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obtaining by false pretence kenya penal code

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Introduction

The offense of obtaining by false pretence is a serious crime under Kenyan law. It is primarily governed by the Penal Code of Kenya, specifically under Section 313. This section outlines what constitutes the offense, the elements required to prove it, and the penalties associated with it. In this comprehensive answer, we will delve into the legal framework surrounding obtaining by false pretence, including definitions, elements of the offense, legal precedents, and penalties.

Legal Framework
- 1.1 Penal Code of Kenya
- 1.2 Definition of False Pretence
Elements of the Offense
- 2.1 False Representation
- 2.2 Intent to Defraud
- 2.3 Obtaining Property or Services
Legal Precedents
- 3.1 Case Law Examples
Penalties
- 4.1 Imprisonment
- 4.2 Fines
Conclusion

1. Legal Framework

1.1 Penal Code of Kenya

The primary legal provision governing the offense of obtaining by false pretence is found in the Penal Code of Kenya, specifically:

Section 313: "Any person who by any 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."

1.2 Definition of False Pretence

According to the Penal Code:

False Pretence: "A representation, whether 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."

2. Elements of the Offense

To secure a conviction for obtaining by false pretence, the prosecution must prove the following elements beyond a reasonable doubt:

2.1 False Representation

Nature of Representation: The representation can be made through words, writing, or conduct.
Falsity: The representation must be false.
Knowledge: The person making the representation must know it is false or must not believe it to be true.

2.2 Intent to Defraud

Mens Rea: The accused must have had the intent to defraud the victim. This means there must be a deliberate intention to deceive and cause a loss to the victim.

2.3 Obtaining Property or Services

Actus Reus: The accused must have obtained something capable of being stolen, or induced the victim to deliver something capable of being stolen, as a result of the false representation.

3. Legal Precedents

3.1 Case Law Examples

Several cases have been decided by Kenyan courts that provide clarity on the offense of obtaining by false pretence:

R v. Jones (1962) EA 769: This case established that the false representation must be of an existing fact and not a future event.
R v. Dent (1975) EA 574: The court held that the intent to defraud must be present at the time the false representation is made.

4. Penalties

The penalties for obtaining by false pretence are outlined in the Penal Code and can include:

4.1 Imprisonment

Maximum Sentence: The maximum sentence for obtaining by false pretence is three years imprisonment.

4.2 Fines

Discretionary Fines: In addition to imprisonment, the court may impose fines at its discretion, depending on the severity of the offense and the circumstances surrounding it.

Conclusion

Obtaining by false pretence is a well-defined offense under Kenyan law, specifically under Section 313 of the Penal Code. The offense requires proof of a false representation, intent to defraud, and the actual obtaining of property or services. Legal precedents have further clarified the elements and requirements for a conviction. The penalties for this offense can include imprisonment for up to three years and discretionary fines. Understanding these legal provisions is crucial for both legal practitioners and the general public to ensure adherence to the law and the administration of justice.