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Court of AppealAllowedCriminal Appeal No. 31 of 2013· [2015] KECA 232 (KLR)

Peter Walemba Isaya v Republic [2015] KECA 232 (KLR)

Court of Appeal of Kenya
19 October 2015
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
1,825 words in judgment
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The bottom line

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Kenya's Court of Appeal quashed a false pretences conviction, ruling that promising future interest is not a crime—only false statements about present or past facts are.

What this practically means

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Executive summary

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The appellant, Peter Walemba Isaya, and his wife were charged with twelve counts of obtaining by false pretences contrary to section 313 of the Penal Code, based on an investment scheme promising 20% monthly interest. The wife was convicted on five counts and fined; the appellant was convicted on count eight only, fined Kshs. 50,000 with one year imprisonment in default. Their appeals to the High Court at Kakamega (Kimaru & Chitembwe, JJ.) were dismissed on 26 September 2012, the court characterising the scheme as a pyramid or ponzi scheme. The wife withdrew her appeal in this Court, leaving only the appellant's conviction on count eight. Counsel for the appellant argued that the lower courts failed properly to evaluate the evidence, that a promise to pay future interest could not constitute a false pretence, and that section 200(3) of the Criminal Procedure Code was breached when a second magistrate took over the trial. Prosecution counsel conceded the appeal on the section 200(3) ground. The Court held that under section 312 of the Penal Code a false pretence must be a representation of past or present fact; the promise to pay 20% monthly interest was a representation as to a future event which cannot sustain the charge, and the appellant had in fact paid one month's interest. Further, there was no evidence that the succeeding magistrate informed the appellant of his right to have witnesses reheard. The Court quashed the conviction on count eight and set aside the sentence. Julia Adhiambo Makhokha, having withdrawn her appeal, is unaffected by this judgment.

Key legal issues

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01

Whether the representation to pay interest in future amounted to a false pretence under section 313 of the Penal Code.

Holding

It did not. Section 312 confines a false pretence to a representation of a matter of fact, either past or present. The promise to pay 20% monthly interest was a representation as to a future event, and there was no evidence the appellant was not in a position to pay when he made it; he in fact paid one month's interest.

Reasoning

The court applied Abdallah vs. Republic, holding that a promise concerning future conduct is not a representation of present or past fact. The prosecution had to prove a false representation of fact plus intent to defraud. Since the alleged pretence related to future payment, the ingredients of the offence were not proved, and the lower courts erred in failing to evaluate the evidence to that effect.

p. 3
02

Whether non-compliance with section 200(3) of the Criminal Procedure Code, when a succeeding magistrate took over part-heard proceedings, vitiated the trial.

Holding

Yes. The record showed that a second magistrate heard the remaining witnesses with no evidence that the appellant was informed of his right to have witnesses resummoned and reheard. The State conceded the appeal on this ground.

Reasoning

Section 200(3) obliges the succeeding magistrate to inform the accused of the right to demand that any witness be resummoned and reheard. There was no evidence of compliance on takeover by the succeeding magistrate, and following Bob Ayub vs. Republic the court found the omission fatal, leading to the State's concession of the appeal.

p. 4

Legal principles established

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  • A representation as to a future event cannot support a charge of obtaining by false pretences; a false pretence must relate to a matter of fact, past or present.
  • Where a succeeding magistrate takes over a trial, the accused must be informed of his right under section 200(3) of the Criminal Procedure Code to have any witness resummoned and reheard; non-compliance vitiates the trial.

Court orders

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  1. 1.The conviction of the appellant on count 8 is quashed.
  2. 2.The sentence of fine or imprisonment in default is set aside.

Authorities

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Legislation

  • Penal Codesection 313
  • Penal Codesection 312
  • Criminal Procedure Codesection 200(3)
  • Rules of the Court of Appealrule 68(1)

Cases cited (5)

  • Joseph Wanyonyi Wafukho vs. Republic
    [2014] eKLR
  • Francis Mwangi and another vs. Republic
    [2015] eKLR
  • Mathlida Akinyi Oware vs. Republic
    Criminal Appeal No. 12 of 1989 CA, Nairobi
  • Abdallah vs. Republic
    [1970] EA 657
  • Bob Ayub vs. Republic
    [2010] eKLR
On appeal from
High Court of Kenya at Kakamega
HCCRA. MO. 199 OF 2010
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal's appellate powers (Criminal Appeal No. 31 of 2013 from the High Court); no specific constitutional provision invoked.

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, "Peter Walemba Isaya v Republic [2015] KECA 232 (KLR)", Case Analysis (2015). Criminal Appeal No. 31 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/232/eng@2015-10-19

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