Republic v Wekesa (Criminal Case E753 of 2025) [2026] KEMC 566 (KLR)

parcel of land from his grandfather. He also stated that he agreed with the Accused Person that he was to take possession of the land in December 2024 after harvesting of the sugarcane that was reportedly growing on the said parcel of land at the time of executing the sale of land agreement. 6. In April 2025, he visited the parcel of land when he found out that the Accused Person had planted maize on that parcel of land. He reported the matter to the area assistant chief and Luuya Police Station leading to the Accused Person's arrest. 7. He conceded in cross-examination that the sale of land agreement he executed with the Accused Person did not state whether the land had sugarcane, at the time of its execution. He also conceded that it was a term of the said agreement that he was to take possession of the said parcel of land upon execution of the agreement. 8. He also admitted that the Accused Person owned the land he sold to him. 9. PW2 Metah Khakasa Masika corroborated PW1’s testimony that PW1 bought ¼ an acre of land from the Accused Person at a consideration of Kshs. 217,000/= which was paid in cash and through M-Pesa. 10. She also stated that PW1 was to take possession of the land after sugarcane harvesting but the Accused Person failed to give him possession of the parcel of land after sugarcane harvesting. 11. In cross-examination, she admitted that there was no mention of sugarcane growing on the parcel of land in question, at the time of executing the sale of land agreement herein. 12. PW3 Ezekiel Muriungi Nakitare is the assistant chief Chekulo Sub-Location and the Accused Person’s neighbour. His testimony was that on 13 th April 2023, he requested the area village elder, Johnface Wekesa Barasa to represent him during the execution of the sale of land agreement between PW1 and the Accused Person. 13. He later on received a complaint from PW1 that the Accused Person had planted maize on the parcel of land he had sold him thereby preventing him to take possession of the same. He referred PW1 to Luuya Police Station for further action. 14. He stated during cross-examination that the land the Accused Person sold to PW1 had sugarcane at the time of execution of the sale of land agreement herein. However, he admitted that there was no mention of sugarcane growing on the disputed parcel of land in the sale of land agreement herein.

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15. He admitted that the Accused Person’s land exists. He concluded his testimony by stating that he signed the sale of land agreement after its execution by PW1 and the Accused Person when Johnface Barasa took it to his office. 16. PW4 No. 57067 CPL Daniel Chacha of Nalondo Police Station investigated this case. He recalled that on 16th June 2025 at around 1630hrs, PC Kosgei from Luuya Police Post took the Accused Person to Nalondo Police Station accusing the Accused Person of obtaining money from the complainant by false pretences. 17. His investigations established that the complainant bought from the Accused Person 1/ of an acre of land to be hived from land parcel number E.Bukusu/S.Nalondo/1415 at a consideration of Kshs. 217,000/=. 18. He added that his investigations also revealed that the complainant was to take possession of the ¼ an acre of land the Accused Person sold to him after sugarcane harvesting but the Accused Person offered the complainant an alternative parcel of land after the sugarcane harvesting since the Accused Person had planted maize on the disputed parcel of land. 19. He produced the sale of land agreement dated 13th April 2023 and Mpesa statement for PW2’s Mpesa No. 0723714XXX for the period from 13th April 2023 to 13th April 2023 evidencing payment of Kshs. 200,572/= to the Accused Person. 20. He also stated that the complainant declined the alternative parcel of land that the Accused Person offered him and insisted on the initial agreed portion. 21. During cross-examination, he conceded that the sale of land agreement was explicit that the complainant was to take possession of the parcel of land on execution of the agreement, and that there was no mention of sugarcane growing on the parcel of land that the Accused Person sold to the complainant. Accused Person’s Case 22. When this court placed the Accused Person on his defence, he elected to give sworn testimony. He did not call witnesses. 23. The Accused Person denied committing the offence herein. He admitted that he sold ¼ an acre of his land to the complainant at a consideration of Kshs. 217,000/= as set out in the sale of land agreement on record.

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24. He added that there was no sugarcane growing on the parcel of land he sold the complainant at the time of the execution of the agreement. 25. He also stated that the complainant later informed him that he had school fees challenges, hence he wanted to sell the portion of land he had bought from him to offset the school fees. The complainant reportedly faced difficulties in finding a buyer for that parcel of land. This led the complainant to request an alternative portion of land from him. He refused to offer the complainant an alternative parcel of land, leading to this case. 26. He reiterated that he sold the complainant an existing parcel of land. He insisted that the complainant took possession of the parcel of land on execution of the sale of land agreement on record. ANALYSIS AND DETERMINATION 27. This court has carefully considered the evidence on record. This court now has to determine whether or not the Accused Person committed the offence facing him. 28. Section 313 of the Penal Code sets out the offence herein in the following terms:“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.” 29. Kamau, J in Charles Mutua Mutemi v Republic [2022] eKLR summed up the ingredients of the offence herein as follows:a) Obtaining something capable of being stolen (emphasis court). b) Obtaining the money through a false pretence. c) Obtaining the money with intention to defraud. Obtaining something capable of being stolen 30. It is common ground that the Accused Person received Kshs. 217,000/= from the complainant upon execution of the sale of land agreement on record. 31. In the circumstances, this court finds and holds that the prosecution proved beyond reasonable doubt that the Accused Person obtained Kshs. 217,000/= which is something capable of being stolen from the complainant.

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Obtaining the money through false pretence 32. The prosecution having proved to the required standards that the Accused Person received Kshs. 217,000/= from the complainant, the next hurdle the prosecution was required to surmount was to prove beyond reasonable doubt that the Accused Person made a false representation to PW1, causing PW1 to act on such a false representation. 33. This begs the question of what constitutes a false pretence. Section 312 of the Penal Code defines “false pretence” as follows:“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 added). 34. This court’s understanding of the above provision of the law is that an Accused Person is said to have made a false pretence if by his words, writing, or conduct makes a false representation or statement to another person while well aware that that representation is false. 35. The facts of this case show that the prosecution and the defence were in agreement that the land which the Accused Person offered to sell and sold to the complainant existed. 36. Their only point of departure is that the Accused Person reportedly promised to give possession of the parcel of land to the complainant upon harvesting sugarcane which was reportedly growing on the parcel of land sold but failed to do so. 37. The Accused Person on the other hand maintained that there was no sugarcane growing on the parcel of land he sold to the complainant when he sold the same to him as evidenced by the sale of land agreement on record. 38. A reading of the sale of land agreement on record shows that there is no mention of sugarcane growing on the parcel of land that the Accused Person sold to the complainant. The said agreement is explicit that the complainant was to take possession of the parcel of land upon execution of the sale of land agreement. 39. Whereas the prosecution witnesses testified that sugarcane was growing on the parcel of land at the time of execution of the agreement herein, it is trite law that a written agreement cannot be varied by oral evidence….or parole evidence…the agreement on

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record having not captured that bit, and no explanation having been offered by the complainant why that bit was not captured in the agreement, the prosecution cannot purport to rewrite the agreement on record through oral evidence. 40. In any event, even if this court had made a finding that the Accused Person had promised to give the complainant possession of the land after harvesting sugarcane, but failed to do so, the statement made by the Accused Person on giving the complainant possession of the parcel of land would have been a future representation. 41. This begs the question of whether a future representation constitutes a false representation. 42. The courts in this jurisdiction have had several occasions to answer the question above. In Stephen Ndungwa v Republic (2020) eKLR, Ong`udi J. cited the English case of Republic v Dent (1955) 2 ALL ER. 806, where it was held that; “……., we are satisfied that a long course of authorities in criminal cases has laid it down that a 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.” 43. Similarly, in Joseph Wanyonyi Wafukho v Republic (2014) eKLR, the court held that a false pretence can only apply to a past and present fact and not a future fact. 44. Lastly, Njagi, J in Guyo v Republic (Criminal Appeal E014 of 2022) [2023] KEHC 1651 (KLR), when confronted with a case where an Accused Person had promised to pay at a later date for the goats the Accused Person had bought from the complainant but failed to pay for the goats as promised, stated as follows: In the instant case, the appellant was accused of obtaining goats from the complainants by false pretence in that he promised to pay for them on a later date which he failed to do. For all intents and purposes, the promise by the appellant to pay on a later date was a future representation which did not amount to obtaining goods by false pretence. A false representation can only apply to a past or present fact and not to a future fact. In the premises there was no evidence that the appellant obtained the goats by false pretence. The trial

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magistrate erred in failing to address the issue whether the obtaining in the circumstances of the case amounted to false pretence. 45. Applying the definition of a false representation as set out in the authorities above to the facts of this case, it follows that even the Accused Person promised to give the complainant possession of the land after harvesting sugarcane but failed to do so, that future representation did not amount to false representation. 46. The foregoing inclines this court to find and hold that the prosecution failed to prove beyond reasonable doubt that the Accused Person made a false representation to the complainant which the complainant acted on to his detriment. Intention to defraud 47. The findings above have rendered the question of whether the Accused Person intended to defraud the complainant moot since an intention to defraud must be preceded by a false representation, which is not the case in this case. 48. In conclusion, this court takes the view that the dispute between the complainant and the Accused Person herein is purely a civil matter or dispute better solved through civil litigation. This is a proper case to remind the prosecution of the Court of Appeal’s remarks in Commissioner of Police and Director of Criminal Investigations Department vs. Kenya Commercial Bank and Others Nairobi Civil Appeal No. 56 of 2012 [2013] eKLR where the Court of Appeal stated: “While the law (section 193A of the Criminal Procedure Code) allows the concurrent litigation of civil and criminal proceedings arising from the same issues, and while it is the prerogative of the police to investigate crime, we reiterate that the power must be exercised responsibly, in accordance with the laws of the land and in good faith…It is not in the public interest or in the interest of administration of justice to use criminal justice process as a pawn in civil disputes. It is unconscionable and travesty of justice for the police to be involved in the settlement of what is purely dispute litigated in court… (Emphasis added) DETERMINATION 49. For the reasons set out above, the Accused Person is acquitted under section 215 of the Criminal Procedure Code for the offence of obtaining money by false pretences contrary to Section 313 of the Penal Code. Judgment read, signed and delivered in open Court at Bungoma this 29th day of April 2026

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T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Maroro for ODPP Mr. Wamalwa for Accused Person Accused Person C/A: Mr. Rioba

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