The Appellant appeals to the High Court against the conviction and sentence of Hon. Nyaboke, Principal Magistrate, Kangundo in Criminal case number 1260 of 2019 on the following grounds:
1. The learned Trial Magistrate erred in law and in fact by failing to carefully weigh the ingredients of the offences that the accused person was charged with and analyze that the prosecution needed to prove by way of cogent evidence which would suffice to base a conviction on.
2. The learned Trial Magistrate erred in law and in fact by failing to carefully consider the evidence adduced vis a vis the charges and failing to find that the offences had not been proved against the Appellant.
3. The learned Trial Magistrate erred in law and in fact by relying on the evidence of the Complainant and other witnesses which was not sufficient to prove the charged offence to the standard required by law.
4. The learned Trial Magistrate erred in law and misdirected herself by finding the Accused guilty while no sufficient evidence was adduced to support the charges.
Reasons wherefore the Appellant prays that the Appeal be allowed and this Honourable Court do set aside both the conviction and sentence.
Brief facts
The appellant was charged with two counts and the first one was obtaining registration by false pretences contrary to section 320 of the Penal Code.
The particulars were that on the 17th day of September 2009 at Lands registry office in Machakos township within Machakos county with others not before court, willingly procured for himself the registration of a land parcel title deed number Mavoko Block 3 Waswa/4087 valued at Kshs. Eight hundred thousand shillings (800,000) by falsely pretending to be the lawful owner.
The second count was obtaining registration by false pretences contrary to section 320 of the Penal Code and the particulars being that that on the on the 17th day of September 2009 at Lands registry office in Machakos township within Machakos county with others not before court, willingly procured for himself the registration of a land parcel title deed number Mavoko Block 3 Waswa/4088 valued at Kshs. Eight hundred thousand shillings (800,000) by falsely pretending to be the lawful owner.
The Appellants pleaded not guilty to both counts and the case proceeded to full trial.
The prosecution called a total of four witnesses to establish their case, when placed on his defence, the appellant called one witness.
On 27th November, 2024, the Appellant was found guilty on both counts and was sentenced to pay a fine of ksh, 100,000/= or 6 months imprisonment in both counts.
Prosecution case
The prosecution called four witnesses to prove the two counts of obtaining registration by false pretences.
PW1 – John H. Gikingo. He was an employee of Nairobi City Council (later transferred to Kajiado County Government). He joined the Water and Sewerage Welfare Association (WASWA) in 1994. Through salary check-off deductions he paid for two plots at Lukenya Ranch (originally Plot Nos. 505/222 and 505/298). He was issued allotment letters for the plots that later became Mavoko Town Block 3/Waswa/4088 and another related parcel.
In June 2019 he discovered that titles to the plots had been issued to other people who were neither WASWA members nor former City Council employees. A search showed the land registered in the name of Catherine Wambui Muthambia, while the green card indicated it had earlier been surrendered to the Appellant, Simon Karuri Theuri. WASWA officials later confirmed in writing that the plots belonged to him and that the Appellant was not a member. He produced allotment letters, payslips, a membership register extract, subdivision maps, a letter from WASWA, the green card, a search, and a ruling from Mavoko PMCC No. 46 of 2019 which had found that Catherine’s title was illegally obtained. He reported the matter to the police.
PW2 – Newton Kaguandata Mleabwe . A retired former secretary-general of WASWA (1990s–2003). He confirmed that WASWA was formed by Nairobi City Council Water and Sewerage employees to buy land at Lukenya. Members paid through check-off and were allocated plots after full payment. Allotment letters required the signatures of the chairman, secretary and treasurer. He identified the allotment letter produced by PW1 as genuine and bearing his signature. He stated that outsiders could only acquire plots through the original allottees and that the Appellant was unknown to him. He left office in 2003 when he was transferred; by then most original members had been allocated their plots.
PW3 Kennedy Gitau Mwaura . A former Nairobi City Council employee who joined WASWA in 1996. Through check-off deductions he paid for a plot (originally 505/225, later Mavoko Town Block 3/Waswa/4087). He was shown the land in 1998, fenced it, and later received an allotment letter. When he went to process the title he was told the plot belonged to “Karuri.” A green card showed the Appellant had been registered as owner in 2009. WASWA officials told him the plot was still his and that they did not know the Appellant. He produced his allotment letter, payslips, authority-to-deduct forms and a green card. He reported the matter to the police, stating that only City Council employees who were WASWA members were entitled to the plots.
PW4 – PC Peter Orwa (Investigating Officer) .He was assigned the case in July 2019. He wrote to WASWA seeking confirmation of ownership of the two plots and received a reply stating that the plots belonged to the complainants and that the Appellant was not a member. He obtained green cards and searches showing the Government of Kenya as the first registered proprietor, followed by registration in the Appellant’s name, then transfer to Ras Makena Welfare Group, and finally to Catherine Wambui Muthambia.
He established that the Appellant was neither a WASWA member nor a former City Council employee. The Appellant told him he had bought the plots from Manasseh Odhiambo. The officer concluded that the plots had already been allotted to the complainants, that allocation could not be made twice, and that the Appellant obtained the titles fraudulently through documents supplied by Odhiambo, who lacked proper authority. He produced the correspondence, green cards, searches, allotment letters, payslips, maps and other documents recovered during the investigation.
Defence Case
The defence called two witnesses.
DW1 – Simon Theuri Karuri (the Appellant). He testified that in 2009 he was looking for land along Kangundo Road. An agent known as Major showed him two vacant adjacent plots (Mavoko Town Block 3/Waswa/4087 and 4088) and directed him to the WASWA offices on Lagos Street. There he met Mr Mwangi and Manasseh Odhiambo (who introduced himself as the Chairman).
Odhiambo showed him the company’s memorandum and articles of association and a map. The Appellant conducted official searches at the Machakos Lands Registry, which revealed that both parcels were still registered in the name of the Government of Kenya. He was told these were unallocated government lands.
He paid Kshs. 46,000 in cash for each plot, received stamped receipts and completion certificates signed by Odhiambo, and was given a letter addressed to the Land Registrar requesting issuance of titles. Approximately three weeks later the titles were issued in his name. He produced the searches confirming he was the registered proprietor (second and third entries after the Government of Kenya). About a year later, needing school fees, he sold both plots to Ras Makena Welfare Group under a written agreement dated 9 February 2011 and received the full purchase price. Ras Makena later sold the plots to a third party.
When summoned by police from KBC station he discovered the plots were being claimed by others. He maintained he had bought the land for value through due process, had no knowledge that the plots were reserved exclusively for Nairobi City Council employees, and had never claimed to be a WASWA member. He produced: the memorandum and articles of association of WASWA Investment Company Limited; a 2001 notice to defaulters issued by the former chairman; minutes of a directors’ meeting of 4 December 2007 resolving to sell plots of members who had defaulted; a CR12 showing Odhiambo’s continued association with the company; and the judgment in Milimani High Court Civil Suit No. 462 of 2011, which declared that certain persons who later supported the complainants’ claims had been in office illegally.
He also pointed out that a civil suit (Mavoko PMCC No. 46 of 2019) had been filed against him before the criminal charges and argued that the criminal process was being used to settle a civil dispute.
DW2 – Manasseh Odhiambo . A former Nairobi City Council employee and co-director/chairman of WASWA from 2001 to 2012 (after the death of Julius Muhuthu). He confirmed that he dealt with the Appellant, who was introduced by the caretaker Major.
He stated that after WASWA converted from a society to an investment company, the directors resolved (minutes of 4 December 2007) to sell plots belonging to members who had defaulted on the full payment of Kshs. 46,000 and to refund whatever amounts the defaulters had paid. A notice to that effect had earlier been issued by the previous Chairman.
The Appellant paid the full amount in cash for both plots. Odhiambo issued the receipts and completion certificates and wrote the letter to the Land Registrar. He maintained that the transaction was lawful, that non-members could purchase defaulted plots, that the Appellant never pretended to be a WASWA member, and that he (Odhiambo) acted with the authority of the other directors. He produced his earlier written statement recorded in the related Mavoko civil case and asked the court to rely on it.
Appellant submissions
The appellant was charged with two counts of obtaining Registration by false pretenses Contrary to Section 320 of the Penal Code. This provisions state: -
“Any person who willfully procures or attempts to procure for himself or any other person any registration license or certificate under ony law by any false pretense is guilty of a misdemeanor and liable on conviction to imprisonment for one year”.
In the case of Morris Niuguna Mwangi Vs, AG (2012) eKLR the High Court summed up the ingredients of that offence as follows: -
(a). Willful procurement or attempt to procure.
(b). Registration, License or Certificate under any law.
(c). By any false pretense.
False pretense is defined by Section 312 of the Penal Code as:
“Any representation made by words writing or conduct of a matter of fact either past or present which representation is false in fact and which the person making it knows to be false or does not believe it to be true”.
The essence of the PWI and PW3’s case was that the appellant had bought the properties fraudulently because the properties had been allocated to members of Waswa and the accused was not such a member. No other evidence was tendered by any witness to show the appellants wrong doing or that he had knowledge of PW1 and PW3’s claim to the land.
The appellant stated that he bought the properties from Waswa Development Company Limited. PWI who one of the complainants conceded that Article 5 (c) of Waswa’s Development Company Ltd's Articles of Association stated that Directors could sell the property of the company. He qualified it by saying that the company could not sell the property of a member. From the title documents, it is clear that the same were issued in 2009 therefore at the time of the appellant's purchase the properties were registered in the name of Government of Kenya. The process of issuance of title was that those entitled to be registered would be given a leccer of completion of payment to go to the Lands Office by which che Government would be advised to surrender specific parcels and have them registered in the name of the particular beneficiary. Neither PW1 nor PW3 had ever been given the clearance letter and there was no time any parcel of land was registered in their name.
It was the appellant’s case in his defence, that after his title was called into question, he investigated and learned that there had been leadership wrangles in Waswa Development Company that had led to a legal battle at the high court at Nairobi vide Milimani Civil Suit No, 462 of 2011. Judgement in that case was produced as D ex9. In that High Court, case directors including those who signed PW 1's correspondence were declared to have been in office illegally.
DW2 explained how the appellant came to buy the land whilst not a member of Waswa. He stated that after there was a meeting held on 4th December, 2007 in which the directors of the company resolved to sell land that had been allocated to members who had defaulted in payment of the allocation charges and refund the defaulters whatever amount they had paid. A notice was sent to defaulters and was produced as DEX6 while the minutes that passed the resolution to sell was produced as DEX7. The appellants bought the properties in 2009 two years after the resolution to sell the land previously allocated to defaulters had been passed.
On errors of the trial court, the learned trial magistrate stated that Plot Numbers 4087 and 4088 did not belong to Waswa having been allocated to PW1 and PW2. This was a total misunderstanding of the evidence and a factual misdirection. According to the allocation letters produced, PWI had been allocated Plot Number 222/Lukenya Ranch/S05 while PW3 had been allocated Plot Number 505/225. As at the me of allocation of these plots in 1996 and 1998 respectively, the specific parcels had not been registered in their names at the lands office. There had been no surrender by the Government in favor of the PW1! and PW3. Thus, by 2009, the parcels were still under the control of the company which had liberty to cause registration in the name of any person. Most importantly, the Land Registrar was not called to come and testify to court affirmatively that the plots allocated to these witnesses by Waswa Society are same ones that had titles issued as LR Numbers Mavoko Town Block 3 Waswa 4087 and 4088.
On whether the appellant bought the property for value, documents even the ones relating to PW3's Plot show Kshs. 46,000 as the value that was taken at the time of allocation. The trial court did not have a valuation report that had been tendered in evidence in relation to the properties.
The appellant submits that the trial magistrate wondered why the appellant’s completion certificate was addressed to City Council of Nairobi while the appellant was not an employee. The court again misconstrued evidence that had been rendered that: upon purchase, a Completion Certificate would be given to enable the purchaser be given a title in the lands office. There was no evidence tendered to say that the procedure adopted for members of Waswa Development Company Limited was any different from the one adopted for purchasers.
On registration, the appellant submits that trial magistrate argued that if the appellant had done due diligence, he would have found that the properties belong to PWI and PW3. This Is a misdirection as the properties had not been registered in the two complainant's name. As the title documents show, prior to registration in the appellant's name, the parcels were registered in the name of the Republic of Kenya, From the record, no evidence was tendered to even suggest that the allocation letters were registered anywhere in the lands or indeed any the Government offices.
On the civil case, the learned trial magistrate referred to a judgement in a Civil Case, Mavoko PMCC No. 46 of 2019 and stated that it had settled PWI's ownership of Parcel 4087 and found that the plaintiff’s title was fraudulently obtained. The court stated that there was no evidence that the decision in that case had been appealed. The issue as to whether an appeal had been done against that judgement had not been canvassed by any of the parties.
Respondent submissions
The respondent submits that the Appellant’s acquisition of the titles for Mavoko Town Block 3 Waswa/4087 and 4088 was a calculated act of fraud, achieved through deliberate misrepresentation and the concealment of material facts.
The testimony of PWI and PW3 establishes that they are the lawful owners of the subject plots. As members of the Water and Sewerage Association (WASWA), they acquired these properties through a structured salary check-off system which was a scheme strictly reserved for members. Having completed their payments, their equitable interest and right to the land were absolute.
The Appellant, by his own admission, was never a member of WASWA and was fully aware of the internal wrangles within the association. Despite this, he proceeded to “purchase” the land from DW2, a director acting unilaterally and without the knowledge or consent of the other directors. This is clear evidence that the appellant obtained registration of the two titles with false pretence.
The Appellant failed to produce a valid Sale Agreement to support his claim of innocent purchase and the extraordinary speed with which he obtained the titles within three weeks and his immediate subsequent sale to a third-party points to a "flipping" scheme designed to alienate the land before the fraud could be detected.
In Evanson Mwangi Kihumba v Republic [2022] eKLR
The Court in Embu held that the appeal was devoid of merit. the court observed that:
46.From the evidence on record, and especially that of PW1, PW2, PW3, PW4 and PW5, land parcel No. Gaturi/Weru/377 belongs to the deceased Mbui Kobuthi. This evidence was confirmed by PW6 who testified that indeed the said Mbui Kobuthi was the first registered owner of the aforesaid land and was issued with a title deed in the year 1965 which entry is reflected as No. 2 on 14.09.1965. That according to the records held in Embu Lands Office, the land was later transferred to Paul Njeru Kamara who later transferred it to Evanson Mwangi Kihumba, the appellant herein.
47. From the evidence of PW7 and PW8, it is clear that the transfer of the land from the original registered owner Nyaga Kobuthi to Paul Njeru to Kamara was fraudulent and not genuine in that the deceased Nyaga Kibuthi did not sign the transfer of land forms. PW7 also confirmed that the transfer documents were also not genuine as they were made by different authors.
48. The evidence of PW8 also confirmed that the impressions on the transfer forms and that on the change of names declaration documents were not genuine as they were made by a different person yet the said documents ought to have been made by the same person who is Nyaga Kobuthi.
49. It is therefore clear to me that the deceased Nyaga Kobuthi neither sold nor transferred the land to Paul Kamara or any other person for that matter and any purported transfer was fraudulent. It also follows that all the other subject transfers were also fraudulent….
53. The appellant herein procured registration of the title document into his name by false pretences. The evidence adduced by PW7 confirms that the transfer documents following which, the appellant obtained the title into his name were not genuine.
The Appellant’s conduct, characterized by the lack of a sale agreement, the irregular speed of registration, and the disregard for WASWA’s membership-only policy, provides overwhelming evidence that the titles were obtained by false pretenses.
Issue
1. Whether the prosecution proved the ingredients of the offence.
Analysis
This being a first appeal, I am enjoined to re-evaluate the evidence afresh, draw my own conclusions, and determine whether the findings of the trial court can stand, while giving due allowance for the fact that I neither saw nor heard the witnesses (Okeno v Republic [1972] EA 32; Kiilu & Another v Republic [2005] 1 KLR 174).
Section 320 of the Penal Code provides:
“Any person who willfully procures or attempts to procure for himself or any other person any registration, license or certificate under any law by any false pretence is guilty of a misdemeanour and is liable to imprisonment for one year.”
Section 312 of the Penal Code defines “false pretence” as:
“Any representation, made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false or does not believe to be true.”
The ingredients of the offence were restated in Hashim v Republic (Criminal Appeal E050 of 2021) [2023] KEHC 26652 (KLR) as follows: there must be a representation on matters of fact about the past or present; that representation must be false; it must have been made with the intent of defrauding someone of his property; and it must have been acted upon to the disadvantage of the complainant.
The main issue is whether the prosecution proved beyond reasonable doubt that the Appellant willfully procured the registration of the two titles by a false pretence, that is, by a representation of an existing fact which he knew to be false or did not believe to be true, with intent to defraud.
It is not in dispute that the Appellant obtained registration of the two titles in his name in 2009. The green cards confirm that the first entry was the Government of Kenya and that the titles were thereafter registered in the Appellant’s name pursuant to a surrender. The Appellant paid money and received documentation from Manasseh Odhiambo.
The prosecution’s case theory is that the plots had already been allotted to PW1 and PW3 as members of WASWA, that the Appellant was an outsider who knew or ought to have known of those prior allotments, and that he colluded with Odhiambo to obtain titles fraudulently.
Several challenges face the prosecution case. First, at the time of the Appellant’s acquisition in 2009 the parcels remained registered in the name of the Government of Kenya. Neither PW1 nor PW3 had ever been registered as proprietors. Their claim rested on allotment letters issued by WASWA officials years earlier. Allotment letters, while evidence of an equitable interest, do not themselves constitute registered title. The Land Registrar was never called to explain the precise documents that formed the basis of the 2009 registration or to confirm that the allotment letters of PW1 and PW3 had been noted or registered in the parcel files.
PW1, John H. Gikingo, testified that he was an employee of the Nairobi City Council and a member of Waswa. He stated that he had been allocated land and had paid for it through the check-off system. He subsequently discovered that the parcels had been registered in other people's names. His evidence was that he believed the Appellant had acquired the land fraudulently because the Appellant was not a member of Waswa.
PW2, Newton Kaguandata Mleabwe, was a former official of Waswa. He testified about the history of the organisation, the allocation of plots to members and the issuance of allotment letters. He confirmed that the original allottees were members of the organisation and that the Appellant was not known to him as a member.
PW3, Kennedy Gitau Mwaura, similarly stated that he was a former employee of the Nairobi City Council and a member of Waswa. He testified that he had been allocated a plot but later discovered that the plot had been registered in the Appellant's name.
Second, the evidence reveals a protracted leadership dispute within WASWA. The judgment in Milimani HCCC No. 462 of 2011 (produced by the defence) declared that certain persons who later issued correspondence supporting the complainants’ claims were not lawful office holders. Manasseh Odhiambo maintained that he was a director and that a 2007 directors’ resolution authorized the sale of plots belonging to defaulters. The Appellant’s evidence that he conducted a search, paid the stated consideration, and received documents purporting to emanate from the company was not displaced by clear proof that he knew those documents to be false.
In Dunga v Republic [2023] KEHC 17794 (KLR), the High Court, while dealing with a charge under section 320, emphasised that the prosecution must prove the particular false pretence upon which the registration was procured.
Third, the prosecution did not produce a sale agreement or any direct evidence of a representation made by the Appellant himself to the Land Registrar that he was an original WASWA member or that he was the original allottee. The representation that induced registration appears to have been contained in the letter and completion certificates issued by Odhiambo. While a purchaser who knowingly presents false documents may be guilty under section 320, the prosecution bore the burden of proving that the Appellant knew the documents to be false or that he actively participated in a false pretence. Mere subsequent sale of the plots, or the speed of registration, while suspicious, does not, without more, establish the requisite knowledge and intent beyond reasonable doubt.
PW4, PC Peter Orwa, was the investigating officer. His investigations established that the disputed parcels had been registered in the name of the Appellant and that the Appellant subsequently transferred them to Ras Makena Welfare Group, which later transferred them to another person. He also established that the complainants had documents showing their respective allotments.
In Munyu Maina v Hiram Gathiha Maina [2013] eKLR the Court of Appeal observed that when the root of a title is challenged, the registered proprietor must prove the legality of the acquisition.
The prosecution evidence also established that the Appellant's case was that he purchased the two parcels from Waswa through DW2, Manasseh Odhiambo. The Appellant testified that he was shown the parcels, conducted searches, found the land registered in the name of the Government of Kenya, paid Kshs. 46,000/= for each parcel, received receipts and completion certificates, and subsequently obtained title deeds.
DW2, Manasseh Odhiambo, testified that he was a director of Waswa from 2001 to 2012 and its second chairman. He admitted that he received the Appellant's payments, issued receipts and completion certificates and caused the documents necessary for registration to be issued. He maintained that the Appellant did not represent himself as a member of Waswa and that he purchased the land as an outsider under the arrangements then prevailing.
In cross-examination, DW2 conceded that he was acting in a position of trust, that he was not the sole director and that he ought to have acted with the authority of the other directors and members. He further admitted that the land had originally been acquired by Waswa Society and that the Investment Company came into existence after the land had already been allocated to members.
The prosecution relied heavily on the fact that the Appellant was not a member of Waswa. That fact, standing alone, did not establish a false pretence. The Appellant never claimed that he was a member of Waswa. Indeed, his consistent case was that he was an outsider who purchased the parcels from persons whom he understood to have authority to sell them.
The Respondent relied on Evanson Mwangi Kihumba v Republic [2021] KEHC 532 (KLR), reported as [2022] eKLR, in support of the proposition that fraudulent acquisition and registration of land may constitute the offence of obtaining registration by false pretences contrary to section 320 of the Penal Code.
The facts in Evanson Mwangi Kihumba case are, however, materially distinguishable from those in the present appeal. In that case, the prosecution evidence established that the transfer documents were fraudulent and that the documents used to procure registration were not genuine. While in the present case, there was no comparable evidence establishing that the Appellant personally forged, fabricated or knowingly presented fraudulent transfer documents to the Lands Registry.
Lastly, the trial magistrate appears to have treated the civil ruling in Mavoko PMCC No. 46 of 2019 as conclusive of fraud in the criminal proceedings. A civil judgment, even if un-appealed, does not automatically establish the criminal ingredients of false pretence and mens rea. The two jurisdictions operate under different standards of proof.
Having re-evaluated the entire record, I am not satisfied that the prosecution proved beyond reasonable doubt that the Appellant willfully procured the two registrations by a false pretence within the meaning of sections 312 and 320 of the Penal Code.
My finding is that the appeal is meritorious and is hereby allowed.
READ IN OPEN COURT THIS 8TH SEPTEMBER 2026 IN THE PRESENCE OF:
NO APPEARANCE BY THE APPELLANT
BEFORE HON JOYCE GANDANI
MS MACHUMA PROSECUTOR
DIANA, COURT ASSISTANT
1. The learned Trial Magistrate erred in law and in fact by failing to carefully weigh the ingredients of the offences that the accused person was charged with and analyze that the prosecution needed to prove by way of cogent evidence which would suffice to base a conviction on.
2. The learned Trial Magistrate erred in law and in fact by failing to carefully consider the evidence adduced vis a vis the charges and failing to find that the offences had not been proved against the Appellant.
3. The learned Trial Magistrate erred in law and in fact by relying on the evidence of the Complainant and other witnesses which was not sufficient to prove the charged offence to the standard required by law.
4. The learned Trial Magistrate erred in law and misdirected herself by finding the Accused guilty while no sufficient evidence was adduced to support the charges.
Reasons wherefore the Appellant prays that the Appeal be allowed and this Honourable Court do set aside both the conviction and sentence.
Brief facts
The appellant was charged with two counts and the first one was obtaining registration by false pretences contrary to section 320 of the Penal Code.
The particulars were that on the 17th day of September 2009 at Lands registry office in Machakos township within Machakos county with others not before court, willingly procured for himself the registration of a land parcel title deed number Mavoko Block 3 Waswa/4087 valued at Kshs. Eight hundred thousand shillings (800,000) by falsely pretending to be the lawful owner.
The second count was obtaining registration by false pretences contrary to section 320 of the Penal Code and the particulars being that that on the on the 17th day of September 2009 at Lands registry office in Machakos township within Machakos county with others not before court, willingly procured for himself the registration of a land parcel title deed number Mavoko Block 3 Waswa/4088 valued at Kshs. Eight hundred thousand shillings (800,000) by falsely pretending to be the lawful owner.
The Appellants pleaded not guilty to both counts and the case proceeded to full trial.
The prosecution called a total of four witnesses to establish their case, when placed on his defence, the appellant called one witness.
On 27th November, 2024, the Appellant was found guilty on both counts and was sentenced to pay a fine of ksh, 100,000/= or 6 months imprisonment in both counts.
Prosecution case
The prosecution called four witnesses to prove the two counts of obtaining registration by false pretences.
PW1 – John H. Gikingo. He was an employee of Nairobi City Council (later transferred to Kajiado County Government). He joined the Water and Sewerage Welfare Association (WASWA) in 1994. Through salary check-off deductions he paid for two plots at Lukenya Ranch (originally Plot Nos. 505/222 and 505/298). He was issued allotment letters for the plots that later became Mavoko Town Block 3/Waswa/4088 and another related parcel.
In June 2019 he discovered that titles to the plots had been issued to other people who were neither WASWA members nor former City Council employees. A search showed the land registered in the name of Catherine Wambui Muthambia, while the green card indicated it had earlier been surrendered to the Appellant, Simon Karuri Theuri. WASWA officials later confirmed in writing that the plots belonged to him and that the Appellant was not a member. He produced allotment letters, payslips, a membership register extract, subdivision maps, a letter from WASWA, the green card, a search, and a ruling from Mavoko PMCC No. 46 of 2019 which had found that Catherine’s title was illegally obtained. He reported the matter to the police.
PW2 – Newton Kaguandata Mleabwe . A retired former secretary-general of WASWA (1990s–2003). He confirmed that WASWA was formed by Nairobi City Council Water and Sewerage employees to buy land at Lukenya. Members paid through check-off and were allocated plots after full payment. Allotment letters required the signatures of the chairman, secretary and treasurer. He identified the allotment letter produced by PW1 as genuine and bearing his signature. He stated that outsiders could only acquire plots through the original allottees and that the Appellant was unknown to him. He left office in 2003 when he was transferred; by then most original members had been allocated their plots.
PW3 Kennedy Gitau Mwaura . A former Nairobi City Council employee who joined WASWA in 1996. Through check-off deductions he paid for a plot (originally 505/225, later Mavoko Town Block 3/Waswa/4087). He was shown the land in 1998, fenced it, and later received an allotment letter. When he went to process the title he was told the plot belonged to “Karuri.” A green card showed the Appellant had been registered as owner in 2009. WASWA officials told him the plot was still his and that they did not know the Appellant. He produced his allotment letter, payslips, authority-to-deduct forms and a green card. He reported the matter to the police, stating that only City Council employees who were WASWA members were entitled to the plots.
PW4 – PC Peter Orwa (Investigating Officer) .He was assigned the case in July 2019. He wrote to WASWA seeking confirmation of ownership of the two plots and received a reply stating that the plots belonged to the complainants and that the Appellant was not a member. He obtained green cards and searches showing the Government of Kenya as the first registered proprietor, followed by registration in the Appellant’s name, then transfer to Ras Makena Welfare Group, and finally to Catherine Wambui Muthambia.
He established that the Appellant was neither a WASWA member nor a former City Council employee. The Appellant told him he had bought the plots from Manasseh Odhiambo. The officer concluded that the plots had already been allotted to the complainants, that allocation could not be made twice, and that the Appellant obtained the titles fraudulently through documents supplied by Odhiambo, who lacked proper authority. He produced the correspondence, green cards, searches, allotment letters, payslips, maps and other documents recovered during the investigation.
Defence Case
The defence called two witnesses.
DW1 – Simon Theuri Karuri (the Appellant). He testified that in 2009 he was looking for land along Kangundo Road. An agent known as Major showed him two vacant adjacent plots (Mavoko Town Block 3/Waswa/4087 and 4088) and directed him to the WASWA offices on Lagos Street. There he met Mr Mwangi and Manasseh Odhiambo (who introduced himself as the Chairman).
Odhiambo showed him the company’s memorandum and articles of association and a map. The Appellant conducted official searches at the Machakos Lands Registry, which revealed that both parcels were still registered in the name of the Government of Kenya. He was told these were unallocated government lands.
He paid Kshs. 46,000 in cash for each plot, received stamped receipts and completion certificates signed by Odhiambo, and was given a letter addressed to the Land Registrar requesting issuance of titles. Approximately three weeks later the titles were issued in his name. He produced the searches confirming he was the registered proprietor (second and third entries after the Government of Kenya). About a year later, needing school fees, he sold both plots to Ras Makena Welfare Group under a written agreement dated 9 February 2011 and received the full purchase price. Ras Makena later sold the plots to a third party.
When summoned by police from KBC station he discovered the plots were being claimed by others. He maintained he had bought the land for value through due process, had no knowledge that the plots were reserved exclusively for Nairobi City Council employees, and had never claimed to be a WASWA member. He produced: the memorandum and articles of association of WASWA Investment Company Limited; a 2001 notice to defaulters issued by the former chairman; minutes of a directors’ meeting of 4 December 2007 resolving to sell plots of members who had defaulted; a CR12 showing Odhiambo’s continued association with the company; and the judgment in Milimani High Court Civil Suit No. 462 of 2011, which declared that certain persons who later supported the complainants’ claims had been in office illegally.
He also pointed out that a civil suit (Mavoko PMCC No. 46 of 2019) had been filed against him before the criminal charges and argued that the criminal process was being used to settle a civil dispute.
DW2 – Manasseh Odhiambo . A former Nairobi City Council employee and co-director/chairman of WASWA from 2001 to 2012 (after the death of Julius Muhuthu). He confirmed that he dealt with the Appellant, who was introduced by the caretaker Major.
He stated that after WASWA converted from a society to an investment company, the directors resolved (minutes of 4 December 2007) to sell plots belonging to members who had defaulted on the full payment of Kshs. 46,000 and to refund whatever amounts the defaulters had paid. A notice to that effect had earlier been issued by the previous Chairman.
The Appellant paid the full amount in cash for both plots. Odhiambo issued the receipts and completion certificates and wrote the letter to the Land Registrar. He maintained that the transaction was lawful, that non-members could purchase defaulted plots, that the Appellant never pretended to be a WASWA member, and that he (Odhiambo) acted with the authority of the other directors. He produced his earlier written statement recorded in the related Mavoko civil case and asked the court to rely on it.
Appellant submissions
The appellant was charged with two counts of obtaining Registration by false pretenses Contrary to Section 320 of the Penal Code. This provisions state: -
“Any person who willfully procures or attempts to procure for himself or any other person any registration license or certificate under ony law by any false pretense is guilty of a misdemeanor and liable on conviction to imprisonment for one year”.
In the case of Morris Niuguna Mwangi Vs, AG (2012) eKLR the High Court summed up the ingredients of that offence as follows: -
(a). Willful procurement or attempt to procure.
(b). Registration, License or Certificate under any law.
(c). By any false pretense.
False pretense is defined by Section 312 of the Penal Code as:
“Any representation made by words writing or conduct of a matter of fact either past or present which representation is false in fact and which the person making it knows to be false or does not believe it to be true”.
The essence of the PWI and PW3’s case was that the appellant had bought the properties fraudulently because the properties had been allocated to members of Waswa and the accused was not such a member. No other evidence was tendered by any witness to show the appellants wrong doing or that he had knowledge of PW1 and PW3’s claim to the land.
The appellant stated that he bought the properties from Waswa Development Company Limited. PWI who one of the complainants conceded that Article 5 (c) of Waswa’s Development Company Ltd's Articles of Association stated that Directors could sell the property of the company. He qualified it by saying that the company could not sell the property of a member. From the title documents, it is clear that the same were issued in 2009 therefore at the time of the appellant's purchase the properties were registered in the name of Government of Kenya. The process of issuance of title was that those entitled to be registered would be given a leccer of completion of payment to go to the Lands Office by which che Government would be advised to surrender specific parcels and have them registered in the name of the particular beneficiary. Neither PW1 nor PW3 had ever been given the clearance letter and there was no time any parcel of land was registered in their name.
It was the appellant’s case in his defence, that after his title was called into question, he investigated and learned that there had been leadership wrangles in Waswa Development Company that had led to a legal battle at the high court at Nairobi vide Milimani Civil Suit No, 462 of 2011. Judgement in that case was produced as D ex9. In that High Court, case directors including those who signed PW 1's correspondence were declared to have been in office illegally.
DW2 explained how the appellant came to buy the land whilst not a member of Waswa. He stated that after there was a meeting held on 4th December, 2007 in which the directors of the company resolved to sell land that had been allocated to members who had defaulted in payment of the allocation charges and refund the defaulters whatever amount they had paid. A notice was sent to defaulters and was produced as DEX6 while the minutes that passed the resolution to sell was produced as DEX7. The appellants bought the properties in 2009 two years after the resolution to sell the land previously allocated to defaulters had been passed.
On errors of the trial court, the learned trial magistrate stated that Plot Numbers 4087 and 4088 did not belong to Waswa having been allocated to PW1 and PW2. This was a total misunderstanding of the evidence and a factual misdirection. According to the allocation letters produced, PWI had been allocated Plot Number 222/Lukenya Ranch/S05 while PW3 had been allocated Plot Number 505/225. As at the me of allocation of these plots in 1996 and 1998 respectively, the specific parcels had not been registered in their names at the lands office. There had been no surrender by the Government in favor of the PW1! and PW3. Thus, by 2009, the parcels were still under the control of the company which had liberty to cause registration in the name of any person. Most importantly, the Land Registrar was not called to come and testify to court affirmatively that the plots allocated to these witnesses by Waswa Society are same ones that had titles issued as LR Numbers Mavoko Town Block 3 Waswa 4087 and 4088.
On whether the appellant bought the property for value, documents even the ones relating to PW3's Plot show Kshs. 46,000 as the value that was taken at the time of allocation. The trial court did not have a valuation report that had been tendered in evidence in relation to the properties.
The appellant submits that the trial magistrate wondered why the appellant’s completion certificate was addressed to City Council of Nairobi while the appellant was not an employee. The court again misconstrued evidence that had been rendered that: upon purchase, a Completion Certificate would be given to enable the purchaser be given a title in the lands office. There was no evidence tendered to say that the procedure adopted for members of Waswa Development Company Limited was any different from the one adopted for purchasers.
On registration, the appellant submits that trial magistrate argued that if the appellant had done due diligence, he would have found that the properties belong to PWI and PW3. This Is a misdirection as the properties had not been registered in the two complainant's name. As the title documents show, prior to registration in the appellant's name, the parcels were registered in the name of the Republic of Kenya, From the record, no evidence was tendered to even suggest that the allocation letters were registered anywhere in the lands or indeed any the Government offices.
On the civil case, the learned trial magistrate referred to a judgement in a Civil Case, Mavoko PMCC No. 46 of 2019 and stated that it had settled PWI's ownership of Parcel 4087 and found that the plaintiff’s title was fraudulently obtained. The court stated that there was no evidence that the decision in that case had been appealed. The issue as to whether an appeal had been done against that judgement had not been canvassed by any of the parties.
Respondent submissions
The respondent submits that the Appellant’s acquisition of the titles for Mavoko Town Block 3 Waswa/4087 and 4088 was a calculated act of fraud, achieved through deliberate misrepresentation and the concealment of material facts.
The testimony of PWI and PW3 establishes that they are the lawful owners of the subject plots. As members of the Water and Sewerage Association (WASWA), they acquired these properties through a structured salary check-off system which was a scheme strictly reserved for members. Having completed their payments, their equitable interest and right to the land were absolute.
The Appellant, by his own admission, was never a member of WASWA and was fully aware of the internal wrangles within the association. Despite this, he proceeded to “purchase” the land from DW2, a director acting unilaterally and without the knowledge or consent of the other directors. This is clear evidence that the appellant obtained registration of the two titles with false pretence.
The Appellant failed to produce a valid Sale Agreement to support his claim of innocent purchase and the extraordinary speed with which he obtained the titles within three weeks and his immediate subsequent sale to a third-party points to a "flipping" scheme designed to alienate the land before the fraud could be detected.
In Evanson Mwangi Kihumba v Republic [2022] eKLR
The Court in Embu held that the appeal was devoid of merit. the court observed that:
46.From the evidence on record, and especially that of PW1, PW2, PW3, PW4 and PW5, land parcel No. Gaturi/Weru/377 belongs to the deceased Mbui Kobuthi. This evidence was confirmed by PW6 who testified that indeed the said Mbui Kobuthi was the first registered owner of the aforesaid land and was issued with a title deed in the year 1965 which entry is reflected as No. 2 on 14.09.1965. That according to the records held in Embu Lands Office, the land was later transferred to Paul Njeru Kamara who later transferred it to Evanson Mwangi Kihumba, the appellant herein.
47. From the evidence of PW7 and PW8, it is clear that the transfer of the land from the original registered owner Nyaga Kobuthi to Paul Njeru to Kamara was fraudulent and not genuine in that the deceased Nyaga Kibuthi did not sign the transfer of land forms. PW7 also confirmed that the transfer documents were also not genuine as they were made by different authors.
48. The evidence of PW8 also confirmed that the impressions on the transfer forms and that on the change of names declaration documents were not genuine as they were made by a different person yet the said documents ought to have been made by the same person who is Nyaga Kobuthi.
49. It is therefore clear to me that the deceased Nyaga Kobuthi neither sold nor transferred the land to Paul Kamara or any other person for that matter and any purported transfer was fraudulent. It also follows that all the other subject transfers were also fraudulent….
53. The appellant herein procured registration of the title document into his name by false pretences. The evidence adduced by PW7 confirms that the transfer documents following which, the appellant obtained the title into his name were not genuine.
The Appellant’s conduct, characterized by the lack of a sale agreement, the irregular speed of registration, and the disregard for WASWA’s membership-only policy, provides overwhelming evidence that the titles were obtained by false pretenses.
Issue
1. Whether the prosecution proved the ingredients of the offence.
Analysis
This being a first appeal, I am enjoined to re-evaluate the evidence afresh, draw my own conclusions, and determine whether the findings of the trial court can stand, while giving due allowance for the fact that I neither saw nor heard the witnesses (Okeno v Republic [1972] EA 32; Kiilu & Another v Republic [2005] 1 KLR 174).
Section 320 of the Penal Code provides:
“Any person who willfully procures or attempts to procure for himself or any other person any registration, license or certificate under any law by any false pretence is guilty of a misdemeanour and is liable to imprisonment for one year.”
Section 312 of the Penal Code defines “false pretence” as:
“Any representation, made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false or does not believe to be true.”
The ingredients of the offence were restated in Hashim v Republic (Criminal Appeal E050 of 2021) [2023] KEHC 26652 (KLR) as follows: there must be a representation on matters of fact about the past or present; that representation must be false; it must have been made with the intent of defrauding someone of his property; and it must have been acted upon to the disadvantage of the complainant.
The main issue is whether the prosecution proved beyond reasonable doubt that the Appellant willfully procured the registration of the two titles by a false pretence, that is, by a representation of an existing fact which he knew to be false or did not believe to be true, with intent to defraud.
It is not in dispute that the Appellant obtained registration of the two titles in his name in 2009. The green cards confirm that the first entry was the Government of Kenya and that the titles were thereafter registered in the Appellant’s name pursuant to a surrender. The Appellant paid money and received documentation from Manasseh Odhiambo.
The prosecution’s case theory is that the plots had already been allotted to PW1 and PW3 as members of WASWA, that the Appellant was an outsider who knew or ought to have known of those prior allotments, and that he colluded with Odhiambo to obtain titles fraudulently.
Several challenges face the prosecution case. First, at the time of the Appellant’s acquisition in 2009 the parcels remained registered in the name of the Government of Kenya. Neither PW1 nor PW3 had ever been registered as proprietors. Their claim rested on allotment letters issued by WASWA officials years earlier. Allotment letters, while evidence of an equitable interest, do not themselves constitute registered title. The Land Registrar was never called to explain the precise documents that formed the basis of the 2009 registration or to confirm that the allotment letters of PW1 and PW3 had been noted or registered in the parcel files.
PW1, John H. Gikingo, testified that he was an employee of the Nairobi City Council and a member of Waswa. He stated that he had been allocated land and had paid for it through the check-off system. He subsequently discovered that the parcels had been registered in other people's names. His evidence was that he believed the Appellant had acquired the land fraudulently because the Appellant was not a member of Waswa.
PW2, Newton Kaguandata Mleabwe, was a former official of Waswa. He testified about the history of the organisation, the allocation of plots to members and the issuance of allotment letters. He confirmed that the original allottees were members of the organisation and that the Appellant was not known to him as a member.
PW3, Kennedy Gitau Mwaura, similarly stated that he was a former employee of the Nairobi City Council and a member of Waswa. He testified that he had been allocated a plot but later discovered that the plot had been registered in the Appellant's name.
Second, the evidence reveals a protracted leadership dispute within WASWA. The judgment in Milimani HCCC No. 462 of 2011 (produced by the defence) declared that certain persons who later issued correspondence supporting the complainants’ claims were not lawful office holders. Manasseh Odhiambo maintained that he was a director and that a 2007 directors’ resolution authorized the sale of plots belonging to defaulters. The Appellant’s evidence that he conducted a search, paid the stated consideration, and received documents purporting to emanate from the company was not displaced by clear proof that he knew those documents to be false.
In Dunga v Republic [2023] KEHC 17794 (KLR), the High Court, while dealing with a charge under section 320, emphasised that the prosecution must prove the particular false pretence upon which the registration was procured.
Third, the prosecution did not produce a sale agreement or any direct evidence of a representation made by the Appellant himself to the Land Registrar that he was an original WASWA member or that he was the original allottee. The representation that induced registration appears to have been contained in the letter and completion certificates issued by Odhiambo. While a purchaser who knowingly presents false documents may be guilty under section 320, the prosecution bore the burden of proving that the Appellant knew the documents to be false or that he actively participated in a false pretence. Mere subsequent sale of the plots, or the speed of registration, while suspicious, does not, without more, establish the requisite knowledge and intent beyond reasonable doubt.
PW4, PC Peter Orwa, was the investigating officer. His investigations established that the disputed parcels had been registered in the name of the Appellant and that the Appellant subsequently transferred them to Ras Makena Welfare Group, which later transferred them to another person. He also established that the complainants had documents showing their respective allotments.
In Munyu Maina v Hiram Gathiha Maina [2013] eKLR the Court of Appeal observed that when the root of a title is challenged, the registered proprietor must prove the legality of the acquisition.
The prosecution evidence also established that the Appellant's case was that he purchased the two parcels from Waswa through DW2, Manasseh Odhiambo. The Appellant testified that he was shown the parcels, conducted searches, found the land registered in the name of the Government of Kenya, paid Kshs. 46,000/= for each parcel, received receipts and completion certificates, and subsequently obtained title deeds.
DW2, Manasseh Odhiambo, testified that he was a director of Waswa from 2001 to 2012 and its second chairman. He admitted that he received the Appellant's payments, issued receipts and completion certificates and caused the documents necessary for registration to be issued. He maintained that the Appellant did not represent himself as a member of Waswa and that he purchased the land as an outsider under the arrangements then prevailing.
In cross-examination, DW2 conceded that he was acting in a position of trust, that he was not the sole director and that he ought to have acted with the authority of the other directors and members. He further admitted that the land had originally been acquired by Waswa Society and that the Investment Company came into existence after the land had already been allocated to members.
The prosecution relied heavily on the fact that the Appellant was not a member of Waswa. That fact, standing alone, did not establish a false pretence. The Appellant never claimed that he was a member of Waswa. Indeed, his consistent case was that he was an outsider who purchased the parcels from persons whom he understood to have authority to sell them.
The Respondent relied on Evanson Mwangi Kihumba v Republic [2021] KEHC 532 (KLR), reported as [2022] eKLR, in support of the proposition that fraudulent acquisition and registration of land may constitute the offence of obtaining registration by false pretences contrary to section 320 of the Penal Code.
The facts in Evanson Mwangi Kihumba case are, however, materially distinguishable from those in the present appeal. In that case, the prosecution evidence established that the transfer documents were fraudulent and that the documents used to procure registration were not genuine. While in the present case, there was no comparable evidence establishing that the Appellant personally forged, fabricated or knowingly presented fraudulent transfer documents to the Lands Registry.
Lastly, the trial magistrate appears to have treated the civil ruling in Mavoko PMCC No. 46 of 2019 as conclusive of fraud in the criminal proceedings. A civil judgment, even if un-appealed, does not automatically establish the criminal ingredients of false pretence and mens rea. The two jurisdictions operate under different standards of proof.
Having re-evaluated the entire record, I am not satisfied that the prosecution proved beyond reasonable doubt that the Appellant willfully procured the two registrations by a false pretence within the meaning of sections 312 and 320 of the Penal Code.
My finding is that the appeal is meritorious and is hereby allowed.
READ IN OPEN COURT THIS 8TH SEPTEMBER 2026 IN THE PRESENCE OF:
NO APPEARANCE BY THE APPELLANT
BEFORE HON JOYCE GANDANI
MS MACHUMA PROSECUTOR
DIANA, COURT ASSISTANT