Director of Public Prosecution v Alii & 2 others (Criminal Case E371 of 2021) [2023] KEMC 275 (KLR)
The bottom line
#A Kwale court acquitted three men of all eight fraud and forgery charges because the prosecution's case rested on suspicion, not evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the prosecution established a prima facie case of conspiracy to defraud (Count 1)
No common intent or motive among the three accused was established; no witness placed any accused at the Kadhi's office and an inference from use of their names was unsafe.
The Kadhi could not identify any of the accused as those who appeared before him. The petition documents were lodged clandestinely, undated-stamped, with no evidence of filing or a commissioned verifying affidavit. Handwriting expert examination was never undertaken, which could have placed an individual at the scene. The court declined to draw the unsafe inference.
Whether the Court Order in Kwale Kadhi's Court Succession Cause No. 77 of 2016 was a forgery (Counts 2 and 3)
The Order was admittedly issued by Kadhi Said H. Bedzenga and therefore was not a forgery or false document.
Both the Court Administrator (PW4) and Kadhi Wendo (PW6) admitted the impugned Order was issued by the Court, albeit unprocedurally through a hijack of the process by a judicial officer. Since the document emanated from the court, it could not found forgery or uttering charges. PW8, not the 1st Accused, was the person who uttered it to the Land Registrar.
Whether the 1st Accused forged or uttered the Death Certificate and procured the land registration (Counts 4, 5 and 6)
Although the Death Certificate was shown to be a forgery, there was no evidence linking the 1st Accused to forging, uttering it or procuring the registration.
The Registrar of Births and Deaths confirmed the certificate had been manipulated, but no evidence showed the 1st Accused forged it. There was no evidence he lodged any document with the Land Registrar. The registration was procured through PW8, instructed by the DCC and the 3rd Accused; the 1st Accused's name was merely used on the title document.
Whether the false swearing charges (Counts 7 and 8) were sustainable
No evidence showed either accused swore before the Kadhi, and in any event the proper charge was perjury under s.108(a), not false swearing under s.114, which could not be substituted under s.179 of the Criminal Procedure Code.
Kadhi Wendo could not identify the accused as persons who swore before him, owing to passage of time and the volume of clients he handles. Additionally, the offence charged was the wrong one: false swearing under s.114 being a misdemeanour equal to perjury, it could not sustain a substitution for perjury under s.179 of the Criminal Procedure Code.
The applicable test under section 210 of the Criminal Procedure Code and burden of proof
The burden rests on the prosecution throughout and an accused has no duty to fill gaps in the prosecution case; the charges here rested on suspicion rather than evidence.
Applying section 210 CPC and the Bhatt definition, the court asked whether a reasonable tribunal could convict on the evidence if no defence were offered. Section 107 of the Evidence Act places the burden on the DPP. The court found the charges against all three accused heavily based on suspicion, not evidence, and no prima facie case was established in any of the 8 counts against any accused.
Legal principles established
#- A prima facie case is one on which a reasonable tribunal, properly directing its mind to the law and the evidence, could convict if no explanation is offered by the defence; mere suspicion is not enough.
- An inference of presence or involvement from circumstantial indicia such as names appearing in proceedings may be unsafe where no witness places the accused at the scene.
Court orders
#- 1.The cases against each of the 3 accused persons are dismissed and each of them is forthwith acquitted under Section 210 of the Criminal Procedure Code on all 8 counts
- 2.All the 3 accused persons, who were out on personal bond with sureties pending trial, together with their respective sureties, are discharged forthwith
- Jurisdiction invoked
- Section 210 of the Criminal Procedure Code (ruling on whether a case to answer has been made out)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Director of Public Prosecution v Alii & 2 others (Criminal Case E371 of 2021) [2023] KEMC 275 (KLR)", Case Analysis (2024). Kwale Criminal Case (consolidated charge sheet, charges under ss. 317, 351, 353, 345, 349, 320 and 114 of the Penal Code). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/275/eng@2023-11-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.