A. THE CHARGE.
1. The Appellant, Justus Mboga Oteki was charged before the lower court with the offence of obtaining by false pretence contrary to Section 313 of the Penal Code, Cap 63 Laws of Kenya. It was alleged in the particulars of the offence that on diverse dates between 2nd September, 2017 and 7th November, 2018, at Ahero Township in Nyando Subcounty within Kisumu County, the Appellant, with intent to defraud, obtained from Fridah Kerubo Machuru (the complainant) cash Ksh.509,951/-, one mobile phone make Samsung, one sweater and one handbag all valued at Ksh.524,451/- by falsely pretending that he would open a business for the complainant.
2. The Appellant denied the charge when it was read and explained to him before the trial court, thereby necessitating a full hearing.
B. THE GROUNDS OF APPEAL.
3. The prosecution case was founded on the evidence of five witnesses. while the defence comprised of the Appellant’s unsworn statement. Following the conclusion of the trial, the Appellant was convicted and subsequently sentenced to serve 2 years imprisonment.
4. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the petition of appeal (wrongly described as a memorandum of appeal) dated 26th August, 2021 in which he raised the following grounds of appeal:
1. That the learned trial Magistrate erred both in law and fact by not finding that the prosecution evidence was insufficient and/or lacked requisite and/or probative value in proving their case against the Appellant.
2. That the learned trial Magistrate erred both in law and fact by failing to make a finding that the prosecution failed to establish their case as per particulars set out in the charge sheet.
3. That the learned trial Magistrate erred both in law and fact by failing to properly evaluate and appreciate the significance of the evidence of marriage between PW1, Fridah Kerubo Machire and the Appellant.
4. That the learned trial Magistrate erred both in law and fact by failing to make a finding that the charges of obtaining money by false pretence were not proved beyond reasonable doubt as required by law considering/in view of the special circumstances of the marital status of PW1, Fridah Kerubo Machire and the Appellant.
5. That the learned trial Magistrate erred both in law and fact by making a faulty analysis and evaluation of the prosecution evidence and by disregarding the defence evidence.
6. On the strength of these grounds, the Appellant urges this court to allow the appeal, quash his conviction and acquit him and set aside the sentence of imprisonment.
7. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570; and Peter v Sunday Post [1958] EA 424.)
8. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the conviction and sentence.
C. THE PROSECUTION CASE.
9. In her testimony before the trial court, the complainant, Fridah Kerubo Machuru (PW1) testified that she was a resident of Nakuru but had previously lived in Ahero, where she operated a wines and spirits supply business while working at Jesmic Hotel. She testified that she came to know the Appellant, Justus Mbonga Oteki, as a customer who regularly purchased alcoholic drinks from her business.
10. She testified that their relationship later developed into an intimate one and that they began living together as husband and wife after the Appellant expressed a desire to marry her. According to her, the Appellant was aware that she was engaged in business and, after gaining her trust, requested her to lend him money.
11. PW1 stated that although she initially hesitated because she had not known the Appellant for long, she eventually agreed to assist him financially. She first gave him Ksh.15,000/- in cash from funds belonging to her chama. She testified that after receiving the money, the Appellant left and failed to refund it, prompting her to report the matter to the police and record a statement.
12. The complainant further testified that the Appellant informed her that he worked for KEBS in Kakamega and repeatedly sought financial assistance from her for various purposes. Believing his representations and expecting repayment, she continued sending him money both through M-Pesa transfers and in cash.
13. PW1 told the court that she initially reported the matter at Nyatieko Police Station but felt that no action was taken because the Appellant was allegedly known to police officers there. She thereafter reported the matter at Ahero Police Station, following which warrants of arrest were issued against the Appellant.
14. She testified that investigations led to the acquisition of her M-Pesa statements. She specifically recalled sending the Appellant Ksh.1,052/- on 2nd September, 2017 after he informed her that he required money to travel to Nairobi. She stated that the Appellant repeatedly assured her that he would refund the money and informed her that he had finalized arrangements with a bank and would soon repay her.
15. According to PW1, despite numerous promises to reimburse her, the Appellant failed to do so. She testified that by the year 2018 she had repeatedly demanded repayment, but the Appellant merely continued assuring her that he would refund the money.
16. PW1 stated that the M-Pesa records produced in court reflected transfers amounting to Ksh.509,951/- made to the Appellant through his mobile number 0796****34. She further testified that, in addition to the M-Pesa transfers, she gave him Ksh.190,000/- in cash. She identified two Safaricom numbers registered in her name, namely 0711****42 and 0790****16, whose M-Pesa statements were produced in evidence.
17. She testified that some of the cash payments were made when the Appellant was alone, while on other occasions she was accompanied by Linet Nyaboke (PW2) and Teresa Atieno (PW3). She identified the Appellant in court as the person to whom she had given the money and stated that there had been no disagreement between them at the time she advanced the funds.
18. During cross-examination, PW1 stated that she had known the Appellant from August, 2017 to 2018 and regarded him as her husband. She testified that although she earned about Ksh.10,000/- per month, she obtained additional funds from relatives which enabled her to send him substantial sums of money.
19. She further stated that the Appellant at times pressured her to provide money and would insist that she facilitate his travel expenses, including transport to Nairobi. She maintained that she continued giving him money because he represented that it was needed to secure a loan and establish a business. According to her, they had planned to start a business requiring about Ksh.400,000/-. She reiterated that the Appellant had initially been her customer before proposing that she become his wife and later abandoning her.
20. The prosecution called Linet Nyaboke as PW2. The witness told the trial court that she was a resident of Ahero and a businesswoman operating a canteen within the police lines. She stated that she knew the complainant, Fridah Kerubo, as a friend and was aware that she worked at a wines and spirits shop in Ahero Township.
21. PW2 told the court that she also knew the Appellant, Justus Mboga Oteki, who was a friend of the complainant. According to her, she had known him for approximately one year and had never had any disagreement with him.
22. PW2 testified that on one occasion while at the complainant’s place of work, she witnessed the complainant hand over money to the Appellant. Although she observed the transaction, she was unable to state the amount of money that was given. She further stated that at the time, the complainant and the Appellant were engaged in a discussion concerning a motor vehicle.
23. The witness stated that she later recorded a statement with the police regarding the matter. PW2 further testified that the complainant subsequently informed her that the Appellant had conned her of money.
24. PW2 identified the Appellant in court as the person she had seen receiving money from the complainant.
25. In cross-examination, PW2 stated that on one occasion she had asked the complainant why she was seated at the shop.
26. Teresa Atieno testified before the trial court as PW3 and stated that she was a resident of Nyakongo and a businesswoman engaged in M-Pesa services and the sale of mandazi. She further testified that she had previously operated a wines and spirits business at Baraka Shop.
27. She told the trial court that she knew the complainant, Fridah Kerubo, who was also involved in the sale of alcoholic drinks at Jesmic. According to PW3, she would occasionally visit the complainant’s place of work to collect spirits and, during such visits, would frequently find the Appellant present.
28. PW3 testified that although she knew the Appellant by appearance, she had never spoken to him and had no disagreement with him. She stated that on two occasions she observed the complainant holding money in hundred-shilling denominations and handing it over to the Appellant.
29. She further testified that upon witnessing one of the transactions, she inquired from the complainant why she was giving money to the Appellant. According to PW3, the complainant informed her that the Appellant was her friend and that the money was intended to assist him in obtaining a loan.
30. PW3 stated that she later found the complainant crying, although the complainant did not disclose to her the reason for her distress. She subsequently recorded a statement with the police regarding the matter.
31. PW3 identified the Appellant in court as the person she had seen receiving money from the complainant.
32. Corporal Kimaru Koskei testified as PW5 and stated that he was attached to Ahero Police Station. He testified that on 8th November, 2018 at about 2.00 p.m., the complainant reported a case alleging that the Appellant had unlawfully obtained approximately Ksh.700,000/- from her through M-Pesa transactions.
33. The officer stated that the complainant informed him that she had been sending money to the Appellant, Justus Oteki, on diverse dates between 2nd September, 2017 and 7th November, 2018, with some transfers being made daily and others weekly.
34. PW5 testified that the complainant produced Safaricom M-Pesa printouts, which he examined. According to him, the records confirmed transfers amounting to Ksh.509,951/- from the complainant to the Appellant. He stated that the transfers originated from the complainant’s mobile numbers 0711641342 and 0790198116 and were sent to numbers associated with the Appellant.
35. The witness testified that one of the complainant’s lines reflected transfers totalling Ksh.330,430/- while the second reflected transfers amounting to Ksh.167,521/-, giving a combined total amount of Ksh.509,951/-, which corresponded with the amount stated in the charge sheet.
36. PW5 further testified that investigations revealed that the complainant and the Appellant had been living together as husband and wife. He also stated that the complainant alleged that the Appellant had left with certain personal items, including a mobile phone, a sweater and a handbag.
37. He told the court that he recorded statements from witnesses, caused the Appellant to be arrested in Kisii and taken to Ahero Police Station, where he was subsequently charged.
38. The witness further testified that on 16th February, 2021 he took the M-Pesa printouts to Safaricom for certification.
39. PW5 stated that the M-Pesa statements included transaction charges and produced the complainant’s six-page statement as Exhibit 1 and the certified M-Pesa printouts as Exhibits 2 and 3. He identified the Appellant in court as the person he had charged.
40. During cross-examination, PW5 conceded that the complainant and the Appellant had been in a relationship and that the complainant regarded the Appellant as her husband. He further acknowledged that the complainant had informed him that some of the money had been sent to enable the Appellant purchase a motor vehicle for her, assist her in securing employment and cater for his own personal needs, including transport expenses.
41. PW5 also admitted that apart from the M-Pesa printouts, he had no independent evidence proving receipt of Ksh.700,000/- by the Appellant. He further stated that he had noted the existence of a domestic relationship between the parties and regarded the dispute as involving family matters. He added that the statements of the two civilian witnesses had been recorded when he was not present at the station.
42. In re-examination, PW5 clarified that the amount reflected in the M-Pesa statements from the complainant’s two phone numbers totalled Ksh.509,951/-.
D. THE DEFENCE CASE.
43. In his unsworn statement, the Appellant (DW1) told the trial court that he worked as a mason. He denied the charge facing him and maintained that the allegations made against him were untrue.
44. The Appellant testified that he had known the complainant since the year 2017 and that their relationship had developed into a romantic one, culminating in their living together as husband and wife. According to him, they shared their lives and jointly handled various personal and financial matters.
45. The Appellant stated that the complainant used to send him money for his use and that he would at times refund some of the amounts. He maintained that the financial transactions between them arose from their relationship and mutual dealings rather than from any fraudulent scheme on his part.
46. He further stated that while he was in Kakamega, he received information that the complainant was involved with another man. Upon returning home on one occasion, he allegedly found her absent.
47. The Appellant told the trial court that the complainant had terminated a four-month pregnancy and that, following those events, their relationship came to an end and they parted ways.
48. He further testified that after the breakdown of their relationship, the complainant obtained M-Pesa statements from Safaricom and accused him of failing to invest money in a business on her behalf as she had allegedly expected.
49. The Appellant stated that he was subsequently arrested and charged. He maintained that the charge was unfounded and denied any criminal wrongdoing.
E. THE TRIAL COURT’S FINDINGS.
50. In his considered judgement, the learned trial Magistrate identified the issues for determination as whether the money obtained by the Appellant from the complainant was procured by false pretence and whether the said transactions were in the nature of family or domestic arrangements.
51. The learned trial Magistrate then went on to consider the evidence adduced by the prosecution and the defence in determining whether the ingredients of the offence had been established.
52. The court relied primarily on the testimony of the complainant (PW1), who stated that she had developed a relationship with the Appellant, who later cohabited with her as husband and wife, and that he induced her to send him money on the promise of assisting her to start a business.
53. The court considered the complainant’s assertions that she parted with cash and M-Pesa transfers amounting to Ksh.509,951/-, which she supported by M-Pesa statements which she produced in evidence, and her testimony that despite repeated demands, the Appellant failed to refund the money or fulfil the alleged promise to establish a business for her.
54. The learned trial Magistrate also considered the evidence of PW2 and PW3, who confirmed having on some occasions seen the complainant give money to the Appellant, albeit without knowledge of the exact amounts involved. The testimony of PW4, the investigating officer, was also considered, particularly his confirmation of multiple M-Pesa transactions from the complainant to the Appellant, and the absence of evidence of any reciprocal financial transfers.
55. The investigating officer further observed, the trial court noted, that the matter had elements of a domestic dispute, although investigations nonetheless supported the charge as framed.
56. The trial court also considered the Appellant’s defence whereby he denied the offence and asserted that the money exchanged between him and the complainant arose within a romantic and purported marital relationship characterized by mutual financial support.
57. Upon evaluating the totality of the evidence, the trial court found that the Appellant had consistently received substantial sums of money from the complainant, largely through M-Pesa transactions, without any evidence of repayment or reciprocal financial contribution.
58. The court rejected the Appellant’s contention that the transactions were purely familial or domestic in nature, and concluded that the Appellant had taken advantage of the complainant by falsely representing that he would establish a business for her benefit.
59. The learned trial Magistrate therefore held that the prosecution had proved the charge of obtaining by false pretence beyond reasonable doubt and convicted the Appellant accordingly.
60. On sentence, the learned trial Magistrate considered the nature and gravity of the offence as well as the Probation Officer’s report placed before the court. The court noted that although the matter had been referred for probation and possible reconciliation, the process did not materialise successfully and that the Appellant had expressed willingness to compensate the complainant, albeit without indicating any clear timeline or concrete arrangement for restitution.
61. The learned trial Magistrate further observed that the Appellant had, over time, received money from the complainant in several instalments, which the complainant had sourced from her savings and employment as a bar attendant, and in part from her employer, with the expectation that the Appellant would use it to establish a business for her benefit. The court found that the Appellant had failed to refund any of the money despite the lapse of time and the pendency of the proceedings since the year 2018.
62. The trial court expressed the view that the Appellant had taken advantage of the complainant’s trust and goodwill, and characterised his conduct as exploitative. It further held that he had not demonstrated remorse and was therefore not a suitable candidate for non-custodial sentencing options, noting that the Probation Officer’s recommendation for a further opportunity to repay the complainant was not justified in the circumstances.
63. Accordingly, the learned trial Magistrate sentenced the Appellant to serve two (2) years’ imprisonment, while stating that the custodial sentence was intended to allow for reformation of the Appellant from his offending conduct.
F. THE APPELLANT’S SUBMISSIONS.
64. In his submissions, the Appellant contends that the conviction for obtaining by false pretence under Section 313 of the Penal Code was erroneous as the prosecution failed to prove its case beyond reasonable doubt, and that the dispute between the parties arose from a domestic relationship that later turned sour rather than any criminal intent to defraud.
65. He submits that the complainant voluntarily sent him a total of Ksh.509,951/- over a period of time while they cohabited as husband and wife, and that the money was given for mutual upkeep rather than for the alleged purpose of opening a business or purchasing a car.
66. The Appellant argues that the manner in which the money was sent in small and intermittent amounts is inconsistent with an investment or business arrangement, and that there was no corroborative evidence to support the complainant’s claim that the funds were intended for a car or business venture.
67. The Appellant further maintains that the prosecution failed to establish the essential ingredients of the offence of obtaining by false pretence, namely: (a) that there was a false representation of a past or present fact knowingly made by the accused; (b) that there was an intention to defraud; and (c) that the complainant parted with money or property as a direct result of the false representation. He argues that none of these elements were proved to the required standard, and that the evidence instead demonstrates a personal relationship breakdown rather than criminal conduct.
68. He also challenges the credibility of the prosecution evidence, noting that the complainant’s witnesses (PW2 and PW3) merely confirmed that money was given but were unaware of the amounts or purpose, and therefore their testimony could not substantiate the prosecution’s allegations.
69. In support of his position, the Appellant relies on the authority of Republic v Nanteza Agati, Criminal Appeal No. 33 of 2023 (2024) UGHC CRD 10 (15 February 2024), which he cites in support of the legal principles governing the offence and the burden of proof in criminal cases.
70. Finally, the Appellant urges the court, as a first appellate court, to re-evaluate the evidence afresh, consider both matters of law and fact, and ultimately find that the prosecution failed to discharge its burden, thereby quashing the conviction and setting aside the sentence of two years’ imprisonment.
G. THE RESPONDENT’S SUBMISSIONS.
71. In its submissions in opposition to the appeal, the State asserts that the appeal lacks merit and ought to be dismissed in its entirety, urging the court to uphold both the conviction and sentence imposed by the trial court for the offence of obtaining by false pretence contrary to Section 313 of the Penal Code.
72. The State outlines the background to the case, submitting that the Appellant was charged with obtaining a total of Ksh.509,951/- and additional items from the complainant, Fridah Kerubo Machuru, by falsely representing that he would open a business for her.
73. The Respondent maintains that the complainant, who worked as a supervisor at Jesmic Hotel, developed a relationship with the Appellant and began cohabiting with him as husband and wife, during which time she sent him money both in cash and via M-Pesa over a period between May and November, 2018.
74. The State further submits that the complainant also gave the Appellant cash, and that she funded these transfers from her salary, savings, chama contributions and assistance from relatives, but the promised business was never established, no car was purchased and no job was secured.
75. The Respondent relies on the evidence of PW1, PW2, PW3, PW4 and PW5, noting that PW1 testified to the Appellant’s promise to open a business and his repeated assurances of refunding the money, while PW2 and PW3 corroborated that they witnessed money being given and heard discussions relating to business and a motor vehicle. PW4 testified on arrest, while PW5, the investigating officer, confirmed recovery and certification of M-Pesa records showing transfers totalling Ksh.509,951/-.
76. The State further relies on the Appellant’s defence, noting that he admitted receiving money but claimed it was for family upkeep in a marital relationship and alleged that the complainant had another man and had undergone an abortion, claims which the State argues were unsubstantiated and irrelevant to the charge.
77. In support of its opposition to the appeal, the State cites the authority of Dima Denge Dima & Others v Republic [2013] KECA 480 (KLR) on the duty of a first appellate court to re-evaluate evidence afresh while being slow to interfere with findings of fact unless certain conditions are met.
78. On the substantive law, the State relies heavily on Ogembo v Republic [2025] KEHC 15132 (KLR), which in turn adopts the reasoning in Gerald Ndoho Munjuga v Republic [2016] KEHC 6508 (KLR) and the High Court of Botswana decision in Lesholo & Another v The State, as well as the Nigerian Supreme Court decision in Dr. Edwin U. Onwudiwe v Federal Republic of Nigeria, for the proposition that obtaining by false pretence requires proof of a false representation of past or present fact, knowledge of its falsity, intent to defraud, inducement and actual obtaining of property.
79. The State submits that the prosecution proved all essential ingredients of the offence beyond reasonable doubt, contending that the Appellant made false representations about opening a business, knew those representations were false and systematically obtained money from the complainant over an extended period without fulfilling any of the alleged promises.
80. It further relies on the trial court’s findings that the Appellant exploited the complainant’s trust, failed to provide any accountability for the funds received, and never reciprocated financially, thereby demonstrating intent to defraud.
81. The State also argues that the financial records (M-Pesa statements) and witness testimony clearly established causation and the transfer of money, while the defence of family upkeep was inconsistent with the documentary evidence.
82. The Respondent additionally submits that the trial Magistrate properly evaluated the evidence, giving due weight to documentary proof and appropriately rejecting the Appellant’s unsworn defence as unsubstantiated. It argues that the alleged marital relationship did not negate criminal liability and that the financial conduct demonstrated exploitation rather than a genuine domestic arrangement.
83. On sentence, the State relies on statutory discretion under Section 313 of the Penal Code (maximum five years’ imprisonment) and argues that the sentence of two years was lenient, proportionate and justified given the prolonged period of exploitation, the magnitude of loss, lack of remorse and need for deterrence.
84. Finally, the State urges the Court to dismiss the appeal, uphold the conviction and sentence, affirm the judgement of the trial court delivered on 16th August, 2021, and make any other orders it deems just.
H. ISSUES FOR DETERMINATION.
85. Having carefully considered the petition of appeal, the record of the trial court, the evidence adduced by both the prosecution and the defence, the judgement of the learned trial Magistrate and the submissions of the parties, the issues that fall for determination are as follows:
a. Whether the prosecution proved beyond reasonable doubt all the essential ingredients of the offence of obtaining by false pretence contrary to Section 313 of the Penal Code.
b. Whether the evidence on record disclosed a criminal transaction amounting to obtaining by false pretence or whether it disclosed a domestic and romantic relationship in which the parties voluntarily exchanged financial assistance and benefits.
c. Whether the learned trial Magistrate properly evaluated and analysed the evidence on record, including the Appellant’s defence, before arriving at the decision to convict.
d. Whether the sentence of two years’ imprisonment imposed upon the Appellant was lawful, proper and justified in the circumstances, and whether there exists any basis upon which this court should interfere with the exercise of the trial court’s sentencing discretion.
I. ANALYSIS AND FINDINGS.
86. The first issue for me to address is whether the prosecution proved beyond reasonable doubt the offence of obtaining by false pretence contrary to Section 313 of the Penal Code.
87. The offence that the Appellant faced was obtaining by false pretence contrary to Section 313 of the Penal Code. The offence is predicated upon the existence of a false pretence as defined under Section 312 of the Penal Code. The Section provides that:
“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, is a false pretence.”
88. The statutory definition immediately reveals a critical ingredient of the offence, namely that the alleged representation must relate to a past or present fact. A promise, intention, expectation or undertaking concerning a future event does not constitute a false pretence within the meaning of Sections 312 and 313 of the Penal Code.
89. In Mathilda Akinyi Oware v Republic [1989] eKLR, the Court of Appeal held that:
“A representation as to a future event cannot support a charge of obtaining money by false pretences.”
90. Similarly, in Stephen Ndungwa v Republic [2020] eKLR, as cited with approval in Guyo v Republic [2023] KEHC 2015 (KLR), the court reiterated the principle that:
“A statement of intention about future conduct ... is not such a statement as will amount to a false pretence in criminal law.”
91. In Guyo v Republic (supra), the High Court quashed a conviction where money had been paid to purchase goats in future. The court held that a promise relating to a future transaction did not amount to a false pretence because the representation concerned a future event rather than an existing fact.
92. The same position was adopted in Musa v Republic [2023] KEHC 2641 (KLR) where a conviction arising from money paid for land transactions was quashed because the alleged representation related to future performance rather than an existing or past fact.
93. Turning to the present appeal, the prosecution case was that the Appellant obtained money from the complainant by representing that he would open a business for her. PW1 herself testi
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1. The Appellant, Justus Mboga Oteki was charged before the lower court with the offence of obtaining by false pretence contrary to Section 313 of the Penal Code, Cap 63 Laws of Kenya. It was alleged in the particulars of the offence that on diverse dates between 2nd September, 2017 and 7th November, 2018, at Ahero Township in Nyando Subcounty within Kisumu County, the Appellant, with intent to defraud, obtained from Fridah Kerubo Machuru (the complainant) cash Ksh.509,951/-, one mobile phone make Samsung, one sweater and one handbag all valued at Ksh.524,451/- by falsely pretending that he would open a business for the complainant.
2. The Appellant denied the charge when it was read and explained to him before the trial court, thereby necessitating a full hearing.
B. THE GROUNDS OF APPEAL.
3. The prosecution case was founded on the evidence of five witnesses. while the defence comprised of the Appellant’s unsworn statement. Following the conclusion of the trial, the Appellant was convicted and subsequently sentenced to serve 2 years imprisonment.
4. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the petition of appeal (wrongly described as a memorandum of appeal) dated 26th August, 2021 in which he raised the following grounds of appeal:
1. That the learned trial Magistrate erred both in law and fact by not finding that the prosecution evidence was insufficient and/or lacked requisite and/or probative value in proving their case against the Appellant.
2. That the learned trial Magistrate erred both in law and fact by failing to make a finding that the prosecution failed to establish their case as per particulars set out in the charge sheet.
3. That the learned trial Magistrate erred both in law and fact by failing to properly evaluate and appreciate the significance of the evidence of marriage between PW1, Fridah Kerubo Machire and the Appellant.
4. That the learned trial Magistrate erred both in law and fact by failing to make a finding that the charges of obtaining money by false pretence were not proved beyond reasonable doubt as required by law considering/in view of the special circumstances of the marital status of PW1, Fridah Kerubo Machire and the Appellant.
5. That the learned trial Magistrate erred both in law and fact by making a faulty analysis and evaluation of the prosecution evidence and by disregarding the defence evidence.
6. On the strength of these grounds, the Appellant urges this court to allow the appeal, quash his conviction and acquit him and set aside the sentence of imprisonment.
7. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570; and Peter v Sunday Post [1958] EA 424.)
8. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the conviction and sentence.
C. THE PROSECUTION CASE.
9. In her testimony before the trial court, the complainant, Fridah Kerubo Machuru (PW1) testified that she was a resident of Nakuru but had previously lived in Ahero, where she operated a wines and spirits supply business while working at Jesmic Hotel. She testified that she came to know the Appellant, Justus Mbonga Oteki, as a customer who regularly purchased alcoholic drinks from her business.
10. She testified that their relationship later developed into an intimate one and that they began living together as husband and wife after the Appellant expressed a desire to marry her. According to her, the Appellant was aware that she was engaged in business and, after gaining her trust, requested her to lend him money.
11. PW1 stated that although she initially hesitated because she had not known the Appellant for long, she eventually agreed to assist him financially. She first gave him Ksh.15,000/- in cash from funds belonging to her chama. She testified that after receiving the money, the Appellant left and failed to refund it, prompting her to report the matter to the police and record a statement.
12. The complainant further testified that the Appellant informed her that he worked for KEBS in Kakamega and repeatedly sought financial assistance from her for various purposes. Believing his representations and expecting repayment, she continued sending him money both through M-Pesa transfers and in cash.
13. PW1 told the court that she initially reported the matter at Nyatieko Police Station but felt that no action was taken because the Appellant was allegedly known to police officers there. She thereafter reported the matter at Ahero Police Station, following which warrants of arrest were issued against the Appellant.
14. She testified that investigations led to the acquisition of her M-Pesa statements. She specifically recalled sending the Appellant Ksh.1,052/- on 2nd September, 2017 after he informed her that he required money to travel to Nairobi. She stated that the Appellant repeatedly assured her that he would refund the money and informed her that he had finalized arrangements with a bank and would soon repay her.
15. According to PW1, despite numerous promises to reimburse her, the Appellant failed to do so. She testified that by the year 2018 she had repeatedly demanded repayment, but the Appellant merely continued assuring her that he would refund the money.
16. PW1 stated that the M-Pesa records produced in court reflected transfers amounting to Ksh.509,951/- made to the Appellant through his mobile number 0796****34. She further testified that, in addition to the M-Pesa transfers, she gave him Ksh.190,000/- in cash. She identified two Safaricom numbers registered in her name, namely 0711****42 and 0790****16, whose M-Pesa statements were produced in evidence.
17. She testified that some of the cash payments were made when the Appellant was alone, while on other occasions she was accompanied by Linet Nyaboke (PW2) and Teresa Atieno (PW3). She identified the Appellant in court as the person to whom she had given the money and stated that there had been no disagreement between them at the time she advanced the funds.
18. During cross-examination, PW1 stated that she had known the Appellant from August, 2017 to 2018 and regarded him as her husband. She testified that although she earned about Ksh.10,000/- per month, she obtained additional funds from relatives which enabled her to send him substantial sums of money.
19. She further stated that the Appellant at times pressured her to provide money and would insist that she facilitate his travel expenses, including transport to Nairobi. She maintained that she continued giving him money because he represented that it was needed to secure a loan and establish a business. According to her, they had planned to start a business requiring about Ksh.400,000/-. She reiterated that the Appellant had initially been her customer before proposing that she become his wife and later abandoning her.
20. The prosecution called Linet Nyaboke as PW2. The witness told the trial court that she was a resident of Ahero and a businesswoman operating a canteen within the police lines. She stated that she knew the complainant, Fridah Kerubo, as a friend and was aware that she worked at a wines and spirits shop in Ahero Township.
21. PW2 told the court that she also knew the Appellant, Justus Mboga Oteki, who was a friend of the complainant. According to her, she had known him for approximately one year and had never had any disagreement with him.
22. PW2 testified that on one occasion while at the complainant’s place of work, she witnessed the complainant hand over money to the Appellant. Although she observed the transaction, she was unable to state the amount of money that was given. She further stated that at the time, the complainant and the Appellant were engaged in a discussion concerning a motor vehicle.
23. The witness stated that she later recorded a statement with the police regarding the matter. PW2 further testified that the complainant subsequently informed her that the Appellant had conned her of money.
24. PW2 identified the Appellant in court as the person she had seen receiving money from the complainant.
25. In cross-examination, PW2 stated that on one occasion she had asked the complainant why she was seated at the shop.
26. Teresa Atieno testified before the trial court as PW3 and stated that she was a resident of Nyakongo and a businesswoman engaged in M-Pesa services and the sale of mandazi. She further testified that she had previously operated a wines and spirits business at Baraka Shop.
27. She told the trial court that she knew the complainant, Fridah Kerubo, who was also involved in the sale of alcoholic drinks at Jesmic. According to PW3, she would occasionally visit the complainant’s place of work to collect spirits and, during such visits, would frequently find the Appellant present.
28. PW3 testified that although she knew the Appellant by appearance, she had never spoken to him and had no disagreement with him. She stated that on two occasions she observed the complainant holding money in hundred-shilling denominations and handing it over to the Appellant.
29. She further testified that upon witnessing one of the transactions, she inquired from the complainant why she was giving money to the Appellant. According to PW3, the complainant informed her that the Appellant was her friend and that the money was intended to assist him in obtaining a loan.
30. PW3 stated that she later found the complainant crying, although the complainant did not disclose to her the reason for her distress. She subsequently recorded a statement with the police regarding the matter.
31. PW3 identified the Appellant in court as the person she had seen receiving money from the complainant.
32. Corporal Kimaru Koskei testified as PW5 and stated that he was attached to Ahero Police Station. He testified that on 8th November, 2018 at about 2.00 p.m., the complainant reported a case alleging that the Appellant had unlawfully obtained approximately Ksh.700,000/- from her through M-Pesa transactions.
33. The officer stated that the complainant informed him that she had been sending money to the Appellant, Justus Oteki, on diverse dates between 2nd September, 2017 and 7th November, 2018, with some transfers being made daily and others weekly.
34. PW5 testified that the complainant produced Safaricom M-Pesa printouts, which he examined. According to him, the records confirmed transfers amounting to Ksh.509,951/- from the complainant to the Appellant. He stated that the transfers originated from the complainant’s mobile numbers 0711641342 and 0790198116 and were sent to numbers associated with the Appellant.
35. The witness testified that one of the complainant’s lines reflected transfers totalling Ksh.330,430/- while the second reflected transfers amounting to Ksh.167,521/-, giving a combined total amount of Ksh.509,951/-, which corresponded with the amount stated in the charge sheet.
36. PW5 further testified that investigations revealed that the complainant and the Appellant had been living together as husband and wife. He also stated that the complainant alleged that the Appellant had left with certain personal items, including a mobile phone, a sweater and a handbag.
37. He told the court that he recorded statements from witnesses, caused the Appellant to be arrested in Kisii and taken to Ahero Police Station, where he was subsequently charged.
38. The witness further testified that on 16th February, 2021 he took the M-Pesa printouts to Safaricom for certification.
39. PW5 stated that the M-Pesa statements included transaction charges and produced the complainant’s six-page statement as Exhibit 1 and the certified M-Pesa printouts as Exhibits 2 and 3. He identified the Appellant in court as the person he had charged.
40. During cross-examination, PW5 conceded that the complainant and the Appellant had been in a relationship and that the complainant regarded the Appellant as her husband. He further acknowledged that the complainant had informed him that some of the money had been sent to enable the Appellant purchase a motor vehicle for her, assist her in securing employment and cater for his own personal needs, including transport expenses.
41. PW5 also admitted that apart from the M-Pesa printouts, he had no independent evidence proving receipt of Ksh.700,000/- by the Appellant. He further stated that he had noted the existence of a domestic relationship between the parties and regarded the dispute as involving family matters. He added that the statements of the two civilian witnesses had been recorded when he was not present at the station.
42. In re-examination, PW5 clarified that the amount reflected in the M-Pesa statements from the complainant’s two phone numbers totalled Ksh.509,951/-.
D. THE DEFENCE CASE.
43. In his unsworn statement, the Appellant (DW1) told the trial court that he worked as a mason. He denied the charge facing him and maintained that the allegations made against him were untrue.
44. The Appellant testified that he had known the complainant since the year 2017 and that their relationship had developed into a romantic one, culminating in their living together as husband and wife. According to him, they shared their lives and jointly handled various personal and financial matters.
45. The Appellant stated that the complainant used to send him money for his use and that he would at times refund some of the amounts. He maintained that the financial transactions between them arose from their relationship and mutual dealings rather than from any fraudulent scheme on his part.
46. He further stated that while he was in Kakamega, he received information that the complainant was involved with another man. Upon returning home on one occasion, he allegedly found her absent.
47. The Appellant told the trial court that the complainant had terminated a four-month pregnancy and that, following those events, their relationship came to an end and they parted ways.
48. He further testified that after the breakdown of their relationship, the complainant obtained M-Pesa statements from Safaricom and accused him of failing to invest money in a business on her behalf as she had allegedly expected.
49. The Appellant stated that he was subsequently arrested and charged. He maintained that the charge was unfounded and denied any criminal wrongdoing.
E. THE TRIAL COURT’S FINDINGS.
50. In his considered judgement, the learned trial Magistrate identified the issues for determination as whether the money obtained by the Appellant from the complainant was procured by false pretence and whether the said transactions were in the nature of family or domestic arrangements.
51. The learned trial Magistrate then went on to consider the evidence adduced by the prosecution and the defence in determining whether the ingredients of the offence had been established.
52. The court relied primarily on the testimony of the complainant (PW1), who stated that she had developed a relationship with the Appellant, who later cohabited with her as husband and wife, and that he induced her to send him money on the promise of assisting her to start a business.
53. The court considered the complainant’s assertions that she parted with cash and M-Pesa transfers amounting to Ksh.509,951/-, which she supported by M-Pesa statements which she produced in evidence, and her testimony that despite repeated demands, the Appellant failed to refund the money or fulfil the alleged promise to establish a business for her.
54. The learned trial Magistrate also considered the evidence of PW2 and PW3, who confirmed having on some occasions seen the complainant give money to the Appellant, albeit without knowledge of the exact amounts involved. The testimony of PW4, the investigating officer, was also considered, particularly his confirmation of multiple M-Pesa transactions from the complainant to the Appellant, and the absence of evidence of any reciprocal financial transfers.
55. The investigating officer further observed, the trial court noted, that the matter had elements of a domestic dispute, although investigations nonetheless supported the charge as framed.
56. The trial court also considered the Appellant’s defence whereby he denied the offence and asserted that the money exchanged between him and the complainant arose within a romantic and purported marital relationship characterized by mutual financial support.
57. Upon evaluating the totality of the evidence, the trial court found that the Appellant had consistently received substantial sums of money from the complainant, largely through M-Pesa transactions, without any evidence of repayment or reciprocal financial contribution.
58. The court rejected the Appellant’s contention that the transactions were purely familial or domestic in nature, and concluded that the Appellant had taken advantage of the complainant by falsely representing that he would establish a business for her benefit.
59. The learned trial Magistrate therefore held that the prosecution had proved the charge of obtaining by false pretence beyond reasonable doubt and convicted the Appellant accordingly.
60. On sentence, the learned trial Magistrate considered the nature and gravity of the offence as well as the Probation Officer’s report placed before the court. The court noted that although the matter had been referred for probation and possible reconciliation, the process did not materialise successfully and that the Appellant had expressed willingness to compensate the complainant, albeit without indicating any clear timeline or concrete arrangement for restitution.
61. The learned trial Magistrate further observed that the Appellant had, over time, received money from the complainant in several instalments, which the complainant had sourced from her savings and employment as a bar attendant, and in part from her employer, with the expectation that the Appellant would use it to establish a business for her benefit. The court found that the Appellant had failed to refund any of the money despite the lapse of time and the pendency of the proceedings since the year 2018.
62. The trial court expressed the view that the Appellant had taken advantage of the complainant’s trust and goodwill, and characterised his conduct as exploitative. It further held that he had not demonstrated remorse and was therefore not a suitable candidate for non-custodial sentencing options, noting that the Probation Officer’s recommendation for a further opportunity to repay the complainant was not justified in the circumstances.
63. Accordingly, the learned trial Magistrate sentenced the Appellant to serve two (2) years’ imprisonment, while stating that the custodial sentence was intended to allow for reformation of the Appellant from his offending conduct.
F. THE APPELLANT’S SUBMISSIONS.
64. In his submissions, the Appellant contends that the conviction for obtaining by false pretence under Section 313 of the Penal Code was erroneous as the prosecution failed to prove its case beyond reasonable doubt, and that the dispute between the parties arose from a domestic relationship that later turned sour rather than any criminal intent to defraud.
65. He submits that the complainant voluntarily sent him a total of Ksh.509,951/- over a period of time while they cohabited as husband and wife, and that the money was given for mutual upkeep rather than for the alleged purpose of opening a business or purchasing a car.
66. The Appellant argues that the manner in which the money was sent in small and intermittent amounts is inconsistent with an investment or business arrangement, and that there was no corroborative evidence to support the complainant’s claim that the funds were intended for a car or business venture.
67. The Appellant further maintains that the prosecution failed to establish the essential ingredients of the offence of obtaining by false pretence, namely: (a) that there was a false representation of a past or present fact knowingly made by the accused; (b) that there was an intention to defraud; and (c) that the complainant parted with money or property as a direct result of the false representation. He argues that none of these elements were proved to the required standard, and that the evidence instead demonstrates a personal relationship breakdown rather than criminal conduct.
68. He also challenges the credibility of the prosecution evidence, noting that the complainant’s witnesses (PW2 and PW3) merely confirmed that money was given but were unaware of the amounts or purpose, and therefore their testimony could not substantiate the prosecution’s allegations.
69. In support of his position, the Appellant relies on the authority of Republic v Nanteza Agati, Criminal Appeal No. 33 of 2023 (2024) UGHC CRD 10 (15 February 2024), which he cites in support of the legal principles governing the offence and the burden of proof in criminal cases.
70. Finally, the Appellant urges the court, as a first appellate court, to re-evaluate the evidence afresh, consider both matters of law and fact, and ultimately find that the prosecution failed to discharge its burden, thereby quashing the conviction and setting aside the sentence of two years’ imprisonment.
G. THE RESPONDENT’S SUBMISSIONS.
71. In its submissions in opposition to the appeal, the State asserts that the appeal lacks merit and ought to be dismissed in its entirety, urging the court to uphold both the conviction and sentence imposed by the trial court for the offence of obtaining by false pretence contrary to Section 313 of the Penal Code.
72. The State outlines the background to the case, submitting that the Appellant was charged with obtaining a total of Ksh.509,951/- and additional items from the complainant, Fridah Kerubo Machuru, by falsely representing that he would open a business for her.
73. The Respondent maintains that the complainant, who worked as a supervisor at Jesmic Hotel, developed a relationship with the Appellant and began cohabiting with him as husband and wife, during which time she sent him money both in cash and via M-Pesa over a period between May and November, 2018.
74. The State further submits that the complainant also gave the Appellant cash, and that she funded these transfers from her salary, savings, chama contributions and assistance from relatives, but the promised business was never established, no car was purchased and no job was secured.
75. The Respondent relies on the evidence of PW1, PW2, PW3, PW4 and PW5, noting that PW1 testified to the Appellant’s promise to open a business and his repeated assurances of refunding the money, while PW2 and PW3 corroborated that they witnessed money being given and heard discussions relating to business and a motor vehicle. PW4 testified on arrest, while PW5, the investigating officer, confirmed recovery and certification of M-Pesa records showing transfers totalling Ksh.509,951/-.
76. The State further relies on the Appellant’s defence, noting that he admitted receiving money but claimed it was for family upkeep in a marital relationship and alleged that the complainant had another man and had undergone an abortion, claims which the State argues were unsubstantiated and irrelevant to the charge.
77. In support of its opposition to the appeal, the State cites the authority of Dima Denge Dima & Others v Republic [2013] KECA 480 (KLR) on the duty of a first appellate court to re-evaluate evidence afresh while being slow to interfere with findings of fact unless certain conditions are met.
78. On the substantive law, the State relies heavily on Ogembo v Republic [2025] KEHC 15132 (KLR), which in turn adopts the reasoning in Gerald Ndoho Munjuga v Republic [2016] KEHC 6508 (KLR) and the High Court of Botswana decision in Lesholo & Another v The State, as well as the Nigerian Supreme Court decision in Dr. Edwin U. Onwudiwe v Federal Republic of Nigeria, for the proposition that obtaining by false pretence requires proof of a false representation of past or present fact, knowledge of its falsity, intent to defraud, inducement and actual obtaining of property.
79. The State submits that the prosecution proved all essential ingredients of the offence beyond reasonable doubt, contending that the Appellant made false representations about opening a business, knew those representations were false and systematically obtained money from the complainant over an extended period without fulfilling any of the alleged promises.
80. It further relies on the trial court’s findings that the Appellant exploited the complainant’s trust, failed to provide any accountability for the funds received, and never reciprocated financially, thereby demonstrating intent to defraud.
81. The State also argues that the financial records (M-Pesa statements) and witness testimony clearly established causation and the transfer of money, while the defence of family upkeep was inconsistent with the documentary evidence.
82. The Respondent additionally submits that the trial Magistrate properly evaluated the evidence, giving due weight to documentary proof and appropriately rejecting the Appellant’s unsworn defence as unsubstantiated. It argues that the alleged marital relationship did not negate criminal liability and that the financial conduct demonstrated exploitation rather than a genuine domestic arrangement.
83. On sentence, the State relies on statutory discretion under Section 313 of the Penal Code (maximum five years’ imprisonment) and argues that the sentence of two years was lenient, proportionate and justified given the prolonged period of exploitation, the magnitude of loss, lack of remorse and need for deterrence.
84. Finally, the State urges the Court to dismiss the appeal, uphold the conviction and sentence, affirm the judgement of the trial court delivered on 16th August, 2021, and make any other orders it deems just.
H. ISSUES FOR DETERMINATION.
85. Having carefully considered the petition of appeal, the record of the trial court, the evidence adduced by both the prosecution and the defence, the judgement of the learned trial Magistrate and the submissions of the parties, the issues that fall for determination are as follows:
a. Whether the prosecution proved beyond reasonable doubt all the essential ingredients of the offence of obtaining by false pretence contrary to Section 313 of the Penal Code.
b. Whether the evidence on record disclosed a criminal transaction amounting to obtaining by false pretence or whether it disclosed a domestic and romantic relationship in which the parties voluntarily exchanged financial assistance and benefits.
c. Whether the learned trial Magistrate properly evaluated and analysed the evidence on record, including the Appellant’s defence, before arriving at the decision to convict.
d. Whether the sentence of two years’ imprisonment imposed upon the Appellant was lawful, proper and justified in the circumstances, and whether there exists any basis upon which this court should interfere with the exercise of the trial court’s sentencing discretion.
I. ANALYSIS AND FINDINGS.
86. The first issue for me to address is whether the prosecution proved beyond reasonable doubt the offence of obtaining by false pretence contrary to Section 313 of the Penal Code.
87. The offence that the Appellant faced was obtaining by false pretence contrary to Section 313 of the Penal Code. The offence is predicated upon the existence of a false pretence as defined under Section 312 of the Penal Code. The Section provides that:
“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, is a false pretence.”
88. The statutory definition immediately reveals a critical ingredient of the offence, namely that the alleged representation must relate to a past or present fact. A promise, intention, expectation or undertaking concerning a future event does not constitute a false pretence within the meaning of Sections 312 and 313 of the Penal Code.
89. In Mathilda Akinyi Oware v Republic [1989] eKLR, the Court of Appeal held that:
“A representation as to a future event cannot support a charge of obtaining money by false pretences.”
90. Similarly, in Stephen Ndungwa v Republic [2020] eKLR, as cited with approval in Guyo v Republic [2023] KEHC 2015 (KLR), the court reiterated the principle that:
“A statement of intention about future conduct ... is not such a statement as will amount to a false pretence in criminal law.”
91. In Guyo v Republic (supra), the High Court quashed a conviction where money had been paid to purchase goats in future. The court held that a promise relating to a future transaction did not amount to a false pretence because the representation concerned a future event rather than an existing fact.
92. The same position was adopted in Musa v Republic [2023] KEHC 2641 (KLR) where a conviction arising from money paid for land transactions was quashed because the alleged representation related to future performance rather than an existing or past fact.
93. Turning to the present appeal, the prosecution case was that the Appellant obtained money from the complainant by representing that he would open a business for her. PW1 herself testi
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