Tijara Sharifu Alawi v The Republic & 1 other

2. The Appellant denied the charge whereby the case proceeded for trial and in a Judgment delivered on 5th December, 2023, she was found guilty and accordingly convicted for the offence of Conspiracy to defraud and was sentenced to serve one )1) year imprisonment. 3. It is the said conviction and sentence issued by the Trial Court that necessitated the filing of this present appeal. The Appeal 4. Being dissatisfied with the Judgment, conviction and sentence, the Appellant preferred an appeal before this Court vide a Petition of Appeal dated 7th December, 2023 which was supported by an affidavit dated 8th December, 2023 setting forth the following grounds:a. That the learned Magistrate erred in law and in fact to admit charges and to continue further proceedings to its conclusion at the Kikuyu Chief Magistrate’s Court in Criminal Case No. 1150 of 2017, Republic –vs- Tijara Sharifu & Another against the Appellant for purported offences of Conspiracy to Defraud and Obtaining money contrary to Section 317 of the Penal Code, Cap 63, Laws of Kenya, with the matters therein being purely Civil in nature. b. That trial Magistrate erred in both the law and the facts in convicting the Appellant on charges that were grossly defective, inconsistent and whose particulars were not proved or supported by evidence. c. That the learned Magistrate erred in law and fact in admitting the offences with which the Appellants were charged with, fall within the ambit and jurisdiction of the Environment and Land Court and not a criminal court. d. That the learned Magistrate erred in law and fact in failing to qualify the limbs of Section 317 of the Penal Code and does not show the reasoning as to how there was any conspiracy between the two accused persons so as to satisfy the elements as required by law. From the facts set out in the case, there was no evidence of an express agreement among the accused persons in the trial court to defraud. The conspiracy not proved from the facts revealed. e. That the learned Magistrate erred in law by not finding that the prosecution had not dispensed with its burden of proof for not calling crucial witnesses. f. That the learned Magistrate erred in law by not finding that the charge preferred against the appellant was fatally defective. 5. In the premises, the Appellant has prayed that the appeal be allowed, conviction quashed and sentence meted against her be set aside. 6. On 17th September, 2024, the appeal was admitted for hearing and parties were directed to canvass the same by way of written submissions. The appellant’s submissions are dated 31st October 2024. However, there are no submissions on record for the Respondents. All the same, this Court will proceed to consider both records and submissions available in this appeal. Analysis and Determination 7. This being a first appeal, this Court has an obligation to re-evaluate and re-analyze the evidence that was tendered before the trial court afresh and come up with its own independent conclusion, while https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19715/eng@2025-11-07 2

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bearing in mind that it neither saw nor heard the witnesses testify. The principles were espoused in the case of David Njuguna Wairimu vs Republic (2010)eKLR, where the Court of Appeal held that:“ The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” 8. This position was first enunciated in the case of Okeno vs Republic (1972) EA 32, where the Court of Appeal held that the first appellate court must reconsider the evidence and draw its own conclusions and should not merely scrutinize the findings of the trial Court. 9. I have carefully read through and considered the evidence on the original record of proceedings together with trial Court’s, the Judgment and the Appellant’s submissions on record with regard to the grounds of appeal. I find the issues arising for determination being as follows:- 10. a. Whether the charge sheet was fatally defective; b. Whether the trial court had jurisdiction over the subject matter; c. Whether the prosecution proved the offence of conspiracy to defraud as provided or under Section 317 of the Penal Code; d. Whether the trial court erred in its evaluation of the evidence and burden of proof; and e. Whether the conviction and sentence were safe. On the issue of whether the Charge Sheet was fatally defective charge, the Appellant argues that the charge was incurably defective as it was inconsistent, failed to disclose an offence and was not supported by any evidence. Section 134 of the Criminal Procedure Code requires that every charge contains a statement of the specific offence and particulars sufficient to give reasonable information as to the nature of the offence. It states that:“ Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” 11. I have read through the Charge Sheet which initiated the case from which this appeal has emanated and find it contains a statement of a specific offence being Conspiracy to Defraud contrary to Section 317 of the Penal Code. The particulars of being that:“ On 25th day of June 2007 at Kikuyu Sub-county within Kiambu County on diverse days between the said date and the 15th day of January, 2013 at Kiambu Law Court within Kiambu County conspired with intent to defraud by means of filing Succession Cause No.1 of 2013 by falsely pretending that you were then filing a genuine Succession Cause for parcel https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19715/eng@2025-11-07 3

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of Land No.Karai/Gikambura 903 Estate of Asman Gathioro (Deceased) and that you were able to get Confirmation of Grant on the same hence effecting it in your name(s)” 12. Clearly, as can be seen, the Charge Sheet contains a statement of a specific offence. The particulars disclose the date, the incident, place where it happened and acts constituting the offence. I am therefore satisfied that the charge as framed has sufficiently disclosed an offence known in law and therefore it cannot be said to have been fatally defective. 13. On whether the trial court had jurisdiction over the subject matter, the Appellant contends that the matter was civil in nature and this fell within the jurisdiction of the Environment and Land Court. It is true that Succession proceedings often raise civil questions of ownership and distribution of property. However, the offence the Appeal was charged with was not about ownership per se but it was about conspiracy to defraud by filing false proceedings. It is this Court’s finding that Criminal courts have jurisdiction to try such matters where fraudulent intent is alleged, hence the trial Court was properly seized of the matter. 14. On the issue of whether the prosecution proved the offence of conspiracy to defraud, it is worth noting that this offence is created under Section 317 of the Penal Code Act where it is criminalized in the case where two or more persons agree to defraud another. Specifically, the said Section 317 of the Act stipulates that:“ Any person who conspires with another by deceit or any fraudulent means to affect the market price of anything publicly sold, or to defraud the public or any person, whether a particular person or not, or to extort any property from any person, is guilty of a misdemeanour and is liable to imprisonment for three years.” 15. For the prosecution to establish commission of the offence of conspiracy the elements to be proved include existence of an agreement, consent or combination of two or more persons. 16. In the case of Rebecca Nabutola & 2 Others –vs- Republic Nairobi High Court Criminal Appeal 232/2012, the Court quoted Archibold’s Criminal Pleadings, Evidence and Practice 2010 (Sweet & Maxwell), at Pages 3025 and 3026, and observed as follows:“ The offence of conspiracy cannot exist without the agreement, consent or combination of two or more persons........ so long as a design rests in intention only, it is not indictable; there must be agreement... In order to prove an offence of conspiracy to defraud, the elements to be proved are the existence of an agreement and the intention to defraud.” 17. Also, in the case of Joseph Juma Nyapete & 2 Others –vs- Republic (2016) KEHC 7415 (KLR) the Court stated that:“ Put together the two words imply that where a person is charged with conspiracy to defraud, it must be demonstrated that he, together with others, had a common intention by deceit to obtain something from another with the purpose of defrauding the owner. That is to say that it must be demonstrated that the accused together with others agreed by common mind to defraud the complainant. That inference must be made both from the actions of the accused and the evidence tendered in court. See the case of Gichanga vs Republic [1993] KLR, 143 (Court of Appeal at Nairobi Criminal Appeal No. 115 of 1991) in which the Court of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19715/eng@2025-11-07 4

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Appeal held that: “With respect to the offences of conspiracy the crucial issue is whether the Appellant and his fellow conspirators acted in concert with the intention that the Board be induced to part with its money.” 18. In the instant case, the prosecution’s evidence was that the appellant was involved in filing a succession cause over the estate of the deceased, allegedly without the involvement of all rightful beneficiaries and with the intention of securing title to the parcel of land. However, the record reveals that no cogent evidence was adduced to show an express or implied agreement between the appellant and the coaccused to defraud the Estate of the Deceased or any other persons. The prosecution did not call crucial witnesses such as the area chief, family members of the deceased, or officers from the registry to establish falsity of the proceedings or the alleged conspiracy. In the absence of such evidence demonstrating the intention to defraud, the essential element of conspiracy is found not to have been proved beyond reasonable doubt. 19. On the issue of evaluation of evidence and burden of proof, it is trite that the burden of proof in criminal cases lies with the prosecution and never shifts to the accused. In its Judgment, the trial Court appeared to rely heavily on the fact that the Appellant participated in the filing of the Succession Cause, without adequately demonstrating how this amounted to fraudulent conspiracy. The mere act of participating in a civil process does not in itself amount to conspiracy to defraud unless fraud is clearly proved. In the instant case, it is clear that the alleged fraud was not proved. 20. Upon re-evaluating the evidence adduced before the trial court, I find that the prosecution failed to discharge its burden of proof to the required standard under Section 107 of the Evidence Act. 21. In light of my above analysis, it is my considered conclusion that the conviction of the appellant was unsafe as the prosecution failed to prove the charge of conspiracy to defraud beyond reasonable doubt. 22. Accordingly, the Appeal succeeds and following orders issue:a. The conviction of the Appellant in Kikuyu Chief Magistrate’s Court Criminal Case No. 1150 of 2017 is quashed. b. The sentence of one (1) year imprisonment is hereby set aside. c. The Appellant, Tijara Sharifu Alawi, is set at liberty forthwith unless otherwise lawfully held. It is so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 7TH DAY OF NOVEMBER , 2025. D. O. CHEPKWONY JUDGE In the presence of: Mr. Nura Counsel for the Appellant Mr. Muriuki counsel for the Respondent Appellant – present Court Assistant – Martin/Sakina https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19715/eng@2025-11-07 5

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