Benson Gethi Wangui AND Joyce Makena AND 1 Others VS The Republic

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ANTI CORRUPTION AND ECONOMIC CRIMES DIVISION

CRIMINAL APPEAL NO. E002 of 2022

(Appeal Against the Judgment, conviction and Sentence in Chief Magistrate Anti-Corruption Case No.19 of 2013 Republic Vs Adan Katello Adano and 8 Others, delivered by Hon. Lawrence Mugambi, C.M. on 28th February 2022)

BACKGROUND

1. The Appellant herein aggrieved by the Judgement of the Trial Court by which he was convicted on the alternative to Counts III and IV of the Charge Sheet with the offence of uttering a false document contrary to Section 353 and sentenced in respect to both offences a fine of One Million Five Hundred and in the alternative 2 years imprisonment. The Appeal is against both the conviction and sentence.
2. The Appellant vide Petition of Appeal dated 11th March 2022 and filed on 14th March 2022 presents 11 grounds on which he challenges both the Conviction and Sentence. On 21st March 2022, the 2nd and 3rd Appellants who were accused No. 7 and 8 in the Trial Court withdrew their appeal.
3. Parties agreed to dispose of the Appeal by way of written submissions. The appellant filed submissions dated 9th November 2022 alongside list of authorities. The Respondent’s Submissions are dated 13th December 2022 with authorities attached
SUBMISSIONS
Appellants Submissions
4. The Appellant compresses his grounds of Appeal to 4 major issues. First, the Appellant Submits that the Magistrate erred in law and fact by holding that the Prosecution had proved its case beyond reasonable doubt. Specifically, the Appellant contends that there wasn’t evidence placed before the Court to show that the alleged documents were presented by the Appellant on the said dates. It is further contended that none of the prosecution witnesses could directly place the Appellant at the scene of the alleged offence or demonstrate his culpability in relation to the offence.
5. The Appellant cites S 107 (1) of the Evidence Act and the cases of Woolmington v DPP [1935] A..C. 462 at pp481; Gordon Omondi Ochieng’ V Republic [2021]; Philip Nzaka Watu V R and Pius Arap Maina V Republic [2013] eKLR,  to bolster their argument that the responsibility to prove a criminal charge beyond reasonable doubt rests with the prosecution.
6.   Second, the Appellant avers that the Court erred in law and in fact by shifting the burden of proof from the prosecution and holding that the appellant needed to prove his defence of alibi. On this ground the Appellant argues that whereas he was charged with uttering a false document to wit a tax compliance certificate No. KRA/18/038871/2012 contrary to Section 353 of the Penal Code on the 15th of October 2012, during the defence hearing he raised an alibi defence, as he was a student in Nyeri and therefore could not be at the IEBC offices as alleged. On this ground the Appellant refers to the cases of; Caroline Wanjiku Ngugi V Republic [2015] eKLR; Charles Anjare Mwamusi V R CRA. No 226 of 2002; Bernard Odongo Okutu v Republic [2018] eKLR and Wang’ombe vs. Republic [1976-80] 1 KLR 1683. The Appellant argues that the Prosecution did not disprove the alibi.
7. Third, The Appellant submits that the Trial Magistrate erred in law and in fact by disregarding the defendant’s testimony, evidence and submissions. On this ground the Appellant faults the trial court for proceeding on the wrong principle that the defence was hinged on denying knowledge of Solarmak Technologies Ltd and therefore failed to consider that the appellant raised other strong defences such as the defence of alibi and whether there was a break in the chain of custody. It is the Appellants contention that had the Court considered the Appellant’s testimony and submissions, it would have arrived at a different conclusion.
8. Fourth, it is the Appellants submission that the Sentence of Kshs 1.5 million on each of the Counts was manifestly harsh and/ or excessive.   Reliance is laid on the cases of Caroline Wanjiku Ngugi v Republic [2015] eKLR; R vs Rabie [1975] [4] SA 855 [A]  and Joel Omino Ododa v Republic [2018] eKLR. The Appellant states that the fine imposed is high given that he had informed the Trial Court that he is a humble farmer, with young children who need him to provide for them financially.
Respondent’s Submissions
9. The prosecution opposed the appeal and framed similar issues as the appellant. In its submissions the Prosecution merged the first 2 grounds as in their view they raised substantially the same issues. It was the Respondents position that the charge of uttering a false document was proved to the required standard. The Prosecution submits that it established the falsity of the two documents: tax compliance certificate and certificate of incorporation of the company and relies on the evidence of PW14 and PW19 in the lower court. On the Alibi, the Prosecution submits that the same was not raised by the Defence.
10. On the 3rd Ground, the Prosecution submits that the Trial Magistrate considered the testimony and submissions of the appellant and makes reference to the following paragraph in the judgment of the court;
I have carefully read the written submissions made on behalf of the accused persons and the prosecution in this case. I will not reproduce the said submissions but will make reference to the said submissions whenever necessary as I consider the various issues that shall arise in the course of my analysis in this judgment.
11. The prosecution points out that whereas in his defence the Appellant denies any connection with Solarmak Technologies Limited, he appears as a Director of the Company and PW20 who was the investigating officer produced before the court a receipt for Kshs 5000 dated 9th October 2012, which he recovered from the Appellant, and which was for the purchase of the standard tender document by Solarmak Technologies Ltd. 
12. Finally on, Ground 4, the Prosecution urges that this Court should not interfere with the Sentence and relies on the cases of; R vs Rabie ( Supra) and Bernard Kimani Gacheru Vs Republic [2002] eKLR.

ISSUES FOR DETERMINATION
13. Having considered the Petition of Appeal and the parties’ submissions the issues for determination are;
a. Whether the Prosecution proved its case beyond reasonable doubt as required by law
b. Whether the Trial Magistrate considered the defence of the Appellant
c. Whether this court should interfere with the sentence meted out by the lower court. 
ANALYSIS & DETERMINATION. 
14. This being a first appeal and guided by the dicta in Okeno V R [1972] EA 32 on the responsibility of the first appellate Court it is the duty of this court to reconsider, re-evaluate and reanalyse the evidence afresh and come to its own conclusion on that evidence. The court should however bear in mind, that it didn’t see the witnesses as they testified and give due allowance to that.
15. The Accused person was convicted on 2 Counts of uttering a false document contrary to Section 353 of the Penal Code.  Under Alternative to Count three, the particulars were that on 15th Day of October together with 2 Co Accused, at the IEBC offices , Anniversary Towers, in Nairobi, being the Directors of Solarmak Technologies Ltd, with intent to defraud, uttered a false document to wit a tax compliance certificate No. KRA/18/038871/2012 to the Chief Executive Officer, IEBC in regard to tender no. IEBC1/2012-2013 for the supply of election materials for the 2013 general election purporting it to be a genuine certificate issued by the Kenya Revenue Authority.
16. On the alternative Charge to Count Four, the particulars were that on the 15th Day of October 2012 at IEBC Offices, Anniversary Towers, Nairobi in Nairobi County, being Directors of Solarmak Technologies with intent to defraud knowingly uttered a false document, to wit, a certificate of incorporation number CPR/ 2008/14011 to the Chief Executive Officer, IEBC, in regard to tender number IEBC1/ 2012-2013 for supply of election materials for the 2013 General Elections purporting it to be genuine certificate issued by the Registrar of Companies.
17. Matters begun to unravel when PW16 being dissatisfied with the decision of the tender award by the IEBC for the supply of solar lanterns lodged a complaint at the Public Procurement Administrative Review Board (PPARB). While hearing the matter the PPARB unearthed a collision among staff of the IEBC to tamper with bidding documents so as to favour the award of the tender to Solarmak Technologies Ltd. PW18, who was the Secretary of the PPARB testified as to how as part of the investigations they followed up with the KRA and the Registrar of Companies to determine the authenticity of the KRA Compliance  Certificate and the Certificate of Registration for Solarmak Technologies that were attached to the bid document. The witness submitted the ruling of the Board P. exhibit 19 that annulled the award to Solarmak for supply of solar lanterns because of the discrepancy of documentation between the report of the tender opening Committee and the evaluation committee.
18. This cancellation of the award triggered the investigation by the Ethics and Anti-Corruption Commission culminating in the charges before court. As relates to the charges facing the Appellant, among the witnesses called was PW 14 Geoffrey Atika, Assistant Commissioner Kenya Revenue Authority in charge of the Compliance Programme. He denied that certificate No. KRA/18/038871/2012 (P. Exhibit 5 a), the subject of alternative to Count III, was issued by KRA and by him.
19. The Prosecution also called PW19- Nicholas Oduor an employee of Registrar of Companies. The witness testified that as per their records Solarmak Technologies Limited was registered on 2nd August 2012 under Registration No. CPR/2012/80722. The directors were Joyce Makena Muriithi and Benson Gethi Wangui ( the Appellant). PW18 testified that they had also forwarded certificate of incorporation No. CPR/2008/14011-P.exhibit 5(d) to the Registrar of Companies for verification. The witness produced P. Exhibit 26 that included a communication from the Registrar of Companies indicating that Certificate No. CPR/ 2008/14011 dated 2nd August 2008 did not originate from the Registrar’s Office.
20. PW20 Arthur Opili was the investigating officer assigned the case. It was his evidence that matter emanated from a tender advertisement in the Daily Nation of Tuesday 2.10.2022 ( P. exhibit 17) where bidder were invited to deliver their duly filled forms on or before 22nd October 2022 at noon. He further testified that he recovered from the Appellant (6th Accused in the trial court) a receipt dated 19th October 2022 issued to Solarmak Technologies Ltd for payment of Kshs 5000/- to purchase standard tender documents in respect of IEBC tender no. 01/2012-2013 supply and delivery of general election materials (P. Exhibit 5(c ) ). He also presented the bid document presented by Solarmak Technologies along with the attached certificate of Tax Compliance, tax registration certificate and the certificate of incorporation all relating to Solarmak Technologies Ltd.
21. On the question as to whether the Prosecution proved its case beyond reasonable doubt. I will commence my determination by reflecting on the standard of beyond reasonable doubt. This was well articulated by Mativo J (as he then was) in MTG v Republic Criminal Appeal No. E067 of 2021 [2022] eKLR in which he quoted Duhaime Llloyd, Legal Definition of Balance of  Probabailities, Duhaime’s Criminal Law Dictionary stated;
Reasonable Doubt is not mere possible doubt. it is that state of the case, which after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it can say it feels an abiding conviction to a moral certainty of the truth of the charge.
22. In the current case the prosecution set out to prove the offence of uttering a false document contrary to section 353 of the Penal Code. Regarding the essential elements of this offence the Court of Appeal in Joseph Mukuha Kimani VS Republic [1984] eKLR stated the prosecution must prove that;
i. The document was false
ii. The accused knew it was forged
iii. The utterer intended to defraud
23. As enumerated above the prosecution called witnesses who established that both the Certificate of Registration and Tax Compliance Certificate that accompanied the bid document submitted in support of the bid by the Solarmak Technologies Limited were forgeries as both the Kenya Revenue Authority and Registrar of Companies officials disowned them. The prosecution further established that the documents were submitted in response to tender advertisement for supply of election materials and both tampered with to fit with the requirements of that bid. Specifically, whereas the Register of Companies showed that Solarmak was registered in 2012, the certificate was altered to show that it was registered in 2008. The Compliance certificate from Kenya Revenue Authority was also altered to show that the Company was in existence for a period that would bring it within the tender requirements. I have considered the defence of the Appellant and this evidence was not controverted, except for the Appellant to state he was not aware of the existence of this Company.
24. The 2nd Limb requires that the accused should know the document is forged. PW 20 testified that he recovered a receipt from the appellant being payment of the tender documents. A bid document was submitted by Solarmak Technologies Ltd. The Appellant is one of the Directors of Solarmak Ltd. Having regard to the totality of the events regarding this bid for the supply of solar lanterns it is impossible to come to any other conclusion than that the Company and Directors in submitting the documents understood both the Certificate of Registration and KRA Tax Compliance Certificates were forgeries.
25. The final limb requires that the prosecution demonstrate that the utterer intended to defraud. In Kilee Vs Republic [1967] EA 713 at 717 it was said that the false document must tell a lie about itself and not about the maker….the false document is forged if it is made to be used as genuine. In this instance the documents were submitted to support the bid that was presented to the IEBC and were intended to demonstrate that the Company met the requirements to be considered for the award of the advertised tender.
26. In his defence the Appellant was categorical that he did not utter the document as he was not at the premises of IEBC on the specified dates. Suffice it to state that for this offence it is not necessary that the accused do present the document in person, what the prosecution needed to establish is that the accused placed before IEBC these documents with the aim of being considered for the award of the tender. The evidence before the trial court demonstrates that Solarmak was infact initially awarded the tender and it was only when PW16 successfully challenged the award that the decision of the IEBC tender committee was reversed.
27. On the first issue therefore, I find that the prosecution proved its case to the required standard.
28. The Appellant contends that the Magistrate did not properly consider their evidence and submissions. This is not borne out by the record. I have looked at the record and it is evident that the Learned Magistrate did consider the evidence of the Appellant. On the alibi evidence the Magistrate correctly pointed out that as relates to this offence ‘the word utter is not strictly speaking restricted to mere presentation of a document but it encompasses using or dealing with the document. It thus cannot be limited to the mere physical presentation only’
29. This ground of the Appeal must fail.
30. From the foregoing, I am convinced that the ingredients of uttering a false document stated in Joseph Mukuha Kimani v Republic [1984] eKLR were proved beyond any reasonable doubt and that the conviction was lawful.
31. On sentence, Section 349 of the Penal Code, which provides for punishment for forgery and uttering a false document provides:
“Any person who forges any document or electronic record is guilty of an offence which, unless otherwise stated, is a felony and he is liable , unless owing to the circumstances of the forgery or the nature of the thing forged some other punishment is provided, to imprisonment for three years”.
32. As observed by the Trial Magistrate Section 26 (2) and (3) of the Penal Code gives the court the discretion to impose a fine as it provides:-
A person liable to imprisonment for an offence may be sentenced to a fine in addition to or in substitution for imprisonment.
33. The Appellant submits that the fines imposed were clearly excessive and harsh in the circumstances and refers to authorities Caroline Wanjiku Ngugi and Joel Omimo Ogada and invites the Court to be guided by those precedents. I have considered those decisions and note that the amounts in question were lesser than in the current case.
34. I am also guided by the decision of the Court of Appeal in the case of Bernard Kimani Gacheru Vs. Republic [2022] eKLR where the learned judges held
It is now well settled law, following several authorities by this court and by the High Court, that sentence is a matter of discretion of the trial court. Similarly, sentence must depend on the facts of each case. On Appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might  itself  not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters is already stated to exist.”
35. The principles upon which an appellate Court will act in exercising its discretion to review or alter a sentence imposed by the trial court were settled in the case of Ogolla s/o Owuor vs R, (1954) EACA 270 wherein the Court of Appeal stated as follows:
"The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors”. To this, we would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case (R - v- Shershowsky (1912) CCA 28 TLR 263)."
36.  In the instant case the Court considered the submissions and states ‘I must say that counsels’ submissions and circumstances of this case do actually persuade me to consider the non- custodial option.’
37. Therefore, in view of the above analysis, it is my view that the trial court considered the correct principles in imposing fine. I thus hold that this court should not interfere with sentence meted by the trial court.
Conclusion
38. The upshot of the foregoing is that the appeal on conviction and sentence imposed fails.  I therefore dismiss the appeal and uphold the judgement of the lower Court with no order as to costs.
39. It is so ordered
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10th   DAY of  February 2023.


IN THE PRESENCE OF:-
Kiragu Wathuta Advocate for Appellant
Ms. Ndombi for Respondent
Lucy Mwangi Court Assistant