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

stopped picking his calls and that they ultimately reported the matter to the police. He clarified that Kshs.90,000/- was paid by PW2, his mother and that he paid Kshs.2,000/- from his account. He produced into evidence M-pesa statements showing the transactions which were marked as exhibit 1. In cross examination, PW1 denied that the accused performed the task he was given and insisted that the payment was for a different job and not for the home that PW1 is building. PW2-ELIZABETH WAMBUI testified that she lives in Nairobi where she is a business lady and has a housing project. It was her testimony that Kenya power had delayed in installing tokens and that is when her son, PW1 indicated that he would engage the accused and that the accused indicated that each token would cost Kshs.8,000/- and each would cost Kshs.1,000/- for each certificate and that he she sent the sum on 20/3/2024 through the accused’s pay bill. And that an additional Kshs.2,000/- was sent through his son to facilitate the process. Her testimony was that after a week the accused did not respond and the matter was reported to Marima police station and that she recorded her statement. In cross-examination PW2 indicated that the accuse dis not familiar to her and that it is her son who delegated the work to him and she confirmed that she was aware of the work the ORIGINAL accused did in PW1’s house but that what she sent was for her project and not that of her son’s and confirmed that the accused has never installed anything in the Nairobi property. PW3 MAUREEN NKIROTE testified that she is the wife to PW1 and reiterated the statement of PW1 as to the work done on the house they are currently building as well as the task given to the accused for the project in Nairobi. PW4 PC COLLINS MURITHI testified that he is stationed at Marima police post and that on 2/04/2024 a report was made as against the accused for obtaining money falsely which was for the purpose of installing tokens. Which was a total of Kshs.92,000/-. He testified that the took a photograph of the property in Nairobi and that he had previously been reported over the same issue but never charged. DEFENCE CASE DW1, the accused testified that he is an electrical technician and indicated that the testimonies by the prosecution witnesses were untrue. It was his testimony that he was tasked by Oliver (PW1) to install electricity at their house in Kereani and upon assessment of the site 2

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he gave him a quotation and he was tasked with offering the service which he did in phases. On the second phase he did the piping on the 1st floor and completed the same and in the third phase, he installed lightening arrestors and that he was paid kshs.92,000/- and that Pw1 confirmed the work that was done. He denied ever being tasked with work in Nairobi and hat in order for him to begin any work, he first has to check the site, give a quotation, the begin the work and before he starts he ought to first contact the contractor and that none of this happened. It was his testimony that he received payment and confirmed receipt of the same and that he started the work from in February of 2024 and concluded around June or July of 2024. In cross-examination, he testified that he knew PW1 as he had previously worked for him but that he did not know PW2 and that he installed the first token in 2023 and finished his job in June or July 2024. It was his testimony that he gets the token meters from Kenya power and that his role is to ensure the same happens and that the payment was for the installation of one meter and that the cost for the materials was about Kshs.76,000/-. He testified that he was alone during the installation. Issue for determination ORIGINAL Whether the prosecution has proved its case according to the stipulated standard in law The Penal Code defines “false pretence” under Section 312 of the Penal Code to be:“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.” (emphasis court). Section 313 of the Penal Code which provides that:“Any person who by 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 misdemeanor and is liable to imprisonment for three years.” As to the ingredients of the offence, this Court relies on the determination in the case of Gerald Ndoho Munjuga vs Republic [2016]eKLR where Mativo J cited the case of Dr Edwin U. Onwudiwe vs Federal Republic of Nigeria where it was held that for an offence of false pretence to be proved, the prosecution had to demonstrate that there was pretence, the 3

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pretence emanated from the accused person, that it was false, that the accused person knew it was false or did not believe in its truth, that there was an intention to defraud, that the thing was something that was capable of being stolen and that the accused person induced the owner to transfer his whole interest in the property. From the above definition, it is evident that false pretences consist of the following: i. A representation of fact by word, writing or conduct; ii. The representation must be past or present; iii. The representation must be false; and iv. The person making the representation should have made it knowing it to be false or did not believe it to be true. Though money is obviously something that is capable of being stolen, it is not the receipt of money that constitutes the offence. What establishes the offence is the taking of money or anything capable of being stolen with an intention to defraud. So what demonstrates intention to defraud? My take is that intention to defraud is found in the alleged false pretence if proved. The offence of obtaining by false pretence means knowingly obtaining another person's ORIGINAL property by means of a misrepresentation of fact with intent to defraud. For the offence of obtaining by false pretences to be committed, the prosecution must prove that the accused had an intention to defraud and the thing is capable of being stolen. An inducement on the part of an accused to make his victim part with a thing capable of being stolen or to make his victim deliver a thing capable of being stolen will expose the accused to imprisonment for the offence. For a representation to be false, it must be of a past or present fact. To this end, Court places reliance on the determination in Joseph Wanyonyi Wafukho V Republic, Bungoma CR.A No. 200 of 2021 [2014] eKLR .Court further relies on the case of Mathlida Akinyi Oware V Republic, [1989] eKLR where it cited with approval the holding of Devlin, J in the case of R. V. Dent, [1975] 2 All E.R. 806 and held that to constitute a false pretence, the false statement must be of an existing fact. The court went further to adopt the sentiments of Devlin J in the above case wherein he stated as follows at page 808: “... a long course of authorities in criminal cases has laid down that statement of intention about future conduct, whether or not it be a statement of existing fact, is not such a statement as will amount to a false pretence in criminal law…” 4

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The court also agrees with the holding of Law, J.A. in the case of Abdallah V Republic, [1970] E.A. 657 to the effect that: “a representation as to a future event cannot support a charge of obtaining money by false pretences.” The prosecution through PW1 and PW2 were able to prove that the subject involved money which was sent. The same was not denied by accused and it is property capable of being taken. However, the other element was that such money was obtained with the intention to defraud and on false pretence. According to the facts presented before this court, the accused was and still is involved in the service industry of installing tokens and the same was admitted by PW 1 who indicated that he has previously contracted the accused to install electricity at his home. Therefore, the question remains as to what false representation the accused made. To this Court such question must be answered by the prosecution. In my view, evidence proving that the accused failed to honour his part of the bargain though important, did not per se amount to proof that the representation made by the accused was ORIGINAL false or that he made it knowing it to be false or had reason to believe the same to be untrue. It did not come out clearly that the accused obtained the money in question with an intention to defraud which is a critical element to the offence. Further, the service was not to be offered at the time money changed hands but in a week’s time which was a future date. In arriving at this, the Court refers to the statement by PW1 and PW2 and therefore as per the facts, it is clear that the accused’s representation related to a future event which as demonstrated earlier, cannot support a charge of obtaining by false pretences. Notably, these facts may ably support a civil claim but as they are cannot sustain the offence before this court for determination to the required standard. Lastly, in my analysis, I note that the agreement was informal and based on previous transactions between PW1 and the accused over the same service, it is not clear what purpose the money he received was for which according to the accused was payment for a different project which he did for PW1 and that he had no information about the project in Nairobi and had never visited that site. To this Court, such burden to prove that the payment was not for the earlier work he was contracted for fell on the prosecution as it is not for the accused to prove his innocence. 5

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The Court hereby finds that the defence tendered by the accused was not an afterthought as he brought up the issue of the previous project during cross-examination of the prosecution witnesses and it did rebut the ingredients of obtaining by false pretences and obtaining with the intention to defraud. To this Court the mere production of a photograph of a site in Nairobi did not prove the element of the offence. Court to this end relies on the determination in the cases of Kenneth Njiru v Republic[2021]eKLR and Mukungu v Republic(Criminal Appeal E007 of 2023)[2024] I find that the said offence was also not proved to the required standard and in all the elements thereof. I thus acquit the accused under section 215 of the Criminal Procedure Code. Delivered, dated and signed at Chuka by Hon. Tracy Wachira (RM) this 20th day of January 2025. In the presence of Prosecutor-Collins Malinda Accused in person ORIGINAL Lindah Makena-Court Assistant 6

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