Mutemi & 2 others v Republic (Criminal Appeal 155 of 2019) [2024] KECA 85 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed three brothers' appeal, confirming their convictions for forging a land transfer and destroying their sister's property.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was sufficient evidence that the transfer form with regard to land parcel number Nzambani/Maluma 838 was forged.
- 2.Whether there was sufficient evidence that the appellants destroyed property and did so maliciously.
Key legal issues
#Whether the forgery conviction was supported by sufficient evidence
The conviction was proper: forensic evidence established dissimilar signatures, and transfer to a non-existent company (Dater Enterprises Limited) was done with intent to deceive, with the appellants as beneficiaries.
A forensic document examiner found dissimilarities between the signatures on the transfer form and power of attorney and the deceased's known signatures. Investigation confirmed that Dater Enterprises Co. Ltd existed but there was no evidence of the existence of Dater Enterprises Limited, to which the land was transferred. Causing transfer of the land to a non-existent entity was deceptive, and the appellants, as beneficiaries who used the name to notify the complainant to vacate, were properly convicted; no misdirection by the courts below.
Whether the malicious damage to property conviction was supported by sufficient evidence
The conviction was proper: possession/right of the complainant, the damage, and its wilful and unlawful character were all proved.
The complainant was put in possession by her father under an oral licence and had developed the land. Photographic evidence produced by its maker without objection, an agricultural assessment report, and police testimony established destruction of trees, a cowshed, granary, bathroom, toilet and fence. The implements used were produced in evidence. The appellants, as principal offenders who procured others, acted wilfully and unlawfully; the two courts below were not faulted.
Admissibility of photographic evidence without a certificate under Section 78 of the Evidence Act
Photographs taken by an officer who testifies as their maker and is cross-examined are admissible as primary evidence even without a certificate, particularly where no objection was raised.
Relying on the decision in State v. Nelson Otieno Odira, the Court endorsed the position that Section 78's certificate mechanism exists to admit photographic evidence without calling the maker, but an officer who took photographs may testify to their veracity and contents as primary evidence. In this case PW9 produced the images as the maker without objection and was cross-examined, curing any deficit.
Legal principles established
#- On a second appeal, the Court of Appeal's jurisdiction is limited to matters of law and it will not interfere with concurrent findings of fact by the two courts below unless those findings are based on no evidence at all or on a perversion of the evidence.
- For forgery, the prosecution need not prove who actually made the false document; proof that the accused were beneficiaries of the forgery and presented the document suffices.
- The legal onus in a criminal case rests on the prosecution throughout, to the standard of proof beyond reasonable doubt.
Court orders
#- 1.The appeal is dismissed in its entirety.
- 2.It is so ordered.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Kitui
- not stated in judgment
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal confined to matters of law)
Relief refused
#Quashing of the convictions on forgery (count 1) and malicious damage to property (count 3)
The Court found the concurrent findings of the two courts below were supported by the evidence and the law.
Costs
No costs order appears in the judgment; the disposition is simply 'It is so ordered.'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Under Section 361 of the Criminal Procedure Code the jurisdiction of this Court on second appeal such as the one before us, is limited to consideration of matters of law.
Therefore, causing a transfer of the subject land to a non-existent company was done with the intention to deceive.
It is our cardinal principle of law that in a criminal case the legal onus is always on the prosecution to prove the guilt of an accused person, and the standard of proof is beyond reasonable doubt.
In the end we are satisfied that the findings of the two courts below on both charges were arrived at based on the evidence adduced and the law applicable. Consequently, we find that there is no merit in this appeal and dismiss it in its entirety.
Issues in the judgment
#The charge and judgment variously refer to the subject parcel as Nzambani/Maluma/838 and Nzambani/Maluma 828 in the narration of PW1's evidence.
The case number of the appeal and the neutral citation are not stated anywhere in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutemi & 2 others v Republic (Criminal Appeal 155 of 2019) [2024] KECA 85 (KLR)", Case Analysis (2024). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/85/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.