Samat Bhima Keswala V Republic eKLR
|Criminal Appeal 30 of 1992||12 Nov 1992|
Daniel Kennedy Sultani Aganyanya
High Court at Eldoret
Samat Bhima Keswala v Republic
Samat Bhima Keswala v Republic eKLR
Samat Bhima Keswala v Republic
High Court, at Eldoret November 12, 1992
Criminal Appeal No 30 of 1992
(From Original Conviction and Sentence in Criminal Case No 5339 of 1990 of the Principal Magistrate’s Court at Eldoret - J Ondieki (Mrs), R M)
Criminal Law – obtaining by false pretences contrary to section 316(a) of the Penal Code – ingredients of the offence which have to be proved – consideration of section 316(a) of the Penal Code.
Criminal Law – obtaining by false pretences – definition of the term obtaining by credit – where the repayment of the liability is by a third party – whether the ingredient of the offence is established.
Criminal Law – obtaining by false pretences – where a person incurs a debt when his confidence to repay rested in a third party – whether such a person is guilty of obtaining by false pretences.
Criminal Law – obtaining by false pretences – procedure as to how the offence should be charged – consideration by Court.
The appellant was charged with the offence of obtaining credit by false pretences contrary to section 316(a) of the Penal Code. It was alleged that he incurred a debt or liability from a trader by obtaining motor vehicle tyres valued at Shs 40,200/- by pretending that he was buying them and that he would pay him cash on the following day, facts which he knew or believed to be false.
He issued postdated cheques which bounced, and later made a cash payment to partly settle the total sum owing. The appellant argued on his defence the items were provided to New Mumias Supermarket Ltd. He was convicted and sentenced to 12 months imprisonment, hence he appealed.
1. The offence of obtaining by false pretences has seven possible ingredients which have to be proved beyond doubt before an accused person is convicted. They are (a) a false representation (b) which is made (c) by words or writing or conduct (d) of a matter of fact (e) either past or present (f) with knowledge of the falsehood or without belief that the presentation is true, and (g) the representation causing the giver to part with the thing obtained.
2. The word obtaining credit refers to the obtaining of credit in connection with a debt or liability which will be liquidated by a payment or repayment in money only and this must be by the accused person himself. Where therefore the repayment is by a third party, then that ingredient does not lie for a decision.
3. If the credit is obtained by a false pretence then it must be a pretence about an existing fact which is false. Therefore a person personally incurring a debt by false pretences could not have arisen because his confidence rested in the third party.
4. In this class of case, evidence need to be adduced to show that an inquiry was made to establish that the accused had known that he had no sufficient funds to meet the cheque or that he had no intention to pay.
5. The offence under section 316 (a) is in two limbs; firstly incurring a debt or obtaining credit by false pretences and secondly obtaining such credit by means of any other fraud. It is desirable to charge an accused person with two counts, namely: of obtaining credit by false pretences and of obtaining credit by means of any other fraud; otherwise the accused person may be confused and not know exactly with what offence he is charged.
1. Bennalt Oinamo v The Republic [1976-80]1 KLR 196
2. Amugo v Republic High Court Criminal Appeal No 32 of 1980
3. R v Jones  1 QB 119
4. Broderip v Solomon  Ch 323
5. R v Homes (1958) CR LR 394
Penal Code (cap 63) section 316(a)
Onyinkwa for the Appellant
Kabitu for the Respondent