INTRODUCTION
1. The appellant in this matter appeals against both conviction and sentence on the following grounds;-
a). THAT the Learned Trial Magistrate grossly erred in law and fact as to the examination and other evaluation of the charges against the Appellant as placed before her and more particularly the charge of the abuse of the office.
b). THAT the Learned Trial Magistrate grossly erred in law and fact in failing to appreciate that in cases of abuse of public office, a complaint must be raised by the public office or it's officer itself and not any other person(s).
c). THAT the Learned Trial Magistrate erred in law and fact by convicting the accused person when indeed there was no prove of the abuse of office by a clear and unequivocal evidence adduced on the excesses and/or the accused person acting outside or beyond the mandate of his instructions and duties.
d). THAT the Trial Magistrate grossly erred both in law and fact by convicting and sentencing the Appellant whereas the charge before the Honourable Court was defective, incompetent and bad in law in that the evidence adduced in terms of the Certificate of Title before the Honourable Court was distinctively different from the one on the charge sheet and the one referenced and produced before the Trial count i.e LR 4953/4233 and now the question that besets this proceedings, which is the correct or real title for the purposes of this proceedings?
e). THAT the Learned Trial Magistrate grossly erred in law and fact and in violation of the principles and tenets of law on the burden placed upon the prosecution to prove their case beyond any shadow of doubts proceeded to convict and sentenced the accused person when it clearly came out in the evidence before the Honourable Court that there were circumstances, factors and occurrences that raised serious doubt on the credibility, sincerity, honesty, genuineness on the part of principal and co-complainant in the proceedings before the Honourable Court.
f). THAT the Learned Trial Magistrate erred both in law and fact by failing to appreciate that the whole investigative process and proceedings were interfered with and doctored at the instance and on the influence of the PW1 Catherine Njeri Ng'ang'a alias Maranga when the completed and recommended prosecution of PW1 and PW2 decision had already been made by the office of the Director of Public Prosecution and instead schemed and caused to be manipulated the investigators proceedings and diary were manipulated and key investigative documents were removed from the file with a view of distorting and altering the facts such as the original documents examiners report by I.P. Chania Geoffrey from the Directorate of Criminal Investigation and replacing it with a doctored and adulterated document and examiners report.
g). THAT the Learned Trial Magistrate erred both in law and fact by failing to look at the fraud, illegalities and irregularities on the document produced by the prosecution in support of the prosecution case which is not only an affront to the truth, tenets of good criminal law principles and the law generally but blatant abuse of the constitution of Kenya and the principles of Criminal Justice System and altered in particular;
(i) using of fraudulent, forged documents in the form of letter of allotment reference number 23136/XLIII dated 9th July 1998.
(ii) relying on invalid, incompetent and bad in law documents issued in favour of a minor person who as 9th July 1998 was only 17 years.
iii). the title produced as an exhibit by the prosecution was a clear case of forgery and fraud having been founded on photo copies of deed plans and which were premised on false affidavit.
iv). relying on evidence which was false and therefore amounting to perjury before the Honourable Court and yet the Court relied on those documents to convict and sentence the Appellant.
v) failing to address its mind to other serious issues such as the forgery, distorted and misrepresented facts which highly influenced the final judgment of the Trial Magistrate.
(vi) failing to address the issue of the purported establishment contractual obligation with a minor which made any document or such contract null and void.
(vii) Failing to notice the discrepancies in the two allotment letters respecting the subject land parcel.
(viii) Failing to seek specific and express evidence from any of the witnesses whether the Appellant had the capacity and mandate to sign letters of allotment and to what extent or whether he had any limitation.
(ix) Failing to appreciate that the Deceased Accused 2 was the owner of parcel number Reference LR. 4953/4223 and that he had valid letter of allotment, informal transfer signed and accepted by the Commissioner of Lands, he had not only issued a cheque in the year 2008 which was stolen by PW1 the Principal Complainant but that he replaced the cheque and was accepted and paid to the Commissioner of Lands.
(x) Failing to appreciate that the file was opened in favor of the Appellant and which was transferred to the Deceased 2nd Accused person who took possession of the land and developed it as per the exhibits produced in Court.
(xi) That there is a deed plan issued and is still in possession of the Deceased 2nd Accused person (as he was then) and now with his family, what is of great importance and great significance is deed plan respective subject land matter.
xii) The evidence of interference of records at lands office and in particular the intention and deliberate removal of documents from file number 208924.
(xiii) Condoning corrupt practices to overlooking the truth and justifiably cause and giving credit to illegality, unlawful as practiced at lands office.
h). THAT the Trial Magistrate erred in law and fact by failing to give due consideration and the exact weight the defence evidence consisting of the oral and documentary accounts and records presented before it, which if otherwise was thoroughly examined and evaluated and considered would have given different results.
i). THAT the Trial Magistrate erred both in law and facts by failing to give due consideration to what entails the process of allocation and process of Government land and who can be allocated Government land or in other terms who was the rightful allottee of land parcel LR. 4953/4223 formerly un-surveyed Plot No. C Thika Municipality.
J). THAT the Trial Magistrate erred both in law and fact by failing to appreciate the evidence tendered by the defence team in opposition to the charges preferred against the accused person of abuse of office.
ISSUES FOR DETERMINATION
2. The grounds of appeal basically raise the following issues for determination ;-
a). whether the prosecution proved its case against the appellant beyond a reasonable doubt.
b). whether the findings by the learned honorable magistrate could be supported by the evidence on record.
c). whether the defense by the appellant was considered by the trial court
APPELLANT’ CASE
3. The appellant submitted that the central issue presented for determination in the appeal is whether, upon a proper re-evaluation of the record, the Appellant is entitled to the reliefs sought in the said Petition of Appeal.
4. The Appellant submitted that this Court, sitting as a first appellate court, is clothed with a wide and unfettered mandate to re-evaluate, analyze and reassess the entirety of the evidence on record and arrive at its own independent conclusions. In support of this position, he placed reliance on Mwangi v Republic (Criminal Appeal E009 of 2023) [2024] KEHC 4728 ( KLR) (2 May 2024), wherein the High Court reaffirmed the long-standing principles set out in Okeno v Republic [1972] EA 32, Pandya v R [1957] EA 336, Shantilal M. Ruwala v R [1957] EA 570 and Peters v Sunday Post [1958] EA 424, that a first appellate court must subject the entire evidence to a fresh and exhaustive examination and is not limited to merely determining whether there was some evidence to support the trial court’s findings. Similar affirmation of this duty is found in Kiilu & Another v Republic [2005] 1 KLR 174.
5. Further, he also relied on JKM v Republic (Criminal Appeal E024 of 2023) [2024] KEHC 6335 (KLR) (3 June 2024 ), where the Court reiterated that, while re-evaluating evidence, the appellate court must bear in mind that the trial court had the advantage of seeing and hearing witnesses.
6. The Appellant urged this Court to undertake a similar wholesome re-evaluation of the evidence and arrive at a conclusion different from that of the trial court.
7. On the burden and standard of proof, the Appellant submitted that the prosecution bore the burden throughout the trial and that the same never shifted to the Appellant. Reliance was again placed on Mwangi v Republic (supra), wherein the Court emphasized that the standard of proof in criminal cases is proof beyond reasonable doubt and that any reasonable doubt must be resolved in favor of an accused person. The Appellant further cited the definition of “standard of proof” as set out in Black’s Law Dictionary, 11th Edition (2019) at page 1694.
8. The Appellant also relied on Republic v Ismail Hussein Ibrahim [2018] eKLR, where Nyakundi J traced the doctrine of proof beyond reasonable doubt to the seminal authorities of Woolmington v DPP [1935] AC 462 and Miller v Minister of Pensions [1942] AC, including Lord Denning’s exposition that proof beyond reasonable doubt requires a high degree of probability rather than absolute certainty.
9. The appellant urged the court to allow the appeal should there be any material doubt in the case of the prosecution as was held by Mativo J (as he then was) in JMN v Republic (Criminal Appeal E017 of 2021) [2022] KEHC 279 (KLR) (7 April 2022), that even a single material doubt is sufficient to entitle an accused to an acquittal as a matter of right.
10. The appellant further urged the court to consider that he enjoyed the presumption of innocence under the law as enshrined under Article 50 (2) (k) of the Constitution and that any doubt in the case must be resolved in his favor.
11. Turning to the offence itself, the Appellant submitted on the ingredients of the offence of abuse of office, particularly the mens rea and actus reus and argued this court to find that the prosecution had failed to establish either of the two key ingredients.
12. The appellant cited the decision of the Court of Appeal decision in John Simiyu Khaemba & another v Republic [2020] KECA 470 (KLR) , where the Court held that abuse of office entails the improper use of public office, constituting mens rea, and the conferment of a benefit to oneself or another person, constituting actus reus. The Court further clarified that improper use includes conscious violation or non-adherence to prescribed procedures and regulations. The appellant contended that the prosecution had not established that he had improperly used his office to confer a benefit on himself or some other person.
13. He submitted that the trial court failed to properly analyse the charge, the prosecution evidence and the Appellant’s defence, and thereby arrived at an erroneous conclusion. He further submitted that the charge sheet was fatally defective, noting that the land registration numbers cited differed, namely LR No. 4953/4233 and LR No. 4953/4223, and that the title produced in court was unsupported by documents from the land registry file.
14. The Appellant contended that the trial court failed to address this defect, rendering the conviction untenable.
15. In addition, the appellant submitted that the ownership of the property known as LR No. 4953/4223 was contested, with two parallel land files and titles in existence, and that there were ongoing proceedings before the Environment and Land Court.
16. He further contended that there was overwhelming evidence before the trial court that demonstrated that the complainant’s title was procured through fraud, forgery and illegal manipulation of land records, yet the trial court nonetheless founded a conviction on such contested ownership.
17. On mens rea, the Appellant submitted that the prosecution failed to call a single witness to demonstrate that the process of allocation of the subject property violated any prescribed procedures within the Ministry of Lands. On the contrary, the Appellant’s witnesses, including DW5, a former Ministry of Lands officer, testified that public officers were entitled to apply for unsurveyed land and that, at the material time, the Appellant was duly authorised to sign letters of allotment on behalf of the Commissioner of Lands.
18. The Appellant maintained that he and two others lawfully applied for unsurveyed vacant land and that the same was approved by the Commissioner of Lands.
19. The Appellant submitted that his act of signing the letters of allotment, including one in which he was an allottee, was lawful, proper and consistent with the prevailing practice at the time, as confirmed by multiple witnesses. He contends that no prescribed procedure was violated and that the prosecution failed to demonstrate that he acted outside the scope of his authority, thereby failing to prove mens rea.
20. The Appellant further submitted that abuse of office is an offence against the State and ought to be investigated by the Ethics and Anti-Corruption Commission (EACC).
21. He contended that the complainants in the trial court were private individuals with vested interests in the property and that no officer from the EACC testified or conducted investigations. The Appellant argued that the prosecution was instigated by interested private persons rather than the State, rendering the charge and conviction untenable.
22. On investigations, the Appellant submitted that he was initially a complainant in a trespass matter but was later turned into a suspect and accused through manipulation of investigations by the complainants led by Catherine Njeri Nganga.
23. The appellant contended that the investigation file was transferred from Thika to DCI Headquarters through manipulation.
24. He further submitted that the land records were stolen and manipulated, leading to parallel files, and that the trial court erred in relying on evidence from such complainants.
25. In conclusion, the appellant submitted that the Investigation Diary was not produced in court, a fundamental omission which, in his view, points to the fact that the investigation file was doctored and manipulated. He contends that the trial court failed to appreciate this fatal flaw.
26. According to the appellant the trial court failed to properly evaluate the charge sheet, the evidence on record and the applicable law, and consequently arrived at an erroneous decision. He urged this Honourable Court to disturb the conviction and grant the reliefs sought in the Petition of Appeal dated 2nd March 2023.
RESPONDENTS CASE
27. The Respondent opposed the Appeal and submitted that the Appeal is wholly without merit and ought to be dismissed.
28. The Appellant was charged with two offences, namely: conspiracy to defraud contrary to section 317 of the Penal Code, and abuse of office contrary to section 101 as read with section 102A of the Penal Code.
29. At the conclusion of the trial, the Honorable Magistrate acquitted the Appellant on the first count, owing to the death of a co-accused, which rendered the conspiracy charge incapable of proceeding, but found the Appellant guilty of the second count of abuse of office, convicting him to one year’s imprisonment or payment of a fine of Kshs. 100,000/=.
30. According to the Respondent the issues for determination in this appeal are whether the ingredients of the offence of abuse of office were proved and whether the charge sheet was fatally defective.
31. In regard to the first issue, the Respondent submitted that the prosecution discharged its burden by establishing the ingredients of abuse of office under section 101 of the Penal Code, which requires that a public officer must have used his office to arbitrarily confer a benefit prejudicial to the rights of another, with section 102A providing the corresponding penalty.
32. The Respondent relied on the Court of Appeal decision in Chitavi v Republic (Criminal Appeal 11 of 2014) [2023] KECA 1564 (KLR), which set out the elements of abuse of office as:
(i) the person is a public officer;
(ii) the public office is used to improperly confer a benefit;
(iii) the benefit must be in the nature of a gain; and
(iv) the arbitrary act is prejudicial to the rights of another.
33. In the present case, the respondent submitted that the evidence from PW4 (recorded as PW3) John Waiganjo established that the Appellant was a public officer, having been deployed to the Ministry of Lands and Physical Planning on 8th August 1988 and served there until his resignation on 11th November 2007.
34. The Respondent contends that the Appellant abused his position by improperly issuing a letter of allotment to himself of an un-surveyed plot within Thika Municipality, reference No. 23136/XLIII, as exhibited in court (Exhibit 6). Evidence from DW2 and DW5 detailed the procedure for allocation of land, including identification, application, acceptance, payment of legal fees, and formal approval by the Commissioner of Lands and subsequent notification to the Director of Survey.
35. The Respondent asserts that the Appellant did not follow these procedures; he neither paid for the allotment nor obtained the requisite formal acceptance but purported to transfer the parcel informally to one John Ngacha Nganga. Evidence confirmed that payment was never made, including a cancelled banker’s cheque (PW6), and therefore the Appellant’s actions constituted improper conferment of a benefit to himself and the said John Ngacha Nganga satisfying the second and third ingredients of the offence.
36. Furthermore, the Respondent submits that the arbitrary act prejudiced the rights of another.
37. The property in question rightfully belonged to Kennedy Nganga, who had complied with the legal requirements of acceptance and payment.
38. PW8 confirmed the allocation of land to a minor PW5, verified the issuance of a title to the complainant and PW9, a document examiner confirmed the Appellant’s signature on the allotment letter.
39. The Respondent challenges the credibility of the Appellant’s expert witness DW1 arguing that he failed to establish his qualifications, did not provide scientific criteria for assessing signatures, and was biased due to remuneration from the Appellant rendering his report unreliable. By contrast, the prosecution’s expert report stands unchallenged and is reliable evidence.
40. On the second issue regarding the charge sheet, the Respondent contends that it was not fatally defective. The Appellant’s assertion that the charge sheet and certificate differed in land parcel numbers (LR 4953/4233 versus LR 4953/4223) is misplaced. Count II of the charge sheet specified that on 9th July 1998, at the Land Registry in the Ministry of Lands and Settlement, Ardhi House, Nairobi, the Appellant, employed as a Land Officer, arbitrarily issued a letter of allotment of an unsurveyed residential plot within Thika Municipality, reference No. 23136/XLIII, abusing his office. The Respondent submits that the charge sheet correctly captured the particulars of the offence and was therefore not defective as alleged.
41. In conclusion, the Respondent prays that this Honourable Court dismiss the Appellant’s submissions, uphold the findings of the trial court, and affirm the conviction and sentence imposed on the Appellant for abuse of office.
SUMMARY OF THE PROSECUTION’S CASE
42. PW1, Catherine Njeri Ng’ang’a, testified to the court that in 1997, while still in business, she engaged Mr. Njau, a physical planner, concerning a parcel of land situated in Thika, which she understood to be government land. At the time, the Commissioner of Lands was Mr. Gacanja. PW1 further stated that she consulted James Chege Gitunga, a survey officer, who informed her that 10 acres could only be allocated to three people, namely herself, Francis Kimani Ngugi, and James Chege.
43. PW1 testified that James Chege wrote a letter to the Commissioner of Lands seeking allocation. The original 10 acres, initially referred to as Plot C, was subsequently subdivided into Plots A, B, and C. The survey was carried out by Wilson Kamau, and new numbers were issued as follows: Plot A – 4221, Plot B – L.R. No. 4953/4222, and Plot C – L.R. No. 4953/4223. PW1 stated that her portion was Plot C. After subdivision, the process was handled through James Chege Gitonga.
44. PW1 told the court that an allotment letter dated 19th July 1998, marked MH-1, was issued in the name of Kennedy Marenga, her first-born son, for Plot C (MH-1). She explained that she opted to have the allotment registered in her son’s name. She paid money to facilitate and retain the allocation of the plot.
45. In or about 2009, PW1 visited the Lands Office and met Hassan, who was in charge of records. She stated that the file was found under a table, associated with Kanwa, and that the deed plan was missing. PW1 testified that she knew Francis Mwanawaka (Manwaka) and subsequently consulted a Senior Land Officer, Mr. Kimiti, who advised her to see Mr. Kosgey. She stated that there was another complainant raising similar issues.
46. PW1 sought legal assistance from Mr. Ondiek, Advocate, who wrote to the survey department. As a result, a deed plan was issued, which she identified as MH-2, being a copy of the deed plan No. 40607. She produced this document in court. She testified that she took the deed plan for purposes of registration of title. PW1 stated that in 2012, she called her son Kennedy Ng’ang’a Maranga to come and collect the title. She paid Kshs. 161,000/= for the title and was issued with receipts from the Ministry of Lands. She produced a copy of a banking slip for Kshs. 161,100/= dated 24th January 2012, marked MH-3, and stated that she took a banker’s cheque for Kshs. 161,000/=, issued on 24th January 2012 from Mama Ngina Branch, marked MH-4, cheque number 093759. She further produced a receipt dated 3rd February 2012, marked MH-5, from the Ministry of Lands, relating to File No. 208924, in the name of Kennedy Ng’ang’a Maranga.
47. PW1 testified that the Memorandum of Registration, attached and marked MFI-1, showed I.R. No. 141554/1, registered on 15th November 2012, by the Government Registrar, in favour of Kennedy Ng’ang’a, with presentation recorded on 23rd November 2012. She further stated that she was required to pay annual rent of Kshs. 27,000/= and that she provided her identification documents for purposes of searches.
48. PW1 testified that in 2013, payment demands and receipts were issued, marked MFI-5(a) and MFI-5(b), and that she had a handwritten receipt. She further stated that on 28th October 2013, she paid amounts of Kshs. 20,000/= and Kshs. 10,000/=. She narrated that upon visiting the land, a small-statured lady showed her an envelope and claimed to be an employee, having reported in 2008 to Mr. Kosgey. PW1 stated that she proceeded to process the title through Thika District Survey Office.
49. PW1 testified that survey work was conducted from 7.00 a.m. to 6.00 p.m., but no one appeared on site. Beacons were placed following existing markings, but later found uprooted. She reported the matter to the police and stated that despite having earlier reported the issue, she and her son were arrested for trespass. No statements were recorded, and they were released. She refused to write a statement at that time and later went to CID Headquarters. She testified that she later went to Thika DCIO’s office, where Officer Burugu advised them to return the following day. She produced documents to CID and recorded a statement. She referred to file numbers 202984 and 1456/422746, and a letter dated 11th September 2012, indicating that the title was issued on 26th November 2012, marked MH-7, relating to File No. 202480. She also produced MH-9, being a certificate for land.
50. PW1 further testified that the survey was conducted by Millicent Kamau on 27th February 2002, and produced MH-2 in that regard. She referred to a release letter from the Director of Pan Survey of Kenya dated 13th February 2013, referencing L.R. Nos. 4953/2201 and 4953/212. She also produced MH-11, being title details and receipt copies for Kshs. 135,000/=, reflecting a 99-year lease at Kshs. 27,000/= per annum, dated 14th September 2012. She produced MH-12, being an annual rent receipt, and referred to a release dated 15th February 2002 for 4953/4.
51. PW1 went on to state that all documents were contained in the file and referred to a letter dated 26th May 2016, issued in April, marked MH-14, and an approval dated 11th June 2012, attached to MH-15, being a clearance certificate. She stated that investigations concerning land fraud led her to Nyeri, where she obtained the file.She testified that she later learnt that John Ngocho Ng’ang’a claimed to have bought the land from Francis Mwanawaka, a land officer at Ardhi House. She stated that she acquired the land in 2012 through a legal process and produced MH-16, being an allotment for Plot C, and MH-17, being an allotment in favour of John Ngeno. She testified that she was surprised that another allotment existed, yet the land was initially for only three persons. She stated that a civil case had been lodged over the land, that the complainants had constructed structures and taken over her land, and identified Francis Mwanawaka as Accused 1 and Mr. Ngacha as Accused 2, residing along Kiambu Road.
52. Upon Cross-Examination by Mr. Muriuki (for Accused 1 and Accused 2) PW1 confirmed that the land in question is L.R. No. 4953/4223, registered in her son’s name, measuring slightly less than 3 acres, and containing three stone houses. She testified that she first saw the initial house around 2010–2011, and later observed additional structures. She identified John Ngacha Ng’ang’a as the owner of the first house and stated that in 2008, she discovered a small office selling plots and informed the seller that the land did not belong to them.
53. PW1 further testified that in 2010, she found documents missing from the Lands Office file, except for the file cover and allotment letter, and was advised to obtain a deed plan. She confirmed that the deed plan was later reissued as MH-2 (certified copy) after the original disappeared. She stated that the first deed plan was issued in 2002, but she did not know who signed it. She reported trespass in 2013, but could not recall the OB number, and stated that she later escalated the matter to CID Headquarters due to frustration with Thika Lands Office.
54. PW1 referred to DMFI-1, being a card marked DMH-1 No. 2089/42, and DFI-2, being a letter from Kennedy Maranga accepting the offer and making second payments. She testified that documents were lost in 2008, and that she later learnt investigations revealed that allotment letters had been signed by Accused 1. She denied allegations that her son’s deed plan was collected by John Ngacha, disputing DMH-3. She acknowledged the existence of a pending civil suit between John Ngacha and herself and her son, with an order stopping further development.
55. PW1 referred to MH-5(b), a bundle of rate demands dated 31st January 2013, and denied paying the rates. She acknowledged a Daily Nation advertisement dated 16th November 2016, listing John Ngacha Ng’ang’a as a defaulter for Plot No. 4953/4223, with arrears of Kshs. 1.14 million and Kshs. 791,000/=. She denied knowledge of whether officers inspected the land prior to allocation.
56. PW2 Kennedy Ng’ang’a Maranga testified that he is a farmer and businessman based in Nairobi. He stated that in 1998, an allotment was issued in his name, and that his mother, PW1, had applied on his behalf. He identified the letter of allotment dated 9th July 1998, marked MH-1, requiring payment of Kshs. 161,000/=. He stated that he first saw the letter in 1998.
57. PW2 testified that in January 2013, he and PW1 went to Thika Survey Office to subdivide the land. Beacons were placed but later removed. Upon inquiry, they were informed that Jane Wanjiru appeared in demand notes at the Municipal Council. He testified that the DCIO Thika informed them the land belonged to someone else. He later reported to DCI Headquarters, Kiambu Road, where investigations were conducted.
58. PW2 identified several documents, including MFI-2 (Deed Plan), MFI-3 (Receipt for Kshs. 161,020/=), MFI-4 (Banker’s Cheque dated 24th January 2012), MFI-5(a), 5(b), 5(c) relating to registration and clearance certificates, MFI-7 (Point Clearance Certificate), MFI-8 (Payments and Stamp Duty), MFI-9 (Surveyor’s Fees), MFI-10 (Survey 2001), MFI-11 (Title Details), MFI-12 (Annual Rent), MFI-13 (Land Rent dated 29th January 2013), MFI-14 (Instructions for New Lease), MFI-15 (Special Conditions), MFI-16 (Allotment for Farmers Nkuli), MFI-17 (Allotment for John Ngacha Ng’ang’a), MFI-20 (Acceptance Letter dated 30th January 2012), MFI-21 (Survey dated 15th February 2002), MFI-22 (Green Card showing cancellation to Francis Mulu), and MFI-27 (Clearance Certificate dated 11th September 2012 for Plot No. 4953/4223).
59. PW2 testified that he had never sold the land, that it belonged to him, and that PW1 acted as his trustee. He confirmed the existence of ELC High Court Civil Case No. 503 of 2015, which was still pending.
60. On being cross-Examined PW2 testified that he was 17 years old in 1998, having been born on 18th October 1980, and that he did not personally sign the original
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1. The appellant in this matter appeals against both conviction and sentence on the following grounds;-
a). THAT the Learned Trial Magistrate grossly erred in law and fact as to the examination and other evaluation of the charges against the Appellant as placed before her and more particularly the charge of the abuse of the office.
b). THAT the Learned Trial Magistrate grossly erred in law and fact in failing to appreciate that in cases of abuse of public office, a complaint must be raised by the public office or it's officer itself and not any other person(s).
c). THAT the Learned Trial Magistrate erred in law and fact by convicting the accused person when indeed there was no prove of the abuse of office by a clear and unequivocal evidence adduced on the excesses and/or the accused person acting outside or beyond the mandate of his instructions and duties.
d). THAT the Trial Magistrate grossly erred both in law and fact by convicting and sentencing the Appellant whereas the charge before the Honourable Court was defective, incompetent and bad in law in that the evidence adduced in terms of the Certificate of Title before the Honourable Court was distinctively different from the one on the charge sheet and the one referenced and produced before the Trial count i.e LR 4953/4233 and now the question that besets this proceedings, which is the correct or real title for the purposes of this proceedings?
e). THAT the Learned Trial Magistrate grossly erred in law and fact and in violation of the principles and tenets of law on the burden placed upon the prosecution to prove their case beyond any shadow of doubts proceeded to convict and sentenced the accused person when it clearly came out in the evidence before the Honourable Court that there were circumstances, factors and occurrences that raised serious doubt on the credibility, sincerity, honesty, genuineness on the part of principal and co-complainant in the proceedings before the Honourable Court.
f). THAT the Learned Trial Magistrate erred both in law and fact by failing to appreciate that the whole investigative process and proceedings were interfered with and doctored at the instance and on the influence of the PW1 Catherine Njeri Ng'ang'a alias Maranga when the completed and recommended prosecution of PW1 and PW2 decision had already been made by the office of the Director of Public Prosecution and instead schemed and caused to be manipulated the investigators proceedings and diary were manipulated and key investigative documents were removed from the file with a view of distorting and altering the facts such as the original documents examiners report by I.P. Chania Geoffrey from the Directorate of Criminal Investigation and replacing it with a doctored and adulterated document and examiners report.
g). THAT the Learned Trial Magistrate erred both in law and fact by failing to look at the fraud, illegalities and irregularities on the document produced by the prosecution in support of the prosecution case which is not only an affront to the truth, tenets of good criminal law principles and the law generally but blatant abuse of the constitution of Kenya and the principles of Criminal Justice System and altered in particular;
(i) using of fraudulent, forged documents in the form of letter of allotment reference number 23136/XLIII dated 9th July 1998.
(ii) relying on invalid, incompetent and bad in law documents issued in favour of a minor person who as 9th July 1998 was only 17 years.
iii). the title produced as an exhibit by the prosecution was a clear case of forgery and fraud having been founded on photo copies of deed plans and which were premised on false affidavit.
iv). relying on evidence which was false and therefore amounting to perjury before the Honourable Court and yet the Court relied on those documents to convict and sentence the Appellant.
v) failing to address its mind to other serious issues such as the forgery, distorted and misrepresented facts which highly influenced the final judgment of the Trial Magistrate.
(vi) failing to address the issue of the purported establishment contractual obligation with a minor which made any document or such contract null and void.
(vii) Failing to notice the discrepancies in the two allotment letters respecting the subject land parcel.
(viii) Failing to seek specific and express evidence from any of the witnesses whether the Appellant had the capacity and mandate to sign letters of allotment and to what extent or whether he had any limitation.
(ix) Failing to appreciate that the Deceased Accused 2 was the owner of parcel number Reference LR. 4953/4223 and that he had valid letter of allotment, informal transfer signed and accepted by the Commissioner of Lands, he had not only issued a cheque in the year 2008 which was stolen by PW1 the Principal Complainant but that he replaced the cheque and was accepted and paid to the Commissioner of Lands.
(x) Failing to appreciate that the file was opened in favor of the Appellant and which was transferred to the Deceased 2nd Accused person who took possession of the land and developed it as per the exhibits produced in Court.
(xi) That there is a deed plan issued and is still in possession of the Deceased 2nd Accused person (as he was then) and now with his family, what is of great importance and great significance is deed plan respective subject land matter.
xii) The evidence of interference of records at lands office and in particular the intention and deliberate removal of documents from file number 208924.
(xiii) Condoning corrupt practices to overlooking the truth and justifiably cause and giving credit to illegality, unlawful as practiced at lands office.
h). THAT the Trial Magistrate erred in law and fact by failing to give due consideration and the exact weight the defence evidence consisting of the oral and documentary accounts and records presented before it, which if otherwise was thoroughly examined and evaluated and considered would have given different results.
i). THAT the Trial Magistrate erred both in law and facts by failing to give due consideration to what entails the process of allocation and process of Government land and who can be allocated Government land or in other terms who was the rightful allottee of land parcel LR. 4953/4223 formerly un-surveyed Plot No. C Thika Municipality.
J). THAT the Trial Magistrate erred both in law and fact by failing to appreciate the evidence tendered by the defence team in opposition to the charges preferred against the accused person of abuse of office.
ISSUES FOR DETERMINATION
2. The grounds of appeal basically raise the following issues for determination ;-
a). whether the prosecution proved its case against the appellant beyond a reasonable doubt.
b). whether the findings by the learned honorable magistrate could be supported by the evidence on record.
c). whether the defense by the appellant was considered by the trial court
APPELLANT’ CASE
3. The appellant submitted that the central issue presented for determination in the appeal is whether, upon a proper re-evaluation of the record, the Appellant is entitled to the reliefs sought in the said Petition of Appeal.
4. The Appellant submitted that this Court, sitting as a first appellate court, is clothed with a wide and unfettered mandate to re-evaluate, analyze and reassess the entirety of the evidence on record and arrive at its own independent conclusions. In support of this position, he placed reliance on Mwangi v Republic (Criminal Appeal E009 of 2023) [2024] KEHC 4728 ( KLR) (2 May 2024), wherein the High Court reaffirmed the long-standing principles set out in Okeno v Republic [1972] EA 32, Pandya v R [1957] EA 336, Shantilal M. Ruwala v R [1957] EA 570 and Peters v Sunday Post [1958] EA 424, that a first appellate court must subject the entire evidence to a fresh and exhaustive examination and is not limited to merely determining whether there was some evidence to support the trial court’s findings. Similar affirmation of this duty is found in Kiilu & Another v Republic [2005] 1 KLR 174.
5. Further, he also relied on JKM v Republic (Criminal Appeal E024 of 2023) [2024] KEHC 6335 (KLR) (3 June 2024 ), where the Court reiterated that, while re-evaluating evidence, the appellate court must bear in mind that the trial court had the advantage of seeing and hearing witnesses.
6. The Appellant urged this Court to undertake a similar wholesome re-evaluation of the evidence and arrive at a conclusion different from that of the trial court.
7. On the burden and standard of proof, the Appellant submitted that the prosecution bore the burden throughout the trial and that the same never shifted to the Appellant. Reliance was again placed on Mwangi v Republic (supra), wherein the Court emphasized that the standard of proof in criminal cases is proof beyond reasonable doubt and that any reasonable doubt must be resolved in favor of an accused person. The Appellant further cited the definition of “standard of proof” as set out in Black’s Law Dictionary, 11th Edition (2019) at page 1694.
8. The Appellant also relied on Republic v Ismail Hussein Ibrahim [2018] eKLR, where Nyakundi J traced the doctrine of proof beyond reasonable doubt to the seminal authorities of Woolmington v DPP [1935] AC 462 and Miller v Minister of Pensions [1942] AC, including Lord Denning’s exposition that proof beyond reasonable doubt requires a high degree of probability rather than absolute certainty.
9. The appellant urged the court to allow the appeal should there be any material doubt in the case of the prosecution as was held by Mativo J (as he then was) in JMN v Republic (Criminal Appeal E017 of 2021) [2022] KEHC 279 (KLR) (7 April 2022), that even a single material doubt is sufficient to entitle an accused to an acquittal as a matter of right.
10. The appellant further urged the court to consider that he enjoyed the presumption of innocence under the law as enshrined under Article 50 (2) (k) of the Constitution and that any doubt in the case must be resolved in his favor.
11. Turning to the offence itself, the Appellant submitted on the ingredients of the offence of abuse of office, particularly the mens rea and actus reus and argued this court to find that the prosecution had failed to establish either of the two key ingredients.
12. The appellant cited the decision of the Court of Appeal decision in John Simiyu Khaemba & another v Republic [2020] KECA 470 (KLR) , where the Court held that abuse of office entails the improper use of public office, constituting mens rea, and the conferment of a benefit to oneself or another person, constituting actus reus. The Court further clarified that improper use includes conscious violation or non-adherence to prescribed procedures and regulations. The appellant contended that the prosecution had not established that he had improperly used his office to confer a benefit on himself or some other person.
13. He submitted that the trial court failed to properly analyse the charge, the prosecution evidence and the Appellant’s defence, and thereby arrived at an erroneous conclusion. He further submitted that the charge sheet was fatally defective, noting that the land registration numbers cited differed, namely LR No. 4953/4233 and LR No. 4953/4223, and that the title produced in court was unsupported by documents from the land registry file.
14. The Appellant contended that the trial court failed to address this defect, rendering the conviction untenable.
15. In addition, the appellant submitted that the ownership of the property known as LR No. 4953/4223 was contested, with two parallel land files and titles in existence, and that there were ongoing proceedings before the Environment and Land Court.
16. He further contended that there was overwhelming evidence before the trial court that demonstrated that the complainant’s title was procured through fraud, forgery and illegal manipulation of land records, yet the trial court nonetheless founded a conviction on such contested ownership.
17. On mens rea, the Appellant submitted that the prosecution failed to call a single witness to demonstrate that the process of allocation of the subject property violated any prescribed procedures within the Ministry of Lands. On the contrary, the Appellant’s witnesses, including DW5, a former Ministry of Lands officer, testified that public officers were entitled to apply for unsurveyed land and that, at the material time, the Appellant was duly authorised to sign letters of allotment on behalf of the Commissioner of Lands.
18. The Appellant maintained that he and two others lawfully applied for unsurveyed vacant land and that the same was approved by the Commissioner of Lands.
19. The Appellant submitted that his act of signing the letters of allotment, including one in which he was an allottee, was lawful, proper and consistent with the prevailing practice at the time, as confirmed by multiple witnesses. He contends that no prescribed procedure was violated and that the prosecution failed to demonstrate that he acted outside the scope of his authority, thereby failing to prove mens rea.
20. The Appellant further submitted that abuse of office is an offence against the State and ought to be investigated by the Ethics and Anti-Corruption Commission (EACC).
21. He contended that the complainants in the trial court were private individuals with vested interests in the property and that no officer from the EACC testified or conducted investigations. The Appellant argued that the prosecution was instigated by interested private persons rather than the State, rendering the charge and conviction untenable.
22. On investigations, the Appellant submitted that he was initially a complainant in a trespass matter but was later turned into a suspect and accused through manipulation of investigations by the complainants led by Catherine Njeri Nganga.
23. The appellant contended that the investigation file was transferred from Thika to DCI Headquarters through manipulation.
24. He further submitted that the land records were stolen and manipulated, leading to parallel files, and that the trial court erred in relying on evidence from such complainants.
25. In conclusion, the appellant submitted that the Investigation Diary was not produced in court, a fundamental omission which, in his view, points to the fact that the investigation file was doctored and manipulated. He contends that the trial court failed to appreciate this fatal flaw.
26. According to the appellant the trial court failed to properly evaluate the charge sheet, the evidence on record and the applicable law, and consequently arrived at an erroneous decision. He urged this Honourable Court to disturb the conviction and grant the reliefs sought in the Petition of Appeal dated 2nd March 2023.
RESPONDENTS CASE
27. The Respondent opposed the Appeal and submitted that the Appeal is wholly without merit and ought to be dismissed.
28. The Appellant was charged with two offences, namely: conspiracy to defraud contrary to section 317 of the Penal Code, and abuse of office contrary to section 101 as read with section 102A of the Penal Code.
29. At the conclusion of the trial, the Honorable Magistrate acquitted the Appellant on the first count, owing to the death of a co-accused, which rendered the conspiracy charge incapable of proceeding, but found the Appellant guilty of the second count of abuse of office, convicting him to one year’s imprisonment or payment of a fine of Kshs. 100,000/=.
30. According to the Respondent the issues for determination in this appeal are whether the ingredients of the offence of abuse of office were proved and whether the charge sheet was fatally defective.
31. In regard to the first issue, the Respondent submitted that the prosecution discharged its burden by establishing the ingredients of abuse of office under section 101 of the Penal Code, which requires that a public officer must have used his office to arbitrarily confer a benefit prejudicial to the rights of another, with section 102A providing the corresponding penalty.
32. The Respondent relied on the Court of Appeal decision in Chitavi v Republic (Criminal Appeal 11 of 2014) [2023] KECA 1564 (KLR), which set out the elements of abuse of office as:
(i) the person is a public officer;
(ii) the public office is used to improperly confer a benefit;
(iii) the benefit must be in the nature of a gain; and
(iv) the arbitrary act is prejudicial to the rights of another.
33. In the present case, the respondent submitted that the evidence from PW4 (recorded as PW3) John Waiganjo established that the Appellant was a public officer, having been deployed to the Ministry of Lands and Physical Planning on 8th August 1988 and served there until his resignation on 11th November 2007.
34. The Respondent contends that the Appellant abused his position by improperly issuing a letter of allotment to himself of an un-surveyed plot within Thika Municipality, reference No. 23136/XLIII, as exhibited in court (Exhibit 6). Evidence from DW2 and DW5 detailed the procedure for allocation of land, including identification, application, acceptance, payment of legal fees, and formal approval by the Commissioner of Lands and subsequent notification to the Director of Survey.
35. The Respondent asserts that the Appellant did not follow these procedures; he neither paid for the allotment nor obtained the requisite formal acceptance but purported to transfer the parcel informally to one John Ngacha Nganga. Evidence confirmed that payment was never made, including a cancelled banker’s cheque (PW6), and therefore the Appellant’s actions constituted improper conferment of a benefit to himself and the said John Ngacha Nganga satisfying the second and third ingredients of the offence.
36. Furthermore, the Respondent submits that the arbitrary act prejudiced the rights of another.
37. The property in question rightfully belonged to Kennedy Nganga, who had complied with the legal requirements of acceptance and payment.
38. PW8 confirmed the allocation of land to a minor PW5, verified the issuance of a title to the complainant and PW9, a document examiner confirmed the Appellant’s signature on the allotment letter.
39. The Respondent challenges the credibility of the Appellant’s expert witness DW1 arguing that he failed to establish his qualifications, did not provide scientific criteria for assessing signatures, and was biased due to remuneration from the Appellant rendering his report unreliable. By contrast, the prosecution’s expert report stands unchallenged and is reliable evidence.
40. On the second issue regarding the charge sheet, the Respondent contends that it was not fatally defective. The Appellant’s assertion that the charge sheet and certificate differed in land parcel numbers (LR 4953/4233 versus LR 4953/4223) is misplaced. Count II of the charge sheet specified that on 9th July 1998, at the Land Registry in the Ministry of Lands and Settlement, Ardhi House, Nairobi, the Appellant, employed as a Land Officer, arbitrarily issued a letter of allotment of an unsurveyed residential plot within Thika Municipality, reference No. 23136/XLIII, abusing his office. The Respondent submits that the charge sheet correctly captured the particulars of the offence and was therefore not defective as alleged.
41. In conclusion, the Respondent prays that this Honourable Court dismiss the Appellant’s submissions, uphold the findings of the trial court, and affirm the conviction and sentence imposed on the Appellant for abuse of office.
SUMMARY OF THE PROSECUTION’S CASE
42. PW1, Catherine Njeri Ng’ang’a, testified to the court that in 1997, while still in business, she engaged Mr. Njau, a physical planner, concerning a parcel of land situated in Thika, which she understood to be government land. At the time, the Commissioner of Lands was Mr. Gacanja. PW1 further stated that she consulted James Chege Gitunga, a survey officer, who informed her that 10 acres could only be allocated to three people, namely herself, Francis Kimani Ngugi, and James Chege.
43. PW1 testified that James Chege wrote a letter to the Commissioner of Lands seeking allocation. The original 10 acres, initially referred to as Plot C, was subsequently subdivided into Plots A, B, and C. The survey was carried out by Wilson Kamau, and new numbers were issued as follows: Plot A – 4221, Plot B – L.R. No. 4953/4222, and Plot C – L.R. No. 4953/4223. PW1 stated that her portion was Plot C. After subdivision, the process was handled through James Chege Gitonga.
44. PW1 told the court that an allotment letter dated 19th July 1998, marked MH-1, was issued in the name of Kennedy Marenga, her first-born son, for Plot C (MH-1). She explained that she opted to have the allotment registered in her son’s name. She paid money to facilitate and retain the allocation of the plot.
45. In or about 2009, PW1 visited the Lands Office and met Hassan, who was in charge of records. She stated that the file was found under a table, associated with Kanwa, and that the deed plan was missing. PW1 testified that she knew Francis Mwanawaka (Manwaka) and subsequently consulted a Senior Land Officer, Mr. Kimiti, who advised her to see Mr. Kosgey. She stated that there was another complainant raising similar issues.
46. PW1 sought legal assistance from Mr. Ondiek, Advocate, who wrote to the survey department. As a result, a deed plan was issued, which she identified as MH-2, being a copy of the deed plan No. 40607. She produced this document in court. She testified that she took the deed plan for purposes of registration of title. PW1 stated that in 2012, she called her son Kennedy Ng’ang’a Maranga to come and collect the title. She paid Kshs. 161,000/= for the title and was issued with receipts from the Ministry of Lands. She produced a copy of a banking slip for Kshs. 161,100/= dated 24th January 2012, marked MH-3, and stated that she took a banker’s cheque for Kshs. 161,000/=, issued on 24th January 2012 from Mama Ngina Branch, marked MH-4, cheque number 093759. She further produced a receipt dated 3rd February 2012, marked MH-5, from the Ministry of Lands, relating to File No. 208924, in the name of Kennedy Ng’ang’a Maranga.
47. PW1 testified that the Memorandum of Registration, attached and marked MFI-1, showed I.R. No. 141554/1, registered on 15th November 2012, by the Government Registrar, in favour of Kennedy Ng’ang’a, with presentation recorded on 23rd November 2012. She further stated that she was required to pay annual rent of Kshs. 27,000/= and that she provided her identification documents for purposes of searches.
48. PW1 testified that in 2013, payment demands and receipts were issued, marked MFI-5(a) and MFI-5(b), and that she had a handwritten receipt. She further stated that on 28th October 2013, she paid amounts of Kshs. 20,000/= and Kshs. 10,000/=. She narrated that upon visiting the land, a small-statured lady showed her an envelope and claimed to be an employee, having reported in 2008 to Mr. Kosgey. PW1 stated that she proceeded to process the title through Thika District Survey Office.
49. PW1 testified that survey work was conducted from 7.00 a.m. to 6.00 p.m., but no one appeared on site. Beacons were placed following existing markings, but later found uprooted. She reported the matter to the police and stated that despite having earlier reported the issue, she and her son were arrested for trespass. No statements were recorded, and they were released. She refused to write a statement at that time and later went to CID Headquarters. She testified that she later went to Thika DCIO’s office, where Officer Burugu advised them to return the following day. She produced documents to CID and recorded a statement. She referred to file numbers 202984 and 1456/422746, and a letter dated 11th September 2012, indicating that the title was issued on 26th November 2012, marked MH-7, relating to File No. 202480. She also produced MH-9, being a certificate for land.
50. PW1 further testified that the survey was conducted by Millicent Kamau on 27th February 2002, and produced MH-2 in that regard. She referred to a release letter from the Director of Pan Survey of Kenya dated 13th February 2013, referencing L.R. Nos. 4953/2201 and 4953/212. She also produced MH-11, being title details and receipt copies for Kshs. 135,000/=, reflecting a 99-year lease at Kshs. 27,000/= per annum, dated 14th September 2012. She produced MH-12, being an annual rent receipt, and referred to a release dated 15th February 2002 for 4953/4.
51. PW1 went on to state that all documents were contained in the file and referred to a letter dated 26th May 2016, issued in April, marked MH-14, and an approval dated 11th June 2012, attached to MH-15, being a clearance certificate. She stated that investigations concerning land fraud led her to Nyeri, where she obtained the file.She testified that she later learnt that John Ngocho Ng’ang’a claimed to have bought the land from Francis Mwanawaka, a land officer at Ardhi House. She stated that she acquired the land in 2012 through a legal process and produced MH-16, being an allotment for Plot C, and MH-17, being an allotment in favour of John Ngeno. She testified that she was surprised that another allotment existed, yet the land was initially for only three persons. She stated that a civil case had been lodged over the land, that the complainants had constructed structures and taken over her land, and identified Francis Mwanawaka as Accused 1 and Mr. Ngacha as Accused 2, residing along Kiambu Road.
52. Upon Cross-Examination by Mr. Muriuki (for Accused 1 and Accused 2) PW1 confirmed that the land in question is L.R. No. 4953/4223, registered in her son’s name, measuring slightly less than 3 acres, and containing three stone houses. She testified that she first saw the initial house around 2010–2011, and later observed additional structures. She identified John Ngacha Ng’ang’a as the owner of the first house and stated that in 2008, she discovered a small office selling plots and informed the seller that the land did not belong to them.
53. PW1 further testified that in 2010, she found documents missing from the Lands Office file, except for the file cover and allotment letter, and was advised to obtain a deed plan. She confirmed that the deed plan was later reissued as MH-2 (certified copy) after the original disappeared. She stated that the first deed plan was issued in 2002, but she did not know who signed it. She reported trespass in 2013, but could not recall the OB number, and stated that she later escalated the matter to CID Headquarters due to frustration with Thika Lands Office.
54. PW1 referred to DMFI-1, being a card marked DMH-1 No. 2089/42, and DFI-2, being a letter from Kennedy Maranga accepting the offer and making second payments. She testified that documents were lost in 2008, and that she later learnt investigations revealed that allotment letters had been signed by Accused 1. She denied allegations that her son’s deed plan was collected by John Ngacha, disputing DMH-3. She acknowledged the existence of a pending civil suit between John Ngacha and herself and her son, with an order stopping further development.
55. PW1 referred to MH-5(b), a bundle of rate demands dated 31st January 2013, and denied paying the rates. She acknowledged a Daily Nation advertisement dated 16th November 2016, listing John Ngacha Ng’ang’a as a defaulter for Plot No. 4953/4223, with arrears of Kshs. 1.14 million and Kshs. 791,000/=. She denied knowledge of whether officers inspected the land prior to allocation.
56. PW2 Kennedy Ng’ang’a Maranga testified that he is a farmer and businessman based in Nairobi. He stated that in 1998, an allotment was issued in his name, and that his mother, PW1, had applied on his behalf. He identified the letter of allotment dated 9th July 1998, marked MH-1, requiring payment of Kshs. 161,000/=. He stated that he first saw the letter in 1998.
57. PW2 testified that in January 2013, he and PW1 went to Thika Survey Office to subdivide the land. Beacons were placed but later removed. Upon inquiry, they were informed that Jane Wanjiru appeared in demand notes at the Municipal Council. He testified that the DCIO Thika informed them the land belonged to someone else. He later reported to DCI Headquarters, Kiambu Road, where investigations were conducted.
58. PW2 identified several documents, including MFI-2 (Deed Plan), MFI-3 (Receipt for Kshs. 161,020/=), MFI-4 (Banker’s Cheque dated 24th January 2012), MFI-5(a), 5(b), 5(c) relating to registration and clearance certificates, MFI-7 (Point Clearance Certificate), MFI-8 (Payments and Stamp Duty), MFI-9 (Surveyor’s Fees), MFI-10 (Survey 2001), MFI-11 (Title Details), MFI-12 (Annual Rent), MFI-13 (Land Rent dated 29th January 2013), MFI-14 (Instructions for New Lease), MFI-15 (Special Conditions), MFI-16 (Allotment for Farmers Nkuli), MFI-17 (Allotment for John Ngacha Ng’ang’a), MFI-20 (Acceptance Letter dated 30th January 2012), MFI-21 (Survey dated 15th February 2002), MFI-22 (Green Card showing cancellation to Francis Mulu), and MFI-27 (Clearance Certificate dated 11th September 2012 for Plot No. 4953/4223).
59. PW2 testified that he had never sold the land, that it belonged to him, and that PW1 acted as his trustee. He confirmed the existence of ELC High Court Civil Case No. 503 of 2015, which was still pending.
60. On being cross-Examined PW2 testified that he was 17 years old in 1998, having been born on 18th October 1980, and that he did not personally sign the original
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