David Ochoo Ajwang’ v Republic

by false pretense while there was instinctively no sufficient evidence to sustain the particular offense. 3. That the learned Trial Magistrate erred in law in failing to find that the essential ingredients for the offense of Obtaining by false pretense under section 313 of the Penal Code were not proved and that the particular charge before the court could not be upheld. 4. That the learned Trial Magistrate erred in law in failing to find that the glaring discrepancies in the evidence tendered by the prosecution was incapable of sustaining the offense of obtaining by false pretense as per the charge. 5. That the learned Trial Magistrate erred in law by convicting the Appellant on the basis of prosecution evidence that was of no relevance and or probative value in respect of the particular charge against the Appellant. 6. That the learned Trial Magistrate erred in law in convicting the Appellant for the offense of obtaining by false pretense where evidently there were clear indications that the Complainant was dishonest in his entire testimony. 7. That the learned Trial Magistrate erred in law in convicting the Appellant whereas there was evidence tendered clearly indicating that the Appellant had not committed the alleged offense of Obtaining by false pretense. 8. That the learned Trial Magistrate erred in law in failing to find that there was neither sufficient, proper nor HCCRA E087 OF 2024 2

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conclusive evidence to sustain an offense of obtaining by false pretense. 9. That the learned Trial Magistrate erred in law in misdirecting herself, thereby arriving at the wrong conclusions, conviction and sentence. 10. That the learned Trial Magistrate erred in law and fact in deliberately failing to consider and/or ignoring the disparity of the amount in the charge sheet and the testimony of the Complainant thereby acting with bias and prejudice against the Appellant. 11. That the Trial Magistrate erred in law by either failing and or neglecting to reasonably consider the averments and submissions of the defense because had she done so she would have concluded and come to the finding that the Appellant was not guilty of the against the particular offence before the court. 12. That the sentence passed/meted appellant by the learned trial court was manifestly draconian, excessively punitive and unfairly oppressive. Reasons wherefore the petitioner prayed that his petition be allowed, conviction quashed and sentence set aside. The prosecution’s case was supported by four (4) witnesses who testified as follows: PW1 Isaiah Oningo Odongo testified that on 5/11/2021 he sold his parcel of land to one Joash Obilo which measured 0.53 Ha and was situated in Ogwedhi Rabuor in Migori for a sum of Kshs. 300,000. He stated that during that time, his wife had left him and had taken everything including the Title Deed and he was sickly and alone and that his neighbors used to call his family to assist him. He testified that HCCRA E087 OF 2024 3

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he called his brother the Appellant herein to help him and the Appellant advised him that he should sell the land and use the money to purchase a different land at home in Kendu Bay. It was his testimony that he located a buyer and summoned the Appellant who came accompanied by one Christopher Orach Nyarero while the buyer came accompanied with one Otis Obilo, Henry Obilo, Alphas Odongo Odira and his sister Mary Aoko. That they approached Mudei Advocate in Migori and the Buyer Obilo paid Kshs. 200,000 and that they gave the money to the Appellant in presence of the witnesses to buy land for the Complainant. He stated that the Appellant and Christopher Orach went to Karachuonyo and the Appellant gave him a mabati house and promised to buy him land. That he reported the issue to the Chief of Karachuonyo that the Appellant failed to buy the land and when he inquired from the Appellant about the land, the Appellant threatened him not to ask otherwise he would cut him to pieces. PW1 stated that he reported the issue to Kendu Bay Police Station and he was referred to Migori. That he moved out of the Appellant’s home and he reported the matter to Migori Police Station vide OB No. 30/29/11/2022. He stated that the Appellant further threatened him and he again reported the matter at Kendu Bay Police Station vide OB 23/21/2/2023. PW1 identified the Sale of land Agreement dated 5/11/2021 marked MFI-1. On cross-examination he reiterated that the Appellant received the money and that the Sale Agreement was Kshs. 6,000 and the buyer was to pay the Advocate. He stated that his wife Caroline Atieno left him and he was not aware of any land bought by the Appellant nor aware that his wife was staying in a land that was to be bought near the Appellant’s home. He stated that the Appellant had threatened him HCCRA E087 OF 2024 4

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and never bought the land he promised to buy. He also stated that he lived with his younger wife. PW2 Henry Obilo testified that on 5/11/2021 he witnessed the sale of land by one Isaiah to Joash Akula Obilo. He stated that the Appellant was present and that he asked the Complainant to go and live with him in Homa Bay as the Complainant was weak so that they could look after him. That the Appellant had found land for the Complainant to relocate in and they agreed that the Appellant was going to purchase land and build a house for Isaiah. He stated that the Complainant handed the money to the Appellant and that the Complainant later went to Homa Bay. PW2 stated that he was called by a police officer to record a statement four (4) months later. He then identified the Sale Agreement MFI 1. On cross-examination he stated that the buyer paid Kshs. 6,000 for the sale agreement and that the money was handed over to the seller. He stated that they never gave him lunch and that Isaiah went with his brother and sister. PW3 Mary Aoko testified that she lived in Osingo and that both the Complainant and the Appellant were her brothers. That on 5/11/2021 she witnessed when Isaiah was selling his land. She stated that the Complainant sold his land so that he could move to Karachuonyo to live with his brother in Homa Bay. She stated that the Appellant was given the money to go and buy land for the Complainant who was sick. She then identified the Appellant in the dock and also identified the Sale Agreement MFI-1. On cross-examination she stated that the land was sold for Kshs. 300,000 and that Kshs. 200,000 was paid on that day. She stated that the Complainant gave her Kshs. 2,000 to purchase him soap and that HCCRA E087 OF 2024 5

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another person was also given Kshs. 2,000 and that they were also given lunch. She stated that the money was handed over to the Appellant who gave Isaiah Kshs. 2,000 to give them and that Kshs. 15,000 was placed aside to process the title. She stated that she was unsure of the amount of money the Appellant remained with and that they parted ways after having lunch at a certain hotel. She also stated that the Appellant never bought the Complainant land as agreed and that instead he bought iron sheets and built for the Complainant in a small portion of his own land. PW4 PC Rionakal Wesley the Investigating Officer attached at Migori Police Station testified that on 29/11/2022 the matter was reported to him vide OB No. 30/29/11/2022 and the OCS minuted the case to him. He stated that the Complainant reported that in 2021 he fell sick while residing at Rabuora area Suna East and his wife and children left him at home. That the Complainant decided to move to Kendu Bay and stay with his elder brother who is the Appellant. That they discussed with the Appellant and agreed that the Complainant to sell his parcel of land in Rabuora area and relocate to Kendu Bay to be close to his brother who could monitor him. That on 5/11/2021 the Complainant sold his parcel of land Suna East/Area “B” Kwa/2195 which was approximately 0.94 Hectares to Joash Obilo for Kshs. 300,000 and the Complainant received Kshs. 200,000 which he handed to the Appellant to buy him land at Kendu Bay area. That after the Complainant recovered, he inquired from the Appellant about the parcel of land that was to be bought for him but the latter responded by telling him not to ask about the land and chased him. PW4 stated that he later recorded witness statements and the Appellant was arrested at Kendu Bay where they went to collect him. PW4 produced the land Agreement HCCRA E087 OF 2024 6

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dated 5/11/2021 for the parcel of land Suna East/Area “B” Kwa/2194 as PEX. 1 and identified the Appellant in the dock. On cross-examination PW4 stated that the Complainant and the Appellant were brothers and that the Sale Agreement was dated 5/11/2021 and the Complainant reported the matter on 29/11/2022 which was one year later. He stated that the Complainant’s wife went to the station before the Appellant took plea and informed the Appellant that she lived at Oruba area. He also stated that he did not visit the Appellant’s home and that he was told that the Appellant built a house for the Complainant on his land but the Complainant denied the same and said the house belonged to the Appellant and his family. The Appellant was placed on his defense and he called three (3) witnesses to support his defense. The Appellant testified that on 5/11/ he travelled to Migori at the invitation of the Complainant who wanted to sell his land in Migori and relocate to Homa Bay where he stayed. He stated that the transaction was done at an Advocate’s office and since the Complainant’s wife had run away with the title deed, the Advocate said that Kshs. 15,000 would be deducted to process the title deed. He stated that they witnessed Kshs. 185,000 given to the Complainant and went for lunch thereafter where the Complainant gave each of them Kshs. 2,000 and he was left with Kshs. 175,000. He stated that the Complainant told them that he wanted to see some friends at Rabuor and later went to Homa Bay accompanied by another woman whom he introduced as his wife. DW1 stated that he gave the Complainant and his alleged wife a house to stay and said that the Complainant was a drunkard. That after receiving complaints that the Complainant was misusing the money HCCRA E087 OF 2024 7

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from sale of land, he chased away the alleged wife and donated land to the Complainant and forced him to buy building materials. He stated that they built a home for the Appellant and his first wife went back and still visited the home but worked in Migori. He stated that he did not know the whereabouts of the Complainant who left with his new wife who warned him that he would make sure that he lost his job. On cross-examination the Appellant stated that he never received Kshs. 200,000. He said that he donated land to his brother and did not transfer the title and he told the said brother to buy building materials during a family meeting. DW2 Christopher Odhiambo Nyarero testified that he was a casual laborer and that on 5/11/2021 he witnessed the sale of land at Kshs. 300,000 and he signed the agreement Ex P1. He stated that he was with the Appellant and Mary Aoko and that Kshs. 200,000 was handed over to the Complainant and Kshs. 15,000 deducted from the same to process the title deed. He stated that they went for lunch and the Complainant gave them Kshs. 2,000 each for lunch and they were 5 people. He stated that it was not true that the Complainant gave the Appellant Kshs. 200,000 and that the Complainant went back to the place he used to stay and said goodbye to his friends. He stated that the Complainant went to Homa Bay with another lady who used to drink and that he informed the Appellant that the Complainant was misusing the money and the Appellant went back home and traced the first wife so that he could build them a home. DW3 Caroline Atieno Adongo testified that she lived in Migori and worked as a house help. She stated that they had disagreed with the Complainant who was her husband over the sale of land and she left with the title deed. That the Complainant demolished their house and she reported the matter to the Chief. She stated further that she did HCCRA E087 OF 2024 8

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not know that the Complainant sold the land and that the Appellant gave the Complainant land to build a house and the Complainant bought building materials. On cross-examination DW3 testified that she was absent during the sale of land and that she did not know the purchase price. She stated that the Complainant told her that he bought building materials for her to construct the house and that he was with the Appellant at the time. This appeal was canvased by way of Written Submissions. The Appellant’s written submissions are dated 2nd April 2025 and were filed on 14th April 2025. The said submissions have narrowed the 12 grounds in the petition of appeal to 2 grounds as follows: 1. Whether the Case was proved beyond any reasonable doubt 2. Whether the Trial Magistrate erred by ordering the Appellant to pay Ksh. 175,000 to the Complainant and in default to serve two years in prison. On whether the Case was proved beyond any reasonable doubt, it was submitted that the prosecution’s case was unsafe for conviction. That PW1 testified that he sold the parcel of land at a consideration of Kshs. 300,000 and stated that Kshs. 200,000 had been paid to him by the purchaser and the balance would be remitted on a later date. That he stated in his testimony that he handed the entire amount to the Appellant. That from his testimony, the Appellant obtained a total of Kshs. 200,000. That however from the evidence on record and from the prosecution witness testimonies, the Complainant was dishonest in his entire testimony. The Counsel submitted that PW3 testified on crossexamination that out of the Kshs. 200,000 various amounts were HCCRA E087 OF 2024 9

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deducted and used by the Seller PW1 to procure the processing of the Title Deed and to procure various personal items and even buy lunch for the witnesses. That PW1 also testified that he had no single cent when he went to sign the Agreement for sale in question. It was thus submitted that the allegation that PW1 handed over the total amount of Kshs. 200,000/= to the Appellant was false. It was submitted that there was disparity between the amount stated in the charge sheet and the evidence of the prosecution witnesses upon being cross-examined. It was also submitted that it was questionable how the Honorable Magistrate arrived at the sum of Kshs. 175,000 whereas the Complainant and his witnesses claimed that Kshs. 200,000 was handed over to the Appellant. It was thus submitted that there were gaps and inconsistencies in the prosecution’s evidence which was not sufficient to secure a conviction in the circumstances and the court was urged to find that the case against the Appellant was not proved to the required standards in law which is that of beyond reasonable doubt. On whether the Trial Magistrate erred by ordering the Appellant to pay Kshs. 175,000 to the Complainant and in default to serve two years in prison, it was submitted that the sentence meted against the Appellant was unfair considering the facts and circumstances of the case. That in as much as sentencing was at the court’s discretion, the sentence herein was founded based on misrepresentation of material facts. That it was as a result of the doubts that led the Learned Magistrate to arrive at Kshs. 175,000 instead of Kshs. 200,000 as laid out by the prosecution. In conclusion this court was urged to quash the conviction and set aside the sentence meted against the Appellant. HCCRA E087 OF 2024 10

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The Respondent Counsel filed submissions dated 28 th April 2025 and submitted that the elements of the offence of obtaining money by false pretence contrary to Section 313 of the Penal Code have been outlined in the Nigerian Supreme Court in the case of Dr. Edwin U. Onwudiwe vs Federal Republic of Nigeria SC 41/2003 where the court stated as follows: “In order to succeed in a charge of obtaining by false pretence, the prosecution must prove: a) that there is a pretence, b) that the pretence emanated from the accused person, c) that it is false, d) that the accused person knew of its falsity or did not believe in its truth, e) that there was an intention to defraud, f) that the thing is capable of being stolen. g) that the accused person induced the owner to transfer his whole interest in the property.” The Respondent Counsel submitted that in this instant case the was a witness to land sale agreement as shown in Ex P1 and he told the Complainant to relocate to Homa Bay County where he had found for him land to buy as he was sickly. PW2 confirmed that it is the Appellant who implored his brother PW1 to relocate to Homa Bay where he could care for him as he was sickly. PW3 also testified that 4 months after the Appellant had been given money to buy land, he failed to do so. It was submitted that from the testimonies of the prosecution witnesses it is clear that the Appellant took advantage of the HCCRA E087 OF 2024 11

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Complainant’s condition and obtained Kshs. 200,000 and yet he had no intention of purchasing land for him. On whether sentence was excessive, the Respondent cited the holding in Bernard Kimani Gacheru Vs Republic [2002] eKLR where it was held that sentence is a matter that rests in the discretion of the trial court and depends on the facts of each case. The Respondent’s Counsel submitted that the sentence imposed was appropriate and not excessive. The court was urged to dismiss the appeal as it lacked merit. Analysis and Determination In a first appeal, the duty of the court was stated in Mark Oiruri Mose vs. R (2013) eKLR thus; “…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.” Having considered the grounds of Appeal, and revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are: 1. Whether or not the Prosecution proved its case beyond reasonable doubt; and HCCRA E087 OF 2024 12

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2. Whether or not in the circumstances of this case, the fine and or sentence that was meted upon the Appellant by the Trial Court was lawful and/ or warranted. On whether the Prosecution proved its case beyond reasonable doubt, Section 313 of the Penal Code provides that: “Any person who by false pretense 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 misdemeanor and is liable to imprisonment for three years.” The High Court at Kibera in Mutemi v Republic (Criminal Appeal 28 of 2023) [2024] KEHC 3548 (KLR) (15 April 2024) (Judgment) stated that: “The prosecution is required to establish that the appellant obtained something capable of being stolen; obtained it through a false pretense; and with the intention to defraud.” In the present appeal, it was the prosecution's case that the Appellant was given money by the Complainant after he promised to buy land for the Complainant and build him a house close to him in Kendu Bay so that it could be easy to look after him as he was sick. PW1 and PW2 confirmed that the money from the piece of land that was sold was given to the Appellant and PW3 clarified that from the said sum of Kshs. 200,000, Kshs. 15,000 was set aside for processing the title deed and Kshs. 2,000 given to the witnesses for lunch money and that the Appellant remained with the rest of the money. HCCRA E087 OF 2024 13

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The Appellant also confirmed that Kshs. 15,000 was left with the advocate to process title deed and even knew that the Complainant’s money that was left after the lunch was Kshs. 175,000. Similarly, DW2 confirmed that Kshs. 15,000 was deducted from the Kshs. 200,000 to process a title deed and that the Complainant gave Kshs. 2,000 to each of the 5 witnesses that were present. It is therefore not in dispute that out of the Kshs. 200,000 from the sale, the Complainant’s money that was left was Kshs. 175,000. What is in disputed is whether the Complainant handed the money over to the Appellant. The Appellant denied that the money was handed over to him by the Complainant but in cross examination of the Complainant by the Appellant’s counsel, the Complainant clarified that he said the money be given to the Appellant. The Appellant also stated in his defense that he received complaints that the Complainant was misusing the money he had from the sale of land and that the Complainant was a drunkard and he donated land to the complainant and forced him to buy building materials. Upon perusal of the trial court’s records, the Appellant never raised the issues regarding complainant’s alleged drinking during cross examination of the Complainant and neither did his Counsel question about the same and the issues raised in his defense can only be construed as an afterthought. In consideration of the fact that PW3 who is the sister to both the Appellant and the Complainant stated that the Appellant was given the money from the sale of the land, and in consideration of the prosecution’s evidence and the evidence of the defense witnesses who confirmed the amount of money that was left from the sale of land as Kshs. 175,000, this Court finds that there is no reason why PW2 and PW3 could have lied that the Appellant was given proceeds of the sale HCCRA E087 OF 2024 14

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of land to enable him buy a piece of land in Kendu-Bay for the Complainant if it was not true. The money received was therefore something capable of being stolen. The second ingredient for determination was whether the money was obtained by false pretenses and with the intention to defraud. From the Trial Court’s record, the prosecution evidence was that the Appellant informed the Complainant that he would buy him land and build him a house so that he could relocate to Kendu Bay which was closer to the Appellant so that he could be taken care of. The evidence that the Appellant received money from the Complainant is corroborated by the evidence of PW2 Henry Obilo who was the buyer’s witness and PW3 who is the sister to both the Appellant and the Complainant and were present when the money was handed over to the Appellant on behalf of the Complainant and the Appellant promised to purchase land and build a house for the Complainant who was sick at that time. On the intention of the funds, the Appellant promised to buy the Complainant land and build him a house so that he could relocate to Kendu Bay. However, when the Complainant went to the Appellant four months later, he stated that he was settled in a “mabati” house and when he questioned the Appellant about the land that was to be bought, the Appellant threatened to kill him and shut him off. PW3 also confirmed that the land that the Appellant promised to buy was not bought and neither was a house built for the Complainant. Instead, the Complainant was settled on a small portion of land in a house built of iron sheets on the Appellant’s land. From the foregoing it is clear that the Appellant had the intention to defraud the Complainant. The elements necessary to be proved to sustain a conviction for the offence of obtaining by false pretenses as held in the case of Dr. HCCRA E087 OF 2024 15

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Edwin U. Onwudiwe vs Federal Republic of Nigeria SC 41/2003 by the Nigerian Supreme Court have therefore been satisfied by the prosecution. Weighing the prosecution’s evidence against the Appellant’s defense, grounds of appeal and submissions, this court find that the same lacked reasonableness and failed to counter the compelling evidence presented by the prosecution. The Appellant asserted that he merely witnessed the sale of land and signed the sale agreement and denied that the money was handed over to him but there was evidence corroborating the complaint by the Complainant that he defrauded him of the proceeds of the sale of his land. He also alleged that he was informed that the Complainant was wasting money from the sale of the land when he arrived at Kendu Bay and stated that he had to force the Complainant to buy building materials and allocated him land for building upon which house was built and the Complainant’s first wife even returned home. However, a perusal of the records show that he never raised the above issues when his Counsel was cross-examining the prosecution witnesses and neither did he ask the said issue of the Complainant’s drunkenness nor the issue of donating him land to forcefully settle. The Trial Magistrate also noted that the defense case did not seem genuine at all and that there was no evidence of malice on the part of the prosecution witnesses PW2 and 3. She observed that the Appellant was merely shifting blame where none existed and that the evidence of the prosecution witnesses was steadfast even on cross-examination and stated that their evidence was more reliable. Moreover, in his written submissions the Appellant’s counsel only submitted on the difference in the money recorded in the Charge sheet and the Money awarded by the Trial Magistrate and proceeded to use that as a ground HCCRA E087 OF 2024 16

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to challenge the credibility of the prosecution’s evidence. Considering the evidence presented, this court also finds that the Appellant's defense is highly improbable and challenging to accept. On whether or not in the circumstances of this case, the fine and or sentence that was meted upon the Appellant by the Trial Court was lawful and/ or warranted, the Trial Magistrate stated that she had considered the amount indicated in the charge sheet which was Kshs. 200,000 and noted that as per the evidence of the witnesses in court, some amount of money was utilized to process another title deed of Kshs. 15,000 and that Kshs. 2,000 was given to some witnesses to buy lunch leaving a balance of Kshs. 175,000 which the Appellant also indicated in his evidence as the money that remained. The Trial Magistrate also explained that the Amount of Kshs. 200,000 indicated in the Charge sheet and the money remaining of Kshs. 175,000 had a negligible difference which did not render the charge sheet defective particularly since the former was also the amount indicated in the Sale Agreement PEX 1. With that she proceeded to convict the Appellant and sentence him to pay his cash bail deposit of Kshs. 175,000 to the Complainant as compensation in default to serve two years in prison. In the proceedings, the Trial Court took note of and subtracted all the money that was spent by the Complainant on the said date of sale and only considered the exact amount that the Appellant said was left after the Complainant paid for the title deed and bought lunch for the witnesses. This Court finds that the sentence was not only legal but also justified. In conclusion this court finds that the appeal lacks merit and the same is dismissed. Right of Appeal 14 days. HCCRA E087 OF 2024 17

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DATED, SIGNED AND DELIVERED AT MIGORI THIS 19th DAY OF MARCH, 2026. HON. ANNE ADWERA- ONG’INJO JUDGE In the Presence of: Victor – Court Assistant HCCRA E087 OF 2024 18

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