'1. This appeal arises from the conviction and sentence delivered in November 2024 by the Senior Resident Magistrate in Nyamira Criminal Case No. E1039 of 2021. In that prosecution, the Appellant, Momanyi Herbert Mobisa, was jointly charged with two others, Onyancha Samuel Mongare alias William Mosonik and Beatrice Chepkorir, with the offences of Conspiracy to effect an unlawful purpose, contrary to section 395(1)(b) as read with section 395(8) of the Penal Code, and Stealing, contrary to sections 268(1), 268(2) and 275 of the Penal Code.
2. At the close of the prosecution case, the 2nd and 3rd accused were acquitted under section 210 of the Criminal Procedure Code, but the Appellant was convicted and on 07th November 2024 ordered to restitute KES. 477,050 to the estate of the deceased and in default serve two years’ imprisonment on Count 1 and three years on Count 1 consecutively.
3. Aggrieved by the conviction and sentence, the Appellant filed a Petition of Appeal dated 10th January 2025 and Supplementary Grounds of appeal dated 16th September 2025 that:
1) That the learned trial magistrate erred in law and fact in holding that the prosecution had proved its case beyond reasonable doubt when the evidence on record was insufficient, contradictory, and inconclusive.
2) That the trial court erred in relying on suspicion, assumptions, and inference rather than proved facts linking the appellant to the alleged unlawful transactions.
3) That the learned magistrate failed to appreciate that no evidence was produced to show that any funds were ever transferred into an account belonging to, operated by, or otherwise controlled by the appellant.
4) That the trial court erred in accepting the investigating officer’s assertion that certain bank accounts were “linked” to the appellant when no documentary evidence, bank testimony, or account-holder evidence was produced to establish such linkage.
5) That the trial court failed to reconcile material inconsistencies and contradictions in the prosecution’s evidence, including the discrepancy between the dates of the alleged offences and the deceased’s documented date of death.
6) That the learned magistrate erred in law and fact by disregarding or inadequately considering the appellant’s sworn defence, including uncontested evidence that he deposited funds into the deceased’s account in the course of legitimate business dealings.
7) That the learned magistrate misapplied the principles governing circumstantial evidence by finding that the evidence formed a complete chain pointing exclusively to the appellant while several reasonable hypotheses inconsistent with guilt were not excluded.
8) That the trial court erred in shifting the burden of proof onto the appellant, contrary to the standard established in Woolmington v DPP and applied in Kenyan jurisprudence, by drawing adverse inferences from the appellant’s inability to explain matters that were never proved by the prosecution.
9) That the trial court’s findings on conspiracy were unsupported by evidence since no agreement, communication, coordinated act, or common design between the appellant and the co-accused was demonstrated, and the co-accused were acquitted under section 210 CPC.
10) That the sentence imposed was harsh, excessive, and legally unfounded in light of the evidence, the appellant’s conduct, and the absence of any proven loss attributable to him.
4. In support of the appeal, the Appellant filed written submissions dated 15th October 2024 but Respondent did not file any submissions.
Duty of the first appellate court
5. The mandate of a first appellate court was articulated in Kariuki Karanja v Republic [1986] KLR 190, which held that an appellant is entitled to the appellate court’s own reconsideration of the evidence and its independent conclusions, subject only to the caution that the trial court had the advantage of seeing and hearing the witnesses. This Court therefore undertakes a full and fresh re-evaluation of the entire record.
Prosecution case
6. PW1 and PW2 testified that after the deceased’s demise, his mobile phone displayed transaction alerts suggesting movements in his Equity Bank account. PW3, the investigating officer, obtained bank statements which he considered suspicious but did not produce any authenticated material linking those transfers to the Appellant. PW4 confirmed that alerts were present on the deceased’s phone. PW5 offered additional support but did not identify the transacting party.
7. The Appellant, in sworn defence, explained that he had a legitimate business relationship with the deceased and had occasionally deposited funds into the deceased’s account upon request. He denied making any unauthorised withdrawals.
Analysis and Determination
8. I have carefully considered the entire record of proceedings, the grounds of appeal as consolidated, and the appellant’s written submissions, and from them I distil the following issues for determination.
1) Whether the offence of conspiracy was proved
9. Conspiracy, as defined in Archibold’s Criminal Pleadings, Evidence and Practice (1999, 43rd Edn.), cannot exist without proof of an agreement between at least two persons. Suspicion, association, proximity, or parallel conduct is insufficient, and while inference from conduct is permissible, such inference must arise from acts pointing clearly and unequivocally to a common criminal design.
10. Applying that standard to the evidence, the prosecution did not demonstrate any form of agreement between the Appellant and either the 2nd or 3rd Accused, or indeed with any other person. No communication, planning, concerted conduct, or any form of coordinated activity was demonstrated by the prosecution. The acquittal of the co-accused under section 210 of the Criminal Procedure Code underscores the absence of any evidence implicating them in a joint design.
11. In any event, the Appellant could not, in law, conspire alone; the offence necessarily requires a combination or agreement between at least two persons acting in concert. In the absence of proof of such a meeting of minds, the essential ingredient of conspiracy was not, and could not be, established. The trial magistrate therefore erred in placing the Appellant on his defence on this count, and further erred in ultimately convicting him of the same.
2) Whether the offence of stealing was proved
12. The prosecution bore the burden of proving guilt to the standard of beyond reasonable doubt, the “golden thread” described by Viscount Sankey in Woolmington v DPP [1935] AC 462. That standard demands, as emphasised in Bakare v State (1985) 2 NWLR, cogent evidence excluding every reasonable alternative hypothesis.
13. None of the prosecution witnesses identified the Appellant as the person who operated the deceased’s bank account or executed the questioned withdrawals. PW1 and PW5 expressly stated that they did not know who transacted the account. PW4 merely observed alerts on the phone. PW3 produced no forensic material linking the Appellant to the disputed transactions.
14. The prosecution’s case rested heavily on suspicion arising from the Appellant’s prior legitimate access to the deceased’s PIN and his earlier dealings with the deceased. However, as the Court of Appeal stated in Sawe v Republic [2003] KLR 364 that suspicion, however strong, cannot form the basis of a conviction unless supported by evidence establishing guilt. The prosecution did not go beyond suspicion.
15. The evidential shortcomings were compounded by the failure to identify the accounts that allegedly received the money. No account names, numbers, ownership particulars, or bank-authenticated records were produced. No Equity Bank witness testified. None of the supposed account holders was called. PW3’s assertion that certain accounts were “linked” to the Appellant was uncorroborated and unsupported.
16. The only proven transactions involving him were legitimate deposits into the deceased’s account. This conduct is inconsistent with the prosecution’s narrative of misappropriation.
17. In the absence of proof of destination accounts or their ownership, the prosecution failed to demonstrate benefit, agency, or participation on the part of the appellant. When the gaps in identity, benefit, agency, and account verification are considered cumulatively, the evidence falls far short of the required standard, which demands that any reasonable doubt must be resolved in favour of the Appellant.
3) Whether the conviction was safe
18. Given the absence of proof of meeting of the mind in conspiracy, the reliance on suspicion rather than evidence, the failure to eliminate reasonable alternative explanations, and the overall failure to meet the threshold of proof beyond reasonable doubt, the conviction was unsafe and unsupportable in law and cannot be sustained.
Disposition
19. From the foregoing analysis, the court makes the following orders:
1) The appeal is hereby allowed.
2) The conviction of the Appellant on both counts is hereby quashed.
3) The sentences imposed on 07th November 2024 are hereby set aside in their entirety.
4) The order directing restitution of KES. 477,050 to the complainant is vacated.
5) The Appellant shall be released from custody forthwith unless otherwise lawfully held.
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2. At the close of the prosecution case, the 2nd and 3rd accused were acquitted under section 210 of the Criminal Procedure Code, but the Appellant was convicted and on 07th November 2024 ordered to restitute KES. 477,050 to the estate of the deceased and in default serve two years’ imprisonment on Count 1 and three years on Count 1 consecutively.
3. Aggrieved by the conviction and sentence, the Appellant filed a Petition of Appeal dated 10th January 2025 and Supplementary Grounds of appeal dated 16th September 2025 that:
1) That the learned trial magistrate erred in law and fact in holding that the prosecution had proved its case beyond reasonable doubt when the evidence on record was insufficient, contradictory, and inconclusive.
2) That the trial court erred in relying on suspicion, assumptions, and inference rather than proved facts linking the appellant to the alleged unlawful transactions.
3) That the learned magistrate failed to appreciate that no evidence was produced to show that any funds were ever transferred into an account belonging to, operated by, or otherwise controlled by the appellant.
4) That the trial court erred in accepting the investigating officer’s assertion that certain bank accounts were “linked” to the appellant when no documentary evidence, bank testimony, or account-holder evidence was produced to establish such linkage.
5) That the trial court failed to reconcile material inconsistencies and contradictions in the prosecution’s evidence, including the discrepancy between the dates of the alleged offences and the deceased’s documented date of death.
6) That the learned magistrate erred in law and fact by disregarding or inadequately considering the appellant’s sworn defence, including uncontested evidence that he deposited funds into the deceased’s account in the course of legitimate business dealings.
7) That the learned magistrate misapplied the principles governing circumstantial evidence by finding that the evidence formed a complete chain pointing exclusively to the appellant while several reasonable hypotheses inconsistent with guilt were not excluded.
8) That the trial court erred in shifting the burden of proof onto the appellant, contrary to the standard established in Woolmington v DPP and applied in Kenyan jurisprudence, by drawing adverse inferences from the appellant’s inability to explain matters that were never proved by the prosecution.
9) That the trial court’s findings on conspiracy were unsupported by evidence since no agreement, communication, coordinated act, or common design between the appellant and the co-accused was demonstrated, and the co-accused were acquitted under section 210 CPC.
10) That the sentence imposed was harsh, excessive, and legally unfounded in light of the evidence, the appellant’s conduct, and the absence of any proven loss attributable to him.
4. In support of the appeal, the Appellant filed written submissions dated 15th October 2024 but Respondent did not file any submissions.
Duty of the first appellate court
5. The mandate of a first appellate court was articulated in Kariuki Karanja v Republic [1986] KLR 190, which held that an appellant is entitled to the appellate court’s own reconsideration of the evidence and its independent conclusions, subject only to the caution that the trial court had the advantage of seeing and hearing the witnesses. This Court therefore undertakes a full and fresh re-evaluation of the entire record.
Prosecution case
6. PW1 and PW2 testified that after the deceased’s demise, his mobile phone displayed transaction alerts suggesting movements in his Equity Bank account. PW3, the investigating officer, obtained bank statements which he considered suspicious but did not produce any authenticated material linking those transfers to the Appellant. PW4 confirmed that alerts were present on the deceased’s phone. PW5 offered additional support but did not identify the transacting party.
7. The Appellant, in sworn defence, explained that he had a legitimate business relationship with the deceased and had occasionally deposited funds into the deceased’s account upon request. He denied making any unauthorised withdrawals.
Analysis and Determination
8. I have carefully considered the entire record of proceedings, the grounds of appeal as consolidated, and the appellant’s written submissions, and from them I distil the following issues for determination.
1) Whether the offence of conspiracy was proved
9. Conspiracy, as defined in Archibold’s Criminal Pleadings, Evidence and Practice (1999, 43rd Edn.), cannot exist without proof of an agreement between at least two persons. Suspicion, association, proximity, or parallel conduct is insufficient, and while inference from conduct is permissible, such inference must arise from acts pointing clearly and unequivocally to a common criminal design.
10. Applying that standard to the evidence, the prosecution did not demonstrate any form of agreement between the Appellant and either the 2nd or 3rd Accused, or indeed with any other person. No communication, planning, concerted conduct, or any form of coordinated activity was demonstrated by the prosecution. The acquittal of the co-accused under section 210 of the Criminal Procedure Code underscores the absence of any evidence implicating them in a joint design.
11. In any event, the Appellant could not, in law, conspire alone; the offence necessarily requires a combination or agreement between at least two persons acting in concert. In the absence of proof of such a meeting of minds, the essential ingredient of conspiracy was not, and could not be, established. The trial magistrate therefore erred in placing the Appellant on his defence on this count, and further erred in ultimately convicting him of the same.
2) Whether the offence of stealing was proved
12. The prosecution bore the burden of proving guilt to the standard of beyond reasonable doubt, the “golden thread” described by Viscount Sankey in Woolmington v DPP [1935] AC 462. That standard demands, as emphasised in Bakare v State (1985) 2 NWLR, cogent evidence excluding every reasonable alternative hypothesis.
13. None of the prosecution witnesses identified the Appellant as the person who operated the deceased’s bank account or executed the questioned withdrawals. PW1 and PW5 expressly stated that they did not know who transacted the account. PW4 merely observed alerts on the phone. PW3 produced no forensic material linking the Appellant to the disputed transactions.
14. The prosecution’s case rested heavily on suspicion arising from the Appellant’s prior legitimate access to the deceased’s PIN and his earlier dealings with the deceased. However, as the Court of Appeal stated in Sawe v Republic [2003] KLR 364 that suspicion, however strong, cannot form the basis of a conviction unless supported by evidence establishing guilt. The prosecution did not go beyond suspicion.
15. The evidential shortcomings were compounded by the failure to identify the accounts that allegedly received the money. No account names, numbers, ownership particulars, or bank-authenticated records were produced. No Equity Bank witness testified. None of the supposed account holders was called. PW3’s assertion that certain accounts were “linked” to the Appellant was uncorroborated and unsupported.
16. The only proven transactions involving him were legitimate deposits into the deceased’s account. This conduct is inconsistent with the prosecution’s narrative of misappropriation.
17. In the absence of proof of destination accounts or their ownership, the prosecution failed to demonstrate benefit, agency, or participation on the part of the appellant. When the gaps in identity, benefit, agency, and account verification are considered cumulatively, the evidence falls far short of the required standard, which demands that any reasonable doubt must be resolved in favour of the Appellant.
3) Whether the conviction was safe
18. Given the absence of proof of meeting of the mind in conspiracy, the reliance on suspicion rather than evidence, the failure to eliminate reasonable alternative explanations, and the overall failure to meet the threshold of proof beyond reasonable doubt, the conviction was unsafe and unsupportable in law and cannot be sustained.
Disposition
19. From the foregoing analysis, the court makes the following orders:
1) The appeal is hereby allowed.
2) The conviction of the Appellant on both counts is hereby quashed.
3) The sentences imposed on 07th November 2024 are hereby set aside in their entirety.
4) The order directing restitution of KES. 477,050 to the complainant is vacated.
5) The Appellant shall be released from custody forthwith unless otherwise lawfully held.
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