Kithi Mwadzombo Runya Alias Bimonje v Republic

5. 6. The appellant was aggrieved by the conviction and the sentence and filed this appeal. The grounds of appeal are that: 1. That the trial court wrongly convicted the Appellant of the offence in count 1 when he was on the alleged date in prison custody. 2. That the trial court wrongly convicted the Appellant of the offence in count 2 when there was no evidence to support it. The prosecution called 4 witnesses in the case while the Appellant testified and called one witness. Case for prosecution 7. The evidence for the complainant PW1 was that on the 9th October 2018, the appellant sold her a plot for Ksh.100,000/=. They entered into an agreement which however the appellant did not sign but was signed by his wife, DW2 and a son. The complainant built a house on the plot and occupied it with her family. Later, she wanted to extend the house but the appellant blocked her from doing so. She reported to the village elder. The appellant then threatened to beat her. She reported to the police. The appellant then told her that he would do something and she would disappear. That an Arab man went to the place and said that the land belonged to him. The appellant threatened her with a panga and said that he would cut her into pieces. She feared for her life and moved out of the house. 8. A neighbor to the complainant, Ibrahim Katana PW2 testified that he witnessed a sale of a plot measuring 50 x 100 feet between the complainant and the appellant for Ksh.100,000/=. That he is the one who handed over the money to the appellant after which they signed an agreement. 9. The husband to the complainant PW3 testified that the appellant was his neighbour. That on 28/5/2022 he was in his house with the complainant and their children. That the appellant went to them at around 9pm and started to threaten the complainant. He told her to leave the place or he would cut her into pieces. They reported the matter to the village elder. The appellant chased them from the house. 10. The case was investigated by an officer who left Malindi police station and handed over the file to PC Ogema PW4. PW4 testified that he went through the statements recorded by the investigating officer and learnt that the appellant had threatened the complainant by uttering the words stated in the charge sheet. That the statements recorded in the case revealed that the land belonged to a third party, Said Suleiman. The appellant was charged with the offences he was facing. 11. During the hearing, the police officer PW4 produced the search certificate of the land as exhibit, P.Exh.1. Defence Case 12. When placed to his defence, the appellant stated in an unsworn statement that he lives on plot No.102 Ganda. That he is a squatter on the land which he has occupied since 1997. That his wife, Mwaka Nyawa and his son Abdalla Kithi signed an agreement with the complainant after he instructed them to do so. The complainant built a house on the land. That he has a case with the person called Suleiman who claims to be the owner of the land. He denied that he threatened the complainant. It was his evidence that on the alleged date of the commission of the offence, 25/5/2022, he was remanded at GK Prison Malindi over another case, Criminal Case No. 605 of 2021. In this respect he produced a ruling, D.Exh.1 which indicates that his bond in the said case was cancelled on 6/5/2022. He produced an application by the prosecution dated 1/8/2022, D.Exh.2 that indicates that his bond in the said case https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3709/eng@2026-02-11 2

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was reinstated on 28/7/2022, which meant that he was in prison custody on the date he was accused of uttering threats to the complainant. 13. The Appellant called one witness, his wife Mwaka Ngowa DW2. Her evidence was that the complainant went to them and wanted to buy a plot. They showed her a plot and did a written agreement. She and her son Abdalla signed the agreement but the appellant declined to sign it because the complainant did not have money. That after 3 weeks the complainant started constructing on the land. She alleged that she had discovered that the land belonged to Suleiman. 14. It was further evidence of DW2 that the appellant was in prison custody on the date he was accused of uttering threats to the complainant. Submissions 15. The Appellant through counsel submitted that the charge sheet indicated that the offence was committed on 25/5/ 2022. That the evidence showed that the Appellant`s bond over the other case was cancelled on 6/5/2022 and that he remained in remand custody until 28th July when the bond was reinstated. That PC Ogema PW4 in his evidence stated that the appellant appears to have been in remand prison on the date the offence was alleged to have been committed. It was submitted that the prosecution did not prove that the appellant threatened the complainant on the alleged date. 16. On the second count, counsel submitted that the Appellant did not sign the sale agreement and that even the complainant is not shown to have signed it. That the Appellant adduced evidence that he is a squatter on the land. That the purported owner of the land as per search certificate produced before the trial court is Said Suleiman Said who is deceased but the trial court held that the land belonged to Suleiman Said Suleiman. Therefore, that ownership of the land was not proved. 17. The Respondent on the other hand submitted that the Appellant threatened the complainant by uttering the word stated in the charge sheet. That the same were uttered in the presence of the husband to the complainant, PW3. That the complainant got so terrified as a result of the threats that she relocated from the place. That though the Appellant said that he was in prison remand at the time he was alleged to have uttered the threats, he did not tender evidence to support his allegation that he was in remand custody. Therefore, that the offence of threatening to kill the complainant was proved. 18. On the offence of obtaining money by false pretence, it was submitted that the sale agreement showed that the Appellant received Ksh.100,000/= from the complainant. That the Appellant falsely misrepresented to the complainant that he was the owner of the land when he was not and had no title to the land. Consequently, that the Appellant had no right to sell the land to the complainant and therefore defrauded the complainant of her money. That the offence of obtaining money by false pretence was proved. 19. The Respondent urged the court to dismiss the appeal. Analysis and determination 20. This being a first appeal, this court has a duty to evaluate the evidence, analyze it afresh and draw its own conclusion, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify as did the trial Court. In Okeno vs. Republic [1972] EA 32, the Court of Appeal for East Africa had the following to say in this connection: “ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court's own decision on the whole evidence. The first appellate court must itself weigh conflicting evidence and draw its own https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3709/eng@2026-02-11 3

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conclusions...It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses..." 21. The Appellant was charged in count 1 with threatening to kill the complainant by uttering the following words: “ utaondoka hapa upende usipende na usipo ondoka nitakukatakata na panga na mwili wako hautapatikana” 22. The Complainant in her evidence in court testified that the Appellant told her that he would cut her into pieces and that she would disappear. She said that she was with her husband when the threats were uttered but she could not remember the date the words were uttered. 23. The complainant`s husband PW3 on the other hand testified that the threats were uttered in their house on the 28/5/2022 at 9pm. 24. The Appellant`s defence was that he was in prison custody at the time he was accused of uttering the threats. 25. The trial magistrate in finding the Appellant guilty of the charge stated that the Appellant caused the complainant to receive threats as a result of which the complainant left her house. The magistrate did not make any finding on the veracity or lack thereof of the Appellant`s defence that he was at the material time in prison custody. 26. I have on my part considered the evidence adduced against the Appellant in regard to count 1. The complainant in her evidence stated that she could not recall the date when the threats quoted in the charge sheet were uttered. Her husband PW3 stated that the threats were uttered on 28/5/2022 which evidence did not correspond with what is stated in the charge sheet that the threats were uttered on 25/5/2022. 27. The appellant produced a court ruling, D.Exh.1, which indicates that he was facing another criminal charge No.E605 of 2021 and that his bond in that case was cancelled on 6/5/2022 vide the said ruling. The Appellant also produced an application dated 1/8/2022 filed by the prosecution at the High Court, D.Exh.2, wherein they were seeking for the court to review the order by the trial court issued on 28/7/2022 reinstating the Appellant`s bond. 28. The fact that the prosecution made an application for the High Court to review the reinstatement of the Appellant`s bond suggests that the appellant had been in prison custody from 6/5/2025 until when his bond was reinstated on 28/7/2022. The Respondent herein did not produce any documents to counter the Appellant`s defence that the Appellant was not in prison custody on 25/5/2022 when he was said to have made threats to the complainant. The police officer PW4 who took over the case from the initial investigating officer when confronted with the evidence seemed to agree that the Appellant was in prison custody on the dates shown in the court proceedings. The trial court did not resolve this crucial issue before it convicted the Appellant of the offence. It would appear that the Appellant was in prison custody at the time he was charged with threatening the complainant. In view of the unresolved issue on whether or not the Appellant was in prison custody at the material time, he ought to have been given the benefit of doubt. I accordingly find that the charge in count 1 was not proved beyond reasonable doubt and the trial court ought to have acquitted the Appellant of the same. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3709/eng@2026-02-11 4

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29. As regards the charge in count 2, the Appellant was accused of obtaining a sum of Ksh.100,000/= from the complainant by falsely pretending that he was in a position to sell her a plot measuring 50 x 50 ft, a fact he knew to be false. 30. In finding the Appellant guilty of the said offence, the trial magistrate stated that the Appellant made a misrepresentation to the complainant that he had inherited the land from his father. However, that the Appellant in his evidence in court stated that he is a squatter on the land and as a squatter, he was not the owner of the land and had no capacity to sell the land. That false pretence was therefore proved. 31. The Appellant denied selling the land to the complainant as he did not receive any money from her. The issues for determination are therefore: (1) whether the Appellant sold land to the complainant, and (2) if the first issue is in the positive, whether the appellant obtained money from the complainant by false pretence. 32. On the first issue the complainant testified that the Appellant sold her a plot and she paid him Ksh.100,000/= after they entered into an agreement, P.Exh.1. That she thereafter built a house on the plot and occupied it with her family members. Later on, she wanted to extend the house when the Appellant objected. He said that the plot he had sold her was big. He and his family members started to evict her from the plot. She later moved out of the house. 33. This evidence of the complainant on the purchase of the plot was corroborated by PW2 who said that he witnessed the agreement of sale between the complainant and the appellant. That he is the one who handed over the cash of Ksh.100,000/= to the Appellant. 34. The appellant admitted to entering into the agreement of sale of the plot with the complainant but says that he did not sign the agreement because the complainant did not pay him money for the purchase of the plot. However, that he instructed his wife, DW2 and a son to sign the agreement. 35. I have perused the said agreement, P.Exh.1. The same stated that the Appellant had sold the complainant a plot measuring 30 x 50 at Maziwani/Kasimbui and that the complainant had paid him Ksh.100,000/= and that no money was owing out of the sale. The agreement indicated that the Appellant presented 3 witnesses who signed the agreement on his behalf, among them Mwaka Nyawa (the Appellant`s wife) and Abdalla Kithi Mwadzombo, the Appellant`s son. The complainant according to the agreement similarly presented 3 witnesses who signed the agreement on her behalf among them Ebrahim Katana who happens to be PW3. The agreement indicates that it was signed by a village elder and the area chief. Neither the Appellant nor the complainant signed the agreement. 36. The Appellant admitted in his evidence in court that he instructed his wife and son to sign the agreement. The agreement stated that the purchase price of Ksh.100,000/= had been paid in full and that no money was owing in regard to the sale. The Appellant admitted in cross-examination that the identity card number noted in the agreement belongs to him. He further admitted that he knew that the plot was sold in his name. How then could he claim that he had not been paid the money when the agreement stated that the purchase price had been paid in full and no money was owing? How could he instruct his wife and son to sign the agreement if the purchase price had not been paid? How come that he allowed the complainant to build a house on the plot and for the complainant to occupy the house if he had not been paid the purchase price? 37. I find the contention by the Appellant that he was not paid the money is a mere denial without any figment of truth. The Appellant was paid the sum of Ksh.100,000/=. The payment was witnessed by the complainant`s witness, PW2. It appears that both the complainant and the Appellant were content https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3709/eng@2026-02-11 5

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with the agreement being signed by their agents. The law allows an agreement to be entered into by the principal`s agents. I therefore find that the Appellant sold the complainant the plot in issue and he was paid a sum of Ksh.100,000/=. 38. Having found that the Appellant sold land to the complainant and received the sum of Ksh.100,000/ =, I move to the second issue on whether the appellant obtained the money with false pretence. 38. The offence of obtaining by false pretence is established under section 313 of the Penal Code that provides as follows: “ Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanour and is liable to imprisonment for three years.” 39. 40. The above definition connotes 3 essential elements of the offence of obtaining something by false pretense. a. obtaining something capable of being stolen. b. obtained it in a false pretense and c. with intent to defraud. “False pretense” is defined in Section 3 of the penal code as follows: Any representation, made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false or does not believe to be true, is a false pretence. 41. 42. This definition connotes that in an offence of obtaining by false pretence there must be the following elements: a) A representation of fact by word, writing or conduct; b) The representation is either past or present; c) The representation must be false; and d) The person made the representation knowing it to be false or did not believe it to be true. The above definition has received adequate interpretation in case law. In Mithamo v Republic (Criminal Appeal 30 of 2018) [2022] KEHC 3147 (KLR) (23 June 2022) (Judgment) Mwongo J. cited the case of Gerald Ndoho Munjuga v R HC Criminal Appeal No. 213 of 2011 (Nyeri) where Mativo, J, quoted with approval the High Court of Botswana in Lesholo & Another v The State, which case dealt with an offence of this nature, and the court held: i. To prove the offence of obtaining by false pretence, the accused must by a false pretence, with intent to defraud, obtain something of value capable of being stolen from another person. The prosecution must prove the false pretence together with a fraudulent intention in obtaining the property of the person cheated ii. A false pretence has been held to be a representation by the accused person which to his knowledge is not true. A false pretence will constitute a false pretence when it relates to a present or past fact or facts. It is not false pretence if it is made in relation to the future event https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3709/eng@2026-02-11 6

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if it is made fraudulently. Where however the representation speaks both of a future promise and couples it with false statements of existing or past facts the representation will amount to a false pretence if the alleged existing facts are false. iii…. 43. The representation must be made with the specific purpose of getting money from the complainant which he/she would not have given had the true facts been revealed to him.” In Serpepi Sanja Siromo v Republic (2020) eKLR, Mwita J. cited the case of Edgington v Fitzmaurice (1885) 29 Ch D 459, where Bowen, L.J. observed that: “ In order to sustain his action he must first prove that there was a statement as to facts which was false; and secondly, that it was false to the knowledge of the Defendants, or that they made it not caring whether it was true or false…[L]astly, when you have proved that the statement was false, you must further shew that the plaintiff has acted upon it and has sustained damage by so doing: you must shew that the statement was either the sole cause of the plaintiff’s act, or materially contributed to his so acting.” 44. The complainant in her evidence told the court that the Appellant told her that he had inherited the land from his father. The investigating officer, PW4, produced a search certificate, P.Exh.1 that shows that the land where the subject plot is situate belongs to one Said Suleiman Said, deceased. The Appellant said that he is a squatter on the said land and that he has a case pending in court with the family of the said deceased. That he has lived on the land since 1997 and he thought that as a squatter he had a right to sell the land. 45. In my view, a squatter has no right to sell the land where he squats as he cannot pass good title to the purchaser. The appellant falsely represented to the complainant that he was the owner of the land and that he could pass good title to her when he knew that the land did not belong to him. The appellant in receiving money from the complainant when he could not pass good title to her can only mean that he intended to defraud her of her money when he sold her the land. The elements of obtaining money by false pretence were proved. The conviction in count is thus upheld. 46. The upshot is that the conviction in Count 1 is quashed and sentence thereof set aside while the conviction and sentence in count 2 is upheld. 47. If any fine was paid in respect to count 1, I order that it be refunded to the Appellant. DELIVERED, READ AND SIGNED AT GARSEN THIS 11TH DAY OF FEBRUARY, 2026. J. N. NJAGI JUDGE In the presence of: Mr. Kenga for Appellant Miss Mutua for Respondent Appellant – present virtually Court Assistant: Rahma https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3709/eng@2026-02-11 7

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