Republic v Mulongo (Criminal Case E095 of 2025) [2025] KEMC 442 (KLR)

PW1 Erick Barasa Kitukhulu testified that on 29th January 2025, the Accused Person called him to his shop in Namikhelo when the Accused Person told him that his friend Joshua wanted to sell three cows to settle hospital bills. He spoke with Joshua over the phone. Joshua told him to send money to Joyce. Joyce called him and told him to send her Kshs. 126,000/=. Joshua told him to send Joyce Kshs. 58,000/=. He sent Kshs. 55,000/= to Joyce through mobile phone number 0795703371. His friends Joel and Alfred also sent 12,000/= and Kshs. 6,000/= respectively to Joyce under his instructions. Joyce later switched off her phone. He requested the Accused Person to take him to Joyce’s home, but the Accused Person told him that he did not know Joyce’s home. The Accused Person also failed to disclose to him Joshua’s identity, leading to the Accused Person’s arrest and arraignment before this court. On cross-examination, he stated that the Accused Person was present when he spoke to Joshua. He added that the Accused Person texted him Joyce’s phone number before he sent money to Joyce. He concluded his testimony by stating that he was not aware if police officers made efforts to trace Joshua and Joyce. PW2 Joel Wesonga Wangila runs an Mpesa shop. He recalled that on 29 th January 2025, he deposited Kshs. 30,000/= in PW1’s Mpesa number 0721471604. He added that he heard PW1 speaking with another person over the phone. After that call, PW1 told him to send Kshs. 12,000/= to an Mpesa number 0795703371 registered in Joyce Cheptoo’s name. PW1 later told him that he had been defrauded Kshs. 42,000/= by Joyce. On cross-examination, he stated that the Accused Person was not present when he sent Kshs. 12,000/= to Joyce. Kitale CMC CR. No. E4944 of 2022 Page 2 of 9 Nelias Kinywa & Anor Ruling

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He produced a merchant Mpesa statement (Pexh.2) showing the Kshs. 30,000/= that he deposited in PW1’s Mpesa number 0721471604 on the date of the incident, and PW2 sending Kshs. 12,000/= to Joyce Cheptoo. He added that Joyce’ mobile phone number had been given to PW1 by the Accused Person. On cross-examination, he could not tell the owner of the number that PW1 and PW2 send money to. He conceded that the money in question was not send to the Accused Person’s mobile phone number but Joyce Cheptoo’s number. He also admitted that he did not produce the phone data/message logs and call logs for the date of the incident. Prosecution’s and Defence’s Submissions After the close of the prosecution case, both the prosecution and the Defence chose to rely on the evidence on record. They thereafter urged this court to determine whether the prosecution had established a prima-facie case against the Accused Person. ANALYSIS AND DETERMINATION This court has duly considered the evidence on record. This court now proceeds to answer the question of whether the prosecution has established a prima-facie case against the Accused Person. The term prima facie is defined by the Black’s Law Dictionary 18th edition as: ” A case sufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it makes later be proved to be untrue.” The duty of this court at this stage and what constitutes a prima – facie case was well set out in Ronald Nyaga Kiura vs. Republic [2018] eKLR as follows: Kitale CMC CR. No. E4944 of 2022 Page 3 of 9 Nelias Kinywa & Anor Ruling

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“It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case of RAMANLAL BHAT -VS- REPUBLIC [1957] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.” (Emphasis added) It is abundantly clear from the authorities above that the duty of this court at this stage is to determine whether the prosecution has led sufficient evidence to convict the Accused Person for the offence of conspiracy to defraud if the Accused Person chooses to keep quiet in his defence. Section 317 of the Penal Code defines the offence of conspiracy to defraud in the following terms: “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.” The ingredients of the offence of conspiracy to defraud set out above were restated by Ngenye Macharia J in Rebecca Mwikali Nabutola, Duncan Muriuki Kaaguru & Ongong’a Achieng v Republic (Criminal Appeal 232 of 2012) [2016] KEHC 7776 (KLR), as follows:- Kitale CMC CR. No. E4944 of 2022 Page 4 of 9 Nelias Kinywa & Anor Ruling

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The Black’s Law Dictionary 9th Edition at page 351 defines conspiracy as: “An agreement by two or more persons to commit an unlawful act coupled with an intent to achieve the agreement’s motive, and (in most states), action or conduct that furthers the agreement; a combination for an unlawful purpose.” In Archibold’s Criminal Pleadings, Evidence and Practice 2010 (Sweet & Maxwell), at pages 3025 and 3026, it is 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... The agreement may be proved in the usual way or by proving circumstances from which the jury may presume it….Proof of the existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them.” On what constitutes conspiracy, the Court of Appeal in Kisorio alias George Jack Tobias v Republic (Criminal Appeal 109 of 2020) [2023] KECA 335 (KLR) stated thus:In the case Christopher Wafula Makokha v Republic [2014] eKLR the court had this to say on what constitutes the offence of conspiracy. “In Archibold: Writing on Criminal Pleadings, Evidence and Practice (supra), the learned writers observe at pages 2589 and 2590 that: “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 Proof of the existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them.” Kitale CMC CR. No. E4944 of 2022 Page 5 of 9 Nelias Kinywa & Anor Ruling

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The foregoing demonstrates that the first hurdle for the prosecution to overcome in a conspiracy to defraud case is proving the existence of an agreement between two or more individuals to commit the unlawful act of defrauding another person. This position can be gleaned from the Halsbury’s Laws of England Vol. 25 Criminal Law at para. 73: ‘It is not enough that two or more persons pursued the same unlawful object at the same place or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other.’ (Emphasis added) The offence of conspiracy denotes the existence of a common intention between two or more people to defraud another person. Section 21 of the Penal Code defines common intention as follows:‘When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.” It is given that the agreement to execute the unlawful act need not be in writing or express. The said agreement can be implied from the circumstances of a particular case. This court now proceeds to determine the question of whether the prosecution has at this stage demonstrated the existence of an agreement, whether express or implied, between the Accused Person, Joshua, and Joyce to defraud PW1. In a bid to prove a conspiracy between the Accused Person and other people (Joshua and Joyce) not before this court to defraud PW1, the prosecution sought to rely on PW1 and PW2’s oral evidence. Kitale CMC CR. No. E4944 of 2022 Page 6 of 9 Nelias Kinywa & Anor Ruling

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PW1 testified that the Accused Person linked him to Joshua and Joyce, who offered to sell him three cows at Kshs. 72,000/=. He sent the money for the purchase of the cows to Joyce Cheptoo, only for Joyce to switch off her phone. He added that the Accused Person failed to disclose Joshua’s identity. The evidence on record shows that only PW1 was privy to his alleged conversation with the Accused Person that resulted in the Accused Person allegedly linking him to Joshua and Joyce who defrauded him Kshs. 72,000/=. PW2’s evidence to corroborate PW1’s evidence on the alleged conspiracy between the Accused Person, Joyce, and Joshua was of little evidential value since the same was largely hearsay evidence. In the absence of another person having been privy to the conversation between PW1 and the Accused Person regarding the transaction in question and the alleged conspiracy, this was a proper case for the investigating officer to place before this court phone data; call log, messages data, or message screenshots, to show that indeed on the date of the incident there was communication between the Accused Person, PW1, Joshua and Joyce regarding the transaction leading to the charge facing the Accused Person. The investigating officer also ought to have taken steps to trace Joyce Cheptoo or unravel the identity of the owner or the person in possession of the number registered in the Joyce Cheptoo’s name. Had the investigating officer pursued that line of investigation, he could have obtained crucial or critical evidence to prove or disprove the case of conspiracy against the Accused Person. Conspiracy to defraud is not one of those offences that can be proved beyond reasonable doubt by the oral testimony of a single witness, as the prosecution sought to do in this case. The foregoing shows that critical evidence to prove conspiracy or common intention, or an agreement between the Accused Person, Joyce, and Joshua to defraud PW1 was not placed before this court. Kitale CMC CR. No. E4944 of 2022 Page 7 of 9 Nelias Kinywa & Anor Ruling

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The absence of the critical evidence alluded to above shows that the prosecution was urging this court to place the Accused Person on his defence based on suspicion. The place of suspicion in criminal litigation in this jurisdiction was set out in Joan Chebichi Sawe -V- Republic , where the Court of Appeal stated that, “Suspicion, no matter how strong cannot justify a conviction. To justify an inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt”. Refer to Republic V – Kipleng arap Koskei & Another (1949) EACA 135. The evidence on record is barely adequate for this court to rely on suspicion to place the Accused Person on his defence. The absence of the critical evidence creates doubt in the mind of this court on whether the Accused Person conspired with Joshua and Joyce to defraud PW1. That reasonable doubt must be resolved in favour of the Accused Person. If this court places the Accused Person on his defence based on the evidence on record, that will be tantamount to urging the Accused Person to fill in the gaps in the prosecution case in a bid to prove to his innocence. Even if this court was to place the Accused Person on his defence based on the evidence on record, this court can not convict the Accused Person if he chooses to remain silent. Therefore, placing the Accused Person on his defence will be an academic exercise. This court declines to engage in such a worthless endeavor. Be that as it may, this court sympathizes with the complainant. He was possibly defrauded of his Kshs. 72,000/=. He possibly had a good case against the Accused Person. However, the evidence on record shows that the complainant has suffered the consequence of casual or bungled investigations. There is nothing much this court can do other than sympathize with the complainant. DETERMINATION Kitale CMC CR. No. E4944 of 2022 Page 8 of 9 Nelias Kinywa & Anor Ruling

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The upshot of the foregoing is that the Accused Person is acquitted under section 210 of the Penal Code for the offence of conspiracy to defraud contrary to section 317 of the Penal Code. The Accused Person is set at liberty unless otherwise lawfully held. It is so ordered. Ruling read, signed and delivered in open Court at Bungoma this 06th day of October 2025 T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Accused Person Ms. Achieng for ODPP Mr. Onkangi for the Accused Person C/A: Mr. Rioba Kitale CMC CR. No. E4944 of 2022 Page 9 of 9 Nelias Kinywa & Anor Ruling

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