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JudgmentKEPHA MOMANYI TENDERE VS The Republic40 min read

KEPHA MOMANYI TENDERE VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(From Original Conviction and Sentence of Hon. A.  Ithuku (CM) in the Chief Magistrate’s Court at Mombasa, in Anti - Corruption Case No. 9 of 2018 on 2nd May, 2024)


Introduction

  1. The Appellant was charged before the Court with the following offences ;-

COUNT I: Requesting an advantage contrary to section 6(1) as read with section 18(1)(2) and (3) of the Bribery Act No 47 of 2016. Particulars of the same being that on 8th March, 2017 in Kisauni Sub County, within Mombasa County being a person employed by a Public Body to wit National Police Service as Police constable requested a financial advantage of Kshs. 5000/- from George Mumbo so as to release motor cycle registration number KMBY 629X which had been confiscated for unknown reasons a matter relating to the affairs of the said Public Body.

COUNT II: Requesting an advantage contrary to section 6(1) as read with section 18(1)(2) and (3) of the Bribery Act No 47 of 2016. The particulars of the same being that on 8th March, 2017, in Kisauni sub-county within Mombasa County. The accused being employed by a Public Body to wit National Police Service as police constable requesting for financial advantage of Kshs 3000/- from George Mumbo so as to release a motor cycle registration no. KMBY 629X which had been confiscated for unknown reasons and matter relating to the affairs of the said Public Body.

COUNT III: Requesting an advantage contrary to section 6(1) as read with section 18(1)(2) and (3) of the Bribery Act No 47 of 2016. The particulars of the same being that on 8th March, 2017, in Kisauni sub-county within Mombasa County the accused being a person employed by a public body to wit National Police Service as police constable requesting a financial advantage of Kshs 2000/- from George Mumbo so as to release a motor cycle registration no KMBY 629X which has been confiscated for unknown reasons, a matter relating to the affairs of the said Public Body.

COUNT IV: Receiving an advantage contrary to section 6(1) as read with section 18(1)(2) and (3) of the Bribery Act No 47 of 2016. The particulars of the same being that on 8th March, 2017, in Kisauni sub-county within Mombasa County the accused being a person employed by a public body to wit National Police Service as police constable received a financial advantage of Kshs 2000/- from George Mumbo as to release a motor cycle registration KMBY 629X which had been confiscated for reason, matter relating to affairs of the said Public Body.

COUNT V: Concealing evidence contrary to Section 66(1) as read with section 66(2) of the Anti-Corruption and Economic Crime Act No. 3 of 2003. In the particulars it is alleged that on 8th March, 2017 at Kisauni area in Kisauni sub county being a person employed by a Public Body to wit National Police Service as police constable intentionally concealed evidence by chewing and swallowing the trap money Kshs 2000/- note serial No. DG2741908 and DR 4306223 which was received from the complainant, a matter he knew was relevant to investigation under Anti-Corruption and Economic Crime Act No. 3 of 2003.

COUNT VI: Resisting a lawful arrest contrary to section 66(1)(a) of the Anti-Corruption and Economic Crime Act No. 3 of 2003. It is alleged that on 8th March, 2017 at Kisauni area-Kisauni sub-county within Mombasa county the accused knowingly and willfully obstructed EACC officers under the command of John Ngiro to effect lawful arrest for the offence or requesting a financial advantage and receiving financial advantage contrary to section 6(1) as read with section 18(1)(2)and(3)of the bribery Act No. 4 of 2016.

  1. The Appellant was charged, he denied the charges and the trial court put down the case for hearing. The prosecution called ten (10) witnesses and at the close of the prosecution’s case, the trial court found the Appellant with a case to answer; put him to his defence, convicted in counts  vi and v  and sentenced to pay  a fine of KSH 200,00O in count vi and KSH 20,000 IN COUNT 2. He was acquitted in the other counts.
  2. Being dissatisfied with the said judgment the appellant lodged the present appeal relying on the following grounds that:
  3. The Learned Trial Magistrate erred in Fact and Law in proceeding to convict and sentence the Appellant herein based on a defective charge sheet, the particulars thereto and the date of the alleged offence does not tally with the particulars thereof.
  4. The Learned Trial Magistrate erred in Fact and Law in proceeding to convict and sentence the Appellant on a charge; that had yet to be given requisite consent by the Directorate Of Public Prosecution contrary to express Constitutional Provisions.
  5. The Learned Trial Magistrate erred in Fact and Law in relying on evidence that did not establish a crime scene and/or there was no threshold of evidence of an alleged economic crime contrary to the evidentiary threshold as is required of such charge.
  6. The Learned Trial Magistrate erred in Fact and Law by convicting and sentencing the Appellant based on facts presented by the Prosecution that are clearly not in tandem with the charges proffered as against the Appellant.
  7. The Learned Trial Magistrate erred in Fact and Law by proceeding to convict the Appellant on evidence that does not meet the threshold as enunciated by Section 36 of the Economic Crimes Act, the scientific evidence thereof was doubtful and non-incriminating based on fabrications inconsistent and doubtful.
  8. The Learned Trial Magistrate erred in Law and Fact in meting out a sentence that was harshly and manifestly excessive in the circumstances and failed to take into consideration mitigating factors thereto.
  9. For the reasons advanced in his Petition of Appeal, the Appellant prayed that:
    1. The Conviction and sentence meted out by the Subordinate Court in Mombasa Anti – Corruption Case No. 9 of 2018 Republic – Versus – Kepha M. Tendere be quashed and the Appellant be set at liberty forthwith.
    2. The Honourable Court be pleased to issue such further Orders in the interest of Justice and as deemed fit.
    3. The Costs of this Appeal be provided for.

The Prosecution’s case

  1. The prosecution called ten (10) witnesses in support of its case.

PW 1 Mr. George Mumbo told the court that he operated a motor cycle. That on 8th March, 2017 at 4.30 am he was on his way home that at a petrol station called Safari he met three persons. He was stopped by one of the them. The men asked for his documents being driving license and helmet. He said that he handled over the documents but he did not have insurance certificate. He realized that the three were police officers. PW1 told the court that the accused person demanded Kshs 5000/- for failure to have insurance, that he did not have the money. That two of the officers took away the motor cycle to the police station. That the accused person to his phone number and reduced the demand to Kshs 3000/-. He said that and 8.00 am he went back to the station with Kshs 1000/- which was rejected  and he was told that accused person to plant bhang on him if he did not leave. That after consulting with friends he reported the matter to EACC. EACC officers gave him Kshs 3000/- in 1000/- denominators in an envelope. That he was also given a voice recording device.

2. PW1 called the accused and they agreed to meet. He said that when they got to the station he gave him Kshs 2000/- which was in an envelope. That he went to get motor cycle keys but was surrounded by EACC officers that later he recorded his statement. He said that he was arrested later and taken to Nyali police station. It was his testimony that he signed a certificate of the recording. The device was played in court. Two voices were heard.PW1 said that that the voices  were his and that of the  the accused. When cross examined he stated that he was arrested for driving without a license. He denied possession of bhang. He said that all officers demanded Kshs 5000/- but only one was charged. That he was slapped by one who was not in court. He is the one who told him to go look for money. He said that the one who slapped him was the one who gave out a phone number. No phones records were produced

3.PW1 first said that he was given Kshs 3000/- but took 1000/- for his own use. That he returned the note. The same was not in court. He claims to have signed on the original notes and not on the photocopies before court. He denied colluding with EACC officers.

4.  PW2 Esther Nekesa Nyando said that she was the owner of the motor cycle operated by PW1. That after it was impounded she went to Kisauni police station. She was directed to Nyali from where she collected it. She said that she did not know why it was impounded . She was told that the rider had been found with bhang. When cross examined she stated that she said that she led officers to arrest PW1 in exchange for release of the motor cycle.

5. PW3 Lameck Obore Okoth, introduced himself as a forensic investigator. He said that he is the one who made photocopies of 3-1000/=notes. He prepared the inventory. He put the notes in an-envelope and gave them to PW1. He said he was present when the accused was arrested. That the accused drew his gun on being confronted. He did not sign the inventory. When cross examined, he said that he said that he did not treat the money. He only photocopied notes. He did not know the whereabouts of the genuine currency. He did not witness the accused person chewing it.

6. PW4 Winston Wachira,  said that he was in charge of armory. He said that he is the one who issued a gun to the accused person. That it was in the course of his official duties. He produced the register as Pext 9.

7.PW5 Geoffrey Ouma stated that on 20th April, 2017 he was a scenes of crime officer attached to CID Mombasa. He was instructed to photograph motor cycle KMBY 629X. He produced the photographs as exhibits. Pext 10.

8. PW6 David Ngumbao,  produced ,with consent,  a government chemist analyst report signed by George Odero Ongutu.  Pext 11, the  Exhibit memo form Pext 12,  as well as the samples  that were analysed as Pext 13 ABCD AND E . He said that all samples involving mouth, right and left-hand swabs of the accused person tested positive  for the chemical APQ ,that  is the control sample, that was used to treat money.

9. PW 7 Christopher Rotich,  then the OCP Kisauni Police station stated that on 8th March, 2017, he was on duty at Kisauni Police Station when he was called by EACC Officers. One of his officers had been arrested, the accused. He found him with ceska pistol; he surrendered it. PW7 said that he was informed that the accused person had demanded Kshs 5000/- after detaining a motor cycle. That in his presence the accused grabbed two notes of 1000/- and put them in his mouth. He chewed and swallowed them. The money was never recovered. He identified an inventory that he signed.

10. When cross examined he stated that the EACC officers did not need his permission to conduct their investigations. He said the accused person grabbed and put two currency notes in his mouth that he swallowed the money. That the accused person was became violent and ran away from the OCPD,S OFFICE. When re examined he stated that the entry in the occurrence book indicating arrest of PW 1 was an afterthought.

11. PW 8 Racheal Nzaa, was an investigator based at EACC offices in Mombasa. She  said that she was in the team that received a report from PW1  and after interrogation ,they gave him treated money. He was also given a recording device. PW8 accompanied John Miro, Rashid Kibet, John Cherotich ,and Adan Kuracha in the trap operation. She said that it is Adan and Rashid who went into the police canteen as the money was handed over. That they ordered the accused to lead them to the OCPD's office. That the accused drew a ceska pistol and ordered them to go to the report office even after PW8 showed him her police appointment card. That the accused was disarmed by the OCPD.

13. PW 8 stated that she was present when the accused person grabbed and swallowed the two notes. That his mouth was swabbed then he ran off. She is the one who took swab samples to the government chemist. When cross examined she stated that the  Kshs 2000/- was photocopied. She said that it was not Kshs 3000/-.That she signed the inventory at the police station and not the one prepared at EACC offices. She did not see PW1 give out the money and when the accused dropped money she picked it without gloves.

14. PW9, John Ngiro introduced himself as a retired police officer who in the year 2017  was working with EACC Mombasa. That on 8th March, 2017 they received a report from PW1 who alleged that the accused person had demanded Kshs 3000/- in order to release a motor cycle that had been detained at Kisauni police station. That he is the one who fitted the complainant with a recording device. He was   absent when the complainant was accompanied by Rashid to hand over the money. That he went with the accused to the OCPD’s office. That he was present when the accused person swallowed Kshs 2000/-. When cross examined he stated that he did not investigate the issue of drugs. That he did not see the notes being treated with a chemical. That he found the accused pointing his pistol at his colleagues. That accused was not charged with misuse of the fire gun
  1. PW 10 APC Rashid Kibet Ramadhan,  stated that he was with PW 9 and PW 8 when PW1 made a report. That PW1 was fitted with a recording device. He produced a Sony voice recorder   as exhibit No. 1 . That PW1 was given three notes of Kshs 1000/- each. He produced photocopies of the notes. That they accompanied the complainant to the police canteen where the accused person was. That when money was handed over, they accosted the accused. That the accused brandished a pistol. He was calmed down by the OCPD and disarmed.
  2. PW 10 stated that he witnessed as the complainant handed over the money to accused. Then he stated that he is the one who swabbed the accused In the mouth and both hands. That as they tried to leave with him , he took off and boarded a Matatu. PW 10 collected all the exhibits. He produced them before court. He is the one who charged the accused person.
  3. When cross examined he stated that the investigating officer said that the accused was demanding Kshs 3000/-. That the complainant did not tell them anything about cannabis sativa. That 3 notes of Kshs 1000/- denominated were treated. He denied framing up the accused. That the swab of accused mouth the results were positive for possession of APQ powder.

The Defence case

  1. The appellant was placed on his defence after the close of the prosecution case. He told the Trial Court that on the date in question he was on patrol around Mishomoroni area. That they found somebody smoking on top a motor cycle that they arrested the person and searched him, they found 20 rolls of cannabis sativa. As they counted the rolls, the suspect escaped. The Appellant denied soliciting money from the suspect. That they did not communicate on phone. He said that he was arrested at the station. That he was disarmed and searched. That nothing was found on him. He denied threatening to shoot anybody. That no money was recovered from him. He referred to OB extracts showing that the complainant had been arrested for smoking and possession of bhang.
  2. When cross examined he stated that he had a fire arm on him on the date in question. That they recovered 20 rolls. He did not produce any inventory. That he surrendered the gun to OCPD. He denied drawing the gun. That his voice was not in the gadget that recorded the conversation.

Submissions

  1. The Appellant filed his submissions stating that he was a career police Officer with an unblemished service to God, Country and self with over sixteen years of service. That the appeal was premised on the grounds on the face of the Petition of Appeal which are set out above.
  2. According to the Appellant, the entire trial has been naught from the very beginning by dint of Section 3 Of the ANTI-CORRUPTION AND ECONOMIC CRIMES ACT NO. 3 OF 2003. It states ; The Chief Justice may, by notification in the Kenya Gazette, appoint as many special Magistrates as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely:-
  3. Corruption, bribery and economic crimes and related offences; and
  4. Any conspiracy to commit or any attempt to commit or any abatement of any of the offences specified in paragraph(a)

4(1)Notwithstanding anything contained in the Criminal Procedure Code(Cap.75) or in any other Law for the time being in force, the offences specified in this Act shall be tried by Special Magistrates only.

  1. The Appellant submitted that the Magistrates, from the Subordinate Court from the time of plea to conviction and sentencing though, were Principal Magistrates and Chief Magistrates  who were not gazetted as per the mandatory provisions of the Act. Hence the trial was a nullity.
  2. He then cited the case of Okeno – Versus – Republic [1972] EA 32, where the East Africa Court of Appeal stated as follows on the duty of the Honourable Court on a first Appeal;

“An Appellant on a first Appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (PANDYA-VERSUS-REPUBLIC [1957] E.A. 336) and to the Appellate Courts own decision on the evidence. The first Appellate Court must itself weigh conflicting evidence and draw its own conclusions. (SHANTILAL M. RUWALA-VERSUS- REPUBLIC [1957] EA 570 It is not the function of a first Appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions. Only then can it decide whether the Magistrate's findings should be supported

  1. According to the Appellant it was therefore necessary to re-evaluate the evidence and reach a conclusion premised therewith;
  2. According to the Appellant, the Prosecution Witness - GEORGE MUMBO(PW-1) stated in his evidence in chief that he was on his way home from work “...when I met 3 persons one of whom stopped me..... one of those persons told me that it was an offence not to have insurance. He demanded for Kshs. 5,000/-for failure to have insurance....The witness continued  that .After  that I was given the money, I called the Officer and told him that I got the 3,000/- he demanded, I only had 2,000/ -. He asked me to meet him. I proceeded to the station and met him and after a brief discussion he agreed to take the Kshs.2,000/- which I removed from the envelope and gave him....”.
  3. From the above, The Appellant submitted that PW 1 tampered with the entire sting operation by tampering with the evidence. That PW 1 was not called to account to this anomaly either by sanctions imposed and/or an indictment. That this colossal misgiving collapsed the entire so-called sting operation that was conducted by the officers from the EACC and their star complainant who laid bare the failures from the very on-start and comprehensively.
  4. The Appellant submitted that it was imperative that this piece of evidence was examined vis – a vis the charge sheet;

In COUNT1 the Appellant was charged with an offence to wit; REQUESTING AN ADVANTAGE CONTRARY TO SECTION 6(1) AS READ WITH SECTION 18(1) (2) AND (3) OF THE BRIBERY ACT NO.47 OF 2016

The particulars ON THE 8TH DAY OF MARCH 2017 IN KISAUNI SUB-COUNTY,WITHIN MOMBASA COUNTY BEING A PERSON EMPLOYED BY A PUBLIC BODY TO WIT NATIONAL POLICE SERVICE AS A POLICE CONSTABLE REQUESTED A FINANCIAL ADVANTAGE OF KSHS.5000/- FROM GEORGE MUMBO SO AS TO RELEASE A MOTOR CYCLE REG. KMBY 629X WHICH HAD BEEN CONFISCATED FOR UNKNOWN REASON, A MATTER RELATING TO THE AFFAIRS OF THE SAID PUBLIC BODY.

In COUNT II the Appellant was charged with an offence to wit;

REQUESTING AN ADVANTAGE CONTRARY TO SECTION 6(1) AS READ

WITH SECTION 18(1) (2) AND (3) OF THE BRIBERY ACT NO.47 OF 2016

The Particulars ON THE 8TH DAY OF MARCH 2017 IN KISAUNI SUB-COUNTY,WITHIN MOMBASA COUNTY BEING A PERSON EMPLOYED BY A PUBLIC BODY TO WIT NATIONAL POLICE SERVICE AS A POLICE CONSTABLE REQUESTED A FINANCIAL ADVANTAGE OF KSHS. 3000/ -FROM GEORGE MUMBO SO AS TO RELEASE A MOTOR CYCLE REG. KMBY 629X WHICH HAD BEEN CONFISCATED FOR UNKNOWN REASON, A MATTER RELATING TO THE AFFAIRS OF THE SAID PUBLIC BODY.

In COUNT III the Appellant was charged with an offence to wit; REQUESTING AN ADVANTAGE CONTRARY TO SECTION 6(1) AS READ WITH SECTION 18(1) (2) AND (3) OF THE BRIBERY ACT NO. 47 OF 2016.

The Particulars ON THE 8TH DAY OF MARCH 2017 IN KISAUNI SUB-COUNTY,WITHIN MOMBASA COUNTY BEING A PERSON EMPLOYED BY A PUBLIC BODY TO WIT NATIONAL POLICE SERVICE AS A POLICE CONSTABLE REQUESTED A FINANCIAL ADVANTAGE OF KSHS.2000/- FROM GEORGE MUMBO SO AS TO RELEASE A MOTOR CYCLE REG. KMBY 629X WHICH HAD BEEN CONFISCATED FOR UNKNOWN REASON, A MATTER RELATING TO THE AFFAIRS OF THE SAID PUBLIC BODY.

In COUNT IV the Appellant was charged with an offence to wit;

RECEIVING AN ADVANTAGE CONTRARY TO SECTION 6(1) AS READ WITH SECTION 18(1), (2) & (3) OF THE BRIBERY ACT NO.47 OF 2016

The Particulars ON THE 8TH DAY OF MARCH 2017 IN KISAUNI AREA, KISAUNI SUB-COUNTY,WITHIN MOMBASA COUNTY BEING A PERSON EMPLOYED BY A PUBLIC BODY TO WIT NATIONAL POLICE SERVICE AS A POLICE CONSTABLE RECEIVED A FINANCIAL ADVANTAGE OF KSHS.2,000/-, FROM GEORGE MUMBO SO AS TO RELEASE A MOTOR CYCLE REG.KMBY 629X WHICH HAD BEEN CONFISCATED FOR UNKNOWN REASON,A MATTER RELATING TO THE SAID PUBLIC BODY.

COUNT V the Appellant was charged with an offence to wit;

CONCEALING EVIDENCE UNDER SECTION 66(1)(c) AS READ WITH SECTION 66(2) OF THE ANTI-CORRUPTION AND ECONOMIC CRIME ACT NO.3 OF 2003

The Particulars ON THE 8TH DAY OF MARCH 2017, AT KISAUNI AREA IN KISAUNI SUB-COUNTY WITHIN MOMBASA COUNTY BEING A PERSON EMPLOYED BY A PUBLIC BODY TO WIT NATIONAL POLICE SERVICE AS A POLICE CONSTABLE INTENTIONALLY CONCEALED EVIDENCE BY CHEWING AND SWALLOWING THE TRAP MONEY KSHS. 2000/=NOTE SERIAL NUMBER DG2741908 & DR4306223 WHICH WAS RECEIVED FROM THE COMPLAINANT AATTER YOU KNEW WAS RELEVANT TO INVESTIGATION UNDER ANTI-CORRUPTION AND ECONOMIC CRIME ACT NO.3 OF 2003.

RESISTING LAWFUL ARREST CONTRARY TO SECTION 66(1) (a) OF THE ACECA

The Particulars NO. 96108 PC KEPHA MOMANYI TENDERE ON THE 8TH DAY OF MARCH 2017, AT KISAUNI AREA IN KISAUNI SUB-COUNTY,WITHIN MOMBASA COUNTY KNOWINGLY AND WILLFULLY OBSTRUCTED EACC OFFICERS UNDER THE COMMAND OF JOHN NG'IRO TO EFFECT LAWFUL ARREST FOR THE OFFENCE OF REQUESTING A FINANCIAL ADVANTAGE AND RECEIVING FINANCIAL ADVANTAGE CONTRARY TO SECTION 6(1) AS READ WITH SECTION 18(1), (2) &(3) OF THE BRIBERY ACT NO.47 OF 2016.

  1. According to the Appellant, this laid the basis of the first ground of Appeal which can in a nutshell be enumerated as herewith:-
  2. Fishing expedition of the charges proffered which does not augur with the particulars thereto.
  3. The charges proffered are not in tandem with the evidence adduced from PW1 - PW 9.
  4. There is non-existence of a Two Thousand (Kshs. 2,000/-)denomination note in the Republic of Kenya supplied as legal tender which formulates the Charges in COUNTS III, IV and V.
  5. The Appellant submitted that the purported Complainant- PW I begins his testimony in page 10, “....... One of those persons told me that it was an offence not to have insurance. He demanded for Kshs. 5,000/- for failure to have insurance..... in page 11 he states “... I was then given Kshs.3,000/-.....I was also given a voice recording device...”
  6. On the question of the crucial Voice Recording Device the appellant submitted that there was  no Certificate of Voice Recognition-the one deemed to be in accompaniment of the said transcription is fatally and incurably defective evidence that was ever  produced and tabled by the Prosecution.
  7. They relied on the case of Boniface Otieno Odhiambo – Versus – Republic [2018] eKLR, where the Court was emphatic “.... Voice recognition like any other form of identification must be free from any error, form of manipulation for the Court to rely on it.....”.
  8. He argued that the unknown voice reveals something startling ; that either the EACC Officers lost control of the device and/or did not have control over the said device such that conversations outside whatever ought to have been captured tainted the entire transcript.
  9. He added that on the same issue, the recording seems to stem from an alleged telephone conversation; the numbers attributed to this telephone conversation are unknown; the call is not anticipated in the said recording and nowhere does the transcript indicate that either the telephone conversation ends or begins and at which time is there a conversation as between two people addressing each other on a person to person basis
  10. He also pointed out that the  Complainant had first interacted with five individuals whom it appears in evidence did not identify themselves on name basis.  That  later there is telephone conversation and closes up by meeting in person. This puts the percentages of the Appellant having been a victim of mistaken identity too much to which an explanation in this submission would suffice. The absence of any call data from the local mobile service providers to indicate that a call was made from the cell phone of PW I to the Appellants phone to meet up and within the said conversation solicitation of bribe was ever prompted makes the whole issue questionable to the extent of making the whole process as non-existent.
  11. On the question of the concealing of evidence; the Appellant further submitted that it was alleged that the Appellant “......intentionally concealed evidence by chewing and swallowing the trap money Kshs. 2000 note.....”.

Analysis and Determination

  1. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. This is a first appeal and this court has a duty to analyze and evaluate the evidence which was adduced before the trial court and come up with its own independent finding. The appellant has a legitimate expectation that the evidence will be subjected to an exhaustive evaluation by the appellate court and the appellate court’s own independent finding. This principle has been considered in various decisions of this court and those of the Court of Appeal.
  2. The leading authority on the subject is Okeno - Versus - Republic ( 1972) EA 32. In this case the court stated-;

“The duty of the 1st appellate court is to analyze, reevaluate the evidence which was before the trial court and itself come up with its own conclusion on the evidence. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that. The Court of Appeal in the case of David Njuguna Wairimu Versus Republic (2010) while citing with approval the case of Okeno Versus Republic Supra, stated as follows:-

The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellant court may depending on the fact and the circumstances of the case, come to the same conclusion as those of the lower court. It may reverse those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”

The court of appeal further stated that – “ an appellant on a 1st appeal is entitled to expect the evidence as whole to be subjected to a fresh exhaustive examination (Padya Versus Republic 1975 EA 336) and that the appellate court’s own decision on the evidence. the appellate court must itself weigh the conflicting evidence and draw its own conclusions.

In doing so it must make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter’s Versus Sunday Post 1978 E.A 424”.

  1. In the  case of Gabriel Kamau Njoroge – Versus -  Republic, Criminal Appeal No.149 of 1986 [1987] eKLR Court of Appeal in Nairobi, Platt & Apaloo, JA.A. and Masime Ag. J.A reiterated the duty of a first appellate court as follows:-

“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court.”

  1. Having reviewed the trial Record, the grounds of appeal and the parties’ submissions, the issues for determination are as follows:-
    1. Whether the Charge sheet was  defective
    2. Whether the trial court had jurisdiction.
    3. Whether the trial Court proceeded to convict and sentence the Appellant on a charge; that had yet to be given requisite consent by the Directorate of Public Prosecution contrary to express Constitutional Provisions?
    4. Whether the Prosecution proved its case beyond reasonable doubt on evidence that does not meet the threshold as enunciated by Section 36 of the Economic Crimes Act, the scientific evidence thereof was doubtful and non-incriminating based on fabrications inconsistent and doubtful.
    5. Whether the sentence meted out on the Appellant was harsh and manifestly excessive in the circumstances and the Trial Court failed to take into consideration mitigating factors thereto.

ISSUE A. Whether the Charge sheet was  defective

  1. The question for this Court’s determination is whether the variance of the Prosecution evidence and the dates indicated on the charge sheet renders the charge defective. The Supreme Court explained the particulars that a charge should disclose in Isaac Omambia – Versus -  R [1995] eKLR as follows:-

“In this regard, it is pertinent to draw attention to the following provisions of S. 134 of the Criminal Procedure Code which makes particulars of a charge an integral part of the charge: Every charge or information shall contain, and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence.”

  1. The particulars of a charge can therefore render a charge defective. I draw guidance from the Court of Appeal in Yongo – Versus - R [1983] eKLR where the learned judges held that a charge can be defective if the evidence adduced in its support is at variance with the offence disclosed in the charge or its particulars. They stated thus: -

“In England it has been said: An indictment is defective not only when it is bad on the face of it, but also:

  1. When it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed therein;
  2. when for such reason it does not accord with the evidence given at the trial.” (emphasis added)

(See also Archbold, Criminal Pleading, Evidence and Practice (40th Edn), page 52 paragraph 53.)

  1. Consequently, a court must consider the defects in a charge from a two-step test. First is to determine whether the charge is defective and if so, whether such defect can be remedied. This was stated by the Court of Appeal in Peter Ngure Mwangi – Versus - Republic [2014] eKLR thus:-

“ On the issue of a defective charge sheet, there are two limbs to it. The first one deals with the issue as to whether the charge sheet is indeed defective, whereas the second one deals with the issue as to whether even if a charge sheet is defective, that defect is curable or not.”

  1. Section 382 of the Criminal Procedure Code provides a remedy for defects in charges sheets. It states as follows: -

382. Finding or sentence when reversible by reason of error or omission in charge or other proceedings

Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:

Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.

  1. The Appellant has not pointed out the alleged defect in the charge sheet. He only faults the prosecution for charging him based on a charge sheet that was purportedly erroneous.  He only submits that it is trite that the prosecution bears the burden to prove the charge and every particular beyond any reasonable doubts.
  2.   He added that  the charge sheet did not disclose a specific offence which the Appellant understood and pleaded to.
  3. My  evaluation of the record is that there was no defect in the charges and they were properly explained to the accused person,  who was represented by a competent advocate. He never raised any objection and my finding is there was no miscarriage of justice  occasioned by the alleged defective charge.
  4. The submission that the trial court had no jurisdiction is also not factual and further it was not one of the grounds raised in the appeal .
  5. ISSUE B; Whether the trial Court proceeded to convict and sentence the Appellant on a charge; that had yet to be given requisite consent by the Directorate of Public Prosecution contrary to express Constitutional Provisions
  6. Article 157 (6) of the Constitution vests prosecutorial powers  upon the DPP  and in  exercising its prosecutorial  power , the DPP is guided by  section 4 of the Office of the Director of Prosecutions Act, 2013.  It  provides that in fulfilling its mandate, the Office will be guided by the Constitution and the fundamental principles of-
    1. impartiality and gender equity;
    2. the rules of natural justice; and
    3. the need to serve the cause of justice, prevent abuse of the legal process and public interest.
  7. The issue of consent under section 35 of ACECA has been the subject of pronouncements by the Court in numerous decisions. In Nicholas M. Kangangi – Versus  - Attorney General [2011] eKLR for instance, the court in its judgment delivered on July 29, 2011 considered the import of sections 35, 36 and 37 of the ACECA before pronouncing:

“

The Act sets out the procedure to be followed. That procedure cannot be circumvented by KACC asking the Kenya Police to prosecute on its behalf. There is no such provision in the Act. In the case before us there is no evidence that this procedure was followed. Mr Obiri, the State Counsel who represented the Republic before us submitted that whether a report was made or not made to the Attorney-General was as it were, a matter between the Attorney-General and KACC. That cannot be right. The procedure is set down in the statute which creates KACC; KACC cannot ignore that procedure and say it is a matter between it and the Attorney-General. As a creature of statute, it must comply with the provisions of its creator. If it fails to do so, it is acting ultra vires and any such action is null and void. That is what the appellant contended before us. We accept that contention by the appellant.”

  1. We also have the Court of appeal decision in  IN KRA  AND GEOFFREY KAARIA KINOTI AND OTHERS where it was held that no court shall accept , register ,and deal with any charge sheets not prepared  and signed by law prosecutors.
  2. As I have understood it, the position as pronounced in decisions of this court is that under section 35 of the ACECA, the Commission requires the consent of the DPP to prosecute under ACECA or the Bribery Act.
  3. That said, in the present case it is apparent as submitted by counsel for the respondent that the prosecution was by DPP.  The charge sheet is properly stamped and signed by the office of the DPP.    Further  I take note  that this matter was not raised before the trial court and I do not find evidence that the Trial Court convicted someone when the charges not had been approved by the ODPP.

ISSUE C: Whether the Prosecution proved its case beyond reasonable doubt on evidence that does not meet the threshold as enunciated by Section 36 of the Economic Crimes Act, the scientific evidence thereof was doubtful and non - incriminating based on fabrications inconsistent and doubtful

  1. Before proceeding to examine the prosecution case and the offences the Appellant was: charged with in the Trial Court. The Appellant has alleged in his grounds that the Learned Trial Magistrate erred in Fact and Law by proceeding to convict the Appellant on evidence that does not meet the threshold as enunciated by Section 36 of the Economic Crimes Act, the scientific evidence thereof was doubtful and non-incriminating based on fabrications inconsistent and doubtful. There exists not an act called the Economic Crimes Act but rather the Anti-Corruption and Economic Crimes Act, No. 3 of 2003 (Revised in 2016) which at section 36 states as follows:-

36.  Quarterly reports

(1)  The Commission shall prepare quarterly reports setting out the number of reports made to the Director of Public Prosecutions under section 35 and such other statistical information relating to those reports as the Commission considers appropriate.

(2) A quarterly report shall indicate if a recommendation of the Commission to prosecute a person for corruption or economic crime was not accepted.

(3) The Commission shall give a copy of each quarterly report to the Attorney General.

(4) The Attorney-General shall lay a copy of each quarterly report before the National Assembly.

(5) The Commission shall cause each quarterly report to be published in the Gazette

  1. The Court does not see how the said provision is related to the Appellant’s appeal. Section 35 talks about the investigation report. In this instant case EACC from the evidence of PW 7, PW 8, PW 9 and PW 10 it is evident that investigations were concluded. Therefore part of this ground fails on the conclusion of the investigation.
  2. Next part of the issue is the prosecution case and whether it was proved beyond reasonable doubt.
  3. The offence of receiving a bribe is provided for in the Bribery Act, No. 7 of 2016.  An understanding of what constitutes bribery as set out in the Act is thus imperative in the matter before the court. The offence of receiving a bribe is set out in section 6 of the Bribery Act, No. 47 of 2016 which has several paragraphs each prescribing specific forms that the offence may be committed as follows:

Section 6 (1) - A person commits the offence of receiving a bribe if: -

a) the person requests, agrees to receive, or receives a financial or other advantage intending that, in consequence a relevant function or activity should be performed improperly by that person receiving the bribe or by another person

- The sub-section in the court’s appreciation relates to a situation where the person requests, agrees to receive or receives a financial or other advantage intending to influence or to cause improper performance of the relevant function by himself or by another person.

b) the recipient of bribe requests for, agrees to receive or accepts a financial or other advantage and the request, agreement or acceptance itself constitutes the improper performance by the recipient of a bribe a relevant function or activity

-in the understanding of this court, this applies to a situation where the person, who actually requests, agrees to receive or receives the financial or other advantage knows or believes that his own conduct is in fact an improper performance of the relevant function or activity in question.

c) In anticipation of, or as a consequence of a person requesting for, agreeing to receive or accept a financial or other advantage, a relevant function or activity is performed improperly by that person or by another person at the recipient’s request, assent or acquiescence.

- The 3rd scenario is where the person is anticipation of, or as a result of the requesting for, agreeing to receive or accepting a financial or other advantage the person in fact performs or causes another person to in fact perform a relevant function improperly at his request, assent or acquiescence.

2) For purposes of sub-section 1 (a) and (c) it shall not matter

a) If the recipient requests for, agrees to receive or receives or intends to request for, agree to receive or to accept the advantage directly or through a third party;

The court’s understanding of this sub-section (2) (a) of section of 6 is that if a 3rd party is involved to be agent in the transaction, then both the principal and the said 3rd party, each shall be regarded as the agent of the other, meaning the one for whom bribe is requested for or received on his behalf and the third party who requests are both liable for the actions of each other.

b) If the advantage is intended to be for benefit of recipient or another person

Likewise, under section 6 (2) (b), the one who requests, agrees to receive or receives such financial or other advantage cannot exonerate themselves just because they were not to benefit from such financial or other advantage in question as long as the object of the financial or other advantage was to cause or did cause a relevant function to be performed improperly by reason of such financial or other advantage that is involved.   

3) For purposes of sub-section 1, it shall not matter whether-

a) the recipient is performing the function or activity

The effect of section 6 (3) (a) is that it does not allow anyone to   escape culpability on the basis that they were not actually empowered to execute the particular activity or function for which a bribe was requested or received.

b) the person giving the bribe knows or believes that the performance of the function or activity is improper

This means the motive or state of mind of the giver is irrelevant if the financial or other advantage results in improper performance of relevant function.

d) Where the person other than the recipient is performing the function or activity, whether that person knows or believes that the performance of the function or activity is improper.

This is a situation where the one canvassing for a bribe or even receiving it might be doing it behind the back of the person who is actually performing the function or activity, the fact that person performing that function or activity is oblivious that there has been requesting or receiving the bribe will not be a ground for the person requesting or receiving the financial or other advantage to defeat his prosecution under section 6.

  1. To fully appreciate section 6, it must be read together with the succeeding section 7 because this is where you get the meaning of two phrases used in section 6, that is, ‘relevant function’ and ‘improper performance of function or activity’  is provided.

Section 7 provides:

“For purposes of this Act, a function or activity shall be construed to be a relevant function or activity if-

a) It includes:

b) It meets one or more of the following conditions:

i) that the person performing the function or activity is expected to perform in good faith

ii) that the person performing the function or activity is expected to perform it impartially; and

iii) that the person performing the function is in position of trust by virtue of performing it.

  1. From the reading of section 7 above, what comprises relevant function is thus as explained in section 7 (1) (a). Section 7 (1) (b) lays out the conditions which must be met in performance of relevant function or activity, hence doing the contrary due to a financial or other advantage is what should be taken as improper performance of a given relevant function or activity.
  2. “Improper performance” thus occurs when the expectations laid down under section 7 (1) (b) are defeated due to influence the financial or other advantage in question has in the performance of the relevant activity or function. The effect being to make the person executing the relevant function or activity to depart from applying the tenets of good faith, impartiality or conducting themselves with a character of a person in position of trust while in performing such relevant function or activity.
  3. By way of conclusion therefore, the offence of requesting and receiving a bribe under section 6 (1) that is relevant in this determination can succinctly be described as requesting, agreeing to receive or receiving a financial or other advantage to influence the improper performance of relevant function or by reason of which a relevant function is improperly performed. Relevant function is also not restricted to functions of public nature only; the list is extensive. It includes: a function of a public nature function carried out by a state officer, pursuant to his or her duties, any function carried out by foreign official pursuant to his or her duties, any activity connected with business, and or any activity performed by or on behalf of body of persons whether corporate or otherwise. Private interests are thus covered as well.
  4. Since the Act sets out a general criteria for determination of whether a ‘relevant function or activity’ has been performed properly by making reference to good faith, impartiality or if it is done in accordance of what is ordinarily expected of a person in a position of trust; It follows therefore the responsibility lies with the Court to consider any given factual situation that comes before it against this criteria to determine objectively whether or not the acts complained of amount to improper performance of relevant function or activity by the person charged.
  5. Additionally, in Black’s Law Dictionary, Tenth Edition ascribes the following meaning to the word ‘improper’:
  6. incorrect, unsuitable or irregular
  7. fraudulent or otherwise wrongful
  8. Consequently, if something is demonstrated to have been dome with a fraudulent or dishonest intention, it constitutes improper conduct. It was not in dispute that the Appellant in the trial Court was a public servant as the Trial Court acknowledged that the Appellant was a police officer and he introduced himself as No. 96108 PC KEPHA MOMANYI. It was therefore established beyond any doubt that the accused person was a police officer working with national police service attached to the dog section at the material time. This is an officer who was working in a public body as alleged.
  9. The next issue is whether it was proved that by the prosecution that the Appellant requested an advantage in the 1st, 2nd and 3rd count which he was acquitted for in the Trial Court under Section 215 of the Criminal Procedure Code. In the fourth count he is charged with receiving advantage. Benefit is defined in Section 2 (I) of the Act as follows: -

“benefit” means any gift, loan, fee, reward, appointment, service, favour, forbearance, promise, or other consideration or advantage.

  1. The essential ingredients of the offence are that the accused must have received a benefit as defined above, that it must have been received corruptly as an inducement to bring about some given results in a particular matter, that the benefit must not be legally due or payable.
  2. It was  established during the  the Complainant had been arrested for the offence of driving without a licence, without insurance and whether the Appellant had powers to make decisions on the case of PW 1 to forbear any charges or afford him any advantage. The complaint gave a clear narration of the events as to how he met the accused person and two others who all demanded the bribe of ksh 5000, and later on reduced it to 3. The 1st to 3rd counts collapsed because it was shown that the other officers were not arrested and the telephone communication was not produced.
  3. PW1  however went to the EACC where he was given the treated notes which were properly photocopied  and treated with the APQ powder. He denied colluding with EACC officers. PW 1 was the one who confirmed the Appellant’s voice in the voice recorder and there were two witnesses from the EACC who witnessed the exchange.

  1. The Appellant’s defence was that on the day in question, they were on patrol around Mishomoroni area and they found somebody smoking bhang onboard a motor cycle and upon searching him they found 20 rolls of cannabis sativa. As they counted the rolls, the suspect escaped. The Appellant denied communicating with the complainant on the phone; further the Court takes note that the said phone records were not produced to show that the Complainant communicated with the Appellant.
  2. According to the Appellant there was an occurrence book extract that showed that the Complainant had been arrested for smoking and being in possession of bhang.  The Appellant in cross examination admitted   that he did not have the inventory for the 20 rolls of cannabis they recovered from the Complainant. His own boss the OCPD testified that the OB entry in respect to the bhang was an after thought as it was made long after the arrest of the accused person.
  3. Under Count IV,  The charge of receiving a benefit was proved we have witnesses who witnessed the exchange, These are Rashid Kibet and Adan GURACHA .  After the receipt of the two notes, the accused person them  into his pockets.  when he was surrounded , the evidence shows  he threw the notes down and when pw8 picked them , he grabbed them , chewed and swallowed them. His hands and mouth  were swabbed and the tested positive for APQ Powder. The two notes had been photocopied and the inventory was produced in court. (for 3 notes. ) The said notes were however not produced as exhibits .
  4. This count Count 4 is connected to count 5, that of Concealing evidence contrary to Section 66(1) as read with section 66(2) of the Anti-Corruption and Economic Crime Act No. 3 of 2003, Section 66 of ACECA states that-

(1) no person shall -

(a) without justification or lawful excuse, obstruct or hinder, or assault, or threaten, a person acting under this Act.

(b) deceive or knowingly mislead the commission or a person acting under this Act.

(c) destroy, alter, conceal or remove documents, records or evidence that person believes, or has grounds to believe, may be relevant to an investigation or proceedings under this Act; or

(d) make false accusations to the commission or a person acting under this Act.

  1. Sub-Section 2 goes further to provide a penalty of Kshs. 500,000/- in default serve imprisonment term not exceeding 5 years or both. It is the prosecution  evidence that the Appellant was witnessed by not less than 4 police officers grabbing the money and stuffing it into his mouth. After which he drunk water and swallowed the said money; the evidence was destroyed but then his mouth was swabbed it was established that he had traces of APQ which was the substance used to treat the notes. The Appellant did not explain his conduct. I find that the Trial Court’s conclusion on this count was justified.
  2. The APPELLANT can not therefore  destroy the evidence then turn around and say the evidence was not produced.
  3. I believe the prosecution evidence that indeed  the appellant swallowed the exhibit as non other than his  then boss  Christopher Rotich, THE OCPD, Pw7  ,confirmed the same. At page 47  line 6 of the typed record of appeal ,  the record of appeal shows, “He then grabbed the money in my presence and put them in his mouth. He chewed and swallowed them,”….then line 9 , I saw one officer swabbing the mouth of the accused.
  4. The complainant and the 2 officers of the EACC were also present when   he swallowed the exhibits .These were Pw8 AND 10.There was no evidence of any grudge that would have made any of these officers, especially the OCPD who was not part of the sting operation frame the appellant.
  5. It is this drastic and desperate move of swallowing notes that made me believe that indeed the appellant was guilty and being a trained officer, he knew what to do when cornered.  The presence of the APQ  in his mouth corroborated the eye witness accounts.
  6. The purpose of this money was to stop him from taking any action against PW1 so it was a bribe.
  7. The record shows that the appellant then escaped from the station but was later on apprehended.  The court is satisfied that counts 4 and 5 were properly proved and the convictions are up held.

Issue D: Whether the sentence meted out on the Appellant was harsh and manifestly excessive in the circumstances and the Trial Court failed to take into consideration mitigating factors thereto

  1. The trial court sentenced  the Appellant ,in the fourth  charge   to pay a fine of KSH 200,000, and in default of which he would serve 12 months in jail.  In count 5 he was sentenced to pay a fine of KSH 20,000 and in default to serve six months in prison.
  2. I am not persuaded that the sentences meted by the trial court were excessive compared with the prescribed sentence of Kshs. 5,000,000/- or imprisonment for ten years can only be described as lenient but not excessive. The court did also take the circumstances  of the offences  and the mitigation into account.

Conclusion and Disposition

  1. The upshot is that I dismiss the appeal, on both the conviction and sentence  in both  Count 4 an 5. I shall not fault the Trial Court over its decision to convict being that the evidence adduced by the Prosecution on this account was proved beyond reasonable doubt.

IT IS SO ORDERED ACORDINGLY.

JUDGMENT DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……23rd January .…………DAY OF ……………………….……., 2025

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora                 Court Assistant;

MR Ngiri                        State Counsel;

The Appellant and his advocate MR Egunza

    KEPHA MOMANYI TENDERE VS The Republic KEPHA MOMANYI TENDERE VS The Republic