'
1. This appeal emanates from the judgement, conviction and sentence of Hon. Douglas Ogoti, Chief Magistrate delivered and imposed on 23rd July, 2024 in Kisumu MCCR No. 872 of 2018 Republic v Benard Ochieng’ Ouma & 3 others.
2. The Appellants herein, Grace Mumbi Ndung’u, Polycarp Otieno Olela, Benard Ochieng’ Ouma and Kennedy Otieno Ochieng’ were the 3rd, 2nd, 1st and 4th accused persons respectively, before the trial court.
3. The four Appellants were charged in the trial court as follows:
Count I:
Charge: Conspiracy to defraud contrary to Section 317 of the Penal Code, Cap 63 Laws of Kenya.
Particulars of the offence: On diverse dates between 26th day of April, 2018 and 25th day of June, 2018 at an unknown place within the Republic of Kenya, the four Appellants, jointly with others not before the trial court, with intent to defraud, conspired to defraud Barclays Bank of Kenya Limited Ksh.8,143,000/=, the property of Barclays Bank of Kenya Limited.
Count II:
Charge: Stealing by servant contrary to Section 281 of the Penal Code, Cap 63 Laws of Kenya.
Particulars of the offence: On 12th of May, 2018 at an unknown place within the Republic of Kenya, Bernard Ochieng’ Ouma, the 2nd Appellant, stole Ksh.10,000/= by fraudulently receiving the amount to his M-pesa account No. 0706****27 from M-pesa account No. 0708****32.
Alternative count to Count II:
Charge: Handling stolen goods contrary to Section 322(1) of the Penal Code, Cap 63 Laws of Kenya.
Particulars of the offence: On 12th of May, 2018 at an unknown place within the Republic of Kenya, Bernard Ochieng’ Ouma, the 2nd Appellant, otherwise than in the course of stealing, dishonestly received or retained Ksh.10,000/= in the M-pesa account No. 0706****27, the property of Barclays Bank of Kenya, knowing or having reason to believe it to be stolen.
Count III:
Charge: Stealing by servant contrary to Section 281 of the Penal Code, Cap 63 Laws of Kenya.
Particulars of the offence: On diverse dates between 9th of May, 2018 (sic) at an unknown place within the Republic of Kenya, Polycarp Otieno Olela the 3rd Appellant stole Ksh.148,000/- the property of Barclays Bank of Kenya by fraudulently receiving the amount into his M-pesa account 0724****44 from M-pesa numbers 0748****64 and 0748****59.
Alternative count to Count III:
Charge: Handling stolen goods contrary to Section 322(1)(2) of the Penal Code, Cap 63 Laws of Kenya.
Particulars of the offence: On diverse dates between 9th of May, 2018 and 14th of May, 2018 at an unknown place within the Republic of Kenya, Polycarp Otieno Olela, the 3rd Appellant, otherwise that in the course of stealing, dishonestly received or retained Ksh.148,000/= in his M-pesa account No. 0724****44, the property of Barclays Bank of Kenya, knowing or having reason to believe it to be stolen goods.
Count IV:
Charge: Stealing by servant contrary to Section 281 of the Penal Code, Cap 63 Laws of Kenya.
Particulars of the offence: On diverse dates between 9th of May, 2018 and 24th of June, 2018 at an unknown place within the Republic of Kenya, Kennedy Otieno Ochieng’ the 4th Appellant stole Ksh.290,000/- the property of Barclays Bank of Kenya by fraudulently receiving the amount in his M-pesa account 0708****32 from M-pesa numbers 0748****64 and 0748****59.
Alternative count to Count IV:
Charge: Handling stolen goods contrary to Section 322(1)(2) of the Penal Code, Cap 63 Laws of Kenya.
Particulars of the offence: On diverse dates between 9th of May, 2018 and 24th June, 2018 at an unknown place within the Republic of Kenya, Kennedy Otieno Ochieng’, the 4th Appellant, otherwise that in the course of stealing, dishonestly received or retained Ksh.290,000/= in his M-pesa account No. 0708****32, the property of Barclays Bank of Kenya, knowing or having reason to believe it to be stolen.
4. All the four Appellants pleaded not guilty to all the respective counts/charges and a full trial was conducted.
5. The prosecution case was founded on the evidence of 13 witnesses while all the four Appellants defence evidence comprised their respective sworn testimonies.
6. At the close of the trial, the trial court reached the finding that the prosecution had proved all the respective offences that the four Appellants were charged with and they were all convicted on the same. The learned trial Magistrate then went on to sentence the four Appellants.
7. The grounds of appeal presented by the Appellants vide their respective Petitions of Appeal upon which they seek to upset their convictions and sentences, may be collated and summarized as follows:
a. The Appellants’ right to a fair trial under Article 50(2) was violated.
b. The learned trial Magistrate erred in law and in fact by convicting the Appellants without properly analyzing the evidence of the prosecution witnesses.
c. The learned trial Magistrate erred in law and in fact by failing to consider the exculpatory evidence that was tendered in favour of the Appellants by some of the prosecution witnesses.
d. The learned trial Magistrate erred in law and in fact by reaching the finding that the prosecution had proved the charges on which the Appellants were convicted beyond reasonable doubt.
e. The learned trial Magistrate erred in law and in fact by failing to properly consider the respective defences mounted by the Appellants.
f. The learned trial Magistrate erred in law by failing to appreciate that the critical elements of the offences that the Appellants were charged with were not proved to the required standard.
g. The learned trial Magistrate erred in law by failing to appreciate that there were material contradictions and inconsistencies in the prosecution witnesses’ evidence that vitiated the respective cases against the Appellants.
h. The respective sentences that were imposed by the learned trial Magistrate were manifestly excessive.
8. The Appellants propose that their respective appeals be allowed, the convictions be quashed and the sentences of imprisonment imposed by the trial court be set aside.
9. This court directed that the appeal be canvassed by way of written submissions. Both the Appellants and the Respondent filed their respective submissions.
10. This being a first appeal, this court has a legal duty to re-analyze, re-evaluate and re-assess the evidence adduced in the lower court so as to come up with its own conclusions while bearing in mind that it did not have the benefit of seeing or hearing the witnesses when they testified (see Okeno v Republic [1972] E.A.
11. In Pandya v Republic [1957] EA 336, the court, while addressing the duty of the first appellate court in a criminal appeal, stated as follows:
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury, the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”
12. In Kiilu & Another v Republic [2005]1 KLR 174, the Court of Appeal, while addressing itself to the same duty, held that:
“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
13. Similarly, in Victor Owich Mbogo v Republic, [2020] eKLR, the Court of Appeal observed as follows:
“It is the duty of the first appellate court to reevaluate the evidence afresh and reach its own conclusion bearing in mind that unlike the trial court, the appellate court did not have the benefit of hearing or seeing the witnesses testify.”
14. Now to the evidence before the trial court, the first prosecution witness was Godwin Nyakenyanya (PW1), an employee of Barclays Bank of Kenya (hereinafter “Barclays” or “the bank”). The witness explained to the trial court the process that his employer’s customers followed in applying for and securing loans from the bank.
15. In his testimony, PW1 told the court that the bank had a list dated and stamped on 20th July, 2016, that was provided by Maseno University (hereinafter “Maseno” or “the university”), signed by a Registrar at the university, one Matthew Onyango, of names and designations of individuals that were authorized to verify documentation of Maseno employees who wished to apply for loans. The listed persons were the 1st Appellant herein (Senior Assistant Registrar), Ezra O. Bwana (Accountant), John King’oina (Senior Assistant Registrar) and Boniface Joseph Alego (Accountant).
16. Pw1 explained that the loan forms for Maseno employees were required to be signed by any of the two persons in the list and that the bank would then contact either of the signatories by making what he referred to as call back phone calls to confirm whether a particular loan applicant was a Maseno employee who qualified for the same and whether the university was aware of the application before proceeding to process the loan.
17. In his further testimony, the witness told the trial court that he received the following loan application forms from persons who purported to be employees of the university:
- A loan application form for Oguda Fred Onyango purportedly signed by Grace Ndung’u and Samson Moracha for the university.
- A loan application form for Ayoma William Odhiambo purportedly signed by Grace Ndung’u and Samson Moracha for the university.
18. The witness stated that he confirmed that all the documents were in order and made call backs to the 1st Appellant using her cell phone number 0722****45, who confirmed that the applicants were Maseno employees and that they qualified for the loans that they had applied for. He handed over the documents to the next level for further processing.
19. On being cross examined, PW1 told the trial court that Samson Moracha did not appear in the list of the persons who were authorized by the university to approve employees’ loan forms. He stated that he did not make any call back to Moracha. He did not explain why he went further to approve the loans with Moracha’s signature, yet the said person’s name did not appear in the list provided by the university.
20. PW1 stated upon further cross examination that he could not tell if the cell phone number 0722****45 belonged to the 1st Appellant. Asked whether it is Moracha who gave him that number, the witness stated as follows:
“I have no comment on the allegations that it is Moracha who gave me this number.”
21. The witness was referred to the loan application form that was completed by Annah Adoyo Arucho and stated that as per the document, the loan applicant was self-employed.
22. On being further cross examined, the witness told the trial court that the mobile number 0722****45 did not appear anywhere in the list of approvers that the bank received from the university. He stated that the 2nd, 3rd and 4th Appellants were employees of the bank at the time material to the impugned transactions.
23. The second prosecution witness was Ronald Maranga Mokaya, an employee of Barclays, who testified and told the trial court that in the months of May and June, 2018, he received five loan application from the following loan applicants:
- Elijah Ochieng’ Onyango.
- John Okoth Owuor.
- Fred Onyango Oguda.
- Annah Adoyo Arucho.
- William Odhiambo Ayoma.
24. The witness stated that all the above persons were customers of the bank and had accounts with the bank and claimed to be employees of Maseno University. PW2 confirmed that he is the one who opened the five accounts.
25. The witness explained in detail the account opening process. He produced their respective account opening documents for the five accounts which included duly completed forms, passport size photographs, copies of identity cards, KRA PIN certificates and reports generated from the government portal to confirm the veracity of the identity cards.
26. Upon being cross examined, PW2 told the trial court that he did not meet any of the five persons as the persons who had contact with them were the bank’s sales persons, who are the bank officials who received the account opening documents from the applicants. Those officials were the 2nd, 3rd and 4th Appellants.
27. The witness explained that the bank’s employees’ duties on the application were as follows:
- PW2 would vet the application.
- PW1, who was PW2’s immediate boss would approve the loan applications and would make a “call back” to the university to confirm that the applicants were employees of Maseno.
- PW2 would then submit the applications to the bank’s head office.
- The bank’s head office team would then take up the rest of the process.
28. PW2 told the trial court that in his assessment, all the 5 applications met the required standards as per the bank’s standard procedures and that as a result, the bank dispatched loans totaling Ksh.8,143,000/- to the five accounts.
29. The witness stated that he was not aware of any criminal offences that the four Appellants committed regarding the five loan applications.
30. The prosecution called Nicholas Ouma Ombogo as Pw3. The witness told the trial court that he was an employee of the bank. He stated that the 2nd, 3rd and 4th Appellants were his erstwhile colleagues at the bank, with the designation of sales representatives. The witness produces the letters of employment on contractual basis of the three.
31. The witness, upon cross examination told the trial court that PW1 was the bank officer charged with the duties of making call backs to Maseno to confirm the veracity of loan application forms made by employees of the university. He stated that it was not the duty of the 2nd, 3rd and 4th Appellants to verify the loan forms and documents and that their duties ended when they presented the forms to the compliance officer (PW1) for verification.
32. The witness was asked whether there was any fault on the part of the three former employees in handling the impugned loan forms and answered in the negative, stating that sales representatives did not have access to the bank’s systems and could not influence any decision at the verification and compliance stage.
33. PW4 was Maurice Odaga Amwayi, an employee of Maseno University. The witness recalled and narrated the events of 11th September, 2018 and told the trial court that the 1st Appellant informed him on that day that anti-banking fraud sleuths were investigating a case and asked him to proceed to the offices of the investigators to record his statement, which he did. His sample signature was taken by the investigators. He was shown a payslip that had his employment number but whose other details he said were not his. He was informed that the payslip that bore his employment number was in the name of John Okoth Owuor and that the same had been fraudulently used to obtain a loan. The witness was emphatic that he never applied for any loan and that he did not hold any account with Barclays.
34. Irene Akinyi Acholla testified as the prosecution’s fifth witness (PW5) and told the trial court that she was an employee of the university and learnt from the 1st Appellant on 11th September, 2018 that her staff number had been used to access a loan. The 1st Appellant directed her to the investigators’ offices where she was shown a payslip that had someone else’s name with her staff number. She recorded her statement.
35. The witness stated on being cross examined that the name on the payslip was Elijah Ochieng’ Onyango, who was not known to her. She stated that she did not apply for any loan from the bank. She identified her true payslip before the trial court.
36. The 6th prosecution witness was Julia Andeyo Okoola, who also told the trial court that she was an employee of Maseno and learnt from the 1st Appellant on 11th September, 2018 that her staff number had been fraudulently used to access a loan from the bank. She recorded her statement on 13th September, 2018.
37. The witness was shown a payslip with the name Anne Adoyo Arocho, which had her staff number but stated that the person whose name appeared in the slip was not known to her. The witness identified her genuine payslip before the trial court. She denied ever applying for any loan from Barclays.
38. Samson Moracha Nyaboga Ombongi testified as the seventh prosecution witness (PW7) and told the trial court that at the time material to the case, he worked as a Senior Administration Assistant at Maseno. The witness stated that he signed the loan forms for William Odhiambo, Annah Adoyo and Fred Oguda “as a second signatory”
39. The witness stated that he relied on the Human Resource office to confirm from the employment records and payroll the details that were in the loan forms. Hence, he relied on the documents that were already signed and stamped by the Human Resource office. He stated that the 1st Appellant was at the time the in charge Human Resource.
40. It was the further evidence of the witness that he later earnt from the investigators of fraudulent activities that had been carried out using the loan application forms that he had signed. He recorded his statement.
41. On being cross examined, PW7 stated that he did not know if the bank would make call backs to confirm the loan documentation presented by the university’s employees.
42. Abongo David Onyango testified before the trial court as PW8 and told the court that he worked at Maseno as an Accounts Clerk. He stated that on 13th September, 2018, he was interrogated by investigators on his duties and recorded his statement. The witness stated that he would receive loan application forms and verify the same in the payroll system. He stated that the Human Resource Director at the university was one Dr. Midida and that the 1st Appellant was his deputy. He stated that he did not receive any of the four questioned loan application forms.
43. The 9th prosecution witness was Michael Ngobo, (PW9) a forensic investigator working with the bank. The witness told the trial court that the bank noticed that five loans had been processed on the strength of fraudulent documents provided by persons who alleged to be employees of Maseno University. That upon investigations, the witness noted that the forms had been signed by the 1st Appellant and Samson Moracha (PW7), who purported to verify, on behalf of Maseno, that the applicants were employees of the university. The documents bore the university’s stamp.
44. PW9 stated that on examination of the stamp, some matched the sample impressions that were submitted by the university while others did not.
45. The witness told the trial court that one of the M-pesa numbers that benefitted from the funds from the account of Elijah Ochieng’ Onyango was 0748****65.
46. Ezra Owiti Bwana, a former employee of Maseno in the designation of Accountant, testified before the trial court as PW10. The witness told the trial court that he had at the time of his testimony since retired.
47. With regard to this matter, Pw10 told the trial court that he was interrogated by the investigators in this matter and was shown a payslip in the name of Owuor John Okoth, which he had purportedly signed, alongside the 1st Appellant. He told the investigators that the signature was not his and the figures in the payslip had anomalies. He concluded that the payslip was not genuine. As for the other signature, the witness stated that he could not tell if it was the 1st Appellant’s.
48. Chief Inspector of Police Vincent Chelongo, a forensic document examiner, testified before the trial court as PW11. The officer told the court that he received several documents and stamp impressions from the investigating officer and was required to examine the same and compare handwritings and signatures on the said documents, which he did and prepared two reports, which he produced as exhibits.
49. In respect of the stamp impressions, the witness stated in his report that those appearing in the loan applications purported to be from the university’s Finance Directorate were not genuine. The ones appearing in the forms purportedly from the Human Resource Directorate were however genuine.
50. On being cross examined, the witness stated that he did not receive any specimen signatures or handwritings from or belonging to the 1st, 2nd and 3rd Appellants and did therefore not ascertain if any of the signatures in the loan documents belonged to any of the three Appellants.
51. With regard to the 4th Appellant, the witness stated that his specimen handwriting was submitted and when the same was compared with the one on the loan application form purportedly completed by Annah Arucho, the two were found to have been made by the same hand.
52. Corporal Rehema Kombo, the investigating officer in the matter testified as PW12. In her testimony, the witness told the trial court that a bank fraud complaint was made by Barclays vide a letter dated 2nd August, 2018 and she was tasked to investigate the same.
53. The witness told the court that the information that she received from the bank was that it had lost Ksh.8,143,000/- through loans that were fraudulently applied for and obtained as follows (as per the loan applications documentation):
- One Oguda Fred Onyango applied for and obtained a loan of Ksh.2,000,000/-, whereby the loans sales person was the 2nd Appellant, who was an employee of the bank.
- One Ayoma William Odhiambo applied for and obtained a loan of Ksh.2,000,000/-, whereby the loans sales person was the 2nd Appellant, who was an employee of the bank.
- One Onyango Elijah Ochieng’ applied for and obtained a loan of Ksh.1,527,000/-, whereby the loans sales person was the 3rd Appellant, who was an employee of the bank.
- One Awuor John Okoth applied for and obtained a loan of Ksh.1,539,000/-, whereby the loans sales person was the 4th Appellant, who was an employee of the bank.
- One Arucho Ann Adoyo applied for and obtained a loan of Ksh.1,077,000/-, whereby the loans sales person was the 4th Appellant, who was an employee of the bank.
54. The witness told the trial court that the 1st Appellant, Samson Moracha (PW7) and Ezra Bwana (PW10) signed the loan forms on behalf of Maseno University. However, upon conducting investigations, the witness discovered that the beneficiaries of the loans, who were purported to be employees of Maseno did not exist.
55. The witness, in the course of her investigations, recorded the statements of the witnesses and collected specimen signatures from the 1st Appellant, Samson Moracha (PW7), Ezra Bwana (PW10) and David Onyango (PW8). The witness also collected stamp impressions of five official rubber stamps from the university’s Human Resource and Finance Directorates, together with copies of payslips. She then forwarded the collected items/exhibits to a forensic document examiner for analysis and later received two reports, dated 4th October, 2018 and 28th March, 2019, both prepared by Vincent Chelongo (PW11).
56. In her further testimony, the investigating officer told the trial court that she found out in the course of her investigations that the 2nd Appellant’s and the 4th Appellant’s M-pesa numbers, 0724****44 and 0708****32 respectively, on diverse dates received some money from 0748****59, which had been used to withdraw money from Awuor John Okoth’s account after the loan proceeds had been deposited in the account. The 2nd Appellant’s number received Ksh.148,000/- while the 4th Appellant’s number received Ksh.290,000/- from the said M-pesa number. That on 12th May, 2018, the M-pesa number the 4th Appellant received some cash from one Silas Oyugi and transferred Ksh.10,000/- to the 3rd Appellant’s number.
57. The witness told the trial court that upon the arrest of the 3rd Appellant, a diary was found in his possession that contained account number 203*****86 and mobile number 0748****22, which was the same number that was in the loan form for Ayoma William Odhiambo.
58. The witness told the trial court that she went ahead and enquired from the National Registration Bureau who the details of the identity card numbers that had been used to open the five bank accounts that received the loan monies. She established that Oguda Fred Onyango, Onyango Elijah Ochieng’ and Ayoma William Odhiambo were all deceased, having met their demise on 20th March, 2018, 5th August, 2015 and 2nd May, 2018 respectively. The loan applications were made after the three had died.
59. With regard to Arucho Ann Adoyo, the witness established that the said person did not apply for any loan from Barclays and was not an employee of the university.
60. She told the court that Awuor John Okoth was a non-existent person.
61. In her further testimony, the investigating officer stated that in the course of her investigations, she established that call backs would be made by the bank to the 1st Appellant through either her cell phone number 0722****45 or through her office number 057357620/22 to verify that the loan applicants were employees of the university and had in fact made the applications.
62. Upon being cross examined, PW12 told the trial court that the writings in the diary that was recovered from the 3rd Appellant were not subjected to forensic examination and analysis to prove that they were made by the 3rd Appellant. She further stated that she did not ascertain who the owner of that diary was.
63. The witness further stated that Godwin Nyakenyanya (PW1) informed her that he had made call backs to the 1st Appellant to verify the loan applications before approving the loans but admitted that she had no evidence that the said calls were made to the 1st Appellant.
64. The last prosecution witness was Sergeant James Makobe (PW13), a police officer seconded to Safaricom PLC as a liaison officer. The officer testified and produced M-pesa statements for the following numbers:
- 0748****64 registered under the name of Silas Oyugi Ouko.
- 0722****45 registered under the name of Grace Mumbi.
- 0708****32 registered under the name of Silas Oyugi.
- 0724****44 registered under the name of Polycarp Olela.
65. The prosecution closed its case at that stage and in the trial court’s considered ruling rendered on 14th May, 2024, all the four Appellants were placed on their defence on all the respective charges.
66. In his sworn defence, the 3rd Appellant (DW1) told the trial court that he was at the time material to the case, circa 2018, an employee of Barclays in the designation of a sales agent. That he went to Maseno university to sell the banks products, namely insurance and loan accounts, and met persons who introduced themselves as William Ayoma and Fredrick Otieno Odhiambo, who told him that they were employees at the university. He then conversed with the two and they agreed to take loans from the bank. An appointment was fixed for another day to enable the two to prepare the required documentation.
67. The 3rd Appellant (DW3) stated that in their follow-up meeting, the two presented to him the required documents, which he then submitted to the bank to verify. He stated that his duty ended at that point adding that it was not his mandate to confirm the veracity of the documents.
68. As regards the Ksh.10,000/- that his M-pesa number received from the 4th Appellant’s M-pesa number, the 3rd Appellant told the trial court that he borrowed the money from the 4th Appellant, who was his workmate.
69. Upon cross examination, the 3rd Appellant admitted that the 1st Appellant was known to him and worked as Human Resource manager at the university but he denied having transacted with her regarding the loan applications by William Ayoma and Fredrick Otieno Odhiambo. He stated that as per the information that he received from the two loan applicants they were both employees of the university.
70. On his part, the 2nd Appellant (DW2) stated in his sworn testimony in defence that he was a sales agent working with Barclays and that he met Elijah Ochieng’ Onyango at Maseno University, Siriba Campus, in the course of his work, who donned the university badge and introduced himself as an employee of the university and who agreed to take a loan from the bank after the 2nd Appellant informed him of the bank’s products.
71. The 2nd Appellant testified further that on his second appointment with Elijah Ochieng’ Onyango outside the university’s Siriba Campus, the customer filled in the forms and gave the 2nd Appellant the required accompanying documents, which he submitted to the bank for further processing. The 3rd Appellant stated that he did not have any interactions with the 1st and 4th Appellants regarding the loan application by Elijah Ochieng’ Onyango.
72. I
[...truncated]
1. This appeal emanates from the judgement, conviction and sentence of Hon. Douglas Ogoti, Chief Magistrate delivered and imposed on 23rd July, 2024 in Kisumu MCCR No. 872 of 2018 Republic v Benard Ochieng’ Ouma & 3 others.
2. The Appellants herein, Grace Mumbi Ndung’u, Polycarp Otieno Olela, Benard Ochieng’ Ouma and Kennedy Otieno Ochieng’ were the 3rd, 2nd, 1st and 4th accused persons respectively, before the trial court.
3. The four Appellants were charged in the trial court as follows:
Count I:
Charge: Conspiracy to defraud contrary to Section 317 of the Penal Code, Cap 63 Laws of Kenya.
Particulars of the offence: On diverse dates between 26th day of April, 2018 and 25th day of June, 2018 at an unknown place within the Republic of Kenya, the four Appellants, jointly with others not before the trial court, with intent to defraud, conspired to defraud Barclays Bank of Kenya Limited Ksh.8,143,000/=, the property of Barclays Bank of Kenya Limited.
Count II:
Charge: Stealing by servant contrary to Section 281 of the Penal Code, Cap 63 Laws of Kenya.
Particulars of the offence: On 12th of May, 2018 at an unknown place within the Republic of Kenya, Bernard Ochieng’ Ouma, the 2nd Appellant, stole Ksh.10,000/= by fraudulently receiving the amount to his M-pesa account No. 0706****27 from M-pesa account No. 0708****32.
Alternative count to Count II:
Charge: Handling stolen goods contrary to Section 322(1) of the Penal Code, Cap 63 Laws of Kenya.
Particulars of the offence: On 12th of May, 2018 at an unknown place within the Republic of Kenya, Bernard Ochieng’ Ouma, the 2nd Appellant, otherwise than in the course of stealing, dishonestly received or retained Ksh.10,000/= in the M-pesa account No. 0706****27, the property of Barclays Bank of Kenya, knowing or having reason to believe it to be stolen.
Count III:
Charge: Stealing by servant contrary to Section 281 of the Penal Code, Cap 63 Laws of Kenya.
Particulars of the offence: On diverse dates between 9th of May, 2018 (sic) at an unknown place within the Republic of Kenya, Polycarp Otieno Olela the 3rd Appellant stole Ksh.148,000/- the property of Barclays Bank of Kenya by fraudulently receiving the amount into his M-pesa account 0724****44 from M-pesa numbers 0748****64 and 0748****59.
Alternative count to Count III:
Charge: Handling stolen goods contrary to Section 322(1)(2) of the Penal Code, Cap 63 Laws of Kenya.
Particulars of the offence: On diverse dates between 9th of May, 2018 and 14th of May, 2018 at an unknown place within the Republic of Kenya, Polycarp Otieno Olela, the 3rd Appellant, otherwise that in the course of stealing, dishonestly received or retained Ksh.148,000/= in his M-pesa account No. 0724****44, the property of Barclays Bank of Kenya, knowing or having reason to believe it to be stolen goods.
Count IV:
Charge: Stealing by servant contrary to Section 281 of the Penal Code, Cap 63 Laws of Kenya.
Particulars of the offence: On diverse dates between 9th of May, 2018 and 24th of June, 2018 at an unknown place within the Republic of Kenya, Kennedy Otieno Ochieng’ the 4th Appellant stole Ksh.290,000/- the property of Barclays Bank of Kenya by fraudulently receiving the amount in his M-pesa account 0708****32 from M-pesa numbers 0748****64 and 0748****59.
Alternative count to Count IV:
Charge: Handling stolen goods contrary to Section 322(1)(2) of the Penal Code, Cap 63 Laws of Kenya.
Particulars of the offence: On diverse dates between 9th of May, 2018 and 24th June, 2018 at an unknown place within the Republic of Kenya, Kennedy Otieno Ochieng’, the 4th Appellant, otherwise that in the course of stealing, dishonestly received or retained Ksh.290,000/= in his M-pesa account No. 0708****32, the property of Barclays Bank of Kenya, knowing or having reason to believe it to be stolen.
4. All the four Appellants pleaded not guilty to all the respective counts/charges and a full trial was conducted.
5. The prosecution case was founded on the evidence of 13 witnesses while all the four Appellants defence evidence comprised their respective sworn testimonies.
6. At the close of the trial, the trial court reached the finding that the prosecution had proved all the respective offences that the four Appellants were charged with and they were all convicted on the same. The learned trial Magistrate then went on to sentence the four Appellants.
7. The grounds of appeal presented by the Appellants vide their respective Petitions of Appeal upon which they seek to upset their convictions and sentences, may be collated and summarized as follows:
a. The Appellants’ right to a fair trial under Article 50(2) was violated.
b. The learned trial Magistrate erred in law and in fact by convicting the Appellants without properly analyzing the evidence of the prosecution witnesses.
c. The learned trial Magistrate erred in law and in fact by failing to consider the exculpatory evidence that was tendered in favour of the Appellants by some of the prosecution witnesses.
d. The learned trial Magistrate erred in law and in fact by reaching the finding that the prosecution had proved the charges on which the Appellants were convicted beyond reasonable doubt.
e. The learned trial Magistrate erred in law and in fact by failing to properly consider the respective defences mounted by the Appellants.
f. The learned trial Magistrate erred in law by failing to appreciate that the critical elements of the offences that the Appellants were charged with were not proved to the required standard.
g. The learned trial Magistrate erred in law by failing to appreciate that there were material contradictions and inconsistencies in the prosecution witnesses’ evidence that vitiated the respective cases against the Appellants.
h. The respective sentences that were imposed by the learned trial Magistrate were manifestly excessive.
8. The Appellants propose that their respective appeals be allowed, the convictions be quashed and the sentences of imprisonment imposed by the trial court be set aside.
9. This court directed that the appeal be canvassed by way of written submissions. Both the Appellants and the Respondent filed their respective submissions.
10. This being a first appeal, this court has a legal duty to re-analyze, re-evaluate and re-assess the evidence adduced in the lower court so as to come up with its own conclusions while bearing in mind that it did not have the benefit of seeing or hearing the witnesses when they testified (see Okeno v Republic [1972] E.A.
11. In Pandya v Republic [1957] EA 336, the court, while addressing the duty of the first appellate court in a criminal appeal, stated as follows:
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury, the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”
12. In Kiilu & Another v Republic [2005]1 KLR 174, the Court of Appeal, while addressing itself to the same duty, held that:
“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
13. Similarly, in Victor Owich Mbogo v Republic, [2020] eKLR, the Court of Appeal observed as follows:
“It is the duty of the first appellate court to reevaluate the evidence afresh and reach its own conclusion bearing in mind that unlike the trial court, the appellate court did not have the benefit of hearing or seeing the witnesses testify.”
14. Now to the evidence before the trial court, the first prosecution witness was Godwin Nyakenyanya (PW1), an employee of Barclays Bank of Kenya (hereinafter “Barclays” or “the bank”). The witness explained to the trial court the process that his employer’s customers followed in applying for and securing loans from the bank.
15. In his testimony, PW1 told the court that the bank had a list dated and stamped on 20th July, 2016, that was provided by Maseno University (hereinafter “Maseno” or “the university”), signed by a Registrar at the university, one Matthew Onyango, of names and designations of individuals that were authorized to verify documentation of Maseno employees who wished to apply for loans. The listed persons were the 1st Appellant herein (Senior Assistant Registrar), Ezra O. Bwana (Accountant), John King’oina (Senior Assistant Registrar) and Boniface Joseph Alego (Accountant).
16. Pw1 explained that the loan forms for Maseno employees were required to be signed by any of the two persons in the list and that the bank would then contact either of the signatories by making what he referred to as call back phone calls to confirm whether a particular loan applicant was a Maseno employee who qualified for the same and whether the university was aware of the application before proceeding to process the loan.
17. In his further testimony, the witness told the trial court that he received the following loan application forms from persons who purported to be employees of the university:
- A loan application form for Oguda Fred Onyango purportedly signed by Grace Ndung’u and Samson Moracha for the university.
- A loan application form for Ayoma William Odhiambo purportedly signed by Grace Ndung’u and Samson Moracha for the university.
18. The witness stated that he confirmed that all the documents were in order and made call backs to the 1st Appellant using her cell phone number 0722****45, who confirmed that the applicants were Maseno employees and that they qualified for the loans that they had applied for. He handed over the documents to the next level for further processing.
19. On being cross examined, PW1 told the trial court that Samson Moracha did not appear in the list of the persons who were authorized by the university to approve employees’ loan forms. He stated that he did not make any call back to Moracha. He did not explain why he went further to approve the loans with Moracha’s signature, yet the said person’s name did not appear in the list provided by the university.
20. PW1 stated upon further cross examination that he could not tell if the cell phone number 0722****45 belonged to the 1st Appellant. Asked whether it is Moracha who gave him that number, the witness stated as follows:
“I have no comment on the allegations that it is Moracha who gave me this number.”
21. The witness was referred to the loan application form that was completed by Annah Adoyo Arucho and stated that as per the document, the loan applicant was self-employed.
22. On being further cross examined, the witness told the trial court that the mobile number 0722****45 did not appear anywhere in the list of approvers that the bank received from the university. He stated that the 2nd, 3rd and 4th Appellants were employees of the bank at the time material to the impugned transactions.
23. The second prosecution witness was Ronald Maranga Mokaya, an employee of Barclays, who testified and told the trial court that in the months of May and June, 2018, he received five loan application from the following loan applicants:
- Elijah Ochieng’ Onyango.
- John Okoth Owuor.
- Fred Onyango Oguda.
- Annah Adoyo Arucho.
- William Odhiambo Ayoma.
24. The witness stated that all the above persons were customers of the bank and had accounts with the bank and claimed to be employees of Maseno University. PW2 confirmed that he is the one who opened the five accounts.
25. The witness explained in detail the account opening process. He produced their respective account opening documents for the five accounts which included duly completed forms, passport size photographs, copies of identity cards, KRA PIN certificates and reports generated from the government portal to confirm the veracity of the identity cards.
26. Upon being cross examined, PW2 told the trial court that he did not meet any of the five persons as the persons who had contact with them were the bank’s sales persons, who are the bank officials who received the account opening documents from the applicants. Those officials were the 2nd, 3rd and 4th Appellants.
27. The witness explained that the bank’s employees’ duties on the application were as follows:
- PW2 would vet the application.
- PW1, who was PW2’s immediate boss would approve the loan applications and would make a “call back” to the university to confirm that the applicants were employees of Maseno.
- PW2 would then submit the applications to the bank’s head office.
- The bank’s head office team would then take up the rest of the process.
28. PW2 told the trial court that in his assessment, all the 5 applications met the required standards as per the bank’s standard procedures and that as a result, the bank dispatched loans totaling Ksh.8,143,000/- to the five accounts.
29. The witness stated that he was not aware of any criminal offences that the four Appellants committed regarding the five loan applications.
30. The prosecution called Nicholas Ouma Ombogo as Pw3. The witness told the trial court that he was an employee of the bank. He stated that the 2nd, 3rd and 4th Appellants were his erstwhile colleagues at the bank, with the designation of sales representatives. The witness produces the letters of employment on contractual basis of the three.
31. The witness, upon cross examination told the trial court that PW1 was the bank officer charged with the duties of making call backs to Maseno to confirm the veracity of loan application forms made by employees of the university. He stated that it was not the duty of the 2nd, 3rd and 4th Appellants to verify the loan forms and documents and that their duties ended when they presented the forms to the compliance officer (PW1) for verification.
32. The witness was asked whether there was any fault on the part of the three former employees in handling the impugned loan forms and answered in the negative, stating that sales representatives did not have access to the bank’s systems and could not influence any decision at the verification and compliance stage.
33. PW4 was Maurice Odaga Amwayi, an employee of Maseno University. The witness recalled and narrated the events of 11th September, 2018 and told the trial court that the 1st Appellant informed him on that day that anti-banking fraud sleuths were investigating a case and asked him to proceed to the offices of the investigators to record his statement, which he did. His sample signature was taken by the investigators. He was shown a payslip that had his employment number but whose other details he said were not his. He was informed that the payslip that bore his employment number was in the name of John Okoth Owuor and that the same had been fraudulently used to obtain a loan. The witness was emphatic that he never applied for any loan and that he did not hold any account with Barclays.
34. Irene Akinyi Acholla testified as the prosecution’s fifth witness (PW5) and told the trial court that she was an employee of the university and learnt from the 1st Appellant on 11th September, 2018 that her staff number had been used to access a loan. The 1st Appellant directed her to the investigators’ offices where she was shown a payslip that had someone else’s name with her staff number. She recorded her statement.
35. The witness stated on being cross examined that the name on the payslip was Elijah Ochieng’ Onyango, who was not known to her. She stated that she did not apply for any loan from the bank. She identified her true payslip before the trial court.
36. The 6th prosecution witness was Julia Andeyo Okoola, who also told the trial court that she was an employee of Maseno and learnt from the 1st Appellant on 11th September, 2018 that her staff number had been fraudulently used to access a loan from the bank. She recorded her statement on 13th September, 2018.
37. The witness was shown a payslip with the name Anne Adoyo Arocho, which had her staff number but stated that the person whose name appeared in the slip was not known to her. The witness identified her genuine payslip before the trial court. She denied ever applying for any loan from Barclays.
38. Samson Moracha Nyaboga Ombongi testified as the seventh prosecution witness (PW7) and told the trial court that at the time material to the case, he worked as a Senior Administration Assistant at Maseno. The witness stated that he signed the loan forms for William Odhiambo, Annah Adoyo and Fred Oguda “as a second signatory”
39. The witness stated that he relied on the Human Resource office to confirm from the employment records and payroll the details that were in the loan forms. Hence, he relied on the documents that were already signed and stamped by the Human Resource office. He stated that the 1st Appellant was at the time the in charge Human Resource.
40. It was the further evidence of the witness that he later earnt from the investigators of fraudulent activities that had been carried out using the loan application forms that he had signed. He recorded his statement.
41. On being cross examined, PW7 stated that he did not know if the bank would make call backs to confirm the loan documentation presented by the university’s employees.
42. Abongo David Onyango testified before the trial court as PW8 and told the court that he worked at Maseno as an Accounts Clerk. He stated that on 13th September, 2018, he was interrogated by investigators on his duties and recorded his statement. The witness stated that he would receive loan application forms and verify the same in the payroll system. He stated that the Human Resource Director at the university was one Dr. Midida and that the 1st Appellant was his deputy. He stated that he did not receive any of the four questioned loan application forms.
43. The 9th prosecution witness was Michael Ngobo, (PW9) a forensic investigator working with the bank. The witness told the trial court that the bank noticed that five loans had been processed on the strength of fraudulent documents provided by persons who alleged to be employees of Maseno University. That upon investigations, the witness noted that the forms had been signed by the 1st Appellant and Samson Moracha (PW7), who purported to verify, on behalf of Maseno, that the applicants were employees of the university. The documents bore the university’s stamp.
44. PW9 stated that on examination of the stamp, some matched the sample impressions that were submitted by the university while others did not.
45. The witness told the trial court that one of the M-pesa numbers that benefitted from the funds from the account of Elijah Ochieng’ Onyango was 0748****65.
46. Ezra Owiti Bwana, a former employee of Maseno in the designation of Accountant, testified before the trial court as PW10. The witness told the trial court that he had at the time of his testimony since retired.
47. With regard to this matter, Pw10 told the trial court that he was interrogated by the investigators in this matter and was shown a payslip in the name of Owuor John Okoth, which he had purportedly signed, alongside the 1st Appellant. He told the investigators that the signature was not his and the figures in the payslip had anomalies. He concluded that the payslip was not genuine. As for the other signature, the witness stated that he could not tell if it was the 1st Appellant’s.
48. Chief Inspector of Police Vincent Chelongo, a forensic document examiner, testified before the trial court as PW11. The officer told the court that he received several documents and stamp impressions from the investigating officer and was required to examine the same and compare handwritings and signatures on the said documents, which he did and prepared two reports, which he produced as exhibits.
49. In respect of the stamp impressions, the witness stated in his report that those appearing in the loan applications purported to be from the university’s Finance Directorate were not genuine. The ones appearing in the forms purportedly from the Human Resource Directorate were however genuine.
50. On being cross examined, the witness stated that he did not receive any specimen signatures or handwritings from or belonging to the 1st, 2nd and 3rd Appellants and did therefore not ascertain if any of the signatures in the loan documents belonged to any of the three Appellants.
51. With regard to the 4th Appellant, the witness stated that his specimen handwriting was submitted and when the same was compared with the one on the loan application form purportedly completed by Annah Arucho, the two were found to have been made by the same hand.
52. Corporal Rehema Kombo, the investigating officer in the matter testified as PW12. In her testimony, the witness told the trial court that a bank fraud complaint was made by Barclays vide a letter dated 2nd August, 2018 and she was tasked to investigate the same.
53. The witness told the court that the information that she received from the bank was that it had lost Ksh.8,143,000/- through loans that were fraudulently applied for and obtained as follows (as per the loan applications documentation):
- One Oguda Fred Onyango applied for and obtained a loan of Ksh.2,000,000/-, whereby the loans sales person was the 2nd Appellant, who was an employee of the bank.
- One Ayoma William Odhiambo applied for and obtained a loan of Ksh.2,000,000/-, whereby the loans sales person was the 2nd Appellant, who was an employee of the bank.
- One Onyango Elijah Ochieng’ applied for and obtained a loan of Ksh.1,527,000/-, whereby the loans sales person was the 3rd Appellant, who was an employee of the bank.
- One Awuor John Okoth applied for and obtained a loan of Ksh.1,539,000/-, whereby the loans sales person was the 4th Appellant, who was an employee of the bank.
- One Arucho Ann Adoyo applied for and obtained a loan of Ksh.1,077,000/-, whereby the loans sales person was the 4th Appellant, who was an employee of the bank.
54. The witness told the trial court that the 1st Appellant, Samson Moracha (PW7) and Ezra Bwana (PW10) signed the loan forms on behalf of Maseno University. However, upon conducting investigations, the witness discovered that the beneficiaries of the loans, who were purported to be employees of Maseno did not exist.
55. The witness, in the course of her investigations, recorded the statements of the witnesses and collected specimen signatures from the 1st Appellant, Samson Moracha (PW7), Ezra Bwana (PW10) and David Onyango (PW8). The witness also collected stamp impressions of five official rubber stamps from the university’s Human Resource and Finance Directorates, together with copies of payslips. She then forwarded the collected items/exhibits to a forensic document examiner for analysis and later received two reports, dated 4th October, 2018 and 28th March, 2019, both prepared by Vincent Chelongo (PW11).
56. In her further testimony, the investigating officer told the trial court that she found out in the course of her investigations that the 2nd Appellant’s and the 4th Appellant’s M-pesa numbers, 0724****44 and 0708****32 respectively, on diverse dates received some money from 0748****59, which had been used to withdraw money from Awuor John Okoth’s account after the loan proceeds had been deposited in the account. The 2nd Appellant’s number received Ksh.148,000/- while the 4th Appellant’s number received Ksh.290,000/- from the said M-pesa number. That on 12th May, 2018, the M-pesa number the 4th Appellant received some cash from one Silas Oyugi and transferred Ksh.10,000/- to the 3rd Appellant’s number.
57. The witness told the trial court that upon the arrest of the 3rd Appellant, a diary was found in his possession that contained account number 203*****86 and mobile number 0748****22, which was the same number that was in the loan form for Ayoma William Odhiambo.
58. The witness told the trial court that she went ahead and enquired from the National Registration Bureau who the details of the identity card numbers that had been used to open the five bank accounts that received the loan monies. She established that Oguda Fred Onyango, Onyango Elijah Ochieng’ and Ayoma William Odhiambo were all deceased, having met their demise on 20th March, 2018, 5th August, 2015 and 2nd May, 2018 respectively. The loan applications were made after the three had died.
59. With regard to Arucho Ann Adoyo, the witness established that the said person did not apply for any loan from Barclays and was not an employee of the university.
60. She told the court that Awuor John Okoth was a non-existent person.
61. In her further testimony, the investigating officer stated that in the course of her investigations, she established that call backs would be made by the bank to the 1st Appellant through either her cell phone number 0722****45 or through her office number 057357620/22 to verify that the loan applicants were employees of the university and had in fact made the applications.
62. Upon being cross examined, PW12 told the trial court that the writings in the diary that was recovered from the 3rd Appellant were not subjected to forensic examination and analysis to prove that they were made by the 3rd Appellant. She further stated that she did not ascertain who the owner of that diary was.
63. The witness further stated that Godwin Nyakenyanya (PW1) informed her that he had made call backs to the 1st Appellant to verify the loan applications before approving the loans but admitted that she had no evidence that the said calls were made to the 1st Appellant.
64. The last prosecution witness was Sergeant James Makobe (PW13), a police officer seconded to Safaricom PLC as a liaison officer. The officer testified and produced M-pesa statements for the following numbers:
- 0748****64 registered under the name of Silas Oyugi Ouko.
- 0722****45 registered under the name of Grace Mumbi.
- 0708****32 registered under the name of Silas Oyugi.
- 0724****44 registered under the name of Polycarp Olela.
65. The prosecution closed its case at that stage and in the trial court’s considered ruling rendered on 14th May, 2024, all the four Appellants were placed on their defence on all the respective charges.
66. In his sworn defence, the 3rd Appellant (DW1) told the trial court that he was at the time material to the case, circa 2018, an employee of Barclays in the designation of a sales agent. That he went to Maseno university to sell the banks products, namely insurance and loan accounts, and met persons who introduced themselves as William Ayoma and Fredrick Otieno Odhiambo, who told him that they were employees at the university. He then conversed with the two and they agreed to take loans from the bank. An appointment was fixed for another day to enable the two to prepare the required documentation.
67. The 3rd Appellant (DW3) stated that in their follow-up meeting, the two presented to him the required documents, which he then submitted to the bank to verify. He stated that his duty ended at that point adding that it was not his mandate to confirm the veracity of the documents.
68. As regards the Ksh.10,000/- that his M-pesa number received from the 4th Appellant’s M-pesa number, the 3rd Appellant told the trial court that he borrowed the money from the 4th Appellant, who was his workmate.
69. Upon cross examination, the 3rd Appellant admitted that the 1st Appellant was known to him and worked as Human Resource manager at the university but he denied having transacted with her regarding the loan applications by William Ayoma and Fredrick Otieno Odhiambo. He stated that as per the information that he received from the two loan applicants they were both employees of the university.
70. On his part, the 2nd Appellant (DW2) stated in his sworn testimony in defence that he was a sales agent working with Barclays and that he met Elijah Ochieng’ Onyango at Maseno University, Siriba Campus, in the course of his work, who donned the university badge and introduced himself as an employee of the university and who agreed to take a loan from the bank after the 2nd Appellant informed him of the bank’s products.
71. The 2nd Appellant testified further that on his second appointment with Elijah Ochieng’ Onyango outside the university’s Siriba Campus, the customer filled in the forms and gave the 2nd Appellant the required accompanying documents, which he submitted to the bank for further processing. The 3rd Appellant stated that he did not have any interactions with the 1st and 4th Appellants regarding the loan application by Elijah Ochieng’ Onyango.
72. I
[...truncated]