C.D&E /S.T.

FORGERY
Authority: Chapter XXXIV AND XXXV CRIMINAL LAW:

The definition of Forgery is contained in section 345 of criminal law. It is

the “making of a false document with intent to defraud or to deceive”.

From the definition it can be seen that it comprises of two important

points, which in all forgery cases must be proved. These are (1) making a
false document and (2) intent either to defraud or to deceive.

Section 347 of the criminal law defines the instances when a person is
said to have made a false document. These instances are when a person: -
(a) Makes a document purporting to be what in fact it is not. E.G
‘D’ prints some chequebooks similar to those used by the
bank without authority of the bank.
(b) Alter a document without authority in such a manner that if
the alteration had been authorized, it would have altered
the effect of the document. E.G. “D” without authority
altered the amount payable on a cheque.
(c) Introduces into a document without authority whilst it is
being drawn up, matter which if it had been authorized
would have altered the effect of the document. E.G “D” is
given a signed blank cheque and enters an amount higher
than that he is authorized to enter as payable on the
cheque.
(d) Signs a document:-
i. In the name of any person without the
authority of that person whether such
name is or is not the same of that of the
person signing “D” signs G’s name on a
cheque without authority of G.
ii. In the name represented as being the name
of a different person from that of the

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 person signing it and intended to be
mistaken for the name of that person.

E.G. “D”, procures P, who is unaware of D’s

fraud to sign his own name, D intending to
pass off P’s signature as that of another
person of the same name as P.

iii. In the name of a person personated by the

person signing the document. Provided that
the effect of the instrument depends upon
the identity between the person signing
the document and the person whom he
professes to be.

E.G “D”, signs an insurance claim form

personating “G”, the legal wife and
beneficiary of “C”, the deceased. In this
case, the claim would be effected
depending on the identity of the two
women (a marriage certificate for instance
would be used).
This section does not create any offence at all. This means that
whenever a person is to be charged with forgery this section should not
be used. The proper sections to use are the punishment sections such as
sections 349, 350, 357 criminal law (See the High Court of Kenya, Philip
Joseph Wilson Mbende versus Republic Criminal Appeal No. 581 of 1970
E.A. L W reports 1971 page 553.)

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DOCUMENT.

There is no definition of document in the criminal law but it could be

constructed as having the same meaning as defined in the interpretation
and General Provisions Act, Cap 2. It is defined as “ Document includes
any publication and any matter written, expressed or described upon any
substance by means of letters, figure or marks, or by more than one of
those means, which is intended to be used or may be used for the
purpose of recording that matter.”

But as far as forgery, cases are concerned, “document” does not include
any trademark or any other sign used in connection with articles of
commerce though they may be written or printed.(sec s46 criminal law)

This means that if trademarks are forged either with intent to defraud
or deceive the offence may be dealt with under the trademarks Act and
not under forgery cases. Also see Chapter.

INTENT TO DEFRAUD OR DECEIVE.

The first thing a criminal does in a forgery case is to make a false

document. The making of a false document must be done with a specific
reason. Usually the intention of making such a false document is either to
defraud or to deceive. A part from proving that a document was false,
one has to prove either one of these two intents so as to prove forgery.

Generally speaking, an intent to defraud refers to private document and

to some extent to public document and an intent to deceive refers mainly
to public documents. Public documents are defined in section 79 of the
Kenya Evidence Act.

i. “Documents forming the acts or records of the Acts:-

ii. Of the sovereign authority; or

iii. Of official bodies and tribunals; or

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 iv. Of Public officers, legislature, judicial or executive,
whether of Kenya or of any other country; or public records
kept in Kenya of private documents.
NB
All other documents not mentioned here are therefore, private
document. It can therefore be seen that public documents are those
which the members of the public have right to see as they effect
affairs, for example, societies associations, etc.

To defraud is to deprive a person of his property by means of some

fraudulent tricks. This means that a person is made to act to his injury.

From the above explanations it can be seen that in defrauding one gains
materially while in deceiving he does not. But one should not be confused
by application of the phrase, “public document” as meaning that the
Government cannot be defrauded. It could be defrauded or made to
suffer some economic loss, as for example, where a person forges some
L.P.Os (Local Purchase Orders), thereby causing the Government pay for
goods it has not received, hence a loss of funds.

PRESUMPTION AS TO INTENT TO DEFRAUD:

Section 348 of criminal law shows that, intent to defraud is presumed to

exist if it appears that at the time when the false document was made
there was in existence a specific person ascertained or unascertained
capable of being defrauded thereby.

This means that the false document made, was to be used to deprive
another of his property because of its falsity. There must be a specific
person capable of being defrauded whether ascertained or
unascertained. This means that, if a document is forged and it is not
intended to be used to obtain anything from some person (s), then there
is no intent to defraud as a far as this definition is concerned.

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The section goes further to states “this presumption is not rebutted by
proof that the offender took or intended to take measures to prevent
such person from being defrauded in fact, nor by the fact that he had
thought he had a right to the thing to be obtained by the false document.

From this part of the section, it can be seen that it is immaterial

whether the offender took or intended to take measures to prevent the
victim from being defrauded, for example informing him of the already
forged document. It is also immaterial whether the offender had or
thought to have right of the thing obtained for example, if A and B are
partners in a business and A forges the signature of B to obtain money
from their account without B’ knowledge, then he cannot claim to have
had no intent to defraud at all.

PUNISHMENT

Punishments for forgery have been classified as follows:

General punishment for forgery.

“When charging a person who has forged any document which is not
defined in section 350,351and 352, use section 349 criminal law”

Example CHARGE:

FORGERY, CONTRARY TO SECTION 349 OF CRIMINAL LAW

PARTICULARS:

BC, on the 2nd day of July 1976 at Kibera within the Nairobi area, with
intent to defraud, forged a certain local purchase Order No. N20046
purporting it to have been written and signed by No........................................

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2. SPECIFIC PUNISHENT FOR FORGERY (SEC 350 criminal law)

This section deals with any person who forges any of the following
documents:-

A will, document of the title to land, or of any part of the title, to any
land or to any interest in or arising out of any land, or any authenticated
(certified) copy thereof, judicial record, power of attorney, bank note,
currency note, bill of exchange, promissory note or other negotiable
instrument, policy of insurance, cheque or other authority for the
payment of money by a person carrying on business as a bank.

EXAMPLE

CHARGE: FORGERY, CONTRARY TO SECTION 350 OF criminal law

PARTICULARS

BC: On the 5th day of August 1976 at Kibera within the Nairobi Area,
with intent to defraud, forged a certain will purporting to be the will of
KM.

NOTE: The difference between this section and section 349 is the type
of documents involved and the sentence which is higher in this section.
The mode of charging remains the same.

SECTION 351 criminal law

This section is applied when a person has forged any judicial or official
document.
Note that in section 350, there is judicial document. A judicial record
may refer to a document of a permanent nature like court files, registers
etc. A judicial document may refer to those documents used by courts
such as summons, warrants, release orders etc, and official document
may refer to such documents as paying vouchers, receipt books, ledgers,
certificates etc.

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EXAMPLE
CHARGE FORGERY CONTRARY TO SECTION 351 OF THECRIMINAL
LAW.

PARTICULARS

AB: On the 13th day of July, 1976, at Kikuyu Kiambu district within the
central province with intent to defraud, forged certain release order
dated...................... purporting it to have been signed by FB a district
Magistrate Nairobi.

SECTION 352 CRIMINAL LAW

This section relates to Revenue or accounting stamps, which must be used

by government departments and not otherwise. The offences created by
this section are:-

a) Forging any stamp whether impressed or adhesive.

b) Making or possession of dye or instrument capable of making the
impression of any such stamps (Knowingly).
c) Cutting, tearing or removing (fraudulently) stamp with intent to re –
use for another purpose.
d) Fraudulently Mutilating stamp with intent to use it for another
purpose.
e) Using stamps already used fraudulently.
f) Removing marks placed upon such stamps. (Fraudulently)
g) Possessing any stamp removed, cut, torn or removed for the
purpose of another use, or stamp mutilated (fraudulently) or
material from which anything has erased in order that the stamp
may be re – used.

When using this section one has to find out from the circumstances of
the case what paragraph (a, b, c, d etc) the offence committed falls.

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SECTION 353; UTTERING A FALSE DOCUMENT

Under this section any person who knowingly and fraudulently utters a
false document is guilty of an offence and is liable to the same
punishment as if he himself forged the thing in question.

A person utters a document when, knowing that the same is forged and
for fraudulent purpose (to defraud or deceive) he uses, offers, publishes,
deliver, disposes, exchanges, tenders in evidence, or puts off the said
forged document” a mere possession of forged document is not to utter
it. One of the above must be fulfilled.

FOR EXAMPLE

The offence of uttering would be completed so soon as “D” tendered the

bill, in a case of forged bill etc.

When such words as offers, publishes, delivers, tenders or puts off are
used, a forged document seems to require a transaction whereby “D” in
some way communicates the document to another. This means that even
if “D” just showed a forged document to “C” this is uttering.

When charging this offence, the words knowingly and fraudulently must
be used. Without these words the offence is not disclosed.

Example :

CHARGE: UTTERING A FALSE DOCUMENT, CONTRARY TO

SECTION 353 OFTHE CRIMINAL LAW

PARTICULARS: AB: On the 10thday of August, 1976, at Thika in Kiambu

District within the Central Province, with intent to defraud, knowingly
and fraudulently uttered a certain forged cheque leaf No. A005621 to

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KK., purporting it to be a valid and in god order for the payment of Ksh
1,000/=.

UTTERING CANCELLED/EXHAUSTED DOCUMENT.

SEC.354 OF THE CRIMINAL LAW
This section deals with uttering document as and for substing and
effectual document which has been cancelled revoked or suspended or
which is out of date.

The person uttering such a document must be doing so knowingly. As it

can be seen from the section, the offence refers to those document
which have been cancelled revoked or suspended or by any other
happening or events which cancellation etc must be lawful.
EXAMPLE :
If ‘D’ utters a distress warrant to “K” which has already been revoked by
the court (lawfull authority) then he would be charged under this section.
The punishment is the same as if “D” had forged the document.

CHARGE: UTTERING CANCELLED DOCUMENT, CONTRARY TO

SECTION 354 OF THE CRIMINAL LAW

PARTICULARS ‘AB: On the 5th day of May, 1976 at Kwire in Kisumu

District within the Nyanza province, knowingly uttered a certain distress
warrant dated 4th February, 1976 to “K” a document which had been
lawfully cancelled by the R.M’S court Kisumu.

PROCURING EXECUTION OF DOCUMENTS BY FLASE PRETENCES

SEC. 355 CRIMINAL LAW

This is where false pretence is used to get second party to sign or

execute a document by procuration (fraudulent persuasion). Pretence
must be as to the nature contents or operation of document. This type of
offence is practiced by those clever and literate on illiterate or semi-

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literate victims on whom they take advantage through the pretence the
second party signs or executes a document without knowing whether it is
false. It follows therefore, that the person who procures another to sign
or execute a document is the one who has committed the offence. The
second party will be treated as a witness because knowledge of the
falsity on his side does not exist.

EXAMPLE: - D procures C who is a semi-literate to sign an insurance

claim confirming that the person named as the beneficiary in a policy is
D. “C” very innocently signs the form and later D is arrested in this
connection; then C would be treated as a witness and D charged
accordingly. Not here that D must have pretended to C that actually he
was the person named in the policy perhaps by saying the deceased was
his brother etc.

MAKING DOCUMENTS WITHOUT AUTHORITY; SEC 357 CRIMINAL

LAW

In this section, to make, sign or execute a document or writing in the

name or on account of another, without lawful authority or excuse and
with intent to defraud or deceive is an offence.
It is also an offence if one knowingly utters such document or writing so
made, signed or executed by another person.

The section shows clearly that if a person makes a document which is not
authorized to make and he does so with intent to defraud, then he
commits an offence. It is immaterial whether the person made the
document by procurement or otherwise.

For example. A who is working in the Ministry of education Nairobi, as an

office messenger issues a KJSE certificate to B who has not actually sat
for the examination and signs it for the Chief Education Officer. This is
an offence under 357 (a) criminnal law.

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If B, who knows very well that he has in his possession a certificate made
by another person without authority, takes the certificate to C, a head
teacher, for admission inform three he commits an offence under section
357 (b).

This section should be tackled carefully so as not to confuse it with the

section for forgery. This section and the section for forgery do overlap
at times. What brings about the difference between these two sections
are the words “Lawful authority or excuse” used in section 357 which do
not appear in the definition of forgery. These words must be stated in
the particulars of the offence under section 357 immediately after the
words, with intent to defraud or deceive whereas in forgery, they do not
appear.

Example of charges

CHARGE: MAKING A DOCUMENT WITHOUT AUTHORITY, CONTRARY

TO SECTION 357 (a) OF THE CRIMINAL LAW.

PARTUCLARS.

AB, on the 9th day of September 1976, at Nairobi within Nairobi Area,
with the intent to deceive and without lawful authority or excuse, made a
Kenya Junior secondary certificate No........................ in the name of GK for
the Chief education Officer.

CHARGE: UTTERING A DOCUMENT MADE WITHOUT AUTHORITY,

CONTRARY TO SECTION 357 (b) OF THE CRIMINAL LAW.

PARTICULARS:
GK, on the 15th February 1976, at Kerugoya in Kirinyaga district within
central province, with intent to deceive uttered a KJSE certificate

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No........................ to KJ, the head teacher of Kerugoya Secondary School
knowing it to be a certificate made without lawful authority.

DEMANDING PROPERTY UPON FORGEDTESTAMENTARY

INSTRUMENTS

SEC 358 CRIMINAL LAW

This is where a person obtains any property or money for himself or for
any person, upon, or by virtue of any forged testamentary instrument
(will etc) knowing the grant to have been forged, or, upon, under or by
virtue of any probate or letters of administration obtained by false
evidence, knowing the grant to have been so obtained by false pretences.

An instrument here usually refers to a document or writing connected

with wills, deeds etc. Showing how one’s property should be distributed
after his death.

This type of offence is not often found but it is advisable to remember it

especially these days when criminals are becoming very sophisticated as
far as frauds are concerned.

Examples

1. K, obtains money by using a forged will of ‘B’ from bank Y

2. K, using the same forged will makes his son obtained a

house belonging to ‘B’ as his.

3. K, swears a false affidavit in court through which he

obtains property belonging to C (Deceased).

PURCHASING FORGED NOTES SEC. 359 CRIMINAL LAW

In this section, it is an offence to import, purchase, receive or posses a

forged bank note or currency note without lawful authority or excuse. It

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is immaterial whether the bank note or currency note has been filled or
is blank. The person, so importing, purchasing, receiving or possessing
such forged notes must have knowledge of their forgery. The burden of
proof that the accused had lawful authority or excuse under this section
lies on him.

Note that there are four offences created under this section. These are:
-

(a) Importing forged bank notes or currency notes.

(b) Purchasing forged bank notes or currency notes

(c) Receiving forged bank notes of currency notes

(d) Possessing forged bank notes or currency notes

In all these cases there must be no lawful authority or excuse. The

accused must have knowledge that they are forged. It does not matter
whether they are filled or in blank.

Example of charges

CHARGE: IMPORTING/PURCHASING/POSSESSING FORGED

NOTES, CONTRARY TO SECTION 359 CRIMINAL LAW

PARTICULARS ; AB: On the 6th day of June 1976, at Nairobi within

Nairobi Area, without lawful authority or excuse did import/ purchase/
receive/ possess four hundred twenty Kenya shillings notes knowing then
to be forged.

FALSIFYING WARRANTS FOR MONEY PAYABLE UNDER PUBLIC

AUTHORITY SEC. 360 CRIMINAL LAW.

This is where a person employed in the public service, knowingly and

with intent to defraud makes out an order payable by public authority for

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a greater or less amount than that to which the person on whose behalf
the warrant is made out is entitled.

In this type of case, the following must be proved.

1. That the offender is a person employed in the public service.

2. That he made or delivered to any person a warrant for paymen of

money.

3. That he knew the warrant to be false in fact.

4. That the money was to be paid by public authority.

5. That he had a intent to defraud.

6. That the amount was greater or less than the entitlement of the
person on whose behalf the warrant was made out.

The offence can be committed in two ways:- e.g. by making or

delivering the falsified warrant for payment of money. This type of
offence is likely to occur where there is a conspiracy between the person
making the warrant and the recipient or where the recipient is an
illiterate and the person making the warrant has an intent to defraud.

Example of charge:

CHARGE; FALSIFYING WARRANT FOR MONEY PAYABLE UNDER

PUBLIC AUTHORITY, CONTRARY TO SECTION 360 OF THE
CRIMINAL LAW.

PARTICULARS: AB On the 15thday of may, 1976 at Nairobi within the

Nairobi Area, being a person employed in the public service as a clerk at
P.C’s Office Nairobi, knowingly and with intent to defraud, made out a
claim voucher No………in the name of KB for the payment of Shs 1,5000/
by the Provincial Commissioner’s Office Nairobi an amount which the said
AB knew to be greater than that the said KB was entitled.

FALSFICATION OF REGISTER: SEC 361 OF THE CRIMINAL LAW.

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 This is an offence where the offender is actual in custody of any
register or record kept by lawful authority and knowingly he permits an
entry which is to knowledge false in any material particular, to be made in
such register or record.

The following points must be proved when dealing with this type of
offence;-

1. Register or record must be kept by lawful authority.

2. Register or record must be in actual custody of the offender

3. The offender knowingly permits an entry to be made regarding a

particular fact.

4. The entry must be false to the knowledge of the offender.

For example, A is a births and deaths clerk and permits a false entry to
be made in the deaths register in respect of B who is not actually dead.

CHARGE: FALSIFYING A DEATH REGISTER, CONTRARY TO

SECTION 361 OF THE CRIMINAL LAW.

PARTICULARS:

AB: On the 10th day of march, 1976, at Nairobi within the

Nairobi Area, being a person having actual custody , of a deaths register
kept by the register’s department Nairobi knowingly permitted an entry
in respect of death of BC to be made in the said death register an entry
which the said AB know to be false.

SENDING FALSE CERTIFICATE OF MARRIAGE TO REGISTRAR SEC

362 CRIMINAL LAW.

If a person signs or transmits to a person authorized by law to

register marriage, a certificate of marriage, or any document purporting
to be a marriage certificate, which in any material particular is to his

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knowledge false, then he commits an offence under this section. There
are two ways of committing this type of offence: -

1. By signing a marriage certificate falsely, or

2. By transmitting a marriage certificate which is false to a person

authorized by law to register marriages, or (in both cases any other
document purporting to be a certificate of marriage).

Knowledge that the certificate of marriage is false one is an

essential element of the offence and must be included in the charge
sheet and proved.

If a marriage certificate is transmitted to another person for

registration, the latter must be a person authorized by law to register
marriages.

In this type of offence, the false certificate of marriage must be

false in any material particular.

Example of charge

CHARGE: SENDING FALSE CERTIFICATE OF MARRIAGE TO

REGISTRAR OF MARRIAGE, CONTRARY TO SECTION 362 OF THE
CRIMINAL LAW.

PARTICULARS;

AB On the 30th day of June 1976, at Nyeri District within the Central
Province, transmitted to the registrar of marriage at Nyeri a certificate
of marriage in respect of GK and DM, which certificate the said AB, knew
to be false.

FALSE STATEMENTS FOR REGISTERS OF BIRTHS, DEATHS &

MARRIAGES SEC 363 CRIMINAL LAW.

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 This type of offence is committed when a person knowingly and
with intent to procure (cause)the same to be inserted in one of the
above registers, makes any false statement touching any matter required
by law to be registered in any such register .

The offender must make a statement touching the matter required

by the law be registered and such statement must be false to his
knowledge. He must also have the intent to have such statement inserted
in any such register.

This offence may be commonly committed by such people who would like
to be registered and thereafter obtain such things like passports etc. As
Kenya citizens while they are not. This is very common with Somalis and
those other people near borders.

EXAMPLE OF CHARGE:

CHARGE: MAKING A FALSE STATEMENT FOR A BIRTH RIGISTER,

CONTRARY TO SECTION 363 OF THE PENAL CODE.

Particulars:

AB. On the 4th day of April, 1976 at Mombasa in Mombasa district within
coast Province, with intent to procure the same to be inserted in a
register of births made a statement to the registrar of births Mombasa
by stating that he was a Kenya citizen born in Kwale district a statement
which the said AB knew to be false.

INVESTIGATING OF FORGERY

A part from proving essential in residents of a forgery case as already

discussed earlier, the following points must be observed so as to succeed
in such a case.

HANDWRITING

In most forgery cases, document are more involved and therefore

written. It must be shown that the handwriting is of the person charged
and this can be proved at least by any of the following ways:-

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 1. By expert evidence (see section 48 E.A.) An investigating officer
should send all the documents available (not copies) to the
document examiner together with as much specimen handwriting of
the suspect as possible.

2. By a person who is acquainted with handwriting of the suspect

(accused) and a person is said to be acquainted with the handwriting
of another if: -

a) He has seen that person write the document, or he has

received documents purporting to be written by that person in
answer to documents written by himself, or under his
authority and addressed to that person or,

b) When in the ordinary course of business documents purporting

to be written by that person have been habitually submitted
to him (Sec. 50 E.A.)

This can be known by the investigating officer when recording

statements from witnesses.

NOTE:

It is always better to have the combination of (1) and (2) above to make
your case stronger in court.

IDENTITY OF PERSON WHOSE WRITING IS FORGED:

It must be proved that the alleged forger was intending to represent the
handwriting of the person, whose handwriting it is proved not to be. As in
the case of a suspect’s handwriting the complainant’s handwriting must be
forwarded to the document examiner to confirm that the alleged forged
handwriting is not his.

DIFFICULTIES IN FORGERY CASES:

1. It is therefore necessary for an investigating officer to approach

the person (s) involved very tactfully.

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2. The fact that the person concerned in paying out money or giving
out goods cannot describe the utterer of the forged documents
satisfactorily also puts an investigator in a very bad position. In this
respect, therefore an investigating officer should obtain all the
available particulars of suspects from the witnesses and include in
the statement.

3. Failure to get all the documents involved becomes another obstacle

and the investigating officer should always endevour to get as many
documents as possible, once the investigating officer gets the
documents involved in a forgery, the following points should help
him considerably:-

(a) Scrutinize all the available documents thoroughly.

(b) Read then see if you understand them.

(c) If you do not understand the contents then ask whoever is

conversant with them to help you.

(d) Find out the procedure of preparing, handling and custody of the
documents involved in the case. Proceed to record statements
from the person who appears to be most conversant with the
procedure. The description of the procedure should include the
movement s of the documents from one place to another and
from person to person.

(e) Record statement of the persons who do handle the documents.

Each one of them must be questioned about the part he plays if
any in handling or writing up the document. He should attempt to
identify the writings and signatures of the document and
comment on the offending part of the document.

(f) Send all the questioned documents to the document examiner for
examination.

(g) When recording statements of witnesses ensure that you check

and counter check the points raised by them.

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 CONCLUSION.

If it happens that you are to search a place in which forgery is

alleged to have been going on. You should look out carefully for things
which are used in forgery, such as, blank papers, carbon papers, marking
pens, books, list of banks used, paths, coloured inks, balloting papers etc.
All these should be taken to the document examiner for examination.

Xxxxxxxxxxxxxxx END.xxxxxxxxxxxxxxx.

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