‘But the Lord is faithful. He will establish you and guard you against the evil one.’
The above is an assurance to those who profess Christian faith get from the biblical book of 2 Thessalonians chapter 3 verse 3. I have quoted this verse which resonates with several others found in the Holy Bible not because I elevate the Christian faith over all the others faiths or beliefs or lack of them but because this matter revolves around belief in the mystery works of what is said to be control of human lives by an unseen spiritual realm. I am sure that all other faiths have similar assurance of the human being watched over by supernatural beings.
The complainants and the appellants were brought together by the complaints’ desire to seek solutions to a problem which had allegedly visited their home for some period of time which the appellants are said to have promised to solve. The journey did not end well as the complainants allegedly lost or should I say spent huge amount of money without their troubles waning while the appellants ended cooling their feet in jail.
The appellants were charged, prosecuted and convicted in Kithinami Senior Principal Magistrate’s Court criminal case number E518 of 2022 with the following counts;
Count 1- obtaining money by false pretence contrary to Section 313 of the Penal Code particulars being that on diverse dates between 1st April 2022 and 27th May 2022 with others not before court at Matuu trading centre Matuu location in Yatta Subcounty within Machakos County with intent to defraud obtained from John Kivungu cash 4,206,000.00 by falsely pretending that after a ritual, a miracle will happen and the amount of money to increase to 150,000,000/= a fact they knew to be false.
Second count- obtaining money by false pretence contrary to Section 313 of the Penal Code particulars being that on diverse dates between 9th April 2022 and 22nd May 2022 at different places namely Nairobi, Machakos and Tanga found within the limits of Kenya and Tanzania countries with others not before court with intent to defraud obtained cash 1,490,340.00 by way of Mpesa system by falsely pretending that they were in a position to cast out evil spirits and demons a fact they knew to be false.
Third count- being unlawfully present in Kenta contrary to Section 53(1)(J)(2) of the Kenya Citizenship and Immigration Act 2019 particulars being that on the 27th day of May 2022 at Matuu trading Centre Matuu location in Yatta Subcounty within Machakos County they were found to have been unlawfully present in Kenya.
The fourth Count against the 1st appellant- personation contrary to Section 382(1) as read with Section 36 of the Penal Code particulars being that on diverse dates between 9th April 2022 and 27th May 2022 at Matuu/Kithimani location in Yatta Subcounty within Machakos County, with intent to defraud falsely presented himself to be Michael Waiharo to John Kivungo.
The prosecution called three witnesses at the end of which the appellants were found to have a case to answer following which they gave sworn statements and the court found them guilty in all counts and sentenced them to serve three years in jail in the first and 2nd counts, six months in count three and twelve months in the 4th count for the 1st appellant. The sentences were ordered to run consecutively. The evidence of the parties is produced hereinbelow.
The prosecution’s case
PW1 was the complaint who told the court that on 14/3/2022 he was travelling with his wife from Tharaka Nithi through Embu and while at Kikumini Market, they stopped at a joint owned by one Joseph Wambua who they knew well. At the parking, they found a car with Tanzanian registration number and four people having lunch at the joint. His wife asked who the people were and they were informed that one was Maji Marefu a leading witchdoctor from Tanzania. He added that they used to have a problem of witchcraft which had been planted in their home and farm and were looking for a person to remove the same and that they were told that the person could do this work.
His wife went to the vehicle and introduced himself to the person who promised to help and asked Wambua to give his wife his number. They went home and on 29/3/2022, his wife called Maji Marefu whose real name was Thomas Steven (hereinafter referred to as ‘Thomas’) and who promised to visit their place on 1/4/2022. The witchdoctor came on that date at around 2000 hrs together with the appellants and another person who was not in court. After a short discussion, Thomas called it a small problem and proceeded to the farm in Athi River which is 300 m from home and confirmed evil spirits had been planted in their farm and home. They walked him around and he confirmed where the spirits had been planted and promised to remove them on the following day.
PW1 added that Thomas told him that he would only require Kshs. 20,000/- to confirm his seriousness and he sent him Kshs. 20,000/-. On 29th March, Thomas had had asked for Kshs. 3,000/- for fuel which the complaint’s wife paid him. On 2/4/2022, Thomas and the three other persons went to the farm and removed three strange objects. They dug the things out behind the pit latrine, inside a small house used as a store and next to a mango tree in the middle of the farm. Thomas said that the other items were at home and he would come the following day. On 3/4/2022, they went again to the homestead and also removed some objects behind the house. PW1 identified the five objects in court.
On inquiry of what would happen to those items, Thomas said he wanted a goat upon which they selected the biggest and fattest goat in his shed and cut the its throat and directed the blood to the five objects. They told him that they would dispose the meat in Athi and Tana rivers as they do not consume it and asked for a sack in which they put the goat meat and left.
The complainant added that on 4/4/2022, Rashid called and told him that, he had been instructed by Daktari that they needed 60 eggs from a special fish found only in Indian Ocean which would cost Kshs. 600/- each and he sent Kshs. 36,000/- to Thomas. After 2 days, Thomas said that the eggs had been sent and would need to be put in a freezer and again told him that they needed an animal to be found in Meru National Park valued at Kshs. 150,000/-. They negotiated for five days and the price of the animal was lowered to Kshs. 50,000/- and Thomas asked him to send to Rashid. He sent the money to Rashid’s number which showed the name of Michael Waiharo. The complaint identified his Mpesa statement which showed that he sent the Kshs 50,000.00 to Michael Waiharo.
The complainant added that on 10/4/2022, the people came to his farm carrying some eggs in a small container with water, went round and threw the eggs to cast away demons. They asked for 10 small bottles and put some concoctions in them and placed them in the four corners of the farm and home. Thomas assured him that all was well and on 11/4/2022, Rashid called him on his phone and texted and said that they needed two heads of sheep which could be bought in Ngong at Kshs. 600/-. On 12/4/2022, they went to the complainant’s home with the two sheep head and third one which they placed in the farm and homestead and told him that the purpose of the heads was to fool his enemies who had sent him the evils spirits.
On the same day, Thomas told the complainant that his money had been bewitched and needed cleansing. He asked him to look for Kshs. 200,000/- and after two days, the complainant called and told him that the money was ready which he gave in cash. Thomas had also asked for 3 pieces of red, white and black sheets which the complainant identified in court. They also asked him to buy one full and one broken clay pots which he also identified in court.
PW1 stated further that Thomas gave him one of the pots with a concoction. He picked a white cloth and wrapped the money in it and gave the complainant one clay pot with concoction and asked him to go round his home for seven times and as he was going round, he saw his wife who he had left with the money also move around.
After, Thomas asked for a live chicken which they caught and gave him and he asked Rashid to cut the throat and let it loose. When it was cut and died, the chicken’s legs folded and Thomas told them that was a sign the spirits had refused to go and asked him to go with them to their main office in Tanga Tanzania where their spirits live. Thomas told Rashid and one Mustaba to take the money and bring it next to the sheep head and they buried the Kshs. 200,000/-. The complainant pointed out that Thomas did not allow them to confirm the wrapping of the money and added that it was not money that was buried.
The complainant stated further that they visited Thomas’ main office in Tanga between 17th and 20th April 2022. Thomas asked him for Kshs. 10,000/- for fuel from Nairobi to Tanga which he sent using his phone. On 17/4/2022, he travelled to Kitengela where Rashid was waiting and they proceeded to Namanga where they found Thomas and the appellants waiting for them. They obtained passports at 2000 hrs and were taken to Safari Lodge in Tanzania and proceeded to Tanga on 18/4/2022 where they arrived at 1700 hrs. Rashid took them to Mbembe hotel where the complainant paid for accommodation and food.
He added that on 19/4/2022, Idd and the appellants picked them from their hotel and took them to their offices which was a hill with a storey entrance cave. The 2nd appellant who was the driver was left guarding the car as the 1st appellant led them into the caves where they found Thomas waiting for them who together with Rashid invited them by saying "Hodi Hodi Hodi" and asked them to join in saying Hodi. They then heard a voice from far speaking in a foreign language which Thomas translated in Kiswahili and told them that the spirits wanted the complainant, his wife or their children.
He added that Thomas asked Rashid to lead them to some other places and after 30 minutes Thomas called them back to where they were speaking to the gods and told them that the spirits had agreed and he wanted the complainant to offer a camel whose price was Kshs. 250,000/-. Rashid called a camel’s seller who brought the price down to Kshs. 235,000/- together with some oil. He added that they said that they needed to make a shed for slaughtering the camel which was priced at Kshs. 10,000/- which he gave Rashid. He added that Kshs. 235,000/- was sent to Rashid which was in his Mpesa statement which he identified.
On 20/4/2022, they were taken to a place where they found Thomas waiting for and they were shown a camel's head and fresh blood. Thomas told them that the camel’s meat is given to the fathers at the mosque and took a razor blade and cut their bodies and smeared them with some concoction (reference to ‘them’ in here is presumably the complainant and his wife). They travelled back home on 20/4/2022 and from 23rd to 26th April 2022, Thomas, Rashid, Iddi and Mustaba used to come to the complainant’s home every day doing some rituals.
The complainant added that on 26/4/2022, Thomas told them that the spirits’ owners had discovered it had been uprooted and were fighting back. He advised them to make another trip to Tanga between 30/4/2022 and 5/5/2022 and asked for Kshs. 10,000/= for fuel which he did. The complainant fuelled the cars and took care of accommodation for the appellants with 2nd appellant being the driver.
The next day, the appellants came and took them to the cave where they found Thomas waiting for them and who asked them what he should do with their enemies. They wrote the names of their enemies and Thomas promised to kill them one by one after 2 weeks. Thomas then instructed them to give Rashid money to buy an empty box, 3 sheets (red, black and white) measuring 1 1/2 metres and the complainant gave him close to Kshs. 30,000/-. Rashid purchased the items and a new clay pot and on the next day, they took them to the cave. Thomas opened a box which was empty and gave them a paper to write the names of their enemies. They listed 18 enemies and put the list in the box.
PW1 added that Thomas sent them away and called them again and opened the box upon which they found it full of money and Thomas told them that it was 30 million which he said had been pulled from the complainant’s enemies. He gave them directions on how the money will become theirs and asked them to bring 36 bundles of Islamic religious books valued at Kshs. 66,000/- which the complainant sent to the 1st appellant’s line. He added that the box would be transported by sea from Tanga to Langalanga by speed boat at Kshs. 165,000/- which he sent to Thomas on his Mpesa line. Thomas would get the box at Langalanga and transport it to the complainant’s home.
He stated further that Thomas told them that their enemies had planted a maasai spirit at their gate and were waiting for them to take their blood. They travelled back home and on 6/5/2022, Rashid asked them to buy 20 litres of water at Kshs. 5,000/-, a bottle of oil at Kshs. 20,000/=, eight packets of special flour at Kshs. 18,000/- and a bow 250 valued at Kshs. 75,850/- for the spirits. The complainant added that he sent the money to Rashid to buy and bring a certain sculpture which was required.
On 7/5/2023, the appellant and went with Thomas to the complainant’s home carrying the box in his car and small calabash. Thomas had promised to move with two spirits in the calabash. They went to the complainant’s daughter’s bedroom which was not in use and opened the box and showed them the money. He gave them Kshs. 10,000/- to spend and Kshs. 6,000/- to bank in the complaint’s bank account. He also asked them to buy one bag and two padlocks and he locked the bedroom and went with the key. Thomas told them that they were to purchase oil for cleaning money in Pemba and Zanzibar in order to access the 30 million. For this purpose, the complainant sent Kshs. 13,000/- to Rashid for fuel and subsistence. He identified ten bottles of the cleansing oil each of which was costing Kshs. 61,500/- totalling to Kshs. 615,000/-. Other expences were; cost of hiring a boat at Kshs. 55,000/-, purchase of a cow at Kshs. 26,000/-, incense at Kshs. 5/- and trip cost of Kshs. 701,000/-. This money was sent to Rashid in various transactions.
The complainant added that on 15/5/2022, Thomas’ group came to his home carrying the oils and when they opened the bedroom, they found a live snake inside the bedroom and Thomas told him that the snake was an evil spirit that was fighting back and they needed to go back to Tanga. He asked him to sit on the floor to get directions. They put a bag on complainant and his wife’s heads and covered their hand with two sheets and put the calabash of the two spirits on their head. They heard a woman voice and child in the calabash speaking in a foreign language which Thomas was translating. The directions were that, they should look for Kshs 701,000/= to be mixed with the cleansing oil and warm water and bath with it for five days.
He added that they did what the spirit directed and on 16/5/2022, they went to Machakos Standard Chartered and withdrew Kshs 700,000/- and added Kshs. 1,000/- which money they mixed with the oil and bathed with the warm water for 5 days. Thomas then asked him to fold the money in a white sheet in a basin and on the bed. They killed the small snake.
The complainant added that there was a third trip to Tanga for medication against the snakes between 18/5/2022 and 21/5/2022. The appellants took them to the caves where they found Thomas who made cuttings from bushes and mixed them with a concoction. He asked them to speak to spirits and translated for them. Thomas said the spirit wanted one more cow and some kind of oil which would cost them Kshs 55,000.00 and Kshs. 250,000/- respectively. The complainant sent the money to 1st appellant and the spirits said that they should also pay Thomas Kshs 130,000.00 for his services which the complainant sent to his Mpesa line on 21-05-2022 to avoid the disappearance of the money in the box. He added that the spirit told them that the money had multiplied to 50 million and that was the maximum limit and that they should not complain as they were already millionaires.
The complainant stated further that they were told that before getting the money they should get "vifurushi vya pesa". Rashid called and told him that the five ‘vifurushi vya pesa’ needed a trip to Pemba at a cost of 701,000 totalling to Kshs 3,505,000/-. They were to look for this money to cleanse the god’s money. He went to the bank and withdrew the Kshs. 3,500,000/- and went home where they divided the money into two and mixed it with another Kshs 701,000.00 and oil in a basin and bathed with it twice.
On 25/5/2022, Thomas, Rashid and Mustaba came to his home at 2200 hrs and went straight to where the box was. Thomas asked for the money in the basin and gave the complainant the special oil. He asked the complainant to go round the house with the 1st appellant and the complainant’s wife pouring the oil four times and on the fourth round, they found Thomas who seemed to be in a hurry standing outside the main house. He had put the money in a bag which he had locked with padlocks and asked them to put the bag under their bed and not to come out. They got in the vehicle and drove off.
PW1 stated further that Thomas told them that they would come the following day and go to their Matuu office where the complainant would buy a new bag and the money in the box would miraculously get into his bag. On 26/5/2022, they came in a hurry at 2000hrs and Thomas asked the appellants to put the bag containing Kshs. 4,206,000/- inside his car and the box containing Kshs. 150,000,000/- in the complainant’s car. Thomas and Mustaba led in their car to their Matuu office with the complainant, his wife and the 1st appellant in the complainant’s car.
Thomas asked the 1st appellant to get the bags and keep them in one of the rooms and called the complainant and his wife inside. He opened the box and the money was inside. He then sent the complainant, his wife and the 1st appellant to the market to get another bag and two new padlocks which they did and came back. He asked again to go buy two new padlocks. He also asked them to say a small prayer in Islam upon which the money would move to the new bag they had purchased.
The complainant added that Thomas asked them to wait for 15 minutes in the next room and later called them and opened the box which was said to have had Kshs. 150,000,000/= but was empty. He then opened the new bag and pulled out notes and asked the complainant to count which turned out to be Kshs. 100,000/. Thomas asked the complainant to pour the special oil but did not allow him to peep inside the bag. They were to spend Kshs. 4,000/- of the said KShs 100,000.00 and deposit the balance in his account at Thika which they did.
Thomas asked Rashid to load the bag in the complainant’s car back the box and load it on car and promised to come the following day. The complainant was to call Thomas upon banking and look for petrol and burn the broken pieces of the box. He asked the complainant to wait for instructions to open the bag and when he was called after the deposit, Thomas asked for Kshs. 10,000/= for fuel to visit the complainant but he never turned up.
The complainant added that there was a fourth trip to Tanga. On 28/5/2022 Thomas called the complainant’s wife at 1600 hrs and said that the time for burning the box had expired and it was a bad omen on their part. Thomas asked the complainant to burn it himself, send him a photo of the fire and collect the ashes. They were required to take the ashes and go bath on a grave on one of the family members failure to which someone will die in their family. He promised to find a grave in Tanga. On advice from Thomas, the complainant and his wife left for Namanga where they found the appellants who took them to the caves. Thomas took the ashes and mixed with some leaves and some water. They took off clothes and sprinkled their bodies with the water.
The complainant testified further that Thomas never showed them any grave but asked them to purchase more oil to protect them from the bad omen caused by delay in burning the box. This cost them Kshs. 222,000/- which he sent on 30th and 31st May 2022 through his Mpesa line. They were asked to provide more bundles of money and they travelled back on 31/5/2022.
On 2nd June 2022, the 1st appellant called and told the complainant that Thomas had advised that they should buy 6 bundles of 701,000/- totalling Kshs. 4,206,000/- before they opened the bag but he told him that they had no more money left. Then the complainant called Thomas but his phone was off as always as he used to communicate to him through the 1st appellant.
The complainant went on and stated that, on 5th June 2022, the 1st appellant told them that there was no other option beside getting Kshs. 4,206,000/- and at that point they noted that they had been conned. He went to the bedroom and opened the bag and they were surprised to find therein the items he had exhibited in court. He went to where Kshs. 200,000/- had been buried and found no money but a coconut, cowrie shell, white sheet and other items which he identified in court.
He added that on 7th June 2022, they reported the incidence at Kithimani police station and he decided to set a trap. Between 5th and 18th June 2022, he called the 1st appellant and told him that they had incurred heavily and could not afford to lose and that he was selling a plot in Nairobi. Two days later, he told the 1st appellant that they had found a buyer and he promised to speak to his boss. The boss switched on his phone and they began to talk. On 8/6/2022, the complainant called and confirmed receipt of the money and on 9/06/2022, the 1ns appellant called and said they would come on 10/06/2022.
On 10th June 2022, the 1st appellant called at 2025 hours and informed the complainant that, they had gotten to Matuu and instructed him to carry the bags and money for a meeting at their office. The complainant mobilized people who accompanied him to Matuu and arrested the appellants as they were coming for the bag but Thomas escaped into the darkness. They brought the appellants to Yatta Police station.
The complainant added that between 9th April 2022 and 31st May 2022, he sent Kshs. 1,167,340 through Mpesa to 1st appellant who was also Michael Waiharo on line number 0711906757. He added that between 1st April 2022 and 31st May 2022, he sent Kshs. 712,100/- to Thomas Stephen alias Maji Marefu through Mpesa line number 0722955234 and a further Kshs. 123,000/- to line number 0705774475 registered to Elizabeth Wayua as directed by 1st appellant. He also sent Kshs. 200,000= from a Mpesa agent at Kabaa market to the same Elizabeth Wayua as directed by 1st appellant.
The complainant clarified that, other than the amount stated in the above paragraphs, he had lost Kshs. 4,206,000/- which was taken by Thomas from their homestead in cash being amount he demanded, Kshs. 200,000/= also taken by Thomas and allegedly buried in his home and approximately Kshs. 200,000/= spent on fuel, hotel accommodation and subsistence for the appellants. The total amount he lost was Kshs. 6,808,640/-. He identified his bank account statement from Standard Chartered Bank for the period between 9th May and 25th May 2022, and his wife’s’ Mpesa statement and his second line Mpesa statement.
He added that on 19/6/2022, they took the investigating officer to show him the office where they found goat skin hanging the front door which he also identified as that of the goat the appellants and Thomas carried from their home. He also identified photographs of the scenes taken by the investigating officer and print outs of text messages between him and some contact saved as Thomas Stephen.
In cross-examination by the advocate for the appellants, the complainant told the court that the money he lost to the appellants was his savings for a period of over 10 years. He claimed to be a prayerful Christian and that he knew that there were evil spirits in his house who were invisible people haunting them by knocking the roof of the house.
His wife was introduced to Maji Marefu by Wambua who was their neighbour. He confirmed that he was not arrested for soliciting witchcraft although it was illegal in Kenya. He reiterated that on 2/4/2022, there came four people in his farm; the appellants, Thomas Stephen and one Mustaba. The special animal from Meru was not shown to them but he saw some eggs. He claimed that Thomas was the one who gave him the 1st appellant’s number but the recipient of the money sent to the number showed Michael Waiharo. He admitted that he did not have a statement linking Waiharo to the 1st appellant but claimed that the investigating officer had it.
The complainant insisted that when Thomas took the money, the appellants were present. He did not have the registration numbers of the cars which were being used but insisted that they were in constant communication. He also admitted that he did not have the receipts in proof of accommodation and costs in Tanzania but he went on to restate how he sent the money as narrated in his evidence in chief and added that Elizabeth Wayua was not arrested. He stated further that the voice at the caves told him that the money in the box had increased from 30 million to 150 million but he was not allowed to count it. He added that he gave 5 bundles of Kshs. 701 ,000/- each to Thomas totalling to Kshs. 3,505,000/- which they were asked to wrap in a white sheet and mix with the initial Kshs.700,000/- which they put in a basin and placed under the bed.
The Matuu office was in the outskirts of Matuu town but he did not know the landlord or his whereabouts. He confirmed that no money was sent to the 2nd appellant. He also confirmed that the other money being Kshs. 1,167,340/- was sent to Michael Waiharo and that no money transfer message made reference to the 1st appellant. Further, no phone calls or texts were made with 2nd appellant. He also claimed that the spirits were still giving him problems. He concluded that they were told that the money would multiply and they believed and that he was mentally well throughout the period.
When he was re-examined, the complainant in addition to insisting that the transactions were made, stated that although money to 1st appellant showed Michael Waiharo as recipient, the 1st appellant did not over the period deny receipt of the monies, neither did they deny receipt of money sent to Elizabeth Wayua.
The second witness was Lucia Ndindi Musyoka the complainant’s wife. She recalled how they met and started engagements and transactions with the appellants and Thomas as narrated by the complainant. She added that she sent Kshs. 3,000/- to Thomas on 29-03-2022 who promised to go to their home on 1/4/2022 which he did at about 2000hrs with other people who introduced themselves Iddi, Rashid and Mustaba. They talked to her husband and promised to sort their problem.
Thomas asked for one tomato and said he heard that they were being haunted by evil spirits and demanded for Kshs. 20,000/- which PW1 paid through his phone. They returned on the next day at 2000 hrs and went to the toilet and dug out, walked around the home and promised to return on the following day which they did and went behind the house and cut trees. They removed things and demanded for one he goat which they were given, cut the head and poured the blood on the items. They asked for 60 eggs of an ostrich from the ocean to be used to cleanse and protect the home costing Kshs 36,000/=. They also said that they needed an animal from Meru National Park valued at Kshs. 150,000/- but upon negotiation, they settled at Kshs. 50,000/- which her husband sent money to Thomas but the number reflected the 1st appellant.
PW2 added that the people came after two days to complete the assignment and asked for chicken and l meter pieces of cloth costing Kshs. 200,000/- in cash. They went round the farm dropping eggs but she did not see the animal as they told her Kenya Wildlife Services prohibited moving around with animals. They asked for a pot and 3 pieces of red, white and purple clothes valued at Kshs. 200,000/-. She added that they came and said that they had dug the money in the ground. The next day, they came and demanded for chicken and her husband was given a pot and asked to go the home round 7 times which he did and returned the pot to Thomas. She added that she caught the chicken and gave it to Thomas who cut its neck and let it run around. She stated further that there were 2 clay pots and 3 handkerchiefs which burst and Thomas said it was a bad sign. Thomas took the pot and put the money inside and said that he was going to bury the money. He then said that they should go to Tanga together with the appellants which they did four times with the 2nd appellant being the driver.
PW2 added that the team asked for a camel oil among other things and took them to caves along the ocean. She sent Thomas Kshs. 5,000/- for fuel and another Kshs. 3,000/- and later Kshs. 2,000/-. They also asked her husband to withdraw Kshs. 3.5 million and said that they had a box that contained 150 million and asked them to petition the gods.
Lucia stated further that the people had an office in Matuu which appeared Islamic. Thomas promised them that the money would multiply. She added that they said the money was in the box at the office and asked for Kshs. 4.5 million more before the complainant and her could be allowed to spend the money. They then decided to buy time and pretended that they had sold their assets. Later, the complainant called them and they came.
She stated further
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The above is an assurance to those who profess Christian faith get from the biblical book of 2 Thessalonians chapter 3 verse 3. I have quoted this verse which resonates with several others found in the Holy Bible not because I elevate the Christian faith over all the others faiths or beliefs or lack of them but because this matter revolves around belief in the mystery works of what is said to be control of human lives by an unseen spiritual realm. I am sure that all other faiths have similar assurance of the human being watched over by supernatural beings.
The complainants and the appellants were brought together by the complaints’ desire to seek solutions to a problem which had allegedly visited their home for some period of time which the appellants are said to have promised to solve. The journey did not end well as the complainants allegedly lost or should I say spent huge amount of money without their troubles waning while the appellants ended cooling their feet in jail.
The appellants were charged, prosecuted and convicted in Kithinami Senior Principal Magistrate’s Court criminal case number E518 of 2022 with the following counts;
Count 1- obtaining money by false pretence contrary to Section 313 of the Penal Code particulars being that on diverse dates between 1st April 2022 and 27th May 2022 with others not before court at Matuu trading centre Matuu location in Yatta Subcounty within Machakos County with intent to defraud obtained from John Kivungu cash 4,206,000.00 by falsely pretending that after a ritual, a miracle will happen and the amount of money to increase to 150,000,000/= a fact they knew to be false.
Second count- obtaining money by false pretence contrary to Section 313 of the Penal Code particulars being that on diverse dates between 9th April 2022 and 22nd May 2022 at different places namely Nairobi, Machakos and Tanga found within the limits of Kenya and Tanzania countries with others not before court with intent to defraud obtained cash 1,490,340.00 by way of Mpesa system by falsely pretending that they were in a position to cast out evil spirits and demons a fact they knew to be false.
Third count- being unlawfully present in Kenta contrary to Section 53(1)(J)(2) of the Kenya Citizenship and Immigration Act 2019 particulars being that on the 27th day of May 2022 at Matuu trading Centre Matuu location in Yatta Subcounty within Machakos County they were found to have been unlawfully present in Kenya.
The fourth Count against the 1st appellant- personation contrary to Section 382(1) as read with Section 36 of the Penal Code particulars being that on diverse dates between 9th April 2022 and 27th May 2022 at Matuu/Kithimani location in Yatta Subcounty within Machakos County, with intent to defraud falsely presented himself to be Michael Waiharo to John Kivungo.
The prosecution called three witnesses at the end of which the appellants were found to have a case to answer following which they gave sworn statements and the court found them guilty in all counts and sentenced them to serve three years in jail in the first and 2nd counts, six months in count three and twelve months in the 4th count for the 1st appellant. The sentences were ordered to run consecutively. The evidence of the parties is produced hereinbelow.
The prosecution’s case
PW1 was the complaint who told the court that on 14/3/2022 he was travelling with his wife from Tharaka Nithi through Embu and while at Kikumini Market, they stopped at a joint owned by one Joseph Wambua who they knew well. At the parking, they found a car with Tanzanian registration number and four people having lunch at the joint. His wife asked who the people were and they were informed that one was Maji Marefu a leading witchdoctor from Tanzania. He added that they used to have a problem of witchcraft which had been planted in their home and farm and were looking for a person to remove the same and that they were told that the person could do this work.
His wife went to the vehicle and introduced himself to the person who promised to help and asked Wambua to give his wife his number. They went home and on 29/3/2022, his wife called Maji Marefu whose real name was Thomas Steven (hereinafter referred to as ‘Thomas’) and who promised to visit their place on 1/4/2022. The witchdoctor came on that date at around 2000 hrs together with the appellants and another person who was not in court. After a short discussion, Thomas called it a small problem and proceeded to the farm in Athi River which is 300 m from home and confirmed evil spirits had been planted in their farm and home. They walked him around and he confirmed where the spirits had been planted and promised to remove them on the following day.
PW1 added that Thomas told him that he would only require Kshs. 20,000/- to confirm his seriousness and he sent him Kshs. 20,000/-. On 29th March, Thomas had had asked for Kshs. 3,000/- for fuel which the complaint’s wife paid him. On 2/4/2022, Thomas and the three other persons went to the farm and removed three strange objects. They dug the things out behind the pit latrine, inside a small house used as a store and next to a mango tree in the middle of the farm. Thomas said that the other items were at home and he would come the following day. On 3/4/2022, they went again to the homestead and also removed some objects behind the house. PW1 identified the five objects in court.
On inquiry of what would happen to those items, Thomas said he wanted a goat upon which they selected the biggest and fattest goat in his shed and cut the its throat and directed the blood to the five objects. They told him that they would dispose the meat in Athi and Tana rivers as they do not consume it and asked for a sack in which they put the goat meat and left.
The complainant added that on 4/4/2022, Rashid called and told him that, he had been instructed by Daktari that they needed 60 eggs from a special fish found only in Indian Ocean which would cost Kshs. 600/- each and he sent Kshs. 36,000/- to Thomas. After 2 days, Thomas said that the eggs had been sent and would need to be put in a freezer and again told him that they needed an animal to be found in Meru National Park valued at Kshs. 150,000/-. They negotiated for five days and the price of the animal was lowered to Kshs. 50,000/- and Thomas asked him to send to Rashid. He sent the money to Rashid’s number which showed the name of Michael Waiharo. The complaint identified his Mpesa statement which showed that he sent the Kshs 50,000.00 to Michael Waiharo.
The complainant added that on 10/4/2022, the people came to his farm carrying some eggs in a small container with water, went round and threw the eggs to cast away demons. They asked for 10 small bottles and put some concoctions in them and placed them in the four corners of the farm and home. Thomas assured him that all was well and on 11/4/2022, Rashid called him on his phone and texted and said that they needed two heads of sheep which could be bought in Ngong at Kshs. 600/-. On 12/4/2022, they went to the complainant’s home with the two sheep head and third one which they placed in the farm and homestead and told him that the purpose of the heads was to fool his enemies who had sent him the evils spirits.
On the same day, Thomas told the complainant that his money had been bewitched and needed cleansing. He asked him to look for Kshs. 200,000/- and after two days, the complainant called and told him that the money was ready which he gave in cash. Thomas had also asked for 3 pieces of red, white and black sheets which the complainant identified in court. They also asked him to buy one full and one broken clay pots which he also identified in court.
PW1 stated further that Thomas gave him one of the pots with a concoction. He picked a white cloth and wrapped the money in it and gave the complainant one clay pot with concoction and asked him to go round his home for seven times and as he was going round, he saw his wife who he had left with the money also move around.
After, Thomas asked for a live chicken which they caught and gave him and he asked Rashid to cut the throat and let it loose. When it was cut and died, the chicken’s legs folded and Thomas told them that was a sign the spirits had refused to go and asked him to go with them to their main office in Tanga Tanzania where their spirits live. Thomas told Rashid and one Mustaba to take the money and bring it next to the sheep head and they buried the Kshs. 200,000/-. The complainant pointed out that Thomas did not allow them to confirm the wrapping of the money and added that it was not money that was buried.
The complainant stated further that they visited Thomas’ main office in Tanga between 17th and 20th April 2022. Thomas asked him for Kshs. 10,000/- for fuel from Nairobi to Tanga which he sent using his phone. On 17/4/2022, he travelled to Kitengela where Rashid was waiting and they proceeded to Namanga where they found Thomas and the appellants waiting for them. They obtained passports at 2000 hrs and were taken to Safari Lodge in Tanzania and proceeded to Tanga on 18/4/2022 where they arrived at 1700 hrs. Rashid took them to Mbembe hotel where the complainant paid for accommodation and food.
He added that on 19/4/2022, Idd and the appellants picked them from their hotel and took them to their offices which was a hill with a storey entrance cave. The 2nd appellant who was the driver was left guarding the car as the 1st appellant led them into the caves where they found Thomas waiting for them who together with Rashid invited them by saying "Hodi Hodi Hodi" and asked them to join in saying Hodi. They then heard a voice from far speaking in a foreign language which Thomas translated in Kiswahili and told them that the spirits wanted the complainant, his wife or their children.
He added that Thomas asked Rashid to lead them to some other places and after 30 minutes Thomas called them back to where they were speaking to the gods and told them that the spirits had agreed and he wanted the complainant to offer a camel whose price was Kshs. 250,000/-. Rashid called a camel’s seller who brought the price down to Kshs. 235,000/- together with some oil. He added that they said that they needed to make a shed for slaughtering the camel which was priced at Kshs. 10,000/- which he gave Rashid. He added that Kshs. 235,000/- was sent to Rashid which was in his Mpesa statement which he identified.
On 20/4/2022, they were taken to a place where they found Thomas waiting for and they were shown a camel's head and fresh blood. Thomas told them that the camel’s meat is given to the fathers at the mosque and took a razor blade and cut their bodies and smeared them with some concoction (reference to ‘them’ in here is presumably the complainant and his wife). They travelled back home on 20/4/2022 and from 23rd to 26th April 2022, Thomas, Rashid, Iddi and Mustaba used to come to the complainant’s home every day doing some rituals.
The complainant added that on 26/4/2022, Thomas told them that the spirits’ owners had discovered it had been uprooted and were fighting back. He advised them to make another trip to Tanga between 30/4/2022 and 5/5/2022 and asked for Kshs. 10,000/= for fuel which he did. The complainant fuelled the cars and took care of accommodation for the appellants with 2nd appellant being the driver.
The next day, the appellants came and took them to the cave where they found Thomas waiting for them and who asked them what he should do with their enemies. They wrote the names of their enemies and Thomas promised to kill them one by one after 2 weeks. Thomas then instructed them to give Rashid money to buy an empty box, 3 sheets (red, black and white) measuring 1 1/2 metres and the complainant gave him close to Kshs. 30,000/-. Rashid purchased the items and a new clay pot and on the next day, they took them to the cave. Thomas opened a box which was empty and gave them a paper to write the names of their enemies. They listed 18 enemies and put the list in the box.
PW1 added that Thomas sent them away and called them again and opened the box upon which they found it full of money and Thomas told them that it was 30 million which he said had been pulled from the complainant’s enemies. He gave them directions on how the money will become theirs and asked them to bring 36 bundles of Islamic religious books valued at Kshs. 66,000/- which the complainant sent to the 1st appellant’s line. He added that the box would be transported by sea from Tanga to Langalanga by speed boat at Kshs. 165,000/- which he sent to Thomas on his Mpesa line. Thomas would get the box at Langalanga and transport it to the complainant’s home.
He stated further that Thomas told them that their enemies had planted a maasai spirit at their gate and were waiting for them to take their blood. They travelled back home and on 6/5/2022, Rashid asked them to buy 20 litres of water at Kshs. 5,000/-, a bottle of oil at Kshs. 20,000/=, eight packets of special flour at Kshs. 18,000/- and a bow 250 valued at Kshs. 75,850/- for the spirits. The complainant added that he sent the money to Rashid to buy and bring a certain sculpture which was required.
On 7/5/2023, the appellant and went with Thomas to the complainant’s home carrying the box in his car and small calabash. Thomas had promised to move with two spirits in the calabash. They went to the complainant’s daughter’s bedroom which was not in use and opened the box and showed them the money. He gave them Kshs. 10,000/- to spend and Kshs. 6,000/- to bank in the complaint’s bank account. He also asked them to buy one bag and two padlocks and he locked the bedroom and went with the key. Thomas told them that they were to purchase oil for cleaning money in Pemba and Zanzibar in order to access the 30 million. For this purpose, the complainant sent Kshs. 13,000/- to Rashid for fuel and subsistence. He identified ten bottles of the cleansing oil each of which was costing Kshs. 61,500/- totalling to Kshs. 615,000/-. Other expences were; cost of hiring a boat at Kshs. 55,000/-, purchase of a cow at Kshs. 26,000/-, incense at Kshs. 5/- and trip cost of Kshs. 701,000/-. This money was sent to Rashid in various transactions.
The complainant added that on 15/5/2022, Thomas’ group came to his home carrying the oils and when they opened the bedroom, they found a live snake inside the bedroom and Thomas told him that the snake was an evil spirit that was fighting back and they needed to go back to Tanga. He asked him to sit on the floor to get directions. They put a bag on complainant and his wife’s heads and covered their hand with two sheets and put the calabash of the two spirits on their head. They heard a woman voice and child in the calabash speaking in a foreign language which Thomas was translating. The directions were that, they should look for Kshs 701,000/= to be mixed with the cleansing oil and warm water and bath with it for five days.
He added that they did what the spirit directed and on 16/5/2022, they went to Machakos Standard Chartered and withdrew Kshs 700,000/- and added Kshs. 1,000/- which money they mixed with the oil and bathed with the warm water for 5 days. Thomas then asked him to fold the money in a white sheet in a basin and on the bed. They killed the small snake.
The complainant added that there was a third trip to Tanga for medication against the snakes between 18/5/2022 and 21/5/2022. The appellants took them to the caves where they found Thomas who made cuttings from bushes and mixed them with a concoction. He asked them to speak to spirits and translated for them. Thomas said the spirit wanted one more cow and some kind of oil which would cost them Kshs 55,000.00 and Kshs. 250,000/- respectively. The complainant sent the money to 1st appellant and the spirits said that they should also pay Thomas Kshs 130,000.00 for his services which the complainant sent to his Mpesa line on 21-05-2022 to avoid the disappearance of the money in the box. He added that the spirit told them that the money had multiplied to 50 million and that was the maximum limit and that they should not complain as they were already millionaires.
The complainant stated further that they were told that before getting the money they should get "vifurushi vya pesa". Rashid called and told him that the five ‘vifurushi vya pesa’ needed a trip to Pemba at a cost of 701,000 totalling to Kshs 3,505,000/-. They were to look for this money to cleanse the god’s money. He went to the bank and withdrew the Kshs. 3,500,000/- and went home where they divided the money into two and mixed it with another Kshs 701,000.00 and oil in a basin and bathed with it twice.
On 25/5/2022, Thomas, Rashid and Mustaba came to his home at 2200 hrs and went straight to where the box was. Thomas asked for the money in the basin and gave the complainant the special oil. He asked the complainant to go round the house with the 1st appellant and the complainant’s wife pouring the oil four times and on the fourth round, they found Thomas who seemed to be in a hurry standing outside the main house. He had put the money in a bag which he had locked with padlocks and asked them to put the bag under their bed and not to come out. They got in the vehicle and drove off.
PW1 stated further that Thomas told them that they would come the following day and go to their Matuu office where the complainant would buy a new bag and the money in the box would miraculously get into his bag. On 26/5/2022, they came in a hurry at 2000hrs and Thomas asked the appellants to put the bag containing Kshs. 4,206,000/- inside his car and the box containing Kshs. 150,000,000/- in the complainant’s car. Thomas and Mustaba led in their car to their Matuu office with the complainant, his wife and the 1st appellant in the complainant’s car.
Thomas asked the 1st appellant to get the bags and keep them in one of the rooms and called the complainant and his wife inside. He opened the box and the money was inside. He then sent the complainant, his wife and the 1st appellant to the market to get another bag and two new padlocks which they did and came back. He asked again to go buy two new padlocks. He also asked them to say a small prayer in Islam upon which the money would move to the new bag they had purchased.
The complainant added that Thomas asked them to wait for 15 minutes in the next room and later called them and opened the box which was said to have had Kshs. 150,000,000/= but was empty. He then opened the new bag and pulled out notes and asked the complainant to count which turned out to be Kshs. 100,000/. Thomas asked the complainant to pour the special oil but did not allow him to peep inside the bag. They were to spend Kshs. 4,000/- of the said KShs 100,000.00 and deposit the balance in his account at Thika which they did.
Thomas asked Rashid to load the bag in the complainant’s car back the box and load it on car and promised to come the following day. The complainant was to call Thomas upon banking and look for petrol and burn the broken pieces of the box. He asked the complainant to wait for instructions to open the bag and when he was called after the deposit, Thomas asked for Kshs. 10,000/= for fuel to visit the complainant but he never turned up.
The complainant added that there was a fourth trip to Tanga. On 28/5/2022 Thomas called the complainant’s wife at 1600 hrs and said that the time for burning the box had expired and it was a bad omen on their part. Thomas asked the complainant to burn it himself, send him a photo of the fire and collect the ashes. They were required to take the ashes and go bath on a grave on one of the family members failure to which someone will die in their family. He promised to find a grave in Tanga. On advice from Thomas, the complainant and his wife left for Namanga where they found the appellants who took them to the caves. Thomas took the ashes and mixed with some leaves and some water. They took off clothes and sprinkled their bodies with the water.
The complainant testified further that Thomas never showed them any grave but asked them to purchase more oil to protect them from the bad omen caused by delay in burning the box. This cost them Kshs. 222,000/- which he sent on 30th and 31st May 2022 through his Mpesa line. They were asked to provide more bundles of money and they travelled back on 31/5/2022.
On 2nd June 2022, the 1st appellant called and told the complainant that Thomas had advised that they should buy 6 bundles of 701,000/- totalling Kshs. 4,206,000/- before they opened the bag but he told him that they had no more money left. Then the complainant called Thomas but his phone was off as always as he used to communicate to him through the 1st appellant.
The complainant went on and stated that, on 5th June 2022, the 1st appellant told them that there was no other option beside getting Kshs. 4,206,000/- and at that point they noted that they had been conned. He went to the bedroom and opened the bag and they were surprised to find therein the items he had exhibited in court. He went to where Kshs. 200,000/- had been buried and found no money but a coconut, cowrie shell, white sheet and other items which he identified in court.
He added that on 7th June 2022, they reported the incidence at Kithimani police station and he decided to set a trap. Between 5th and 18th June 2022, he called the 1st appellant and told him that they had incurred heavily and could not afford to lose and that he was selling a plot in Nairobi. Two days later, he told the 1st appellant that they had found a buyer and he promised to speak to his boss. The boss switched on his phone and they began to talk. On 8/6/2022, the complainant called and confirmed receipt of the money and on 9/06/2022, the 1ns appellant called and said they would come on 10/06/2022.
On 10th June 2022, the 1st appellant called at 2025 hours and informed the complainant that, they had gotten to Matuu and instructed him to carry the bags and money for a meeting at their office. The complainant mobilized people who accompanied him to Matuu and arrested the appellants as they were coming for the bag but Thomas escaped into the darkness. They brought the appellants to Yatta Police station.
The complainant added that between 9th April 2022 and 31st May 2022, he sent Kshs. 1,167,340 through Mpesa to 1st appellant who was also Michael Waiharo on line number 0711906757. He added that between 1st April 2022 and 31st May 2022, he sent Kshs. 712,100/- to Thomas Stephen alias Maji Marefu through Mpesa line number 0722955234 and a further Kshs. 123,000/- to line number 0705774475 registered to Elizabeth Wayua as directed by 1st appellant. He also sent Kshs. 200,000= from a Mpesa agent at Kabaa market to the same Elizabeth Wayua as directed by 1st appellant.
The complainant clarified that, other than the amount stated in the above paragraphs, he had lost Kshs. 4,206,000/- which was taken by Thomas from their homestead in cash being amount he demanded, Kshs. 200,000/= also taken by Thomas and allegedly buried in his home and approximately Kshs. 200,000/= spent on fuel, hotel accommodation and subsistence for the appellants. The total amount he lost was Kshs. 6,808,640/-. He identified his bank account statement from Standard Chartered Bank for the period between 9th May and 25th May 2022, and his wife’s’ Mpesa statement and his second line Mpesa statement.
He added that on 19/6/2022, they took the investigating officer to show him the office where they found goat skin hanging the front door which he also identified as that of the goat the appellants and Thomas carried from their home. He also identified photographs of the scenes taken by the investigating officer and print outs of text messages between him and some contact saved as Thomas Stephen.
In cross-examination by the advocate for the appellants, the complainant told the court that the money he lost to the appellants was his savings for a period of over 10 years. He claimed to be a prayerful Christian and that he knew that there were evil spirits in his house who were invisible people haunting them by knocking the roof of the house.
His wife was introduced to Maji Marefu by Wambua who was their neighbour. He confirmed that he was not arrested for soliciting witchcraft although it was illegal in Kenya. He reiterated that on 2/4/2022, there came four people in his farm; the appellants, Thomas Stephen and one Mustaba. The special animal from Meru was not shown to them but he saw some eggs. He claimed that Thomas was the one who gave him the 1st appellant’s number but the recipient of the money sent to the number showed Michael Waiharo. He admitted that he did not have a statement linking Waiharo to the 1st appellant but claimed that the investigating officer had it.
The complainant insisted that when Thomas took the money, the appellants were present. He did not have the registration numbers of the cars which were being used but insisted that they were in constant communication. He also admitted that he did not have the receipts in proof of accommodation and costs in Tanzania but he went on to restate how he sent the money as narrated in his evidence in chief and added that Elizabeth Wayua was not arrested. He stated further that the voice at the caves told him that the money in the box had increased from 30 million to 150 million but he was not allowed to count it. He added that he gave 5 bundles of Kshs. 701 ,000/- each to Thomas totalling to Kshs. 3,505,000/- which they were asked to wrap in a white sheet and mix with the initial Kshs.700,000/- which they put in a basin and placed under the bed.
The Matuu office was in the outskirts of Matuu town but he did not know the landlord or his whereabouts. He confirmed that no money was sent to the 2nd appellant. He also confirmed that the other money being Kshs. 1,167,340/- was sent to Michael Waiharo and that no money transfer message made reference to the 1st appellant. Further, no phone calls or texts were made with 2nd appellant. He also claimed that the spirits were still giving him problems. He concluded that they were told that the money would multiply and they believed and that he was mentally well throughout the period.
When he was re-examined, the complainant in addition to insisting that the transactions were made, stated that although money to 1st appellant showed Michael Waiharo as recipient, the 1st appellant did not over the period deny receipt of the monies, neither did they deny receipt of money sent to Elizabeth Wayua.
The second witness was Lucia Ndindi Musyoka the complainant’s wife. She recalled how they met and started engagements and transactions with the appellants and Thomas as narrated by the complainant. She added that she sent Kshs. 3,000/- to Thomas on 29-03-2022 who promised to go to their home on 1/4/2022 which he did at about 2000hrs with other people who introduced themselves Iddi, Rashid and Mustaba. They talked to her husband and promised to sort their problem.
Thomas asked for one tomato and said he heard that they were being haunted by evil spirits and demanded for Kshs. 20,000/- which PW1 paid through his phone. They returned on the next day at 2000 hrs and went to the toilet and dug out, walked around the home and promised to return on the following day which they did and went behind the house and cut trees. They removed things and demanded for one he goat which they were given, cut the head and poured the blood on the items. They asked for 60 eggs of an ostrich from the ocean to be used to cleanse and protect the home costing Kshs 36,000/=. They also said that they needed an animal from Meru National Park valued at Kshs. 150,000/- but upon negotiation, they settled at Kshs. 50,000/- which her husband sent money to Thomas but the number reflected the 1st appellant.
PW2 added that the people came after two days to complete the assignment and asked for chicken and l meter pieces of cloth costing Kshs. 200,000/- in cash. They went round the farm dropping eggs but she did not see the animal as they told her Kenya Wildlife Services prohibited moving around with animals. They asked for a pot and 3 pieces of red, white and purple clothes valued at Kshs. 200,000/-. She added that they came and said that they had dug the money in the ground. The next day, they came and demanded for chicken and her husband was given a pot and asked to go the home round 7 times which he did and returned the pot to Thomas. She added that she caught the chicken and gave it to Thomas who cut its neck and let it run around. She stated further that there were 2 clay pots and 3 handkerchiefs which burst and Thomas said it was a bad sign. Thomas took the pot and put the money inside and said that he was going to bury the money. He then said that they should go to Tanga together with the appellants which they did four times with the 2nd appellant being the driver.
PW2 added that the team asked for a camel oil among other things and took them to caves along the ocean. She sent Thomas Kshs. 5,000/- for fuel and another Kshs. 3,000/- and later Kshs. 2,000/-. They also asked her husband to withdraw Kshs. 3.5 million and said that they had a box that contained 150 million and asked them to petition the gods.
Lucia stated further that the people had an office in Matuu which appeared Islamic. Thomas promised them that the money would multiply. She added that they said the money was in the box at the office and asked for Kshs. 4.5 million more before the complainant and her could be allowed to spend the money. They then decided to buy time and pretended that they had sold their assets. Later, the complainant called them and they came.
She stated further
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