Case Metadata |
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| Case Number: | Criminal Appeal 76 of 1983 |
|---|---|
| Parties: | Joseph Mukuha Kimani v Republic |
| Date Delivered: | 03 May 1984 |
| Case Class: | Criminal |
| Court: | Court of Appeal at Nairobi |
| Case Action: | Judgment |
| Judge(s): | Zakayo Richard Chesoni, James Onyiego Nyarangi, Alister Arthur Kneller |
| Citation: | Joseph Mukuha Kimani v Republic [1984] eKLR |
| Advocates: | Mr PS Gatimu for Appellant |
| Case History: | (Appeal from the High Court at Nairobi, Todd J) |
| Court Division: | Criminal |
| County: | Nairobi |
| Advocates: | Mr PS Gatimu for Appellant |
| History Judges: | John Henry Sydney Todd |
| Case Summary: | Kimani v Republic Court of Appeal, Nairobi May 3, 1984 Kneller JA, Chesoni & Nyarangi Ag JJA Criminal Appeal No 76 of 1983 (Appeal from the High Court at Nairobi, Todd J) Criminal law - uttering false document - offence of - contrary to Penal Code (cap 63) section 353 - ingredients of the offence of - meaning of forgery. The appellant was charged with the offences of forgery and uttering a false document contrary to sections 349 and 353 of the Penal Code (cap 63), for which offences he was convicted and sentenced. On the charge of uttering a false document, it had been put against the appellant that he had knowingly and fraudulently uttered a certain forged Trade Test Certificate to a Mr Zimi, purporting it to be a genuine Trade Test Certificate signed by a Mr Opiyo, who was a Motor Vehicle Examiner. The appellant had undergone a test which, according to Mr Opiyo, he had failed but which the appellant maintained he had passed and collected the certificate from the office of the Ministry of Labour. It appeared that the appellant had been allowed to collect the certificate because it was understood that he had passed the exam. Upon his first appeal, the High Court acquitted the appellant on the charge of forgery but upheld his conviction on the charge of uttering a false document. He filed a second appeal in the Court of Appeal. Held: 1. On a charge of uttering a false document under section 353 of the Penal Code, the prosecution must prove that: a) the document was false in the sense that it was forged; b) the accused knew that it was forged; and c) the utterer intended to defraud. 2. On such a charge, the false document is forged if it is made to be used as genuine. 3. It had not been proved that the document was false or that the appellant had known that it was false and therefore there was a failure in establishing all the essential ingredients of the offence of uttering a false document Appeal allowed. Cases 1. Kilee v Republic [1967] EA 713 at 717 2. Omar bin Salem v R (1950) 17 EACA 158 3. Samuels v Republic [1968] EA 1 Statutes 1. Penal Code (cap 63) sections 349, 353 2. Criminal Procedure Code (cap 75) section 361(1)(a) Advocates Mr PS Gatimu for Appellant |
| History Advocates: | One party or some parties represented |
| History County: | Nairobi |
| Case Outcome: | Appeal Allowed |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
IN THE COURT OF APPEAL
AT NAIROBI
( Coram: Kneller JA, Chesoni & Nyarangi Ag JJA )
CRIMINAL APPEAL 76 OF 1983
BETWEEN
JOSEPH MUKUHA KIMANI...............................................................APPELLANT
AND
REPUBLIC........................................................................................RESPONDENT
(Appeal from the High Court at Nairobi, Todd J)
JUDGMENT
Joseph Mukuha Kimani (the appellant) was convicted on three counts, that is, two of forgery and one of uttering a false document contrary to sections 349 and 353 of the Penal Code, respectively. At his first appeal, the High Court acquitted him of the two counts of forgery but upheld the conviction on the count of uttering a false document. What was put against Joseph on that count, was that on March 5, 1981, at Kahawa Garrison, within Nairobi Area, he knowingly and fraudulently uttered a certain forged Trade Test Certificate No 65092 to Joseph Zimi, purporting it to be a genuine Trade Test Certificate, signed by James Orony Opiyo.
On this second appeal, four grounds were put forward but Mr Gatimu for the appellant, argued only Ground 3, that the learned judge erred in not appreciating that the elements of the offence were not proved. Indeed, ground four was not maintainable, in view of section 361(1)(a) of the Criminal Procedure Code.
Section 353 provides as follows:
“Any person who knowingly and fraudulently utters a false document is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question.”
The prosecution must prove that:
(a) the document was false; in the sense that, it was forged
(b) the accused knew it was forged
(c) the utterer intended to defraud.
In the case of Kilee v Republic [1967] EA 713 at p 717, it was said that the false document must tell a lie about itself and not about the maker. We think the position is better put, by stating that, the false document is forged if it is made to be used as genuine. To defraud is, by deceit, to induce a course of action: Omar bin Salem v R (1950) 17 EACA 158, and to defraud, is not confined to the idea of depriving a man by deceit of some economic advantage or inflicting upon him some economic loss, see Samuels v Republic [1968] E A 1.
The prosecution showed that the uttered document was made to be used as genuine for the promotion of the appellant. However, though the document (certificate) was said not to have been signed by the Assistant Director of Industrial Training in the Ministry of Labour, Mr Pravin Kumar Kapur (PW 3), and Mr James Jony Opiyo (PW 2), who was the Motor Vehicle Examiner, there was insufficient evidence that it was false, and that is forged as charged. Mr Opiyo said that the record showed that he examined the appellant who failed, but the appellant said in his unsworn statement, that he passed the test. He also said that he collected a certificate from the Ministry’s office. He surely must have been informed that he could collect it and at that time, it appears, there was no objection to his collecting it on the ground that he had earlier passed the examination. It was not proved that the appellant, therefore, knew the document was forged.
We do not think all the essential ingredients of the offence of uttering a false document were established nor was the document, the subject matter of the charge proved to be false. For these reasons the conviction cannot be sustained. The appeal is allowed, conviction quashed and the sentence put aside. We order immediate release of the appellant unless he is otherwise lawfully withheld.
Dated and Delivered at Nairobi this 3rd day of May 1984.
A.A.KNELLER
..................................
JUDGE OF APPEAL
Z.R.CHESONI
.........................................
AG. JUDGE OF APPEAL
J.O.NYARANGI
.........................................
AG. JUDGE OF APPEAL
I Certify that this is a true copy
of the original.
DEPUTY REGISTRAR
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