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JudgmentSAMUEL MUNGA GITHINJI VS The Republic9 min read

SAMUEL MUNGA GITHINJI VS The Republic

High Court at Muranga High Court · · Andayi W.F.

(Being an appeal from the judgment and conviction on 22/2/2023 and sentence on 6/6/2023 by Hon. J. IRURA Senior Principal Magistrate delivered in Kigumo Magistrates Court Criminal Case No. 211 of 2018)

(Before Hon. Andayi W. Francis, J.)

J U D G M E N T

  1. The appellant, Samuel Munga Githinji, was charged with the offence of obtaining money by false pretences contrary to section 313 of the Penal Code.
  2. The particulars of the charge were that on 18/5/2017 at around 1100 Hours at Kangari market in Kigumo Sub-County within Murang’a County with intent to defraud obtained from Rose Njeri Muiruri cash money KShs 500,000/= by falsely pretending that he was in a position to sell to her 5 acres from land parcel No. Mundoro/Kiganjo/491.
  3. The appellant pleaded not guilty. The case proceeded to a full trial. He was found guilty, convicted and sentenced to pay a fine of KShs 500,000/= in default to serve 2 years imprisonment with further directions that out of the fine, a sum of KShs 300,000/= be applied as compensation for the complainant and KShs 200,000/= be applied as fine.
  4. The appellant was dissatisfied with the judgment and sentence of the trial court and preferred an appeal citing the following grounds as per his petition of appeal dated 16/6/2023. He states that the learned magistrate erred in law and in fact by convicting him on evidence that was not cogent to warrant a conviction; it was marred with contradictions and inconsistencies; failed to take into account the defence tendered by the appellant; imposed a default sentence that was not in line with the provisions of section 28 of the Penal Code. He also prayed to be allowed to adduce more grounds of appeal during the hearing.
  5. The appeal was disposed of by way of written submissions filed by both parties and with the learned counsel for the State highlighting the same orally on the virtual platform, Teams on 5/6/2024. The appellant’s counsel did not attend court on this date and the appellant said he fully relied on the written submissions filed by his learned counsel.
  6. In the written submissions by learned counsel for the appellant, he dwelt exclusively on the sentence, an indication that he abandoned the grounds in challenging the conviction. He faulted the report of the Probation Officer as being biased against the appellant which according to him led to him being incarcerated. However, I have considered the grounds of appeal in their entirety.
  7. Learned counsel for the prosecution on his part supports the conviction and sentence of the appellant. Learned counsel submits that the appellant represented himself  as being capable of selling a parcel of land Mundoro/Kiganjo/491 when he was not as the certificate of title was not in his name.
  8. As a first appellate court I am required to subject the entire evidence adduced before the trial court to a fresh evaluation and analysis and draw my own conclusions, but remaining alive to the fact that I 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 where the Court of Appeal for Eastern Africa 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 [1978] E.A. 424).”

  1. The prosecution called two witnesses to support the charge. PW 1, Rose Njeri Muiruri, was the complainant while PW 2, Corporal Robert Gathogo gave evidence on behalf of the investigating officer IP Stephen M. Wainaina whose absence to testify was however not explained.
  2. When placed on his defence the accused person made an unsworn statement in defence and denied that he committed the offence.
  3. The prosecution case which is largely as presented by the complainant, PW 1 is that the appellant was well known to her as he had assisted her to obtain a land title deed for her property. This time round, the appellant offered to sell to the complainant a portion of land comprised in land parcel No. Mundoro/Kiganjo/491 at a price of KShs 300,000/. The complaint however said that she paid him KShs 500,000/=. The appellant issued her with a receipt dated 18/5/2017 (Exh. 1) for the sum paid KShs 500,000/=. However, the appellant never completed the transaction and never showed her the parcel of land or even the size thereof. Other than the receipt, the transaction was not reduced into writing.
  4. The complainant denied that she paid the money for land valuation as indicated in the receipt issued. She said that she was not aware that the receipt was indicated as being for valuation of land. She said further that the appellant had refunded her KShs 200,000/= and a balance of KShs 300,000/= remained.
  5. The evidence by PW 2 is not useful seeing that it is largely hearsay as PW 2 was narrating what he read from the statement of the investigating officer without an explanation of why he could not attend court to testify.
  6. In his defence, the appellant stated that the money the complainant gave out was for formation of a partnership with the appellant and one Philip Mwangi (deceased). The complainant offered to serve as treasurer of the partnership in place of another woman by the name of Margaret. Philip was the chairman. The appellant said he handed over the money paid by the complainant to Philip to be taken to the Attorney General to register a company. The complainant later changed her mind and demanded her money back. The appellant refunded her KShs 200,000/= and the balance of KShs 300,000/= remained which he was willing to refund. He was however subsequently arrested, charged and convicted for the offence.
  7. The appellant says he was surprised at how things changed to become that he had obtained money from the complainant on allegations that he could sell her land.
  8. 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:
    1. Whether the prosecution proved its case against the appellant beyond a reasonable doubt.
    2. Whether the sentence imposed by the trial court upon the appellant was lawful and/or warranted.
  9. 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:
    1. obtaining something capable of being stolen.
    2. obtaining the thing through a false pretence.
    3. obtaining the thing with an intention to defraud.
  10. The cases of Charles Mutua Mutemi v Republic [2022] eKLR and Peter Nyamu Mutithi v Republic [2021] eKLR cited by learned counsel for the appellant are quite explicit on these ingredients.
  11. The first ingredient is easy to dispose of as there is no dispute that the appellant obtained KShs 500,000/= from the complainant. I am satisfied and find that this ingredient was proved beyond a reasonable doubt.
  12. 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.

  1. In the present case, the complainant said that the representation was by word of mouth. It concerned a parcel of land which the appellant represented as having the same for sale and so it was in the present.
  2. But the appellant has denied in his defence that he made any such a representation to the complainant. He said that the reason for which the complainant gave him the money was totally different. That they were in fact entering into a business partnership from which the complainant later bolted.
  3. PW 2 tried to give evidence of what the investigating officer did by visiting the appellant’s place of business and what was found there. As I stated earlier, that was hearsay evidence that cannot be relied upon.
  4. That leaves the complainant’s evidence as the only evidence to prove the element of false representation allegedly made by the appellant to the complainant.
  5. Examining the complainant’s evidence closely I find that it contains various material gaps that lead to a doubt in the mind of the court.
  6. First is the issue of why the complainant paid KShs 500,000/= instead of KShs 300,000/= that the appellant had allegedly offered for the sale of the land. Without elaboration, it leads to a very possible inference as presented by the appellant that it was payment for something else other than purchase of land.
  7. The second issue is on the receipt issued to the complainant by the appellant. It clearly indicates the purpose of the payment as “pursuing valuation of land at Mundoro known as Mundoro/Kiganjo/491. It does not indicate that it was for purchasing of a portion of that land at all as alleged by the complainant.
  8. Thirdly, the complainant said that she did not even know the size of the parcel of land that she was allegedly purchasing. Surely, that is the most basic issue to determine first in any transaction for sale of land. The complainant was not a new person to dealings in land. She testified that the appellant had assisted her in an earlier transaction. I find it difficult to believe that she entered into a transaction for purchase of land without even knowing the acreage thereof.
  9. The learned trial magistrate erred in law when she relied on the evidence of PW 2 as though he was the investigating officer. He was not. The investigating officer did not testify at the trial. Even the alleged poster advertising sale of the land was not produced in evidence as an exhibit.
  10. I do not agree with the learned trial magistrate that the appellant failed to explain how he had issued a receipt for KShs 500,000/= to the complainant. He indeed explained that it was for a different transaction. And even though he did not cross-examine the complainant in that line it is an elementary principle of criminal law that it upon the prosecution to prove its case and not the accused person to absolve himself from a charge. I have found that the receipt bore a narration other than purchase of land for which the money was paid. It was sufficient for the appellant to concede that he indeed issued the receipt but for a different purpose other than for sale of land. I am not convinced that the complainant failed to notice that the receipt had been issued for payment of something else other than for purchase of land as she said in cross-examination.
  11. Therefore, whereas, I am satisfied that the appellant obtained KShs 500,000/= from the complainant, I am unable to agree with the learned trial magistrate that the same was by way of falsely representing to the complainant that it was for purchase of five acres of land from the appellant.
  12. On the issue of sentence, I also note that the trial magistrate gave a default sentence that went outside the provisions of section 28 of the Penal Code. The maximum default sentence for failure to pay a fine under section 28 of the Penal Code is 12 months imprisonment. Therefore, imposition of 2 years imprisonment in default of payment of the fine was inappropriate and must be set aside. The learned magistrate ought to have given the correct default sentence for a fine of KShs. 500,000/=. The same should not have exceeded 12 months imprisonment.
  13. The upshot is that I find that the trial court fell in error both in law and fact in finding the appellant guilty on a charge which was not supported by evidence.
  14. Consequently, I find that the charge of obtaining money through false pretences was not proved beyond a reasonable doubt as required by law. For the said reasons, I allow the appeal; quash the conviction and set aside the sentence imposed. The appellant shall be set at liberty forthwith unless he is lawfully held in custody. 
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    SAMUEL MUNGA GITHINJI VS The Republic SAMUEL MUNGA GITHINJI VS The Republic