( Being an appeal from the Judgement of Hon. C.N.C. Oruo, Principal Magistrate, delivered on 15 TH May 2024 at the Principal Magistrate Court at Rongo in Criminal Case No. E246 of 2021 )
JUDGMENT
Introduction
1. The Appellant Erastus Onyango Nyamori was convicted of the offence of drawing and submitting engineering structural plan by an unregistered professional engineer contrary to Section 50(3) as read with Section 57 of the Engineer’s Act No. 43 of 2011 and was sentenced to pay a fine of Kshs. 500,000/- and in default to serve 2 years’ imprisonment.
2. The evidence before the court is that in the month of February 2018, the Appellant being an Architect by profession working in the name and style of Kingdom Plan Architects, submitted Engineering structural plan to Philister Atieno Makabongo for the construction of a three storey commercial building on land parcel no. Kamagambo/Kanyajuok 34A (Okusu Market) while not being registered with Engineers Board of Kenya under any category.
3. The Appellant filed petition of appeal against the whole of the said judgment and decree on the following grounds:
i. That the Honorable Learned Magistrate erred in law and fact by framing non-contested issues by the appellant as the issues for determination.
ii. The Learned Magistrate erred in law and fact by failing to consider the wholesome nature of the charge, thus relying on the
iii. The Learned Magistrate erred in law by considering the defective charge instituted by the Respondents(prosecution).
iv. The Learned Magistrate erred in law and in fact by failing to find the standard of proof by the Respondent not met, as the key prosecution witness (primary receiver of the alleged substratum of this case) to the case was not called during the entire proceedings.
v. The Learned Magistrate erred in law and fact by greatly relying on secondary evidence, speculations and uncorroborated testimonies of the witnesses called.
vi. The Learned Magistrate erred in law and in fact by considering a business card; public document, capable of being legally possessed by anyone to link the appellant to the alleged illegal action.
vii. The Learned Magistrate erred in law and in fact by failing to determine the process of drawing and submission of engineering and structural plan, which on consideration would have led to a just determination.
viii. The Learned Magistrate on convicting the appellant relied on unfounded testimony of the investigating officer, while overlooking testimonies of other witnesses who could not link the structural drawing to the accused person.
ix. The Honorable Court neither considered the defense of the accused, nor synthesized his submissions, which begged a determination of two key prerequisites of the alleged illegal act.
a) Whether the accused person(appellant) is the author of the structural engineer’s plan before the court.
b) Whether the accused (appellant) is the one who submitted the plan to Phelister Makabongo and/or the county authority for approval.
c) Whether or not the appellant was exonerated by Philip Odero Makabongo and the physical planner who submitted that the drawings were submitted by Phelister.
d) Whether the term submission of plans met the required threshold to the effect that submitting a drawing must include the plans, submission form duly signed, practice license, commitment letter to NCA and stamp and signature.
e) Whether or not the testimony of Phelister Makabongo was crucial to the prosecution securing a conviction.
x. The Honorable Learned Magistrate erred in fact and in law in failing to properly or at all analyze, evaluate and consider the totality of evidence adduced by the appellant and witness. Consequently, the trial magistrate arrived at a passionate and biased conclusion contrary to the evidence on record.
xi. The Honorable Learned Magistrate erred in fact and in law in failing to properly or at all analyze, evaluate and consider the tenor of the submissions tendered by the appellant. Consequently, the learned trial magistrate misapprehended the crux of the legal issues attendant to the matter before the Court
4. Ms. Kogos, the Prosecution counsel opposed the appeal urging that the trial court did not infringe upon the right to representation of the accused person during the trial and that the prosecution proved its case beyond the reasonable doubt.
The appeal was canvassed by way of written submissions.
Analysis and Determination
5. The duty of the Appellate court is to analyze and re-evaluate the evidence afresh with a view to making its own independent decision bearing in mind the fact that it did not have the benefit of observing and hearing the witnesses as they gave evidence. See Okeno vs Republic (1972) EA 32 ).
The following issues arise for determination from the petition of appeal and the parties’ submissions:
xii. Whether the charge sheet is defective and if the defect was fatal.
xiii. Whether the prosecution proved its case beyond reasonable doubt.
6. On the first issue, what constitutes a defective charge sheet was defined by Kimaru J. in Sigilai v. Republic [2004] 2 KLR 480 , as follows:
“ The principal of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence which such an accused is charged with should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to a specific charge that he can understand. It will also enable an accused person to prepare his defence to the charge. This principal of the law has a constitutional under pinning .”
Section 134 of the Criminal Procedure Code provides 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.”
Section 50 of the Engineers Act provide as follows:
50. Restriction of the right to submit documents
1) The right of a registered or licensed person under this Act to submit plans, engineering surveys, drawings, schemes, proposals, reports, design or studies to any person or authority in Kenya is restricted to the right to submit such documents only in relation to the discipline of engineering in which that person including a professional engineer in an engineering consulting firm, is qualified as shown in the entries made in the Register.
2) A person who is not registered as a professional engineer or firm shall not be entitled to submit engineering plans, surveys, drawings, schemes, proposals, reports, designs or studies to any person or authority in Kenya.
3) A person who contravenes any provision of this section commits an offence.
7. The Appellant was charged under section 50(3) and section 57 which provide for the penalty. Section 382 of the Criminal Procedure Code provides that:
“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”
8. The Court of Appeal considered the effect of a defective charge sheet in Ombuna v Republic [2019] KECA 994 (KLR ) and held that:
“ In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him, and as a result, he was not able to put up an appropriate defence .”
9. The incomplete citation/omission of the section of the offence rendered the charge defective but the question is whether the defect was fatal. The trial court did not address the issue of the defect in the charge sheet but proceeded to convict under the appropriate section, notwithstanding the defective charge sheet. The evidence adduced by the prosecution aligned with the particulars in the charge sheet. There was no doubt in the mind of the Appellant who cross-examined all the witnesses, regarding the nature of the charges facing him. However, the manner in which the charge itself was drafted led to ambiguity as the charge section cited was at variance with the penalty section that was eventually applied. It is now settled that the test as to whether a charge sheet is fatally defective is whether the defect was such that it prejudiced the accused.
10. In BNT v Republic [2025] KECA 643 (KLR) , the Court of Appeal held that:
“…As this Court held in Nyamai Musyoki vs. Republic [2014] eKLR , an appellant would only be entitled to an acquittal or retrial where a defective charge sheet prejudiced them. The test for whether a defective charge sheet caused prejudice to an accused person is substantive not technical: the question to ask is whether the accused person was charged with an offence known to law and whether the charge sheet, as framed, gave him, in clear and unmistakable terms, sufficient notice and information about the allegations he was facing in order to mount a defence .”
11. In addition, and in a case of similar circumstances as the present, the Court of Appeal in Malindi Criminal Appeal No. 178 Of 2012, Amedi vs Republic , the court stated as follows:
“ A proper framing of the charge should have made reference to both sections. Ideally the appellant should have been charged with defilement contrary to section 8(1) as read with section 8(3) of the sexual Offences Act. Can it however be said that a charge is fatally defective on account of the fact that it was predicated upon a penalty section as opposed to the section creating the offence? We think not. Of course an accused person must fully understand the nature of the offence he is facing so that he pleads to it with full knowledge. It is without doubt preferable that the statement of offence contains a reference to the section creating the offence as well as that prescribing the punishment. In the instant case and as already stated there was only reference to the punishment section. Would this defect vitiate the proceedings and the conviction entered as submitted by the appellant? The answer lies as to whether the defect occasioned a failure of justice and thereby prejudiced the appellant”.
The court having analyzed the evidence and the import of section 382 of the criminal Procedure Code, proceeded to answer the issue of the defective charge sheet with the following words:
“ Going through the entire proceedings, there is no doubt at all that the appellant was well aware of the offence confronting him. During the plea, the particulars of the offence were read and explained to him in the language of his choice which had all the elements of the offence of defilement as contemplated by section 8(1) of the Sexual Offences Act. He pleaded not guilty and his trial ensued. During the trial, he cross-examined at length all the witnesses proffered by the State. From these lengthy cross-examination, one can easily tell that this was a man who fully understood the offence facing him and the particulars thereof. He asked all the relevant questions for this kind of offence. He submitted in his defence and even challenged the morality of the complainant which elicited the response from the complainant that she had previously engaged in consensual sex with her boyfriend, Ali. Given the foregoing it would be fallacious for the court to hold that the appellant was prejudiced by the failure by the prosecution to charge him under the section creating the offence as well. It is also instructive that the appellant did not raise the issue with the trial court ”.
To close on the issue with finality, the court did state in regard to the defective charge sheet that:
“ To our mind, we are satisfied that the irregularity in the charge-sheet did not imperil the appellant or occasioned him a failure of justice. Given the foregoing, the decisions of the High Court that the appellant sought to rely on were decided without subjecting the conclusions to the test of whether that omission occasioned a failure of justice and thereby prejudiced the appellant. To that extent they do not represent good law and ought to be discarded or disregarded” .
12. Having carefully considered the charge sheet, the proceedings, wherein the accuseds Counsel extensively cross examined the witnesses and also offered a lengthy sworn statement, I am of the considered view that the defect in the charge sheet was not fatal and it neither prejudiced the accused person nor violated the accused’s rights to a fair trial.
13. The second issue is whether the prosecution has proved its case beyond reasonable doubt. The Appellant stated that the evidence before the court does not link him with the plans that were allegedly used in the construction by the contractor in the ill-fated house. The evidence in the court are that the drawings used for construction of the house were structural in nature and were drawn by Kingdom Plan Architects an entity linked to the Appellant. The Appellant is a licensed Architect and he confirmed that he only did a draft architectural plans to one Philip Odero Makabongo who is the spouse to Phelister Makabongo the owner of the building that collapsed.
14. That the structural and architectural drawings were presented for approval by the developer. The same was also taken to the Ministry of Public Works and was approved. From the evidence, before a building is constructed, the contractor must register the project with NCA after which a certificate of compliance is issued. The evidence herein shows that the developer did not follow the laid down procedures hence no approval was made by NCA. Approvals are given only after the professionals involved in the project have been notified and they give their feedback with their practicing certificates attached. In this case, how did the Physical planner at the County government of Migori and the ministry of public works made approvals without practicing certificates of the respective professionals attached.
15. The court has also noted that Phelister Makabongo is the registered owner of the land and the building that collapsed. In his testimony, Philip Odero Makabongo who is the spouse to Phelister Makabongo confirmed that he only saw the structural plan with the developer and he did not know who drew the plan, that the Appellant drew the architectural plan only.
16. The contractor and the owner of the building Phelister Makabongo did not testify despite being crucial witnesses in the case. The question before court being who drew the structural plans, then need to be answered. The Appellant confirmed that he drew the architectural plans. The architectural plans had the firm name and signature of the Appellant. The same firm name and signature were on the structural plans. All through the period of the investigation and eventual arraignment before the trial court, the accused did not report a case of his firm name and signature being forged.
17. The nature of the wordings in section 50 (2) of the Engineers Act is clear and strict. It states:
“( 2) A person who is not registered as a professional engineer or firm shall not be entitled to submit engineering plans, surveys, drawings, schemes, proposals, reports, designs or studies to any person or authority in Kenya ”.
A person who is not a professional engineer is precluded from both preparing or submitting engineering plans, surveys, drawings, schemes, proposals, reports or studies to any person or authority in Kenya.
18. The question then that arises is whether the Appellant was an engineer? The answer is no. As an architect and not an engineer, he was under a professional duty not to draw any plans and submitted them to any person, including a client or contractor, or authority in Kenya. By preparing and submitting the same to Phelister, an offence was already committed. It is immaterial at that time that the were only a proposal, as he refers to them, or that he is not the one who submitted the same to the County Government for approval. Was he the proprietor of Kingdom Plan Architects? Yes. Were the structural plans shown as prepared and signed by Kingdom Plan Architects? Yes. Were they bearing the same signature as that on the architectural plans? Yes. Can the court make, as the trial court did that he was the author of the structural plans? Yes.
19. With the above questions answered in the affirmative, the absence of Phelister did not therefore dampen the prosecution evidence linking the Appellant to the said plans. The burden of proof is on the state to ensure that sufficient evidence is demonstrated so as to convict an accused person because criminalproceedings end up either on conviction or acquittal, in Republic v Daniel Charo Katana eKLR , the court held that;-
“ It is therefore true that the state should prove its case so strongly that the evidence leaves the trial Court with the highest degree of certitude based on such evidence. It is to be noted that the concept of reasonable doubt in our criminal justice system is not based upon a sympathy or a whim or prejudice or caprice or sentimentality, jelly fish of a Judge or Magistrate seeking to convict or acquit anotherhuman being of the commission of the offence. It is an approach to hold the state to the highest standard of discharging its burden of proof in criminal cases beyond reasonable doubt. It is not a conjecture or a fanciful doubt. It is based on admissible and material evidence to dissuade the trial Court from acquitting an accused person.”
20. On the basis of the evidence before the trial court, I do find that the Appellant was right in convicting the Appellant for the offence of preparing and submitting plans while not a professional engineer contrary to section 50 (2) as read with section 50 (3) and 57 of the Engineers Act. I will thus make the following determination.
a. The appeal on conviction and sentence of the Appellant herein is hereby dismissed.
b. The conviction and sentence imposed by the trial court against the accused person on the 15 th May 2024 is hereby upheld.
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 9 th day of July 2026.
HCCRA NO. E053 OF 2024 ERASTUS ONYANGO NYAMORI VS REPUBLIC JUDGMENT Pg. 12
JUDGMENT
Introduction
1. The Appellant Erastus Onyango Nyamori was convicted of the offence of drawing and submitting engineering structural plan by an unregistered professional engineer contrary to Section 50(3) as read with Section 57 of the Engineer’s Act No. 43 of 2011 and was sentenced to pay a fine of Kshs. 500,000/- and in default to serve 2 years’ imprisonment.
2. The evidence before the court is that in the month of February 2018, the Appellant being an Architect by profession working in the name and style of Kingdom Plan Architects, submitted Engineering structural plan to Philister Atieno Makabongo for the construction of a three storey commercial building on land parcel no. Kamagambo/Kanyajuok 34A (Okusu Market) while not being registered with Engineers Board of Kenya under any category.
3. The Appellant filed petition of appeal against the whole of the said judgment and decree on the following grounds:
i. That the Honorable Learned Magistrate erred in law and fact by framing non-contested issues by the appellant as the issues for determination.
ii. The Learned Magistrate erred in law and fact by failing to consider the wholesome nature of the charge, thus relying on the
iii. The Learned Magistrate erred in law by considering the defective charge instituted by the Respondents(prosecution).
iv. The Learned Magistrate erred in law and in fact by failing to find the standard of proof by the Respondent not met, as the key prosecution witness (primary receiver of the alleged substratum of this case) to the case was not called during the entire proceedings.
v. The Learned Magistrate erred in law and fact by greatly relying on secondary evidence, speculations and uncorroborated testimonies of the witnesses called.
vi. The Learned Magistrate erred in law and in fact by considering a business card; public document, capable of being legally possessed by anyone to link the appellant to the alleged illegal action.
vii. The Learned Magistrate erred in law and in fact by failing to determine the process of drawing and submission of engineering and structural plan, which on consideration would have led to a just determination.
viii. The Learned Magistrate on convicting the appellant relied on unfounded testimony of the investigating officer, while overlooking testimonies of other witnesses who could not link the structural drawing to the accused person.
ix. The Honorable Court neither considered the defense of the accused, nor synthesized his submissions, which begged a determination of two key prerequisites of the alleged illegal act.
a) Whether the accused person(appellant) is the author of the structural engineer’s plan before the court.
b) Whether the accused (appellant) is the one who submitted the plan to Phelister Makabongo and/or the county authority for approval.
c) Whether or not the appellant was exonerated by Philip Odero Makabongo and the physical planner who submitted that the drawings were submitted by Phelister.
d) Whether the term submission of plans met the required threshold to the effect that submitting a drawing must include the plans, submission form duly signed, practice license, commitment letter to NCA and stamp and signature.
e) Whether or not the testimony of Phelister Makabongo was crucial to the prosecution securing a conviction.
x. The Honorable Learned Magistrate erred in fact and in law in failing to properly or at all analyze, evaluate and consider the totality of evidence adduced by the appellant and witness. Consequently, the trial magistrate arrived at a passionate and biased conclusion contrary to the evidence on record.
xi. The Honorable Learned Magistrate erred in fact and in law in failing to properly or at all analyze, evaluate and consider the tenor of the submissions tendered by the appellant. Consequently, the learned trial magistrate misapprehended the crux of the legal issues attendant to the matter before the Court
4. Ms. Kogos, the Prosecution counsel opposed the appeal urging that the trial court did not infringe upon the right to representation of the accused person during the trial and that the prosecution proved its case beyond the reasonable doubt.
The appeal was canvassed by way of written submissions.
Analysis and Determination
5. The duty of the Appellate court is to analyze and re-evaluate the evidence afresh with a view to making its own independent decision bearing in mind the fact that it did not have the benefit of observing and hearing the witnesses as they gave evidence. See Okeno vs Republic (1972) EA 32 ).
The following issues arise for determination from the petition of appeal and the parties’ submissions:
xii. Whether the charge sheet is defective and if the defect was fatal.
xiii. Whether the prosecution proved its case beyond reasonable doubt.
6. On the first issue, what constitutes a defective charge sheet was defined by Kimaru J. in Sigilai v. Republic [2004] 2 KLR 480 , as follows:
“ The principal of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence which such an accused is charged with should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to a specific charge that he can understand. It will also enable an accused person to prepare his defence to the charge. This principal of the law has a constitutional under pinning .”
Section 134 of the Criminal Procedure Code provides 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.”
Section 50 of the Engineers Act provide as follows:
50. Restriction of the right to submit documents
1) The right of a registered or licensed person under this Act to submit plans, engineering surveys, drawings, schemes, proposals, reports, design or studies to any person or authority in Kenya is restricted to the right to submit such documents only in relation to the discipline of engineering in which that person including a professional engineer in an engineering consulting firm, is qualified as shown in the entries made in the Register.
2) A person who is not registered as a professional engineer or firm shall not be entitled to submit engineering plans, surveys, drawings, schemes, proposals, reports, designs or studies to any person or authority in Kenya.
3) A person who contravenes any provision of this section commits an offence.
7. The Appellant was charged under section 50(3) and section 57 which provide for the penalty. Section 382 of the Criminal Procedure Code provides that:
“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”
8. The Court of Appeal considered the effect of a defective charge sheet in Ombuna v Republic [2019] KECA 994 (KLR ) and held that:
“ In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him, and as a result, he was not able to put up an appropriate defence .”
9. The incomplete citation/omission of the section of the offence rendered the charge defective but the question is whether the defect was fatal. The trial court did not address the issue of the defect in the charge sheet but proceeded to convict under the appropriate section, notwithstanding the defective charge sheet. The evidence adduced by the prosecution aligned with the particulars in the charge sheet. There was no doubt in the mind of the Appellant who cross-examined all the witnesses, regarding the nature of the charges facing him. However, the manner in which the charge itself was drafted led to ambiguity as the charge section cited was at variance with the penalty section that was eventually applied. It is now settled that the test as to whether a charge sheet is fatally defective is whether the defect was such that it prejudiced the accused.
10. In BNT v Republic [2025] KECA 643 (KLR) , the Court of Appeal held that:
“…As this Court held in Nyamai Musyoki vs. Republic [2014] eKLR , an appellant would only be entitled to an acquittal or retrial where a defective charge sheet prejudiced them. The test for whether a defective charge sheet caused prejudice to an accused person is substantive not technical: the question to ask is whether the accused person was charged with an offence known to law and whether the charge sheet, as framed, gave him, in clear and unmistakable terms, sufficient notice and information about the allegations he was facing in order to mount a defence .”
11. In addition, and in a case of similar circumstances as the present, the Court of Appeal in Malindi Criminal Appeal No. 178 Of 2012, Amedi vs Republic , the court stated as follows:
“ A proper framing of the charge should have made reference to both sections. Ideally the appellant should have been charged with defilement contrary to section 8(1) as read with section 8(3) of the sexual Offences Act. Can it however be said that a charge is fatally defective on account of the fact that it was predicated upon a penalty section as opposed to the section creating the offence? We think not. Of course an accused person must fully understand the nature of the offence he is facing so that he pleads to it with full knowledge. It is without doubt preferable that the statement of offence contains a reference to the section creating the offence as well as that prescribing the punishment. In the instant case and as already stated there was only reference to the punishment section. Would this defect vitiate the proceedings and the conviction entered as submitted by the appellant? The answer lies as to whether the defect occasioned a failure of justice and thereby prejudiced the appellant”.
The court having analyzed the evidence and the import of section 382 of the criminal Procedure Code, proceeded to answer the issue of the defective charge sheet with the following words:
“ Going through the entire proceedings, there is no doubt at all that the appellant was well aware of the offence confronting him. During the plea, the particulars of the offence were read and explained to him in the language of his choice which had all the elements of the offence of defilement as contemplated by section 8(1) of the Sexual Offences Act. He pleaded not guilty and his trial ensued. During the trial, he cross-examined at length all the witnesses proffered by the State. From these lengthy cross-examination, one can easily tell that this was a man who fully understood the offence facing him and the particulars thereof. He asked all the relevant questions for this kind of offence. He submitted in his defence and even challenged the morality of the complainant which elicited the response from the complainant that she had previously engaged in consensual sex with her boyfriend, Ali. Given the foregoing it would be fallacious for the court to hold that the appellant was prejudiced by the failure by the prosecution to charge him under the section creating the offence as well. It is also instructive that the appellant did not raise the issue with the trial court ”.
To close on the issue with finality, the court did state in regard to the defective charge sheet that:
“ To our mind, we are satisfied that the irregularity in the charge-sheet did not imperil the appellant or occasioned him a failure of justice. Given the foregoing, the decisions of the High Court that the appellant sought to rely on were decided without subjecting the conclusions to the test of whether that omission occasioned a failure of justice and thereby prejudiced the appellant. To that extent they do not represent good law and ought to be discarded or disregarded” .
12. Having carefully considered the charge sheet, the proceedings, wherein the accuseds Counsel extensively cross examined the witnesses and also offered a lengthy sworn statement, I am of the considered view that the defect in the charge sheet was not fatal and it neither prejudiced the accused person nor violated the accused’s rights to a fair trial.
13. The second issue is whether the prosecution has proved its case beyond reasonable doubt. The Appellant stated that the evidence before the court does not link him with the plans that were allegedly used in the construction by the contractor in the ill-fated house. The evidence in the court are that the drawings used for construction of the house were structural in nature and were drawn by Kingdom Plan Architects an entity linked to the Appellant. The Appellant is a licensed Architect and he confirmed that he only did a draft architectural plans to one Philip Odero Makabongo who is the spouse to Phelister Makabongo the owner of the building that collapsed.
14. That the structural and architectural drawings were presented for approval by the developer. The same was also taken to the Ministry of Public Works and was approved. From the evidence, before a building is constructed, the contractor must register the project with NCA after which a certificate of compliance is issued. The evidence herein shows that the developer did not follow the laid down procedures hence no approval was made by NCA. Approvals are given only after the professionals involved in the project have been notified and they give their feedback with their practicing certificates attached. In this case, how did the Physical planner at the County government of Migori and the ministry of public works made approvals without practicing certificates of the respective professionals attached.
15. The court has also noted that Phelister Makabongo is the registered owner of the land and the building that collapsed. In his testimony, Philip Odero Makabongo who is the spouse to Phelister Makabongo confirmed that he only saw the structural plan with the developer and he did not know who drew the plan, that the Appellant drew the architectural plan only.
16. The contractor and the owner of the building Phelister Makabongo did not testify despite being crucial witnesses in the case. The question before court being who drew the structural plans, then need to be answered. The Appellant confirmed that he drew the architectural plans. The architectural plans had the firm name and signature of the Appellant. The same firm name and signature were on the structural plans. All through the period of the investigation and eventual arraignment before the trial court, the accused did not report a case of his firm name and signature being forged.
17. The nature of the wordings in section 50 (2) of the Engineers Act is clear and strict. It states:
“( 2) A person who is not registered as a professional engineer or firm shall not be entitled to submit engineering plans, surveys, drawings, schemes, proposals, reports, designs or studies to any person or authority in Kenya ”.
A person who is not a professional engineer is precluded from both preparing or submitting engineering plans, surveys, drawings, schemes, proposals, reports or studies to any person or authority in Kenya.
18. The question then that arises is whether the Appellant was an engineer? The answer is no. As an architect and not an engineer, he was under a professional duty not to draw any plans and submitted them to any person, including a client or contractor, or authority in Kenya. By preparing and submitting the same to Phelister, an offence was already committed. It is immaterial at that time that the were only a proposal, as he refers to them, or that he is not the one who submitted the same to the County Government for approval. Was he the proprietor of Kingdom Plan Architects? Yes. Were the structural plans shown as prepared and signed by Kingdom Plan Architects? Yes. Were they bearing the same signature as that on the architectural plans? Yes. Can the court make, as the trial court did that he was the author of the structural plans? Yes.
19. With the above questions answered in the affirmative, the absence of Phelister did not therefore dampen the prosecution evidence linking the Appellant to the said plans. The burden of proof is on the state to ensure that sufficient evidence is demonstrated so as to convict an accused person because criminalproceedings end up either on conviction or acquittal, in Republic v Daniel Charo Katana eKLR , the court held that;-
“ It is therefore true that the state should prove its case so strongly that the evidence leaves the trial Court with the highest degree of certitude based on such evidence. It is to be noted that the concept of reasonable doubt in our criminal justice system is not based upon a sympathy or a whim or prejudice or caprice or sentimentality, jelly fish of a Judge or Magistrate seeking to convict or acquit anotherhuman being of the commission of the offence. It is an approach to hold the state to the highest standard of discharging its burden of proof in criminal cases beyond reasonable doubt. It is not a conjecture or a fanciful doubt. It is based on admissible and material evidence to dissuade the trial Court from acquitting an accused person.”
20. On the basis of the evidence before the trial court, I do find that the Appellant was right in convicting the Appellant for the offence of preparing and submitting plans while not a professional engineer contrary to section 50 (2) as read with section 50 (3) and 57 of the Engineers Act. I will thus make the following determination.
a. The appeal on conviction and sentence of the Appellant herein is hereby dismissed.
b. The conviction and sentence imposed by the trial court against the accused person on the 15 th May 2024 is hereby upheld.
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 9 th day of July 2026.
HCCRA NO. E053 OF 2024 ERASTUS ONYANGO NYAMORI VS REPUBLIC JUDGMENT Pg. 12