REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL APPEAL NO. E038 OF 2021

PETER THURANIRA ......................................................................... APPELLANT

 VERSUS

REPUBLIC......................................................................................... RESPONDENT

(Being an appeal from the original conviction by Hon. J.Irura PM in Nkubu Cr. No.86 of 2018 on 9/2/2021)

JUDGMENT

1. Peter Thuranira  (“the appellant”) was charged with obtaining money by false pretences contrary to section 313 of the Penal Code. The particulars were that, on 28/12/2017 at Omari Nyambati Advocates and Commissioner for oaths office at Meru town within Meru County, he jointly with intent to defraud obtained from Gatobu Hesborn Francis the sum of Ksh. 1,000,000(Kenya Shillings One Million) by falsely pretending he was in a position to sell him a parcel of land No. NKUENE/NGONYI/933 measuring 0.205 Ha, a fact he knew was not true.

2. He faced a second count of making a false document contrary to Section 347(a) of the Penal Code. The particulars were that on the same day and at unknown place, jointly with others not before the court, with intent to deceive or defraud and without lawful authority or excuse, he made a certain document, namely National Identity Card No. xxxxxxx in the names of Mbabu Kiambati, purporting it to be a genuine and valid National Identity Card issued by National Registration Bureau.

3. He faced a third count of uttering a false document contrary to Section 353 of the Penal Code. The particulars were that on the same day and place, he knowingly and fraudulently uttered a forged national Identity Card No. xxxxxxx with names Mbabu Kiambati purporting it to be his.

4. He faced a sixth count of personation contrary to Section 382(1) of the Penal Code. The particulars were that on the same day and place, with intent to defraud, he falsely represented himself as Mbabu Kiambati.

5. After he denied the charges, a trial ensued and the prosecution paraded 8 witnesses in support of its case.

6. PW1, Gatobu Hesborn Francis, the complainant, was on the material day being sold parcel No. Nkuene/Ngonyi/933 measuring approximately 0.2045 Ha at Kigene by the purported owners namely Mbabu Kiambati and Tabitha Kathambi Mbabu. On 25/12/2017 at around 4.30 pm, he met Gikunda at Nkubu Total Petrol Station, and they proceeded towards Kigene Shopping centre. They took a left turn and about 1 Km, they arrived at where the land was located. The land was bordering a road on the upper side and a stream on the lower side. Gikunda had been shown the land by one Muchomba.  The land had a mango tree and a water tank. After viewing the land, he was satisfied and he told Gikunda he would purchase it. He was given the title deed which indicated that the land was jointly registered in the name of Mbabu Kiambati Id No.xxxxxxx and Tabitha Kathambi Kiambati Id No. xxxxxx. He visited the lands office on 28/12/2017 and he found that the two were the registered owners of the land. It had no encumbrance. After conducting the search and being satisfied, he told Gikunda that they could meet with the owners in Meru town so they could talk and agree. They agreed that they could meet with the said people on 27/12/2017. They met with Gikunda who was in the company of two others at Nkubu and they boarded his vehicle and proceeded to Meru town. They were unable to get to Meru due to heavy traffic. On reaching at Woodlands hospital, they agreed to meet the following day. The following day, he met Gikunda and two others at Kenol petrol station at Nkubu. They proceeded to the office of Kaburu & Co. Advocates where they met Gikunda and his colleague. In the said office, 2 people were introduced to them as the owners of the land. He confirmed that the 2 people before court were the ones who had introduced themselves as Mbabu Kiambati and Tabitha Kathambi Mbabu. After a short discussion they agreed to purchase the land at a consideration of Ksh.1,500,000. They agreed that he would pay Ksh.1,000,000 as the initial deposit and the balance was to be paid upon transfer of the land. He told them he would pay through the bank, but the alleged vendor insisted that the money be paid in cash as his bank account had a debt. They got into an advocate’s office who introduced himself as Omari Nyambati. They told him that they had agreed in respect of the payment and he advised that if Kiambati’s account had a problem, they could pay in cash at the said office. They gave out their Identity Cards and he prepared the sale agreement. After finishing, they paid Ksh. 5,000 for the services. He then went to Equity, Cooperative and KCB Banks and withdrew the money and brought it to the office. He paid the said money at the advocate’s office. His father namely Francis Rimberia was also present at the time. They signed the agreement together with Mr. Mbabu Kiambati and Tabitha Kathambi and his father signed as his witness.

They then agreed the vender would bring the original title deed and KRA Pin to the said office so they could effect the transfer. They agreed that they would meet with the venders during the first week of January 2018 so they could attend LCB  for consent to transfer. During that first week of January, Mbabu Kiambati called and requested him to assist him with Ksh. 200,000, as he had a sick child who required a kidney transplant at Waba Hospital in Isiolo. He told him that he did not have the money. He reminded him that they had agreed he would pay the balance upon transfer. As per the agreement, he was to bring on or before the end of the month of March 2018. When he asked if he had left the documents at the advocate’s office, he stopped communicating with him and blacklisted both him and his father. On the day they had agreed to attend the land control board, the said Kiambati did not avail himself and his mobile phone was not going through. After he started feeling like the said people had defrauded him, he reported the matter to Nkubu police station. On 13/1/2018, he recorded his statement at the DCI office at Nkubu. He involved his wife who is a police officer and they started tracking Mbaabu. Mbaabu was arrested at Thika Bus station. When he was arrested, they learnt he was not Mbabu Kiambati, but was Peter Thuranira Mwithimbu. It took them some time to track the 2^nd accused who had introduced herself as Tabitha Kathambi, as she had not given them any detail. After a month, they were able to track Tabitha Kathambi at Githurai and learnt that her real name was Irene Nkatha.

7. During cross examination, he stated that he met with the appellant at the advocate’s office, on the day of the sale agreement. He had bought another parcel before. When he asked that the appellant takes him to the parcel, he was informed that the appellant had travelled. He was taken to the land by Gikunda. The appellant produced an Identity Card at the advocate’s office which had the name of Mbabu Kiambati. The advocate who drew the agreement is not a witness in this case. He gave a sum of Ksh.1,000,000 to the appellant at the advocate’s office. When the appellant was to bring the documents, he switched off his phone and disappeared. He had 2 mobile phones which were registered in the name of Mutuma. When the appellant was arrested, he had an Identity Card belonging to one Mutuma. The appellant was using mobile number xxxxxxxxx. He led officer to arrest the appellant.

8. PW2 Raphael Muchomba Mbaya, recalled being at home on 17/12/2017, when he was called by one Mwenda, who asked him about a shamba which was at Kigene, which was on sale. He told him that the parcel of land belonged to his sister namely Kinanu and gave him her number. Kinanu told him that there was someone who had rent her Ksh.70,000 thus she was selling the land in order to repay the money. He called the owner of the land who they used to call pastor and told him to meet at Kigene. They met at Kigene and took him where the shamba was. He checked the parcel of land which he found to be in order. He went to get a broker, namely Mark Nkunja Gituma who would get a buyer. They then called pastor to avail the copy of the title deed. The pastor gave Nkunja the copy of the title deed. Nkunja went to conduct a search in respect to the land. Nkunja then called him on phone and told him that he had a buyer for the land. They met in Meru town on 28/12/2017 with pastor Thuranira, Irene Nkatha and the “pastor”, who introduced himself as pastor Thuranira’s brother. They were with Gikunda, Nkunja and Samuel Murugu and the buyer one Gatobu, who came in the company of his father. They went to the office of Nyambati Advocates. Gatobu was asked if he had seen the land and if he had conducted the search. Pastor Thuranira and Irene Thuranira gave the advocate their Identity Cards. They were paid Ksh. 1,000,000 in cash, after Peter Thuranira declined the money being deposited in his account. After Thuranira received the money, he gave it to Nkatha who put it in her handbag. They got outside and were paid Ksh. 50,000 as their commission by Thuranira, for getting a buyer. They shared the same amongst the 4 of them. The land was being sold at Ksh. 1,500,000 and the appellant and Nkatha had posed as the owners of the land. He saw Peter Thuranira for the first time at the advocate’s office. After they sold the land, he was called by Gikunda who informed him that the people who had posed as the vendors were not the real owners of the land. They proceeded to CID office to record their statements. He saw the copy of the title deed for Nkuene/Ngonyi/933.

9. During cross examination, he stated that Kinanu was selling the land to repay a debt. He was taken to the land by a brother to Peter Thuranira. The ID Card the appellant produced at the advocate’s office had the same name as the one on the copy of the title deed. The appellant said he had a child at Kenyatta National Hospital. The appellant received the money after refusing for it to be deposited in a bank account. Pastor went into hiding and could not be traced. The copy of the title deed is the one that was used to conduct the search.

10. PW3 Mark Gituma, met with PW2 on 17/12/2017 who told him that there was a parcel of land being sold at Kigene. After seeing the land, PW2 took him there and he was informed by a certain lady that the land was on sale. They met someone who introduced himself as “pastor” at Muki hotel. The said pastor told them that they were selling the land and he gave them a copy of the title deed of Nkuene/Ngonyi/933. The said pastor told them that the land belonged to his sister and her husband. They agreed that they would get him a buyer upon which he would pay them a commission of Ksh.200,000. After the meeting, he looked for Gikunda, informed him about the sale and took him to see the land. After some days, Gikunda informed him that he had a buyer who wanted to meet with the owners of the land. Since he did not have “pastor’s” number, he called PW2 and they all agreed to meet “pastor” at Meru town. On the material day, PW2, ”pastor”, the buyer namely Gatobu and his father met at an advocate’s office near the route to Meru General hospital. At 3.00 pm, PW2 called to inform him that the vendor had declined to pay the amount agreed as commission. He then proceeded to the said office where he met the vendor outside to enquire why he was not paying the agreed amount. The vendor informed him that he had a sick child and needed the money for the hospital bill. The vendor then gave them Ksh. 50,000 and promised to pay the balance after the purchase price was paid fully. The vendor was calling himself Kiambati. The said Kiambati came with a woman who posed as his wife. The woman had a scar around the fore head and he could positively identify the 2 as he saw them quite well. After a few days, Gikunda told him that the land had been sold by a person who did not own it. Gikunda had unsuccessfully looked for the vendor to go and acquire the land control board consent. Gikunda even went to the place where the vender resided but found a different person there. He told him to go and make a report at the police station. He identified the appellant and the other accused as the people who had posed as the registered owners of the land.

11. During cross examination, he stated that he had been shown the land by PW2. He confirmed that he had a licence as a broker and that it was the appellant who had received the purchase price. They were referring to the appellant with the name on the copy of the title deed. When he was paying him, the appellant asked the 2^nd accused for money. The land was not transferred because when they looked for the appellant to go and obtain the LCB Consent, he was unavailable.

12. PW4 Joseph Gikunda, a land and motor vehicle broker, was on 22/12/2017 requested by the complainant to get him half an acre of land. He had told other brokers that he had a buyer who wanted a parcel of land. Gikunda (Karimi) informed him that Mark Nkunja was selling a parcel of land at Kigene. Gikunda(Karimi) took him to the land and he informed the complainant on phone. On 25/12/2017, he took the complainant who was with his father and brother in law to the land. They liked the shamba and said they would meet the sellers on 27/12/2017. On 26/12/2017, he met Nkunja and Kanini who told him the land was being sold at Ksh.1,500,000 and that all the brokers would get a commission of Ksh.200,000. On 27/12/2017, they met Nkunja who had a search, copy of title deed and sketch of the said land. He saw the copy of the title deed to Nkuene/Ngonyi/933 which was registered in the name of Tabitha Kiambati and Mbaabu Kiambati. On 28/12/2017, they met the complainant who was in the company of his wife and father, Murugu, Muchomba and the sellers at an advocate’s office. They agreed that the purchase price would be Ksh.1,300,000 and the complainant left to withdrew the initial deposit of Ksh.1,000,000. They were left talking with the person who introduced himself as Kiambati at the advocate’s office. The complainant then returned with the money which he paid to the appellant and the co- accused who posed as Kathambi. An argument ensued on the payment of the commission and the appellant then requested his co-accused to pay them Ksh. 50,000. He identified the appellant and his co-accused as the people who sold the land on that day.  Although he had not seen them before, he stayed and talked to them at the advocate’s office. The co-accused had a scar on the fore head which she said was as a result of a road accident at Gitimbine. After 2 days, the complainant informed him that the sellers were demanding a further Ksh.200,000, but he told him not to pay them until they had attended the land board to transfer. He met with the complainant’s father who informed him that the 2 had not attended the land board. He then went to where the land was located and was shown where Kathambi resided. He talked to her through the phone and she told him that although she was selling the land, she was not the one who had been paid Ksh. 1,000,000. He proceeded to Nkubu police station to explain to the DCI what had transpired. The complainant also came and they recorded their statements.

13. During cross examination, he stated that he had been a broker for 1 year before the incident happened. He was shown the land by one Gikunda who had been sent by Mark. He met the appellant at the advocate’s office on the day he received the money, when he was signing the agreement. When he met the appellant, the appellant told him that the land belonged to him (the appellant). The appellant said he was working in an NGO in Isiolo and had another land which he was going to give to him to sell. He saw “pastor” at the advocate’s office. It was the appellant who had received the purchase price. The appellant, whose real name was Peter Thuranira boarded the same vehicle with “pastor”.

14. PW5 CI Jane Mweu attached at Igembe North sub county, recalled being with the complainant and his father on the material day. They were heading to Meru to buy a parcel of land and she accompanied them to Nyambati Advocate’s office. The sellers came to the said office and identified themselves as Mbaabu Kiambati and Tabitha Mbaabu. They gave their Identity Cards together with the search to the advocate in order to draft the sale agreement. PW1 gave the appellant Ksh.1,000,000 and the balance was agreed to be paid after transfer. On 12/1/2018, PW1 called to inform her that the seller was demanding for the balance of the purchase price. When PW1 unsuccessfully looked for the seller through his mobile phone, he made a report at Nkubu police station. On 23/1/2018 while in Thika, she saw the appellant, called AP Stephen Mbithi and they arrested him and escorted him to Thika police station for interrogation. When they searched him, they recovered 2 Identity Cards from him. One was for Peter Thuranira and the other was for Fredrick Mutuma. The photograph on the 2 identity cards was the same. The appellant had 3 mobile phones and an Equity ATM Card. The appellant disclosed that the land he had sold did not belong to him and that the identity cards which they had used were fake. The appellant also admitted that they had received Ksh.1,000,000 which they had shared. They then brought him to Nkubu police station and handed him over to IP Ngetich, the then DCIO Imenti South. She met the appellant and the co-accused the first time at the advocate’s office, mastered their faces and was able to clearly identify them as the people who had received money from PW1. She signed the inventory (MFI-7) and the appellant signed it too to confirm the items which were recovered from him were the ones which were handed over at Nkubu police station.

15. During cross examination, she confirmed that she arrested the appellant at Thika and did not require any passport to identify him, because she had not forgotten him as she had seen him. The appellant did not have any document in respect of this case. She was looking for Mbaabu Kiambati but when the appellant was arrested, he said he was Peter Thuranira. PW1 was not at Thika when the appellant was arrested. The appellant was not beaten or forced to record a statement. The mobile phones were not registered in the name of Mbaabu Kiambati and the identity card the appellant had at the time of signing the agreement was in the name of Mbaabu Kiambati. She did not go to the land because it was PW1 who was buying the land. PW1 did a search for the parcel of land he was buying.

16. PW6 PC StephEN Mbithi attached at Thika Police station, recalled being called by PW5 who informed him that while she was at Thika main stage, she met with one of the people who had obtained money from them fraudulently. He assisted her to arrest the man who told them his name was Peter Thuranira. Upon conducting a search, they recovered 2 ID Cards with different names but the photographs therein were alike. They escorted the suspect to Thika police station for further interrogation. The appellant admitted that he had received the said money and was willing to repay it. They escorted him to Nkubu police station and handed him over to the investigating officer in this case. He concluded that he had not met the appellant before.

17. During cross examination, he reiterated that they arrested the appellant at Thika. Although PW5 did not have a photograph of the appellant at the time of the arrest, she had seen him at the time of writing the agreement. They handed the ID Cards to the investigating officer at Nkubu police station. The appellant was not beaten when he was arrested.

18. PW7 Mbaabu Kiambati, testified that he jointly with his wife Tabitha Kathambi Mbaabu bought the land in question from one Ephraim Gitonga in June 2012. In January 2018, he was called by the investigating officer in this case and they went to Nkubu police station with his wife. At the station, they met the complainant who admitted that he did not know PW7. After showing the complainant his ID Card, the DCIO told PW1 that he had been conned. He had not sold the land in question to anyone and had no intentions of doing so. The people who allegedly sold the land were not known to him and he only saw PW1 at the police station.

19. During cross examination, he stated that he had never seen the appellant before. He stated that what the appellant used to sell the land was a forgery because he had never given the appellant a copy of his title deed to the land.

20. PW8 CPL Francis Mwita, previously attached at DCIO’s office, Imenti South, and the investigating officer, stated that on 12/1/2018, a case of fraud was reported at Nkubu police station by the complainant. He took the specimen signature of the appellant dated 24/1/2018 marked as E1-E3 for purposes of forwarding them to the DCI offices at the headquarters for forensic investigations. He also marked the sale agreement dated 28/12/2017 which had the questioned signatures as D1-D2. He prepared an exhibit memo where he forwarded the said specimen signatures to the document examiner together with the sale agreement. The documents were examined by CI Alex Mwongera Mathiu who concluded that the specimen signature and those in the sale agreement belonged to the same person, the appellant. He produced the copy of title deed(Exh. 1), certificate of official search(Exh.2), sale agreement dated 28/12/2017(Exh.3), Equity, KCB and Co-operative Bank statements for the complainant(Exh.4,5 &6), Inventory dated 23/12/2017(Exh.7),specimen signatures E1-E3(Exh.8), Original sale agreement D1-D2 (Exh.9) and Exhibit memo(Exh.10).

21. During cross examination, he stated that he was not the one who arrested the appellant, as he was arrested at Thika by the complainant’s wife. The copy of title deed the appellant used was fake, as the registered owner had no intention of selling the land. The appellant had been paid Ksh.1,000,000 in cash and after receiving the money, he switched off his mobile phone. The appellant represented himself as Mbaabu Kiambati whereas his real name was Peter Thuranira Mwithimbu. The appellant was the one who received money from PW1. 

22. In his defence, DW1, Peter Thuranira Mwithimbu, stated that the ID card with the name Fredrick Mutuma and the mobile phone belonged to his son, who was studying at Mount Kenya University in Thika. In 2018, he was about to board a tuk tuk to take the said items to his son in school when he was held from behind, by a certain lady, whom he did not know. Two other people came who introduced themselves as police officers and told him he was under arrest. They took him to the AP post and took his wallet which had the ID card of his son Fredrick Mutuma, his ID card, NHIF card, ATM card and Ksh.2,500. They sent someone with the ATM card to go and find out whether there was money in the account. When the person confirmed that the account had Ksh.30,000, the lady handcuffed and beat him saying he had taken her money. He was then taken to Meru where he found PW1 who took photographs with his phone. The following day, he was taken to court. He denied being found with fake documents.

23. During cross examination, he stated that he was arrested on 23/1/2018 and he did not complain in court that he had been beaten. His ATM card was taken to confirm the balance, although he did not give the officer any PIN.

24. He was subsequently convicted on four (4) counts and sentenced to serve various terms with alternative fines for different counts. In respect to count 1 he was  fined Kshs.1,000,000 or in default to serve 18 months imprisonment; for  count 2, he was fined Ksh.100,000 or in default to serve 1 year imprisonment; for  count 3, he was fined Ksh.100,000 or in default to serve 1 year imprisonment; for count 6, he was fined Ksh.100,000 or in default to serve 1 year imprisonment. The sentences were ordered to run consecutively.

25. Dissatisfied with the conviction and sentence, he lodged this appeal setting out 8 grounds of appeal which I have collapsed into 4 as follows: -

a) The trial court erred by convicting the appellant on a defective charge sheet, despite the elements of the offence under Section 313 of the Penal Code not having been proved.

b) The trial court erred by reaching a finding that was against the weight of the evidence, when he misapplied the law and shifted the burden of proof to the appellant, yet the prosecution did not proof its case against him for all 4 counts, because the evidence adduced by the prosecution witnesses was contradictory.

c) The trial court erred by failing to order the sentences to run concurrently instead of consecutively because the charges emanated from the same transaction.

d) The trial court erred in failing to take into consideration Section 333(2) of the CPC.

26. In determining this appeal, the court is duty bound to re-appraise, review and re-evaluate the facts afresh with a view of drawing its own independent conclusions and findings, bearing in mind that it did not have the advantage of seeing the witnesses testify. See Odhiambo v R (2008) KLR 565.

27. The appeal was directed to be canvassed by way of submissions, which were respectively filed on 1/9/2020 and 15/10/2021. The appellant submitted that the discrepancy of the approximate size of the land as 0.205 Ha instead of 0.2045 Ha made the charge to be defective, and cited the Court of Appeal case of Yongo v R (1983) KLR 319, on the instances when a charge sheet can be deemed to be defective and alluded to various contradictions in the evidence adduced by the prosecution witnesses. He faulted the trial court for relying on paradoxical evidence in the circumstances and cited the decisions  John Barasa v R (2006) eKLR and Bunkrish Padya v R E-Lok (20) 1983 E.A.C.A in support of the position that contradictory evidence ought not be the basis of a conviction. He submitted that the title deed was given to PW1 by a person known as “pastor” and not him and further that the land registrar ought to have been called to prove the authenticity of the search and title deed. He submitted that the “pastor” and the advocate who drafted the sale agreement were key witnesses who ought to have been called as witnesses. He submitted that the way the trial was conducted prejudiced him a lot, as the specimen signatures were produced without his knowledge and  cited Ramson Ahmed v R (1955) Vol 22, JMN v R (2019) eKLR and Bukenya v Uganda(1972), on the duty of the prosecution to avail all material evidence and vital witnesses or the court would draw an adverse inference. On the failure by the trial court to order the sentences to run concurrently, he cited Sawedi Mukasa s/o Abdulla Aligwasia (1946)13 EACA 97, where it was held that, if a person commits more than one offence at the same time and in the same transaction, save in very exceptional circumstances, the court should impose concurrent sentences. Lastly, he faulted the trial court for failing to take into account the period spent in custody in accordance with Section 333(2) of the Criminal Procedure Code then supported that argument with he decisions in Ahamad Abolfathi Mohammed & Anor v R(2018)eKLR and Bethwel Wilson Kibor v R(2009)eKLR. He urged the court to correct the patently unjust decision, in order to prevent the appellant from serving a clearly unlawful or legally excessive sentence, in view of Article 23 of the Constitution by ordering that the appeal be allowed and the sentence set aside.

28. For the respondent, submissions were offered to the effect that it had proved its case beyond reasonable doubt. On whether the charge sheet was defective, it submitted that the defect of acreage alluded to by the appellant was immaterial, as it did not prejudice him and was otherwise curable under Section 382 of the Criminal Procedure Code. On sentence, it submitted that the same was not only sound and proper but also lenient because the offenses did not arise from the same transaction but from a chain of events, which culminated in obtaining money by false pretenses after making a false document. It concluded that the case was proved beyond reasonable doubt as the evidence adduced was solid, and prayed for the dismissal of the appeal. It relied on Joseph Simiyu Mwando v R (2016) eKLR, where the the ingredients of the offence of uttering a false document was illustrated.

Analysis and determination

29. As there is a challenge on the conviction on the assertion that the charge was defective and thus ought not to have been the basis of conviction, I consider that to be the due starting point.  The need for a charge preferred against every accused person to be in conformity with the law cannot be gainsaid for a charge that is defective connote noncompliance with the law and thus prejudicial to the accused and the entire administration of justice as well as the rule of law.

30. A charge sheet may be defective for not disclosing an offence known to the law, thus affronting the principle of legality enshrined in article 50(2)n of the constitution or that it is at variance with the particulars provided and thus the evidence sought to prove it. In this matter, the fault upon the charge sheet emerges to be that the evidence let was not in tandem but at variance with the offence charged in that while the charge sheet described the land as measuring 0.205 Ha the evidence asserted that the land was 0.2045Ha. This challenge on the propriety or legality of the charge must thus be appreciated to attack only count 1 and not all the others.

31. Where the alleged defect is alleged on the basis of disparity between the charge and the particulars or evidence to prove it, the question is whether the rights of the accused under article 50(2)b have been safeguarded. In Benard Ombuna v Republic [2019] eKLR,  the court of appeal did consider the point and it purpose and said: -

“It is trite that an accused person is entitled to not only be charged with an offence recognized under the law but also to be furnished with all the necessary details of the offence so as to enable him appreciate the nature of the charge(s) against him and to prepare an appropriate defence. The converse would prejudice an accused person’s right to a fair trial contrary to Article 50(2) (b) of the Constitution. This is the rationale behind Section

134 of the Criminal Procedure Code which stipulates:

“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”(emphasis mine)

32. However, not every defect presenting a disparity or variance between the charge and the evidence would be fatal to a conviction. The defect must be the kind that prejudice the accused by denying him the ability to adequately prepare for his challenge to the charge on the basis that he is misled or is made to face a charge that is unknown to the law. Other disparities go to the sphere of contradictions which are then weighed a different scale as to gravity thereof. In Benard Ombuna’s case (supra) the Court of Appeal did make the following observations and holding on what constitutes a fatally defective charge. The court said; -

Over time, the test of determining whether a charge is fatally defective so as to render any conviction a nullity has been established, both in our jurisdiction and other jurisdictions. In that regard, the Supreme Court of India in Willie (William) Slaney vs. State of Madhya Pradesh [A.I.R. 1956 Madras Weekly Notes 391], held that:-

“Whatever the irregularity, it is not to be regarded as fatal unless there is prejudice. It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in the labyrinth of insubstantial technicalities.”

Similarly, this Court while faced with the same issue in Isaac Nyoro Kimita & another vs. R [2014] eKLR echoed those sentiments as follows:-

“In this case we are dealing with an alleged defective charge on account of how it was framed. We, therefore, need to decide whether or not the allegation in the particulars of the charge that the appellants “jointly” defiled the complainant, made the charge fatally defective. To determine this issue, what, in our view, is of crucial importance is whether or not the use of that term in any way prejudiced the appellants. In other words, did each appellant appreciate the charge against him or was either of them confused by the inclusion of the term “jointly” in the particulars of the charge?” [Emphasis added]

In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence. Was this the case here?

33. Applying the principle set by the court of appeal to the fact of this case, I am unable to agree with the appellant that the disparity in the charge sheet and the evidence and limited to the acreage of the land in issued prejudiced the appellant by confusing so as to know that he was to face the accusation of having obtained, from the complainant, the sum of Kshs 1,000,000 on the false pretence that he was in a position to sell to him land parcel No. Nkuene /Ngonyi/933. I find that disparity to have been trivial in both quantity and quality and thus was never prejudicial at all. The conclusion I make on that ground of appeal is that it is unfounded and is not sufficient to upset the conviction.

34. That finding now paves the way to go to the merits of the finding of guilty by the trial court by carrying out the duty to reappraise and re-evaluate the entire evidence afresh with a view to reaching own independent conclusion while bearing in mind that I lack the benefit enjoyed by the trial court in observing and listening to the witnesses testify. I will thus consider if the prosecution discharged its duty of proving the case beyond reasonable doubt.

Did the prosecution prove its case beyond reasonable doubt?

35. The evidence led by the prosecution witnesses was by the the complainant Pw1and his wife PW5, who was to effect the arrest of the Appellant, persons who said they introduced the complainant to the accused persons, PW2,PW3 and PW4, the arresting officer PWE6 and the genuine owner of the land PW7 while PW8 was the investigating officer.  That evidence as arranged sought to piece together how the land was identified, how parties mat negotiated, went to an advocates office, executed an agreement on payment of the agreed deposit and how the suspicion arose leading to the arrest, recording of statements, verification of documents and the ensuing prosecution.

36. In count 1, the appellant was accused of obtaining money by falsely pretending that he was at a position to sell a named parcel of land to the complainant at an agreed price a deposit of which was paid and acknowledged by an agreement. In holding out as the owner of the land, the appellant is said to have presented a copy of the title deed and an identity card both bearing the names of Mbaabu Kiambati. The true Mbaabu Kiambati was called as PW7 and his evidence was that he indeed owned the land, did not enter into any sale agreement with the complainant and in fact had no intention to sell. He insisted that the document used to obtain money from the appellant were a forgery, because he had never given the appellant a copy of his title deed nor the  ID card .

37. PW8, the investigating officer gave evidence to the effect that after the appellant was arrested, he took his specimen signatures which were subjected to forensic examination and found to march with the signature in the sale agreement and having been made by the same hand. The two pieces of evidence when put together with the evidence of PW2,3,4 and 5 place the appellant and identify him as the person who posed and identified himself in the name of PW7 and in that capacity executed a sale agreement for Land Reference No. Nkuene/MNgonyi/935

38. On the basis of the evidence on record, I find that the appellant was positively identified by PW1, PW2, PW3, PW4 and PW5 at the advocate’s office at the time of executing the sale agreement and receiving the initial deposit of the purchase price. He was arrested by PW5 in Thika having tracked him by phone recognized himfrom the encounter at the advocate’s office on the material day.  

39. In his sworn testimony, the appellant in his defence tacitly denied having met the complainant and all the witnesses but did not make any attempt at explaining where he was on the material day. In the course of cross-examining the witnesses who swore to have met and identified him as the purported owner and seller of the land, the appellant made no allusion or suggestions to any of them that they had been mistaken or held a grudge against him. 

40. When the trial court therefore found the defence put forth by the appellant to be an afterthought, the court cannot be faulted in its finding. One may only add that the evidence led by the prosecution was systematically corroborated and tightly knit and was never shaken or indeed controverted by the evidence by the appellant. It left no reasonable doubt in the mind of the trial court just as this court finds no reasonable doubt to entitle it to disturb the conviction on the 1^st count

How about the counts regarding making and uttering false documents?

41. In law, a document is classified false when it purports to be made by a person who didn’t make  or authorise its making or if its contents be altered materially, or if the   whole or part of it is shown to have been made by or on behalf of  a person who is fictitious or deceased or where it is indeed shown to have been made by a living real person or by his authority the intention is to pass it as having been made by another not being the maker[1] .  Put differently, a document is false when, among other things, it purports to be what it is not; when altered without authority so as to affect its effect and alter the purport thereof or when signed without authority in the name of the person as the author or where the person shown as the author is fictitious or dead.

42. In the context of this appeal, the prosecution was expected and had the onus to prove that the identity card No xxxxxxx said to have been uttered by the appellant was indeed false for having been forged, that the fact of forgery was known to the appellant and was made and uttered by the appellant with the intention to defraud.

43. The falsity of the document or the intention to use or pass it as genuine was not made a point for determination by the evidence put for the appellant because there was never an assertion that the same was genuine. Rather the appellant took the position that he was a stranger to the wrongdoing alleged and he was being framed.

44. That notwithstanding, the evidence by PW 7 and 8, leave no doubt that the document presented as the identity card of PW7 was indeed false but intended to pass as genuine and the goal was to convince PW1 that the appellant was indeed the owner of the parcel of land  No Nkuene/Ngonyi/935.

45. I do find that there was demonstration beyond reasonable doubt that the identity card was indeed produced and uttered to the complainant, in the presence of others including an advocate. Having been proved to have had the document and received a substantial sum on its basis, it was for the appellant to prove to court the origin of the document. That task was given a wide berth by the appellant and I make the inference that he was the maker. I find that, in making it he had no authority to do so such authority being vested on the registrar of persons who the appellant is not.  Having re-examined and reappraised the evidence at trial, I find that the prosecution proved its case to the requisite standard of beyond reasonable doubt hence the conviction cannot be termed unsafe but sound thus deserves no disturbance on appeal. It follows that the conviction of the appellant for the two offenses in counts II and III was safe and warranted for being in full accord with the law.

46. On count VI, personation contrary to section 382(1) of the Penal code, the evidence on record show and points irresistibly that the appellant, in the company of another, while wielding an identity card did present himself to PW1 and 5, in the presence of others to be one Mbaabu Kiambati. He also presented himself as the said Mbaabu Kiambati, the registered proprietor and willing to sell the property in Nkuene/Ngonyi/935. He did so successfully and did receive a partial payment of the sum of Kshs 1,000,000 from PW1. That evidence equally stool uncontroverted nor shaken at the conclusion of the production of evidence and I do find as the trial court did that the charge was adequately proved beyond reasonable doubt as to warrant the conviction reached.

47.  One of the attacks on the conviction was the failure by the prosecution to call the advocate, the land registrar and the “pastor”, who according to the appellant were vital witnesses. The position of the law in that regard is coded and addressed by section 143 of the Evidence Act which provides that, no particular number of witnesses shall, in the absence of any provisions of the law to the contrary, be required for proof of any fact.  In Julius Kalewa Mutungu v Republic (2005) eKLR, the court held that as a general principle; -

“the prosecution is granted a discretion whether or not to call specific witness and courts would not interfere with that discretion unless it is shown that the prosecution had an ulterior motive in which event it will be presumed that the witness not called would have given adverse evidence.”

48. Here the prosecution called 8 witnesses in support of its case on the charges of obtaining money by false pretense and making and uttering false documents to facilitate personation. It was always the prerogative of the prosecution to present their case the way deemed best and in line with their independence not to be directed from other quarters. That a particular witness, earmarked to support the prosecution’s case, was not called should be a prejudice to the prosecution and not the defence. It cannot be the only reasons to upset a conviction founded upon sound evidence.  I find no merit on that ground.

Propriety of the sentence

49. The trial court ordered the imposed sentences to run consecutively as opposed to currently which the appellant contends to run affront the principles of the law on sentencing.  It is not the law that consecutive sentences are unlawful or illegal. The law[2] is that the court like the trial court here is empowered by law to met out such sentence at one trial of several offenses provided such sentence does not aggregate to more that 14 year or more than twice the maximum prison term the court has power to impose.  The trial court in this matter was presided over by a principal magistrate who by dint of section 7 of the Code is empowered to pass any sentence authorised by law. I read that such a court has no limit in the length of prison sentence it can impose. That is the foundation upon which magistrates in that class pass death and life sentences as by law provided.

50. Consecutive sentences are thus lawful[3] when meted out for offenses tried together when the same never arose from the same transaction. Here, the five offenses on which the conviction was passed did not arise from the same transaction, but from a chain of events which climaxed in obtaining money by false pretenses after making a false document. I find no evidence that the identity card was made the same day the money was obtained but there was evidence that the personation was made to PW1,2,3,4 and 5 at different places and time and thus made out a chain of transactions as opposed to one. For that reason, I find that the trial court properly took into account the manner in which the offenses where committed when it ordered the sentences to run consecutively. The Court of appeal in Peter Mbugua Kabui v Republic [2016] eKLR stated;

“As a general principle, the practice is that if an accused person commits a series of offences at the same time in a single act/transaction a concurrent sentence should be given. However, if separate and distinct offences are committed in different criminal transactions, even though the counts may be in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment… Is the sentence illegal or unlawful? We find that the sentence was legal and lawful, and we have no legal basis for interfering with the same.”     (Emphasis provided)

33. On the legality or otherwise of the sentences imposed upon the appellant, I draw guidance from Bernard Kimani Gacheru v Republic [2002] eKLR where the court stated that;

“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”

34. The appellant obtained not a modest sum of money from the complainant, and the sentence passed by the trier of facts, must have weighed and the sentence commensurate with the gravity of the offence. I find that the trial court acted on the proper principles and considered the relevant factors before passing the sentences for the four counts.  The appellant was sentenced to an aggregate of 4 years and 6 months, with an option of fine.  That to me was lenient, lawful, well deserved and just in the circumstances, especially here where there was premeditation by first making false documents and then pouncing on the complainant who was completely innocent and unsuspecting.

35. On the last point on the period served before conviction, the record shows that the appellant was arrested on 23/1/2018 and released on bail on 12/2/2018. That period of twenty (20) days, between the date of arrest and the date of release on bail ought to have been factored in during sentencing, was not taken into account, but shall be reckoned with by the prisons authorities, in line with the provisions of Section 333(2) of the Criminal Procedure Code.

36. The upshot is that this appeal is without merit and it is dismissed.

DATED SIGNED AND DELIVERED AT MERU THIS 18TH DAY OF MARCH, 2022Patrick J.O Otieno

JUDGE

In presence of

Mr. Maina for the respondent

Appellant in person

PATRICK J.O OTIENO

JUDGE