REPUBLC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL E060 OF 2023
JOHN MAKUMI GATIRI ......................................................................APPELLANT
-VERSUS-
REPUBLIC ........................................................................................RESPONDENT
(Being an appeal from the judgment of Hon. E. H. Keago (CM) delivered on 6th October 2023 in Machakos EACC Case No. 5 of 2016)
JUDGEMENT
Background
1. The Appellant was charged with the offence of corruptly soliciting for a benefit contrary to Section 39(3)(a) as read with Section 48 of the Anti-Corruption and Economic Crimes Act No. 3 of 2003 and Section 27 of the Bribery Act No. 47 of 2016.
2. In Count II, he was charged with corruptly soliciting for a benefit contrary to Section 39(3)(a) as read together with Section 48 of the Anti-Corruption and Economic Act No. 3 of 2003 and Section 27 of the Bribery Act No. 47 of 2016.
3. In Count III, he was charged with receiving a benefit contrary to Section 39(3)(a) as read together with Section 48 of the Anti-Corruption and Economic Crimes Act No. 3 of 2003 and Section 27 of the Bribery Act No. 47 of 2016.
4. The Appellant pleaded not guilty to the charges and the matter proceeded for full trial. The prosecution called fifteen (15) witnesses in support of its case. On 6th October 2023, the trial court delivered judgement wherein it found that Count I was not proved against the Appellant beyond reasonable doubt and was thus dismissed under Section 215 of the Criminal Procedure Code. Count II and III were found to have been proved to the required standards and the Appellant was found guilty and convicted and was sentenced to a of fine Kshs.75,000/= for each Count and in default to serve 12 months imprisonment. The sentences were to run concurrently.
The petition of appeal
5. Aggrieved by the conviction and sentence, the Appellant has filed this appeal based on the following grounds:
i. THAT the Learned Trial Magistrate erred in fact and in law by finding that the Prosecution had established its case beyond reasonable doubt despite not attaining the evidentiary threshold.
ii. THAT the Learned Trial Magistrate erred in law and in fact by failing to find that the Prosecution evidence adduced by the Prosecution witnesses had glaring discrepancies and inconsistencies and could not warrant and sustain a conviction against the Appellant.
iii. THAT the Learned Trial Magistrate erred in law and in fact by finding/establishing that the Appellant had solicited for a bribe contrary to the clear and unequivocal evidence given by PW1 and PW2 during trial absolving him of the same.
iv. THAT the Learned Trial Magistrate erred in law and in fact by finding/establishing that the Appellant had received a bribe despite an unequivocal admission by the Prosecution witnesses that the video clips evidence did not point to an exchange of money in favour of the Appellant.
v. THAT the Learned Trial Magistrate erred in law and in fact by failing to consider the evidence adduced by the Appellant absolving himself of the charges levelled against him.
vi. THAT the Learned Trial Magistrate erred in law and fact in awarding the Appellant a harsh and excessive sentence by failing to consider the circumstances of the case and overlooking material facts.
vii. THAT the Learned Magistrate misdirected himself and hence arrived at the conclusion when he found that the offence had been proven beyond reasonable doubt despite the glaring discrepancies in the dates in the Charge Sheet and the evidence given by the Prosecution witnesses which was materially prejudicial to the Appellant herein.
6. The Appellant prays that the appeal be allowed, the conviction and sentence imposed by the trial court be set aside or varied.
Directions of the court
7. The appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 12th January 2025 filed by D.M. Mutinda & Co. Advocates while the Respondent’s submissions are dated on 19th March 2025 filed by Ms. Agatha Abang, prosecution counsel.
Parties’ submissions
Appellant’s submissions
8. The Appellant framed an issue for determination as to whether the Prosecution proved its case against him beyond a reasonable doubt to warrant a conviction in terms of Count II and III preferred against him. The Appellant applied the Evidence Act.
9. The Appellant contends that the prosecution did not prove its case beyond a reasonable doubt to warrant a conviction against him to the required standards.
10. That from the record PW1 confirmed that the Appellant did not solicit for the Kshs.10,000 as the same was demanded from him by other officers not before court. PW1 further confirmed before the trial court that the Kshs.15,000 demanded at Salama Police Station was demanded by the Officer Commanding Station, Salama and not the Deputy O.C.S who is the Appellant herein. He further stated that his keys and license was taken by the Officer Commanding Station, Salama. PW1 was unequivocal that he did not discuss money issues with the Appellant herein at any single point at Salama Police Station.
11. That PW2, also confirmed that he was informed by PW1 that another officer had demanded Kshs.10,000 and not the Appellant herein. He further stated on cross-examination that the Appellant did not seek for the Kshs.15,000 and that the same had been demanded by the Officer Commanding Station. PW2 also confirmed that he was wearing a video and audio gadget which he was shown how to operate by EACC officers. He further confirmed during cross-examination that the video recording did not show at any single point the exchange of the money between him and the Appellant herein. PW2 further confirmed that a body search was done on the Appellant and the money was not found on him. A further search was done on his locker which also did not have any money. PW2 admitted that the treated Kshs.13,000 was found in a different locker that had been locked and that belonged to a different officer. The money was found after the OCPD had given an EACC officer permission to break it.
12. The Appellant submits that as stated by PW1, it is evident that the Appellant did not solicit for the Kshs.10,000 or the Kshs.15,000 as it was expressly stated by the said PW1 repeatedly that the Kshs.15,000 was asked for by the OCS and never by the Appellant.
13. Reliance was placed on the case of Mwangi. vs. Republic (2015) eKLR where it was held as follows:-
“The main ingredients of the offence of soliciting and receiving a bribe are that the accused must be acting in any capacity, whether in public or private sector, or employed by or acts on behalf of another person, that he must be shown to have obtained or attempted to obtain from any person gratification other than legal remuneration, that the gratification should be as a motive or reward for doing or forbearing to do, in the exercise of his official function, favour or disfavour to any person. The gravamen of the offence is acceptance of or the obtaining or even the attempt to obtain illegal gratification as a motive or reward for inducing a public servant for corrupt or illegal means. The receipt of gratification as a motive or reward will complete the offence.
In order to constitute an offence three things are essential; in the first place, there must have been solicitation or offer or receipt of a gratification. Such gratification must have been asked for, offered or paid as a motive or reward for inducing by corrupt or illegal means, and secondly that someone should be acting in the public or private or employed or acts for and on behalf of another person, or confer a favour or ask for a favour to render some service.”
The Concise Oxford English Dictionary defines Soliciting ''as to ask for or try to obtain something from someone".
The Merriam-Webster on line dictionary offers the following definition: - "to ask for (something, such as money or help) from people, companies, etc., to ask (a person or group) for money, help, etc."
In State v. Wallace it was held that "solicitation means the asking, enticing, or requesting of another to commit a crime of bribery." To constitute the crime of solicitation of a bribe, it is not necessary that the act be actually consummated or that the defendant profit by it. It is sufficient if a bribe was actually solicited.
14. The Appellant submits that, based on the evidence of PW1 it is quite evident and clear from his testimony that the necessary ingredient of soliciting was never proved against him as PW1 stated that at no single point did the Appellant solicit, ask or try to obtain money from him for a benefit.
15. The Appellant further submits that the video evidence produced in court by the prosecution did not at any single point show the Appellant personally receive any money from the PW1 and PW2 at Salama police station. This is coupled by the fact that the money was not found on him or in his locker.
16. The Appellant also submits that PW2 also confirmed that he never signed the inventory of the money that was recovered at the Station. He further stated that the Inventory was prepared by Amos while admitting that the same indicated that it had been prepared by one Abdi Mukhtar.
17. That it is also worthy to note that the aforementioned inventory was indicated to have been made in Machakos while PW2 admitted not to have signed it there but on the way.
18. It was submitted by the Appellant that PW5 who was the driver for EACC stated in cross-examination that PW2, one Michael Mulinge had been at the EACC Offices in Machakos while it is clear from the evidence of PW2 and PW4 that PW2 met them at Kyumbi and they went to Salama. PW5 further stated on cross-examination that the money was recovered in his presence and that it was recovered where the Appellant was seated.
19. The Appellant submits that this position was contradictory to the evidence given by PW2 and other officers who testified and stated that the money was not found on the Appellant nor at his desk but on a different desk that was locked.
20. The Appellant pointed out that the Prosecution lied to the court that PW4 was not at the scene while PW2 indeed confirmed and placed him at the scene. That wo prosecution witnesses being PW11, Amos Ole Tiren and the Investigating Officer Carol Koros stated that PW4 who treated the trap money was not at the scene while it is indicated that he was one of the arresting officers at the scene.
21. That it is clear that the aforementioned prosecution sought to remove Abdi Mukhtar from the scene owing to the fact that he was the officer who treated the trap money and also an arresting officer at the scene, and thus a possibility of the APQ being transmitted. A fact that was confirmed by PW12 on how easy APQ can be transferred through contact.
22. The Appellant submits that it was a grave lie for the investigating officer and the other two officers to give evidence stating that the officer who had been tasked with treating the trap money was not at all at the scene while at the same time evidence being led by other witnesses at the scene that the said Abdi Mukhtar was at Emali and actually one of the arresting officers.
23. That it is quite clear that the said officer came into contact with the Appellant herein and explains the possibility of transfer of APQ. The Appellant questions, why else would such a lie be perpetrated by EACC Officers under oath before a court of law.
24. The Appellant submits that he too gave defence evidence and testified that the said Abdi Mukhtar was at the scene and even escorted him to the lavatories at one point.
25. The Appellant submits that the evidence submitted by the Prosecution witnesses was marred with a lot of inconsistencies among the said witnesses. That the inconsistencies that came out are substantial and ought not to have been ignored by the trial court. The Appellant invites this Court to analyse the charges levelled against the Appellant against the inconsistencies noted through the witness testimonies of the EACC officers, PW1 and PW2.
26. It is submitted that the inconsistencies raise serious doubts that ought to be resolved in favour of the Appellant herein.
27. It is further submitted that there was a possibility of contamination between the Prosecution witnesses and the Appellant when they shook hands and the possibility of the APQ powder on the hands of the Appellant herein.
28. The Appellant submitted that throughout the proceedings, it was confirmed that Kshs.15,000 was solicited and/or sought by the OCS and indeed confirmed by the prosecution witnesses that the demand was never made by the Appellant herein.
29. Further, it was evident that there was no video evidence of the Appellant receiving any money from PW1 and PW2. The money was equally not found on the Appellant’s pockets nor his desk.
30. It is interesting that the charges were brought against the Appellant herein and not the officers who demanded Kshs.10,000 at the roadblock or the OCS who personally demanded Kshs.15,000 as stated by PW1, PW2 and other officers from EACC.
31. The Appellant submits that the prosecution did not prove its case beyond a reasonable doubt against the Appellant herein and that in view of the foregoing submissions, the Appellant urge this Court to find in his favour and overturn the conviction.
Respondent’s submissions
32. The Respondent in its submissions opposed the instant appeal. The Respondent submits that the trial court properly evaluated the evidence and came to the right conclusion.
33. On whether the prosecution proved its case beyond reasonable doubt, the Respondent argued grounds i, ii, iii, iv and vii of the appeal together. It was submitted that PWI testified that he was stopped near Salama by police officers who asked him for a bribe of Kshs.10,000 and he informed his boss Patrick. The said motor vehicle was detained at Salama police station. PWI stated he met the OCS who took his driving licence and keys of the motor vehicle and directed him to the Deputy OCS, the Appellant. The Appellant told him that once he brings the Kshs.10,000/= the motor vehicle will be released. PWI stated that later when PW2 arrived and they went to the Appellant office, the Appellant now demanded for Kshs.15,000/= PW2 then left to get the top-up and he came back after 45 minutes. Later he was called and given the keys and his driving licence. He then left the police station with the motor vehicle. He identified the Appellant as the one who took the money and the one whose office he was taken to. He heard the videos and was able to identify his voice and that of the manager.
34. The Respondent submitted that PW2 testified that he was informed that one of their trucks driven by PW 1 was arrested at Salama police station. He stated that he met some officers from EACC who interrogate him and PW I on why the truck was arrested. The EACC officials gave him the video and audio gadgets and showed him how to use them. He went to the office of the Appellant together with PW1 and he state that the Appellant raised the amount from Kshs.10,000/= to Kshs.15,000/= He went out to the EACC officials and they watched and listened to the videos and were satisfied that a demand was made. PW2 stated the officers from EACC copied the currencies of the money they had and it was put inside the envelope and gave him the money. PW2 then testified that he went to the police station and found the Appellant and they entered his office and he gave him the money and the Appellant took the money and he released the motor vehicle and the documents. When he went outside, he flashed the EACC officials who came and went straight to the office of the Appellant. PW2 states that he was called by one of the officers who asked him to show where the Appellant had hidden the money as he was not ready to be searched. He saw one of the officer PW 1 1 put on gloves and swiped the Appellant's hand with cotton swabs. The Appellant called for his boss PW3 and when he came, he directed that a search be conducted where the Appellant was seated. PW6 conducted the search — body search, the drawers - but nothing was found. The second table was unoccupied. PW6 asked for the keys and the Appellant said he did not have the keys and the desk was not his. PW2 testified that the PW6 sought to break the desk and PW3 authorised it. The desk was broken and when it was opened PW6 recovered Kshs.17,000/= PW2 testified of these Kshs.13,000/= tallied with the inventory captured earlier but Kshs.4000/= did not tally. PW2 was able to identify the gadgets used and the monies recorded and copied. Pw2 identified the inventory he signed against of the trap money recorded at the initial stage and after the recovery. PW2 heard the recordings and was able to recognise his voice, PW I and the Appellant.
35. That PW4 - PW7, PW9, PWI0, PW11, PW14 & PW15 were the EACC officers. They corroborate PW2’s evidence. They testified how they came about to meet PWI and PW2 and how they carried out the operation up to arrest of the Appellant. Their evidence is consistent with that of PWI and PW2. PW6 further states that when they went to the office of the Appellant. The Appellant declined to sit at the desk which had been identified by PW2 as the one he was sitting when he received the money. The Appellant chose to sit on a different locker within the same office explaining why when this desk was searched, they found nothing but the trap money was found in the desk that Pw2 showed the officers that he was sitting when her received the money. PW 12 was the government chemist who confirmed the chemicals from the swabs of the Appellant's hands and the trap money tallied with the control sample APQ supplied to him.
36. That all the witnesses testify that the Appellant is the one who demanded for the Kshs.15,000 bribe and he was the one who received it. Further when the search was done the money was recovered in his office on the desk that PW2 said he sat when he took the money. The Appellant's hands were found to have the APQ chemical that was used in the trap money. The evidence against the Appellant is consistent and accurate and corroborates each other to prove the ingredients of the offences against the Appellant. There are no inconsistencies not contradictions as claimed by the Appellant in his submissions. Reliance was placed on Justice Mativo’s decision in MTG v Republic [2022] KEHC 189 (KLR) in discussing contradictions and inconsistencies stated:
"This line argument was not elaborated 10 demonstrate the alleged inconsistencies nor was it suggested that her evidence contradicted other witnesses ' evidence. This court's duty is to determine whether there were contradictions and inconsistencies in the prosecution evidence to the extent that a reasonable person would be left in doubt as to whether the charges were proved, or whether the contradictions (if any), are so material That the trial court ought to have rejected the evidence. As was held in Twehangane Alfred v Uganda, Crim. App. No 139 of 2001, [2003/ UGCA, 6 it is not every contradiction that warrants rejection of evidence. It subtly stated: “With regard to contradictions in the prosecution's case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution 's case, 15.1nconsistencies unless satisfactorily explained would usually but not necessarily result in the evidence of a witness being rejected. 5 The question to be addressed is whether PWI 's testimony is contradictory on the occurrence of the event and whether the contradictions (if any) are grave and point to deliberate untruthfulness or whether they affect the substance of the charge. In this regard, we stand to benefit from the definition by the Court of Appeal of Nigeria in David Ojeabuo v Federal Republic of Nigeriaé that: - "Now, contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts while a discrepancy occurs where a piece of evidence stops short of; or contains a little more than what the other piece of evidence says or contains.
37. The Respondent submitted that the contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. It must deal with the real substance of the case. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. It is not every trifling inconsistency in the evidence of the prosecution witness that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court and therefore necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit there from. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. The correct approach is to read the evidence tendered holistically. It is only when inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court that they can necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit there from. (See Osetola vs State {2012} 17 NWLR (Pt1329) 251. See Theophilus vs State [1996] 1 (Pt.423) 139.)
38. The Respondent agrees with the sentiments of the learned judge. Any inconsistencies if any are not substantial to the extent of affecting the conviction. The learned Judge further states in MTG v Republic that:
"Reasonable doubt is not mere possible doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it can say it feels an abiding conviction to a moral certainty of the truth of the charge' Further, the evidence in question is to be considered together with the rest of the evidence including the defense”
39. Further in Philip Nzaka Watti v Republic [2016/ KECA 696 (KLR) the Court of Appeal stated:
"The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person's guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.
40. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.
41. The Respondent contends that the witnesses were properly cross examined and any inconsistencies were clarified in their testimonies and evidence adduced. the trial court examined the evidence holistically in arriving in its decision.
42. It was further submitted that there was no contradiction on the dates on the charge sheet and the evidence of the witnesses. The Appellant also did not cross examine the witnesses on the alleged contradictions on the dates on the charge sheet and we submit this is an afterthought and the honourable court should reject this ground. If any inconsistencies or contradictions are noticed the same can be cured by section 382 of the criminal procedure code. Further the Trial Court addresses itself to this issue in the judgment. Reference was made to the case of Joseph Maina Mwangi versus Republic Criminal Appeal No. 73 of 1993, held, inter alia, that:
'In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies, must be guided by the wording of section 382 of the criminal procedure code viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentences”
43. The Respondent cited the case of Richard Munene vs Republic (2018) eKLR the Court of Appeal stated with regard to contradiction or inconsistency in the evidence of the prosecution witness:
"Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused .1t is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.”
44. It was submitted that the prosecution tendered evidence that proved the offence beyond reasonable doubt and discharged its burden of proof. The evidence by the prosecution witnesses was credible, consistent, reliable and well corroborated. All the ingredients for the offence were established. It was submitted that the conviction was safe and therefore urged this court to uphold the conviction.
45. The Respondent also submitted that the Appellant's defence was an afterthought and is not strong enough to rebut the prosecution evidence. The trial court in its judgment did consider the Appellant's defence which was full of inconsistencies when mirrored against the prosecution's case. That the trial court was correct in noting that the prosecution tendered solid and corroborative evidence against the Appellant. It is submitted that the trial court was right in rejecting the appellant's defence.
46. On sentence, the Respondent submitted that the Appellant was sentenced to fine of Kshs.75,000/= in each count and in default to serve 12 months in imprisonment. He was given a chance to mitigate where he prayed for leniency and that he had a family and children who depended on him. The prosecution informed the court that the Appellant was a first offender. The Appellant in mitigation indicated that he was 59 years old and had worked for the public service for over 30 years. He further added that he had a family and they depend on him and he was the sole provider of his family.
Further he mitigated that he had diabetes and suffered from high blood pressure and prayed for leniency.
47. The Respondent cited Section 48 of the Anti-Corruption and Economic Crimes Act which provides that:
"48. Penalty for offence under this Part
(I) A person convicted of an offence under [his Part shall be liable to—
(a) a fine not exceeding one million shillings, or to imprisonment for a term not exceeding ten years, or to both; and
(b) an additional mandatory fine if, as a result of the conduct that constituted the offence, the person received a quantifiable benefit or any other person suffered a quantifiable loss.
(2) The mandatory fine referred to in subsection (l)(b) shall be determined as follows—
(a) the mandatory fine shall be equal to two times the amount of the benefit or loss described in subsection (l)(b);
(b) if the conduct that constituted the offence resulted in both a benefit and loss described in subsection (l)(b), the mandatory fine shall be equal to two times the sum of the amount of the benefit and the amount of the loss.
48. Reference was also made to Section 27 of the Bribery Act which provides that:
"Pending bribery cases;
Section (1) applies with respect to bribery offences or suspected bribery offences under the Anti-corruption and Economic Crimes Act Cap 65(2) Any investigation or prosecution or court proceedings instituted before the commencement of the Act based on an offence under the Anti-Corruption and Economic Crimes Act shall be continued under the Anti-Corruption and Economic Crimes Act (Cap. 65).
49. The Respondent submitted that under the circumstance, the penalty for the offences that the Appellant was convicted for attracts a fine of one million shillings and a mandatory fine and that the Trial Court did not indicate as to why it departed from the prescribed sentence by law. It is also well established that sentencing is at the discretion of the court. We submit that the That the Appellant was awarded a very lenient sentence and the Respondent prays this Court confirms the same.
50. In conclusion, the Respondent submitted that the appeal lacks merit and should therefore be dismissed in its entirety
Analysis
51. This being a first appeal to the High Court, I am enjoined by the now settled principle regarding the duty of the first appel
[...truncated]
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL E060 OF 2023
JOHN MAKUMI GATIRI ......................................................................APPELLANT
-VERSUS-
REPUBLIC ........................................................................................RESPONDENT
(Being an appeal from the judgment of Hon. E. H. Keago (CM) delivered on 6th October 2023 in Machakos EACC Case No. 5 of 2016)
JUDGEMENT
Background
1. The Appellant was charged with the offence of corruptly soliciting for a benefit contrary to Section 39(3)(a) as read with Section 48 of the Anti-Corruption and Economic Crimes Act No. 3 of 2003 and Section 27 of the Bribery Act No. 47 of 2016.
2. In Count II, he was charged with corruptly soliciting for a benefit contrary to Section 39(3)(a) as read together with Section 48 of the Anti-Corruption and Economic Act No. 3 of 2003 and Section 27 of the Bribery Act No. 47 of 2016.
3. In Count III, he was charged with receiving a benefit contrary to Section 39(3)(a) as read together with Section 48 of the Anti-Corruption and Economic Crimes Act No. 3 of 2003 and Section 27 of the Bribery Act No. 47 of 2016.
4. The Appellant pleaded not guilty to the charges and the matter proceeded for full trial. The prosecution called fifteen (15) witnesses in support of its case. On 6th October 2023, the trial court delivered judgement wherein it found that Count I was not proved against the Appellant beyond reasonable doubt and was thus dismissed under Section 215 of the Criminal Procedure Code. Count II and III were found to have been proved to the required standards and the Appellant was found guilty and convicted and was sentenced to a of fine Kshs.75,000/= for each Count and in default to serve 12 months imprisonment. The sentences were to run concurrently.
The petition of appeal
5. Aggrieved by the conviction and sentence, the Appellant has filed this appeal based on the following grounds:
i. THAT the Learned Trial Magistrate erred in fact and in law by finding that the Prosecution had established its case beyond reasonable doubt despite not attaining the evidentiary threshold.
ii. THAT the Learned Trial Magistrate erred in law and in fact by failing to find that the Prosecution evidence adduced by the Prosecution witnesses had glaring discrepancies and inconsistencies and could not warrant and sustain a conviction against the Appellant.
iii. THAT the Learned Trial Magistrate erred in law and in fact by finding/establishing that the Appellant had solicited for a bribe contrary to the clear and unequivocal evidence given by PW1 and PW2 during trial absolving him of the same.
iv. THAT the Learned Trial Magistrate erred in law and in fact by finding/establishing that the Appellant had received a bribe despite an unequivocal admission by the Prosecution witnesses that the video clips evidence did not point to an exchange of money in favour of the Appellant.
v. THAT the Learned Trial Magistrate erred in law and in fact by failing to consider the evidence adduced by the Appellant absolving himself of the charges levelled against him.
vi. THAT the Learned Trial Magistrate erred in law and fact in awarding the Appellant a harsh and excessive sentence by failing to consider the circumstances of the case and overlooking material facts.
vii. THAT the Learned Magistrate misdirected himself and hence arrived at the conclusion when he found that the offence had been proven beyond reasonable doubt despite the glaring discrepancies in the dates in the Charge Sheet and the evidence given by the Prosecution witnesses which was materially prejudicial to the Appellant herein.
6. The Appellant prays that the appeal be allowed, the conviction and sentence imposed by the trial court be set aside or varied.
Directions of the court
7. The appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 12th January 2025 filed by D.M. Mutinda & Co. Advocates while the Respondent’s submissions are dated on 19th March 2025 filed by Ms. Agatha Abang, prosecution counsel.
Parties’ submissions
Appellant’s submissions
8. The Appellant framed an issue for determination as to whether the Prosecution proved its case against him beyond a reasonable doubt to warrant a conviction in terms of Count II and III preferred against him. The Appellant applied the Evidence Act.
9. The Appellant contends that the prosecution did not prove its case beyond a reasonable doubt to warrant a conviction against him to the required standards.
10. That from the record PW1 confirmed that the Appellant did not solicit for the Kshs.10,000 as the same was demanded from him by other officers not before court. PW1 further confirmed before the trial court that the Kshs.15,000 demanded at Salama Police Station was demanded by the Officer Commanding Station, Salama and not the Deputy O.C.S who is the Appellant herein. He further stated that his keys and license was taken by the Officer Commanding Station, Salama. PW1 was unequivocal that he did not discuss money issues with the Appellant herein at any single point at Salama Police Station.
11. That PW2, also confirmed that he was informed by PW1 that another officer had demanded Kshs.10,000 and not the Appellant herein. He further stated on cross-examination that the Appellant did not seek for the Kshs.15,000 and that the same had been demanded by the Officer Commanding Station. PW2 also confirmed that he was wearing a video and audio gadget which he was shown how to operate by EACC officers. He further confirmed during cross-examination that the video recording did not show at any single point the exchange of the money between him and the Appellant herein. PW2 further confirmed that a body search was done on the Appellant and the money was not found on him. A further search was done on his locker which also did not have any money. PW2 admitted that the treated Kshs.13,000 was found in a different locker that had been locked and that belonged to a different officer. The money was found after the OCPD had given an EACC officer permission to break it.
12. The Appellant submits that as stated by PW1, it is evident that the Appellant did not solicit for the Kshs.10,000 or the Kshs.15,000 as it was expressly stated by the said PW1 repeatedly that the Kshs.15,000 was asked for by the OCS and never by the Appellant.
13. Reliance was placed on the case of Mwangi. vs. Republic (2015) eKLR where it was held as follows:-
“The main ingredients of the offence of soliciting and receiving a bribe are that the accused must be acting in any capacity, whether in public or private sector, or employed by or acts on behalf of another person, that he must be shown to have obtained or attempted to obtain from any person gratification other than legal remuneration, that the gratification should be as a motive or reward for doing or forbearing to do, in the exercise of his official function, favour or disfavour to any person. The gravamen of the offence is acceptance of or the obtaining or even the attempt to obtain illegal gratification as a motive or reward for inducing a public servant for corrupt or illegal means. The receipt of gratification as a motive or reward will complete the offence.
In order to constitute an offence three things are essential; in the first place, there must have been solicitation or offer or receipt of a gratification. Such gratification must have been asked for, offered or paid as a motive or reward for inducing by corrupt or illegal means, and secondly that someone should be acting in the public or private or employed or acts for and on behalf of another person, or confer a favour or ask for a favour to render some service.”
The Concise Oxford English Dictionary defines Soliciting ''as to ask for or try to obtain something from someone".
The Merriam-Webster on line dictionary offers the following definition: - "to ask for (something, such as money or help) from people, companies, etc., to ask (a person or group) for money, help, etc."
In State v. Wallace it was held that "solicitation means the asking, enticing, or requesting of another to commit a crime of bribery." To constitute the crime of solicitation of a bribe, it is not necessary that the act be actually consummated or that the defendant profit by it. It is sufficient if a bribe was actually solicited.
14. The Appellant submits that, based on the evidence of PW1 it is quite evident and clear from his testimony that the necessary ingredient of soliciting was never proved against him as PW1 stated that at no single point did the Appellant solicit, ask or try to obtain money from him for a benefit.
15. The Appellant further submits that the video evidence produced in court by the prosecution did not at any single point show the Appellant personally receive any money from the PW1 and PW2 at Salama police station. This is coupled by the fact that the money was not found on him or in his locker.
16. The Appellant also submits that PW2 also confirmed that he never signed the inventory of the money that was recovered at the Station. He further stated that the Inventory was prepared by Amos while admitting that the same indicated that it had been prepared by one Abdi Mukhtar.
17. That it is also worthy to note that the aforementioned inventory was indicated to have been made in Machakos while PW2 admitted not to have signed it there but on the way.
18. It was submitted by the Appellant that PW5 who was the driver for EACC stated in cross-examination that PW2, one Michael Mulinge had been at the EACC Offices in Machakos while it is clear from the evidence of PW2 and PW4 that PW2 met them at Kyumbi and they went to Salama. PW5 further stated on cross-examination that the money was recovered in his presence and that it was recovered where the Appellant was seated.
19. The Appellant submits that this position was contradictory to the evidence given by PW2 and other officers who testified and stated that the money was not found on the Appellant nor at his desk but on a different desk that was locked.
20. The Appellant pointed out that the Prosecution lied to the court that PW4 was not at the scene while PW2 indeed confirmed and placed him at the scene. That wo prosecution witnesses being PW11, Amos Ole Tiren and the Investigating Officer Carol Koros stated that PW4 who treated the trap money was not at the scene while it is indicated that he was one of the arresting officers at the scene.
21. That it is clear that the aforementioned prosecution sought to remove Abdi Mukhtar from the scene owing to the fact that he was the officer who treated the trap money and also an arresting officer at the scene, and thus a possibility of the APQ being transmitted. A fact that was confirmed by PW12 on how easy APQ can be transferred through contact.
22. The Appellant submits that it was a grave lie for the investigating officer and the other two officers to give evidence stating that the officer who had been tasked with treating the trap money was not at all at the scene while at the same time evidence being led by other witnesses at the scene that the said Abdi Mukhtar was at Emali and actually one of the arresting officers.
23. That it is quite clear that the said officer came into contact with the Appellant herein and explains the possibility of transfer of APQ. The Appellant questions, why else would such a lie be perpetrated by EACC Officers under oath before a court of law.
24. The Appellant submits that he too gave defence evidence and testified that the said Abdi Mukhtar was at the scene and even escorted him to the lavatories at one point.
25. The Appellant submits that the evidence submitted by the Prosecution witnesses was marred with a lot of inconsistencies among the said witnesses. That the inconsistencies that came out are substantial and ought not to have been ignored by the trial court. The Appellant invites this Court to analyse the charges levelled against the Appellant against the inconsistencies noted through the witness testimonies of the EACC officers, PW1 and PW2.
26. It is submitted that the inconsistencies raise serious doubts that ought to be resolved in favour of the Appellant herein.
27. It is further submitted that there was a possibility of contamination between the Prosecution witnesses and the Appellant when they shook hands and the possibility of the APQ powder on the hands of the Appellant herein.
28. The Appellant submitted that throughout the proceedings, it was confirmed that Kshs.15,000 was solicited and/or sought by the OCS and indeed confirmed by the prosecution witnesses that the demand was never made by the Appellant herein.
29. Further, it was evident that there was no video evidence of the Appellant receiving any money from PW1 and PW2. The money was equally not found on the Appellant’s pockets nor his desk.
30. It is interesting that the charges were brought against the Appellant herein and not the officers who demanded Kshs.10,000 at the roadblock or the OCS who personally demanded Kshs.15,000 as stated by PW1, PW2 and other officers from EACC.
31. The Appellant submits that the prosecution did not prove its case beyond a reasonable doubt against the Appellant herein and that in view of the foregoing submissions, the Appellant urge this Court to find in his favour and overturn the conviction.
Respondent’s submissions
32. The Respondent in its submissions opposed the instant appeal. The Respondent submits that the trial court properly evaluated the evidence and came to the right conclusion.
33. On whether the prosecution proved its case beyond reasonable doubt, the Respondent argued grounds i, ii, iii, iv and vii of the appeal together. It was submitted that PWI testified that he was stopped near Salama by police officers who asked him for a bribe of Kshs.10,000 and he informed his boss Patrick. The said motor vehicle was detained at Salama police station. PWI stated he met the OCS who took his driving licence and keys of the motor vehicle and directed him to the Deputy OCS, the Appellant. The Appellant told him that once he brings the Kshs.10,000/= the motor vehicle will be released. PWI stated that later when PW2 arrived and they went to the Appellant office, the Appellant now demanded for Kshs.15,000/= PW2 then left to get the top-up and he came back after 45 minutes. Later he was called and given the keys and his driving licence. He then left the police station with the motor vehicle. He identified the Appellant as the one who took the money and the one whose office he was taken to. He heard the videos and was able to identify his voice and that of the manager.
34. The Respondent submitted that PW2 testified that he was informed that one of their trucks driven by PW 1 was arrested at Salama police station. He stated that he met some officers from EACC who interrogate him and PW I on why the truck was arrested. The EACC officials gave him the video and audio gadgets and showed him how to use them. He went to the office of the Appellant together with PW1 and he state that the Appellant raised the amount from Kshs.10,000/= to Kshs.15,000/= He went out to the EACC officials and they watched and listened to the videos and were satisfied that a demand was made. PW2 stated the officers from EACC copied the currencies of the money they had and it was put inside the envelope and gave him the money. PW2 then testified that he went to the police station and found the Appellant and they entered his office and he gave him the money and the Appellant took the money and he released the motor vehicle and the documents. When he went outside, he flashed the EACC officials who came and went straight to the office of the Appellant. PW2 states that he was called by one of the officers who asked him to show where the Appellant had hidden the money as he was not ready to be searched. He saw one of the officer PW 1 1 put on gloves and swiped the Appellant's hand with cotton swabs. The Appellant called for his boss PW3 and when he came, he directed that a search be conducted where the Appellant was seated. PW6 conducted the search — body search, the drawers - but nothing was found. The second table was unoccupied. PW6 asked for the keys and the Appellant said he did not have the keys and the desk was not his. PW2 testified that the PW6 sought to break the desk and PW3 authorised it. The desk was broken and when it was opened PW6 recovered Kshs.17,000/= PW2 testified of these Kshs.13,000/= tallied with the inventory captured earlier but Kshs.4000/= did not tally. PW2 was able to identify the gadgets used and the monies recorded and copied. Pw2 identified the inventory he signed against of the trap money recorded at the initial stage and after the recovery. PW2 heard the recordings and was able to recognise his voice, PW I and the Appellant.
35. That PW4 - PW7, PW9, PWI0, PW11, PW14 & PW15 were the EACC officers. They corroborate PW2’s evidence. They testified how they came about to meet PWI and PW2 and how they carried out the operation up to arrest of the Appellant. Their evidence is consistent with that of PWI and PW2. PW6 further states that when they went to the office of the Appellant. The Appellant declined to sit at the desk which had been identified by PW2 as the one he was sitting when he received the money. The Appellant chose to sit on a different locker within the same office explaining why when this desk was searched, they found nothing but the trap money was found in the desk that Pw2 showed the officers that he was sitting when her received the money. PW 12 was the government chemist who confirmed the chemicals from the swabs of the Appellant's hands and the trap money tallied with the control sample APQ supplied to him.
36. That all the witnesses testify that the Appellant is the one who demanded for the Kshs.15,000 bribe and he was the one who received it. Further when the search was done the money was recovered in his office on the desk that PW2 said he sat when he took the money. The Appellant's hands were found to have the APQ chemical that was used in the trap money. The evidence against the Appellant is consistent and accurate and corroborates each other to prove the ingredients of the offences against the Appellant. There are no inconsistencies not contradictions as claimed by the Appellant in his submissions. Reliance was placed on Justice Mativo’s decision in MTG v Republic [2022] KEHC 189 (KLR) in discussing contradictions and inconsistencies stated:
"This line argument was not elaborated 10 demonstrate the alleged inconsistencies nor was it suggested that her evidence contradicted other witnesses ' evidence. This court's duty is to determine whether there were contradictions and inconsistencies in the prosecution evidence to the extent that a reasonable person would be left in doubt as to whether the charges were proved, or whether the contradictions (if any), are so material That the trial court ought to have rejected the evidence. As was held in Twehangane Alfred v Uganda, Crim. App. No 139 of 2001, [2003/ UGCA, 6 it is not every contradiction that warrants rejection of evidence. It subtly stated: “With regard to contradictions in the prosecution's case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution 's case, 15.1nconsistencies unless satisfactorily explained would usually but not necessarily result in the evidence of a witness being rejected. 5 The question to be addressed is whether PWI 's testimony is contradictory on the occurrence of the event and whether the contradictions (if any) are grave and point to deliberate untruthfulness or whether they affect the substance of the charge. In this regard, we stand to benefit from the definition by the Court of Appeal of Nigeria in David Ojeabuo v Federal Republic of Nigeriaé that: - "Now, contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts while a discrepancy occurs where a piece of evidence stops short of; or contains a little more than what the other piece of evidence says or contains.
37. The Respondent submitted that the contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. It must deal with the real substance of the case. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. It is not every trifling inconsistency in the evidence of the prosecution witness that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court and therefore necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit there from. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. The correct approach is to read the evidence tendered holistically. It is only when inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court that they can necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit there from. (See Osetola vs State {2012} 17 NWLR (Pt1329) 251. See Theophilus vs State [1996] 1 (Pt.423) 139.)
38. The Respondent agrees with the sentiments of the learned judge. Any inconsistencies if any are not substantial to the extent of affecting the conviction. The learned Judge further states in MTG v Republic that:
"Reasonable doubt is not mere possible doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it can say it feels an abiding conviction to a moral certainty of the truth of the charge' Further, the evidence in question is to be considered together with the rest of the evidence including the defense”
39. Further in Philip Nzaka Watti v Republic [2016/ KECA 696 (KLR) the Court of Appeal stated:
"The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person's guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.
40. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.
41. The Respondent contends that the witnesses were properly cross examined and any inconsistencies were clarified in their testimonies and evidence adduced. the trial court examined the evidence holistically in arriving in its decision.
42. It was further submitted that there was no contradiction on the dates on the charge sheet and the evidence of the witnesses. The Appellant also did not cross examine the witnesses on the alleged contradictions on the dates on the charge sheet and we submit this is an afterthought and the honourable court should reject this ground. If any inconsistencies or contradictions are noticed the same can be cured by section 382 of the criminal procedure code. Further the Trial Court addresses itself to this issue in the judgment. Reference was made to the case of Joseph Maina Mwangi versus Republic Criminal Appeal No. 73 of 1993, held, inter alia, that:
'In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies, must be guided by the wording of section 382 of the criminal procedure code viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentences”
43. The Respondent cited the case of Richard Munene vs Republic (2018) eKLR the Court of Appeal stated with regard to contradiction or inconsistency in the evidence of the prosecution witness:
"Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused .1t is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.”
44. It was submitted that the prosecution tendered evidence that proved the offence beyond reasonable doubt and discharged its burden of proof. The evidence by the prosecution witnesses was credible, consistent, reliable and well corroborated. All the ingredients for the offence were established. It was submitted that the conviction was safe and therefore urged this court to uphold the conviction.
45. The Respondent also submitted that the Appellant's defence was an afterthought and is not strong enough to rebut the prosecution evidence. The trial court in its judgment did consider the Appellant's defence which was full of inconsistencies when mirrored against the prosecution's case. That the trial court was correct in noting that the prosecution tendered solid and corroborative evidence against the Appellant. It is submitted that the trial court was right in rejecting the appellant's defence.
46. On sentence, the Respondent submitted that the Appellant was sentenced to fine of Kshs.75,000/= in each count and in default to serve 12 months in imprisonment. He was given a chance to mitigate where he prayed for leniency and that he had a family and children who depended on him. The prosecution informed the court that the Appellant was a first offender. The Appellant in mitigation indicated that he was 59 years old and had worked for the public service for over 30 years. He further added that he had a family and they depend on him and he was the sole provider of his family.
Further he mitigated that he had diabetes and suffered from high blood pressure and prayed for leniency.
47. The Respondent cited Section 48 of the Anti-Corruption and Economic Crimes Act which provides that:
"48. Penalty for offence under this Part
(I) A person convicted of an offence under [his Part shall be liable to—
(a) a fine not exceeding one million shillings, or to imprisonment for a term not exceeding ten years, or to both; and
(b) an additional mandatory fine if, as a result of the conduct that constituted the offence, the person received a quantifiable benefit or any other person suffered a quantifiable loss.
(2) The mandatory fine referred to in subsection (l)(b) shall be determined as follows—
(a) the mandatory fine shall be equal to two times the amount of the benefit or loss described in subsection (l)(b);
(b) if the conduct that constituted the offence resulted in both a benefit and loss described in subsection (l)(b), the mandatory fine shall be equal to two times the sum of the amount of the benefit and the amount of the loss.
48. Reference was also made to Section 27 of the Bribery Act which provides that:
"Pending bribery cases;
Section (1) applies with respect to bribery offences or suspected bribery offences under the Anti-corruption and Economic Crimes Act Cap 65(2) Any investigation or prosecution or court proceedings instituted before the commencement of the Act based on an offence under the Anti-Corruption and Economic Crimes Act shall be continued under the Anti-Corruption and Economic Crimes Act (Cap. 65).
49. The Respondent submitted that under the circumstance, the penalty for the offences that the Appellant was convicted for attracts a fine of one million shillings and a mandatory fine and that the Trial Court did not indicate as to why it departed from the prescribed sentence by law. It is also well established that sentencing is at the discretion of the court. We submit that the That the Appellant was awarded a very lenient sentence and the Respondent prays this Court confirms the same.
50. In conclusion, the Respondent submitted that the appeal lacks merit and should therefore be dismissed in its entirety
Analysis
51. This being a first appeal to the High Court, I am enjoined by the now settled principle regarding the duty of the first appel
[...truncated]