leading to conviction and sentence.
k) The learned magistrate erred in law in his judgment by making inferences which amounted to an effort act or attempt to fill and actually filled gaps and inadequacies left by the prosecution in their case.
l) The learned Magistrate erred in law and fact by not appreciating that the evidence tendered in court by the prosecution witnesses was incapable of sustaining any of the charges or counts preferred against the appellant herein.
m) The conviction ignored the benefit of doubt available to the appellant herein thus rendered erroneous travesty of justice and the findings of the court incongruous with the evidence adduced in Court. The Learned Magistrate erred in law and fact by failing to appreciate that the prosecution witnesses gave scanty, contradictory and unreliable evidence incapable of inducing or deriving a conviction and sentence meted to the Appellant is erroneous.
n) The Learned Magistrate erred in law and fact in reaching far-fetched inferences and finding that the offence had been committed yet the evidence on record was full of conjecture and fabrication.
o) The learned Magistrate erred in Law in failing to appreciate that the evidence tender4ed by the prosecution witnesses singly and collectively failed to bring out the basic elements of the charges preferred in both actus reus and mens rea hence failing to deliver the threshold of proof beyond reasonable doubt hence arriving at an erroneous verdict and Sentence.
4. The following issues for determination arise from the grounds of appeal:
a) Whether there was a breach of the fair trial of rights of the appellant in the course of trial.
b) Whether the prosecution discharged the evidential and legal burden proof under Section 107 and 108 of the Evidence Act to establish all the ingredients of the offenses charged.
c) Whether the defense of the appellant was duly considered.
d) Whether there was shifting of the burden of proof to the accused person.
5. The parties to the appeal agreed to file written submissions in support of their respective positions and each of the parties made some brief highlights during the hearing of the Appeal on 19 th February 2026.
6. This court has fully considered the written as well as oral submissions and appreciates both counsel for their industry in the manner in which they prosecuted the appeal.
APPELLANT’S CASE
7. This Appeal challenges the Judgment, conviction and sentence delivered on 13th December 2022.
8. It is the Appellant’s position that the findings of the Learned Magistrate on all six counts were inconsistent with the evidence on record, and that the conviction was founded on inadequate, contradictory and speculative evidence, coupled with a failure to consider the Appellant’s defense.
9. The Appellant urges this Honourable Court to re-evaluate the entire evidence on record and find that none of the six counts was proved to the required standard.
10. According to the appellant the prosecution failed to establish any cogent nexus between the Appellant and the alleged offences, and the conviction is therefore unsafe and unsustainable.
11. The appellant further submitted that the law on burden of proof is settled. The appellant submitted that in accordance with Sections 107, 108 and 109 of the Evidence Act (Cap 80) the prosecution was under duty to prove all the ingredients with which the appellant was charged.
12. The appellant posited that these provisions were not properly applied by the Learned Magistrate, who instead shifted the burden onto the Appellant.
13. Counsel submitted that principle in Woolmington v DPP [1935] AC 462 remains that the burden of proof rests on the prosecution throughout, and any doubt must be resolved in favor of the accused.
14. Further, in Elizabeth Waithiegeni Gatimu v Republic [2015] eKLR , the court relying on Re Winship, stated:
“The key question is, does the defense offered raise doubts as to her guilty? Is it reasonable in the circumstances?... before an accused person can be convicted of a crime, his/her guilt must be proved beyond reasonable doubt… the reasonable doubt standard is indispensable… it is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”
15. According to the appellant this principle was not adhered to, as the evidence on record disclosed material gaps and contradictions which ought to have been resolved in favor of the Appellant.
16. The appellant submitted that proof of both actus reus and mens rea was essential in respect of all the counts before the court could reach a verdict of guilty.
17. The appellant relying on Mwangi v Republic (Criminal Appeal E011 of 2024) [2024] KEHC 7867 (KLR) , where the court held:
“Making a document without authority… is merely the actus reus… The mens rea is the intent to defraud… The offence is completed when there is also the actus reus… The convictions cannot stand …”, submitted that since the appellant was alleged to have drawn pleadings without instructions of the plaintiff, it was necessary for the prosecution to establish that when the appellant drew the said pleadings she did so without instructions and the intention was to defraud the defendant company.
18. In the present case, neither actus reus nor mens rea was proved. There was no evidence demonstrating that the Appellant made, forged, or had knowledge of any falsity in the documents presented to her before instituting the suit.
19. The appellant further argued that there was no forensic evidence linking her to the alleged signatures or stamp impressions. The document examiner did not examine the Appellant’s signature at all. The findings only showed discrepancies but did not attribute them to the Appellant. The appellant relied on Njoroge Mwangi v Republic [2021] eKLR where the court held that;-
“…if a document is alleged to be signed… the signature… must be proved… There was no such evidence… The charge… was not proved beyond reasonable doubt…”
20. The appellant contends that there was nothing connecting her to the alleged documents. Further, the appellant submitted that the prosecution evidence was further weakened by the testimony of its own witnesses.
21. PW1’s evidence was inconsistent and uncorroborated, particularly regarding the alleged loss of his identification card and the absence of any supporting police report. These gaps according to the appellant created reasonable doubt which was not resolved in favor of the Appellant.
22. Further, the appellant submitted that PW2’s testimony was evasive and self-serving, aimed at distancing himself from the matter. The court failed to interrogate his contradictions or consider the professional context within which advocates operate.
23. The appellant went on to submit that in Republic v David Ruo [2016] eKLR , the court held that witness testimony must be consistent and credible, and evasive accounts warrant skepticism. Similarly, in Kariuki v Republic [1986] KLR 500, the court emphasized that professional conduct within reasonable norms cannot be criminalized absent clear evidence of wrongdoing. The appellant pleaded with this court to find that she was basically acting in good faith when she drew the subject pleadings for filing in court.
24. The evidence of PW3 and PW4 confirmed that the Appellant’s law firm had handled numerous legitimate claims, many of which had been settled, demonstrating that the Appellant’s conduct was within lawful professional practice. In Francis Njoroge v Republic [2019] eKLR , the court held that evidence supporting lawful conduct must be weighed against allegations, with doubt resolved in favor of the accused.
25. The evidence of PW5, the forensic examiner, did not implicate the Appellant. He expressly confirmed:
“I was not invited to exam a signature of Perister ,”
26. The appellant contends that the admission by P5 rendered the case against the appellant on the charge of forgery and making a false document.
27. PW6’s evidence confirming the authenticity of the identification document introduced further doubt, while PW7 confirmed that the documents were duly filed and accepted by the court registry without irregularity, reinforcing that the matter was properly within the civil process.
28. The appellant further submitted that the conduct of PW8, the investigating officer, further weakened the prosecution case. His investigations were selective and incomplete, and he failed to call crucial witnesses or pursue key lines of inquiry. The appellant cited that case of Bukenya & Others v Uganda [1972] EA 549 , the court held that failure to call material witnesses warrants an adverse inference against the prosecution. This principle applies, given the omission of critical witnesses such as Dr. Okere and other relevant persons.
29. The Appellant’s defense was clear and consistent. According to her, she acted in good faith as an advocate upon receiving instructions and documents from a client who presented himself as PW1. There was no evidence of intent to defraud or any personal benefit.
30. The appellant posited that the Learned Magistrate failed to properly evaluate this defense and instead relied on conjecture and assumptions, thereby misdirecting herself on both the law and the evidence.
31. The appellant concluded by submitting that the prosecution failed to prove the case beyond reasonable doubt. The conviction was therefore unsafe thus urged the court to allow the appeal.
RESPONDENT’S CASE
32. The respondent urged the court to dismiss the appeal and uphold both the conviction and sentence of the Learned Trial Magistrate.
33. The respondent submitted that the first three counts related to the offence of forgery contrary to Section 345 as read with Section 349 of the Penal Code.
34. Counsel submitted that Forgery is defined as “the creation of a false document or alteration of a genuine one, with intent to defraud.”
35. Further, the respondent cited Section 345 of the Penal Code stating that the it provides that “Forgery is the making of a false document with intent to defraud or deceive.”
36. The respondent cited the case of Caroline Wanjiku Ngugi vs the state (215) eKLR , in which the court set out the essential ingredients of the offence of forgery as follows:
1. The document must be forged;
2. The accused used the document as genuine;
3. The accused knew or had reason to believe that it was a forged document; and
4. The accused used it fraudulently or dishonestly, knowing or having reason to believe that it was a forged document.
37. It was the Respondent’s submission that the prosecution discharged its burden of proof by establishing the existence of the foregoing ingredients, and that the Appellant was properly found guilty of the offence of forgery.
38. The respondent went on to submit that the Appellant was further charged with the offence of forging a stamp contrary to Section 352(a) of the Penal Code.
39. According to the respondent the evidence on record demonstrated that the impugned stamp impression was used on the document in question, and no satisfactory explanation was offered as to its origin.
40. The respondent further highlighted the fact that one Peter denied having sustained any injury while at work, thereby casting serious doubt on the authenticity of the documents relied upon in the filing of the suit.
41. In regard to the two counts of Making a Document Without Authority contrary to Section 357(a) of the Penal Code the respondent submitted that all the offences arose from the same transaction, were interrelated and formed part of a continuous chain of conduct.
42. The respondent further submitted that the Appellant failed to call a crucial witness, namely the legal clerk who allegedly took the documents to John Kimathi Advocates’ office for commissioning. This omission left material gaps in the defence and weakened the Appellant’s case.
43. The respondents concluded their submission by stating that there exists a clear nexus between the evidence adduced by the prosecution and the findings contained in the Judgment of the trial court. The respondent thus posited that the prosecution sufficiently discharged its burden of proof and established the case against the Appellant beyond a reasonable doubt. The respondent therefore urged this court to dismiss the Appeal and uphold both the conviction and sentence. On the issue of sentence, the respondent submitted that sentencing remains within the discretion of this Honourable Court.
ANALYSIS AND DETERMINATION
44. The case against the appellant revolved around the filing of a suit in the name of one Kitei Peter at the Mavoko law courts which suit was alleged to have been filed without instructions thus constituting the foundation of the forgery charges and the allegation of making of a document without authority.
45. The duty of this court as a first appellate court is to re-evaluate, analyse the evidence tendered before the trial court and draw its own conclusions on the evidence while recalling that unlike the trial court this court did not have the advantage of hearing or seeing the witnesses testify thus due allowance should be made for that. See Okeno vs Republic {1972} E.A 32
46. PW1 Kitei Peter stated that he was a welder working with the Standard Gauge Railway and holds ID No. 24620225 in the name of Kitel Peter. He was born on 28/2/1985 in Kitui County Mutomo District.
47. He produced his ID as PMFI 1. He testified that he was first employed in Phase I of SGR in 2016 at Athi River though he could not recall the exact date. He later produced a letter of employment dated 24/2/2018 as PMFI 2 relating to Phase II employment. He also produced his welding certificate Grade 3 dated 30/11/2004 as PMFI 3.
48. PW1 further stated that he worked from 2016 to 2017 during Phase I and was never injured. After completion he went home and later resumed work in Phase II in February 2018.
49. He further testified that on 11/8/2018 at about 6.00am while in Rongai he was called to office DK24 by a HR officer known as Peter and later met a lady called Vero from head office. Vero showed him court documents relating to Civil Case No. 881 of 2018 at Mavoko Law Courts in which he was named as plaintiff against China Road. The documents shown to him were marked PMFI 4 series including:
• PMFI 4A summons to enter appearance
• PMFI 4B plaint
• PMFI 4C list of documents
• PMFI 4D list of witnesses
• PMFI 4E plaintiff witness statements
• PMFI 4F verifying affidavit
• PMFI 4G and 4H treatment notes and receipt from St James Clinic
• PMFI 4I copy of ID
• PMFI 4J demand letter
• PMFI 4K defence statements
• PMFI 4L employee register
• PMFI 4M construction site daily injury report
50. PW1 denied ever filing any suit against China Road and Bridge Corporation and stated that although the ID number and names on the documents were his and the signatures were not his.
51. He specifically denied signing the plaint PMFI 4B and verifying affidavit PMFI 4F and stated that the signature therein was not his despite bearing his ID number. He also noted the stamp of advocate John Kimathi on the affidavit.
52. He further denied ever being treated at St James Clinic and denied paying Kshs 1000 as indicated in PMFI 4H.
53. He stated he did not know how his ID copy PMFI 4I was obtained and used in the documents. He testified that after being shown the documents he was taken to Rongai Police Station where he recorded a statement. He also stated that he does not know the accused person Perister Kwamboka and has never instructed the firm of P K Omwenga & Associates who prepared the plaint.
54. PW1 reiterated that he has never been injured at work and has never filed any case in court. He later produced documents as exhibits including:
• Exhibit 1 summons to enter appearance
• Exhibit 2 letter of appointment dated 24/02/2018
• Exhibit 3 welding certificate
• Exhibit 4 a b c job cards covering 21/6/2018 to 20/7/2018 showing 181 hours worked
• Exhibit 5 copy of ID card
The job card confirmed his working hours and showed he did not sustain any injury.
55. Upon cross examination PW1 confirmed he joined SGR in 2016 and worked on contractual basis.
56. He stated he had an earlier ID issued on 25/2/2005 which got lost and he reported the loss at Athi River Police Station around September or October 2018 and was issued with a replacement ID on 19/10/2018 after obtaining a police abstract.
57. He stated that during employment he submitted documents including NSSF KRA PIN NHIF and ID copy. He confirmed welders worked in shifts and each group had one welder.
58. He stated he learned of Civil Case No. 881 of 2018 at Mavoko but denied signing any documents in that case or attending court. He denied knowing Perister Omwenga or any person who signed the pleadings. The witness confirmed he was shown the documents by Vero whom he had not met before and that he only recorded a police statement and was not referred to any advocate. He further testified that his supervisor was Mr Hwang and job cards were in English and Chinese.
59. He maintained that the disputed documents prepared by P K Omwenga & Associates bore signatures not his and he had never attended court in Mavoko.
60. The evidence of the witness was key in the prosecution of the appellant. He admitted to some two very important facts that the lower court appears not to have paid attention to.
61. The first being that the suit was initiated in his name and that the copy of ID that was used was his. The witness indicated to the court that at some point he had lost his Identity Card thus one would ask this, is it possible that the lost identity card is the one that was used by the person who appeared before the appellant and instructed her to file the suit?
62. Secondly, Pw1 stated that he did not know the appellant had never met her. Again, it is important to ask whether the person who instructed the appellant could have been a fraudster posing as PW1 who intended to swindle the Company through a fraudulent claim.
63. The view that this court takes is that the investigator moved too first in getting the appellant charged. The suit was pending and therefore it was definitely possible for them to have waited until the suit was set down for hearing, attend court and pounce on the “plaintiff” who would take to the stand to give evidence.
64. As it were arresting the appellant purely on account of filing pleadings was an ill -advised move considering that the investigator had established that as a matter of fact the identity card used by the appellant to file the pleadings was a genuine copy of Pw1’s Identity card.
65. At the hearing it would have been clear to everyone whether indeed the appellant had filed the suit fraudulently or on the instructions of a client posing as Pw1.
66. It is common knowledge that advocates act on instructions and once a person presents themselves to an advocate and presents an identity card purporting that it is his, the advocate would have no reason to doubt the fellow and unless the advocate knowingly participates in a fraudulent scheme by perpetuated by his client, it would be very dangerous to arrest and prosecute an advocate simply because they filed pleadings in the name of a party who says he did instruct him. It is sad that the appellant herein despite having a genuine copy of the identity card of Pw1 was charged even after Pw1 had said that he had lost his identity card thus it was possible someone bent on defrauding the Complainant company could have used the stolen identity card.
67. The principle that an advocate should not be held criminally liable for actions taken in the ordinary course of their professional duties—provided they acted in good faith and without knowledge of any underlying illegality—is a cornerstone of legal practice.
68. This protection ensures that advocates can represent their clients fearlessly without the constant threat of prosecution for the content of pleadings or the nature of their instructions. The protection is absolutely necessary to ensure that the legal practitioners are able to robustly represent their clients without being unnecessarily subjected to unwarranted threats of prosecution. The protection is necessary for the rule of law to prevail. It is important that where an advocate performs his or her duty in good faith, such counsel must not be subjected to any form of intimidation or persecution.
69. The immunity from action would only be waived where an advocate knowingly engages in criminal conduct or is guilty of wilful blindness.
70. In criminal law, the element of mens rea (guilty mind) is essential. If an advocate receives instructions "innocently" and acts in "good faith," they lack the necessary criminal intent. The appellant in this matter maintained throughout that she acted on instructions and therefore her actions were not out of intention to commit acts of fraud.
71. Pw1 having maintained that he had not instructed the appellant, the only way of determining who it was that had instructed her was to wait for them at the hearing and arrest the “plaintiff’’. The arrest and prosecution of the appellant was therefore premature considering that even the signature appearing on the verifying affidavit was not found to be hers.
72. In Tom Ojienda vs. Ethics and Anti-Corruption Commission & Others (2019) eKLR the court emphasized that an advocate cannot be held criminally liable for receiving legal fees or acting on behalf of a client unless there is clear evidence of a conspiracy or knowledge of the "tainted" nature of the funds/instructions. The court noted that advocates are not investigators of their clients' lives.
73. It follows therefore if a client appears before an advocate and instructs an advocate, the advocate is not expected to engage in an investigation as to whether the client is an innocent one or a fraudster.
74. To place such a responsibility upon the shoulders of advocates would be an unnecessary burden to legal practitioners without cause yet we have state funded institutions with the capacity to investigate any allegations of a criminal nature whenever such matters arise.
75. The other witness who gave evidence disowning the affidavit was PW2 John Kimathi who testified that his attention was drawn to the verifying affidavit which bore a stamp impression in his name as Commissioner for Oaths with address P O Box 9521-00200 Nairobi.
76. He confirmed that although the stamp impression bore his details the signature and stamp were not his and he did not commission the affidavit.
77. PW2 stated that the documents were drawn by P K Omwenga & Associates based at Unafric Building and although he knows P K Omwenga as an advocate he has never worked from that building. He testified that police initially treated him as a suspect. He took them to his office and provided his genuine stamp impression and specimen signatures. He also lodged a complaint that his stamp had been misused.
78. The evidence of that witness is important because he alleged not to have commissioned the verifying affidavit though the details on the stamp were his. The analysis of the evidence of this witness cannot be done in isolation. The appellant explained that the witness used to commission documents for her law firm and in her own words the witness was a suspect and was subjected to investigation. Pw2 stated that when he was summoned by the police, he took them to his office gave them specimen signatures but insisted that he did not sign the document and did not know who signed the document.
79. The gap left by the evidence of Pw2 would impact directly on the charges of forgery since there was no direct evidence to connect the appellant with the signing of the affidavit. it is important also to highlight that pw2 stated that when the police interrogated him, he realized he was in danger of other crimes. The witness did not however say what were the other crimes he was apprehensive off thus rendering his evidence as whether he did not commission the affidavit doubtful considering that the person who commissioned it was not uncovered.
80. The investigators did not subject the appellant’s sample handwriting and signature to forensic examination to determine whether she had forged the signature of Pw2. The fa
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1. The appellant was charged with the following counts:
COUNT 1
FORGERY CONTRARY TO SECTION 345 AS READ WITH SECTION 349 OF THE PENAL CODE.
PERISTER KWAMBOKA OMWENGA on the 18 th day of June 2018 at Uniafric house 3rd floor suite 317 in Nairobi within Nairobi County with the intent to defraud forged the signature of Kitei Peter in a plaintiffs Witness Statement purporting it to be a genuine signature signed by Kitei Peter dated 18 th June 2018 in Mavoko Principal Magistrate Court Civil Case number 881/2018.
COUNT 2
FORGERY CONTRARY TO SECTION 345 AS READ WITH SECTION 349 OF THE PENAL CODE
PERISTER KWAMBOKA OMWENGA On the 18th day of June 2018 at Uniafric house 3rd floor Suite 317 in Nairobi within Nairobi County, with intent to defraud forged the signature of KITEI PETER in a Verifying affidavit purporting it to be a genuine signature signed by KITEI PETER dated 18th June 2018 in Mavoko Principal Magistrate Court Civil Case number.881/2018.
COUNT 3
FORGERY CONTRARY TO SECTION 345 AS READ WITH SECTION 349 OF THE PENAL CODE
PERISTER KWAMBOKA OMWENGA: On the 18th day of June 2018 at Uniafric house 3rd floor Suite 317 in Nairobi Within Nairobi County, with intent to defraud forged the signature of JOHN. M. KIMATHI in a Verifying affidavit purporting it to be a genuine signature signed by JOHN.M. KIMATHI dated 18th June 2018 in Mavoko Principal Magistrate Court Civil Case number 881/2018.
COUNT 4
FORGING STAMP CONTRARY TO SECTION 352(a) OF THE PENAL CODE
PERISTER KWAMBOKA OMWENGA: On the 18th day of June 2018 at Uniafric house 3rd floor Suite 317 in Nairobi within Nairobi County, made a false stamp impression used by JOHN. M. KIMATHI an advocate and commissioner for oaths for the purpose 'of commissioning documents with intent to defraud.
COUNT 5
MAKING A DOCUMENT WITHOUT AUTHORITY CONTRARY TO SECTION 357(a) OF THE PENAL CODE.
PERISTER KWAMBOKA OMWENGA. On the 18th day of June 2018 at Uniafric house 3rd floor Suite 317 in Nairobi within Nairobi County, with intent to defraud without lawful authority or excuse made a plaintiffs statement purporting it to be a genuine statement made and signed by KITEI PETER.
COUNT 6
MAKING A DOCUMENT WITHOUT AUTHORITY CONTRARY TO SECTION 357(a) OF THE PENAL CODE.
PERISTER KWAMBOKA OMWENGA. On the 18th day of June 2018 at Uniafric house 3rd floor, Suite 317 in Nairobi within Nairobi County, with intent to defraud without lawful authority or excuse made a verifying affidavit purporting it to be a genuine Verifying affidavit made and signed by JOHN. M. KIMATHI an advocate and commissioner for oaths.
2. The appellant was tried, convicted and sentenced in respect of all the counts.
3. The appellant, dissatisfied with the Judgment appealed against both conviction and sentence on the following grounds: -
a) The Honorable Magistrate erred in law and fact by failing to appreciate that the evidence tendered by the prosecution was inadequate, devoid of probative value, shambolic, deficient, lacking cogency and incongruent and thus made an erroneous finding of guilty against the appellant.
b) The Honorable Magistrate erred in law and fact in the entirety of the proceedings by failing to invoke and avail to the appellant fundamental rights constituting and underpinned in Article 50 and Article 25 (c) of the Constitution pertinent to fair trial and thus delivered a travesty of justice.
c) The learned Magistrate erred in law and in fact the evidence tendered in the proceedings offends the principle and parameters of Section 107 and 108 of the Evidence Act
d) The Honorable Magistrate erred in law and fact in finding that the appellant was negligent was incompatible with incompatible with the evidence on record and at variance with the specific charges preferred and is in breach of the principle of proof beyond a reasonable doubt.
e) The Honorable Magistrate erred in law and fact in failing to appreciate that the prosecution evidence as summed up by the Investigating Officer was in favour of an acquittal rather than the conviction of the appellant.
f) The Honorable Magistrate erred in law and fact by failing to consider the defense evidence in its totality which evidence points to the lack of culpability on the part of the appellant.
g) The Honorable Magistrate erred in law and fact failed to correctly deduce that the prosecution had failed to discharge their burden of proof and instead shifted the burden to proof her innocence to the appellant herein
h) The learned Magistrate erred in law and fact in convicting and sentencing the appellant notwithstanding that the evidence tendered by the Prosecution Witnesses pointed to the innocence rather than the guilty of the appellant.
i) The learned Magistrate relied on inadequate and shambolic evidence of the prosecution and thereby derived a conviction disregarding failure on the part of the prosecution to discharge the burden of proof beyond reasonable doubt as provided and contemplated in the Law.
j) The learned Magistrate erred in Law in failing to appreciate that the weight of evidence leaned in favour of exonerating the appellant than attracting conviction and thus arrived at speculative and unjustified far-fetched inferences leading to conviction and sentence.
k) The learned magistrate erred in law in his judgment by making inferences which amounted to an effort act or attempt to fill and actually filled gaps and inadequacies left by the prosecution in their case.
l) The learned Magistrate erred in law and fact by not appreciating that the evidence tendered in court by the prosecution witnesses was incapable of sustaining any of the charges or counts preferred against the appellant herein.
m) The conviction ignored the benefit of doubt available to the appellant herein thus rendered erroneous travesty of justice and the findings of the court incongruous with the evidence adduced in Court. The Learned Magistrate erred in law and fact by failing to appreciate that the prosecution witnesses gave scanty, contradictory and unreliable evidence incapable of inducing or deriving a conviction and sentence meted to the Appellant is erroneous.
n) The Learned Magistrate erred in law and fact in reaching far-fetched inferences and finding that the offence had been committed yet the evidence on record was full of conjecture and fabrication.
o) The learned Magistrate erred in Law in failing to appreciate that the evidence tender4ed by the prosecution witnesses singly and collectively failed to bring out the basic elements of the charges preferred in both actus reus and mens rea hence failing to deliver the threshold of proof beyond reasonable doubt hence arriving at an erroneous verdict and Sentence.
4. The following issues for determination arise from the grounds of appeal:
a) Whether there was a breach of the fair trial of rights of the appellant in the course of trial.
b) Whether the prosecution discharged the evidential and legal burden proof under Section 107 and 108 of the Evidence Act to establish all the ingredients of the offenses charged.
c) Whether the defense of the appellant was duly considered.
d) Whether there was shifting of the burden of proof to the accused person.
5. The parties to the appeal agreed to file written submissions in support of their respective positions and each of the parties made some brief highlights during the hearing of the Appeal on 19 th February 2026.
6. This court has fully considered the written as well as oral submissions and appreciates both counsel for their industry in the manner in which they prosecuted the appeal.
APPELLANT’S CASE
7. This Appeal challenges the Judgment, conviction and sentence delivered on 13th December 2022.
8. It is the Appellant’s position that the findings of the Learned Magistrate on all six counts were inconsistent with the evidence on record, and that the conviction was founded on inadequate, contradictory and speculative evidence, coupled with a failure to consider the Appellant’s defense.
9. The Appellant urges this Honourable Court to re-evaluate the entire evidence on record and find that none of the six counts was proved to the required standard.
10. According to the appellant the prosecution failed to establish any cogent nexus between the Appellant and the alleged offences, and the conviction is therefore unsafe and unsustainable.
11. The appellant further submitted that the law on burden of proof is settled. The appellant submitted that in accordance with Sections 107, 108 and 109 of the Evidence Act (Cap 80) the prosecution was under duty to prove all the ingredients with which the appellant was charged.
12. The appellant posited that these provisions were not properly applied by the Learned Magistrate, who instead shifted the burden onto the Appellant.
13. Counsel submitted that principle in Woolmington v DPP [1935] AC 462 remains that the burden of proof rests on the prosecution throughout, and any doubt must be resolved in favor of the accused.
14. Further, in Elizabeth Waithiegeni Gatimu v Republic [2015] eKLR , the court relying on Re Winship, stated:
“The key question is, does the defense offered raise doubts as to her guilty? Is it reasonable in the circumstances?... before an accused person can be convicted of a crime, his/her guilt must be proved beyond reasonable doubt… the reasonable doubt standard is indispensable… it is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”
15. According to the appellant this principle was not adhered to, as the evidence on record disclosed material gaps and contradictions which ought to have been resolved in favor of the Appellant.
16. The appellant submitted that proof of both actus reus and mens rea was essential in respect of all the counts before the court could reach a verdict of guilty.
17. The appellant relying on Mwangi v Republic (Criminal Appeal E011 of 2024) [2024] KEHC 7867 (KLR) , where the court held:
“Making a document without authority… is merely the actus reus… The mens rea is the intent to defraud… The offence is completed when there is also the actus reus… The convictions cannot stand …”, submitted that since the appellant was alleged to have drawn pleadings without instructions of the plaintiff, it was necessary for the prosecution to establish that when the appellant drew the said pleadings she did so without instructions and the intention was to defraud the defendant company.
18. In the present case, neither actus reus nor mens rea was proved. There was no evidence demonstrating that the Appellant made, forged, or had knowledge of any falsity in the documents presented to her before instituting the suit.
19. The appellant further argued that there was no forensic evidence linking her to the alleged signatures or stamp impressions. The document examiner did not examine the Appellant’s signature at all. The findings only showed discrepancies but did not attribute them to the Appellant. The appellant relied on Njoroge Mwangi v Republic [2021] eKLR where the court held that;-
“…if a document is alleged to be signed… the signature… must be proved… There was no such evidence… The charge… was not proved beyond reasonable doubt…”
20. The appellant contends that there was nothing connecting her to the alleged documents. Further, the appellant submitted that the prosecution evidence was further weakened by the testimony of its own witnesses.
21. PW1’s evidence was inconsistent and uncorroborated, particularly regarding the alleged loss of his identification card and the absence of any supporting police report. These gaps according to the appellant created reasonable doubt which was not resolved in favor of the Appellant.
22. Further, the appellant submitted that PW2’s testimony was evasive and self-serving, aimed at distancing himself from the matter. The court failed to interrogate his contradictions or consider the professional context within which advocates operate.
23. The appellant went on to submit that in Republic v David Ruo [2016] eKLR , the court held that witness testimony must be consistent and credible, and evasive accounts warrant skepticism. Similarly, in Kariuki v Republic [1986] KLR 500, the court emphasized that professional conduct within reasonable norms cannot be criminalized absent clear evidence of wrongdoing. The appellant pleaded with this court to find that she was basically acting in good faith when she drew the subject pleadings for filing in court.
24. The evidence of PW3 and PW4 confirmed that the Appellant’s law firm had handled numerous legitimate claims, many of which had been settled, demonstrating that the Appellant’s conduct was within lawful professional practice. In Francis Njoroge v Republic [2019] eKLR , the court held that evidence supporting lawful conduct must be weighed against allegations, with doubt resolved in favor of the accused.
25. The evidence of PW5, the forensic examiner, did not implicate the Appellant. He expressly confirmed:
“I was not invited to exam a signature of Perister ,”
26. The appellant contends that the admission by P5 rendered the case against the appellant on the charge of forgery and making a false document.
27. PW6’s evidence confirming the authenticity of the identification document introduced further doubt, while PW7 confirmed that the documents were duly filed and accepted by the court registry without irregularity, reinforcing that the matter was properly within the civil process.
28. The appellant further submitted that the conduct of PW8, the investigating officer, further weakened the prosecution case. His investigations were selective and incomplete, and he failed to call crucial witnesses or pursue key lines of inquiry. The appellant cited that case of Bukenya & Others v Uganda [1972] EA 549 , the court held that failure to call material witnesses warrants an adverse inference against the prosecution. This principle applies, given the omission of critical witnesses such as Dr. Okere and other relevant persons.
29. The Appellant’s defense was clear and consistent. According to her, she acted in good faith as an advocate upon receiving instructions and documents from a client who presented himself as PW1. There was no evidence of intent to defraud or any personal benefit.
30. The appellant posited that the Learned Magistrate failed to properly evaluate this defense and instead relied on conjecture and assumptions, thereby misdirecting herself on both the law and the evidence.
31. The appellant concluded by submitting that the prosecution failed to prove the case beyond reasonable doubt. The conviction was therefore unsafe thus urged the court to allow the appeal.
RESPONDENT’S CASE
32. The respondent urged the court to dismiss the appeal and uphold both the conviction and sentence of the Learned Trial Magistrate.
33. The respondent submitted that the first three counts related to the offence of forgery contrary to Section 345 as read with Section 349 of the Penal Code.
34. Counsel submitted that Forgery is defined as “the creation of a false document or alteration of a genuine one, with intent to defraud.”
35. Further, the respondent cited Section 345 of the Penal Code stating that the it provides that “Forgery is the making of a false document with intent to defraud or deceive.”
36. The respondent cited the case of Caroline Wanjiku Ngugi vs the state (215) eKLR , in which the court set out the essential ingredients of the offence of forgery as follows:
1. The document must be forged;
2. The accused used the document as genuine;
3. The accused knew or had reason to believe that it was a forged document; and
4. The accused used it fraudulently or dishonestly, knowing or having reason to believe that it was a forged document.
37. It was the Respondent’s submission that the prosecution discharged its burden of proof by establishing the existence of the foregoing ingredients, and that the Appellant was properly found guilty of the offence of forgery.
38. The respondent went on to submit that the Appellant was further charged with the offence of forging a stamp contrary to Section 352(a) of the Penal Code.
39. According to the respondent the evidence on record demonstrated that the impugned stamp impression was used on the document in question, and no satisfactory explanation was offered as to its origin.
40. The respondent further highlighted the fact that one Peter denied having sustained any injury while at work, thereby casting serious doubt on the authenticity of the documents relied upon in the filing of the suit.
41. In regard to the two counts of Making a Document Without Authority contrary to Section 357(a) of the Penal Code the respondent submitted that all the offences arose from the same transaction, were interrelated and formed part of a continuous chain of conduct.
42. The respondent further submitted that the Appellant failed to call a crucial witness, namely the legal clerk who allegedly took the documents to John Kimathi Advocates’ office for commissioning. This omission left material gaps in the defence and weakened the Appellant’s case.
43. The respondents concluded their submission by stating that there exists a clear nexus between the evidence adduced by the prosecution and the findings contained in the Judgment of the trial court. The respondent thus posited that the prosecution sufficiently discharged its burden of proof and established the case against the Appellant beyond a reasonable doubt. The respondent therefore urged this court to dismiss the Appeal and uphold both the conviction and sentence. On the issue of sentence, the respondent submitted that sentencing remains within the discretion of this Honourable Court.
ANALYSIS AND DETERMINATION
44. The case against the appellant revolved around the filing of a suit in the name of one Kitei Peter at the Mavoko law courts which suit was alleged to have been filed without instructions thus constituting the foundation of the forgery charges and the allegation of making of a document without authority.
45. The duty of this court as a first appellate court is to re-evaluate, analyse the evidence tendered before the trial court and draw its own conclusions on the evidence while recalling that unlike the trial court this court did not have the advantage of hearing or seeing the witnesses testify thus due allowance should be made for that. See Okeno vs Republic {1972} E.A 32
46. PW1 Kitei Peter stated that he was a welder working with the Standard Gauge Railway and holds ID No. 24620225 in the name of Kitel Peter. He was born on 28/2/1985 in Kitui County Mutomo District.
47. He produced his ID as PMFI 1. He testified that he was first employed in Phase I of SGR in 2016 at Athi River though he could not recall the exact date. He later produced a letter of employment dated 24/2/2018 as PMFI 2 relating to Phase II employment. He also produced his welding certificate Grade 3 dated 30/11/2004 as PMFI 3.
48. PW1 further stated that he worked from 2016 to 2017 during Phase I and was never injured. After completion he went home and later resumed work in Phase II in February 2018.
49. He further testified that on 11/8/2018 at about 6.00am while in Rongai he was called to office DK24 by a HR officer known as Peter and later met a lady called Vero from head office. Vero showed him court documents relating to Civil Case No. 881 of 2018 at Mavoko Law Courts in which he was named as plaintiff against China Road. The documents shown to him were marked PMFI 4 series including:
• PMFI 4A summons to enter appearance
• PMFI 4B plaint
• PMFI 4C list of documents
• PMFI 4D list of witnesses
• PMFI 4E plaintiff witness statements
• PMFI 4F verifying affidavit
• PMFI 4G and 4H treatment notes and receipt from St James Clinic
• PMFI 4I copy of ID
• PMFI 4J demand letter
• PMFI 4K defence statements
• PMFI 4L employee register
• PMFI 4M construction site daily injury report
50. PW1 denied ever filing any suit against China Road and Bridge Corporation and stated that although the ID number and names on the documents were his and the signatures were not his.
51. He specifically denied signing the plaint PMFI 4B and verifying affidavit PMFI 4F and stated that the signature therein was not his despite bearing his ID number. He also noted the stamp of advocate John Kimathi on the affidavit.
52. He further denied ever being treated at St James Clinic and denied paying Kshs 1000 as indicated in PMFI 4H.
53. He stated he did not know how his ID copy PMFI 4I was obtained and used in the documents. He testified that after being shown the documents he was taken to Rongai Police Station where he recorded a statement. He also stated that he does not know the accused person Perister Kwamboka and has never instructed the firm of P K Omwenga & Associates who prepared the plaint.
54. PW1 reiterated that he has never been injured at work and has never filed any case in court. He later produced documents as exhibits including:
• Exhibit 1 summons to enter appearance
• Exhibit 2 letter of appointment dated 24/02/2018
• Exhibit 3 welding certificate
• Exhibit 4 a b c job cards covering 21/6/2018 to 20/7/2018 showing 181 hours worked
• Exhibit 5 copy of ID card
The job card confirmed his working hours and showed he did not sustain any injury.
55. Upon cross examination PW1 confirmed he joined SGR in 2016 and worked on contractual basis.
56. He stated he had an earlier ID issued on 25/2/2005 which got lost and he reported the loss at Athi River Police Station around September or October 2018 and was issued with a replacement ID on 19/10/2018 after obtaining a police abstract.
57. He stated that during employment he submitted documents including NSSF KRA PIN NHIF and ID copy. He confirmed welders worked in shifts and each group had one welder.
58. He stated he learned of Civil Case No. 881 of 2018 at Mavoko but denied signing any documents in that case or attending court. He denied knowing Perister Omwenga or any person who signed the pleadings. The witness confirmed he was shown the documents by Vero whom he had not met before and that he only recorded a police statement and was not referred to any advocate. He further testified that his supervisor was Mr Hwang and job cards were in English and Chinese.
59. He maintained that the disputed documents prepared by P K Omwenga & Associates bore signatures not his and he had never attended court in Mavoko.
60. The evidence of the witness was key in the prosecution of the appellant. He admitted to some two very important facts that the lower court appears not to have paid attention to.
61. The first being that the suit was initiated in his name and that the copy of ID that was used was his. The witness indicated to the court that at some point he had lost his Identity Card thus one would ask this, is it possible that the lost identity card is the one that was used by the person who appeared before the appellant and instructed her to file the suit?
62. Secondly, Pw1 stated that he did not know the appellant had never met her. Again, it is important to ask whether the person who instructed the appellant could have been a fraudster posing as PW1 who intended to swindle the Company through a fraudulent claim.
63. The view that this court takes is that the investigator moved too first in getting the appellant charged. The suit was pending and therefore it was definitely possible for them to have waited until the suit was set down for hearing, attend court and pounce on the “plaintiff” who would take to the stand to give evidence.
64. As it were arresting the appellant purely on account of filing pleadings was an ill -advised move considering that the investigator had established that as a matter of fact the identity card used by the appellant to file the pleadings was a genuine copy of Pw1’s Identity card.
65. At the hearing it would have been clear to everyone whether indeed the appellant had filed the suit fraudulently or on the instructions of a client posing as Pw1.
66. It is common knowledge that advocates act on instructions and once a person presents themselves to an advocate and presents an identity card purporting that it is his, the advocate would have no reason to doubt the fellow and unless the advocate knowingly participates in a fraudulent scheme by perpetuated by his client, it would be very dangerous to arrest and prosecute an advocate simply because they filed pleadings in the name of a party who says he did instruct him. It is sad that the appellant herein despite having a genuine copy of the identity card of Pw1 was charged even after Pw1 had said that he had lost his identity card thus it was possible someone bent on defrauding the Complainant company could have used the stolen identity card.
67. The principle that an advocate should not be held criminally liable for actions taken in the ordinary course of their professional duties—provided they acted in good faith and without knowledge of any underlying illegality—is a cornerstone of legal practice.
68. This protection ensures that advocates can represent their clients fearlessly without the constant threat of prosecution for the content of pleadings or the nature of their instructions. The protection is absolutely necessary to ensure that the legal practitioners are able to robustly represent their clients without being unnecessarily subjected to unwarranted threats of prosecution. The protection is necessary for the rule of law to prevail. It is important that where an advocate performs his or her duty in good faith, such counsel must not be subjected to any form of intimidation or persecution.
69. The immunity from action would only be waived where an advocate knowingly engages in criminal conduct or is guilty of wilful blindness.
70. In criminal law, the element of mens rea (guilty mind) is essential. If an advocate receives instructions "innocently" and acts in "good faith," they lack the necessary criminal intent. The appellant in this matter maintained throughout that she acted on instructions and therefore her actions were not out of intention to commit acts of fraud.
71. Pw1 having maintained that he had not instructed the appellant, the only way of determining who it was that had instructed her was to wait for them at the hearing and arrest the “plaintiff’’. The arrest and prosecution of the appellant was therefore premature considering that even the signature appearing on the verifying affidavit was not found to be hers.
72. In Tom Ojienda vs. Ethics and Anti-Corruption Commission & Others (2019) eKLR the court emphasized that an advocate cannot be held criminally liable for receiving legal fees or acting on behalf of a client unless there is clear evidence of a conspiracy or knowledge of the "tainted" nature of the funds/instructions. The court noted that advocates are not investigators of their clients' lives.
73. It follows therefore if a client appears before an advocate and instructs an advocate, the advocate is not expected to engage in an investigation as to whether the client is an innocent one or a fraudster.
74. To place such a responsibility upon the shoulders of advocates would be an unnecessary burden to legal practitioners without cause yet we have state funded institutions with the capacity to investigate any allegations of a criminal nature whenever such matters arise.
75. The other witness who gave evidence disowning the affidavit was PW2 John Kimathi who testified that his attention was drawn to the verifying affidavit which bore a stamp impression in his name as Commissioner for Oaths with address P O Box 9521-00200 Nairobi.
76. He confirmed that although the stamp impression bore his details the signature and stamp were not his and he did not commission the affidavit.
77. PW2 stated that the documents were drawn by P K Omwenga & Associates based at Unafric Building and although he knows P K Omwenga as an advocate he has never worked from that building. He testified that police initially treated him as a suspect. He took them to his office and provided his genuine stamp impression and specimen signatures. He also lodged a complaint that his stamp had been misused.
78. The evidence of that witness is important because he alleged not to have commissioned the verifying affidavit though the details on the stamp were his. The analysis of the evidence of this witness cannot be done in isolation. The appellant explained that the witness used to commission documents for her law firm and in her own words the witness was a suspect and was subjected to investigation. Pw2 stated that when he was summoned by the police, he took them to his office gave them specimen signatures but insisted that he did not sign the document and did not know who signed the document.
79. The gap left by the evidence of Pw2 would impact directly on the charges of forgery since there was no direct evidence to connect the appellant with the signing of the affidavit. it is important also to highlight that pw2 stated that when the police interrogated him, he realized he was in danger of other crimes. The witness did not however say what were the other crimes he was apprehensive off thus rendering his evidence as whether he did not commission the affidavit doubtful considering that the person who commissioned it was not uncovered.
80. The investigators did not subject the appellant’s sample handwriting and signature to forensic examination to determine whether she had forged the signature of Pw2. The fa
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