Republic v Shanzui alias Harrison Beti Anangwe alias Amo

5. She handed over her phone to that man who entered a phone number and an identication card number as well as the amount to be deposited. She entered her M-Pesa phone PIN when she noticed that she had deposited the money to a phone number registered in Miriam Osome’s name. She tried cancelling the transaction without success. The two men then ed on a motorcycle. 6. She reported the matter to the police, leading to the Accused Person’s arrest since the Accused Person withdrew her money sent to Miriam Osome’s phone number on the date of the incident. She added that the Accused Person did not visit her shop on the date of the incident. She came to know the Accused Person at Nalondo Police Station after his arrest. 7. PW2 Tobias Oridhi Masinde is the complainant’s wife. He recalled that PW1 called her on the date of the incident and informed her that she had been conned by Mike and another person at her M-Pesa. He proceeded to the scene and conrmed as much. 8. He further stated that the Accused Person was later arrested in Mumias after withdrawing the money PW1 was conned of at Mayan M-Pesa shop. 9. PW3 Faith Mari Matanga is the proprietor of Mayian Double M Communication M-Pesa shop in Ekero. She identied the Accused Person as her M-Pesa shop customer. 10. She received a call on 17th April 2025 at around 1400hrs from her sister (PW4), who was serving as her M-Pesa shop attendant then, who informed her that the Accused Person wanted to withdraw Kshs. 104,000/= from his M-Pesa account, but the M-Pesa shop oat was Kshs. 40,000/=. He told PW4 to give the Accused Person Kshs. 40,000/= with an understanding that the Accused Person would go back for the balance of Kshs. 64,000/=. 11. The Accused Person was given the Kshs. 40,000/= by PW4, then went back for the balance of Kshs. 64,000/=, which the Accused Person deposited in Michael Obonyo’s M-Pesa account. 12. She added that DCI ocers later visited her shop and told her that the money the Accused Person had withdrawn from her shop had been stolen from Bungoma. 13. In cross-examination, she stated that Amo was the Accused Person’s nickname. 14. PW4 Mercy Florence Matanga testied that on 17th April 2025 at around 1400hrs while manning PW3’s M-Pesa shop, the Accused Person visited the said shop and withdrew Kshs. 104,000/=. She gave the Accused Person Kshs. 40,000/= then told him to go back for the balance of Kshs. 64,000/=. 15. The Accused Person went back to the shop later that day and deposited the balance of Kshs. 64,000/ = in Michael Obonyo’s M-Pesa account. She added that Michael and the Accused Person are friends and their frequent customers. 16. She added in cross-examination that the Accused Person withdrew Kshs. 104,000/= from the M-Pesa after presenting to her an identication card bearing the name Harrison Anangwe. 17. PW5 No. 25XXX PC Andrew Luyali of Nalondo Police Station investigated this case. His investigations revealed that Kshs. 111,305/=, which PW1 was conned on the date of the incident, was sent to Miriam Janira Osome’s phone number 0748562XXX. The said Miriam then sent Kshs. 105,000/=to the Accused Person’s phone number 0757338XXX which the Accused Person withdrew at Mayian Communications Double M Investment M-Pesa shop in Ekero. 18. He proceeded to Ekero where PW3 and PW4 conrmed that the Accused Person had withdrawn Kshs. 104,000/= from their M-Pesa shop. PW3 and PW4 also identied the Accused Person at Ekero market, leading to his arrest. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/861/eng@2026-09-02 2

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19. He added that the Accused Person alleged during his arrest that he did not have an identity card. The Accused Person introduced himself as Humphrey Shanzui. He produced PW1’s M-Pesa shop’s statement, the Accused Person’s M-Pesa statement, Michael Obonyo’s M-Pesa statement, and the Mayian M-Pesa shop’s statement as well as a court order dated 22nd April 2025 as exhibits. Defence Case 20. Upon the close of the prosecution’s case, this court placed the Accused Person on his defence. The Accused Person elected to give sworn evidence and call two witnesses in his defence. Consequently, this matter was xed for defence hearing on 10th November 2025. 21. The Accused Person did not attend court on 10th November 2025 when warrants of arrest were issued against him. The defence counsel, Mr. Shikhu, attended court on 26th November 2025 when he informed this court that he had lost contact with the Accused Person. This court then issued warrants of arrest against the Accused Person and summons against the Accused Person’s surety. 22. The Accused Person and his surety were never traced despite PW5’s eorts. This prompted the prosecution to move this court on 26th August 2026 for orders that this matter proceed to conclusion in the absence of the Accused Person since the Accused Person had willfully made his attendance untenable. 23. This court allowed the prosecution’s application to proceed with this case in the absence of the Accused Person since Article 50(2)(f) of the Constitution permits a criminal matter to proceed in the absence of an Accused Person where an Accused Person willfully makes their attendance untenable, regardless of the gravity of the oence facing such an Accused Person. The path taken by this court to conclude this matter in the absence of the Accused Person who has willfully made his attendance untenable nds support from Republic v Galma Abagaro Shano [2017] eKLR, where the learned Judge held that; “ This court has in a detailed manner determined and ruled that this trial would proceed in the absence of the accused who has waived his right to a fair trial in regard to being present during the trial by absconding and removing himself from the jurisdiction of this court… This court took the view that Section 206 (1) of the Criminal Procedure Code is inconsistent with Article 50 (2) (f) of the Constitution in so far as it allows the court to proceed with the hearing of a case against an accused person who fails to turn up in court in cases where the accused is charged with a misdemeanor and not a felony…It was my view that where an accused person, irrespective of the charge he/she is facing, absconds, then he has waived his/ her right to be present when being tried and the court therefore can proceed to hear and conclude the trial in his/her absence and even convict and sentence him…” 24. The holding in the Galma Abagaro Shano case (supra) was also followed in Republic v Teteror (Criminal Case 2 of 2017) [2023] KEHC 18592 (KLR) and Bett v Republic (Criminal Revision E605 of 2023) [2024] KEHC 3560 (KLR). Analysis and Determination 25. This court has given due regard to the evidence on record. The only issue for determination is whether the prosecution has proved its case against the Accused Person beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/861/eng@2026-09-02 3

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26. Section 394 of the Penal Code sets out the oence herein in the following terms: Any person who conspires with another to commit a misdemeanour, or to do any act in any part of the world which if done in Kenya would be a misdemeanour, and which is an oence under the laws in force in the place where it is proposed to be done, is guilty of a misdemeanour. 27. This court’s reading of the authority above is that the prosecution will be deemed to have proved the oence herein against the Accused Person if they adduce evidence to prove beyond reasonable doubt that the Accused Person conspired with other people to commit a misdemeanour, namely obtaining by false pretence. 28. To start with, the Black’s Law Dictionary 9th Edition at page 351 denes 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.” 29. The Halsbury’s Laws of England Vol. 25 Criminal Law at para. 73 explains conspiracy as follows: ‘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 eect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other.’ (Emphasis added) 30. The Court of Appeal in Kisorio alias George Jack Tobias v Republic (Criminal Appeal 109 of 2020) [2023] KECA 335 (KLR) stated thus on what constitutes the oence of conspiracy:In the case Christopher Wafula Makokha v Republic [2014] eKLR the court had this to say on what constitutes the oence of conspiracy. “In Archibold: Writing on Criminal Pleadings, Evidence and Practice (supra), the learned writers observe at pages 2589 and 2590 that: “The oence 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.”(Emphasis added) 31. The common thread running through the authorities above is that conspiracy is proved beyond reasonable doubt where the evidence adduced by the prosecution proves beyond reasonable doubt that there existed an agreement between the Accused Person and another person(s) to pursue a particular unlawful purpose. In short, there must be evidence of a common intention by the Accused Person and other person(s) to pursue an unlawful purpose. 32. The evidence adduced by the prosecution shows that two men visited the complainant’s M-Pesa shop on the date of the incident and tricked her into depositing Kshs. 111,305/= to Miriam Janira Osore’s M-Pesa account number 0748562XXX. The said Miriam later transferred the said money to the Accused Person’s phone number 0757338XXX only for the Accused Person to withdraw Kshs. 104,000/= and shared the money with Michael Obonyo. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/861/eng@2026-09-02 4

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33. PW1 admitted that he did not see the Accused Person at her M-Pesa shop on the date of the incident. It is also given that there is no direct evidence on record showing that the Accused Person communicated with the two people who visited PW1’s M-Pesa shop on the date of the incident on how to execute their unlawful act. 34. This begs the question of whether in the absence of direct evidence of a meeting of the minds between the Accused Person and the two people who visited the complainant’s M-Pesa shop on the date of the incident, the Accused Person can be said to have conspired with the said people to pursue the unlawful act complained of by the complainant. 35. The question above nds an answer from Kariuki v Republic [1985] KLR 504, where the Court of Appeal observed: “ The essence of the oence of conspiracy is the agreement. The agreement may be inferred from conduct, but such inference must be clear, unequivocal and irresistible.” 36. In Abdi & Another v Republic (Criminal Appeal E033 of 2020) [2024] KEHC 8021 (KLR) (Crim), the court observed that: “ …The intention of the conspirators cannot be supported by direct evidence “for not even the devil knoweth the mind of man”. Conspiracy by its nature is an opaque oence heavily guarded and clouded. It is not easy to nd direct evidence and indeed part of commission the oence is to conceal the evidence. Thus if the court were to insist on direct evidence per se, no one will be convicted of the oence. The knowledge and involvement in the oence can be inferred from the conduct of the parties with a common desire to commit a criminal oence.” 37. Kavedza J also added her voice to this issue in Njeri v Republic & 2 others (Criminal Appeal E145 of 2025) [2026] KEHC 11759 (KLR) by rendering herself thus: “ 17. The oence of conspiracy is rarely proved by direct evidence and may properly be inferred from the conduct of the parties before, during and after the transaction. In the circumstances of this case, the evidence suciently established the existence of a conspiracy to defraud.” 38. It is abundantly clear from the authorities above that even in the absence of direct evidence of conspiracy, conspiracy can be proved where evidence is adduced showing that by the parties’ or the Accused Persons’ conduct before, during and after the act complained of, there existed a common intention among those people to commit a criminal oence. 39. The oral evidence on record, when read together with the M-Pesa statements produced by PW5, points towards a well-coordinated plan by the persons who visited the complainant’s M-Pesa shop on the date of the incident and the Accused Person to have the Accused Person withdraw the money stolen from the complainant for the benet of all the people involved in the criminal enterprise herein. 40. The only way that the Accused Person would have delinked himself from the conspiracy to execute the unlawful act, evident from the circumstances of this case, was by explaining the circumstances under which he received money stolen from the complainant and thereafter withdrew the same. This does not mean that this Court has shifted the burden of proof to the Accused Person. This means that the evidence on record shifted the evidential burden to the Accused Person to adduce the evidence within https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/861/eng@2026-09-02 5

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his knowledge on the circumstances under which he received and withdrew the money stolen from the complainant as demanded of him under section 111 (1) of the Evidence Act. 41. The Accused Person absconded when this court presented to him an opportunity to explain the circumstances under which he received and withdrew money stolen from the complainant herein. 42. In the absence of the Accused Person’s explanation alluded to in paragraph 40 above, this court nds that the prosecution proved beyond reasonable doubt that the Accused Person jointly conspired with other people not before this court to steal Kshs. 111,305/= from the complainant. 43. The last limb of the oence herein is that the Accused Person jointly with others not before this court committed a misdemeanor, namely obtaining money amounting to Kshs. 111,305 from the complainant by false pretences. 44. This limb of the oence herein required the prosecution to prove beyond reasonable doubt that the Accused Person, jointly with others not before this court, committed the misdemeanor, namely obtaining by false pretence. 45. Section 313 of the Penal Code denes the oence of obtaining by false pretence thus: “ 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.” 46. The foregoing shows that the oence of obtaining by false pretence is a misdemeanor under the law. 47. Kamau, J in Charles Mutua Mutemi v Republic [2022] eKLR summed up the ingredients of the oence of obtaining by false pretence as follows:a. Obtaining something capable of being stolen b. Obtaining the money through a false pretence. c. Obtaining the money with intention to defraud. Obtaining something capable of being stolen 48. The evidence adduced before this court leaves no doubt in this court’s mind that the Accused Person, jointly with others not before court, received Kshs. 111, 305/= stolen from the complainant on the date of the incident. 49. It goes without saying that money is something capable of being stolen under the law. Therefore, the prosecution proved this limb of the oence of obtaining by false pretence beyond reasonable doubt. Obtaining the money through false pretence 50. The prosecution having proved to the required standard that the Accused Person, jointly with others not before this court, received Kshs. 111,305/= from the complainant, the next hurdle the prosecution was required to surmount was to prove beyond reasonable doubt that the Accused Person, jointly with others not before this court, made a false representation to PW1, causing PW1 to act on such a false representation. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/861/eng@2026-09-02 6

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51. This begs the question of what constitutes a false pretence. Section 312 of the Penal Code denes “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). 52. 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. 53. PW1 testied that the two people who visited her M-Pesa shop on the date of the incident caused her to part with Kshs. 111,305/= by telling her that they were depositing money in Miriam Osome’s MPesa account. She acted on this representation, which was false since the said two people ed before giving her the Kshs. 111,305/= they had caused her to transfer to Miriam Osome. 54. It is not lost to this court that the Accused Person was not present when the false representation was made by the said two people to the complainant. However, this court has already held that there was a conspiracy between the Accused Person and those people to prosecute an unlawful purpose. In the circumstances, by dint of section 20 (b) and (c) of the Penal Code, the Accused Person is deemed to have also made the false representation to the complainant on the date of the incident. 55. The foregoing inclines this court to nd and hold that the prosecution proved beyond reasonable doubt that the Accused Person made a false representation to the complainant on the date of the incident which the complainant acted on to her detriment. Intention to defraud 56. The evidence on record shows that the Accused Person, jointly with others not before this court, caused the complainant to part with Kshs. 111,305/= on the date of the incident in a fraudulent manner. The said evidence proved beyond reasonable doubt that the Accused Person, jointly with others not before this court, obtained the said money from the complainant with an intention to defraud her. 57. The foregoing analysis shows that the Accused Person also ought to have been charged with the more serious oence of obtaining by false pretence contrary to section 313 of the Penal Code. Given that the Accused Person cannot be convicted of the said oence under sections 179 and 180 of the Criminal Procedure Code, this court will let this issue rest. 58. In the penultimate, this court returns a nding that the prosecution proved its case against the Accused Person beyond reasonable doubt. Determination 59. The upshot of the foregoing is that the Accused Person is convicted under section 215 of the Criminal Procedure Code for the oence of conspiracy to commit a misdemeanor contrary to section 394 of the Penal Code. 60. The warrants of arrest against the Accused Person and the Accused Person’s surety to remain in force. 61. It is so ordered. JUDGMENT READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA, THIS 02ND DAY OF SEPTEMBER 2026 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/861/eng@2026-09-02 7

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T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Rereru for ODPP C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/861/eng@2026-09-02 8

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