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MagistrateDismissedCriminal Case No E503 of 2024· [2025] KEMC 377 (KLR)

Republic v Kimathi (Criminal Case E503 of 2024) [2025] KEMC 377 (KLR)

Magistrates' Court (Criminal)
20 January 2025
TWTracy Wachira
2,218 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Chuka court acquitted a technician of obtaining money by false pretence, ruling that promises about future work are not criminal fraud in Kenya.

What this practically means

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Executive summary

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The accused was charged with obtaining Kshs.92,000 by false pretence contrary to Section 313 of the Penal Code, the allegation being that on 20/03/2024 at Marima market, Tharaka Nithi County, he obtained the money from Oliver Muriuki by pretending he could install 10 KPLC token meters. The prosecution called four witnesses: PW1 and PW2 (his mother, on whose Nairobi housing project the tokens were to be installed) proved the payments via M-pesa; PW4 was the investigating officer. The accused, an electrical technician, testified that the payment was for electrical installation work at PW1's own house which he did between February and June/July 2024, and that he knew nothing of the Nairobi project. The court framed a single issue: whether the prosecution proved the case to the stipulated standard. It set out the ingredients of the offence from Sections 312 and 313 of the Penal Code and case law, including the requirement that a false pretence be a representation of past or present fact. It found the money was received but that the representation related to future performance (work within a week), which cannot constitute a false pretence; failure to perform could ground a civil claim only. It also held that the burden lay on the prosecution to show the payment was not for earlier work, and the defence was not an afterthought. The accused was acquitted under section 215 of the Criminal Procedure Code.

Key legal issues

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01

Whether the ingredients of obtaining money by false pretence were proved

Holding

The offence was not proved to the required standard; the alleged pretence related to a future event and the burden of showing the payment was not for earlier work lay on the prosecution.

Reasoning

The court set out the ingredients from the Penal Code and case law: a false representation of past or present fact, made knowingly falsely, with intent to defraud, obtaining something capable of being stolen. The money paid was proved, but the representation related to performance within a week, a future event. Further, the accused was a known technician previously engaged by PW1, and it was not clear what purpose the money served. The accused's defence rebutted the ingredients, and mere failure to deliver could ground a civil claim but not a criminal offence.

p. 5

Legal principles established

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  • A representation as to a future event cannot support a charge of obtaining money by false pretences.
  • Failure to honour a bargain does not per se prove that a representation was made knowingly falsely or with intent to defraud.

Court orders

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  1. 1.The accused is acquitted under section 215 of the Criminal Procedure Code

Authorities

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Legislation

  • Penal CodeSection 313
  • Penal CodeSection 312
  • Criminal Procedure CodeSection 215

Cases cited (8)

  • Gerald Ndoho Munjuga vs Republic
    [2016] eKLR
  • Dr Edwin U. Onwudiwe vs Federal Republic of Nigeria
  • Joseph Wanyonyi Wafukho V Republic
    Bungoma CR.A No. 200 of 2021 [2014] eKLR
  • Mathlida Akinyi Oware V Republic
    [1989] eKLR
  • R. V. Dent
    [1975] 2 All E.R. 806
  • Abdallah V Republic
    [1970] E.A. 657
  • Kenneth Njiru v Republic
    [2021] eKLR
  • Mukungu v Republic
    (Criminal Appeal E007 of 2023) [2024]
Jurisdiction invoked
Criminal jurisdiction over an offence of obtaining money by false pretence contrary to Section 313 of the Penal Code

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, "Republic v Kimathi (Criminal Case E503 of 2024) [2025] KEMC 377 (KLR)", Case Analysis (2025). Criminal Case No E503 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/377/eng@2025-01-20

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