(Being an appeal from the conviction and sentence delivered on 22/11/2023 by Hon. Alex Ithuku C.M. in Kerugoya Magistrates Court Criminal Case No. E370 of 2021)
J U D G M E N T
Background
1. The appellant, Peter Muriuki Rwagi was charged and convicted of the offence of obtaining by false pretense contrary to section 313 of the Penal Code (Cap. 63) Laws of Kenya that on diverse dates between 6/1/2016 and 9/1/2018 at Kerugoya township, within Kirinyaga County, with others not before court, with intent to defraud obtained KShs 2,244,325/= from Margaret Njoki by falsely pretending that he wanted to clear with Central Bank of Kenya for them to release KShs 480,000,000/= sent to him from United States of America and share with her a reasonable amount, a fact he knew to be false.
2. After full hearing the trial court found the appellant guilty and convicted him in a judgment dated 22/11/2023. He was subsequently sentenced to serve 18 months imprisonment.
3. The appellant was dissatisfied with the judgment, conviction and sentence of the trial court and preferred an appeal through a petition of appeal dated 23/11/2023.
Grounds of appeal
4. The appellant put forth twenty grounds of appeal some of which are repetitive. The grounds can be properly summarized into the following:
i. that the learned trial magistrate erred in law and in fact in finding that the charge had been proved. It is the appellant’s contention that the charge was not proved because, there was insufficient and incredible evidence tendered by the prosecution;
ii. that there were contradictions and inconsistencies in the prosecution witness’s evidence;
iii. that the trial court disregarded the evidence tendered by the appellant and refused him to call his witness and forced him to close his case without filing submissions thereby failing to accord him a fair hearing;
iv. the prosecution evidence was hearsay and uncorroborated and thus the conviction was made against the weight of the evidence;
v. The appellant further contents that the trial court erred by failing to find that the complainant was a jilted lover out to intimidate and punish the appellant.
Submissions
5. This appeal was disposed of by way of written submissions filed by learned counsels for the appellant and for the respondent. The substance of the respective submissions is considered in the analysis following.
Duty of first appellate court
6. On a first appeal this court is required to subject the entire evidence adduced before the trial court to a fresh evaluation and analysis and draw its conclusions, but remaining alive to the fact that it neither saw nor heard any of the witnesses and so cannot comment on their demeanor. In the case of Okeno vs. Republic (1972) EA 32 the Court of Appeal for Eastern Africa while considering this issue stated that:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya V R [1975] E.A. 336)) and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala V. R [1957] E.A. 570). It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E.A. 424).”
The case before the trial court
7. The prosecution called three witnesses to support the charge. PW 1, Margaret Njoki Kariuki was the complainant. She was a business person within Kerugoya town operating an M-Pesa shop; PW 2, Bernard Gatimu is a business neighbour of the complainant; and PW 3, Cpl Aron Karos was the investigating officer.
8. When placed on his defence the accused person gave sworn evidence and denied that he committed the offence.
9. The prosecution’s case against the appellant was that he obtained a total of KShs 2,244,325/= from the complainant on various dates between 6/1/2016 and 6/10/2016. The evidence by the complainant was that the appellant became a customer at her M-Pesa outlet. He introduced himself to her as a pastor with the ACK church. On one occasion he went to her with what the complainant believed was a statement from the Central Bank of Kenya (CBK) and informed her that one Reverend Marion from the USA had sent him money, KShs 480,000,000/= through the CBK and he required funds to pay for the taxes in order for the money to be released to him. The complainant begun sending him money through his mobile phone No. 0718400400 for that purpose. She produced her M-Pesa statement showing all the transactions she had sent money to the appellant on that number, the first one being 6/1/2016 and the last one being sent on 6/10/2016. The total came to KShs 1,994,325/=. On 12/5/2016 she gave him cash KShs 47,000/= and on 1/8/2016, PW 1 approached PW 2 to assist her with money to give to the appellant. PW 2 withdrew KShs 250,000/= from his account and handed it to PW 1 who in turn gave it to the appellant for the said purpose.
10. The appellant never made available to the complainant the alleged funds he had received from the USA nor refunded the complainant’s money. He made many promises to pay, including from his advocates, but he never honoured any of them.
11. In cross-examination, the complainant denied that she was in an intimate relationship with the appellant or that she had been promised that her money would be doubled.
12. In defence, the appellant said the complainant was his friend and lover having known each other in 2013. He denied that he asked for any money from her. He said that on 17/8/2015 the complainant asked him for KShs 50,000/= when they met at Wananchi butchery in Kerugoya town and he gave her. She took him to her home on 28/5/2016 whereat she asked him for KShs 800,000/= but he did not have the money so he did not give her. He had a case in the Magistrates Court in Nairobi CMCC No. 2654/2015 but when he tried to execute the other party went to the High Court and obtained an order of stay. He also said that he had another case in High Court Nairobi HCCC No. 464 of 2019 over his shares worth KShs 21,556,600/=. He also had another case in the High Court HCCC No. 464 of 2014. He said he believed all the money the complainant sent him was to assist him in his said court cases.
13. He said that M-Pesa statement of 2/5/2023 for the period 1/1/2016 to 31/12/2018 showed that the complainant sent him KShs 1,587,010/= in that period.
Analysis
14. I have considered the grounds of appeal, the submissions by both parties and the evidence tendered at the trial of the appellant. I find the issues for determination in this appeal to be as follows:
i. Whether the prosecution proved its case against the appellant beyond a reasonable doubt.
ii. Whether the trial court failed to consider the appellant’s defence.
iii. Whether the trial court breached the appellant’s right to a fair trial by denying him an opportunity to call a witness in defence and to file submissions.
15. The offence of obtaining by false pretences as provided for under section 313 of the Penal Code is proved when the prosecution establishes each of the following ingredients beyond a reasonable doubt:
i. obtaining something capable of being stolen.
ii. obtaining the thing through a false pretence.
iii. obtaining the thing with an intention to defraud.
16. Learned counsel for the appellant submits that the learned trial magistrate misapplied the law by failing to appreciate that the elements of the offence of obtaining by false pretences had not been proved by the prosecution since the appellant was willing to repay the money borrowed from the complainant. That the appellant did not intent to permanently deprive the complainant of the money. Learned counsel has cited the case of Charles Mutua Mutemi v Republic [2022] KEHC 1138 (KLR) to support his submission.
17. Learned counsel for the respondent submits that the complainant proved through documentation that she sent money to the appellant through M-pesa, physical handing over of cash in the presence of PW 2.
18. On the first ingredient, it was the prosecution’s case that the appellant obtained KShs 2,244,325/= from the complainant. The learned trial magistrate found and I agree with him that not only did the prosecution prove through the evidence of PW 1 and PW 2 that the complainant received money from the complainant, the appellant conceded that he indeed received some money. His contention was that what the complainant alleged she gave him did not tally with his own calculation. As found by the learned trial magistrate, that is immaterial. What is required to be proved is that he obtained something capable of being stolen. In this case, it was money and there is no dispute about that. I am satisfied and find that this ingredient was proved beyond a reasonable doubt.
19. The second ingredient is obtaining the thing through false pretence. False pretense is defined under section 312 of the Penal Code and it has been explained in various authorities (see the case of Joseph Wanyonyi Wafukho v Republic [2014] eKLR) to bear the following ingredients:
a) A representation of fact by word, writing or conduct;
b) The representation is either past or present;
c) The representation must be false; and
d) The person made the representation knowing it to be false or did not believe it to be true.
20. In the case of Josphat Kariuki Kariuki v Republic [2017] eKLR the High Court held that the operative word under Section 312 is “representation.” The issue then is was there representation by the appellant to the complainant and if yes, what was it?
21. The complainant said that the appellant told her that he had been sent money, KShs 480,000,000/= by Reverend Marion from the USA. The money was at the CBK but he required money to pay for some taxes. PW 2 gave evidence that indeed, while in the presence of the appellant, the complainant told him that story and that is how he ended up giving her KShs 250,000/= which the complainant then handed over to the appellant. I have also seen correspondence by phone messages between the appellant and the complainant where the complainant was asking the appellant when he would refund her money. The appellant informed the complainant that he was waiting for terrorism clearance certificate to be certified by Njoro then it is taken to the banks and they will get money. It is a matter of public knowledge that the Governor of CBK at the time was one Patrick Njoroge. The appellant had told the complainant that he was friends with the Governor of CBK. The short name Njoro in that message would be referring to Njoroge, the CBK Governor at the time. A reading of that message on those terms corroborates the complainant’s evidence that the appellant had represented to her that there was money at the CBK. In the message he was telling the complainant that he was waiting for terrorism clearance certificate to be certified by Njoro (the CBK governor) then the money will be taken to the banks and they get it.
22. In the case of Gerald Ndoho Munjuga v Republic [2016] eKLR these ingredients are extensively discussed by the High Court. In that case, Mativo, J. (as he then was) held that:
“The offence of obtaining by false pretence means knowingly obtaining another person's property by means of a misrepresentation of fact with intent to defraud. For the offence of obtaining by false pretences to be committed, the prosecution must prove that the accused had an intention to defraud and the thing is capable of being stolen. An inducement on the part of an accused to make his victim part with a thing capable of being stolen or to make his victim deliver a thing capable of being stolen will expose the accused to imprisonment for the offence.”
23. A key element of the offence is inducement by the accused person to the complainant to part with the ownership of the thing.
24. In the present case, the appellant induced the complainant by representing to her that he had a large sum of money to be cleared from the CBK and that is what caused her to part with her money to him.
25. In the Josphat Kariuki Kariuki (supra) the High Court, considering this section said the court must interrogate the representation forming the basis of this charge to determine whether it falls within the definition under Section 312 of the Penal Code. It said further that the test is whether the promise made was of existing facts or of a promise of future events. The Court then cited the finding of Lord Wilberforce in British Airways Board v. Taylor [1976] 1 WLR 13, as follows:
“My Lords, the distinction in law between a promise as a future action, which may be broken or kept, and a statement as to existing fact, which may be true or false, is clear enough. There may be inherent in a promise an implied statement as to fact, and where this is really the case, the court can attach appropriate consequences to any falsity in, or recklessness in the making of, that statement. Everyone is familiar with the proposition that a statement of intention may itself be a statement of fact and so capable of being true or false. But this proposition should not be used as a general solvent to transform the one type of assurance with another: the distinction is a real one and requires to be respected, particularly where the effect of treating an assurance as a statement is to attract criminal consequences...”
26. In the present case, the representation was that the appellant had money at the CBK which required more funds for clearance. How the complainant, a business person, could not see the deceit in this I cannot fathom. However, it is apparent that it was a representation of non-existent money which therefore was a false representation and which under all the circumstances the appellant knew was false.
27. The learned trial magistrate rejected the appellant’s contention that the complainant had brought charges against him on account of a love relationship gone soar as false. I am satisfied that this finding was correct. The complainant denied in her evidence that they were in such a relationship and the correspondence produced in evidence does not even allude to there being such a relationship. Therefore, the contention that the learned trial magistrate failed to consider or give weight to the appellant’s defence is without merit and the same is rejected. The learned trial magistrate properly analyzed the evidence and arrived at the correct conclusion.
28. The appellant also contends that the court denied him a right to a fair trial by declining to have him call a witness in defence. That is not correct. The appellant was represented by counsel throughout. That issue was never raised before the trial court. Secondly, the appellant’s case was adjourned twice when he requested for the same in order to make available his witness. At the time, the advocate informed the court that the witness was to authenticate some photographs which the court had in the first place declined to admit in evidence. I do not think the evidence of that witness would have added much weight to the appellant’s case. If he was to adduce evidence of a photograph showing that the complainant had sent some explicit image of herself to the appellant an therefore that they were in an intimate relationship, that evidence would not have discounted the strong evidence by the complainant that she gave out the money on the representation made to her by the appellant and not on account of their relationship.
29. I am satisfied that there was a false pretence committed by the appellant as provided under section 312 of the Penal Code and an intention to defraud the complainant of her money on the part of the appellant herein. The ingredients of the offence are false representation of a fact with the intention that the other party should act on it and that party suffers damage. (see the case of Charles Mutua Mutemi v Republic [2022] eKLR). That is exactly what the appellant did to the complainant herein.
30. PW 1 suffered damage by the false representation of the appellant as she lost her money to him. I am satisfied that the prosecution adduced sufficient evidence to demonstrate that the appellant herein made a false representation of an existing fact, that he intended PW 1 to act on that false representation, that PW 1 acted on the false representation made by the appellant and lost her money to him by fraud.
31. Consequently, I find that the prosecution proved that charge of obtaining money through false pretences against the appellant beyond a reasonable doubt as required by law. For the said reasons, I find that the appeal has no merit and the same is dismissed. The judgment of the trial court both on conviction and sentence is affirmed.
ANDAYI W. FRANCIS
JUDGE
Dated and delivered on the Virtual Platform, Teams, this 16th day of June 2025 in the presence of:
Gori for the appellant.
Amamba h/b for Jamlick for the respondent.
Job: Court assistant.
J U D G M E N T
Background
1. The appellant, Peter Muriuki Rwagi was charged and convicted of the offence of obtaining by false pretense contrary to section 313 of the Penal Code (Cap. 63) Laws of Kenya that on diverse dates between 6/1/2016 and 9/1/2018 at Kerugoya township, within Kirinyaga County, with others not before court, with intent to defraud obtained KShs 2,244,325/= from Margaret Njoki by falsely pretending that he wanted to clear with Central Bank of Kenya for them to release KShs 480,000,000/= sent to him from United States of America and share with her a reasonable amount, a fact he knew to be false.
2. After full hearing the trial court found the appellant guilty and convicted him in a judgment dated 22/11/2023. He was subsequently sentenced to serve 18 months imprisonment.
3. The appellant was dissatisfied with the judgment, conviction and sentence of the trial court and preferred an appeal through a petition of appeal dated 23/11/2023.
Grounds of appeal
4. The appellant put forth twenty grounds of appeal some of which are repetitive. The grounds can be properly summarized into the following:
i. that the learned trial magistrate erred in law and in fact in finding that the charge had been proved. It is the appellant’s contention that the charge was not proved because, there was insufficient and incredible evidence tendered by the prosecution;
ii. that there were contradictions and inconsistencies in the prosecution witness’s evidence;
iii. that the trial court disregarded the evidence tendered by the appellant and refused him to call his witness and forced him to close his case without filing submissions thereby failing to accord him a fair hearing;
iv. the prosecution evidence was hearsay and uncorroborated and thus the conviction was made against the weight of the evidence;
v. The appellant further contents that the trial court erred by failing to find that the complainant was a jilted lover out to intimidate and punish the appellant.
Submissions
5. This appeal was disposed of by way of written submissions filed by learned counsels for the appellant and for the respondent. The substance of the respective submissions is considered in the analysis following.
Duty of first appellate court
6. On a first appeal this court is required to subject the entire evidence adduced before the trial court to a fresh evaluation and analysis and draw its conclusions, but remaining alive to the fact that it neither saw nor heard any of the witnesses and so cannot comment on their demeanor. In the case of Okeno vs. Republic (1972) EA 32 the Court of Appeal for Eastern Africa while considering this issue stated that:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya V R [1975] E.A. 336)) and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala V. R [1957] E.A. 570). It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E.A. 424).”
The case before the trial court
7. The prosecution called three witnesses to support the charge. PW 1, Margaret Njoki Kariuki was the complainant. She was a business person within Kerugoya town operating an M-Pesa shop; PW 2, Bernard Gatimu is a business neighbour of the complainant; and PW 3, Cpl Aron Karos was the investigating officer.
8. When placed on his defence the accused person gave sworn evidence and denied that he committed the offence.
9. The prosecution’s case against the appellant was that he obtained a total of KShs 2,244,325/= from the complainant on various dates between 6/1/2016 and 6/10/2016. The evidence by the complainant was that the appellant became a customer at her M-Pesa outlet. He introduced himself to her as a pastor with the ACK church. On one occasion he went to her with what the complainant believed was a statement from the Central Bank of Kenya (CBK) and informed her that one Reverend Marion from the USA had sent him money, KShs 480,000,000/= through the CBK and he required funds to pay for the taxes in order for the money to be released to him. The complainant begun sending him money through his mobile phone No. 0718400400 for that purpose. She produced her M-Pesa statement showing all the transactions she had sent money to the appellant on that number, the first one being 6/1/2016 and the last one being sent on 6/10/2016. The total came to KShs 1,994,325/=. On 12/5/2016 she gave him cash KShs 47,000/= and on 1/8/2016, PW 1 approached PW 2 to assist her with money to give to the appellant. PW 2 withdrew KShs 250,000/= from his account and handed it to PW 1 who in turn gave it to the appellant for the said purpose.
10. The appellant never made available to the complainant the alleged funds he had received from the USA nor refunded the complainant’s money. He made many promises to pay, including from his advocates, but he never honoured any of them.
11. In cross-examination, the complainant denied that she was in an intimate relationship with the appellant or that she had been promised that her money would be doubled.
12. In defence, the appellant said the complainant was his friend and lover having known each other in 2013. He denied that he asked for any money from her. He said that on 17/8/2015 the complainant asked him for KShs 50,000/= when they met at Wananchi butchery in Kerugoya town and he gave her. She took him to her home on 28/5/2016 whereat she asked him for KShs 800,000/= but he did not have the money so he did not give her. He had a case in the Magistrates Court in Nairobi CMCC No. 2654/2015 but when he tried to execute the other party went to the High Court and obtained an order of stay. He also said that he had another case in High Court Nairobi HCCC No. 464 of 2019 over his shares worth KShs 21,556,600/=. He also had another case in the High Court HCCC No. 464 of 2014. He said he believed all the money the complainant sent him was to assist him in his said court cases.
13. He said that M-Pesa statement of 2/5/2023 for the period 1/1/2016 to 31/12/2018 showed that the complainant sent him KShs 1,587,010/= in that period.
Analysis
14. I have considered the grounds of appeal, the submissions by both parties and the evidence tendered at the trial of the appellant. I find the issues for determination in this appeal to be as follows:
i. Whether the prosecution proved its case against the appellant beyond a reasonable doubt.
ii. Whether the trial court failed to consider the appellant’s defence.
iii. Whether the trial court breached the appellant’s right to a fair trial by denying him an opportunity to call a witness in defence and to file submissions.
15. The offence of obtaining by false pretences as provided for under section 313 of the Penal Code is proved when the prosecution establishes each of the following ingredients beyond a reasonable doubt:
i. obtaining something capable of being stolen.
ii. obtaining the thing through a false pretence.
iii. obtaining the thing with an intention to defraud.
16. Learned counsel for the appellant submits that the learned trial magistrate misapplied the law by failing to appreciate that the elements of the offence of obtaining by false pretences had not been proved by the prosecution since the appellant was willing to repay the money borrowed from the complainant. That the appellant did not intent to permanently deprive the complainant of the money. Learned counsel has cited the case of Charles Mutua Mutemi v Republic [2022] KEHC 1138 (KLR) to support his submission.
17. Learned counsel for the respondent submits that the complainant proved through documentation that she sent money to the appellant through M-pesa, physical handing over of cash in the presence of PW 2.
18. On the first ingredient, it was the prosecution’s case that the appellant obtained KShs 2,244,325/= from the complainant. The learned trial magistrate found and I agree with him that not only did the prosecution prove through the evidence of PW 1 and PW 2 that the complainant received money from the complainant, the appellant conceded that he indeed received some money. His contention was that what the complainant alleged she gave him did not tally with his own calculation. As found by the learned trial magistrate, that is immaterial. What is required to be proved is that he obtained something capable of being stolen. In this case, it was money and there is no dispute about that. I am satisfied and find that this ingredient was proved beyond a reasonable doubt.
19. The second ingredient is obtaining the thing through false pretence. False pretense is defined under section 312 of the Penal Code and it has been explained in various authorities (see the case of Joseph Wanyonyi Wafukho v Republic [2014] eKLR) to bear the following ingredients:
a) A representation of fact by word, writing or conduct;
b) The representation is either past or present;
c) The representation must be false; and
d) The person made the representation knowing it to be false or did not believe it to be true.
20. In the case of Josphat Kariuki Kariuki v Republic [2017] eKLR the High Court held that the operative word under Section 312 is “representation.” The issue then is was there representation by the appellant to the complainant and if yes, what was it?
21. The complainant said that the appellant told her that he had been sent money, KShs 480,000,000/= by Reverend Marion from the USA. The money was at the CBK but he required money to pay for some taxes. PW 2 gave evidence that indeed, while in the presence of the appellant, the complainant told him that story and that is how he ended up giving her KShs 250,000/= which the complainant then handed over to the appellant. I have also seen correspondence by phone messages between the appellant and the complainant where the complainant was asking the appellant when he would refund her money. The appellant informed the complainant that he was waiting for terrorism clearance certificate to be certified by Njoro then it is taken to the banks and they will get money. It is a matter of public knowledge that the Governor of CBK at the time was one Patrick Njoroge. The appellant had told the complainant that he was friends with the Governor of CBK. The short name Njoro in that message would be referring to Njoroge, the CBK Governor at the time. A reading of that message on those terms corroborates the complainant’s evidence that the appellant had represented to her that there was money at the CBK. In the message he was telling the complainant that he was waiting for terrorism clearance certificate to be certified by Njoro (the CBK governor) then the money will be taken to the banks and they get it.
22. In the case of Gerald Ndoho Munjuga v Republic [2016] eKLR these ingredients are extensively discussed by the High Court. In that case, Mativo, J. (as he then was) held that:
“The offence of obtaining by false pretence means knowingly obtaining another person's property by means of a misrepresentation of fact with intent to defraud. For the offence of obtaining by false pretences to be committed, the prosecution must prove that the accused had an intention to defraud and the thing is capable of being stolen. An inducement on the part of an accused to make his victim part with a thing capable of being stolen or to make his victim deliver a thing capable of being stolen will expose the accused to imprisonment for the offence.”
23. A key element of the offence is inducement by the accused person to the complainant to part with the ownership of the thing.
24. In the present case, the appellant induced the complainant by representing to her that he had a large sum of money to be cleared from the CBK and that is what caused her to part with her money to him.
25. In the Josphat Kariuki Kariuki (supra) the High Court, considering this section said the court must interrogate the representation forming the basis of this charge to determine whether it falls within the definition under Section 312 of the Penal Code. It said further that the test is whether the promise made was of existing facts or of a promise of future events. The Court then cited the finding of Lord Wilberforce in British Airways Board v. Taylor [1976] 1 WLR 13, as follows:
“My Lords, the distinction in law between a promise as a future action, which may be broken or kept, and a statement as to existing fact, which may be true or false, is clear enough. There may be inherent in a promise an implied statement as to fact, and where this is really the case, the court can attach appropriate consequences to any falsity in, or recklessness in the making of, that statement. Everyone is familiar with the proposition that a statement of intention may itself be a statement of fact and so capable of being true or false. But this proposition should not be used as a general solvent to transform the one type of assurance with another: the distinction is a real one and requires to be respected, particularly where the effect of treating an assurance as a statement is to attract criminal consequences...”
26. In the present case, the representation was that the appellant had money at the CBK which required more funds for clearance. How the complainant, a business person, could not see the deceit in this I cannot fathom. However, it is apparent that it was a representation of non-existent money which therefore was a false representation and which under all the circumstances the appellant knew was false.
27. The learned trial magistrate rejected the appellant’s contention that the complainant had brought charges against him on account of a love relationship gone soar as false. I am satisfied that this finding was correct. The complainant denied in her evidence that they were in such a relationship and the correspondence produced in evidence does not even allude to there being such a relationship. Therefore, the contention that the learned trial magistrate failed to consider or give weight to the appellant’s defence is without merit and the same is rejected. The learned trial magistrate properly analyzed the evidence and arrived at the correct conclusion.
28. The appellant also contends that the court denied him a right to a fair trial by declining to have him call a witness in defence. That is not correct. The appellant was represented by counsel throughout. That issue was never raised before the trial court. Secondly, the appellant’s case was adjourned twice when he requested for the same in order to make available his witness. At the time, the advocate informed the court that the witness was to authenticate some photographs which the court had in the first place declined to admit in evidence. I do not think the evidence of that witness would have added much weight to the appellant’s case. If he was to adduce evidence of a photograph showing that the complainant had sent some explicit image of herself to the appellant an therefore that they were in an intimate relationship, that evidence would not have discounted the strong evidence by the complainant that she gave out the money on the representation made to her by the appellant and not on account of their relationship.
29. I am satisfied that there was a false pretence committed by the appellant as provided under section 312 of the Penal Code and an intention to defraud the complainant of her money on the part of the appellant herein. The ingredients of the offence are false representation of a fact with the intention that the other party should act on it and that party suffers damage. (see the case of Charles Mutua Mutemi v Republic [2022] eKLR). That is exactly what the appellant did to the complainant herein.
30. PW 1 suffered damage by the false representation of the appellant as she lost her money to him. I am satisfied that the prosecution adduced sufficient evidence to demonstrate that the appellant herein made a false representation of an existing fact, that he intended PW 1 to act on that false representation, that PW 1 acted on the false representation made by the appellant and lost her money to him by fraud.
31. Consequently, I find that the prosecution proved that charge of obtaining money through false pretences against the appellant beyond a reasonable doubt as required by law. For the said reasons, I find that the appeal has no merit and the same is dismissed. The judgment of the trial court both on conviction and sentence is affirmed.
ANDAYI W. FRANCIS
JUDGE
Dated and delivered on the Virtual Platform, Teams, this 16th day of June 2025 in the presence of:
Gori for the appellant.
Amamba h/b for Jamlick for the respondent.
Job: Court assistant.