Makwata & another v Republic (Criminal Appeal E107 of 2023) [2024] KECA 1209 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that transferring a deceased person's sugar cane contract without letters of administration is a crime, even after acquittal on related land charges.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court erred in treating Counts 1 and 2 separately from Counts 3 and 4, such that acquittal on the first two counts should have led to acquittal on the last two
- 2.Whether the High Court misdirected itself in rejecting the additional evidence (letter from the County Coordinator of Civil Registration, Bungoma) tendered on first appeal regarding the impugned death certificate in Count 3
- 3.Whether the convictions and sentences on Counts 3 and 4 could stand on second appeal
Key legal issues
#Whether acquittal on Counts 1 and 2 compelled acquittal on Counts 3 and 4
No. The acquittals rested on distinct bases (a defective charge in Count 1; insufficiency of evidence in Count 2), and Counts 3 and 4 concerned legally separate subject matter
The Court held the Count 1 acquittal was technical, arising from a charge that failed to identify the document bearing the forged signature. The Count 2 acquittal reflected insufficiency of Land Control Board evidence, not a finding that the land was lawfully transferred. The cane contract was a document representing rights of economic value, legally distinct from land ownership, so its unlawful transfer remained intermeddling with the deceased's estate notwithstanding the acquittals.
Whether the High Court erred in upholding the conviction for making a document without authority (Count 3)
No. The charge was that the appellants uttered death certificate serial number 313490 without authority; questions about where copies were later presented were evidentiary red herrings raised for the first time on second appeal
The charge concerned making the document without authority, and where it was presented after uttering was merely evidence of uttering. The appellants did not contest the document's authenticity at trial; their defence vacillated between denial and affirming its genuineness. Multiple copies were presented to different authorities, and compelling circumstantial evidence showed the appellants uttered the document; they failed to explain their possession of it.
Treatment of additional evidence tendered for the first time on first appeal
The High Court rightly rejected the Bungoma civil registry letter for lack of explanation for the delay, absence of cross-examination, and inconsistency with uncontroverted evidence that the deceased died in Trans Nzoia
The first appellate judge gave three reasons for disbelieving the letter: the appellants offered no satisfactory explanation for not presenting it at trial; the information was never tested by cross-examination, so its probative value was low; and uncontroverted evidence placed the death in Trans Nzoia, outside Bungoma's registry. The Court of Appeal found no error in that assessment amenable to reversal on a second appeal limited to law.
Legal principles established
#- On a second appeal the Court of Appeal is confined to points of law and will not interfere with concurrent findings of fact unless based on no evidence
- An acquittal on one charge does not automatically entail acquittal on related but legally distinct charges; the cane contract constituted a separate legal issue from ownership of the land
- A cane contract has proprietary attributes; transferring it without letters of administration constitutes intermeddling with the estate of a deceased person
Court orders
#- 1.The appeal is dismissed
- 2.Orders accordingly (judgment dated and delivered at Kisumu on 20th September 2024)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (Kakamega)
- Not stated (appeals against convictions in Mumias Senior Principal Magistrate's Court Criminal Case No 80 of 2017)
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal confined to matters of law)
- Consolidated with
- The two separate appeals of the appellants, identical in grounds, were consolidated into this one
Relief refused
#Quashing of convictions and sentences on Counts 3 (making a document without authority) and 4 (intermeddling)
The Court discerned no error in the High Court's analysis; the counts concerned separate legal issues from Counts 1 and 2 and were proved beyond reasonable doubt
Costs
No costs order appears in the judgment
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.
The upshot, then, is that this appeal entirely fails. It is dismissed.
We are limited to consideration of matters of law only by dint of section 361 of the Criminal Procedure Code. We are confined to points of law and this court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.
A person can have rights to a cane contract without necessarily being the legal owner of the parcel on which the cane is grown.
It was an act of intermeddling with the property of the deceased for the appellants to have caused that contract to be transferred to themselves without letters of administration.
The test to be applied on second appeal is whether there was any evidence on which the trial court could reasonably find as it did.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makwata & another v Republic (Criminal Appeal E107 of 2023) [2024] KECA 1209 (KLR)", Case Analysis (2024). Criminal Appeal (not stated in judgment; second appeal from Kakamega High Court Criminal Appeal, consolidated appeals). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1209/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.