Case ID:171707

Sarah Taabu Onyango v Republic [2021] eKLR

Case Metadata

Case Number:

Criminal Appeal 78 of 2019

Parties:

Sarah Taabu Onyango v Republic

Date Delivered:

04 Feb 2021

Case Class:

Criminal

Court:

High Court at Kisumu

Case Action:

Judgment

Judge(s):

Fred Andago Ochieng

Citation:

Sarah Taabu Onyango v Republic [2021] eKLR

Case History:

[Being an appeal against the conviction of the Chief Magistrate’s Court at Kisumu (Hon. C. Yalwala PM) dated the 12th February 2020 in Kisumu CMCCRC No. 318 of 2015]

Court Division:

Criminal

County:

Kisumu

History Docket No:

CMCCRC No. 318 of 2015

History Magistrate:

Hon. C. Yalwala (PM)

History County:

Kisumu

Case Outcome:

Appeal dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

HCCRA NO. 78 OF 2019

SARAH TAABU ONYANGO.....................................APPELLANT

VERSUS

REPUBLIC................................................................RESPONDENT

[

Being an appeal against the conviction of the Chief Magistrate’s Court at Kisumu

(Hon. C. Yalwala PM) dated the 12

th

February 2020 in Kisumu CMCCRC No. 318 of 2015

]

JUDGMENT

The Appellant,

SARAH TAABU ONYANGO

, was convicted for the offences of

FORGERY

contrary to

Section 349

of the

Penal Code

and

UTTERING A FALSE DOCUMENT

contrary to

Section 353

as read with

Section 345

of the

Penal Code

.

1. For the offence of Forgery she was sentenced to a Fine of Kshs 40,000/=, or in default 12 Months Imprisonment.

2. For the offence of Uttering a False Document, the Appellant was sentenced to a Fine of Kshs 30,000/=, or in default 9 Months Imprisonment.

3. The trial court ordered that the sentences would run consecutively, if the Appellant failed to pay the fines.

4. In her Memorandum of Appeal the Appellant raised Six Grounds, which can be summarized as follows;

1) The prosecution evidence was full

of contradictions, and was not

corroborated.

2) The source of the forged affidavit

was not established.

3) The Charge Sheet was duplex, as

it contained 22 Counts.

4) The Appellant should not have been

convicted on the 2 Counts because

the trial court had already dismissed

the counts upon which the said 2

counts were dependant.

5) The Appellant was not informed, in

advance, about the evidence which

the prosecution intended to produce

at the trial.

6) The sentences were harsh in the

circumstances.

5. In respect to the offence of Forgery, the particulars of the charge were that On or about 9

th

May 2005, at an unknown place in Kenya, with intent to deceive, the Appellant forged an

AFFIDAVIT

purporting it to be the affidavit of

ISAAC WINGFIELD OKELO AGUTU

.

6. In respect to the offence of uttering a false document, the particulars were that on 21

st

September 2006, the Appellant uttered the forged Affidavit, at the High Court, Kisumu.

7. When canvassing the appeal, the Appellant submitted that the affidavit in issue was not part of the documents filed in court, in respect to the Succession Cause.

8. Secondly, the Appellant submitted that although it was proved that the affidavit was not signed by Isaac Wingfield Okelo Agutu, (deceased), there was no evidence that showed that it was the Appellant who had signed it.

9. Thirdly, the Appellant submitted that it was contrary to the requirements for a fair trial, to have charged her with 20 counts, in one charge sheet.

10. In any event, the Appellant said that it was never proved that she uttered the forged affidavit.

11. Finally, the Appellant submitted that the sentences handed down to her by the trial court, were too harsh in the circumstances.

12. At the trial the prosecution called 9 witnesses.

13.

PW6, MIDURA NDEGE

, is a Police Officer, who doubles-up as a Document Examiner. He testified that the signature on the affidavit in issue herein was not that of Isaac Wingfield Okelo Agutu.

14. He said that he did not know where the affidavit was obtained from.

15. During cross-examination,

PW6

said;

“Of the specimen signatures given to

me for examination, none were for

Sarah Taabu, the accused herein.”

16. When the accused was being cross-examined, she confirmed that the Forensic Document Examiner and the Investigating Officer did not obtain a specimen of her handwriting.

17. In my considered opinion, the nexus between the forgery and the Appellant could only have been verified through a forensic examination of her handwriting, and then comparing such handwriting to the signature on the affidavit.

18. In this case the learned trial magistrate addressed the issue thus;

“There is no way the deceased could have

and keep in his briefcase a document

forged in his name. In the premises I find

the accused person herein was the source

of the said forged affidavit. Given that

she was the source of the affidavit, and

given that this court has found, as a

matter of fact, that she did not get it

from the deceased’s briefcase, it follows

that she is the one who forged it.”

19. It is my considered opinion that the conclusion made by the trial court, (cited above) does not flow from the preceding analysis.

20. I appreciate the fact that the Appellant may have had an interest in getting an affidavit which could help her demonstrate to the court which was handling the Succession case, that she was a widow of Isaac Wingfield Okelo Agutu.

21. Since the affidavit was a forgery; and because the Appellant stood to benefit from it, those facts make her stand out as the first suspect. That is logical.

22. However, it is well settled that conviction can only be properly founded upon sound evidence. Suspicion, however strong it may be, does not constitute evidence.

23. I find that the trial court relied on logical reasoning to convict the Appellant, whereas there was no actual evidence that served to prove the case beyond any reasonable doubt.

24. As regards the offence of uttering a false document, the trial court had held as follows with regard to the other counts;

“……. I find that though the documents

referred to under counts 21 and 22 were

forged and were indeed uttered at the

Kisumu High Court registry, there is no

proof to the required standard, that the

accused person herein was part of the

forgery thereof and hence knew of the

same and/or that she is the one who

uttered the same at the High Court

registry on the material date, and not

her step son, Alfred John Onyango

Okelo (PW1).”

25. In my considered opinion, the trial court was right to have given to the Appellant, the benefit of doubt in respect to those 2 counts, because there was no proof that it is the Appellant who uttered the documents relating to the said counts.

26. I have carefully re-evaluated all the evidence on record, but I found no evidence that proved that it is the Appellant who uttered the forged affidavit at the High Court registry.

27. I have also given a close look at the forged affidavit. Unlike the other exhibits, which bear a date stamp that appears to have been embossed at the High Court registry, the affidavit bears no such stamp upon its face.

28. PW9

testified that he obtained the affidavit from the court file. However, he conceded that the affidavit did not have a

“rubber stamp of the court, as having

been filed in court. I however obtained

it from court. I don’t know why it

doesn’t have a stamp.”

29. It is curious that the one contentious document, was allegedly uttered at the High Court registry, yet it did not bear the stamp of the said court; whilst the other documents all had the requisite stamp.

30. Furthermore, there is no witness who testified that it is the Appellant who uttered the affidavit at the High Court Registry.

31. I find that the evidence on record fell short of proving that the Appellant uttered the forged affidavit.

32. In the result, there is merit in the appeal. I quash the conviction and set aside the sentences.

33. If the Appellant had paid the fines or any part thereof, she is entitled to a refund.

34. Finally, I find that if I had upheld the convictions, I would also have upheld the sentences as the same were not harsh at all.

DATED, SIGNED and DELIVERED at KISUMU This 4

th

day of February 2021

FRED A. OCHIENG

JUDGE