Republic v Kibaara alias Gilbert Majau Mwithai & 2 others (Criminal Case E083 of 2024) [2026] KEMC 512 (KLR)

PW1 LEAH GACERI testified that in January 2023 she received a call from one Gichungi a friend who introduced her to one Eliphas Mugendi who would help her daughter secure a job at Kenya Breweries and she confirmed with Mr. Mugendi who confirmed there was a position and she was directed to send her daughter’s contact information as well as her documents and that Mr. Mugendi confirmed receipt of the same and asked for Kshs.500/- to print the documents which she sent and receipt was noted. It was her testimony that her daughter was asked to send her documents to the 2 nd accused who introduced herself as the Deputy Human resource person and she was later asked to resend the documents and asked to send Kshs.5,000/- to facilitate the same on 30/01/2023 and that the panel consisted of 11 persons and each was to get Kshs.2,000/- and that Kshs.11,000/- was sent through her daughter’s number She testified that she alter sent Kshs.50,000/- to Accused 2 which she sent through her and on 21/02/2023. That Accused 2 introduced her to Accused 3 and her number was shared as 0796060865 to her daughter’s line and that she on 2/02/2023 sent Kshs.20,000/- and later on 4/02/2023 sent Kshs.25,000/- through her daughter’s line. She outlined the various other payments she made and that the promise was that her daughter would earn Kshs.500,000/- a month and that she was asked to send more money to the headquarter and she further sent sums and thereafter all lines were switched off. It was her ORIGINAL testimony that she only met Gichungi and that she only met the accused persons when the case began in court. In cross-examination, the witness confirmed that she had never seen the accused before and that she had not met Miriam either before the incident and that she had sent money to Miriam and that it was the 3rd accused who asked for money in exchange for the job. She indicated that the voice over the phone belonged to the 3rd accused but that during pre-trial she had indicated she owed a portion of the amount claimed. In re-examination, she indicated that the 2nd accused introduced her to the 3rd accused and that the 2 accused person admitted the claim and that they were using other names to con people. It was her position that there was a time Accused 2 withdrew money from her own account. PW1 further testified that she lives in Kemocha where she is a farmer and that she sought to withdraw the case as against the two accused persons as they had started making payments. PW2 AGNES KATHONGO testified that she lives in Iruma village and that she runs a shop with an m-pesa shop called Mbakazi Enterprise Agent under agent number 14269 and store number 240872 and that the m-pesa has been operational since 2019 and that she understood 2

page 2 of 10

that for one to deposit or withdraw, the original ID must be presented and should align with the line registered. It was her testimony that in March 2023, a customer would regularly go with her original ID and that her name was Miriam Mwangi and that this is the name that would show and that she would withdraw money from both Safaricom and Airtel and she pointed to the accused. She testified that money was withdrawn on 20/03/2023, 22/03/2023, 21/03/2023 and 23/03/2023. She produced an M-pesa statement in support. She testified that the 3rd accused was known to her as Miriam who said she lives in Kirubia and that she had seen her before. It was her testimony that on 1/02/2024 she was called by DCI officers, Maara where she recorded a statement on transactions by the 3 rd accused who indicated that the person who was withdrawing the sums was not Miriam an that the 3 rd accused was using an ID that did not belong to her. In cross-examination, she testified that she knew the 3 rd accused since she started withdrawing money at her shop which was in march 2023 and that she had only seen the 3 rd accused before that date on one occasion and she did not know if her husband knew the 3 rd accused. She testified that she knew the 3rd accused as a customer but not since 2015. She testified that she does not know the 3 rd accused’s real name and indicated that in her statement she confirmed knowing a brother to the 3rd accused who is brown in complexion ORIGINAL who identified himself as the 3rd accused’s brother but that she did not know his name. She indicated that the 3rd accused would bring an ID to withdraw money but that she did not take a photograph of the ID. She confirmed that on Airtel money transactions the network usually sends the message ‘Give cash and a name thereafter’ and that there was no airtel money. She testified that she would confirm whenever the 3rd accused would withdraw and that she can only connect the 3rd accused to Miriam as that is what the ID read and that the 3 rd accused would come personally to withdraw and that she once came with a man she identified as her brother. She indicated that she did not have any CCTV footage and that she did not take any photographs . PW3 LINDA MWENDE testified that she lives in Chogoria and is a student in Nyahururu and that PW1 is her mother and that on 30/01/2023 she got a phone call from her mother briefing her that she would receive a call about a job opportunity at Kenya Breweries and that she sent her Curriculum vitae. And that she was directed to someone known to hold the title Assistant Human Resource, one Susan Wairimu and that she requested for Kshs.2,000/- and that she was requested to send more money and they later realized there was no job and that in February and March of that year, she was still asking for money She indicated that the 3

page 3 of 10

number used was 0113056867 and the name displayed was Susan Wairimu and that some payments were made through her personal line and others from her mother’s line. She testified that she went to Nairobi to meet one of the accused’s bosses and one Francis gave her an offer letter when they met at Garden City Mall which she signed and gave the said Francis her documents and later on Francis began to ask for money and that her and her mother were asked to wait at a hotel in Nairobi to officiate the getting of the job and were to wait at a hotel near EABL and that they released more money but were stood up and returned. It was her testimony that later on, Susan went silent but later Miriam took over who was introduced as an administrator but that she never talked to Miriam although her mother said that she sent money to Miriam. In cross-examination, PW3 testified that she was called by Mugendi and Susan on 30/01/2023 and that no one called Miriam called her. She indicated that she verified that there was an existing job and EABL was hiring and she made an application but that she did not go to Kisumu to verify that the Human Resource person was the same person and that she lost money to the 1st and 2nd accused person and that she believed that the panel sat and verified but that she was not briefed whether Winfred was in the panel. She indicated that she sent money to Susan and met Francis alone andORIGINAL that Winfred was not there. She further indicated that she did not have a copy of the letter and that she never interacted with Miriam and that she doesn’t know Winfred and Miriam. PW4 CI Kiprono Too number 237456 testified that he is currently stationed at DCI office in NYANDARUA county and that he was the investigating officer in this case. It was his testimony that on 21/07/2023, they received a report from Leah Gacheri that some people had called her purporting to be employees of Kenya Breweries willing to facilitate the employment of her daughter Linda Mwende and that she exchanged contacts with Eliphas Kibara who was introduced to her by one Gichembe who is now deceased and that they were later introduced to others namely Susan Wairimu. It was the witness’s testimony that Eliphas was given Linda’s contact information and required Kshs.500/- which was sent via m-pesa and connected them to Susan Wairimu who identified herself as human resource at the Breweries at the Kisumu branch and demanded Kshs.5,000/- to facilitate and that this sum was sent by Linda and the name registered in receipt was belonging to Susan Wairimu who they later established to be Susyline Kinanu. In testimony, he testified that they filed an application Chuka Miscellaneous application number E052 of 2023 to commence investigations into the phone numbers used to receive the 4

page 4 of 10

funds and arrested Eliphas on 18/01/2024 Upon search, they established that he had some mobile phones and Safaricom lines registered under other names other than his and on further inquiry, he led them to one Susyline Kinanu and at Nkubu who upon being arrested led them to the 3rd accused who was before Court one Winfred Gacheri. The mobile phones that received funds were : 0113056867 registered to ID number 29179243 under Susan Wairimu 0796060865 registered under ID 36388439 under holder Miriam Mwangi 011395598 registered under ID 7461191 under Humphrey Thambu 0710673600 under ID24037320 held by Eliphas Kibara 0723762570 under ID 10059876 under Francis Njagi Ndwiga. He testified that the accused persons were brought to Court and charged and that the 3 rd accused informed us her name is Winfred Gacheri but was carrying herself out as Miriam Mwangi who received a total of kshs.113,000/- and that she was introduced to the complainant through Eliphas who shared Susan’s number who introduced the complainant to Francis Ndwiga and later Miriam who was said to be an employee of Kenya Breweries. ORIGINAL He confirmed the ID registered to Miriam Mwangi was 36388439 and that he had obtained records form the Ministry of Interior who shows the ID holder and a photograph of the owner and that the same does not correspond to the accused before court. He noted that they were unable to obtain phone conversations from Safaricom but were able to access m-pesa records. In cross-examination, the IO reiterated that the offence occurred on various dates and that 4 officers arrested the accused herein. It was his testimony that they had the IDS and that the arrest was done later in January 2024 and that the accused was connected and that they did not recover the line on her at the time of arrest because a long period of time had since passed since the offence. It was his position that the co-accused identified her as one of them and that the person who attended to her at the m-pesa shop identified her and that she may have disposed the line and admitted that the complainant never met the accused but that they connected her to the offence through the place where she withdrew the money. In re-examination, he testified that Gilbert, Humphrey and Francis could not be traced and that they suspected the numbers were registered to defraud and obtain money illegally and that the 3 were the only people they were able to bring before court. 5

page 5 of 10

DEFENCE CASE DW1, the accused testified that she hails from Rukindu Sub-locaiton and is a casual labourer and that the testimony of the prosecution witnesses were false. She testified that she does not know the complainant or her daughter and that the complainant and PW2 admitted to not knowing her. Further that PW2 admitted that she did not send money to her. She testified that she was not Miriam and that the m-pesa agent indicated it was Miriam who withdrew money. She testified that she was arrested by 4 (four) officers and the Investigating officer was not there. She indicated that she was arrested while pursuing a child maintenance case in Nkubu and was taken in a DCI car to Chogoria police station and recorded her statement there and that the IO indicated that she would regret being on the wrong side of the father of her child and produced her children case documentation. Issue for determination 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:ORIGINAL “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 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 6

page 6 of 10

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 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 ORIGINAL 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…” 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: 7

page 7 of 10

“a representation as to a future event cannot support a charge of obtaining money by false pretences.” ANALYSIS In this case, the said representation was made in conduct as was highlighted during the oral testimonies of the prosecution witnesses. The first element succeeds. The second element is as to whether the representation was false. To this Court it was the testimony of the prosecution witnesses that the representation that the 3rd accused was an employee of Kenya Breweries was false. The accused herself admitted to not being a staff at Kenya Breweries. As to whether the said representation was one that was present or in the past. This ingredient leads the Court to determine whether the job existed at the time of the offence? The Court notes that it was not supplied with any proof that the job at the time of this offence was existing and had been published. To this Court an extract from the website would have sufficed to prove the same. ORIGINAL Notably, PW2 did not provide the Court with the offer letter she signed with one of the persons named to have had a meeting with her in Nairobi over the job opportunity to further corroborate that there was an existing job offer at the time and as to its authenticity. Therefore, the existence of the job at the time of the offence has not been satisfactorily proved by the prosecution. The last ingredient to the offence is as to whether the 3rd accused made the representation knowing that it was true. To determine this, the Court must first look into whether it was the accused who made such representation, a fact that is contested. The shop attendant/m-pesa agent indicated that it was the 3rd accused that visited her shop severally and made the withdrawals. However, she was unable to indicate why she released the money allegedly to the 3rd accused without first ensuring it was her through the identity card she presented. The Court notes the witness stated that she was well trained in operating the business and that she required an ID for transactions which was produced. She admitted that the ID was not belonging to the 3 rd accused but could not prove that the 3 rd accused visited her shop on those dates to withdraw sums using someone else’s national identity card. 8

page 8 of 10

To this Court, the m-pesa agent could not place the 3 rd accused at her m-pesa shop without a doubt. There was no CCTV footage to ascertain that it was her who made the withdrawals. Notably, if what the m-pesa agent indicated was true, which is that she released money to someone who did not adequately satisfy herself as the proper holder of the identity card registered under the number making the withdrawal, then the same impeaches her credibility. Moving to whether the investigating body was able to link the 3rd accused to the offence, the Court notes that the investigating body sought for information from the Ministry of Interior and Co-ordination of National Administration as to the identity card numbers listed in their letter of 13/02/2024 to which a response was made dated 14/03/2024 listing the identification reports. To this end, the court notes the image provided listed under Miriam Wamoyo Mwangi is not the 3rd accused before this Court. The Court notes this was brought out in cross-examination as well as in defence. Court also notes that the communication from the Ministry did not list or flag that the said Miriam Mwangi had made an application for replacement of her identity card or a report to authorities that she had misplaced her identity card. The Court notes the investigating body ought to have brought the holder of the Identity card 703612349 to explain ORIGINAL to them or to the Court whether her identity card (which is said to have been used at the m- pesa shop regularly during the diverse dates listed in the charge sheet) was stolen, misplaced and what efforts she had made to follow up on the same. To this Court, this ought to have been part of their investigation into the commission of this offence. Court also notes there was no further analysis as to the signatures the 3 rd accused allegedly affixed at the m-pesa agent shop, the one provided by the Ministry as belonging to one Miriam and one belonging to the 3rd accused to confirm from a forensic expert as to who appended a signature on the withdrawal m-pesa register on the dates the transactions were made and if nay forgeries were done. Therefore, in closing, I find that this element of the said offence was not proved to the required standard and in all the elements thereof which is beyond reasonable doubt. I thus acquit the 3rd accused under section 215 of the Criminal Procedure Code. Delivered, dated and signed at Chuka by Hon. Tracy Wachira (RM) this 25th day of March 2026. 9

page 9 of 10

In the presence of Prosecutor-Collins Malinda Accused in person Eric Mwenda-Court Assistant ORIGINAL 10

page 10 of 10