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Court of AppealPartially AllowedCriminal Appeal (Court of Appeal)

Mathlida Akinyi Oware v Republic (Criminal Appeal 12 of 1989) [1989] KECA 59 (KLR)

Court of Appeal of Kenya
3 April 1989
1,265 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court cannot convict someone of false pretences over promises about the future — but still convicted her of stealing the money.

What this practically means

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Executive summary

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The appellant, Mathlida Akinyi Oware, pleaded guilty before the Resident Magistrate's Court at Thika to stealing by agent contrary to section 283(b) of the Penal Code, having accepted Shs 11,400 from the complainant to buy khangas and then disappearing without buying them. She was sentenced to two years' imprisonment. On first appeal, Dugdale J of the High Court inferred from the admitted facts that she had obtained the money by false pretences, and under section 188(b) of the Criminal Procedure Code substituted a conviction for obtaining by false pretences contrary to section 313 of the Penal Code, dismissing the appeal. On second appeal on a matter of law, the Court of Appeal (Apaloo, Masime and Gicheru JJ.A) held that the appellant's representation that she was in a position to buy khangas was one of existing fact, but its falsity was nowhere established on the admitted facts; her subsequent failure to buy related to a future event, which following R v Dent and Abdallah v Republic cannot support a charge of obtaining by false pretences. The substitution under section 313 was therefore incorrect. However, the theft itself was established: she fraudulently converted the money. Since stealing under section 275 is a minor offence relative to stealing by agent under section 283(b), the Court, under section 179 and section 261(2) of the Criminal Procedure Code, varied the first appellate judgment, set aside the section 313 conviction, and substituted a conviction for simple stealing under section 275. The appeal was overall dismissed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the representation that the appellant was in a position to buy khangas for the complainant constituted a false pretence capable of sustaining a conviction for obtaining by false pretences contrary to section 313 of the Penal Code
  2. 2.Whether the High Court was correct to substitute a conviction for obtaining by false pretences under section 188(b) of the Criminal Procedure Code
  3. 3.What, if any, substituted conviction was open on the admitted facts

Key legal issues

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01

Whether a representation as to future conduct amounts to a false pretence

Holding

It does not. The appellant's representation that she was 'in a position' to buy khangas was a representation of existing fact, but its falsity was not established; her subsequent failure to buy related to a future event which cannot support a charge under section 313.

Reasoning

Following R v Dent and Abdallah v Republic, a false pretence must be a false statement of existing fact. The admitted facts showed the complainant handed money after a representation about ability to buy khangas, but nothing showed the appellant was not in such a position. Failure to perform later was an event de futuro, not a false pretence, so the High Court's substitution of the section 313 conviction was incorrect.

p. 2
02

Whether a conviction for simple stealing could be substituted on the admitted facts

Holding

Yes. The theft of the Shs 11,400 was established on the facts (fraudulent conversion), but entrustment for a specific purpose was not, so simple stealing under section 275, a minor offence to stealing by agent under section 283(b), was the appropriate substituted conviction under section 179 of the Criminal Procedure Code.

Reasoning

Both sections 283(b) and 275 share the common particular of stealing; section 283(b) adds entrustment and carries a heavier maximum penalty of seven years versus three years. Where stealing is proved but not entrustment, section 179(1) permits conviction of the minor offence, as recognised in Rev v George Biazzos.

p. 3
03

Power of the Court of Appeal on a second appeal on a matter of law

Holding

Under section 261(2) of the Criminal Procedure Code the Court varied the first appellate judgment, set aside the false pretences conviction and substituted a conviction for simple stealing.

Reasoning

The appellant's complaint that the section 313 conviction could not stand on the facts succeeded as a matter of law. Exercising its statutory power, the Court corrected the substitution made by Dugdale J while still dismissing the appeal on the overall result, since a conviction for stealing was warranted on the admitted facts.

p. 3

Legal principles established

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  • A representation as to a future event or intention (de futuro) cannot support a charge of obtaining by false pretences; a false pretence must be a false representation of existing or past fact.
  • A plea of guilty only admits an essential element of an offence where the admitted facts actually establish that element; failure to buy goods after receiving money may amount to stealing rather than a false pretence.
  • Stealing is an offence minor to stealing by agent under section 283(b) of the Penal Code, and a court may convict of the minor offence under section 179 of the Criminal Procedure Code where the entrustment element is not established.

Court orders

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  1. 1.The judgment of the first appellate court (Dugdale J) is varied under section 261(2) of the Criminal Procedure Code
  2. 2.The substituted conviction for obtaining by false pretences contrary to section 313 of the Penal Code is set aside
  3. 3.A conviction for the offence of stealing contrary to section 275 of the Penal Code is substituted
  4. 4.The appellant's appeal is dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Criminal Appeal No 234 of 1988
Jurisdiction invoked
Second appeal to the Court of Appeal on a matter of law; revision/substitution of conviction under sections 261(2) and 179 of the Criminal Procedure Code

Relief refused

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The appellant's appeal against conviction and sentence in its entirety

Although the substituted conviction for false pretences was set aside, the theft of the money was established on the admitted facts, so the appeal as a whole was dismissed and a conviction for simple stealing substituted

p. 3

Costs

No costs order made

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Under the provisions of section 261 (2) of the Procedure Code, we therefore vary the judgment of the 1st appellate court (Dugdale, J.) and set aside the appellant’s substituted conviction of obtaining by false pretences contrary to section 313 of the Penal Code and substitute therefor a conviction for the offence of stealing contrary to Section 275 of the Penal Code.
p. 3Final orders - variation of first appellate judgment and substituted conviction
Her inability or failure thereafter to buy some khangas for the complainant related to an event de futuro which cannot support the offence of obtaining by false pretences.
p. 2False pretence must relate to existing or past fact, not future events
It follows that the offence under section 275 compared with that under section 385 (b) is a “minor offence” within the meaning of section 179 of the Criminal Procedure Code.
p. 2Stealing as a minor offence to stealing by agent
In the result, the appellant’s appeal is dismissed.
p. 3Final disposition - appeal dismissed

Issues in the judgment

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minor

The judgment refers to the maximum penalty for the offence under 'section 285 (b)' and compares the offence under section 275 with that under 'section 385 (b)', although the charge and discussion throughout concern section 283(b) of the Penal Code; these appear to be typographical errors in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mathlida Akinyi Oware v Republic (Criminal Appeal 12 of 1989) [1989] KECA 59 (KLR)", Case Analysis (1989). Criminal Appeal (Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1989/59/eng@1989-03-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.