' These appeals were consolidated on 23-05-2025 with appeal number E009 of 2024 being the lead file. In the lower court, the appellants and 8 others were charged with different counts. After the trial the appellants herein were convicted of the following offences;
Count 3 against the 1 st appellant- conflict of interest contrary to Section 42(3) as read with Section 48(1) of Anti-Corruption and Economic Crimes Act (hereinafter referred to as ‘ACECA’) particulars being that between 27 th March 2013 and 25 th March 2019 at Samburu County Government offices within Samburu County in the Republic of Kenya, being an agent of the Samburu County Government as the Governor and being the sole proprietor of Oryx Service Station he knowingly acquired a direct private interest in contract between Oryx Service Station and Samburu County Government for the supply of fuel. Upon conviction, he was sentenced to a fine of Kshs 1,000,000.00 and in default to serve four years imprisonment.
Count 4 against the 1 st and the 2 nd appellants- unlawful acquisition of public property contrary to Section 45(1)(a) as read with Section 48(1) of the ACECA particulars being that between 27 th March 2013 and 25 th March 2019 within Samburu County in the Republic of Kenya being the Governor of Samburu County and a private person, they unlawfully acquired public property to wit Kshs 84,695,996.55 for the supply of fuel to Samburu County Government through Oryx Service Station. The two were sentenced to a fine of Kshs 1,000,000.00 each and in default to serve prison term of four years. In addition, they were sentenced to a mandatory fine of Kshs 83,460,995.00 under Section 48(1)(b) of ACECA.
Count 11 against the 3 rd appellant- abuse of office contrary to Section 46 as read with Section 48(1) of the ACECA. The particulars were that between 27 th March 2013 and 25 th March 2019, at Samburu County within the Republic of Kenya, being the Chief Officer-Lands, Housing and Urban Development of Samburu County Government, he used his office to improperly confer a benefit of Kshs 9,030,640.00 to Moses Kasaine Lenolkulal trading as Oryx Service Station for supply of fuel to Samburu County Government. He was sentenced to a fine of Kshs 700,000.00 and in default to serve four years imprisonment.
Aggrieved by the above convictions and sentences the 1 st and 2 nd appellants filed their joint appeal number E009 of 2024 raising the following grounds;
THAT the learned Magistrate erred in fact and law by failing to fully analyze and evaluate the evidence adduced and thereby arrived at the wrong conclusions of fact.
THAT the learned Magistrate erred in law by failing to appreciate the meaning and effect in law of the appellant’s declaration of conflict of interest dated 23/4/2013.
THAT the learned Magistrate erred in law by failing to properly appreciate the means rea for the offence of conflict of interest in Section 43 (2) of the Anti- Corruption and Economic Crimes Act.
THAT the learned Magistrate erred in law by finding that the Anti- Corruption and Economic Crimes Act barred public officers from trading with public entities where they are employed.
Having found that evidence adduced in respect of the amounts paid to the appellant by the County Government of Samburu were at variance with the amounts set out in counts 3 and 4 of the amended charge Sheet, the learned Magistrate erred in law by substituting the amounts set out in the said counts with amounts derived from his own tabulation.
Having found that evidence adduced in respect of the amounts paid to the appellant were at variance with the amounts set out in counts 3 and 4 of the amended charge sheet, the learned Magistrate erred in law by failing to find that the offences set out in counts 3 and 4 of the amended charge sheet were not proved.
By substituting the figures set out in counts 3 and 4 of the amended charge sheet, the learned Magistrate erred in law by allowing himself to descent into the fray of the trial and by so doing conducted the trial of the appellant in a manner contrary to Article 50 of the Constitution.
THAT the learned Magistrate erred in law by convicting the appellant of an offence not set out in the amended charge sheet contrary to Section 134 of the Criminal Procedure Code.
THAT the learned Magistrate erred in fact and in law by failing to properly appreciate the impact of the affidavit of the learned prosecutor sworn on 13yh October 2024.
THAT the learned Magistrate erred in law by failing to appreciate that Section 48 (1) (b) of the Anti- Corruption and Economic Crimes Act was only applicable where it had been proved that a loss had been occasioned as a result of an offence committed under Part V of the Anti-Corruption and Economic Crimes Act.
Having found that appellant did indeed deliver the fuel and lubricants for which he was paid by the County Government of Samburu and as result no loss was occasioned to the County Government of Samburu, the learned Magistrate erred in law by sentencing the appellant under Section 48 (1) (b) of the Anti- Corruption and Economic Crimes Act.
The sentence imposed by the learned Magistrate is unlawful as it does not take on board the fact that the High Court in Civil Suit no. 21 of 2019: Ethics and Anti-Corruption Commission V Moses Kasaine Lenolkulal where the High Court directed forfeiture of property held to have derived from the same transaction that was the subject matter of prosecution before the Learned Magistrate.
In appeal number E008 of 2024, the 3 rd appellant raised the following grounds;
THAT the learned trial Magistrate erred in both law and facts in convicting the appellant when the crucial ingredients of the offence of abuse of office as created by Section 46 of Anti-Corruption and Economic Crimes Act, 2003 were never established by the prosecution.
THAT the learned trial magistrate erred in both law and facts convicting the appellant on the face of material contradiction and inconsistency of the evidence by the prosecution.
THAT the learned trial Magistrate erred in both law and facts in failing to consider and in disregarding the sworn affidavit of the learned prosecutor (in conduct) dated 12 th October, 2022.
THAT the learned trial Magistrate erred in law and facts in convicting the appellant without considering extenuating circumstances of the case.
THAT the learned trial Magistrate erred in law and facts in disregarding the defence given on oath and defence submissions without giving reasons and failing to resolve the gaps and doubts in prosecution case in favour of the appellant.
THAT the learned trial Magistrate erred in both law and facts in convicting the appellant whilst relying on his own conjectures, speculations and assumptions to effect that the appellant knew that Oryx Services Station was owned by the former Governor, Moses Kasaine Lenolkulal and thus arrived at the wrong decision.
This being a first appeal, this court has mandate and is required to conduct the appeal as if it was conducting a re-hearing and proceed to re-evaluate, re-examine and re-analyse the evidence produced in the lower court afresh and come to its own independent conclusion. The court must however take into account the fact that it did not take the evidence of the witnesses first hand or observe their demeanours and give due allowance for that. In Daniel Otieno Migore v South Nyanza Sugar Co. Ltd (2018) KEHC 5465 (KLR), the court restated this position thus;
‘As the first appellate Court, it is now well settled that the role of this court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. (See the case of Selle & Ano. vs. Associated Motor Boat Co. Ltd (1968) EA 123 ).’
The Court of Appeal held the same position in Mbuthia Macharia v Annah Mutua Ndwiga & another (2017) KECA 290 (KLR) when it stated that;
‘This is a first appeal, that being so, we are conscious of our duty to re-evaluate the evidence before the trial court and determine the matter afresh with the usual caveat that we did not hear or see the witnesses testify.’
Honourable Justice Joel Ngugi (as he then was) stated in Ndungu Dennis v Ann Wangari Ndirangu & Eddah Mwihaki (2018) KEHC 8799 (KLR) that
‘As a first appellate court, this Court’s duty is to subject the whole of the evidence to a fresh and exhaustive scrutiny and make my own conclusions about it, bearing in mind that I did not have the opportunity of seeing and hearing the witnesses first hand.’
Similarly, in Syuki v Kenya School of Law & another (2025) KEHC 12067 (KLR) it was held that;
‘This being a first appeal, this court is under a duty to re-evaluate and
assess the evidence and make its own conclusions. It must, however,
keep at the back of its mind that a trial court, unlike the appellate court,
had the advantage of observing the demeanour of the witnesses and
hearing their evidence first hand.’
In line with the above established and sound legal principle, this court will go through the testimony of the witnesses and the exhibits produced in the trial court and come to its own independent conclusion but obviously with reference to what the trial court found. The summarised version of the testimony of the witnesses is reproduced below.
The first prosecution witness was one Joseph Mayali Lekulkuli who told the court that he worked for the Samburu County Government as the head of treasury accounting unit with his duties including planning and budgeting process, requisition and securing of funds from the national government, approval of manual and electronic transactions, generating of financial statements, spearheading audit process, following up on audit queries, supervision of awarding staff and any other duty as may be assigned by the Chief Officer Finance.
He told the court that he was aware that the case arose and involved procurement of fuel and lubricants for the County Government of Samburu (hereinafter referred to as ‘the government’) from an entity known as Oryx Fuel Station in Mararal (hereinafter referred to as ‘Oryx’). He was required by the Ethics and Anti-Corruption Commission (hereinafter referred to as ‘the EACC’) to peruse a couple of payment vouchers addressed to Oryx, the payee and give information on what the government was paying for. He added that for a payment voucher to be drawn, there must have been procurement process with request originating from the user department. The witness went on to narrate the procurement process which I don’t consider important reproducing in this judgment.
The witness was led to identify the aforesaid payment vouchers and their attachments being documents related to the procurement in question which were invoices, tender documents, minutes, counter receipt vouchers, award decisions and local purchase orders. He stated that all the payments in question were paid via electronic funds transfer. He produced a total of 232 exhibits.
In cross-examination, PW1 stated that he played a crucial role in the process of payments. He confirmed that by approving payments vouchers, it meant that the procurement process involving payment in reliance on documents produced as exhibits 1 to 231 was satisfactory. He also insisted that the government’s dealings in respect of the payment vouchers he had produced were in compliance with procurement laws and that Oryx was not the only fuel supplier to the government as there were two others who had been pre-qualified.
The witness added that after pre-qualification of suppliers, it was left to the Chief Officers of the ten departments in the government to make decisions which service stations they would want to deal with. He was referred to several exhibits and confirmed that they were in order and issued procedurally and the procurement of supplies for fuel was done competitively. He added that the 1 st appellant never made any follow ups of payment. He also confirmed that the government got value for the money it paid and the payment vouchers he had produced had met all the requirements necessary for payment.
PW1 also stated that there was a letter written by the 1 st appellant declaring interest that he had relinquished Oryx to the 2 nd appellant. He added that the procurement of the fuel and lubricants in question was already on at the time the 3 rd appellant was appointed. He also confirmed he signed the payment vouchers after having confirmed that the fuel had been delivered as contracted and he could not pinpoint any blame on the 3 rd appellant among other co-accused who were charged with abuse of office.
In re-examination, he clarified that he was not a procurement professional and that by stating that the procurement process was okay, he meant that the supporting documents led him to make assumption that procurement process was proper. He stated further that before payments were made, he checked the payment vouchers approved by the A.I.E holder and the unit sizes and that he could not have signed a payment voucher which had not been signed by the A.I.E holder.
The prosecution called Joram Ramiti Lentoijoni as its second witness. Joram was at the time of his testimony working at the government as the acting Head of Supply Chain Management. He told the court that he was the custodian of all procurement documents. He had also served at the principal procurement office in agriculture department and also as an assistant procurement officer and a clerical officer in the ministry of livestock.
He testified that he was aware how the procurement in question was done. He went on to explain the process of the procurement including the process of payment. He stated that he did not participate in pre-qualification for suppliers from 2013-2017 since his main duty was the custody of procurement documents. He identified and produced list and register of pre-qualified suppliers, procurement plans for the years in question, quotations registers for the years in question and budgets for different departments as exhibits 233 to 237(r).
The witness was subjected to cross-examination where in addition to repeating the procurement process told the court that Oryx appeared in the list of pre-qualified suppliers and that the fuel supplied had been budgeted for. He confirmed that Oryx was prequalified by the government for the supply of fuel & lubricants in the financial year 2014/2015.
PW2 emphasized that there was no irregularity in the procurement documents he produced before the court. Among the documents he produced was a letter by the 1 st appellant dated 5 th April 2013 as exhibit 238 which was addressed to the County Secretary Samburu County Government. The letter was in respect of a declaration of conflict of interest. The letter was copied to all accounting officers and all procurement officers and according to the witness, the 1 st appellant declared a conflict of interest in respect of Oryx with effect from 5 th April, 2013. He added that the money paid to Oryx was paid lawfully.
The testimony of PW3 was quite short. Evans Juma Osetero told the court that he had been an employee of Postal Corporation of Kenya as an assistant manager investigation based at delta house Nairobi headquarters. He testified that he had been required to supply particulars of rental box number 113 Maralal. He added that he wrote to the EACC giving details of the rental box which showed that the box was rented to David Lenolkulal. He produced the letter as exhibit 240. In a short cross examination, he said that he did not know any of the accused persons.
Peterson Wachira working at the Registrar of Companies Department and based at Sheria House was the fourth witness. He had been requested by the EACC to give information of 83 companies including Oryx upon which he prepared a report. Among the 83 were Orxy Petrol Station, Orxy Service Station and Orxy Petrol Station. After conducting a search for three companies he arrived at the following findings: -
Orxy Petro Station was a business name registered on 9 th March, 2015 under registration no. BN/2015/344811 located on plot no. 64 Nyahururu road. Its proprietor was Hesbon J.W Ndathi the 2 nd appellant. The business had been ceased pending conversion to a limited liability company. He did not provide the documents to show when the business ceased but the information was available online.
Oryx Service Station was a business name registered on 1 st February, 2010 under registration no. BN/2010/60371. It was located at plot no. 35 Maralal road. Its proprietor was the 1 st appellant. The business had also been ceased pending conversion to a limited company.
Orxy Petrol Station was also a business name which did not appear in the data base of the registered businesses.
He produced the report and its annexures as exhibit number 243. He also produced a CR13 in respect of a company known as Oryx Investment Company Limited which showed that the 1 st appellant was a director holding 75 shares and one Lily Sepita Lenolkulal as a director shareholder with 25 shares. It is said to be a limited liability company formed on 7 th October 2008.
He was cross examined by the defence counsel and stated that Orxy existed before County Governments came into existence and that he had not produced the registration certificate for Orxy. He added that their record did not have the date when Oryx Service Station ceased to exist.
PW5, Mr. Stephen Yego was a forensic document examiner working with EACC on full time basis. He recalled that on 13-03-2019, he was on duty at EACC Forensic Laboratory when he received a request from Joel Khisa Nyongesa in form of an exhibit memo with the following documents;
A lease agreement of Oryx Service Station plot no. 5 between Moses Kasaine Lenolkulal proprietor and Hesbon J.W. Ndathi dated 1 st May 2013 marked A1. It was marked by the court as MFI 245.
A lease agreement of Oryx Service Station plot no. 5 between Moses Kasaine Lenolkulal proprietor and Hesbon J.W. Ndathi dated 1 st May 2013 marked A2 which was identified in court as MFI 246.
An agreement made between Moses Kasaine Lenolkulal (proprietor) and Hesbon J.W. Ndathi (lessee) regarding management of Oryx Service Station dated 20 th November, 2013 marked A3. It was marked in court as MFI 247.
A certain copy of Equity Bank application for funds transfer of Ksh 7 million from Orxy Service Station account no. 1100297993314 between Moses Kasaine Lenolkulal account no. 110029474606 dated 9 th September, 2013 marked A4. The same was marked in court as MFI 248.
Equity Bank application for funds transfer of Ksh. 11 million from Moses Kasaine Lenolkulal account no. 110029474606 to Balala Abeid Advocates in Imperial Bank account no. 0340875028 dated 9 th September, 2013 marked A5 which was marked for the court as MFI 249.
KCB application for funds transfer of Kshs. 8,100,000/= from Moses Kasaine Lenolkulal account no. 1108168841 to Balala Abeid Advocates in Imperial Bank account no. 0340875028 dated 9 th December, 2013 marked A6. It was marked in court as MFI 250.
KCB cash withdrawal advise slip dated 26 th May, 2014 from Oryx Service Station account no. 1124724591 of Kshs. 900,000/= marked A7 which was now marked in court as MFI 251.
KCB application for funds transfer of Ksh. 2 million from Moses Kasaine Lenolkulal account no. 066199000060 to Kemonde Ilara account no. 057019664914 in Equity Bank dated 6 th March, 2013 marked A8. It was marked in court as MFI 252.
KCB application for funds transfer of Ksh. 2,300,000/= from Oryx Service Station account no. 1124724591 to Modern Precast Kenya Limited account no. 0404901101 in Equatorial Commercial Bank dated 28 th July, 2015 marked A9. It was marked in court as MFI 253.
KCB application for funds transfer of Ksh. 715,000/= from Oryx Service Station account no. 066130051325 to Hass Consult Limited account no. 2035726554 in Barclays Bank dated 7 th October, 2017 marked A10. It was marked in court as MFI 254.
KRA minutes of negotiations over ground floor for Maralal office at Samburu County Government Chambers dated 28 th January, 2018 marked A11 which was now marked in court as MFI 255.
Orxy Service Station copy of cheque no. 1124724591 dated 29 th August, 2012 of Kshs. 666,000/= marked A12. It was marked in court as MFI 256.
A copy of KCB customer transaction voucher dated 19 th September, 2013 for account no. 199000060 in the name Moses Lenolkulal of Kshs. 180,000/= marked A 13. It was now marked in court as MFI 257.
A copy of KCB transaction voucher dated 20 th September, 2013 of account no. 1124724591 in the name of Orxy Service Station of Ksh. 180,000/= marked A 14. It was marked in court as MFI 258.
A copy of KCB customer transaction voucher dated 2 nd December, 2013 of account no. 1124724591 in the name of Orxy Service Station of Kshs 2,316,000/= marked A 15 which was now marked MFI 259.
A copy of KCB transactions voucher dated 14 th August, 2014 of account no. 066130051325 in the name of Moses K. Lenolkulal of Kshs 224,220/= marked A 16. It was then marked MFI 260.
A copy of KCB transfers of funds transactions voucher dated 16 th May, 2013 of account number 1103629506 in the name of Hesbon J. W Ndathi of Kshs 1,600,000/= marked A 17. It was marked in court as MFI 261.
KCB transactions of funds voucher dated 9 th December, 2013 of account no. 1124724591 in the name of Orxy Service Station of Kshs 200,000/= marked A 18. It was then marked in court as MFI 262.
A copy of Oryx Service Station cheque no. 00423 KCB on account no. 1124724591 dated 29/01/2014 for Ksh. 1,004,500/= marked A19 which was then marked MFI 263.
Samburu Furniture copy of cheque no. 000015 KCB account no. 1148627103 dated 26/5/2014 for Ksh. 700,000/= marked A20. It was then marked 264.
Orxy Service Station copy of cheque no. 00526 K.C.B account no. 1124724591 dated 11/8/2014 of Ksh. 1,014,000/= marked A21. It was marked in court as MFI 265.
A copy of Oryx Service Station cheque no. 00652 K.C.B account no. 1124724591 dated 17/4/2015 for Ksh. 600,000/= marked A22. It was then marked in court as MFI 266.
A copy of Oryx Service Station cheque no. 00651 K.C.B on account no 1124724591 dated 17/4/2015 for Kshs 2,000,000/= marked no. A23. It was then marked in court as MFI 267.
A copy of Oryx Service Station cheque no. 00819 K.C.B on account no. 1124724591 dated 29/1/2016 for Ksh. 1,000,000/= marked A24. It was then marked in court as MFI 268.
These were the questioned documents in addition to which he received specimen signatures of the 1 st appellant. He stated that he also received the following documents;
A cheque leaf no. 002576 in the name of the 1 st appellant bearing his known signature.
A certificate of inauguration of the Governor of Samburu County dated 27/3/2013 bearing the known signature of the 1 st appellant.
Oryx Guest House Maralal management agreement bearing the known signature of the 1 st appellant.
Samburu County Government transfer of land to Lilipilise Lekupe by the 1 st appellant dated 10/11/2015.
Other marked documents bearing the known signature of the 1 st and 2 nd appellants.
Upon his examination, he established that the documents attributed to the 1 st appellant were made by the same author as well as those attributed to the 2 nd appellant. He prepared a report which he produced as exhibit 244(b) in court.
On crosse-examination, he stated that his report was independent and free from bias although he was an employee of EACC. He denied that EACC had an interest in the case.
Jacob Oduor was another forensic examiner working for EACC who recalled that on the 11 th April 2019, several exhibits were submitted to the EACC laboratory by Joel Issa. The documents were numerous 120 LPOs, 167 payment vouchers and specimen signatures of various people including the 3 rd appellant. He matched signatures and authorship of the various documents and prepared a report which he produced as exhibit 282.
He continued and told the court that again on 18 th April 2019, he received other bundles of documents comprising 68 LPOs, 51 payment vouchers and specimen signatures of various people none of whom is an appellant herein. He prepared a report dated 25 th April 2019 which indicated that the documents were authored by the same person which report he produced as exhibit 297.
The witness added that on 29 th April 2019, he received another exhibits memo accompanied by 199 LPOs and a memo addressed to the County Secretary dated 18-05-2017 together with specimen signatures of one Geoffrey Kiteesen. Upon examination as requested by the investigating officer, he concluded that the documents and the specimen signatures were made by the same person. He prepared a report dated 30 th April 2019 which he produced as exhibit 298(b).
In cross-examination, this witness explained the methodology he used in carrying out his examination. He added that it took ten minuets to examine one signature and added that he examined the documents on 12 th April 2019 for 13-14 hours. Despite working for the EACC, he maintained that his work was independent and impartial. He also confirmed that some of the documents he examined were not signed. He also stated that he did not notice anything unusual about the payment vouchers and out of the thirteen names mentioned in exhibit memo dated 18 th April 2019, only one Stephen Siringe was in the charge sheet.
PW7 was Johnstone Kirui who was working at Kenya Commercial Bank, Maralal branch as the branch manager. He was served with a miscellaneous application No. 1029 of 2019 and an order dated 5/3/2019 in respect of 29 accounts out of which he was to act on accounts numbers 1124724591 and 1177182416 also for Oryx Service Station but he only acted on account No. 1124724591.
He also told the court that the EACC requested statements in both soft and hard copies, books, cheques, account opening documents including details of account signatories, mandate card, EFT instructions, EFT instruction letters, disbursements authorization, deposit slips and withdrawal slips for the said account. He complied with the order and supplied the account opening documents which was opened by the 1 st appellant as a sole proprietor account on 7-02-2011. The application for account opening was made on 7 th February 2011. He also supplied instructions for the change of signatories dated 1 st May 2013 which was received on 22/10/2015. The name and the signatures of the 1 st appellant were being removed and the name of Hesbon J.W. Ndathi ID No. 8823757 was introduced. He produced the instructions as exhibit 302 and the bank statement for the period between 9-12-2012 to 28-02-2019 as exhibit 303.
The witness proceeded to single out payments in the bank statement which were made to Oryx by the government and made an excel sheet for the same. He told the court further that the EACC investigators requested for all payments paid to Oryx by the government. He gave the breakdown of the payment which were 15 running from 9-05-2013 to 24-12-2013. He also supplied four cheques viz number 427 dated 21-08-2013, number 569 dated 4-10-2013, another one dated 17-09-2013 and number 529 also dated 17-09-2013.
When he was placed under cross-examination, the witness reiterated that Oryx became a KCB customer from the 7 th February 2011 while the government became operational in the year 2013. He also confirmed that only two payments above one million were made after 2016 and for the entire period the bank did not see any suspicious payments neither did the bank flag or report to Central Bank any suspicious payment. He confirmed that the bank received the letter for change of signatories on 22/10/2015 and it effected the changes on the same day. He stated that, the 1 st appellant ceased to be a signatory to the account on 22/10/2015 and was replaced by the 2 nd appellant. He also confirmed that once one ceased from being a signatory, they cannot access funds from the account. He reiterated that from October 2015, the 1 st appellant could not access the account.
In re-examination, he told the court that the first payment made into the account was on 18/7/2013. He restated that a person whose signature is not in the bank system cannot withdraw the money.
The prosecution’s 8 th witness told the court that he had previously worked at Maralal branch of Kenya Commercial Bank with effect from April 2016 until April 2019 as service quality and compliance manager. He added that on the 27 th February 2019, he was served by EACC with a warrant issued in miscellaneous criminal application No. 871 of 2019 which required him to provide documents and transactions relating to account numbers 1103831208 which was the same as 066130051325 (belonging to the 1 st appellant), 1108168841 which was the same as 066199000060 (belonging to the 1 st appellant), 1234708647, 124724591 (belonging to Oryx Service Station) and 1177182416 (belonging to Oryx Service Station). He added that account number 1108168841 was also opened by the 1 st appellant on 7 th March 2006 with him being the only signatory. Account number 1234708647 was opened on 25-10-2011 while account number 1124724591 was opened on 24/2/2011. The 1 st appellant was a signatory to account number 1103831208 the same having been opened on 7 th July 1994.
He went to provide the required information including identity and account opening cards. The witness produced transfer instructions and cheques done by the 1 st and 2 nd appellants to various persons on various dates. He confirmed that the bank received a letter dated 1 st May 2013 instructing it to withdraw the 1 st appellant as a signatory and have the 2 nd appellant remain as the sole signatory. Although he could not tell when the instructions were effected, he was sure that they were. He was also sure that when he reported to Maralal in April 2016, the 2 nd appellant was the signatory.
In cross-examination, PW8
[...truncated]
Count 3 against the 1 st appellant- conflict of interest contrary to Section 42(3) as read with Section 48(1) of Anti-Corruption and Economic Crimes Act (hereinafter referred to as ‘ACECA’) particulars being that between 27 th March 2013 and 25 th March 2019 at Samburu County Government offices within Samburu County in the Republic of Kenya, being an agent of the Samburu County Government as the Governor and being the sole proprietor of Oryx Service Station he knowingly acquired a direct private interest in contract between Oryx Service Station and Samburu County Government for the supply of fuel. Upon conviction, he was sentenced to a fine of Kshs 1,000,000.00 and in default to serve four years imprisonment.
Count 4 against the 1 st and the 2 nd appellants- unlawful acquisition of public property contrary to Section 45(1)(a) as read with Section 48(1) of the ACECA particulars being that between 27 th March 2013 and 25 th March 2019 within Samburu County in the Republic of Kenya being the Governor of Samburu County and a private person, they unlawfully acquired public property to wit Kshs 84,695,996.55 for the supply of fuel to Samburu County Government through Oryx Service Station. The two were sentenced to a fine of Kshs 1,000,000.00 each and in default to serve prison term of four years. In addition, they were sentenced to a mandatory fine of Kshs 83,460,995.00 under Section 48(1)(b) of ACECA.
Count 11 against the 3 rd appellant- abuse of office contrary to Section 46 as read with Section 48(1) of the ACECA. The particulars were that between 27 th March 2013 and 25 th March 2019, at Samburu County within the Republic of Kenya, being the Chief Officer-Lands, Housing and Urban Development of Samburu County Government, he used his office to improperly confer a benefit of Kshs 9,030,640.00 to Moses Kasaine Lenolkulal trading as Oryx Service Station for supply of fuel to Samburu County Government. He was sentenced to a fine of Kshs 700,000.00 and in default to serve four years imprisonment.
Aggrieved by the above convictions and sentences the 1 st and 2 nd appellants filed their joint appeal number E009 of 2024 raising the following grounds;
THAT the learned Magistrate erred in fact and law by failing to fully analyze and evaluate the evidence adduced and thereby arrived at the wrong conclusions of fact.
THAT the learned Magistrate erred in law by failing to appreciate the meaning and effect in law of the appellant’s declaration of conflict of interest dated 23/4/2013.
THAT the learned Magistrate erred in law by failing to properly appreciate the means rea for the offence of conflict of interest in Section 43 (2) of the Anti- Corruption and Economic Crimes Act.
THAT the learned Magistrate erred in law by finding that the Anti- Corruption and Economic Crimes Act barred public officers from trading with public entities where they are employed.
Having found that evidence adduced in respect of the amounts paid to the appellant by the County Government of Samburu were at variance with the amounts set out in counts 3 and 4 of the amended charge Sheet, the learned Magistrate erred in law by substituting the amounts set out in the said counts with amounts derived from his own tabulation.
Having found that evidence adduced in respect of the amounts paid to the appellant were at variance with the amounts set out in counts 3 and 4 of the amended charge sheet, the learned Magistrate erred in law by failing to find that the offences set out in counts 3 and 4 of the amended charge sheet were not proved.
By substituting the figures set out in counts 3 and 4 of the amended charge sheet, the learned Magistrate erred in law by allowing himself to descent into the fray of the trial and by so doing conducted the trial of the appellant in a manner contrary to Article 50 of the Constitution.
THAT the learned Magistrate erred in law by convicting the appellant of an offence not set out in the amended charge sheet contrary to Section 134 of the Criminal Procedure Code.
THAT the learned Magistrate erred in fact and in law by failing to properly appreciate the impact of the affidavit of the learned prosecutor sworn on 13yh October 2024.
THAT the learned Magistrate erred in law by failing to appreciate that Section 48 (1) (b) of the Anti- Corruption and Economic Crimes Act was only applicable where it had been proved that a loss had been occasioned as a result of an offence committed under Part V of the Anti-Corruption and Economic Crimes Act.
Having found that appellant did indeed deliver the fuel and lubricants for which he was paid by the County Government of Samburu and as result no loss was occasioned to the County Government of Samburu, the learned Magistrate erred in law by sentencing the appellant under Section 48 (1) (b) of the Anti- Corruption and Economic Crimes Act.
The sentence imposed by the learned Magistrate is unlawful as it does not take on board the fact that the High Court in Civil Suit no. 21 of 2019: Ethics and Anti-Corruption Commission V Moses Kasaine Lenolkulal where the High Court directed forfeiture of property held to have derived from the same transaction that was the subject matter of prosecution before the Learned Magistrate.
In appeal number E008 of 2024, the 3 rd appellant raised the following grounds;
THAT the learned trial Magistrate erred in both law and facts in convicting the appellant when the crucial ingredients of the offence of abuse of office as created by Section 46 of Anti-Corruption and Economic Crimes Act, 2003 were never established by the prosecution.
THAT the learned trial magistrate erred in both law and facts convicting the appellant on the face of material contradiction and inconsistency of the evidence by the prosecution.
THAT the learned trial Magistrate erred in both law and facts in failing to consider and in disregarding the sworn affidavit of the learned prosecutor (in conduct) dated 12 th October, 2022.
THAT the learned trial Magistrate erred in law and facts in convicting the appellant without considering extenuating circumstances of the case.
THAT the learned trial Magistrate erred in law and facts in disregarding the defence given on oath and defence submissions without giving reasons and failing to resolve the gaps and doubts in prosecution case in favour of the appellant.
THAT the learned trial Magistrate erred in both law and facts in convicting the appellant whilst relying on his own conjectures, speculations and assumptions to effect that the appellant knew that Oryx Services Station was owned by the former Governor, Moses Kasaine Lenolkulal and thus arrived at the wrong decision.
This being a first appeal, this court has mandate and is required to conduct the appeal as if it was conducting a re-hearing and proceed to re-evaluate, re-examine and re-analyse the evidence produced in the lower court afresh and come to its own independent conclusion. The court must however take into account the fact that it did not take the evidence of the witnesses first hand or observe their demeanours and give due allowance for that. In Daniel Otieno Migore v South Nyanza Sugar Co. Ltd (2018) KEHC 5465 (KLR), the court restated this position thus;
‘As the first appellate Court, it is now well settled that the role of this court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. (See the case of Selle & Ano. vs. Associated Motor Boat Co. Ltd (1968) EA 123 ).’
The Court of Appeal held the same position in Mbuthia Macharia v Annah Mutua Ndwiga & another (2017) KECA 290 (KLR) when it stated that;
‘This is a first appeal, that being so, we are conscious of our duty to re-evaluate the evidence before the trial court and determine the matter afresh with the usual caveat that we did not hear or see the witnesses testify.’
Honourable Justice Joel Ngugi (as he then was) stated in Ndungu Dennis v Ann Wangari Ndirangu & Eddah Mwihaki (2018) KEHC 8799 (KLR) that
‘As a first appellate court, this Court’s duty is to subject the whole of the evidence to a fresh and exhaustive scrutiny and make my own conclusions about it, bearing in mind that I did not have the opportunity of seeing and hearing the witnesses first hand.’
Similarly, in Syuki v Kenya School of Law & another (2025) KEHC 12067 (KLR) it was held that;
‘This being a first appeal, this court is under a duty to re-evaluate and
assess the evidence and make its own conclusions. It must, however,
keep at the back of its mind that a trial court, unlike the appellate court,
had the advantage of observing the demeanour of the witnesses and
hearing their evidence first hand.’
In line with the above established and sound legal principle, this court will go through the testimony of the witnesses and the exhibits produced in the trial court and come to its own independent conclusion but obviously with reference to what the trial court found. The summarised version of the testimony of the witnesses is reproduced below.
The first prosecution witness was one Joseph Mayali Lekulkuli who told the court that he worked for the Samburu County Government as the head of treasury accounting unit with his duties including planning and budgeting process, requisition and securing of funds from the national government, approval of manual and electronic transactions, generating of financial statements, spearheading audit process, following up on audit queries, supervision of awarding staff and any other duty as may be assigned by the Chief Officer Finance.
He told the court that he was aware that the case arose and involved procurement of fuel and lubricants for the County Government of Samburu (hereinafter referred to as ‘the government’) from an entity known as Oryx Fuel Station in Mararal (hereinafter referred to as ‘Oryx’). He was required by the Ethics and Anti-Corruption Commission (hereinafter referred to as ‘the EACC’) to peruse a couple of payment vouchers addressed to Oryx, the payee and give information on what the government was paying for. He added that for a payment voucher to be drawn, there must have been procurement process with request originating from the user department. The witness went on to narrate the procurement process which I don’t consider important reproducing in this judgment.
The witness was led to identify the aforesaid payment vouchers and their attachments being documents related to the procurement in question which were invoices, tender documents, minutes, counter receipt vouchers, award decisions and local purchase orders. He stated that all the payments in question were paid via electronic funds transfer. He produced a total of 232 exhibits.
In cross-examination, PW1 stated that he played a crucial role in the process of payments. He confirmed that by approving payments vouchers, it meant that the procurement process involving payment in reliance on documents produced as exhibits 1 to 231 was satisfactory. He also insisted that the government’s dealings in respect of the payment vouchers he had produced were in compliance with procurement laws and that Oryx was not the only fuel supplier to the government as there were two others who had been pre-qualified.
The witness added that after pre-qualification of suppliers, it was left to the Chief Officers of the ten departments in the government to make decisions which service stations they would want to deal with. He was referred to several exhibits and confirmed that they were in order and issued procedurally and the procurement of supplies for fuel was done competitively. He added that the 1 st appellant never made any follow ups of payment. He also confirmed that the government got value for the money it paid and the payment vouchers he had produced had met all the requirements necessary for payment.
PW1 also stated that there was a letter written by the 1 st appellant declaring interest that he had relinquished Oryx to the 2 nd appellant. He added that the procurement of the fuel and lubricants in question was already on at the time the 3 rd appellant was appointed. He also confirmed he signed the payment vouchers after having confirmed that the fuel had been delivered as contracted and he could not pinpoint any blame on the 3 rd appellant among other co-accused who were charged with abuse of office.
In re-examination, he clarified that he was not a procurement professional and that by stating that the procurement process was okay, he meant that the supporting documents led him to make assumption that procurement process was proper. He stated further that before payments were made, he checked the payment vouchers approved by the A.I.E holder and the unit sizes and that he could not have signed a payment voucher which had not been signed by the A.I.E holder.
The prosecution called Joram Ramiti Lentoijoni as its second witness. Joram was at the time of his testimony working at the government as the acting Head of Supply Chain Management. He told the court that he was the custodian of all procurement documents. He had also served at the principal procurement office in agriculture department and also as an assistant procurement officer and a clerical officer in the ministry of livestock.
He testified that he was aware how the procurement in question was done. He went on to explain the process of the procurement including the process of payment. He stated that he did not participate in pre-qualification for suppliers from 2013-2017 since his main duty was the custody of procurement documents. He identified and produced list and register of pre-qualified suppliers, procurement plans for the years in question, quotations registers for the years in question and budgets for different departments as exhibits 233 to 237(r).
The witness was subjected to cross-examination where in addition to repeating the procurement process told the court that Oryx appeared in the list of pre-qualified suppliers and that the fuel supplied had been budgeted for. He confirmed that Oryx was prequalified by the government for the supply of fuel & lubricants in the financial year 2014/2015.
PW2 emphasized that there was no irregularity in the procurement documents he produced before the court. Among the documents he produced was a letter by the 1 st appellant dated 5 th April 2013 as exhibit 238 which was addressed to the County Secretary Samburu County Government. The letter was in respect of a declaration of conflict of interest. The letter was copied to all accounting officers and all procurement officers and according to the witness, the 1 st appellant declared a conflict of interest in respect of Oryx with effect from 5 th April, 2013. He added that the money paid to Oryx was paid lawfully.
The testimony of PW3 was quite short. Evans Juma Osetero told the court that he had been an employee of Postal Corporation of Kenya as an assistant manager investigation based at delta house Nairobi headquarters. He testified that he had been required to supply particulars of rental box number 113 Maralal. He added that he wrote to the EACC giving details of the rental box which showed that the box was rented to David Lenolkulal. He produced the letter as exhibit 240. In a short cross examination, he said that he did not know any of the accused persons.
Peterson Wachira working at the Registrar of Companies Department and based at Sheria House was the fourth witness. He had been requested by the EACC to give information of 83 companies including Oryx upon which he prepared a report. Among the 83 were Orxy Petrol Station, Orxy Service Station and Orxy Petrol Station. After conducting a search for three companies he arrived at the following findings: -
Orxy Petro Station was a business name registered on 9 th March, 2015 under registration no. BN/2015/344811 located on plot no. 64 Nyahururu road. Its proprietor was Hesbon J.W Ndathi the 2 nd appellant. The business had been ceased pending conversion to a limited liability company. He did not provide the documents to show when the business ceased but the information was available online.
Oryx Service Station was a business name registered on 1 st February, 2010 under registration no. BN/2010/60371. It was located at plot no. 35 Maralal road. Its proprietor was the 1 st appellant. The business had also been ceased pending conversion to a limited company.
Orxy Petrol Station was also a business name which did not appear in the data base of the registered businesses.
He produced the report and its annexures as exhibit number 243. He also produced a CR13 in respect of a company known as Oryx Investment Company Limited which showed that the 1 st appellant was a director holding 75 shares and one Lily Sepita Lenolkulal as a director shareholder with 25 shares. It is said to be a limited liability company formed on 7 th October 2008.
He was cross examined by the defence counsel and stated that Orxy existed before County Governments came into existence and that he had not produced the registration certificate for Orxy. He added that their record did not have the date when Oryx Service Station ceased to exist.
PW5, Mr. Stephen Yego was a forensic document examiner working with EACC on full time basis. He recalled that on 13-03-2019, he was on duty at EACC Forensic Laboratory when he received a request from Joel Khisa Nyongesa in form of an exhibit memo with the following documents;
A lease agreement of Oryx Service Station plot no. 5 between Moses Kasaine Lenolkulal proprietor and Hesbon J.W. Ndathi dated 1 st May 2013 marked A1. It was marked by the court as MFI 245.
A lease agreement of Oryx Service Station plot no. 5 between Moses Kasaine Lenolkulal proprietor and Hesbon J.W. Ndathi dated 1 st May 2013 marked A2 which was identified in court as MFI 246.
An agreement made between Moses Kasaine Lenolkulal (proprietor) and Hesbon J.W. Ndathi (lessee) regarding management of Oryx Service Station dated 20 th November, 2013 marked A3. It was marked in court as MFI 247.
A certain copy of Equity Bank application for funds transfer of Ksh 7 million from Orxy Service Station account no. 1100297993314 between Moses Kasaine Lenolkulal account no. 110029474606 dated 9 th September, 2013 marked A4. The same was marked in court as MFI 248.
Equity Bank application for funds transfer of Ksh. 11 million from Moses Kasaine Lenolkulal account no. 110029474606 to Balala Abeid Advocates in Imperial Bank account no. 0340875028 dated 9 th September, 2013 marked A5 which was marked for the court as MFI 249.
KCB application for funds transfer of Kshs. 8,100,000/= from Moses Kasaine Lenolkulal account no. 1108168841 to Balala Abeid Advocates in Imperial Bank account no. 0340875028 dated 9 th December, 2013 marked A6. It was marked in court as MFI 250.
KCB cash withdrawal advise slip dated 26 th May, 2014 from Oryx Service Station account no. 1124724591 of Kshs. 900,000/= marked A7 which was now marked in court as MFI 251.
KCB application for funds transfer of Ksh. 2 million from Moses Kasaine Lenolkulal account no. 066199000060 to Kemonde Ilara account no. 057019664914 in Equity Bank dated 6 th March, 2013 marked A8. It was marked in court as MFI 252.
KCB application for funds transfer of Ksh. 2,300,000/= from Oryx Service Station account no. 1124724591 to Modern Precast Kenya Limited account no. 0404901101 in Equatorial Commercial Bank dated 28 th July, 2015 marked A9. It was marked in court as MFI 253.
KCB application for funds transfer of Ksh. 715,000/= from Oryx Service Station account no. 066130051325 to Hass Consult Limited account no. 2035726554 in Barclays Bank dated 7 th October, 2017 marked A10. It was marked in court as MFI 254.
KRA minutes of negotiations over ground floor for Maralal office at Samburu County Government Chambers dated 28 th January, 2018 marked A11 which was now marked in court as MFI 255.
Orxy Service Station copy of cheque no. 1124724591 dated 29 th August, 2012 of Kshs. 666,000/= marked A12. It was marked in court as MFI 256.
A copy of KCB customer transaction voucher dated 19 th September, 2013 for account no. 199000060 in the name Moses Lenolkulal of Kshs. 180,000/= marked A 13. It was now marked in court as MFI 257.
A copy of KCB transaction voucher dated 20 th September, 2013 of account no. 1124724591 in the name of Orxy Service Station of Ksh. 180,000/= marked A 14. It was marked in court as MFI 258.
A copy of KCB customer transaction voucher dated 2 nd December, 2013 of account no. 1124724591 in the name of Orxy Service Station of Kshs 2,316,000/= marked A 15 which was now marked MFI 259.
A copy of KCB transactions voucher dated 14 th August, 2014 of account no. 066130051325 in the name of Moses K. Lenolkulal of Kshs 224,220/= marked A 16. It was then marked MFI 260.
A copy of KCB transfers of funds transactions voucher dated 16 th May, 2013 of account number 1103629506 in the name of Hesbon J. W Ndathi of Kshs 1,600,000/= marked A 17. It was marked in court as MFI 261.
KCB transactions of funds voucher dated 9 th December, 2013 of account no. 1124724591 in the name of Orxy Service Station of Kshs 200,000/= marked A 18. It was then marked in court as MFI 262.
A copy of Oryx Service Station cheque no. 00423 KCB on account no. 1124724591 dated 29/01/2014 for Ksh. 1,004,500/= marked A19 which was then marked MFI 263.
Samburu Furniture copy of cheque no. 000015 KCB account no. 1148627103 dated 26/5/2014 for Ksh. 700,000/= marked A20. It was then marked 264.
Orxy Service Station copy of cheque no. 00526 K.C.B account no. 1124724591 dated 11/8/2014 of Ksh. 1,014,000/= marked A21. It was marked in court as MFI 265.
A copy of Oryx Service Station cheque no. 00652 K.C.B account no. 1124724591 dated 17/4/2015 for Ksh. 600,000/= marked A22. It was then marked in court as MFI 266.
A copy of Oryx Service Station cheque no. 00651 K.C.B on account no 1124724591 dated 17/4/2015 for Kshs 2,000,000/= marked no. A23. It was then marked in court as MFI 267.
A copy of Oryx Service Station cheque no. 00819 K.C.B on account no. 1124724591 dated 29/1/2016 for Ksh. 1,000,000/= marked A24. It was then marked in court as MFI 268.
These were the questioned documents in addition to which he received specimen signatures of the 1 st appellant. He stated that he also received the following documents;
A cheque leaf no. 002576 in the name of the 1 st appellant bearing his known signature.
A certificate of inauguration of the Governor of Samburu County dated 27/3/2013 bearing the known signature of the 1 st appellant.
Oryx Guest House Maralal management agreement bearing the known signature of the 1 st appellant.
Samburu County Government transfer of land to Lilipilise Lekupe by the 1 st appellant dated 10/11/2015.
Other marked documents bearing the known signature of the 1 st and 2 nd appellants.
Upon his examination, he established that the documents attributed to the 1 st appellant were made by the same author as well as those attributed to the 2 nd appellant. He prepared a report which he produced as exhibit 244(b) in court.
On crosse-examination, he stated that his report was independent and free from bias although he was an employee of EACC. He denied that EACC had an interest in the case.
Jacob Oduor was another forensic examiner working for EACC who recalled that on the 11 th April 2019, several exhibits were submitted to the EACC laboratory by Joel Issa. The documents were numerous 120 LPOs, 167 payment vouchers and specimen signatures of various people including the 3 rd appellant. He matched signatures and authorship of the various documents and prepared a report which he produced as exhibit 282.
He continued and told the court that again on 18 th April 2019, he received other bundles of documents comprising 68 LPOs, 51 payment vouchers and specimen signatures of various people none of whom is an appellant herein. He prepared a report dated 25 th April 2019 which indicated that the documents were authored by the same person which report he produced as exhibit 297.
The witness added that on 29 th April 2019, he received another exhibits memo accompanied by 199 LPOs and a memo addressed to the County Secretary dated 18-05-2017 together with specimen signatures of one Geoffrey Kiteesen. Upon examination as requested by the investigating officer, he concluded that the documents and the specimen signatures were made by the same person. He prepared a report dated 30 th April 2019 which he produced as exhibit 298(b).
In cross-examination, this witness explained the methodology he used in carrying out his examination. He added that it took ten minuets to examine one signature and added that he examined the documents on 12 th April 2019 for 13-14 hours. Despite working for the EACC, he maintained that his work was independent and impartial. He also confirmed that some of the documents he examined were not signed. He also stated that he did not notice anything unusual about the payment vouchers and out of the thirteen names mentioned in exhibit memo dated 18 th April 2019, only one Stephen Siringe was in the charge sheet.
PW7 was Johnstone Kirui who was working at Kenya Commercial Bank, Maralal branch as the branch manager. He was served with a miscellaneous application No. 1029 of 2019 and an order dated 5/3/2019 in respect of 29 accounts out of which he was to act on accounts numbers 1124724591 and 1177182416 also for Oryx Service Station but he only acted on account No. 1124724591.
He also told the court that the EACC requested statements in both soft and hard copies, books, cheques, account opening documents including details of account signatories, mandate card, EFT instructions, EFT instruction letters, disbursements authorization, deposit slips and withdrawal slips for the said account. He complied with the order and supplied the account opening documents which was opened by the 1 st appellant as a sole proprietor account on 7-02-2011. The application for account opening was made on 7 th February 2011. He also supplied instructions for the change of signatories dated 1 st May 2013 which was received on 22/10/2015. The name and the signatures of the 1 st appellant were being removed and the name of Hesbon J.W. Ndathi ID No. 8823757 was introduced. He produced the instructions as exhibit 302 and the bank statement for the period between 9-12-2012 to 28-02-2019 as exhibit 303.
The witness proceeded to single out payments in the bank statement which were made to Oryx by the government and made an excel sheet for the same. He told the court further that the EACC investigators requested for all payments paid to Oryx by the government. He gave the breakdown of the payment which were 15 running from 9-05-2013 to 24-12-2013. He also supplied four cheques viz number 427 dated 21-08-2013, number 569 dated 4-10-2013, another one dated 17-09-2013 and number 529 also dated 17-09-2013.
When he was placed under cross-examination, the witness reiterated that Oryx became a KCB customer from the 7 th February 2011 while the government became operational in the year 2013. He also confirmed that only two payments above one million were made after 2016 and for the entire period the bank did not see any suspicious payments neither did the bank flag or report to Central Bank any suspicious payment. He confirmed that the bank received the letter for change of signatories on 22/10/2015 and it effected the changes on the same day. He stated that, the 1 st appellant ceased to be a signatory to the account on 22/10/2015 and was replaced by the 2 nd appellant. He also confirmed that once one ceased from being a signatory, they cannot access funds from the account. He reiterated that from October 2015, the 1 st appellant could not access the account.
In re-examination, he told the court that the first payment made into the account was on 18/7/2013. He restated that a person whose signature is not in the bank system cannot withdraw the money.
The prosecution’s 8 th witness told the court that he had previously worked at Maralal branch of Kenya Commercial Bank with effect from April 2016 until April 2019 as service quality and compliance manager. He added that on the 27 th February 2019, he was served by EACC with a warrant issued in miscellaneous criminal application No. 871 of 2019 which required him to provide documents and transactions relating to account numbers 1103831208 which was the same as 066130051325 (belonging to the 1 st appellant), 1108168841 which was the same as 066199000060 (belonging to the 1 st appellant), 1234708647, 124724591 (belonging to Oryx Service Station) and 1177182416 (belonging to Oryx Service Station). He added that account number 1108168841 was also opened by the 1 st appellant on 7 th March 2006 with him being the only signatory. Account number 1234708647 was opened on 25-10-2011 while account number 1124724591 was opened on 24/2/2011. The 1 st appellant was a signatory to account number 1103831208 the same having been opened on 7 th July 1994.
He went to provide the required information including identity and account opening cards. The witness produced transfer instructions and cheques done by the 1 st and 2 nd appellants to various persons on various dates. He confirmed that the bank received a letter dated 1 st May 2013 instructing it to withdraw the 1 st appellant as a signatory and have the 2 nd appellant remain as the sole signatory. Although he could not tell when the instructions were effected, he was sure that they were. He was also sure that when he reported to Maralal in April 2016, the 2 nd appellant was the signatory.
In cross-examination, PW8
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