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BACKGROUND
The Procedural facts of the instant appeal are as follows;
The present matter emanates from CM Criminal Case E542 of 2021 where the Appellant was/is charged with Conspiracy to murder c/s Section 224 of the Penal Code & Conspiracy to defeat justice contrary to Section 117(c) of the Penal Code.
The offences arose from MCSO 27 of 2020 Republic vs Alex Mahaga Olaba & Lawrence Frank Wanyama.
The Applicants filed Criminal Revision E 108 of 2021 (Consolidated with Criminal Revision No 334 of 2021) Ruling by Hon G.Nzioka LJ delivered on 10/6/2020. At the time an appeal in Court of Appeal was pending.
CM No 10 of 2018 Republic vs Lawrence Frank Wanyama & Alex Mahaga Olaba were heard convicted and sentenced to serve 15 years imprisonment.
The Appellants filed Criminal Appeal No 184 of 2019 , the appeal was heard and determined Judgment was delivered on 30 th June 2020, the Court declared a mistrial and ordered retrial.
Retrial was conducted in CM Criminal Case SO 27 of 2020 and in the instant matter CM. Criminal case
E542 of 2021 the accused was charged with the offence of conspiring to murder and defeat justice and was convicted and sentenced to serve 6 years imprisonment in Count 1 and 2 years imprisonment and sentence was to run concurrently.
High Court Criminal Revision No E203 of 2023 was withdrawn on 20 th February 2023 and Revision file closed. Hence the present Appeal on Judgment of E542 of 2021.
TRIAL COURT PROCEEDINGS
PWI: JACKLINE AMIMO SWORN
On 17/4/2021 PW1 was at her place Arboretum road and she received a call from a number that she did not have. The person asked for Wendy. Wendi is her daughter. PW1 told him that she was not with Wendy. PW1 told him she was Wendi''s mother. PW1 was informed that there was a call involving Wendi''s case. This is/was the rape case. Wendy had been raped. PW1 told him that Wendi is in the house and she was informed that there was a plot to eliminate Wendy. She was shocked. PW3 informed her that somebody had approached him to eliminate Wendi and he had paid Kshs.10,000/=. He told her they could meet at the stage and come with two policemen, so that he could tell them what he had been told. She suggested to him they meet at Kilimani Police Station.
On the said day 17.4.2021. PW1 went to Kilimani Police Station. When she arrived he was already there. She called him and he was at the Police Station. He introduced himself as Mr. Wachira. That is when he told me that one of the Rugby players had approached him so as to eliminate Wendi and he had been given a deposit of Kshs. 10,000/=. The whole amount to be paid was to be Kshs. 100,000/-. He was to carry out that act before the next hearing of the Rape case. The rape case was to be heard on 22/4/2022. After he briefed her, while at the station with PW3, they went to report the matter. Mr. Wachira (PW3) recorded a statement.
There were two Rugby players who had been charged in the Rape case. The person who had approached Wachira was one Olaba. Wachira has a car wash. They normally go there. Olaba used to go and meet him at the Carwash. Olaba is/was seated at the dock.
Cross-Examination by [Advocate for Accused person] Oduk
PW1 recorded a statement at the police station. It was on 21/4/2021. She was in Court before. She knew the effect of taking an oath. She was not aware what is perjury. She received a phone call and could not recall the number. She was called by Mr. Wachira.
The first time he called he told her that he had been approached by one of the Rugby player to eliminate Wendi. One Rugby player was mentioned. She resided at Arboretum State House Girls Quarters. The closest Police Station is Kileleshwa. She went to Kilimani Police Station since they were handling the initial Rape case.
Mr. Wachira told her that she could go with two police officers. Mr. Wachira told her he had been given Kshs. 10,000/=. She was not present when the amount was given. She thought he was given the amount.
On 17/4/2021 a report was made. She did not know the OB number. She did not know the name of the car wash. She was informed it is next to Sifa Apartments. She did not know whether Olaba had a car. Both, that is Olaba and the other Rugby guy used to go there to wash a vehicle.
Mr. Wachira told her that the Accused gave him her number. They got from the first case. The Accused had earlier called her, including his relatives.
The Accused was planning to eliminate her daughter. Her daughter was raped and they were planning to eliminate her. She did not know how the amount of Kshs. 100,000/= was to be disbursed.
PW2 - POLICE CONSTABLE NO. 219591 IBRAHIM MOHAMMED SWORN
He was/is based at Kilimani Police Station DCI - office
On 22/4/2021 while he was at the office. He was summoned by DCIO in order to carry out an operation within Makadara area of which an informer came to the office reporting that he was hired by one Mr. Olaba in order to carry out an elimination mission.
He was directed to act as an undercover cum hitman so that they could arrest the culprit in this matter. He disguised his look as a police officer, he met Mr. Wachira, the informer at their office then he communicated to the Accused so that we could meet at a restaurant at Makadara Area. He communicated to the Accused and promised to meet them at 1600 hours in a restaurant. They arrived at the restaurant at exactly 1600 hours, but our client did not arrive on time. When he said client he meant Mr. Olaba who came around 40 minutes later. Mr. Wachira (PW3) identified Mr. Olaba who sat in the next table and then joined them. They discussed the plan on how to execute the murder. We discussed about the payment. Mr Wachira had earlier talked to Mr. Olaba and had agreed on Kshs. 100,000/- so as to execute the murder. When he joined them he demanded that he would not execute the act without payment.
While at the table he texted his colleague Police Constable Otieno, the investigating officer to come quickly because Mr. Olaba was in hurry to leave as he had no money to give/pay.
He was informed by Mr. Wachira where the target was living was at State House Girls Quarters. When Police Constable Otieno arrived, they were arrested and handcuffed. They were taken to Kilimani Police Station. He was an undercover Police Officer and Wachira was an informer. Mr. Olaba was present before the Court and seated at the dock.
Cross-Examination by Cliff Oduk
He was a police officer for about 25 years now. He recorded one statement which was about 2 pages. He recorded the statement on 23/4/2021. There was discussion on Kshs.140,000/- but it was between Mr. Wachira and Mr. Olaba. knew nothing about the said amount.
When they met at the restaurant he discussed with Mr. Olaba of the payment of Kshs. 100,000/=. No single cent was paid to him. The restaurant was in Makadara. He was sent by the DCIO Kilimani one Fatuma Hadi.
He do not know what is entrapment. He did not know the person to be killed. He had never met Mr. Olaba prior to when they met at a restaurant. He had not met Mr. Wachira before. He was in court as a witness to the case.
PW3: NELSON WACHIRA MWANGI SWORN.
He worked at a car wash. The car wash, is at Highrise (Nyayo) and he washed vehicles.
On 14 th April 2021, he was handling his duties. He worked until in the evening. At around 5.20 p.m. one of a customers who used to come with a Black Rav 4. On that day he came on foot and he talked to me. He asked him to assist him. He told him he had a rape case in Court. He told him that he wanted the witness to be eliminated. He indicated he would pay Kshs, 100,000/-.
He meant that he wanted the witness to be killed. He told me that the down payment was Kshs. 10,000/- and he would pay him in the evening. They walked to Madaraka Strathmore University and he entered an ATM and withdrew some money. They entered into a nearby building and went to the basement, there were hotels, shops and boutique. They sat down and he gave him Kshs. 10,000/- and told him to go and look for people who can kill someone. They departed and went separate ways.
PW3 told him that the witness resided near Statehouse Girls. When he received the money he was not comfortable. He did not use that money.
On 17 th April 2021, he received a message from Olaba and he sent him a number and told him whenever he was comfortable he would call using that number. His phone number was 0752 he could not remember the other digits. He told him to send him Wendi''s number and he sent the number with a name Wendi Kemunto.
He called the said number and a lady picked up the same. When she picked up he called her Wendi, and the response was that she was not Wendi, but her mother. He asked her if they could meet as he want to inform her something. He told her it related to Wendi''s case which was in Court.
She told him she was not nearby and was fearful. He suggested they meet at the police station. They met at Kilimani Police Station. He told her what Olaba told him concerning the case of Wendy. They met first before reporting to the station.
They entered the DCI - Offices and found an officer by the name Otieno. He informed him what Olaba wanted. He told him to be close to Olaba so that he does not escape. He advised him to inform him to top up the amount. He tried to meet him (Olaba) but they never met at first. Thereafter on 22/4/2021 an officer by the name Otieno asked whether he could meet Olaba and talk to him.
Otieno linked him with another officer called Ibrahim. He called Olaba and asked him whether they could meet and talk, so that he could add some money. When he called Olaba he told him he was a little bit busy and suggested they meet in the evening
They were to meet at Madaraka, the same place where he gave him the money. They met with Olaba and he was together with PW2 PC I Mohammed. They met first with the officer, and after a few minutes Olala arrived at the meeting point
When Olaba arrived they started negotiating with Olaba on how he could top up the amount. He indicated that he did not have money to top up, but he said he could give them the Kshs: 100,000/- first thereafter he could top up after the mission had been accomplished.
While they were discussing policemen arrived, one of them was officer Otieno and I do not know the other officer. That is how he was arrested. He was given Kshs. 10,000/-in (1,000) denominations. MFI -1 (i-x). The said Olaba was/is seated at the dock.
Cross-Examination by Oduk
He used to work at a car wash. It is known as Boys Car Wash. He was still working there. He was not the owner of the car wash. The owner is known as Daseka. They are about 10 people. He had never been to Court before. He understood the nature of an oath.
On 13 th April 2021,he1 was at work, they had a record of the cars washed. They indicated the vehicle numbers plates. They did not indicate the names of the people, but they concentrated on the vehicle registration details.
There were many people who passed at the car wash. He recorded his statement on 17 th April 2021. In the statement identified the Accused as " Budaa. " Today, he referred him as Olaba. He used to know his friend whom they used to come with at the garage. The friend was the owner of the vehicle. He used to refer the friend as “ Kenya One ”. He was a man. He had washed the vehicle for " Kenya One ” for a period of four months
The vehicle was a "Rav 4" It was Black in colour. I do not remember the number plate. In their records, the number plate should be there. He did not have any record of the car wash.
He told him that he had a rape case in Court. He did not have the particulars of the same. He told him to look for people who they could come together and perform the task.
He did not know how to perform the task which had been proposed. He took the money but he could not deliver he wanted to know his seriousness. He was not given Kshs. 100,000/=. The ATM was located outside Strathmore. He did not know the bank. He was on the other side of the road. That was the money that he was given. When he received the money, he placed the same in his pocket. He used to wash the vehicle for "Kenya One" in 2019. He did not know whether he was in Kamiti. Hedid not know what is "Mboka."
Olaba sent him a text message. He sent Wendi''s number. He could not exactly remember Olaba''s number. It was 0740-something he could not recall. He could not remember Wendi''s number. He called Wendi but it was the mother who picked the same. The person to be contacted was supposed to be Wendy. He knew Wendy by photo identification. Olaba showed him the same. The Accused showed him the photograph which was on his phone.
They met with the officer at a Police Post. He is known as Ibra . At the police station, he recorded a statement and thereafter Mama Wendy followed. He was not given any OB number. The vehicle which was being washed at their car wash belonged to (friend) "Kenya One and not "Budaa." (Accused)
He did not have "Kenya One''s" number. They were at "Mada" when they met. Strathmore is at Makadara. He had have not crammed his mobile phone number. He Knew his identity card number off head. There is a Police Post at Highrise.
When he called Mama Wendy, she told him they were to meet at Kilimani Police Station. He was not given any promise. They were arrested on 22 nd April 2021, they were the three of them.
That is "Budaa," (Accused) Ibrahim (PW2) and himself (PW3). He knew Ibrahim when they met. It was at that point that he knew he was a police officer. He later discovered he was a police officer attached to DCI Kilimani.
Their meeting with "Budaa" was to negotiate on how he will enhance the money and plan on the elimination of Wendy. He could identify Wendy based on the photo that he was shown. The officer Ibrahim had not seen Wendy''s photo.
He first introduced Ibrahim as the Head of Watchmen. He could not recall Ibrahim''s number. Officer Otieno is the one who gave Ibrahim his number. The plan was to stage a robbery and thereafter eliminate Wendy.
The plot was that she should not attend Court to testify. He did not know the date. He was told she resides near State House Girls. They had not set the time for the robbery. They were to use a gun for the same. He told him he had found people with a gun for the mission to be accomplished.
The officer (Ibrahim) was the one present, but there was no gun. He was giving Olaba the confidence that there was a gun. Olaba is the person who had planned. On his arrest, it was Ibrahim and Otieno who were the ones who planned the same.
The officers planned for the Accused to be arrested. He was successfully arrested. The money he took to the station is before Court. He did not record the serial numbers of the same.
DEFENCE
DWI Alex Mahaga Olaba Sworn
On his Defence DW1 stated that he was a Former Rugby player as well as a student at Strathmore University. He played for Strathmore University and Kenya Harlequins. He played for Kenya Harlequins before. He had a different matter before a different Court. Sexual Offence No. 27 of 2020. Previously there was another matter Sexual Offence No.10 of 2018. In regard to Sexual Offence No.10 of 2018, he went through the trial process and he was convicted for 15 years. On Appeal, the High Court directed a re-trial be held. This led to Sexual Offence No. 27 of 2020. He had been attending Court whenever required.
This matter arises from the other matter, he was being accused in trying to eliminate the main witness in Sexual Offence No. 27 of 2020. The name of the witness is Wendy Kemunto. The said Wendy Kemunto did not testify. He was arrested on 22 nd April 2021, on this particular day he was in Busia County at around 4 AM.
He was to travel to Nairobi and looked for public vehicles but he found none. Luckily, he found a private vehicle.
On this particular day, there was as matter Sexual Offence No.27 of 2020. The mater was being mentioned virtually. His lawyer sent him the link and he joined the same. Subsequently, he travelled to Nairobi. He arrived in Nairobi at around 1.30 p.m. and he was to meet the Strathmore Head Coach by the name Louis Otieno. He was coming to talk to him over rejoining rugby, since he had been in prison. He talked to the coach nicknamed "Fathe" who informed him that he would be at the Strathmore Training grounds at 5 pm.
The Strathmore training grounds is at Madaraka, "Strathmore Sports Complex. He did not manage to meet him that day.
On the same day, he left Highrise to Madaraka. He walked all the way.
On the way at an estate/place known as Akila (2), someone waved him down from behind, he saw a young man that he was not familiar to but he stopped.
He introduced himself as a Rugby player and he inquired where he was going and he told him. The way he talked he seemed like someone who knew him. He inquired whether he wanted to rejoin Rugby, and from his questions seemed to know that he was from prison. He informed him that he was also looking for a better club to join. He suggested they could join the same club and play together. They talked as they were headed to Akila. Behind them was an elderly person with a young man.
They caught up with them. He greeted them and the young man introduced him as his friend.
Thereafter it started raining. They hurried so as to get shelter on the road. They got into Siwaka Plaza, it is a building that has stalls. They got there and sat down, and no sooner had they sat down than he saw the elderly person who was behind them was trying to make a call but later hang up.
Immediately, he said some two huge gentlemen who came straight to them. They greeted all of them and he was grabbed by his shoulder and put handcuffs on them, and told them to sit down.
One of the two gentlemen pulled out his gun and cocked it. That action scared the people who were around and they ran away. They sat there for about 40-50 metres and later escorted to an awaiting police vehicle.
They went to Kilimani Police Station and held in separate rooms. He managed to get a phone and called his Advocate Oduk and informed him that he had been arrested. As he was waiting for his lawyer, one of the guys who had arrested them came in and started interrogating him with threats: that he remains silent.
Later on his bond was cancelled and they went to the High Court for a Revision No. E108 of 2021 and consolidated with No. E334 of 2021. The decision of the High Court was that his bond was reinstated.
The allegations that he owns a motor vehicle are false. He has never taken any motor vehicle to a car wash. He did not withdraw any money from any account, and he was just from prison and struggling financially.
He did not recall if there were bond terms conditions issued by the Court. He had never threatened any witness either directly or indirectly. He did not conduct himself in a manner to jeopardize any investigations.
CROSS-EXAMINED BY PROSECUTOR
On Cross examination by Prosecutor, DW1 stated that Sexual Offence No. 27 of 2020 was pending at Milimani Law Court. The first case was Sexual Offence No. 10 of 2018.
He stated that on 22 nd April 2021 he was at Siwaka Plaza with two gentlemen. He met them randomly on the streets. That was PW2 and PW3.
PW2 indicated that he was a police officer and PW3 worked at a car wash. He had never met PW2 and PW3. He came to realize that he was being set-up. He could drive but he did not take the vehicle to the car-wash.
He had a Bank Account at NCBA Bank. He was placed in a cell and roughed up by Police Constable Otieno.
RE-EXAMINATION
On Re-examination DW1 stated that he had an account at NCBA. He had an ATM Card. He said he did not withdraw any money on 22 nd April. After Sexual Offence No.10 of 2018 he was convicted and they were at Kamiti Prison. They were there for about one year.
He said did not know the Gentleman who was working at the car wash. He also said he did not know the elderly gentleman.
The reason for travelling to Nairobi was to meet the Strathmore coach on rejoining the Rugby team.
He had discussion with the Car Wash guy on rugby only and nothing else. The issue of investigating officer harassing him was dealt by the High Court. The alleged witness who was to be eliminated, he only saw her at Milimani Court. He had never interacted with the mother of the purported witness.
PETITION OF APPEAL
52. On 5 th June 2023, Alex Olaba the Appellant herein filed a Petition of Appeal and stated as follows:
1. That the Trial Magistrate erred in law and fact by failing to comply with the provisions of Section 224 of the Penal Code, Chapter 63 Laws of Kenya.
2. That the Trial Magistrate erred in law and fact by failing to
comply with the provisions of Section 117 of the Penal Code, Chapter 63 Laws of Kenya.
3. That the Trial Magistrate failed to address himself correctly on the law regarding conspiracy charges.
4. That the Trial Magistrate erred in law and fact by failing to consider that the alleged victim KA, neither recorded a statement nor was she a witness before the trial court.
5. That the Trial Magistrate erred in law and fact failing to consider that, no specific evidence was adduced in regards to the nature, time, manner and place that the alleged victim would be killed.
6. That the Trial Magistrate erred in law and fact by failing to consider that, no specific evidence was adduced in regard to the bank account and receipt in regard to the alleged money of Kshs. 10,000.
7. That the Appellant''s conviction is against the weight of evidence. The Trial Magistrate erred in law and fact by ignoring or not weighing sufficiently, and not judiciously appreciating the inconsistent and contradictory evidence of the Prosecution Witnesses.
8. The Trial Magistrate erred in law and fact by considering the Prosecution Witnesses who told numerous untruths, were cunning, unreliable and evasive, forgetful and contradictory on material aspects.
9. That the Trial Magistrate erred in law and fact in selectively impugning witnesses’ evidence and then giving credence to testimonies and holding "irrelevant" evidence which was immaterial and unfavorable to the Appellant
10. That the Trial Magistrate erred in law and fact in admitting and relying on a generic Victim Impact Assessment Statement, adduced as evidence yet the alleged Interviewed victim KA was not part of the proceedings
11. That the Trial Magistrate erred in law and fact by failing to consider that, no specific evidence was adduced in regard to the alleged phone number 0740 by……..PW3.
12. That the Trial Magistrate erred in law and fact by failing to consider that, no evidence was adduced to counter the Appellant''s sworn testimony that he attended court in the Chief Magistrates Court at Milimani in Criminal Case No. Sexual Offence 27 of 2020.
13. That the Trial Magistrate erred in law and fact in not recording the proceedings in court correctly,
14. That the Trial Magistrate erred in law and fact in admitting hearsay evidence adduced by the Prosecution Witnesses.
15. That the Trial Magistrate erred in law and fact in relying and admitting entrapment evidence to convict and sentence.
16. The Trial Magistrate erred in law and fact by not taking into consideration that, the Prosecution failed to prove the charges of conspiracy to murder beyond reasonable doubt, as it did not prove the ingredients of the offence as required and provided for, in Section 224 of the Penal Code, Chapter 63 Laws of Kenya.
17. The Trial Magistrate erred in law and fact by not taking into consideration that the Prosecution failed to prove the charge of conspiracy to defeat Justice and interference with witnesses beyond reasonable doubt as it did not prove the ingredients of the offence as required and provided for in, Section 117(c) of the Penal Code, Chapter 63 Laws of Kenya.
18. That the Trial Magistrate erred in law and fact by admitting inconsistent evidence and in lieu went to make personal observations that were not corroborated
19. That the Trial Magistrate erred in law and fact in not giving any adequate consideration and rejecting, ignoring and not appreciating the sworn and unchallenged evidence of the Appellant and not considering the Defence judiciously.
20. That the Trial Magistrate erred in law and fact by failing to appreciate the Appellant''s filed submissions dated 27th February 2023 and 15th May 2023.
21. That the Trial Magistrate erred in law and fact by failing to consider the mitigation by the Appellant.
22. That the Trial Magistrate failed to consider that individuals "Kenya One and Fathee" Budaa! were not witnesses hence, convicting on such evidence was unfair and unjust to the Appellant.
23. That the Trial Magistrate erred in law and fact by failing to take into consideration the Appellant''s defence before reaching the impugned verdict.
24. That the Trial Magistrate erred in law and fact in not addressing himself on the matter of burden of proof considered in criminal cases, and in particular conspiracy to commit murder and conspiracy to defeat justice.
25. That the Trial Magistrate erred in law and fact by failing to take judicial notice on the evidence that one would be in Bungoma in the morning and in the evening in Nairobi,
26. That the Trial Magistrate erred in law and fact by convicting the Appellant on extraneous circumstances.
27. That the Trial Magistrate erred in law and in fact by failing to take judicial notice that the Appellant never absconded any court proceedings at all as alleged by the Prosecution.
28. That the Trial Magistrate erred in law and fact by admitting the evidence of PW-3 which was contradictory, uncorroborated and untruthful since he could not remember his ID. No. and the alleged phone number 0740.
29. That the Trial Magistrate failed to consider that no evidence was adduced to show that the Appellant knew and/or communicated to the alleged victim KA.
30. That the trial magistrate erred in law and fact in failing to consider section 169 of the criminal procedure Act, Chapter 75 laws of Kenya.
31. That the Trial Magistrate erred in law and fact by convicting the Appellant, while the conviction and sentence was unsafe.
REASONS FOR THE APPELLANT'' PRAYERS:
That the Appeal be allowed.
The conviction by the Trial Magistrate by Honorable. G. Onsarigo be set aside and sentence quashed.
Any other or further order that this Court May deem fair and just to grant.
APPELLANTS SUBMISSIONS
On 16 th June 2025 the appellant herein, filed submissions and stated as follows:
ISSUES FOR DETERMINATION
It is the Appellant''s humble submission that the issues for determination as follows:
Whether the charge sheet was fatally defective?
ii. Whether the Appellant proved its case beyond reasonable doubt on
a) conspiracy to commit murder?
b) conspiracy to defeat justice?
iii. Whether the circumstances leading to the arrest of the Appellant amounted to entrapment?
vi. Whether the Honorable Court should allow this appeal?
WHETHER THE CHARGE SHEET WAS FATALLY DEFECTIVE?
The Appellant submitted that, the essential ingredient in pores for the offence of conspiracy are:
The Appellant submitted that the Charge Sheet was fatally defective, as it neither disclosed who the complainant was, nor did the complainant record a
statement or testify as a witness during the trial.
He stated that it is trite law that every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.
Therefore, it is trite law that the complainant having not appeared in court during trial, the law provides for acquittal of an accused person for non- attendance by the complainant.
It is noteworthy that, despite not having disclosed who the complainant was, the court went ahead and relied upon the probation officer''s victim impact assessment report. Trial Court Judgment
The Appellant submitted that, the essential ingredient to prove for the offence of conspiracy are:
That two or more people agree to put in effect a scheme whose ultimate aim would be the commission of a criminal offence, and
Existence of an agreement to put into effect a course of conduct in furtherance of a criminal purpose.
In the case of Jane Wambui Gakungu vs. Republic , Hon. Lady Justice Ngenye Macharia (as she then was) held that:
" The rationale being that she could not commit the offence of conspiracy alone. I cannot agree more. The offence of conspiracy requires two or more persons to act in concert towards the attainment of a common goal..”.
In the Court of Appeal case of Evans Waweru Maina vs. Republic, the Learned Judges held that:
"The offence of conspiracy cannot exist without the agreement, consent or combination of two or more persons... so long as a design rests in intention only, it is not indictable, there must be agreement... Proof of the existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them."
In the case of Christopher Wafula Makokha vs. Republic, Hon. Mr. Justice A. Mabeya held that:
"...it is clear that the prosecution must prove the existence of an agreement between the accused and some other person to do the act".
In the case of Nicholas Shivachi & Another vs. Republic, Hon. Mr. Justice L. Kimaru (as he then was) held that:
"On re-evaluation of the evidence adduced before the trial court, in light of the submission made on this appeal, it was clear to the court that the prosecution failed to establish the essential ingredients of the charge of conspiracy. In the present appeal, no evidence was adduced by the prosecution to establish the
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BACKGROUND
The Procedural facts of the instant appeal are as follows;
The present matter emanates from CM Criminal Case E542 of 2021 where the Appellant was/is charged with Conspiracy to murder c/s Section 224 of the Penal Code & Conspiracy to defeat justice contrary to Section 117(c) of the Penal Code.
The offences arose from MCSO 27 of 2020 Republic vs Alex Mahaga Olaba & Lawrence Frank Wanyama.
The Applicants filed Criminal Revision E 108 of 2021 (Consolidated with Criminal Revision No 334 of 2021) Ruling by Hon G.Nzioka LJ delivered on 10/6/2020. At the time an appeal in Court of Appeal was pending.
CM No 10 of 2018 Republic vs Lawrence Frank Wanyama & Alex Mahaga Olaba were heard convicted and sentenced to serve 15 years imprisonment.
The Appellants filed Criminal Appeal No 184 of 2019 , the appeal was heard and determined Judgment was delivered on 30 th June 2020, the Court declared a mistrial and ordered retrial.
Retrial was conducted in CM Criminal Case SO 27 of 2020 and in the instant matter CM. Criminal case
E542 of 2021 the accused was charged with the offence of conspiring to murder and defeat justice and was convicted and sentenced to serve 6 years imprisonment in Count 1 and 2 years imprisonment and sentence was to run concurrently.
High Court Criminal Revision No E203 of 2023 was withdrawn on 20 th February 2023 and Revision file closed. Hence the present Appeal on Judgment of E542 of 2021.
TRIAL COURT PROCEEDINGS
PWI: JACKLINE AMIMO SWORN
On 17/4/2021 PW1 was at her place Arboretum road and she received a call from a number that she did not have. The person asked for Wendy. Wendi is her daughter. PW1 told him that she was not with Wendy. PW1 told him she was Wendi''s mother. PW1 was informed that there was a call involving Wendi''s case. This is/was the rape case. Wendy had been raped. PW1 told him that Wendi is in the house and she was informed that there was a plot to eliminate Wendy. She was shocked. PW3 informed her that somebody had approached him to eliminate Wendi and he had paid Kshs.10,000/=. He told her they could meet at the stage and come with two policemen, so that he could tell them what he had been told. She suggested to him they meet at Kilimani Police Station.
On the said day 17.4.2021. PW1 went to Kilimani Police Station. When she arrived he was already there. She called him and he was at the Police Station. He introduced himself as Mr. Wachira. That is when he told me that one of the Rugby players had approached him so as to eliminate Wendi and he had been given a deposit of Kshs. 10,000/=. The whole amount to be paid was to be Kshs. 100,000/-. He was to carry out that act before the next hearing of the Rape case. The rape case was to be heard on 22/4/2022. After he briefed her, while at the station with PW3, they went to report the matter. Mr. Wachira (PW3) recorded a statement.
There were two Rugby players who had been charged in the Rape case. The person who had approached Wachira was one Olaba. Wachira has a car wash. They normally go there. Olaba used to go and meet him at the Carwash. Olaba is/was seated at the dock.
Cross-Examination by [Advocate for Accused person] Oduk
PW1 recorded a statement at the police station. It was on 21/4/2021. She was in Court before. She knew the effect of taking an oath. She was not aware what is perjury. She received a phone call and could not recall the number. She was called by Mr. Wachira.
The first time he called he told her that he had been approached by one of the Rugby player to eliminate Wendi. One Rugby player was mentioned. She resided at Arboretum State House Girls Quarters. The closest Police Station is Kileleshwa. She went to Kilimani Police Station since they were handling the initial Rape case.
Mr. Wachira told her that she could go with two police officers. Mr. Wachira told her he had been given Kshs. 10,000/=. She was not present when the amount was given. She thought he was given the amount.
On 17/4/2021 a report was made. She did not know the OB number. She did not know the name of the car wash. She was informed it is next to Sifa Apartments. She did not know whether Olaba had a car. Both, that is Olaba and the other Rugby guy used to go there to wash a vehicle.
Mr. Wachira told her that the Accused gave him her number. They got from the first case. The Accused had earlier called her, including his relatives.
The Accused was planning to eliminate her daughter. Her daughter was raped and they were planning to eliminate her. She did not know how the amount of Kshs. 100,000/= was to be disbursed.
PW2 - POLICE CONSTABLE NO. 219591 IBRAHIM MOHAMMED SWORN
He was/is based at Kilimani Police Station DCI - office
On 22/4/2021 while he was at the office. He was summoned by DCIO in order to carry out an operation within Makadara area of which an informer came to the office reporting that he was hired by one Mr. Olaba in order to carry out an elimination mission.
He was directed to act as an undercover cum hitman so that they could arrest the culprit in this matter. He disguised his look as a police officer, he met Mr. Wachira, the informer at their office then he communicated to the Accused so that we could meet at a restaurant at Makadara Area. He communicated to the Accused and promised to meet them at 1600 hours in a restaurant. They arrived at the restaurant at exactly 1600 hours, but our client did not arrive on time. When he said client he meant Mr. Olaba who came around 40 minutes later. Mr. Wachira (PW3) identified Mr. Olaba who sat in the next table and then joined them. They discussed the plan on how to execute the murder. We discussed about the payment. Mr Wachira had earlier talked to Mr. Olaba and had agreed on Kshs. 100,000/- so as to execute the murder. When he joined them he demanded that he would not execute the act without payment.
While at the table he texted his colleague Police Constable Otieno, the investigating officer to come quickly because Mr. Olaba was in hurry to leave as he had no money to give/pay.
He was informed by Mr. Wachira where the target was living was at State House Girls Quarters. When Police Constable Otieno arrived, they were arrested and handcuffed. They were taken to Kilimani Police Station. He was an undercover Police Officer and Wachira was an informer. Mr. Olaba was present before the Court and seated at the dock.
Cross-Examination by Cliff Oduk
He was a police officer for about 25 years now. He recorded one statement which was about 2 pages. He recorded the statement on 23/4/2021. There was discussion on Kshs.140,000/- but it was between Mr. Wachira and Mr. Olaba. knew nothing about the said amount.
When they met at the restaurant he discussed with Mr. Olaba of the payment of Kshs. 100,000/=. No single cent was paid to him. The restaurant was in Makadara. He was sent by the DCIO Kilimani one Fatuma Hadi.
He do not know what is entrapment. He did not know the person to be killed. He had never met Mr. Olaba prior to when they met at a restaurant. He had not met Mr. Wachira before. He was in court as a witness to the case.
PW3: NELSON WACHIRA MWANGI SWORN.
He worked at a car wash. The car wash, is at Highrise (Nyayo) and he washed vehicles.
On 14 th April 2021, he was handling his duties. He worked until in the evening. At around 5.20 p.m. one of a customers who used to come with a Black Rav 4. On that day he came on foot and he talked to me. He asked him to assist him. He told him he had a rape case in Court. He told him that he wanted the witness to be eliminated. He indicated he would pay Kshs, 100,000/-.
He meant that he wanted the witness to be killed. He told me that the down payment was Kshs. 10,000/- and he would pay him in the evening. They walked to Madaraka Strathmore University and he entered an ATM and withdrew some money. They entered into a nearby building and went to the basement, there were hotels, shops and boutique. They sat down and he gave him Kshs. 10,000/- and told him to go and look for people who can kill someone. They departed and went separate ways.
PW3 told him that the witness resided near Statehouse Girls. When he received the money he was not comfortable. He did not use that money.
On 17 th April 2021, he received a message from Olaba and he sent him a number and told him whenever he was comfortable he would call using that number. His phone number was 0752 he could not remember the other digits. He told him to send him Wendi''s number and he sent the number with a name Wendi Kemunto.
He called the said number and a lady picked up the same. When she picked up he called her Wendi, and the response was that she was not Wendi, but her mother. He asked her if they could meet as he want to inform her something. He told her it related to Wendi''s case which was in Court.
She told him she was not nearby and was fearful. He suggested they meet at the police station. They met at Kilimani Police Station. He told her what Olaba told him concerning the case of Wendy. They met first before reporting to the station.
They entered the DCI - Offices and found an officer by the name Otieno. He informed him what Olaba wanted. He told him to be close to Olaba so that he does not escape. He advised him to inform him to top up the amount. He tried to meet him (Olaba) but they never met at first. Thereafter on 22/4/2021 an officer by the name Otieno asked whether he could meet Olaba and talk to him.
Otieno linked him with another officer called Ibrahim. He called Olaba and asked him whether they could meet and talk, so that he could add some money. When he called Olaba he told him he was a little bit busy and suggested they meet in the evening
They were to meet at Madaraka, the same place where he gave him the money. They met with Olaba and he was together with PW2 PC I Mohammed. They met first with the officer, and after a few minutes Olala arrived at the meeting point
When Olaba arrived they started negotiating with Olaba on how he could top up the amount. He indicated that he did not have money to top up, but he said he could give them the Kshs: 100,000/- first thereafter he could top up after the mission had been accomplished.
While they were discussing policemen arrived, one of them was officer Otieno and I do not know the other officer. That is how he was arrested. He was given Kshs. 10,000/-in (1,000) denominations. MFI -1 (i-x). The said Olaba was/is seated at the dock.
Cross-Examination by Oduk
He used to work at a car wash. It is known as Boys Car Wash. He was still working there. He was not the owner of the car wash. The owner is known as Daseka. They are about 10 people. He had never been to Court before. He understood the nature of an oath.
On 13 th April 2021,he1 was at work, they had a record of the cars washed. They indicated the vehicle numbers plates. They did not indicate the names of the people, but they concentrated on the vehicle registration details.
There were many people who passed at the car wash. He recorded his statement on 17 th April 2021. In the statement identified the Accused as " Budaa. " Today, he referred him as Olaba. He used to know his friend whom they used to come with at the garage. The friend was the owner of the vehicle. He used to refer the friend as “ Kenya One ”. He was a man. He had washed the vehicle for " Kenya One ” for a period of four months
The vehicle was a "Rav 4" It was Black in colour. I do not remember the number plate. In their records, the number plate should be there. He did not have any record of the car wash.
He told him that he had a rape case in Court. He did not have the particulars of the same. He told him to look for people who they could come together and perform the task.
He did not know how to perform the task which had been proposed. He took the money but he could not deliver he wanted to know his seriousness. He was not given Kshs. 100,000/=. The ATM was located outside Strathmore. He did not know the bank. He was on the other side of the road. That was the money that he was given. When he received the money, he placed the same in his pocket. He used to wash the vehicle for "Kenya One" in 2019. He did not know whether he was in Kamiti. Hedid not know what is "Mboka."
Olaba sent him a text message. He sent Wendi''s number. He could not exactly remember Olaba''s number. It was 0740-something he could not recall. He could not remember Wendi''s number. He called Wendi but it was the mother who picked the same. The person to be contacted was supposed to be Wendy. He knew Wendy by photo identification. Olaba showed him the same. The Accused showed him the photograph which was on his phone.
They met with the officer at a Police Post. He is known as Ibra . At the police station, he recorded a statement and thereafter Mama Wendy followed. He was not given any OB number. The vehicle which was being washed at their car wash belonged to (friend) "Kenya One and not "Budaa." (Accused)
He did not have "Kenya One''s" number. They were at "Mada" when they met. Strathmore is at Makadara. He had have not crammed his mobile phone number. He Knew his identity card number off head. There is a Police Post at Highrise.
When he called Mama Wendy, she told him they were to meet at Kilimani Police Station. He was not given any promise. They were arrested on 22 nd April 2021, they were the three of them.
That is "Budaa," (Accused) Ibrahim (PW2) and himself (PW3). He knew Ibrahim when they met. It was at that point that he knew he was a police officer. He later discovered he was a police officer attached to DCI Kilimani.
Their meeting with "Budaa" was to negotiate on how he will enhance the money and plan on the elimination of Wendy. He could identify Wendy based on the photo that he was shown. The officer Ibrahim had not seen Wendy''s photo.
He first introduced Ibrahim as the Head of Watchmen. He could not recall Ibrahim''s number. Officer Otieno is the one who gave Ibrahim his number. The plan was to stage a robbery and thereafter eliminate Wendy.
The plot was that she should not attend Court to testify. He did not know the date. He was told she resides near State House Girls. They had not set the time for the robbery. They were to use a gun for the same. He told him he had found people with a gun for the mission to be accomplished.
The officer (Ibrahim) was the one present, but there was no gun. He was giving Olaba the confidence that there was a gun. Olaba is the person who had planned. On his arrest, it was Ibrahim and Otieno who were the ones who planned the same.
The officers planned for the Accused to be arrested. He was successfully arrested. The money he took to the station is before Court. He did not record the serial numbers of the same.
DEFENCE
DWI Alex Mahaga Olaba Sworn
On his Defence DW1 stated that he was a Former Rugby player as well as a student at Strathmore University. He played for Strathmore University and Kenya Harlequins. He played for Kenya Harlequins before. He had a different matter before a different Court. Sexual Offence No. 27 of 2020. Previously there was another matter Sexual Offence No.10 of 2018. In regard to Sexual Offence No.10 of 2018, he went through the trial process and he was convicted for 15 years. On Appeal, the High Court directed a re-trial be held. This led to Sexual Offence No. 27 of 2020. He had been attending Court whenever required.
This matter arises from the other matter, he was being accused in trying to eliminate the main witness in Sexual Offence No. 27 of 2020. The name of the witness is Wendy Kemunto. The said Wendy Kemunto did not testify. He was arrested on 22 nd April 2021, on this particular day he was in Busia County at around 4 AM.
He was to travel to Nairobi and looked for public vehicles but he found none. Luckily, he found a private vehicle.
On this particular day, there was as matter Sexual Offence No.27 of 2020. The mater was being mentioned virtually. His lawyer sent him the link and he joined the same. Subsequently, he travelled to Nairobi. He arrived in Nairobi at around 1.30 p.m. and he was to meet the Strathmore Head Coach by the name Louis Otieno. He was coming to talk to him over rejoining rugby, since he had been in prison. He talked to the coach nicknamed "Fathe" who informed him that he would be at the Strathmore Training grounds at 5 pm.
The Strathmore training grounds is at Madaraka, "Strathmore Sports Complex. He did not manage to meet him that day.
On the same day, he left Highrise to Madaraka. He walked all the way.
On the way at an estate/place known as Akila (2), someone waved him down from behind, he saw a young man that he was not familiar to but he stopped.
He introduced himself as a Rugby player and he inquired where he was going and he told him. The way he talked he seemed like someone who knew him. He inquired whether he wanted to rejoin Rugby, and from his questions seemed to know that he was from prison. He informed him that he was also looking for a better club to join. He suggested they could join the same club and play together. They talked as they were headed to Akila. Behind them was an elderly person with a young man.
They caught up with them. He greeted them and the young man introduced him as his friend.
Thereafter it started raining. They hurried so as to get shelter on the road. They got into Siwaka Plaza, it is a building that has stalls. They got there and sat down, and no sooner had they sat down than he saw the elderly person who was behind them was trying to make a call but later hang up.
Immediately, he said some two huge gentlemen who came straight to them. They greeted all of them and he was grabbed by his shoulder and put handcuffs on them, and told them to sit down.
One of the two gentlemen pulled out his gun and cocked it. That action scared the people who were around and they ran away. They sat there for about 40-50 metres and later escorted to an awaiting police vehicle.
They went to Kilimani Police Station and held in separate rooms. He managed to get a phone and called his Advocate Oduk and informed him that he had been arrested. As he was waiting for his lawyer, one of the guys who had arrested them came in and started interrogating him with threats: that he remains silent.
Later on his bond was cancelled and they went to the High Court for a Revision No. E108 of 2021 and consolidated with No. E334 of 2021. The decision of the High Court was that his bond was reinstated.
The allegations that he owns a motor vehicle are false. He has never taken any motor vehicle to a car wash. He did not withdraw any money from any account, and he was just from prison and struggling financially.
He did not recall if there were bond terms conditions issued by the Court. He had never threatened any witness either directly or indirectly. He did not conduct himself in a manner to jeopardize any investigations.
CROSS-EXAMINED BY PROSECUTOR
On Cross examination by Prosecutor, DW1 stated that Sexual Offence No. 27 of 2020 was pending at Milimani Law Court. The first case was Sexual Offence No. 10 of 2018.
He stated that on 22 nd April 2021 he was at Siwaka Plaza with two gentlemen. He met them randomly on the streets. That was PW2 and PW3.
PW2 indicated that he was a police officer and PW3 worked at a car wash. He had never met PW2 and PW3. He came to realize that he was being set-up. He could drive but he did not take the vehicle to the car-wash.
He had a Bank Account at NCBA Bank. He was placed in a cell and roughed up by Police Constable Otieno.
RE-EXAMINATION
On Re-examination DW1 stated that he had an account at NCBA. He had an ATM Card. He said he did not withdraw any money on 22 nd April. After Sexual Offence No.10 of 2018 he was convicted and they were at Kamiti Prison. They were there for about one year.
He said did not know the Gentleman who was working at the car wash. He also said he did not know the elderly gentleman.
The reason for travelling to Nairobi was to meet the Strathmore coach on rejoining the Rugby team.
He had discussion with the Car Wash guy on rugby only and nothing else. The issue of investigating officer harassing him was dealt by the High Court. The alleged witness who was to be eliminated, he only saw her at Milimani Court. He had never interacted with the mother of the purported witness.
PETITION OF APPEAL
52. On 5 th June 2023, Alex Olaba the Appellant herein filed a Petition of Appeal and stated as follows:
1. That the Trial Magistrate erred in law and fact by failing to comply with the provisions of Section 224 of the Penal Code, Chapter 63 Laws of Kenya.
2. That the Trial Magistrate erred in law and fact by failing to
comply with the provisions of Section 117 of the Penal Code, Chapter 63 Laws of Kenya.
3. That the Trial Magistrate failed to address himself correctly on the law regarding conspiracy charges.
4. That the Trial Magistrate erred in law and fact by failing to consider that the alleged victim KA, neither recorded a statement nor was she a witness before the trial court.
5. That the Trial Magistrate erred in law and fact failing to consider that, no specific evidence was adduced in regards to the nature, time, manner and place that the alleged victim would be killed.
6. That the Trial Magistrate erred in law and fact by failing to consider that, no specific evidence was adduced in regard to the bank account and receipt in regard to the alleged money of Kshs. 10,000.
7. That the Appellant''s conviction is against the weight of evidence. The Trial Magistrate erred in law and fact by ignoring or not weighing sufficiently, and not judiciously appreciating the inconsistent and contradictory evidence of the Prosecution Witnesses.
8. The Trial Magistrate erred in law and fact by considering the Prosecution Witnesses who told numerous untruths, were cunning, unreliable and evasive, forgetful and contradictory on material aspects.
9. That the Trial Magistrate erred in law and fact in selectively impugning witnesses’ evidence and then giving credence to testimonies and holding "irrelevant" evidence which was immaterial and unfavorable to the Appellant
10. That the Trial Magistrate erred in law and fact in admitting and relying on a generic Victim Impact Assessment Statement, adduced as evidence yet the alleged Interviewed victim KA was not part of the proceedings
11. That the Trial Magistrate erred in law and fact by failing to consider that, no specific evidence was adduced in regard to the alleged phone number 0740 by……..PW3.
12. That the Trial Magistrate erred in law and fact by failing to consider that, no evidence was adduced to counter the Appellant''s sworn testimony that he attended court in the Chief Magistrates Court at Milimani in Criminal Case No. Sexual Offence 27 of 2020.
13. That the Trial Magistrate erred in law and fact in not recording the proceedings in court correctly,
14. That the Trial Magistrate erred in law and fact in admitting hearsay evidence adduced by the Prosecution Witnesses.
15. That the Trial Magistrate erred in law and fact in relying and admitting entrapment evidence to convict and sentence.
16. The Trial Magistrate erred in law and fact by not taking into consideration that, the Prosecution failed to prove the charges of conspiracy to murder beyond reasonable doubt, as it did not prove the ingredients of the offence as required and provided for, in Section 224 of the Penal Code, Chapter 63 Laws of Kenya.
17. The Trial Magistrate erred in law and fact by not taking into consideration that the Prosecution failed to prove the charge of conspiracy to defeat Justice and interference with witnesses beyond reasonable doubt as it did not prove the ingredients of the offence as required and provided for in, Section 117(c) of the Penal Code, Chapter 63 Laws of Kenya.
18. That the Trial Magistrate erred in law and fact by admitting inconsistent evidence and in lieu went to make personal observations that were not corroborated
19. That the Trial Magistrate erred in law and fact in not giving any adequate consideration and rejecting, ignoring and not appreciating the sworn and unchallenged evidence of the Appellant and not considering the Defence judiciously.
20. That the Trial Magistrate erred in law and fact by failing to appreciate the Appellant''s filed submissions dated 27th February 2023 and 15th May 2023.
21. That the Trial Magistrate erred in law and fact by failing to consider the mitigation by the Appellant.
22. That the Trial Magistrate failed to consider that individuals "Kenya One and Fathee" Budaa! were not witnesses hence, convicting on such evidence was unfair and unjust to the Appellant.
23. That the Trial Magistrate erred in law and fact by failing to take into consideration the Appellant''s defence before reaching the impugned verdict.
24. That the Trial Magistrate erred in law and fact in not addressing himself on the matter of burden of proof considered in criminal cases, and in particular conspiracy to commit murder and conspiracy to defeat justice.
25. That the Trial Magistrate erred in law and fact by failing to take judicial notice on the evidence that one would be in Bungoma in the morning and in the evening in Nairobi,
26. That the Trial Magistrate erred in law and fact by convicting the Appellant on extraneous circumstances.
27. That the Trial Magistrate erred in law and in fact by failing to take judicial notice that the Appellant never absconded any court proceedings at all as alleged by the Prosecution.
28. That the Trial Magistrate erred in law and fact by admitting the evidence of PW-3 which was contradictory, uncorroborated and untruthful since he could not remember his ID. No. and the alleged phone number 0740.
29. That the Trial Magistrate failed to consider that no evidence was adduced to show that the Appellant knew and/or communicated to the alleged victim KA.
30. That the trial magistrate erred in law and fact in failing to consider section 169 of the criminal procedure Act, Chapter 75 laws of Kenya.
31. That the Trial Magistrate erred in law and fact by convicting the Appellant, while the conviction and sentence was unsafe.
REASONS FOR THE APPELLANT'' PRAYERS:
That the Appeal be allowed.
The conviction by the Trial Magistrate by Honorable. G. Onsarigo be set aside and sentence quashed.
Any other or further order that this Court May deem fair and just to grant.
APPELLANTS SUBMISSIONS
On 16 th June 2025 the appellant herein, filed submissions and stated as follows:
ISSUES FOR DETERMINATION
It is the Appellant''s humble submission that the issues for determination as follows:
Whether the charge sheet was fatally defective?
ii. Whether the Appellant proved its case beyond reasonable doubt on
a) conspiracy to commit murder?
b) conspiracy to defeat justice?
iii. Whether the circumstances leading to the arrest of the Appellant amounted to entrapment?
vi. Whether the Honorable Court should allow this appeal?
WHETHER THE CHARGE SHEET WAS FATALLY DEFECTIVE?
The Appellant submitted that, the essential ingredient in pores for the offence of conspiracy are:
The Appellant submitted that the Charge Sheet was fatally defective, as it neither disclosed who the complainant was, nor did the complainant record a
statement or testify as a witness during the trial.
He stated that it is trite law that every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.
Therefore, it is trite law that the complainant having not appeared in court during trial, the law provides for acquittal of an accused person for non- attendance by the complainant.
It is noteworthy that, despite not having disclosed who the complainant was, the court went ahead and relied upon the probation officer''s victim impact assessment report. Trial Court Judgment
The Appellant submitted that, the essential ingredient to prove for the offence of conspiracy are:
That two or more people agree to put in effect a scheme whose ultimate aim would be the commission of a criminal offence, and
Existence of an agreement to put into effect a course of conduct in furtherance of a criminal purpose.
In the case of Jane Wambui Gakungu vs. Republic , Hon. Lady Justice Ngenye Macharia (as she then was) held that:
" The rationale being that she could not commit the offence of conspiracy alone. I cannot agree more. The offence of conspiracy requires two or more persons to act in concert towards the attainment of a common goal..”.
In the Court of Appeal case of Evans Waweru Maina vs. Republic, the Learned Judges held that:
"The offence of conspiracy cannot exist without the agreement, consent or combination of two or more persons... so long as a design rests in intention only, it is not indictable, there must be agreement... Proof of the existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them."
In the case of Christopher Wafula Makokha vs. Republic, Hon. Mr. Justice A. Mabeya held that:
"...it is clear that the prosecution must prove the existence of an agreement between the accused and some other person to do the act".
In the case of Nicholas Shivachi & Another vs. Republic, Hon. Mr. Justice L. Kimaru (as he then was) held that:
"On re-evaluation of the evidence adduced before the trial court, in light of the submission made on this appeal, it was clear to the court that the prosecution failed to establish the essential ingredients of the charge of conspiracy. In the present appeal, no evidence was adduced by the prosecution to establish the
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