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Court of AppealDismissedCriminal Appeal No. 109 of 2000

DANSON MUREU MACHARIA vs REPUBLIC [2001] KECA 332 (KLR)

Court of Appeal
2 November 2001
807 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a conviction against a man who registered his brother's land in his own name by faking a sale.

What this practically means

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Executive summary

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This Court of Appeal judgment at Nyeri, delivered by Gicheru, Owuor and Ole Keiwua, JJ.A, dismisses a second appeal against conviction for obtaining registration by false pretences contrary to section 320 of the Penal Code. The appellant, Danson Mureu Macharia, was convicted by the Principal Magistrate's Court at Muranga for procuring the registration of Land Parcel Number Location 2/Kangari/589 in his own name on 7 December 1977 by falsely pretending that he had bought it from his brother, the complainant Ngachu Macharia. The complainant had handed the appellant the title deed to charge the land as security for a loan. Neither the transfer form nor the application for Land Control Board consent bore the complainant's signature, and he had granted no power of attorney; police investigations established that a former assistant chief, John Ngugi Kihato, inserted the complainant's name in the transfer form at the appellant's request, and that the signature on the consent application was not the complainant's. The magistrate found the defence irreconcilably inconsistent on the purchase price and on whether the transaction was a sale or a gift, concluded that the inconsistencies pointed to dishonesty, convicted the appellant, but discharged him under section 35 of the Penal Code on account of his advanced years. The first appeal to the High Court at Nyeri (Juma J) failed on 3 April 2000, the judge endorsing the finding that the defence was riddled with inconsistencies. The Court of Appeal found no substance in the contention that the learned judge had failed to reassess the evidence, held the conviction proper and right, and dismissed the appeal on 2 November 2001. No order as to costs was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judge of the High Court failed to reassess the evidence on record so as to hold that the conviction was not warranted
  2. 2.Whether the appellant was properly and rightly convicted of obtaining registration by false pretences contrary to section 320 of the Penal Code

Key legal issues

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01

Whether the learned judge of the High Court failed to reassess the evidence on record so as to render the conviction unwarranted

Holding

No. The contention lacks substance; the first appellate judge did reassess the evidence and the conviction was warranted

Reasoning

The Court of Appeal noted that the first appellate judge expressly considered the magistrate's findings and independently evaluated the defence, observing that it was riddled with inconsistencies and that the purchase price was never agreed, with various prices mentioned by the witnesses. The Court of Appeal accepted that assessment, found the appellant's complaint without substance, and expressed itself satisfied that the conviction was properly and rightly entered. The concurrent findings of the two lower courts therefore stood undisturbed.

p. 2
02

Whether the appellant was properly convicted of obtaining registration by false pretences contrary to section 320 of the Penal Code

Holding

Yes. The conviction was proper and right

Reasoning

The complainant, being the only person entitled in law to sign a transfer absent a power of attorney, signed neither the transfer form nor the application for Land Control Board consent, and the signature on the consent application did not belong to him. Police investigations showed that a former assistant chief inserted the complainant's name in the transfer form at the appellant's request. The magistrate found the shifting consideration and the alternation between sale and gift pointed to dishonesty, and that the complainant never sold the land.

p. 2

Legal principles established

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  • On a second appeal, the Court of Appeal will not disturb a conviction where the first appellate court reassessed the evidence and the conviction is warranted on the record
  • A person who procures the registration of land in his own name by falsely pretending a purchase from the registered owner, where the owner signed neither the transfer nor the Land Control Board consent application, is properly convicted of obtaining registration by false pretences under section 320 of the Penal Code

Court orders

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  1. 1.Appeal dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nyeri
H.C.Cr. Appeal No. 67 of 1999
Jurisdiction invoked
Not stated in the judgment; the matter came to the Court of Appeal as a second appeal from the High Court at Nyeri

Relief refused

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Allowance of the appeal and setting aside of the conviction for obtaining registration by false pretences

The Court found no substance in the appellant's contention that the learned judge had failed to reassess the evidence, and was satisfied the conviction was proper and right

p. 2

Costs

No order as to costs was made; the judgment is silent on costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We accordingly dismiss this appeal.
p. 2Final orders - appeal dismissed
In our judgment, we find no substance in the appellant's contention that the learned judge had failed to reassess the evidence on record so as to hold that the conviction was not warranted.
p. 2Second appeal - adequacy of the first appellate court's reassessment of evidence
We are satisfied that the appellant had been properly and rightly convicted for the offence of obtaining registration by false pretences.
p. 2Conviction under section 320 of the Penal Code upheld
In any event as the learned Resident Magistrate pointed out the defence case was riddled with inconsistencies.
p. 2First appellate judge's finding on the defence case, quoted with approval
The application for consent of the Land Control Board to transfer the land had also not been signed by the complainant or any other person authorized by him.
p. 1Absence of the registered owner's signature on the Land Control Board consent application

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "DANSON MUREU MACHARIA vs REPUBLIC [2001] KECA 332 (KLR)", Case Analysis (2001). Criminal Appeal No. 109 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/332/eng@2001-11-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.