A. THE CHARGES.
1. Henry Odero Migoya (hereinafter referred to as “the Appellant”) was arraigned before the trial court and faced a total of eight (8) counts. The charges concerned a wide range of alleged criminal conduct arising from his management of Christian Dream School, located at Rakwaro Village, Nyangoma Location, Muhoroni Sub-County within Kisumu County, and related to funds received from an American non-profit organization known as Helping Hands International (hereinafter “HHI”).
2. The eight (8) counts, as set out in the amended charge sheet, were as follows:
- Count I: Fraudulent disposal of trust property contrary to Section 327(2)(a) as read with Section 327(1) of the Penal Code, Cap 63 Laws of Kenya.
- Particulars of the offence: Between 1st January, 2016 and 1st August, 2021, the Appellant, being a trustee of property on behalf of Helping Hands International (HHI), dishonestly converted such property, valued at approximately Ksh.600,000/-, to his own use, which was not authorized by the Trust, with intent to defraud.
- Counts II: Demanding property with menaces contrary to Section 302 of the Penal Code, Cap 63 Laws of Kenya.
- Particulars: On diverse dates between 1st January, 2019 and 31st December, 2021 at Rakwaro village, Nyangoma Location in Muhoroni Subcounty, the Appellant, with menaces/force, demanded Ksh.45,000/- from Beatrice Akinyi Agando, with intent to steal.
- Counts III: Demanding property with menaces contrary to Section 302 of the Penal Code, Cap 63 Laws of Kenya.
- Particulars: On diverse dates between 1st January, 2019 and 31st December, 2021 at Rakwaro village, Nyangoma Location in Muhoroni Subcounty, the Appellant, with menaces/force, demanded Ksh.72,000/- from Angeline Atieno Okungu, with intent to steal.
- Counts IV: Demanding property with menaces contrary to Section 302 of the Penal Code, Cap 63 Laws of Kenya.
- Particulars: On diverse dates between 1st February, 2021 and 30th June, 2021 at Rakwaro village, Nyangoma Location in Muhoroni Subcounty, the Appellant, with menaces/force, demanded Ksh.31,200/- from Millicent Adhiambo Magero, with intent to steal.
- Counts V: Demanding property with menaces contrary to Section 302 of the Penal Code, Cap 63 Laws of Kenya.
- Particulars: On diverse dates between 1st January, 2021 and 31st December, 2021 at Rakwaro village, Nyangoma Location in Muhoroni Subcounty, the Appellant, with menaces/force, demanded Ksh.20,400/- from Akinyi Daisy Brenda, with intent to steal.
- Counts VI: Demanding property with menaces contrary to Section 302 of the Penal Code, Cap 63 Laws of Kenya.
- Particulars: On diverse dates between 1st January, 2021 and 31st December, 2021 at Rakwaro village, Nyangoma Location in Muhoroni Subcounty, the Appellant, with menaces/force, demanded Ksh.27,200/- from Mercy Achieng Jakoyo, with intent to steal.
- Counts VII: Demanding property with menaces contrary to Section 302 of the Penal Code, Cap 63 Laws of Kenya.
- Particulars: On diverse dates between 1st January, 2021 and 31st December, 2021 at Rakwaro village, Nyangoma Location in Muhoroni Subcounty, the Appellant, with menaces/force, demanded Ksh.37,400/- from Winnie Ochieng, with intent to steal.
- Count VIII: Obtaining money by false pretences contrary to Section 313 of the Penal Code, Cap 63 Laws of Kenya.
- Particulars: On 26th November, 2020, the Appellant, jointly with another not before court, with intent to defraud, obtained Ksh.50,000/- from Paul Stanley Amakobe of Helping Hands International by falsely pretending that the money was required to support burial expenses for the late Silas Odhiambo, a fact which the Appellant knew to be false.
3. The Appellant denied the charges, which then called for a full trial.
B. THE DUTY OF THIS COURT.
4. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570; and Peter v Sunday Post [1958] EA 424.)
5. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the conviction and sentence.
C. THE PROSECUTION CASE.
6. The prosecution’s case was based on the testimony of 16 witnesses.
7. The first prosecution witness was Stanley Paul Amakobe, (PW1) who told the trial court that he was a businessman who also worked with a Non Governmental Organization known as Helping Hands International (HHI) and resided in Nairobi. He recalled that in the year 2019, he accompanied a team of approximately nine foreigners from the United States of America to Rakwaro village near Awasi for purposes of conducting a dental medical camp for the local community. He stated that the team leader was one Chrissie Christian from the NGO and that the host during the visit was the Appellant, Henry Migoya.
8. The witness testified that after the foreigners returned to the United States, communication ensued between them and his employer, following which he was incorporated into the management and disbursement of funds intended to support Christian Dream School. He stated that the funds were meant for payment of salaries to teachers, guards, cooks and the Appellant, as well as for tuition and food for sponsored children. According to him, the Appellant was the contact person through whom the transactions were conducted.
9. PW1 further testified that he would receive instructions regarding disbursement of funds and would thereafter send the money through the M-Pesa platform to the persons designated by the Appellant. He stated that the Appellant received salary payments and tuition funds, while food and salary payments for certain staff members were sent to one Evalyn Atieno Ongoro. He produced M-Pesa statements covering the period between 1st January, 2019 and 31st December, 2021 to demonstrate the various remittances made.
10. The witness gave evidence that in the year 2020, Christian again visited the school and disputes arose concerning alleged corruption within the institution. He stated that the Appellant was questioned in his presence and that of his employer regarding financial impropriety but allegedly failed to cooperate. PW1 testified that complaints had been raised by teachers alleging that after they received salaries, they were compelled to refund part of the money to the Appellant as kickbacks. He further stated that some teachers were allegedly dismissed for failing to remit such kickbacks.
11. PW1 testified that complaints were also raised concerning non-payment of tuition fees for sponsored children despite funds having been remitted for that purpose. He further stated that donations and assets had been purchased for the benefit of the school, including a playground, shade net, laptops, water tanks and construction materials. According to him, he personally purchased some of the items in Nairobi and caused them to be delivered to the school.
12. It was the evidence of PW1 that with the assistance of the donor organization, the school later moved from the church compound to a separate location and that funds were sent to the Appellant for construction of the new school premises. He further testified that they later discovered that the Appellant had registered the school under his own name as sole proprietor, contrary to the intentions of the donors who allegedly intended the school to operate as a community institution. He produced a certificate of registration for the institution and a business registration certificate in support thereof.
13. The witness also testified regarding the death of a sponsored child known as Silas Odhiambo. He stated that donor funds had been sent for food and later for funeral expenses after the child allegedly died due to malnutrition. According to PW1, the Appellant supplied a telephone number purportedly belonging to the deceased child’s mother to which funeral funds amounting to Ksh.80,000/- were allegedly sent, but they later learned that the money did not reach the intended family.
14. PW1 further produced documentary exhibits comprising proforma invoices from Polyplay Limited relating to purchase of a playground, quotations, invoices and delivery notes from Vectus Kenya Limited concerning water tanks, and a master list of sponsored children which included the deceased child, Silas Odhiambo.
15. Upon cross-examination by the Appellant, PW1 conceded that he did not know when Christian Dream School was established and who owned it in 2019, or the categories and management structures of schools in Kenya. He admitted that he was not an expert on schools and that his role was limited to facilitating disbursement of donor funds.
16. PW1 further admitted that the complaints regarding kickbacks were not made directly to him by the teachers but were allegedly communicated to Christian who in turn informed his employer. He acknowledged that the court was to determine the legality of the alleged transactions and conceded that certain matters, including the role of the Appellant and details regarding sponsored children, would best be answered by Christian and other witnesses.
17. The witness maintained, however, that he sent money for food, salaries, tuition, funeral expenses and construction through M-Pesa as instructed, and that the Appellant supplied the contact details of the recipients. He further reiterated that the Appellant was the administrator of the school together with Christian and stated that he was testifying on behalf of Christian regarding the financial transactions undertaken for the benefit of the school and sponsored children.
18. PW1 further stated that he had known HHI since around 2019 and came to know the Appellant through that organisation. He stated that his role involved sending money to the Appellant for employees and that he understood the Appellant to be an employee of HHI.
19. He further stated that he had records showing payments made to the Appellant as salary, and gave specific dates and amounts allegedly paid, including Ksh.17,500/- on several occasions between 2020 and 2021, and other smaller transfers. He maintained that the payments he made to the Appellant were salaries for work done under HHI and that he acted on instructions and lists provided by that organisation. He stated that he did not know whether HHI was registered in Kenya and that it was not his responsibility to verify the registration status of Christian Dream School or related entities.
20. The witness further testified that he began engaging the Appellant in 2019 and denied sending him money before that time. He stated that he did not handle matters relating to Community Care Development beyond what was linked to accountability checks involving the Appellant, and claimed that the Appellant was an account holder associated with that organisation, although he admitted he had no documentary proof personally in court to confirm ownership.
21. PW1 stated that he had a power of attorney authorising him to speak on behalf of Chrissie Christian but clarified that he did not have authority to speak for other individuals such as one Archbold, although he referred to Archbold as having sent money in his statement. He also alleged that funds of about US$20,000 were involved in church or project support, but acknowledged this could not construct a school.
22. The witness further testified that he had previously done business with the Appellant, including the sale of a motor and stated that this transaction was independent of HHI’s engagements.
23. He stated that he sometimes sent money to the Appellant for school fees and sponsorship purposes as directed by HHI and that he relied on records maintained by the organisation. He maintained that the names and transactions were reflected in M-Pesa statements produced in court.
24. PW1 denied recalling whether he personally received money from the Appellant and insisted he had no other business dealings with him beyond the alleged vehicle sale and organisational transactions. He stated that he always confirmed recipient numbers before sending money and that the numbers used were provided through Christian via one Dr. Mike.
25. He further stated that he had receipts and documentation relating to goods and sponsorships, including quotations and delivery notes and claimed that items purchased were delivered to the Appellant. He insisted that he had not lied to the court and maintained that all payments he made were for salaries, child sponsorship and school-related support as instructed by HHI.
26. The prosecution called Beatrice Akinyi Ogando, who testified before the trial court as PW2. In her testimony before the trial court, the witness stated that she was a director with HHI. She testified that she knew the Appellant, as he was the director and manager of Christian Dream School where she worked as a teacher beginning January, 2020. She stated that although she did not receive an appointment letter, she had initially joined the institution as a student and later worked as a teacher in order to raise school fees.
27. PW2 testified that she initially earned a monthly salary of Ksh.4,000/- paid in cash, although she expected to earn at least Ksh.6,000/-. According to her, the sponsor supporting the school was one Chrissie Christian and the person responsible for transmitting donor funds was Stanley Paul Amakobe (PW1). She stated that for the first three months, her salary was paid in cash but thereafter payments were remitted through M-Pesa or bank accounts.
28. The witness testified that at some point PW1 visited the school and that is when PW2 discovered that the amount intended for her salary exceeded what she had been receiving. She stated that the salary money was placed in envelopes but the appellant demanded the envelopes from the teachers immediately after they received them. She further testified that beginning around April 2020, donor funds were sent directly to the teachers’ M-Pesa accounts and the Appellant instructed her to retain only a portion of the salary and refund the balance to him.
29. PW2 stated that upon receiving payments through M-Pesa, she would remit part of the money back to the Appellant as a kickback. She testified that from April, 2020 to August, 2021 she consistently sent money back to the Appellant after receiving salary payments. She gave several examples of transactions in which she received funds from PW1 and thereafter transferred part of the money to the Appellant through M-Pesa.
30. PW2 testified, for instance, that on 9th July, 2021 she received Ksh.5,000/- from PW1 and sent Ksh.3,000/- to the Appellant. She further stated that on 8th April, 2021 she received Ksh.10,000/- and remitted Ksh.7,000/- to the Appellant, while on 10th March, 2021 she received Ksh.10,000/- and remitted Ksh.2,000/-. She also referred to other transactions where she received Ksh.15,000/- and remitted Ksh.7,000/-, Ksh.8,000/- and remitted Ksh.2,000/- and Ksh.3,000/- to the Appellant.
31. PW2 further testified that the Appellant would summon the teachers to his office and remind them to remit the kickbacks. According to her, teachers who failed to refund the money risked dismissal from the school. She stated that she personally experienced this after failing to remit part of the money she had received on 9th July, 2021, following which she was allegedly chased away from the school.
32. The witness testified that she informed Christian of the matter and was promised assistance in obtaining another job. She stated that in total she remitted Ksh.11,500/- through M-Pesa and a further Ksh.9,000/- in cash to the Appellant. She produced her M-Pesa statement covering the relevant period as documentary evidence.
33. Upon cross-examination, PW2 confirmed that she was a qualified teacher though she did not produce her teaching certificates before the trial court. She stated that she knew the Appellant through the school, that they came from the same village, and that she knew his family. She testified that she had personally applied for the teaching position by taking her documents to the Appellant, who then allowed her to teach at the school.
34. PW2 admitted that she had no written contract of employment and was not part of the school’s board of directors. She nevertheless maintained that the Appellant operated and managed the school and that some pupils at the institution were sponsored by donors. She testified that the donors knew the teachers and that she had direct contact with them.
35. The witness reiterated during cross-examination that the “kickback” referred to the money she was instructed to send back to the Appellant after receiving salary payments. She stated that the Appellant warned the teachers that failure to refund the money would lead to termination of employment and that the teachers feared him. She testified that she raised complaints about the arrangement in April, 2020, after which salaries began being sent directly through M-Pesa.
36. PW2 further testified that she later became a director of HHI and was involved in disbursement of donor funds for workers’ salaries and school fees. She maintained that she would send the exact amounts directed by the donors and that there existed evidence showing that some school fees remitted for sponsored children were not paid to the schools, resulting in some children being sent away for fees arrears.
37. In re-examination, PW2 reiterated that she was employed by the Appellant as a teacher and that between January and March, 2020 she received Ksh.4,000/- monthly. She further clarified that when salary envelopes were issued, the Appellant would take all the envelopes from the teachers. She also stated that she only kept account of money personally sent to her and the amounts she remitted to the Appellant.
38. The third prosecution witness was George Omondi Ondiek, a farmer residing in Kamswa. He testified that he knew the Appellant, whom he described as the director of Christian Dream School. He further stated that his child was a pupil at the said school.
39. PW3 testified that in the year 2017, he approached the Appellant seeking admission for his child into the school at the PP2 level. According to him, after the child joined the institution, an administrator from the school visited his home and informed him that his child had obtained sponsorship and would therefore receive assistance from donors.
40. The witness stated that despite being informed that his child had obtained sponsorship, the Appellant later told him that he was still required to continue paying school fees. He testified that he paid school fees at the rate of Ksh.100/- per week, amounting to approximately Ksh.500/- per month. According to him, the payments were made in cash and he was never issued with receipts despite requesting for them.
41. PW3 testified that in November, 2020 his child fell sick and subsequently died. Following the child’s death, the Appellant allegedly visited his home and informed him that donors had been contacted and that financial assistance would be sent to assist with funeral expenses. He stated that he was asked to wait for the assistance but none was ever received.
42. The witness further testified that after the funeral, officials from HHI visited him and inquired whether he had received any assistance for the burial. He informed them that he had not received any money and that he had instead relied on contributions from relatives and neighbours to bury the child.
43. PW3 stated that he was later summoned by officers from the Directorate of Criminal Investigations (DCI) to record a statement concerning the alleged funeral assistance. He testified that during the investigations he learned that a sum of Ksh.50,000/- had allegedly been sent for funeral expenses. However, he denied ever receiving the money and stated that the telephone number to which the funds were allegedly sent belonged to Joseph Oluoch, whom he identified as the Appellant’s brother.
44. The witness further testified that in June of that year, the Appellant visited him at his home and later followed him to his farm, where he allegedly threatened him against testifying in court. According to PW3, the Appellant warned him not to appear as a witness and threatened to burn him and his family. He identified the Appellant before the trial court as the person who made the threats.
45. PW3 produced a burial permit relating to his deceased child, Silas Odhiambo Omondi, as an exhibit before the court. He reiterated that although the child had allegedly been sponsored by donors, he continued paying school fees throughout the child’s attendance at the school.
46. Upon cross-examination, PW3 confirmed that he was a farmer who cultivated maize and that he and the Appellant hailed from the same village. He stated that prior to the case against the Appellant, he had no disagreements with him and had learned in 2017 that the Appellant assisted needy members of the community through the school.
47. The witness admitted that Christian Dream School was a private school and that before joining it, his child had attended another private institution known as Junior Academy in Koru. He testified that he sought admission into the Appellant’s school because he experienced difficulties paying fees at the previous school.
48. PW3 further stated during cross-examination that he did not know the amount paid by other parents as school fees and that he had no direct contact with them. He reiterated that despite asking for receipts, he was told to choose between obtaining receipts and allowing his child to continue attending school. He testified that this led him to believe that “something was being hidden.”
49. The witness stated that donor representatives later visited him and informed him that his child had obtained sponsorship and that they would cater for the child’s expenses. However, he stated that no documentary proof of sponsorship was shown to him. He further testified that after the child’s death he was compelled to lease part of his land in order to raise money for the funeral expenses.
50. PW3 maintained that he later learned that Ksh.50,000/- had allegedly been sent for the funeral through a telephone number belonging to Joseph Oluoch, the Appellant’s brother. He stated that the Appellant was the person requested to provide the telephone number through which the funeral assistance would be transmitted.
51. In re-examination, PW3 reiterated that it was the Appellant who informed him that his child had obtained sponsorship from donors. He further stated that after the child’s death, the Appellant informed him that he had communicated with the donors and was awaiting a report concerning the funeral assistance.
52. In her testimony before the trial court, Daisy Brenda Akinyi, the fourth prosecution witness (PW4), a trained teacher residing at Awasi, testified that she held Teachers Service Commission (TSC) Number 9****2 and produced her TSC certificate dated 30th June, 2022 as an exhibit before the court. She stated that she came to know the Appellant, when he served as the director of Christian Dream School.
53. PW4 testified that she commenced employment at the school in January, 2021 after completing her college training. According to her, she reported to the school on 7th January, 2021 and officially began teaching duties on 11th January, 2021. She stated that she taught pupils from Grades Two to Four.
54. The witness testified that although there was no written agreement, she expected to earn a monthly salary of Ksh.10,000/-. She stated that the Appellant informed her that whenever salary funds were sent to her M-Pesa account, she was only to retain Ksh.8,000/- and remit the balance to him.
55. PW4 stated that her first salary payment was received on 7th February, 2021 through M-Pesa from PW1. She testified that she received Ksh.18,000/-, withdrew Ksh.14,000/-, and thereafter handed Ksh.6,800/= in cash to the Appellant on the following day. According to her, she repeated the same arrangement during the following month after again receiving Ksh.15,000/-.
56. The witness further testified that beginning in April, 2021 she started remitting the money directly to the Appellant through M-Pesa. She stated that on 9th April, 2021 she received Ksh.15,000/- and sent Ksh.6,800/- to the Appellant. She gave further evidence that on 8th May, 2021 and 8th June, 2021 she similarly received Ksh.15,000/- from PW1 and remitted Ksh.6,800/- to the Appellant on each occasion.
57. PW4 testified that in total she remitted Ksh.20,400/- to the Appellant through M-Pesa. She stated that the Appellant never explained the reason why she was required to remit part of her salary to him.
58. The witness further testified that in July, 2021, she declined to send any money to the Appellant after receiving her salary. According to her, the Appellant informed her that because she had failed to remit the money, she had been dismissed from employment at the school.
59. PW4 produced her M-Pesa statement as evidence before the court and identified the Appellant in court as the person to whom she had remitted the money.
60. Upon cross-examination, PW4 confirmed that she was a trained teacher who had completed her training in the year 2020 at Borabu Teachers Training College. She however admitted that at the time she was not yet registered as a TSC teacher despite possessing a TSC number.
61. The witness testified that she obtained employment at Christian Dream School after receiving a referral and submitting an application letter together with her curriculum vitae. She admitted that she did not sign any written contract of employment and that she was simply instructed to commence work.
62. PW4 maintained that the appellant was responsible for payment of the teachers through PW1. She testified that the Appellant was before the court because he demanded money from the teachers and dismissed those who failed to refund part of the salary payments.
63. The witness admitted that the Appellant did not physically accompany them when withdrawing money from their M-Pesa accounts. She however insisted that she did not voluntarily give the money to him and maintained that the remittances were made because of his demands.
64. PW4 also admitted that she had not produced documentary proof such as schemes of work or assessment books to demonstrate her employment at the school. Nevertheless, she testified that she actively taught Grades Two, Three and Four and gave the approximate number of pupils in each class. She further maintained that she relocated to Awasi after securing employment at the school.
65. The fifth prosecution witness (PW5) was Millicent Adhiambo, a teacher residing at Ogweda in Awasi. She testified that she knew the Appellant as the director of Christian Dream School, where she was employed as a teacher from January, 2021. She stated that she was a qualified ECDE teacher and produced her ECDE certificate as an exhibit before the trial court.
66. PW5 testified that she taught ECDE and PP1 classes at the said school. She stated that there was no formal written employment agreement, but that the Appellant informed her that she would receive a salary of Ksh.15,000/- through M-Pesa, out of which she was expected to retain Ksh.7,000/- and remit the balance to him.
67. The witness testified that her salary was paid through PW1, who acted on behalf of the donors associated with HHI. She stated that she received her first payment on 1st February, 2021 and thereafter continued receiving monthly payments of Ksh.15,000/-.
68. PW5 gave evidence that she regularly transferred part of her salary to the Appellant. She stated that on 10th March, 2021 she received Ksh.15,000/- and transferred Ksh.7,800/- to the Appellant. She further testified that on 8th April, 2021, 8th May 2021 and 8th June, 2021 she received similar amounts and transferred Ksh.7,800/- on each occasion to the Appellant.
69. The witness testified that in total she remitted Ksh.32,200/- to the Appellant through M-Pesa. She stated that she continued with this arrangement until June, 2021 when she stopped remitting the money after a visit by donor representatives.
70. PW5 testified that following the donor visit, she learned that the full amount of Ksh.15,000/- constituted her salary and that she was not required to remit any portion of it to the Appellant. She stated that she stopped working for the Appellant after refusing to continue transferring money to him and that she was thereafter dismissed from employment.
71. The witness further testified that she received her salary for July, 2021 but did not remit any money to the Appellant thereafter. She identified the Appellant in court as the person to whom she had been sending part of her salary and produced her M-Pesa statement as evidence.
72. Upon cross-examination, PW5 confirmed that she was a trained ECDE teacher having trained in Siaya. She stated that she did not know the Appellant prior to applying for employment at the school and that she was informed she had been selected after submitting her application.
73. The witness admitted that there was no written contract of employment and that she was not directly paid by the school but through PW1 on behalf of the donors. She stated that she had no proof that the payments came from the school itself.
74. PW5 maintained that the Appellant ran Christian Dream School and that the donors, identified as HHI, were responsible for funding salaries
[...truncated]
1. Henry Odero Migoya (hereinafter referred to as “the Appellant”) was arraigned before the trial court and faced a total of eight (8) counts. The charges concerned a wide range of alleged criminal conduct arising from his management of Christian Dream School, located at Rakwaro Village, Nyangoma Location, Muhoroni Sub-County within Kisumu County, and related to funds received from an American non-profit organization known as Helping Hands International (hereinafter “HHI”).
2. The eight (8) counts, as set out in the amended charge sheet, were as follows:
- Count I: Fraudulent disposal of trust property contrary to Section 327(2)(a) as read with Section 327(1) of the Penal Code, Cap 63 Laws of Kenya.
- Particulars of the offence: Between 1st January, 2016 and 1st August, 2021, the Appellant, being a trustee of property on behalf of Helping Hands International (HHI), dishonestly converted such property, valued at approximately Ksh.600,000/-, to his own use, which was not authorized by the Trust, with intent to defraud.
- Counts II: Demanding property with menaces contrary to Section 302 of the Penal Code, Cap 63 Laws of Kenya.
- Particulars: On diverse dates between 1st January, 2019 and 31st December, 2021 at Rakwaro village, Nyangoma Location in Muhoroni Subcounty, the Appellant, with menaces/force, demanded Ksh.45,000/- from Beatrice Akinyi Agando, with intent to steal.
- Counts III: Demanding property with menaces contrary to Section 302 of the Penal Code, Cap 63 Laws of Kenya.
- Particulars: On diverse dates between 1st January, 2019 and 31st December, 2021 at Rakwaro village, Nyangoma Location in Muhoroni Subcounty, the Appellant, with menaces/force, demanded Ksh.72,000/- from Angeline Atieno Okungu, with intent to steal.
- Counts IV: Demanding property with menaces contrary to Section 302 of the Penal Code, Cap 63 Laws of Kenya.
- Particulars: On diverse dates between 1st February, 2021 and 30th June, 2021 at Rakwaro village, Nyangoma Location in Muhoroni Subcounty, the Appellant, with menaces/force, demanded Ksh.31,200/- from Millicent Adhiambo Magero, with intent to steal.
- Counts V: Demanding property with menaces contrary to Section 302 of the Penal Code, Cap 63 Laws of Kenya.
- Particulars: On diverse dates between 1st January, 2021 and 31st December, 2021 at Rakwaro village, Nyangoma Location in Muhoroni Subcounty, the Appellant, with menaces/force, demanded Ksh.20,400/- from Akinyi Daisy Brenda, with intent to steal.
- Counts VI: Demanding property with menaces contrary to Section 302 of the Penal Code, Cap 63 Laws of Kenya.
- Particulars: On diverse dates between 1st January, 2021 and 31st December, 2021 at Rakwaro village, Nyangoma Location in Muhoroni Subcounty, the Appellant, with menaces/force, demanded Ksh.27,200/- from Mercy Achieng Jakoyo, with intent to steal.
- Counts VII: Demanding property with menaces contrary to Section 302 of the Penal Code, Cap 63 Laws of Kenya.
- Particulars: On diverse dates between 1st January, 2021 and 31st December, 2021 at Rakwaro village, Nyangoma Location in Muhoroni Subcounty, the Appellant, with menaces/force, demanded Ksh.37,400/- from Winnie Ochieng, with intent to steal.
- Count VIII: Obtaining money by false pretences contrary to Section 313 of the Penal Code, Cap 63 Laws of Kenya.
- Particulars: On 26th November, 2020, the Appellant, jointly with another not before court, with intent to defraud, obtained Ksh.50,000/- from Paul Stanley Amakobe of Helping Hands International by falsely pretending that the money was required to support burial expenses for the late Silas Odhiambo, a fact which the Appellant knew to be false.
3. The Appellant denied the charges, which then called for a full trial.
B. THE DUTY OF THIS COURT.
4. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570; and Peter v Sunday Post [1958] EA 424.)
5. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the conviction and sentence.
C. THE PROSECUTION CASE.
6. The prosecution’s case was based on the testimony of 16 witnesses.
7. The first prosecution witness was Stanley Paul Amakobe, (PW1) who told the trial court that he was a businessman who also worked with a Non Governmental Organization known as Helping Hands International (HHI) and resided in Nairobi. He recalled that in the year 2019, he accompanied a team of approximately nine foreigners from the United States of America to Rakwaro village near Awasi for purposes of conducting a dental medical camp for the local community. He stated that the team leader was one Chrissie Christian from the NGO and that the host during the visit was the Appellant, Henry Migoya.
8. The witness testified that after the foreigners returned to the United States, communication ensued between them and his employer, following which he was incorporated into the management and disbursement of funds intended to support Christian Dream School. He stated that the funds were meant for payment of salaries to teachers, guards, cooks and the Appellant, as well as for tuition and food for sponsored children. According to him, the Appellant was the contact person through whom the transactions were conducted.
9. PW1 further testified that he would receive instructions regarding disbursement of funds and would thereafter send the money through the M-Pesa platform to the persons designated by the Appellant. He stated that the Appellant received salary payments and tuition funds, while food and salary payments for certain staff members were sent to one Evalyn Atieno Ongoro. He produced M-Pesa statements covering the period between 1st January, 2019 and 31st December, 2021 to demonstrate the various remittances made.
10. The witness gave evidence that in the year 2020, Christian again visited the school and disputes arose concerning alleged corruption within the institution. He stated that the Appellant was questioned in his presence and that of his employer regarding financial impropriety but allegedly failed to cooperate. PW1 testified that complaints had been raised by teachers alleging that after they received salaries, they were compelled to refund part of the money to the Appellant as kickbacks. He further stated that some teachers were allegedly dismissed for failing to remit such kickbacks.
11. PW1 testified that complaints were also raised concerning non-payment of tuition fees for sponsored children despite funds having been remitted for that purpose. He further stated that donations and assets had been purchased for the benefit of the school, including a playground, shade net, laptops, water tanks and construction materials. According to him, he personally purchased some of the items in Nairobi and caused them to be delivered to the school.
12. It was the evidence of PW1 that with the assistance of the donor organization, the school later moved from the church compound to a separate location and that funds were sent to the Appellant for construction of the new school premises. He further testified that they later discovered that the Appellant had registered the school under his own name as sole proprietor, contrary to the intentions of the donors who allegedly intended the school to operate as a community institution. He produced a certificate of registration for the institution and a business registration certificate in support thereof.
13. The witness also testified regarding the death of a sponsored child known as Silas Odhiambo. He stated that donor funds had been sent for food and later for funeral expenses after the child allegedly died due to malnutrition. According to PW1, the Appellant supplied a telephone number purportedly belonging to the deceased child’s mother to which funeral funds amounting to Ksh.80,000/- were allegedly sent, but they later learned that the money did not reach the intended family.
14. PW1 further produced documentary exhibits comprising proforma invoices from Polyplay Limited relating to purchase of a playground, quotations, invoices and delivery notes from Vectus Kenya Limited concerning water tanks, and a master list of sponsored children which included the deceased child, Silas Odhiambo.
15. Upon cross-examination by the Appellant, PW1 conceded that he did not know when Christian Dream School was established and who owned it in 2019, or the categories and management structures of schools in Kenya. He admitted that he was not an expert on schools and that his role was limited to facilitating disbursement of donor funds.
16. PW1 further admitted that the complaints regarding kickbacks were not made directly to him by the teachers but were allegedly communicated to Christian who in turn informed his employer. He acknowledged that the court was to determine the legality of the alleged transactions and conceded that certain matters, including the role of the Appellant and details regarding sponsored children, would best be answered by Christian and other witnesses.
17. The witness maintained, however, that he sent money for food, salaries, tuition, funeral expenses and construction through M-Pesa as instructed, and that the Appellant supplied the contact details of the recipients. He further reiterated that the Appellant was the administrator of the school together with Christian and stated that he was testifying on behalf of Christian regarding the financial transactions undertaken for the benefit of the school and sponsored children.
18. PW1 further stated that he had known HHI since around 2019 and came to know the Appellant through that organisation. He stated that his role involved sending money to the Appellant for employees and that he understood the Appellant to be an employee of HHI.
19. He further stated that he had records showing payments made to the Appellant as salary, and gave specific dates and amounts allegedly paid, including Ksh.17,500/- on several occasions between 2020 and 2021, and other smaller transfers. He maintained that the payments he made to the Appellant were salaries for work done under HHI and that he acted on instructions and lists provided by that organisation. He stated that he did not know whether HHI was registered in Kenya and that it was not his responsibility to verify the registration status of Christian Dream School or related entities.
20. The witness further testified that he began engaging the Appellant in 2019 and denied sending him money before that time. He stated that he did not handle matters relating to Community Care Development beyond what was linked to accountability checks involving the Appellant, and claimed that the Appellant was an account holder associated with that organisation, although he admitted he had no documentary proof personally in court to confirm ownership.
21. PW1 stated that he had a power of attorney authorising him to speak on behalf of Chrissie Christian but clarified that he did not have authority to speak for other individuals such as one Archbold, although he referred to Archbold as having sent money in his statement. He also alleged that funds of about US$20,000 were involved in church or project support, but acknowledged this could not construct a school.
22. The witness further testified that he had previously done business with the Appellant, including the sale of a motor and stated that this transaction was independent of HHI’s engagements.
23. He stated that he sometimes sent money to the Appellant for school fees and sponsorship purposes as directed by HHI and that he relied on records maintained by the organisation. He maintained that the names and transactions were reflected in M-Pesa statements produced in court.
24. PW1 denied recalling whether he personally received money from the Appellant and insisted he had no other business dealings with him beyond the alleged vehicle sale and organisational transactions. He stated that he always confirmed recipient numbers before sending money and that the numbers used were provided through Christian via one Dr. Mike.
25. He further stated that he had receipts and documentation relating to goods and sponsorships, including quotations and delivery notes and claimed that items purchased were delivered to the Appellant. He insisted that he had not lied to the court and maintained that all payments he made were for salaries, child sponsorship and school-related support as instructed by HHI.
26. The prosecution called Beatrice Akinyi Ogando, who testified before the trial court as PW2. In her testimony before the trial court, the witness stated that she was a director with HHI. She testified that she knew the Appellant, as he was the director and manager of Christian Dream School where she worked as a teacher beginning January, 2020. She stated that although she did not receive an appointment letter, she had initially joined the institution as a student and later worked as a teacher in order to raise school fees.
27. PW2 testified that she initially earned a monthly salary of Ksh.4,000/- paid in cash, although she expected to earn at least Ksh.6,000/-. According to her, the sponsor supporting the school was one Chrissie Christian and the person responsible for transmitting donor funds was Stanley Paul Amakobe (PW1). She stated that for the first three months, her salary was paid in cash but thereafter payments were remitted through M-Pesa or bank accounts.
28. The witness testified that at some point PW1 visited the school and that is when PW2 discovered that the amount intended for her salary exceeded what she had been receiving. She stated that the salary money was placed in envelopes but the appellant demanded the envelopes from the teachers immediately after they received them. She further testified that beginning around April 2020, donor funds were sent directly to the teachers’ M-Pesa accounts and the Appellant instructed her to retain only a portion of the salary and refund the balance to him.
29. PW2 stated that upon receiving payments through M-Pesa, she would remit part of the money back to the Appellant as a kickback. She testified that from April, 2020 to August, 2021 she consistently sent money back to the Appellant after receiving salary payments. She gave several examples of transactions in which she received funds from PW1 and thereafter transferred part of the money to the Appellant through M-Pesa.
30. PW2 testified, for instance, that on 9th July, 2021 she received Ksh.5,000/- from PW1 and sent Ksh.3,000/- to the Appellant. She further stated that on 8th April, 2021 she received Ksh.10,000/- and remitted Ksh.7,000/- to the Appellant, while on 10th March, 2021 she received Ksh.10,000/- and remitted Ksh.2,000/-. She also referred to other transactions where she received Ksh.15,000/- and remitted Ksh.7,000/-, Ksh.8,000/- and remitted Ksh.2,000/- and Ksh.3,000/- to the Appellant.
31. PW2 further testified that the Appellant would summon the teachers to his office and remind them to remit the kickbacks. According to her, teachers who failed to refund the money risked dismissal from the school. She stated that she personally experienced this after failing to remit part of the money she had received on 9th July, 2021, following which she was allegedly chased away from the school.
32. The witness testified that she informed Christian of the matter and was promised assistance in obtaining another job. She stated that in total she remitted Ksh.11,500/- through M-Pesa and a further Ksh.9,000/- in cash to the Appellant. She produced her M-Pesa statement covering the relevant period as documentary evidence.
33. Upon cross-examination, PW2 confirmed that she was a qualified teacher though she did not produce her teaching certificates before the trial court. She stated that she knew the Appellant through the school, that they came from the same village, and that she knew his family. She testified that she had personally applied for the teaching position by taking her documents to the Appellant, who then allowed her to teach at the school.
34. PW2 admitted that she had no written contract of employment and was not part of the school’s board of directors. She nevertheless maintained that the Appellant operated and managed the school and that some pupils at the institution were sponsored by donors. She testified that the donors knew the teachers and that she had direct contact with them.
35. The witness reiterated during cross-examination that the “kickback” referred to the money she was instructed to send back to the Appellant after receiving salary payments. She stated that the Appellant warned the teachers that failure to refund the money would lead to termination of employment and that the teachers feared him. She testified that she raised complaints about the arrangement in April, 2020, after which salaries began being sent directly through M-Pesa.
36. PW2 further testified that she later became a director of HHI and was involved in disbursement of donor funds for workers’ salaries and school fees. She maintained that she would send the exact amounts directed by the donors and that there existed evidence showing that some school fees remitted for sponsored children were not paid to the schools, resulting in some children being sent away for fees arrears.
37. In re-examination, PW2 reiterated that she was employed by the Appellant as a teacher and that between January and March, 2020 she received Ksh.4,000/- monthly. She further clarified that when salary envelopes were issued, the Appellant would take all the envelopes from the teachers. She also stated that she only kept account of money personally sent to her and the amounts she remitted to the Appellant.
38. The third prosecution witness was George Omondi Ondiek, a farmer residing in Kamswa. He testified that he knew the Appellant, whom he described as the director of Christian Dream School. He further stated that his child was a pupil at the said school.
39. PW3 testified that in the year 2017, he approached the Appellant seeking admission for his child into the school at the PP2 level. According to him, after the child joined the institution, an administrator from the school visited his home and informed him that his child had obtained sponsorship and would therefore receive assistance from donors.
40. The witness stated that despite being informed that his child had obtained sponsorship, the Appellant later told him that he was still required to continue paying school fees. He testified that he paid school fees at the rate of Ksh.100/- per week, amounting to approximately Ksh.500/- per month. According to him, the payments were made in cash and he was never issued with receipts despite requesting for them.
41. PW3 testified that in November, 2020 his child fell sick and subsequently died. Following the child’s death, the Appellant allegedly visited his home and informed him that donors had been contacted and that financial assistance would be sent to assist with funeral expenses. He stated that he was asked to wait for the assistance but none was ever received.
42. The witness further testified that after the funeral, officials from HHI visited him and inquired whether he had received any assistance for the burial. He informed them that he had not received any money and that he had instead relied on contributions from relatives and neighbours to bury the child.
43. PW3 stated that he was later summoned by officers from the Directorate of Criminal Investigations (DCI) to record a statement concerning the alleged funeral assistance. He testified that during the investigations he learned that a sum of Ksh.50,000/- had allegedly been sent for funeral expenses. However, he denied ever receiving the money and stated that the telephone number to which the funds were allegedly sent belonged to Joseph Oluoch, whom he identified as the Appellant’s brother.
44. The witness further testified that in June of that year, the Appellant visited him at his home and later followed him to his farm, where he allegedly threatened him against testifying in court. According to PW3, the Appellant warned him not to appear as a witness and threatened to burn him and his family. He identified the Appellant before the trial court as the person who made the threats.
45. PW3 produced a burial permit relating to his deceased child, Silas Odhiambo Omondi, as an exhibit before the court. He reiterated that although the child had allegedly been sponsored by donors, he continued paying school fees throughout the child’s attendance at the school.
46. Upon cross-examination, PW3 confirmed that he was a farmer who cultivated maize and that he and the Appellant hailed from the same village. He stated that prior to the case against the Appellant, he had no disagreements with him and had learned in 2017 that the Appellant assisted needy members of the community through the school.
47. The witness admitted that Christian Dream School was a private school and that before joining it, his child had attended another private institution known as Junior Academy in Koru. He testified that he sought admission into the Appellant’s school because he experienced difficulties paying fees at the previous school.
48. PW3 further stated during cross-examination that he did not know the amount paid by other parents as school fees and that he had no direct contact with them. He reiterated that despite asking for receipts, he was told to choose between obtaining receipts and allowing his child to continue attending school. He testified that this led him to believe that “something was being hidden.”
49. The witness stated that donor representatives later visited him and informed him that his child had obtained sponsorship and that they would cater for the child’s expenses. However, he stated that no documentary proof of sponsorship was shown to him. He further testified that after the child’s death he was compelled to lease part of his land in order to raise money for the funeral expenses.
50. PW3 maintained that he later learned that Ksh.50,000/- had allegedly been sent for the funeral through a telephone number belonging to Joseph Oluoch, the Appellant’s brother. He stated that the Appellant was the person requested to provide the telephone number through which the funeral assistance would be transmitted.
51. In re-examination, PW3 reiterated that it was the Appellant who informed him that his child had obtained sponsorship from donors. He further stated that after the child’s death, the Appellant informed him that he had communicated with the donors and was awaiting a report concerning the funeral assistance.
52. In her testimony before the trial court, Daisy Brenda Akinyi, the fourth prosecution witness (PW4), a trained teacher residing at Awasi, testified that she held Teachers Service Commission (TSC) Number 9****2 and produced her TSC certificate dated 30th June, 2022 as an exhibit before the court. She stated that she came to know the Appellant, when he served as the director of Christian Dream School.
53. PW4 testified that she commenced employment at the school in January, 2021 after completing her college training. According to her, she reported to the school on 7th January, 2021 and officially began teaching duties on 11th January, 2021. She stated that she taught pupils from Grades Two to Four.
54. The witness testified that although there was no written agreement, she expected to earn a monthly salary of Ksh.10,000/-. She stated that the Appellant informed her that whenever salary funds were sent to her M-Pesa account, she was only to retain Ksh.8,000/- and remit the balance to him.
55. PW4 stated that her first salary payment was received on 7th February, 2021 through M-Pesa from PW1. She testified that she received Ksh.18,000/-, withdrew Ksh.14,000/-, and thereafter handed Ksh.6,800/= in cash to the Appellant on the following day. According to her, she repeated the same arrangement during the following month after again receiving Ksh.15,000/-.
56. The witness further testified that beginning in April, 2021 she started remitting the money directly to the Appellant through M-Pesa. She stated that on 9th April, 2021 she received Ksh.15,000/- and sent Ksh.6,800/- to the Appellant. She gave further evidence that on 8th May, 2021 and 8th June, 2021 she similarly received Ksh.15,000/- from PW1 and remitted Ksh.6,800/- to the Appellant on each occasion.
57. PW4 testified that in total she remitted Ksh.20,400/- to the Appellant through M-Pesa. She stated that the Appellant never explained the reason why she was required to remit part of her salary to him.
58. The witness further testified that in July, 2021, she declined to send any money to the Appellant after receiving her salary. According to her, the Appellant informed her that because she had failed to remit the money, she had been dismissed from employment at the school.
59. PW4 produced her M-Pesa statement as evidence before the court and identified the Appellant in court as the person to whom she had remitted the money.
60. Upon cross-examination, PW4 confirmed that she was a trained teacher who had completed her training in the year 2020 at Borabu Teachers Training College. She however admitted that at the time she was not yet registered as a TSC teacher despite possessing a TSC number.
61. The witness testified that she obtained employment at Christian Dream School after receiving a referral and submitting an application letter together with her curriculum vitae. She admitted that she did not sign any written contract of employment and that she was simply instructed to commence work.
62. PW4 maintained that the appellant was responsible for payment of the teachers through PW1. She testified that the Appellant was before the court because he demanded money from the teachers and dismissed those who failed to refund part of the salary payments.
63. The witness admitted that the Appellant did not physically accompany them when withdrawing money from their M-Pesa accounts. She however insisted that she did not voluntarily give the money to him and maintained that the remittances were made because of his demands.
64. PW4 also admitted that she had not produced documentary proof such as schemes of work or assessment books to demonstrate her employment at the school. Nevertheless, she testified that she actively taught Grades Two, Three and Four and gave the approximate number of pupils in each class. She further maintained that she relocated to Awasi after securing employment at the school.
65. The fifth prosecution witness (PW5) was Millicent Adhiambo, a teacher residing at Ogweda in Awasi. She testified that she knew the Appellant as the director of Christian Dream School, where she was employed as a teacher from January, 2021. She stated that she was a qualified ECDE teacher and produced her ECDE certificate as an exhibit before the trial court.
66. PW5 testified that she taught ECDE and PP1 classes at the said school. She stated that there was no formal written employment agreement, but that the Appellant informed her that she would receive a salary of Ksh.15,000/- through M-Pesa, out of which she was expected to retain Ksh.7,000/- and remit the balance to him.
67. The witness testified that her salary was paid through PW1, who acted on behalf of the donors associated with HHI. She stated that she received her first payment on 1st February, 2021 and thereafter continued receiving monthly payments of Ksh.15,000/-.
68. PW5 gave evidence that she regularly transferred part of her salary to the Appellant. She stated that on 10th March, 2021 she received Ksh.15,000/- and transferred Ksh.7,800/- to the Appellant. She further testified that on 8th April, 2021, 8th May 2021 and 8th June, 2021 she received similar amounts and transferred Ksh.7,800/- on each occasion to the Appellant.
69. The witness testified that in total she remitted Ksh.32,200/- to the Appellant through M-Pesa. She stated that she continued with this arrangement until June, 2021 when she stopped remitting the money after a visit by donor representatives.
70. PW5 testified that following the donor visit, she learned that the full amount of Ksh.15,000/- constituted her salary and that she was not required to remit any portion of it to the Appellant. She stated that she stopped working for the Appellant after refusing to continue transferring money to him and that she was thereafter dismissed from employment.
71. The witness further testified that she received her salary for July, 2021 but did not remit any money to the Appellant thereafter. She identified the Appellant in court as the person to whom she had been sending part of her salary and produced her M-Pesa statement as evidence.
72. Upon cross-examination, PW5 confirmed that she was a trained ECDE teacher having trained in Siaya. She stated that she did not know the Appellant prior to applying for employment at the school and that she was informed she had been selected after submitting her application.
73. The witness admitted that there was no written contract of employment and that she was not directly paid by the school but through PW1 on behalf of the donors. She stated that she had no proof that the payments came from the school itself.
74. PW5 maintained that the Appellant ran Christian Dream School and that the donors, identified as HHI, were responsible for funding salaries
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