High Court 11622 of 2026

COUNT II UTTERING A FALSE DOCUMENT CONTRARY TO SECTION 353 OF THE PENAL CODE KEVIN KARIUKI NJOKI: On the 17th July, 2021 at around 1300hrs at Aga Khan University Clinic, Capitol Centre along Mombasa Road in Nairobi County with intent to defraud Aga Khan University Clinic knowingly and fraudulently presented a suspected forged document namely Prescription form dated 17th July, 2021 to Michael Otieno Sijenyi under the names of Kevin Kariuki Njoki purporting it to be a genuine document signed and issued by Dr. Kimani Gicheru a fact you knew to be false. COUNT III FORGERY CONTRARY TO SECTION 345 AS READ WITH SECTION 349 OF THE PENAL CODE KEVIN KARIUKI NJOKI: On the 17th July, 2021 at around 1300 hrs at Aga Khan University Clinic, Capitol Centre along Mombasa Road in Nairobi within the Republic of Kenya jointly with others not before Court Forged a certain document namely Jubilee Insurance Claim Form S/No. AJ 103822 dated 17th July, 2021 under the name Kevin Kariuki Njoki purporting it to be a genuine document issued by Dr. Kimani Gicheru a fact you knew to be false. COUNT IV UTTERING A FALSE DOCUMENT CONTRARY TO SECTION 353 OF THE PENAL CODE NAIROBI HC APPEAL E 188 OF 2024 – Judgment, Kelvin Kariuki Njoki. vs Republic 2

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KEVIN KARIUKI NJOKI: On the 17th July, 2021 at around 1300hrs at Aga Khan University Clinic, Capitol Centre along Mombasa Road in Nairobi County with intent to defraud Aga Khan University Clinic knowingly and fraudulently presented a suspected forged document namely Jubilee Insurance Claim Form S/No. AJ 103822 dated 17th July, 2021 to Michael Otieno Sijenyi under the names of Kevin Kariuki Njoki purporting it to be a genuine document signed and issued by Dr. Kimani Gicheru a fact you knew to be false. COUNT V ATTEMPT TO OBTAIN GOODS BY FALSE PRETENCES CONTRARY TO SECTION 389 AS READ WITH SECTION 313 OF THE PENAL CODE KEVIN KARIUKI NJOKI: On the 17th July, 2021 at around 1300 hrs at Aga Khan University Clinic, Capitol Centre along Mombasa Road in Nairobi County with intent to defraud attempted to obtain medical drugs worth Ksh 12,097/- (Twelve thousand ninety seven shillings only) from Aga Khan University Hospital Pharmacy at Capitol Centre Clinic by presenting to the Pharmacist Michael Otieno Sijenyi a forged Medical Prescription purported to have been issued by a Dr. Kimani Gicheru, a Consultant Physician and a forged Jubilee Insurance Claim Form S/No. AJ103822 a fact you knew to be false, 2. The appellant was convicted and sentenced in Count 1 and 3 to pay a fine of ksh 100,000 for each count and in default thereof to serve 1 year imprisonment. 3. The learned honorable court further in Counts 2 and 4 sentenced him to a fine of Ksh 50,000 in default to serve 1 year imprisonment. NAIROBI HC APPEAL E 188 OF 2024 – Judgment, Kelvin Kariuki Njoki. vs Republic 3

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4. In count 5 the trial court sentenced the appellant to a fine of Ksh 30,000 in default to serve 3 months imprisonment. 5. The trial court ordered that the sentences would be served consecutively. 6. The appellant dissatisfied with the decision of the trial court on the following grounds: a. The Learned Trial Magistrate erred in law and in fact in finding that the prosecution had proved its case beyond reasonable doubt as required and hence arrived at a wrong decision. b. The Learned trial Magistrate erred in law and in fact in failing to properly analyze the evidence tendered before him and hence arrived at a wrong decision, c. The Learned Trial Magistrate erred in law and in fact in failing to find that there was no evidence of forgery. uttering a fake document or any attempt to obtain goods by false pretenses tendered before him at all and hence arrived at a wrong decision d. The Learned Trial Magistrate erred in law and in fact in failing to find that the charges as framed and in particular regarding Court 2 and 4 were duplex in nature and that as such charges were defective. e. The Learned Trial Magistrate erred in law and in fact in writing a Judgement that contained no analysis of evidence tendered before the Court. f. The Learned trial Magistrate erred in law and in fact in completely disregarding the evidence of the defence hence arrived at the wrong decision. g. The Learned Trial Magistrate erred in law and in fact imposing sentences that were manifestly excessive in each count. NAIROBI HC APPEAL E 188 OF 2024 – Judgment, Kelvin Kariuki Njoki. vs Republic 4

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h. The Learned Trial Magistrate erred in law and in ordering that the sentences run consecutively. i. The Learned Trial Magistrate erred in law in depriving the Appellant the right to mitigate sentence. ISSUES FOR DETERMINATION 7. The ground of appeal present the following issues for determination by this court;a). whether the prosecution established the case against the appellant beyond a reasonable doubt. b). whether the learned honorable magistrate’s decision was supported by the evidence on record c). whether the learned honorable magistrate considered the defense tendered by the appellant d). whether the learned honorable magistrate erred in law by ordering that the sentences be served consecutively. e). whether the charges were defective . ANALYSIS AND DETERMINATION 8. The duty of this court as a first appellate court is well set out in the case of Okeno vs. Republic [1972] EA 32 where the Court of Appeal stated as follows: “An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R. (1957) EA. 570). 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 NAIROBI HC APPEAL E 188 OF 2024 – Judgment, Kelvin Kariuki Njoki. vs Republic 5

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court’s finding and conclusion; 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, see Peters vs. Sunday Post [1958] E.A 424. The first appellate court is not bound by the conclusions reached by the trial court and as such must draw its own conclusions based on the evidence and the law. 9. The burden of proof in all criminal cases rests with the prosecution through out the trial. The Court in The court in the case of Republic v Ismail Hussein Ibrahim (2018) eKLR placing reliance on the principle of burden of standard of proof and reasonable doubt in criminal cases stated that:- to give meaning to this concept of burden of proof beyond reasonable doubt in criminal cases, the federal court of the United States v Smith 267 F. 3d 1154, 1161 (D.C. Cir 2001) 9 citing In Re Winship) 370,90 (1970) the court stated: “The burden is upon the state to prove beyond reasonable doubt that the defendant is guilty of the crime charged. It is a strict and heavy burden. The evidence must overcome any reasonable doubt concerning the defendant;s guilt, but it does not mean that a defendant;s guilt must be proved beyond all possible doubt. A reasonable doubt is a fair, actual and logical doubt based upon reason and common sense. A reasonable doubt may arise either from the evidence or from a lack of evidence. Reasonable doubt exists when you are not firmly convinced of the defendant's guilt, after you weighed and considered all the evidence. A defendant must not be convicted on suspicion or speculation. It is not enough for the state to show that the defendant is probably guilty. The NAIROBI HC APPEAL E 188 OF 2024 – Judgment, Kelvin Kariuki Njoki. vs Republic 6

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proof must be so convincing that you can rely and act upon it in this matter of the highest importance. If you find there’s a reasonable doubt that the defendant is guilty of the crime, you must give the defendant the benefit of that doubt and find the defendant guilty of the crime under consideration.” 10. The prosecutions evidence must therefore be tested against the well established law on the ingredients of each of the offences that the accused /appellant was charged with. 11. The ingredients of the offences of forgery and uttering false documents are deemed to have been proved if the prosecution establishes the following;i). there is a document a document or writing. ii). The document or wring is forged iii). The forgery is by the accused person iv). The accused person knows that the document is false v). the document is to be acted upon to the detriment of the victim vi). The accused person presents the document to the person he intends to act on the document thereby completing the act of uttering. 12. The court in the case of Elizabeth Achieng Nyanya v Republic HCCRA No 123 of 2017 (Siaya) where it was stated: “The operative word here is forgery, as the word suggests the name forgery means fake i.e. not real. The Black's Law Dictionary, 9thedition defines it as the act of fraudulently making a false document or altering a real one to be used as a genuine. 33. In the Nigerian case of Alake v The State the court listed the following as the ingredients of the offence of forgery:i. That there is a document or writing; NAIROBI HC APPEAL E 188 OF 2024 – Judgment, Kelvin Kariuki Njoki. vs Republic 7

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ii. That the document or writing is forged; iii. That the forgery is by the accused person; iv. That the accused person knows that the document or writing is false; v. That he intends the forged document to be acted upon to the prejudice of the victim in the belief that it is genuine." The prosecution must therefore be shown to have satisfied the above test for the conviction by the learned honorable magistrate to be upheld and sustained. 13. On whether the ingredients set out above were established, this court has carefully analyzed and evaluated the evidence tendered by the prosecution of remembering that unlike the trial court this court did not have the advantage of seeing or hearing the witnesses testify. 14. PW1 Dr. Kimani Gicheru, a Medical Doctor practicing at Upper Hill Medical Centre testified on oath that on 17th July 2021 while he was upcountry, he received a telephone call from Aga Khan Hospital Capital Centre, requesting him to confirm whether he had issued a prescription to one Kevin Kariuki Njoki on that date. 15. He informed the caller that he had not issued any prescription explaining that the said date fell on a Saturday a day on which his clinic does not operate. He agreed with the pharmacist that the person who had presented the prescription be apprehended. He was later informed that the individual had been detained. 16. On the following day a police officer contacted him and requested that he record a statement. They met at his office where he was shown the prescription before court. He identified the Prescription Note marked as MF1 1 and the Jubilee Claim Form marked as MF1 2. NAIROBI HC APPEAL E 188 OF 2024 – Judgment, Kelvin Kariuki Njoki. vs Republic 8

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17. The witness testified that the handwriting appearing on MF1 1 was not his, that he had never seen or treated the purported patient, and that the stamp and signature appearing thereon were not his. He recorded a statement with the police and provided his known handwriting samples marked as MF1 3, specimen rubber stamp impressions marked as MF1 4, specimen handwriting marked as MF1 5, and specimen signature marked as MF1 6. He stated that the accused person seated in the dock was not known to him. 18. The evidence of Pw1 no doubt established that the documents before court were false as they were not made by him thus the must have been forged and uttered to the pharmacist as genuine with the sole intention of defrauding her or obtaining a service on account of them. The witness denied having treated the appellant thus the appellant knew that the documents he held were not genuine and his attempt to use them purporting to have originated from Pw1 was utterly deceitful. 19. PW2 Michael Otieno Sijenyi, a pharmacist at Aga Khan Hospital, Capital Centre Branch, testified that on 17th July 2021, while on duty, the accused person seated in the dock presented to him a prescription, a claim form, and an insurance card. He identified the Jubilee Insurance card marked as MF1 7. 20. Upon receiving the documents, he sanitized them and observed irregularities in the prescription, noting that it lacked a letterhead, contact details and the address of the consultant and that the stamp presented the consultant as a general practitioner. 21. He contacted his in-charge to verify the documents with the insurance company. The insurance company indicated that the patient’s condition for which medication was being sought did not appear in their database. Due NAIROBI HC APPEAL E 188 OF 2024 – Judgment, Kelvin Kariuki Njoki. vs Republic 9

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to the suspicious nature of the prescription, security officers were called and the accused, who had remained waiting at the pharmacy, was detained. An inventory of the items recovered from the accused was prepared and signed. He identified the accused in court as the person who had presented the documents. 22. The evidence of Pw2 clearly shows that the appellant was the person who uttered the documents to him thus the prosecution established the aspect of uttering adequately. 23. The evidence of Pw1 and that of Pw2 leaves no doubt that the appellant had the documents in his possession, he knew the documents to be false and presented them to Pw2 for action which would have been prejudicial to the victims. The witness Pw1 would have had his name used in a fraudulent transaction and Jubilee insurance would have lost funds. The Agakhan Hospital could as well have fallen victim of the fraud by being defrauded of medical drugs which the Jubilee insurance would have in any event not paid since the appellant was not insured by them. 24. On forgery, PW3 No. 235252 IP Vincent Chelongo, a Forensic Document Examiner, testified that on 18th August 2021 the laboratory received an exhibit memo together with various documents for examination. The questioned documents were marked A1–A2. 25. The laboratory also received specimen handwriting for Dr. Kimani Gicheru marked B1–B9 corresponding to MF1 5, specimen signatures marked C1–C2 corresponding to MF1 6, specimen rubber stamp impressions marked D1–D2 corresponding to MF1 4, and known handwriting marked E1–E2 corresponding to MF1 3. 26. Additionally, specimen handwriting for Kevin Kariuki marked F1–F2 corresponding to MF1 9, and specimen signatures marked G1–G3 NAIROBI HC APPEAL E 188 OF 2024 – Judgment, Kelvin Kariuki Njoki. vs Republic 10

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corresponding to MF1 10, were submitted. The laboratory was requested to compare the handwriting and signatures pointed out in pencil on A1–A2 with the specimen and known writings of Dr. Kimani. His opinion was that they were made by different authors. He was also requested to compare the stamp impressions marked by a red arrow on A1–A2 with D1–D2, and he concluded that they were made by different instruments. 27. Further, he compared the handwriting and signatures pointed out in blue on A2 with the specimen handwriting and signatures attributed to Kevin Kariuki and formed the opinion that they were made by the same author. He prepared his report dated 30th September 2021 and produced the Exhibit Memo marked as MF1 11 and the Document Examiner’s Report marked as MF1 12. 28. The evidence of the forensic examiner identified the appellant to be the author of the documents in issue thus the prosecution discharged the legal and evidential burden of establishing forgery in line with the provisions of Sections 107 and 108 of the Evidence Act. In the cases of Patrick Njuguna Richu v R [2018] eKLR and Joseph Wanyonyi Wafukho v R [2014] eKLR. Both cases cite the definition of forgery set out in R v Dodge and Harris (1971) 2 ALL E.R. 1523 where it was stated: “A document is false must tell a lie about itself and not about the maker. We think the position is better put, by stating that, the false document is forged if it is made to be used as genuine.’’ 29. The document examiner having examined the documents and concluded that they were not made by Pw1, the documents were thus not genuine and were mere forgeries by the appellant. The learned trial magistrate was therefore correct in arriving at a conviction for the charges of forgery and NAIROBI HC APPEAL E 188 OF 2024 – Judgment, Kelvin Kariuki Njoki. vs Republic 11

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uttering false documents. This court finds no reason to interfere with the learned honorable magistrate’s decision. 30. Turning on to attempt to obtain goods by false pretences, PW4 No. 87959 CPL Peter Enoi, attached to the Insurance Fraud Investigations Unit, testified that he was the investigating officer in the matter. 31. On 17th July 2021 he received a call from his in-charge instructing him to proceed to Aga Khan Clinic at Capital Centre where a suspect had been arrested. Upon arrival, he met the Security Manager, Elijah Mulwa, and established that the accused had attempted to collect drugs using a fake prescription. The accused had presented a prescription form in his name dated 17th July 2021 together with a duly filled claim form from Jubilee Insurance. 32. His original identification documents, namely his National ID card, Jubilee Wellness card, NHIF card, and employment card, had been confiscated. He escorted the accused to his offices and subsequently preferred charges. 33. He recorded witness statements and forwarded the questioned documents for forensic analysis. He traced Dr. Kimani Gicheru, who recorded a statement and disowned the documents that had allegedly originated from him. He collected specimen rubber stamp impressions, specimen handwriting, and specimen signatures from the doctor, as well as specimen handwriting and signatures from the accused, and submitted them for forensic examination. 34. Upon receipt of the forensic report, he proceeded to recommend that the appellant be charged with the offences he faced before the trial court. The circumstances surrounding the arrest of the appellant leave no doubt that the appellant wanted to defraud the Agakhan Hospital and had the NAIROBI HC APPEAL E 188 OF 2024 – Judgment, Kelvin Kariuki Njoki. vs Republic 12

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pharmacist not acted with diligence the appellant would have obtained the goods thus the offence of attempt to obtain goods by false pretences was proved beyond a reasonable doubt. 35. The witness identified the accused in court as the person he arrested and produced MF1 1–11 as exhibits. 36. From the totality of the prosecution evidence, it was established that on 17th July 2021 the accused presented a prescription and insurance claim documents at Aga Khan Hospital, Capital Centre, purporting them to have been issued by Dr. Kimani Gicheru. The doctor disowned the handwriting, signature, and stamp appearing on the prescription. Forensic examination confirmed that the questioned handwriting and stamp impressions attributed to the doctor were not his, while the handwriting and signatures attributed to the accused were found to have been made by the same author as the questioned entries on the prescription. 37. The appellant therefore was the author of the documents and he sought to rely on them to obtain goods. 38. The appellant in his grounds of appeal contended that his defence was not considered, this court has carefully scrutinized the same. 39. The appellant testified that he was employed as a support staff at the Kenya National Bureau of Statistics. He stated that on 17th July 2021, while travelling from Mlolongo to town, he fell ill and proceeded to Aga Khan Hospital, Capital Centre, to seek treatment. Upon arrival, he presented his insurance card and informed the medical personnel that he was feeling dizzy. He filled in a Jubilee Claim Form and was requested by the receptionist to wait due to a delay in the system. NAIROBI HC APPEAL E 188 OF 2024 – Judgment, Kelvin Kariuki Njoki. vs Republic 13

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40. He further testified that after approximately thirty minutes a colleague arrived presented his card and his details were processed without delay. His colleague was attended to and left the facility. 41. He did not understand why his own card continued to experience delay in processing. When he went to enquire about the status of his treatment, he was allegedly locked in a room by a security officer identified as Edgar Mulwa. He stated that he was taken to a private room where he was interrogated by four officers. 42. According to DW1, the officers produced a prescription for drugs, which he stated he did not know about. He maintained that he only filled in his name and appended his signature on the Jubilee Claim Form. He further testified that Edgar Mulwa brought a prescription bearing the names of drugs already written on it. He subsequently recorded a statement. 43. During cross-examination by the prosecution, DW1 confirmed that he was the one who filled the claim form. He stated that he had never had any disagreement with the prosecution witnesses and that they were not known to him, thus denying any motive for them to frame him. He acknowledged that the prescription bore his name and stated that the Investigating Officer asked him to fill a form in his own handwriting. 44. Upon re-examination, he clarified in respect of Exhibit 2 that the handwriting appearing thereon related only to his name and that he did not know who wrote the names of the drugs appearing on the prescription. 45. The defense tendered by the appellant was simply a mere denial and it could not in anyway displace the cogent, consistent and corroborative evidence adduced by the prosecution. The totality of the circumstances militated against the casting of any doubt in the prosecution’s case. NAIROBI HC APPEAL E 188 OF 2024 – Judgment, Kelvin Kariuki Njoki. vs Republic 14

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46. The appellant was equally allowed to mitigate and that the mitigation was taken into account during sentencing. The complaint therefore has no merit. 47. Lastly, the appellant claimed that there was duplicity in counts 2 and 4. This court has examined the two counts and it is the view of this court that the ground raised by the appellant has no merit. The foundation of the two counts are a prescription note and jubilee insurance form which documents are distinct and were each meant for a particular purpose by the appellant though they were used in the same transaction. 48. The view of this court is that the two documents were properly used to establish the foundation of the charges in count 2 and 4 thus the charge was not defective. The Court of Appeal gave guidance on determining whether a defect in a charge is fatal in Benard Ombuna v Republic [2019] eKLR as follows:“In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.” 49. The appellant in this case knew what he was defending thus he cannot be said to have been prejudiced in any way. 50. Having considered the totality of the evidence and respective submission by counsel this court finds that the appeal on conviction has no merit and is hereby dismissed. 51. However, regarding the issue of sentence, this court finds that there is merit in the appeal on sentence since the charges were all emanating from NAIROBI HC APPEAL E 188 OF 2024 – Judgment, Kelvin Kariuki Njoki. vs Republic 15

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the same transaction and therefore the trial court erred in law by ordering that the sentences be served consecutively. 52. It is settled law that where the offences form a series of the same transaction sentences should run concurrently. That is regarded as good practice as long as the accused is not charged with offences committed at different times, different places and involving different victims. See Peter Mbugus Kabui v Republic {2016} eKLR. 53. In the instant case the mens rea formed by the accused was to obtain goods by false pretences and that he could not achieve without resorting to forgery and uttering false documents. The trial court erred by imposing consecutive sentences in a case where the offences were committed in the same transaction. This court interferes with the same and orders that the default sentences are to be served concurrently. 54. It is ordered. DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 27TH day of FEBRUARY, 2026. A. M. MUTETI JUDGE In the presence of: Habiba: Court Assistant Njuguna for the Appellant NAIROBI HC APPEAL E 188 OF 2024 – Judgment, Kelvin Kariuki Njoki. vs Republic 16

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Mogere for the Respondent Appellant: present NAIROBI HC APPEAL E 188 OF 2024 – Judgment, Kelvin Kariuki Njoki. vs Republic 17

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