1. This appeal arises from the conviction and sentence in Eldoret Senior Resident Magistrates’ Criminal Case no. E658 of 2022 where the Appellant was charged with the offence of Cyber Harassment contrary to section 27(1) as read with section 27(2) of the Computer Misuse and Cybercrimes Act No. 5 of 2018. The particulars of the offence were that on 25/03/2022 at an unknown place within the Republic of Kenya, the appellant wilfully and intentionally passed offensive information, a bad photo of Bernard Kagia on his Facebook account, namely Ikev Ivooke with intent to provoke the said Bernard Kagia which deprived him peace.
2. He was also charged with another count of Cyber Harassment contrary to section 27(1)(c) of the Computer Misuse and Cybercrime Act 2018. The particulars of the offence were that on 26/03/2022 at an unknown place within Kenya, he posted on his Facebook Account, namely Ikev Ivooke offensive words ‘Malaya vs Esther’’ referring to the complainant Bernard Kagia and Esther, words which were meant to provoke the said Bernard Kagia.
3. The appellant pleaded not guilty and the matter proceeded to full hearing. The prosecution called 4 witnesses in support of its case whereas the appellant testified as the only witness.
Hearing at the trial court
4. PW1 was Bernard Kagia, the complainant. He testified that he is a driver based in Bahati and that on 25/03/2022, his wife told him that his daughter had a dental issue and so he proceeded to Nakuru where his wife and the child reside. By 4pm, he arrived in Nakuru but his wife prevented him from seeing his children and shouted at him, prompting members of the public to come closer. He then went back to Eldoret and saw a post on a Facebook account, namely Ikev Ivooke which contained a message referring to him and his wife Esther. In the said post, the appellant had said that he had a second wife and he reffered to the complainant as a prostitute. He then called his wife who told him that Ikev Ivooke had been instructed to abuse him on social media. He testified that the post was not true and that he knew the person who had posted it since this person had been offending him since 2012. He further testified that he and his wife had issues over extra marital affairs and that the appellant was one of the men she was having an affair with. Additionally, that the appellant had posted similar things in 2021 and had been summoned by the police.
5. PW2 was Patricia Itsindoli, a police officer attached to the forensic lab at DCI headquarters. She testified that she received an exhibit, namely Samsung Galaxy Phone Model IMEI 356835254527582 paired with sim 89254021 for the purpose of retrieving messages from mobile telephone numbers 0789206219 and 0708968699. That she retrieved 18 messages via WhatsApp which revealed the existence of a chat between the two numbers. She further testified that Esther Kagia owned the numbers. She prepared a report dated 25/04/2022 and handed it over to the Investigating Officer.
6. In cross examination, she testified that the Facebook post was made on 25/03/2022 and she contacted google but nothing was confirmed in her report.
7. PW3 was CPC Moses Okani, a liaison officer with Safaricom testified that the company received a request from the investigating officer to produce the details of two numbers. He produced the request as an exhibit and stated that the numbers were 0720961135 and 0721888335 which belonged to Kevin Kanja, Identity Card No. 22749987.
8. PW4 was PC Daniel Polo, the investigating officer. He testified that he received a complaint on 26/03/2022 from an advocate named Oduor on Cyber Harassment by Ikev Ivooke. He made a follow up and traced Esther Kagia, the wife of the complainant. He found out that on 25/03/2022, there was communication between her and the accused person. Referring to exhibit 1, he stated that there was a post on the appellants’ Facebook page where he put pictures of the complainant and his wife. Esther then recorded a statement and told the witness that she had requested the appellant to pull down the post. Additionally, that the said post had been sent to the Daily Post by Sydney Kutanyi.
9. The witness testified that he perused the number 0720961135 and got the details to be of Kevin Ndungu Kiriga. They traced him to Nairobi and he was arrested and the phones and sim cards retrieved. They also linked the Facebook account to mobile phone number 0720961135 owned by Kevin Ndungu Kiriga. He produced extracts from Facebook and the phone as exhibits.
10. In cross examination he testified that he did not obtain a search warrant to extract information. Further, that the post was made on 25/03/2022 and that the date 26/03/2022 was a typographical error.
11. Upon considering the evidence tendered in court and the testimonies of the witnesses, the trial court determined that there was no case to answer on count 2 and acquitted the appellant on that count. However, the court was satisfied that the appellant had a case to answer on count 1 and he was placed on his defence.
Defence evidence at the trial court
12. The appellant testified as DW1. It was his testimony that he knew the Investigating Officer and that he had sold him out. Further, that he once searched his phone when prophet David Owuor was a complainant. He went through the posts and it was David Owuor who was insulted and the investigating officer had threatened to kill his daughter if he did not stop insulting the prophet.
13. The witness stated that he was arrested in Kasarani and was sent to a room and his phones confiscated. He was then bundled in a car and driven to Eldoret. He was shown arrest warrants but no search warrants. He denied knowing the complainant or having met his wife physically. He only knew her through phone calls. He denied being a blogger or knowing the Facebook page of Ikev.
Judgment at trial court
14. Upon considering the testimonies of the witnesses and the evidence presented in court, the trial magistrate convicted the appellant of the offence of Cyber Harassment contrary to section 27(1) as read with Section 27(2) of the Computer Misuse and Cybercrime Act and under section 215 of the Criminal Procedure Code. Upon considering his mitigation, the trial court sentenced him to pay a fine of Kshs. 50,000/- in default to serve 6 months’ imprisonment.
15. Being aggrieved with the sentence and conviction, the appellant instituted the present appeal vide a Petition of Appeal dated 29/11/2023 premised on the following grounds;
a. The Learned Magistrate erred in law by making no finding to strike out the charges owing to a defective charge sheet. I was charged with cyber harassment contrary to section 22 (1) of the Computer Misuse and Cyber Crimes Act 2018 as read together with section 23 of the same Act. This was improper as the offense of cyber harassment is created under section 27(1) as read together with section 27(2) of the same Act.
b. The Learned Magistrate erred in law and in fact by making no finding to strike out a defective charge sheet that employed an alias, whose effect was to associate me with a Facebook account before the prosecution could prove that I was the owner and or operator of the said account. This was prejudicial to me before and during the trial.
c. The Learned Magistrate erred in law by substituting charges and convicting under section 27 (1) of the Computer Misuse and Cyber Crimes Act 2018 as read together with section 27(2) of the same Act instead of section 22 (1) as read together with section 23 of the Act as indicated by the prosecution on the charge sheet.
d. The Learned Magistrate erred in fact and in law by failing to present an analysis of the ingredients of the alleged offence as satisfied by the facts of the case. Further, the judgement did not clearly bring out the issues for determination, the law applicable to the issues and how the court exercised its mind in applying the facts to the law in reaching its determination.
e. The Learned Magistrate erred in law by admitting and relying on evidence obtained by means of an unreasonable and/or illegal search and seizure, being excerpts retrieved from the exhibit mobile phone and which had been confiscated to facilitate investigations without a legal search warrant contrary to Articles 31 and 50(4) of the Constitution of Kenya, section 118 of the Criminal Procedure Code and section 48(1) (b) of the Computer Misuse and Cyber Crimes Act 2018.
f. The Learned Magistrate erred in law by admitting and relying on evidence in form of subscribers' details from a service provider being Safaricom PLC, information which was obtained or procured only through a request letter and without a production order from any court of competent jurisdiction contrary to section 50(2) (b) of the Computer Misuse and Cyber Crimes Act 2018.
g. The Learned Magistrate erred in law by admitting photographic evidence being the report by the forensic officer from the DCI without the requisite certificate contrary to section 78(1) of the Evidence Act Cap 80, Laws of Kenya.
h. The Learned Magistrate erred in fact by failing to recognize that the evidence as presented by the data analyst from the service provider (Safaricom PLC) failed to establish a nexus between myself and the exhibit mobile phone. The liaison officer's report as presented in court only indicated subscriber's information in relation to the phone numbers and not their IMEI history, which would have identified all the devices from which the phone numbers had operated, including the exhibit device.
i. The Learned Magistrate erred in fact by failing to recognize that the evidence as presented by the forensic officer from DCI did not establish a nexus between myself and the exhibit mobile phone. The electronic images of WhatsApp chat extracted from the exhibit phone only display the name of one "Esther Kagia" and not myself. At no point in the forensic report is the device linked to any subscriber's information as relates to the two sim cards handed to the forensic officer.
j. The Learned Magistrate erred in law in not swearing the complainant's wife and relying on an unsworn statement that was not subjected to cross examination, an omission whose effect was occasioning and resulting in grave failure of justice to me.
k. The Learned magistrate erred in law by finding me guilty of an offence created under section 224 of the Computer Misuse and Cybercrimes Act 2018 which section is non-existent.
l. The Learned Magistrate erred by failing to correctly record the proceedings in court and coherently word the judgement in that the judgement was marred with repeated instances of grammatical errors, sentence structural mistakes and incoherence that made it difficult for me to comprehend the co-relation between the facts of the case and the applicable law.
Hearing of appeal
16. The parties prosecuted the appeal through written submissions. The appellant filed submissions dated 20/12/2024 that he drafted in person whereas in opposition to the appeal, the complainant filed submissions through the firm of Messrs Oduor Munyua & Company Advocates.
Appellants’ submissions
17. The appellant cited Sections 22(1) and 23 of the Cybercrime and Computer Misuse Act, urging that the headings of these two sections are ‘False Publications' and ‘Publication of False information' respectively. Further, that whereas Section 7 of Interpretation Act states that, “headings, marginal notes, tables and indexes "shall form no part of the enactment and shall be deemed to have been inserted for convenience of reference only.", pointing out that these headings, here and elsewhere, have been interpreted as the names or identities of offences created, defined and described therein.
18. The appellant submitted that the offence of ‘Cyber Harassment' is created under Section 27 and pointed out the particulars of the offence of count, urging that the particulars did not support any of the three possible offences. Further, that devoid of any term used in either sections 22 (1), 23, and 27, they were unhelpful in guiding the appellant on prosecution’s intent. The appellant cited Section 134 of Criminal Procedure Code, urging that count 1 fell short of the provisions of section 134 (a). That it combined three different offences into one by description and statutory provisions cited. He posited that if the Prosecution intended a joinder of counts, they should have followed Section 135(2) and set out description of each offence in separate paragraphs. The Prosecution intended one offence for Count 1 but from the charge sheet, it was and remains indeterminate whether that was the offence created under Section 22(1), section 23, or Section 27.
19. The appellant further submitted that the effect of this framing of the first count was an irregularity that he attempted, in vain, to bring to the attention of the trial court. That it was a duplicity made up of three distinct offences and it occasioned him grave miscarriage of justice. He submitted that his rights under Article 50 (2) (b) of the Constitution, the right to be informed of the charge with sufficient detail to answer it, was violated as he was unsure which, if not some or all, of the three unique offences he should defend himself from. This in turn limited his article 50(2) (k) right to adduce evidence and to challenge the evidence on record.
20. The appellant urged that the trial magistrate arbitrarily singled out cyber harassment out of the three offences, as the intended offence upon which he ‘amended’ the charge by quoting the relevant section 27(1), which action violated his rights article 50(2) (b) as read together with Section 138 of Criminal Procedure Code. He reiterated that the charge sheet was incurably defective and urged this court to apply the test for defective charge sheets in Benard Ombuna v Republic [2019] eKLR and set aside his conviction and sentence.
21. The appellant pointed out that the two pieces of evidence relied on by the court to wit; A forensic mobile phone report produced by prosecution witness Patricia Tsindoli from Directorate of Criminal Investigations and Registration/Subscriber details and IMEI history produced by prosecution witness Moses Ogani from Safaricom Limited. He cited Section 48 of Computer Misuse and Cybercrimes Act on search warrants and section 50 on production orders, urging that the mobile forensic report was produced and admitted without a search warrant just as the registration/subscriber details were admitted without a production order. He cited the case of Petition no 206 or 2018, Bloggers Association of Kenya (BAKE) v Attorney General & 3 others; Article 19 East Africa & another (Interested Parties) [2020] eKLR which was a petition challenging constitutionality of provisions of Computer Misuse and Cybercrimes Act and submitted that from the judgement, both search warrants and production orders are mandatory. Further, that the investigating officer had the time and resources to approach the trial court for a holding charge, arrest warrants and application opposing bail yet, from cross examination he boldly declared search warrants were unnecessary.
22. The appellant submitted that the blatant violation of the very legislation which created the offence under which he was convicted was committed by the investigating officer and other prosecution witnesses in retrieving and producing the two pieces of evidence. The evidence which violated the appellant's article 31 right to privacy, being fruit of a poisoned tree, ought to have been expunged from the court records by the trial court at the first instance. He emphasised that the mobile forensic report fell afoul of the Evidence Act as it was produced and admitted by the trial court without the requisite Certificate of Electronic Evidence contrary to Section 106 B of the Evidence Act. This was brought to the attention of the trial court but the magistrate ignored or dismissed the same. It is the appellants’ case that the forensic report was wholly inadmissible on this account.
23. The appellant submitted that the trial magistrate determined that the actual charge of count 1 was Cyber harassment, which is defined as ‘communicates directly or indirectly...’. It follows that the primary ingredient of this offence is communicating. From the particulars of the offence in the charge sheet, the appellant was accused of posting on Facebook. The prosecution therefore had to prove beyond reasonable doubt that the appellant posted the alleged information on Facebook, thereby communicating with the complainant. He urged that the prosecution relied on an exhibit mobile phone of Samsung make. They also relied on the mobile forensic report of the same device, as well as the subscriber/registration details report from Safaricom.
24. Additionally, that when the maker of the forensic report, one Patricia Tsindoli was cross examined, she was asked how she could ascertain the author of a Facebook post and responded that they emailed Google (the company) for such and further, that she has done the same in this particular matter but was yet to receive any response. She had no evidence that the appellant authored the alleged Facebook post. He urged that the mobile forensic report had no evidence that linked the exhibit mobile phone to the him. He additionally pointed out that part of the over 58-page document were at least twenty-two screenshots of WhatsApp chats and invited the court take Judicial notice that WhatsApp accounts were created by mobile phone numbers, and that there were no appellant phone numbers [0720961135 or 0721888335) in any of the screenshots.
25. On the subscriber/registration details report produced by one Moses Ogani of Safaricom, the appellant urged the court to note that in his statement dated August 30,2022 he claimed
“On 26th August,2022 Safaricom Pic was served with a request letter from Uasin Gishu County REF.CID/CIB/SEC/1 M/B/VOL.,111/720 dated 2" August,2022 Requiring Safaricom Pic to provide Registration details and IMEI History in respect of mobile phone numbers 0720961135 and 0721888335. We complied with the request and provided computer print outs of the IMEI History and Registration Details of the said numbers Today the 30 “day of August “
26. Further, that in his Electronic Evidence certificate dated August 30,2022 he further stated;
“I Moses Ogani of Safaricom PLC based at Safaricom headquarters, do hereby certify that on 26th day of August 2022, I printed from our computer system the following:
Registration details and IMEI History for MSISDN No. 0720961135 and 0721888335 dated 10.12.2019..."
27. He urged that despite references to 'IMEI History', no such report was produced in court or served upon the appellant. Only the registration details of the appellant's two numbers were provided. The registration details report only supported what was not controverted, that is, that the mobile numbers were active and they belonged to the appellant. There was no evidence from the registration details report nor from Moses Ogani that the two numbers were ever linked with the exhibit mobile phone or involved at all in the authorship of the alleged Facebook post.
28. The appellant submitted that the complainant, on cross-examination and on his statement alleged to have met the appellant over the Facebook posts where the appellant apologized. He urged the court to note that he perjured himself and the same was exposed when he alleged to have met the appellant at ‘Runda Chief's camp' a non-existent location as there is no chief's camp in Reserved United Nations Development Area (Runda) area of Nairobi. He maintained that the witness was manifestly unreliable.
29. The appellant concluded by submitting that the prosecution failed to prove its case beyond reasonable doubt and urged this court to adopt the reasoning of Justice John M. Mativo in Elizabeth Waithiegeni Gatimu v Republic (Criminal Appeal 50 of 2012) [2015] KEHC 1136 (KLR) :
‘‘I give on accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of on accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right.
An accused person is the most favourite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea..."
30. The Appellant faulted the courts’ application of the law in rendering the judgement. He stated that the judgement, or at least the recording of the same, was marred with so many errors that it was impossible to follow along. Further, that absence of cohesion in the judgement, the relevant facts which could have aided his defence were either ignored or unjustly omitted to his detriment. He pointed out the contents of page 25 of the judgement and posed the question as to how the quoted statement factored in the fact that forensic expert, Patricia Tsindoli, on cross-examination, stated that authorship of Facebook posts was only established by Google and the same had yet to be done at the point of Cross examination, or the fact that Safaricom's Liaison Officer, Moses Ogani had no evidence on him linking the appellant to the exhibit mobile phone. He additionally asked whether the statement was in support of or against the appellant.
31. The appellant urged that having concluded that the relevant offence as per count 1 was Cyber harassment contrary to sections 27(1) and 27(2),the trial magistrate did not even attempt to break down the offence into its ingredients nor apply the relevant facts to these ingredients demonstrating his thought process at arriving at the conviction. He reiterated that the poorly recorded proceedings and judgement, as well as absence of application of facts to the law mean that he was denied a fair trial. He urged the court to set aside the sentence and conviction and he be refunded the fine.
Complainant’s Submissions
32. Counsel for the complainant cited Section 382 of the Criminal Procedure Code and the cases of Alfayo Gombe Okello v. Republic [2010] eKLR Criminal Appeal No. 203 of 2009 and Frank Ochieng Otieno v Republic (Kisumu) Criminal Appeal No. 363 of 2011, intimating that he sought to rely on the same with regards to the issue of a defective charge. Further, that the question as to what constitutes a defective charge sheet was spelt out in the case of Yosef & Another vs Uganda (1960) 1 E.A. 236. He urged that it is clear that for the conviction to be quashed on the ground of defective charge sheet, the charge sheet has to be incurable in the sense that it prejudices the accused to the extent of him or her unable to make a defence out of it. He posited that the ground of a defective charge sheet does not hold water as the said error of sections was never raised during trial by the appellant and the appellant participated vigorously in the trial process having cross examined witnesses. More so, the defect was cured during the pronunciation of the judgement as the trial magistrate convicted the appellant under the correct section being section 27(1) as read with section 27 (2) of the Computer Misuse and Cybercrime Act 2018, having the requisite jurisdiction to do so as it was held in the case of Frank Ochieng Otieno v Republic(Kisumu) Criminal Appeal No. 363 of 2011 (ur).
33. Learned Counsel cited section 27 of the Computer Misuse and Cyber Crimes Act on Cyber harassment urging that on the ingredients of the offence, the appellant using his Facebook page published defamatory' statements against the complainant which in their natural and ordinary meaning mean that the compliant; is not a good husband, responsible father, does not give his wife conjugal rights, is a coward, has no integrity among other names which affected the complainants’ moral standing with the society. Further, that it caused grave damage, distress and embarrassment among family, friends, colleagues and peers which damage is irreparable. He urged that the nexus between the appellant with the Facebook page used to defame the complainant was established beyond reasonable doubt as the evidence was produced by the forensic officer who confirmed that the excerpts showing the defamatory statements on the complaint was retrieved from the exhibit phone which was confiscated from the appellant to facilitate the investigations. Additionally, that the appellant was equally found liable in Eldoret CMCC.NO El77 of 2023 to compensate the complainant to a tune of Kshs. 6,000,000/= for posting defamatory statements against the complainant, matters which there have been no appeal referred to disassociate the appellant with the name IKEV IVOOKE. It is for these reasons, counsel urged, that the charge preferred against the appellant was proved beyond reasonable doubt.
34. In opposition to the ground that the magistrate erred in law by admitting the evidence obtained by means of the unreasonable or illegal search and seizure, being the excerpts retrieved from the exhibit mobile phone, counsel relied on section 20 of the Police Act, which provides for the power to search without warrant in special circumstances. Additionally, he urged that looking at the circumstances surrounding the nature of the charge, the process of obtaining a search warrant from the court would have subsequently prejudice such investigation as the evidence would have been likely to be interfered with and even deleted.
35. On the admissibility of the photographic evidence, counsel cited the case of Erick Indimuli Siaya vs. Republic [2016] eKLR and the case State v Nelson Otieno Odira & another [2014] eKLR, submitting that the forensic officer from the DCI working together with the Director of Public Prosecution and having been delegated with investigating the said photograph, he was the right person to produce the report. Further, that the appellant cross examined the officer during trial which makes the process fair as per the law. He maintained that the report produced by the forensic officer was admissible.
36. Counsel urged that the appellant’s right to fair trial was observed and adhered to fully and the conviction was fair and in accordance with the law. He urged the court to uphold the conviction and sentence.
Determination
37. I have read the impugned judgement and without going into much ado about all the issues herein raised, it is my finding the said judgement is not only incoherent but it is also unintelligible such that it is not been possible for the court despite its best efforts to understand and appreciate the reasoning and purport of the Hon Magistrate from the said judgement that led to a finding of guilt and subsequent conviction of the accused.
38. It is unfortunate that the court has had to reach this conclusion but it is necessary that this fact is stated. This is because a judgement is the final rendition of the court after it has heard the evidence of all the parties. It always the judgement of a court that forms the basis of an appeal and it is from the judgement that grounds of appeal are derived from. It is also the judgement that the appellate court considers to enable it reach a just determination of the Appeal before it.
39. If the court is not able to understand and appreciate the judgement, then not only is it not able to justly render itself but it also means that the Appellant too was not given a just and fair opportunity to understand the reasons for the conviction and also to prepare their appeal. In light of my finding on the said judgement, I believe it is necessary to restate what a logical well-structured well-reasoned judgement with sufficient detail and coherence ought to look like
40. Without purporting by any means to be exact and/or exhaustive on what a such a judgement should show, at the very bare minimum, it ought to exhibit the following;
(a) The charge, and where an accused is charged in more than one count, the charges in each count together with all the particulars thereof
(b) A summary of the testimonies of all the prosecution witnesses together with any other evidence relied upon - for example the exhibits as marked-
(c) The finding of the court on case to answer, and specifically on which counts where more than one count is proffered, the counts wherein an accused is acquitted for no case to answer.
(d) The counts wherein the court finds that an accused has a case to answer and for which he has been put on his defence
(e) A summary of the testimonies of all the defence witnesses together with any other evidence relied upon - for example the exhibits as marked-
(f) At the conclusion of the above outline on the evidence, the issues drawn for determination.
(g) The analysis of the case showing the relevant statutory and case law applied to the facts of the case in a bid to determine whether proof has been attained by the prosecution in its case against the accused to the required standard of beyond reasonable doubt.
(h) The court’s finding on each of the issues drawn
(i) The court’s determination whether acquittal or a conviction
(j) In the said determination, the court ought to specifically state the charge and where there is more than one count, the count for which acquittal or conviction as the case maybe is with respect to
(k) Date and place of delivery and of course signature of the Trial Magistrate
41. It should be noted that the fact that the incoherency of the said judgement is one of the Appellant’s grounds of appeal to wit;
The Learned Magistrate erred by failing to correctly record the proceedings in court and coherently word the judgement in that the judgement was marred with repeated instances of grammatical errors, sentence structural mistakes and incohe
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2. He was also charged with another count of Cyber Harassment contrary to section 27(1)(c) of the Computer Misuse and Cybercrime Act 2018. The particulars of the offence were that on 26/03/2022 at an unknown place within Kenya, he posted on his Facebook Account, namely Ikev Ivooke offensive words ‘Malaya vs Esther’’ referring to the complainant Bernard Kagia and Esther, words which were meant to provoke the said Bernard Kagia.
3. The appellant pleaded not guilty and the matter proceeded to full hearing. The prosecution called 4 witnesses in support of its case whereas the appellant testified as the only witness.
Hearing at the trial court
4. PW1 was Bernard Kagia, the complainant. He testified that he is a driver based in Bahati and that on 25/03/2022, his wife told him that his daughter had a dental issue and so he proceeded to Nakuru where his wife and the child reside. By 4pm, he arrived in Nakuru but his wife prevented him from seeing his children and shouted at him, prompting members of the public to come closer. He then went back to Eldoret and saw a post on a Facebook account, namely Ikev Ivooke which contained a message referring to him and his wife Esther. In the said post, the appellant had said that he had a second wife and he reffered to the complainant as a prostitute. He then called his wife who told him that Ikev Ivooke had been instructed to abuse him on social media. He testified that the post was not true and that he knew the person who had posted it since this person had been offending him since 2012. He further testified that he and his wife had issues over extra marital affairs and that the appellant was one of the men she was having an affair with. Additionally, that the appellant had posted similar things in 2021 and had been summoned by the police.
5. PW2 was Patricia Itsindoli, a police officer attached to the forensic lab at DCI headquarters. She testified that she received an exhibit, namely Samsung Galaxy Phone Model IMEI 356835254527582 paired with sim 89254021 for the purpose of retrieving messages from mobile telephone numbers 0789206219 and 0708968699. That she retrieved 18 messages via WhatsApp which revealed the existence of a chat between the two numbers. She further testified that Esther Kagia owned the numbers. She prepared a report dated 25/04/2022 and handed it over to the Investigating Officer.
6. In cross examination, she testified that the Facebook post was made on 25/03/2022 and she contacted google but nothing was confirmed in her report.
7. PW3 was CPC Moses Okani, a liaison officer with Safaricom testified that the company received a request from the investigating officer to produce the details of two numbers. He produced the request as an exhibit and stated that the numbers were 0720961135 and 0721888335 which belonged to Kevin Kanja, Identity Card No. 22749987.
8. PW4 was PC Daniel Polo, the investigating officer. He testified that he received a complaint on 26/03/2022 from an advocate named Oduor on Cyber Harassment by Ikev Ivooke. He made a follow up and traced Esther Kagia, the wife of the complainant. He found out that on 25/03/2022, there was communication between her and the accused person. Referring to exhibit 1, he stated that there was a post on the appellants’ Facebook page where he put pictures of the complainant and his wife. Esther then recorded a statement and told the witness that she had requested the appellant to pull down the post. Additionally, that the said post had been sent to the Daily Post by Sydney Kutanyi.
9. The witness testified that he perused the number 0720961135 and got the details to be of Kevin Ndungu Kiriga. They traced him to Nairobi and he was arrested and the phones and sim cards retrieved. They also linked the Facebook account to mobile phone number 0720961135 owned by Kevin Ndungu Kiriga. He produced extracts from Facebook and the phone as exhibits.
10. In cross examination he testified that he did not obtain a search warrant to extract information. Further, that the post was made on 25/03/2022 and that the date 26/03/2022 was a typographical error.
11. Upon considering the evidence tendered in court and the testimonies of the witnesses, the trial court determined that there was no case to answer on count 2 and acquitted the appellant on that count. However, the court was satisfied that the appellant had a case to answer on count 1 and he was placed on his defence.
Defence evidence at the trial court
12. The appellant testified as DW1. It was his testimony that he knew the Investigating Officer and that he had sold him out. Further, that he once searched his phone when prophet David Owuor was a complainant. He went through the posts and it was David Owuor who was insulted and the investigating officer had threatened to kill his daughter if he did not stop insulting the prophet.
13. The witness stated that he was arrested in Kasarani and was sent to a room and his phones confiscated. He was then bundled in a car and driven to Eldoret. He was shown arrest warrants but no search warrants. He denied knowing the complainant or having met his wife physically. He only knew her through phone calls. He denied being a blogger or knowing the Facebook page of Ikev.
Judgment at trial court
14. Upon considering the testimonies of the witnesses and the evidence presented in court, the trial magistrate convicted the appellant of the offence of Cyber Harassment contrary to section 27(1) as read with Section 27(2) of the Computer Misuse and Cybercrime Act and under section 215 of the Criminal Procedure Code. Upon considering his mitigation, the trial court sentenced him to pay a fine of Kshs. 50,000/- in default to serve 6 months’ imprisonment.
15. Being aggrieved with the sentence and conviction, the appellant instituted the present appeal vide a Petition of Appeal dated 29/11/2023 premised on the following grounds;
a. The Learned Magistrate erred in law by making no finding to strike out the charges owing to a defective charge sheet. I was charged with cyber harassment contrary to section 22 (1) of the Computer Misuse and Cyber Crimes Act 2018 as read together with section 23 of the same Act. This was improper as the offense of cyber harassment is created under section 27(1) as read together with section 27(2) of the same Act.
b. The Learned Magistrate erred in law and in fact by making no finding to strike out a defective charge sheet that employed an alias, whose effect was to associate me with a Facebook account before the prosecution could prove that I was the owner and or operator of the said account. This was prejudicial to me before and during the trial.
c. The Learned Magistrate erred in law by substituting charges and convicting under section 27 (1) of the Computer Misuse and Cyber Crimes Act 2018 as read together with section 27(2) of the same Act instead of section 22 (1) as read together with section 23 of the Act as indicated by the prosecution on the charge sheet.
d. The Learned Magistrate erred in fact and in law by failing to present an analysis of the ingredients of the alleged offence as satisfied by the facts of the case. Further, the judgement did not clearly bring out the issues for determination, the law applicable to the issues and how the court exercised its mind in applying the facts to the law in reaching its determination.
e. The Learned Magistrate erred in law by admitting and relying on evidence obtained by means of an unreasonable and/or illegal search and seizure, being excerpts retrieved from the exhibit mobile phone and which had been confiscated to facilitate investigations without a legal search warrant contrary to Articles 31 and 50(4) of the Constitution of Kenya, section 118 of the Criminal Procedure Code and section 48(1) (b) of the Computer Misuse and Cyber Crimes Act 2018.
f. The Learned Magistrate erred in law by admitting and relying on evidence in form of subscribers' details from a service provider being Safaricom PLC, information which was obtained or procured only through a request letter and without a production order from any court of competent jurisdiction contrary to section 50(2) (b) of the Computer Misuse and Cyber Crimes Act 2018.
g. The Learned Magistrate erred in law by admitting photographic evidence being the report by the forensic officer from the DCI without the requisite certificate contrary to section 78(1) of the Evidence Act Cap 80, Laws of Kenya.
h. The Learned Magistrate erred in fact by failing to recognize that the evidence as presented by the data analyst from the service provider (Safaricom PLC) failed to establish a nexus between myself and the exhibit mobile phone. The liaison officer's report as presented in court only indicated subscriber's information in relation to the phone numbers and not their IMEI history, which would have identified all the devices from which the phone numbers had operated, including the exhibit device.
i. The Learned Magistrate erred in fact by failing to recognize that the evidence as presented by the forensic officer from DCI did not establish a nexus between myself and the exhibit mobile phone. The electronic images of WhatsApp chat extracted from the exhibit phone only display the name of one "Esther Kagia" and not myself. At no point in the forensic report is the device linked to any subscriber's information as relates to the two sim cards handed to the forensic officer.
j. The Learned Magistrate erred in law in not swearing the complainant's wife and relying on an unsworn statement that was not subjected to cross examination, an omission whose effect was occasioning and resulting in grave failure of justice to me.
k. The Learned magistrate erred in law by finding me guilty of an offence created under section 224 of the Computer Misuse and Cybercrimes Act 2018 which section is non-existent.
l. The Learned Magistrate erred by failing to correctly record the proceedings in court and coherently word the judgement in that the judgement was marred with repeated instances of grammatical errors, sentence structural mistakes and incoherence that made it difficult for me to comprehend the co-relation between the facts of the case and the applicable law.
Hearing of appeal
16. The parties prosecuted the appeal through written submissions. The appellant filed submissions dated 20/12/2024 that he drafted in person whereas in opposition to the appeal, the complainant filed submissions through the firm of Messrs Oduor Munyua & Company Advocates.
Appellants’ submissions
17. The appellant cited Sections 22(1) and 23 of the Cybercrime and Computer Misuse Act, urging that the headings of these two sections are ‘False Publications' and ‘Publication of False information' respectively. Further, that whereas Section 7 of Interpretation Act states that, “headings, marginal notes, tables and indexes "shall form no part of the enactment and shall be deemed to have been inserted for convenience of reference only.", pointing out that these headings, here and elsewhere, have been interpreted as the names or identities of offences created, defined and described therein.
18. The appellant submitted that the offence of ‘Cyber Harassment' is created under Section 27 and pointed out the particulars of the offence of count, urging that the particulars did not support any of the three possible offences. Further, that devoid of any term used in either sections 22 (1), 23, and 27, they were unhelpful in guiding the appellant on prosecution’s intent. The appellant cited Section 134 of Criminal Procedure Code, urging that count 1 fell short of the provisions of section 134 (a). That it combined three different offences into one by description and statutory provisions cited. He posited that if the Prosecution intended a joinder of counts, they should have followed Section 135(2) and set out description of each offence in separate paragraphs. The Prosecution intended one offence for Count 1 but from the charge sheet, it was and remains indeterminate whether that was the offence created under Section 22(1), section 23, or Section 27.
19. The appellant further submitted that the effect of this framing of the first count was an irregularity that he attempted, in vain, to bring to the attention of the trial court. That it was a duplicity made up of three distinct offences and it occasioned him grave miscarriage of justice. He submitted that his rights under Article 50 (2) (b) of the Constitution, the right to be informed of the charge with sufficient detail to answer it, was violated as he was unsure which, if not some or all, of the three unique offences he should defend himself from. This in turn limited his article 50(2) (k) right to adduce evidence and to challenge the evidence on record.
20. The appellant urged that the trial magistrate arbitrarily singled out cyber harassment out of the three offences, as the intended offence upon which he ‘amended’ the charge by quoting the relevant section 27(1), which action violated his rights article 50(2) (b) as read together with Section 138 of Criminal Procedure Code. He reiterated that the charge sheet was incurably defective and urged this court to apply the test for defective charge sheets in Benard Ombuna v Republic [2019] eKLR and set aside his conviction and sentence.
21. The appellant pointed out that the two pieces of evidence relied on by the court to wit; A forensic mobile phone report produced by prosecution witness Patricia Tsindoli from Directorate of Criminal Investigations and Registration/Subscriber details and IMEI history produced by prosecution witness Moses Ogani from Safaricom Limited. He cited Section 48 of Computer Misuse and Cybercrimes Act on search warrants and section 50 on production orders, urging that the mobile forensic report was produced and admitted without a search warrant just as the registration/subscriber details were admitted without a production order. He cited the case of Petition no 206 or 2018, Bloggers Association of Kenya (BAKE) v Attorney General & 3 others; Article 19 East Africa & another (Interested Parties) [2020] eKLR which was a petition challenging constitutionality of provisions of Computer Misuse and Cybercrimes Act and submitted that from the judgement, both search warrants and production orders are mandatory. Further, that the investigating officer had the time and resources to approach the trial court for a holding charge, arrest warrants and application opposing bail yet, from cross examination he boldly declared search warrants were unnecessary.
22. The appellant submitted that the blatant violation of the very legislation which created the offence under which he was convicted was committed by the investigating officer and other prosecution witnesses in retrieving and producing the two pieces of evidence. The evidence which violated the appellant's article 31 right to privacy, being fruit of a poisoned tree, ought to have been expunged from the court records by the trial court at the first instance. He emphasised that the mobile forensic report fell afoul of the Evidence Act as it was produced and admitted by the trial court without the requisite Certificate of Electronic Evidence contrary to Section 106 B of the Evidence Act. This was brought to the attention of the trial court but the magistrate ignored or dismissed the same. It is the appellants’ case that the forensic report was wholly inadmissible on this account.
23. The appellant submitted that the trial magistrate determined that the actual charge of count 1 was Cyber harassment, which is defined as ‘communicates directly or indirectly...’. It follows that the primary ingredient of this offence is communicating. From the particulars of the offence in the charge sheet, the appellant was accused of posting on Facebook. The prosecution therefore had to prove beyond reasonable doubt that the appellant posted the alleged information on Facebook, thereby communicating with the complainant. He urged that the prosecution relied on an exhibit mobile phone of Samsung make. They also relied on the mobile forensic report of the same device, as well as the subscriber/registration details report from Safaricom.
24. Additionally, that when the maker of the forensic report, one Patricia Tsindoli was cross examined, she was asked how she could ascertain the author of a Facebook post and responded that they emailed Google (the company) for such and further, that she has done the same in this particular matter but was yet to receive any response. She had no evidence that the appellant authored the alleged Facebook post. He urged that the mobile forensic report had no evidence that linked the exhibit mobile phone to the him. He additionally pointed out that part of the over 58-page document were at least twenty-two screenshots of WhatsApp chats and invited the court take Judicial notice that WhatsApp accounts were created by mobile phone numbers, and that there were no appellant phone numbers [0720961135 or 0721888335) in any of the screenshots.
25. On the subscriber/registration details report produced by one Moses Ogani of Safaricom, the appellant urged the court to note that in his statement dated August 30,2022 he claimed
“On 26th August,2022 Safaricom Pic was served with a request letter from Uasin Gishu County REF.CID/CIB/SEC/1 M/B/VOL.,111/720 dated 2" August,2022 Requiring Safaricom Pic to provide Registration details and IMEI History in respect of mobile phone numbers 0720961135 and 0721888335. We complied with the request and provided computer print outs of the IMEI History and Registration Details of the said numbers Today the 30 “day of August “
26. Further, that in his Electronic Evidence certificate dated August 30,2022 he further stated;
“I Moses Ogani of Safaricom PLC based at Safaricom headquarters, do hereby certify that on 26th day of August 2022, I printed from our computer system the following:
Registration details and IMEI History for MSISDN No. 0720961135 and 0721888335 dated 10.12.2019..."
27. He urged that despite references to 'IMEI History', no such report was produced in court or served upon the appellant. Only the registration details of the appellant's two numbers were provided. The registration details report only supported what was not controverted, that is, that the mobile numbers were active and they belonged to the appellant. There was no evidence from the registration details report nor from Moses Ogani that the two numbers were ever linked with the exhibit mobile phone or involved at all in the authorship of the alleged Facebook post.
28. The appellant submitted that the complainant, on cross-examination and on his statement alleged to have met the appellant over the Facebook posts where the appellant apologized. He urged the court to note that he perjured himself and the same was exposed when he alleged to have met the appellant at ‘Runda Chief's camp' a non-existent location as there is no chief's camp in Reserved United Nations Development Area (Runda) area of Nairobi. He maintained that the witness was manifestly unreliable.
29. The appellant concluded by submitting that the prosecution failed to prove its case beyond reasonable doubt and urged this court to adopt the reasoning of Justice John M. Mativo in Elizabeth Waithiegeni Gatimu v Republic (Criminal Appeal 50 of 2012) [2015] KEHC 1136 (KLR) :
‘‘I give on accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of on accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right.
An accused person is the most favourite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea..."
30. The Appellant faulted the courts’ application of the law in rendering the judgement. He stated that the judgement, or at least the recording of the same, was marred with so many errors that it was impossible to follow along. Further, that absence of cohesion in the judgement, the relevant facts which could have aided his defence were either ignored or unjustly omitted to his detriment. He pointed out the contents of page 25 of the judgement and posed the question as to how the quoted statement factored in the fact that forensic expert, Patricia Tsindoli, on cross-examination, stated that authorship of Facebook posts was only established by Google and the same had yet to be done at the point of Cross examination, or the fact that Safaricom's Liaison Officer, Moses Ogani had no evidence on him linking the appellant to the exhibit mobile phone. He additionally asked whether the statement was in support of or against the appellant.
31. The appellant urged that having concluded that the relevant offence as per count 1 was Cyber harassment contrary to sections 27(1) and 27(2),the trial magistrate did not even attempt to break down the offence into its ingredients nor apply the relevant facts to these ingredients demonstrating his thought process at arriving at the conviction. He reiterated that the poorly recorded proceedings and judgement, as well as absence of application of facts to the law mean that he was denied a fair trial. He urged the court to set aside the sentence and conviction and he be refunded the fine.
Complainant’s Submissions
32. Counsel for the complainant cited Section 382 of the Criminal Procedure Code and the cases of Alfayo Gombe Okello v. Republic [2010] eKLR Criminal Appeal No. 203 of 2009 and Frank Ochieng Otieno v Republic (Kisumu) Criminal Appeal No. 363 of 2011, intimating that he sought to rely on the same with regards to the issue of a defective charge. Further, that the question as to what constitutes a defective charge sheet was spelt out in the case of Yosef & Another vs Uganda (1960) 1 E.A. 236. He urged that it is clear that for the conviction to be quashed on the ground of defective charge sheet, the charge sheet has to be incurable in the sense that it prejudices the accused to the extent of him or her unable to make a defence out of it. He posited that the ground of a defective charge sheet does not hold water as the said error of sections was never raised during trial by the appellant and the appellant participated vigorously in the trial process having cross examined witnesses. More so, the defect was cured during the pronunciation of the judgement as the trial magistrate convicted the appellant under the correct section being section 27(1) as read with section 27 (2) of the Computer Misuse and Cybercrime Act 2018, having the requisite jurisdiction to do so as it was held in the case of Frank Ochieng Otieno v Republic(Kisumu) Criminal Appeal No. 363 of 2011 (ur).
33. Learned Counsel cited section 27 of the Computer Misuse and Cyber Crimes Act on Cyber harassment urging that on the ingredients of the offence, the appellant using his Facebook page published defamatory' statements against the complainant which in their natural and ordinary meaning mean that the compliant; is not a good husband, responsible father, does not give his wife conjugal rights, is a coward, has no integrity among other names which affected the complainants’ moral standing with the society. Further, that it caused grave damage, distress and embarrassment among family, friends, colleagues and peers which damage is irreparable. He urged that the nexus between the appellant with the Facebook page used to defame the complainant was established beyond reasonable doubt as the evidence was produced by the forensic officer who confirmed that the excerpts showing the defamatory statements on the complaint was retrieved from the exhibit phone which was confiscated from the appellant to facilitate the investigations. Additionally, that the appellant was equally found liable in Eldoret CMCC.NO El77 of 2023 to compensate the complainant to a tune of Kshs. 6,000,000/= for posting defamatory statements against the complainant, matters which there have been no appeal referred to disassociate the appellant with the name IKEV IVOOKE. It is for these reasons, counsel urged, that the charge preferred against the appellant was proved beyond reasonable doubt.
34. In opposition to the ground that the magistrate erred in law by admitting the evidence obtained by means of the unreasonable or illegal search and seizure, being the excerpts retrieved from the exhibit mobile phone, counsel relied on section 20 of the Police Act, which provides for the power to search without warrant in special circumstances. Additionally, he urged that looking at the circumstances surrounding the nature of the charge, the process of obtaining a search warrant from the court would have subsequently prejudice such investigation as the evidence would have been likely to be interfered with and even deleted.
35. On the admissibility of the photographic evidence, counsel cited the case of Erick Indimuli Siaya vs. Republic [2016] eKLR and the case State v Nelson Otieno Odira & another [2014] eKLR, submitting that the forensic officer from the DCI working together with the Director of Public Prosecution and having been delegated with investigating the said photograph, he was the right person to produce the report. Further, that the appellant cross examined the officer during trial which makes the process fair as per the law. He maintained that the report produced by the forensic officer was admissible.
36. Counsel urged that the appellant’s right to fair trial was observed and adhered to fully and the conviction was fair and in accordance with the law. He urged the court to uphold the conviction and sentence.
Determination
37. I have read the impugned judgement and without going into much ado about all the issues herein raised, it is my finding the said judgement is not only incoherent but it is also unintelligible such that it is not been possible for the court despite its best efforts to understand and appreciate the reasoning and purport of the Hon Magistrate from the said judgement that led to a finding of guilt and subsequent conviction of the accused.
38. It is unfortunate that the court has had to reach this conclusion but it is necessary that this fact is stated. This is because a judgement is the final rendition of the court after it has heard the evidence of all the parties. It always the judgement of a court that forms the basis of an appeal and it is from the judgement that grounds of appeal are derived from. It is also the judgement that the appellate court considers to enable it reach a just determination of the Appeal before it.
39. If the court is not able to understand and appreciate the judgement, then not only is it not able to justly render itself but it also means that the Appellant too was not given a just and fair opportunity to understand the reasons for the conviction and also to prepare their appeal. In light of my finding on the said judgement, I believe it is necessary to restate what a logical well-structured well-reasoned judgement with sufficient detail and coherence ought to look like
40. Without purporting by any means to be exact and/or exhaustive on what a such a judgement should show, at the very bare minimum, it ought to exhibit the following;
(a) The charge, and where an accused is charged in more than one count, the charges in each count together with all the particulars thereof
(b) A summary of the testimonies of all the prosecution witnesses together with any other evidence relied upon - for example the exhibits as marked-
(c) The finding of the court on case to answer, and specifically on which counts where more than one count is proffered, the counts wherein an accused is acquitted for no case to answer.
(d) The counts wherein the court finds that an accused has a case to answer and for which he has been put on his defence
(e) A summary of the testimonies of all the defence witnesses together with any other evidence relied upon - for example the exhibits as marked-
(f) At the conclusion of the above outline on the evidence, the issues drawn for determination.
(g) The analysis of the case showing the relevant statutory and case law applied to the facts of the case in a bid to determine whether proof has been attained by the prosecution in its case against the accused to the required standard of beyond reasonable doubt.
(h) The court’s finding on each of the issues drawn
(i) The court’s determination whether acquittal or a conviction
(j) In the said determination, the court ought to specifically state the charge and where there is more than one count, the count for which acquittal or conviction as the case maybe is with respect to
(k) Date and place of delivery and of course signature of the Trial Magistrate
41. It should be noted that the fact that the incoherency of the said judgement is one of the Appellant’s grounds of appeal to wit;
The Learned Magistrate erred by failing to correctly record the proceedings in court and coherently word the judgement in that the judgement was marred with repeated instances of grammatical errors, sentence structural mistakes and incohe
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