This is a matter which had been initiated in the High Court at Nyeri. It was subsequently transferred to this Court on 13-03-2025 for reason that the same was an anti-corruption matter and should be heard before this court. I, on my part do not see the reason that would have prevented the High Court at Nyeri from hearing and determining the appeal as it had jurisdiction to do so. Nevertheless, I will proceed to deal with it.
The appeal emanates from a ruling of the Chief Magistrate at Nyeri anti-corruption case number 2 of 2018 dated 4-12-2019 where the trial court acquitted the respondents under section 210 of the Criminal Procedure Code as according to the trial court, the prosecution had failed to establish a prima fascie case warranting putting the respondents on their defence. The respondents were facing the following charges;
Count I- Abuse of office contrary to Section 46 of the Anti-Corruption and Economic Crimes Act, 2003 as read with Section 48 thereof particulars being that on diverse dates between 2nd day of August 2013, and the 22nd day of February 2014, in the County of Nyeri within the Republic of Kenya, being the Chairperson, the Secretary and members of the Nyeri County Public Service Board, respectively, they used their respective offices to improperly confer a benefit on George Mwangi Muriithi, to wit, selecting the said George Mwangi Muriithi for appointment as a Sub-County Administrator in Nyeri County, an office that the said George Mwangi Muriithi was not qualified to hold.
Count 2- Conspiracy to commit an offence of corruption, contrary to Section 47A(3) of the Anti-Corruption and Economic Crimes Act, 2003, as read with Section 48 thereof. The particulars were that on diverse dates between the 2nd day of August, 2013, and the 25th day of February, 2014, in the County of Nyeri within the Republic of Kenya, the respondents conspired with each other to commit an offence of corruption, namely, abuse of office contrary to Section 46 of the Anti-Corruption and Economic Crimes Act, 2003, by procuring the appointment of George Mwangi Muriithi as a Sub- County Administrator, an office that the said George Mwangi Muriithi was not qualified to hold.
Count 3- Abuse of office, contrary to Section 46 of the Anti-Corruption and Economic Crimes Act, 2003, as read with Section 48 thereof particulars being that, on diverse dates between the 2nd day of August 2014 and 22nd February 2014, in the County of Nyeri within the Republic of Kenya, being the Chairperson, the Secretary and Members of the Nyeri County Public Service Board, respectively, they used their respective offices to improperly confer a benefit on Phares Kabugi Njogu, to wit, selecting the said Phares Kabugi Njogu for appointment as a Ward Administrator in Nyeri County, an office that the said Phares Kabugi Njougu was not qualified to hold.
Count 4-Conspiracy to commit an offence of corruption, contrary to Section 47A(3) of the Anti-Corruption and Economic Crimes Act, 2003, as read with Section 48 thereof particulars being that on diverse dates between the 2nd day of August, 2013 and the 25th day of February, 2014, in the County of Nyeri within the Republic of Kenya, they conspired with each other to commit an offence of corruption, namely, abuse of office contrary to Section 46 of the Anti-Corruption and Economic Crimes Act, 2003, by procuring the appointment of Phares Kabugi Njogu as a Ward Administrator, an office that the said Phares Kabugi Njogu was not qualified to hold.
The appellant being dissatisfied with the aforesaid ruling raised the following grounds in its petition of appeal dated 16th December 2019;
1. The Honourable trial Magistrate erred in law by failing to appreciate all the evidence presented by the prosecution and only considered the submissions by the defence, and arrived at an erroneous ruling.
2. The Honourable Court erred in failing to appreciate the law on Anti-Corruption and Ethics and misinterpreted Section 35 of the Anti-Corruption and Economic Crimes Act No. 3 of 2004.
3. The Honourable Magistrate erred in law by acquitting the accused persons under Section 210 of the Criminal Procedure Code.
4. The Honourable trial Magistrate erred in law by failing to appreciate that the respondents, being Chairperson, Secretary and members of the Nyeri County Public Service Board, conspired to recruit persons who did not possess qualifications for appointment to the office of Sub-County and Ward Administrators as per the advertisement thereby improperly conferring a benefit on them, which in itself is a corrupt practice and an abuse of office.
5. The Honourable trial Magistrate erred in law by finding that the prosecution had not proved a prima fascie case against the respondents and should have placed them on their defence.
This is a first appeal and as it is required of this court, I will re-evaluate, re-analyse and re-consider the evidence produced in the trial court as if I am conducting a re-hearing and reach my own independent conclusion. However, I will keep in my mind the fact that I did not take the evidence first hand and as such did not observe the demeanour of the witnesses and therefore give due allowance for that. This legal position has been encapsulated in many decided cases including Simon Taveta v Mercy Mutitu Njeru (2014) KECA 755 (KLR) where the Court of Appeal held that;
‘As this is a first appeal, it is our duty to analyze and re-assess the evidence on record and reach our own conclusions in the matter.’
Lucy Wairimu Mwangi, the first prosecution witness told the court that, in the year 2013, she was working as a personal secretary to the County Government of Nyeri (hereinafter referred to as ‘the government’) and recalled that some posts had been advertised by the County Government Public Service Board (hereinafter referred to as ‘the Board’). She and one Joyce Waceke were acting as the secretariat for the Board on request of its chairperson, the 1st respondent. The advertised posts included Chief Officers, Ward Administrators and Sub-County Administrators among others. Their role was to receive the applications as they came, then make entries in the black book showing the position applied for. They were not scrutinizing the application. After receiving the applications, they handed them over to the Board on 28/8/2013.
On cross-examination, the witness stated that their duty was only to receive the applications and they were not concerned with whether the applicants met the standards. She did not know the particulars or the requirements that the applicants were to meet. She added that the Board had just been recruited.
PW2 was one Wambui Wamucii Kimathi who worked with the Ministry of Livestock in Nairobi. She told the court that in 2013, she was the County Secretary of the government. She added that the executive decided to recruit some County Administrators and charged the Board with the role of recruitment. She added that the Board did what was expected of it by law. She was not able to explain the process of recruitment but she believed the Board did the recruitment in accordance to the law.
She eventually got to know that people who were recruited. The information of recruitment was relayed to the executive of the government and the human resource department wrote letters of appointment which were forwarded to the County Secretary. She added that she signed the letters of appointment although she could not recall the number of officers recruited. She added that the members of the Board were the respondents with the 1st respondent chairing.
When cross-examination by Mr. Wahome then acting for the respondents, she stated that under Section 44(3) of the County Government Act, the County Secretary was the head of the public service. She stated that Section 50 of the County Governments Act provides for the qualifications of Sub-County Administrator and does not mention requirement of a bachelors or masters' degree. Section 51 deals with Ward Administrator and states that he shall have professional qualification and technical knowledge in administration and does not mention a degree.
She added that decisions of the Board are corporate and an individual member cannot make a decision. She was not able to tell what the government’s Executive Committee discussed about the recruitment as she had not seen its minutes but she insisted that, it was the executive which decided that the Ward and Sub-County Administrators be hired. She admitted that there was no letter written by either of the respondents appointing George Mwangi Muriithi (hereinafter referred to as ‘George’) and Phares Kabugi (hereinafter referred to as ‘Phares’) as a Sub-County Administrator and Ward Administrator respectively.
The witness confirmed that she was the one who had signed the letters of appointment and she could not have done so without the authority of the County Executive Committee. She also confirmed that the Committee met before the appointments and background check was to be done to ascertain the appointees’ suitability.
Mercy Wangari was the 3rd prosecution witness who in 2013 was seconded to the Human Resource Department of the government where she worked for two years as an interim head of Human Resource. She added that her key duties were sorting out application forms which had been received then entering them in the computer.
The witness told the court that the Board had in August 2013 advertised for many positions including Sub-County Administrators, Ward Administrators and Chief Officers. After the applications for the jobs were received, the County Secretary gave her the assignment of sorting out the applications and keying in the information in the applications forms in the computer system. According to her, Phares had Advanced Certificate of Education and was at then working as the Chairman of Ragati River WRUA and held KRA certificate, Helb certificate and EACC certificate. For George, he was at then working at FPAK/ST/YMCA and held a bachelors degree indicated as Bachelor of Business Management and was a professional in conflict resolution. He however did not submit clearance certificates. The witness added that she was not involved in confirming whether the candidates had met the qualifications set out by the Board and she was not aware of the requirements by the Board.
She added that she was during the interviews called in as an usher to one of the
panels of the interviews but she was not involved in the shortlisting. She was later involved in opening the files for the candidates who had been put in the payroll.
In cross-examination, she could not recall the date on which she fed the information into the computer. She added that she was not aware of the requirements or qualifications for each position but she stated that the Sub-County Administrator was to be qualified in administration and management and there is no requirement of a degree. She was shown some professional and academic certificates which were not in the information she fed in the computer.
PW4 was one Doris Njambi Mwangi who joined the Board in 2013 after being recruited as a member of the Board together with the respondents and sworn in on 21-10-2013. On 29-11-2013, there was another advertisement for Ward Administrators. She added that there were two advertisements and that she joined the Board after the first one.
The witness appears to me to have been selective in what she could recall and at this juncture, the prosecuting counsel applied for adjournment stating that he could not proceed because the witness was giving evidence which was not agreeing to what was in her statement. Despite objection from the respondent’s counsel, the court allowed the application to stand down the witness.
When she resumed, PW4 stated that the Board held sittings where the issue of recruitment of Sub-County and Ward Administrators was deliberated. After identifying some minutes, she stated that she was not aware of the meeting of 4/11/2013 but she attended one of 27/11/2013. According to her, she looked at some minutes and got to know of the meeting of 4/11/2013. She stated that when she looked through the meetings’ minutes, she saw that shortlisting had been done on 4-11-2013 when she was absent. Relevant to this case, there were 30 positions for Ward Administrators and 6 for Sub-County Administrators. After she saw the minutes of the 4/11/2013, she did not inquire about the proceedings or how the process was done or what transpired.
The witness added that the Board set the dates for interviews for the Sub-County Administrators from around 28th to 29th January 2014 and for the Ward Administrators for 6th and 7th February 2014 which interviews were done. She confirmed that she participated in the process of the recruitment and took part in interviewing some candidates. She went on tell the court how the interviews were conducted including post-interview meetings and discussions on the candidates’ performances. According to her, these deliberations were not minuted. She alleged that she could not recall them doing the final selection but she maintained that the recruitments were done based on the interviews the Board had done.
The witness added that the advertisement for the Ward Administrators had been done twice and the requirement for the two were not the same. The advertisement of August 2013 called for 5 years’ experience with anyone with a diploma while in the one of November called for 3 years. In the November one, it was indicated that for any other qualification a candidate should show 10 years with demonstrated leadership skills. This was not in the original advertisement.
The witness did not know who prepared the advertisements and she could not tell whether they were done by the respondents. She also said that Section 50 and 51(2) of the County Governments Act lists the qualifications of a Sub-County and Ward Administrators and it does not require a diploma, degree or any other post graduate qualification. Section 51 (2) gives qualifications for a Ward Admin.
She added that the 2nd respondent was the Board Secretary and did not have a vote in the decision making. She also could not tell if Phares and George were appointed either by the 5 respondents jointly or separately. She stated that she did not know why she was not one of the accused persons yet she participated in the interviews, asked questions and scored the candidates. She also did not know of any wrong doing in the appointments.
She admitted that she was bound by the principal of collective responsibility and added that by the time she left the Board, she had not written any complaint letter about the appointments of any Sub-County or Ward Administrator. She admitted that the appointments were made properly and according to the law and procedure and maintained that she stood by the way the appointments were made. She was referred to some certificates in several qualifications of George and Phares and stated that the Board was satisfied with them.
PW5 was one John Gicheru Macharia. He testified that between 2001 and 2006, he was working at the Presbyterian College in Thogoto but at the time he testified, the college was no longer in existence. In 2008, it was granted an interim authority and it became a university headed by a vice-chancellor. He recalled that on 6-05-2016, the then director of the college one Patrick Irungu called and told him that Ethics and Anti-Corruption Commission (hereinafter referred to as ‘the EACC’) officers wanted to talk to him about a certificate that was bearing his signature at a time that he was not serving there. He went to the EACC offices and was shown a certificate which had a signature that looked like his.
He was shown a certificate in the name of Jackson Kibuntu Thagana and denied the signature that was on it and added that the college was in 2010 upgraded to Presbyterian University College and the documents from there should therefore bear the title Presbyterian University of Kenya. He added that as far as he was concerned, the certificate was not genuine.
When he was cross-examined, he admitted that when at the college, he used to sign certificates as a principal. He added that he could not recall all the certificates that he signed neither did he know when the college stopped issuing the previous certificates.
He was followed by Joyce Waceke Gitahi, an employee of the government who stated that in 2013, he was the secretary to the Governor. She stated that in August 2013, some posts she could not remember were advertised by the government and added that the 1st respondent asked her and a colleague to open a register indicating the name of the applicant, date received and the post applied. They would receive the application and stamp it at the top with the date received. She confirmed receiving various applications although some were not stamped and later handing them to the 2nd respondent. Very little in cross-examination is relevant to this appeal safe that she did not know who or how the applications received after the advertisement of 29/11/2013 were handled.
PW7 was Phares Kabugi Njogu who told the court that he was working as a Ward Administrator in the government and at the time stationed at Mukurweini having been appointed in March 2014. The position was advertised sometime in the month of August 2013 and November 2013 then in January 2014 he was called for an interview. He added that the qualifications needed for a Ward Administrator in the first advertisement were; a Kenyan citizen, 1st degree from a recognized university with 2 years' experience in administration and management, diploma with 5 years' experience, and satisfaction of Chapter 6 of the Constitution. In the second advertisement, the requirements for Ward Administrator were; a Kenyan citizen, 1st degree with work experience of 2 years in administration and management, diploma with 3 years’ experience in administration and management and any other experience in community development.
He added that his highest academic qualification was O-levels and A-levels and that he had also done a 2-year programme with computer consultants in computer programming and systems analyst. He went on to narrate some in-job trainings he attended in different companies and government institutions. He stated further that he was later on alerted that he was successful after going through interviews.
In cross-examination, he was shown some documents and confirmed having some academic and professional certificates. He also made reference to Section 51(2) of the County Governments Act which sets out qualifications for a Ward Administrator. He added that he had a lot of professional qualifications and technical knowledge in administration and experience. He stated further that the advertisement for 2/8/2013 was not in tandem with the Act as it talked of a degree whereas the Act did not require a degree. He alleged that he was actually over qualified for the job. According to him, in fact, the government was giving him special assignments. He added that the 2nd respondent was not in office on 2/8/2013 and could therefore not have put up the advertisement. He added that he learnt of his shortlisting from newspapers.
He added that he had been cleared by the EACC itself and he was not aware of any letter that it wrote to say that he was not suitable. He was cleared by a CRB, HELB, and the DCI. He concluded that anyone saying that the respondents appointed him wrongly or illegally was totally wrong.
Fred Nyambane Owanda working with the Technical and Vocational Education Authority hereinafter referred to as ‘TVEA’) testified as the 8th witness. He told the court that the Authority organizes and regulates training institutions by registering them. He said that Vision College of Business and Accounts was not in their records as a registered institution. Mountain Top Institution was registered as Mountain Top Hotel and Travel Institute. In cross-examination, he stated that they do not regulate courses administered by the professional institutions like IPA or IPSC. He also admitted that Kenya Institute of Management offered recognized professional course and they do not regulate it or universities.
PW9 was Stephen Yego a forensic document examiner working with EACC stationed in Nairobi. The summary of his evidence was that the 1st and 2nd respondents signed several minutes of the Board and appointment letters in question.
George Mwangi a Sub-County Administrator with the government was the tenth witness. He testified that he saw advertisements in the media, applied and was recruited as he was qualified although the advertisements had put qualifications which were not in the law. Interestingly, the witness told the court that the qualifications shown against his name in the list of applicants were not correct. For instance, he did not possess a bachelors degree but the list showed that he had. He also pointed out that the list had many errors. Like PW4, this witness seemed to be hostile as the state counsel is seen stopping and warning him twice about giving evidence he had no facts about especially when he seemed to testify against the prosecution case.
He added that before he joined the government, he was working with an organization called Portions Link where he was the managing partner in charge of research and training. He was cross-examined by Mr. Wahome and said that the only requirement for a Sub-County Administrator is that, one should have qualification and knowledge in management. He added that at the time of the advertisement, the Board was not in existence. He also emphasized that his performance since employment was satisfactory and he had been promoted for good work. He admitted that one Priscilla was one of those who interviewed him and she scored him very highly yet she was not one of the accused persons. He also stated that he did not know any of the accused persons before the recruitment.
PW11 was Priscilla Muthoni Wanjiri working with the ministry of Education at Jogoo House as an assistant secretary. She told the court that she was previously working in the government as the Executive Committee Member in charge of public administration. She recalled that she was invited in the recruitment of candidates of Sub-County Administrator. The decision to recruit was made by the County Executive Committee at which time the Board was not fully functional as it had only the Chairperson and a Secretary.
She added that her role was to give technical advice on administrative issues. Before the interview, they ascertained if the applicants had qualified for shortlisting. She added that those shortlisted had qualified. She stated further that she went through the list to confirm that the applicants had the minimum qualifications. After the interviews, the panelist added up the scores then they handed over the score sheets to the Secretary of the Board, the 2nd respondent. She was later given a list of successful candidates to issue letters of appointment. She was also required to do quick background check which she did not. According to her, the background check should have been done before the shortlisting. She added that it was the County Secretary who issued the letters to the successful candidates and that the Executive Committee had faith in what the Board did.
When she was placed under cross-examination, she told the court that the advertisements were not put up by the respondents. She admitted that the requirements set out in the advertisements of 2/8/2013 and 29/11/2013 were not in line with Section 50 and 51 of the County Governments Act and therefore they contravened the law. She stated that the Board followed the statutory provisions and did not breach them. She admitted that she scored George at 80 per cent. She also confirmed that Phares was qualified for the job of Ward Administrator and her recommendations in her score sheets were that the two were qualified for the positions they had applied. She added that she was the supervisor of both George and Phares and could vouch for them. They were amongst the best performers.
Testifying as the 12th witness, Elijah Wambugu Ndegwa who worked in the Presbyterian Church of East Africa, in the department known as Theology Education Extension told the court that his responsibilities included office administration, recruiting and assisting students taking courses, administering and marking exams, compiling data and preparing for graduation. He joined Mt. Kenya region in December 2012 and was confirmed in 2013.
In regard to this case, the witness said that she was called by a Mr. Salat from EACC who wanted to confirm the authenticity of a certificate issued to one Jackson Thagana. I don’t find the testimony of this witness relevant to this appeal as it does not relate to the counts in issue.
PW 13 was George Kariuki an advocate of the High Court of Kenya. He told the court that he was appointed as a member of the Board around July 2013 but he resigned shortly after 2 or 3 weeks before he could be sworn in and before the Board could have its first sitting. He stated that he participated in drafting an advertisement for some positions including the Ward and Sub-County Administrators in issue in this matter.
He added that the Transition Authorty and Public Service Commission gave them general specifications for each of the posts. In regard to the Sub-County Administrators, the request was that the candidates must be a Kenyan with at least a degree from a recognized university in Kenya and a post-graduate qualification, work experience of not less than 5 years and meeting Chapter 6 of the Constitution. Sub-County Administrator was to be equated to a job group of profession management level.
He added that the Ward Administrator’s post was equated to a middle level management staff and was required to have a bachelors degree in the field and 10 years' experience. He added that they also looked at the County Government Act to see if the positions were established by the law. They were also guided by Public Service Commission Career Progression Guidelines (hereinafter referred to as ‘the guidelines’). He added that he resigned before the advertisement was published and that the contents of the advertisements were in line with their discussions with the Transition Authority.
In cross-examination, the witness stated that, he did not draft the advertisement and insisted that there was no Board as per the law. He admitted that the guidelines in court were dated July 2014 while the activities they were doing were in July 2013 and admitted that he could not have used the guidelines before the court and that the guidelines did not speak of Ward and Sub-County Administrators. He added that Sections 50 and 51 of the County Governments Act does not require degrees for the said positions. He also stated that he did not know of any offence the respondents had committed.
PW 14 was James Wambua a Deputy Commissioner in Tharaka Nithi County who in 2015 was an Assistant County Commissioner in Tetu in Nyeri County. He testified that in 2014, he was co-opted in an interview panel for interviews conducted on 6/2/2014 whose secretary was the 2nd respondent. He was involved in the interviews of Ward Administrators as a technical member based on his experience as an administrator.
He stated that at the end of each candidate's interview, they would give back the score sheet to one member of the panel. He added that, the basic qualification that the candidates needed to have was a diploma. The witness added that after handing over his score sheets, he did not participate further in the recruitment including the aggregation of the scores of all the candidates. He did not get to know who succeeded from amongst the people he interviewed.
In cross-examination, the witness stated that, he participated in the interviews to provide technical support. He added that one of the candidates he interviewed and scored was Phares whom he gave a score of 80 per cent.
Eliud Muriithi the 15th witness joined the Board in July 2013 and left in July 2018. He stated that, the operations of the Board started in October 2013 when all the members were recruited and sworn in before which time, advertisement for the jobs in issue had been placed by the then Transition Authority in liason with the government’s executive. He stated further that the Board was not consulted about the advertisements as they just saw them in the press. According to him, they saw the requirements for the jobs but there was nothing they could do.
The witness added that during the briefing about the positions, the Chairperson of the Board informed the Board that, since these advertisements had been done through another body, the Board should adopt those advertisements and their responses as their own. The Board therefore owned the advertisements and the whole process without variations. He was present in all the meeting but he was not sure of the meeting of 4-11-2013 stating that the meeting he remembered attending dealt with Executive Committee Members.
The witness stressed that he did not participate in the shortlisting for the positions of the Ward and Sub-County Administrators which was done during the month of November 2013 on a date that he was not present. After being shown the minutes for 4-11-2013, he changed the story and stated that he was present at the meeting that day but insisted that the minutes showing that the Ward Administrators and Sub-County Administrators were short listed on that day are not correct.
He insisted that it was the Board which did the shortlisting and that it adopted the guidelines and the parameters set out in the advertisements which it relied on in selecting those to be interviewed. He added that he also participated in the interviews a
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The appeal emanates from a ruling of the Chief Magistrate at Nyeri anti-corruption case number 2 of 2018 dated 4-12-2019 where the trial court acquitted the respondents under section 210 of the Criminal Procedure Code as according to the trial court, the prosecution had failed to establish a prima fascie case warranting putting the respondents on their defence. The respondents were facing the following charges;
Count I- Abuse of office contrary to Section 46 of the Anti-Corruption and Economic Crimes Act, 2003 as read with Section 48 thereof particulars being that on diverse dates between 2nd day of August 2013, and the 22nd day of February 2014, in the County of Nyeri within the Republic of Kenya, being the Chairperson, the Secretary and members of the Nyeri County Public Service Board, respectively, they used their respective offices to improperly confer a benefit on George Mwangi Muriithi, to wit, selecting the said George Mwangi Muriithi for appointment as a Sub-County Administrator in Nyeri County, an office that the said George Mwangi Muriithi was not qualified to hold.
Count 2- Conspiracy to commit an offence of corruption, contrary to Section 47A(3) of the Anti-Corruption and Economic Crimes Act, 2003, as read with Section 48 thereof. The particulars were that on diverse dates between the 2nd day of August, 2013, and the 25th day of February, 2014, in the County of Nyeri within the Republic of Kenya, the respondents conspired with each other to commit an offence of corruption, namely, abuse of office contrary to Section 46 of the Anti-Corruption and Economic Crimes Act, 2003, by procuring the appointment of George Mwangi Muriithi as a Sub- County Administrator, an office that the said George Mwangi Muriithi was not qualified to hold.
Count 3- Abuse of office, contrary to Section 46 of the Anti-Corruption and Economic Crimes Act, 2003, as read with Section 48 thereof particulars being that, on diverse dates between the 2nd day of August 2014 and 22nd February 2014, in the County of Nyeri within the Republic of Kenya, being the Chairperson, the Secretary and Members of the Nyeri County Public Service Board, respectively, they used their respective offices to improperly confer a benefit on Phares Kabugi Njogu, to wit, selecting the said Phares Kabugi Njogu for appointment as a Ward Administrator in Nyeri County, an office that the said Phares Kabugi Njougu was not qualified to hold.
Count 4-Conspiracy to commit an offence of corruption, contrary to Section 47A(3) of the Anti-Corruption and Economic Crimes Act, 2003, as read with Section 48 thereof particulars being that on diverse dates between the 2nd day of August, 2013 and the 25th day of February, 2014, in the County of Nyeri within the Republic of Kenya, they conspired with each other to commit an offence of corruption, namely, abuse of office contrary to Section 46 of the Anti-Corruption and Economic Crimes Act, 2003, by procuring the appointment of Phares Kabugi Njogu as a Ward Administrator, an office that the said Phares Kabugi Njogu was not qualified to hold.
The appellant being dissatisfied with the aforesaid ruling raised the following grounds in its petition of appeal dated 16th December 2019;
1. The Honourable trial Magistrate erred in law by failing to appreciate all the evidence presented by the prosecution and only considered the submissions by the defence, and arrived at an erroneous ruling.
2. The Honourable Court erred in failing to appreciate the law on Anti-Corruption and Ethics and misinterpreted Section 35 of the Anti-Corruption and Economic Crimes Act No. 3 of 2004.
3. The Honourable Magistrate erred in law by acquitting the accused persons under Section 210 of the Criminal Procedure Code.
4. The Honourable trial Magistrate erred in law by failing to appreciate that the respondents, being Chairperson, Secretary and members of the Nyeri County Public Service Board, conspired to recruit persons who did not possess qualifications for appointment to the office of Sub-County and Ward Administrators as per the advertisement thereby improperly conferring a benefit on them, which in itself is a corrupt practice and an abuse of office.
5. The Honourable trial Magistrate erred in law by finding that the prosecution had not proved a prima fascie case against the respondents and should have placed them on their defence.
This is a first appeal and as it is required of this court, I will re-evaluate, re-analyse and re-consider the evidence produced in the trial court as if I am conducting a re-hearing and reach my own independent conclusion. However, I will keep in my mind the fact that I did not take the evidence first hand and as such did not observe the demeanour of the witnesses and therefore give due allowance for that. This legal position has been encapsulated in many decided cases including Simon Taveta v Mercy Mutitu Njeru (2014) KECA 755 (KLR) where the Court of Appeal held that;
‘As this is a first appeal, it is our duty to analyze and re-assess the evidence on record and reach our own conclusions in the matter.’
Lucy Wairimu Mwangi, the first prosecution witness told the court that, in the year 2013, she was working as a personal secretary to the County Government of Nyeri (hereinafter referred to as ‘the government’) and recalled that some posts had been advertised by the County Government Public Service Board (hereinafter referred to as ‘the Board’). She and one Joyce Waceke were acting as the secretariat for the Board on request of its chairperson, the 1st respondent. The advertised posts included Chief Officers, Ward Administrators and Sub-County Administrators among others. Their role was to receive the applications as they came, then make entries in the black book showing the position applied for. They were not scrutinizing the application. After receiving the applications, they handed them over to the Board on 28/8/2013.
On cross-examination, the witness stated that their duty was only to receive the applications and they were not concerned with whether the applicants met the standards. She did not know the particulars or the requirements that the applicants were to meet. She added that the Board had just been recruited.
PW2 was one Wambui Wamucii Kimathi who worked with the Ministry of Livestock in Nairobi. She told the court that in 2013, she was the County Secretary of the government. She added that the executive decided to recruit some County Administrators and charged the Board with the role of recruitment. She added that the Board did what was expected of it by law. She was not able to explain the process of recruitment but she believed the Board did the recruitment in accordance to the law.
She eventually got to know that people who were recruited. The information of recruitment was relayed to the executive of the government and the human resource department wrote letters of appointment which were forwarded to the County Secretary. She added that she signed the letters of appointment although she could not recall the number of officers recruited. She added that the members of the Board were the respondents with the 1st respondent chairing.
When cross-examination by Mr. Wahome then acting for the respondents, she stated that under Section 44(3) of the County Government Act, the County Secretary was the head of the public service. She stated that Section 50 of the County Governments Act provides for the qualifications of Sub-County Administrator and does not mention requirement of a bachelors or masters' degree. Section 51 deals with Ward Administrator and states that he shall have professional qualification and technical knowledge in administration and does not mention a degree.
She added that decisions of the Board are corporate and an individual member cannot make a decision. She was not able to tell what the government’s Executive Committee discussed about the recruitment as she had not seen its minutes but she insisted that, it was the executive which decided that the Ward and Sub-County Administrators be hired. She admitted that there was no letter written by either of the respondents appointing George Mwangi Muriithi (hereinafter referred to as ‘George’) and Phares Kabugi (hereinafter referred to as ‘Phares’) as a Sub-County Administrator and Ward Administrator respectively.
The witness confirmed that she was the one who had signed the letters of appointment and she could not have done so without the authority of the County Executive Committee. She also confirmed that the Committee met before the appointments and background check was to be done to ascertain the appointees’ suitability.
Mercy Wangari was the 3rd prosecution witness who in 2013 was seconded to the Human Resource Department of the government where she worked for two years as an interim head of Human Resource. She added that her key duties were sorting out application forms which had been received then entering them in the computer.
The witness told the court that the Board had in August 2013 advertised for many positions including Sub-County Administrators, Ward Administrators and Chief Officers. After the applications for the jobs were received, the County Secretary gave her the assignment of sorting out the applications and keying in the information in the applications forms in the computer system. According to her, Phares had Advanced Certificate of Education and was at then working as the Chairman of Ragati River WRUA and held KRA certificate, Helb certificate and EACC certificate. For George, he was at then working at FPAK/ST/YMCA and held a bachelors degree indicated as Bachelor of Business Management and was a professional in conflict resolution. He however did not submit clearance certificates. The witness added that she was not involved in confirming whether the candidates had met the qualifications set out by the Board and she was not aware of the requirements by the Board.
She added that she was during the interviews called in as an usher to one of the
panels of the interviews but she was not involved in the shortlisting. She was later involved in opening the files for the candidates who had been put in the payroll.
In cross-examination, she could not recall the date on which she fed the information into the computer. She added that she was not aware of the requirements or qualifications for each position but she stated that the Sub-County Administrator was to be qualified in administration and management and there is no requirement of a degree. She was shown some professional and academic certificates which were not in the information she fed in the computer.
PW4 was one Doris Njambi Mwangi who joined the Board in 2013 after being recruited as a member of the Board together with the respondents and sworn in on 21-10-2013. On 29-11-2013, there was another advertisement for Ward Administrators. She added that there were two advertisements and that she joined the Board after the first one.
The witness appears to me to have been selective in what she could recall and at this juncture, the prosecuting counsel applied for adjournment stating that he could not proceed because the witness was giving evidence which was not agreeing to what was in her statement. Despite objection from the respondent’s counsel, the court allowed the application to stand down the witness.
When she resumed, PW4 stated that the Board held sittings where the issue of recruitment of Sub-County and Ward Administrators was deliberated. After identifying some minutes, she stated that she was not aware of the meeting of 4/11/2013 but she attended one of 27/11/2013. According to her, she looked at some minutes and got to know of the meeting of 4/11/2013. She stated that when she looked through the meetings’ minutes, she saw that shortlisting had been done on 4-11-2013 when she was absent. Relevant to this case, there were 30 positions for Ward Administrators and 6 for Sub-County Administrators. After she saw the minutes of the 4/11/2013, she did not inquire about the proceedings or how the process was done or what transpired.
The witness added that the Board set the dates for interviews for the Sub-County Administrators from around 28th to 29th January 2014 and for the Ward Administrators for 6th and 7th February 2014 which interviews were done. She confirmed that she participated in the process of the recruitment and took part in interviewing some candidates. She went on tell the court how the interviews were conducted including post-interview meetings and discussions on the candidates’ performances. According to her, these deliberations were not minuted. She alleged that she could not recall them doing the final selection but she maintained that the recruitments were done based on the interviews the Board had done.
The witness added that the advertisement for the Ward Administrators had been done twice and the requirement for the two were not the same. The advertisement of August 2013 called for 5 years’ experience with anyone with a diploma while in the one of November called for 3 years. In the November one, it was indicated that for any other qualification a candidate should show 10 years with demonstrated leadership skills. This was not in the original advertisement.
The witness did not know who prepared the advertisements and she could not tell whether they were done by the respondents. She also said that Section 50 and 51(2) of the County Governments Act lists the qualifications of a Sub-County and Ward Administrators and it does not require a diploma, degree or any other post graduate qualification. Section 51 (2) gives qualifications for a Ward Admin.
She added that the 2nd respondent was the Board Secretary and did not have a vote in the decision making. She also could not tell if Phares and George were appointed either by the 5 respondents jointly or separately. She stated that she did not know why she was not one of the accused persons yet she participated in the interviews, asked questions and scored the candidates. She also did not know of any wrong doing in the appointments.
She admitted that she was bound by the principal of collective responsibility and added that by the time she left the Board, she had not written any complaint letter about the appointments of any Sub-County or Ward Administrator. She admitted that the appointments were made properly and according to the law and procedure and maintained that she stood by the way the appointments were made. She was referred to some certificates in several qualifications of George and Phares and stated that the Board was satisfied with them.
PW5 was one John Gicheru Macharia. He testified that between 2001 and 2006, he was working at the Presbyterian College in Thogoto but at the time he testified, the college was no longer in existence. In 2008, it was granted an interim authority and it became a university headed by a vice-chancellor. He recalled that on 6-05-2016, the then director of the college one Patrick Irungu called and told him that Ethics and Anti-Corruption Commission (hereinafter referred to as ‘the EACC’) officers wanted to talk to him about a certificate that was bearing his signature at a time that he was not serving there. He went to the EACC offices and was shown a certificate which had a signature that looked like his.
He was shown a certificate in the name of Jackson Kibuntu Thagana and denied the signature that was on it and added that the college was in 2010 upgraded to Presbyterian University College and the documents from there should therefore bear the title Presbyterian University of Kenya. He added that as far as he was concerned, the certificate was not genuine.
When he was cross-examined, he admitted that when at the college, he used to sign certificates as a principal. He added that he could not recall all the certificates that he signed neither did he know when the college stopped issuing the previous certificates.
He was followed by Joyce Waceke Gitahi, an employee of the government who stated that in 2013, he was the secretary to the Governor. She stated that in August 2013, some posts she could not remember were advertised by the government and added that the 1st respondent asked her and a colleague to open a register indicating the name of the applicant, date received and the post applied. They would receive the application and stamp it at the top with the date received. She confirmed receiving various applications although some were not stamped and later handing them to the 2nd respondent. Very little in cross-examination is relevant to this appeal safe that she did not know who or how the applications received after the advertisement of 29/11/2013 were handled.
PW7 was Phares Kabugi Njogu who told the court that he was working as a Ward Administrator in the government and at the time stationed at Mukurweini having been appointed in March 2014. The position was advertised sometime in the month of August 2013 and November 2013 then in January 2014 he was called for an interview. He added that the qualifications needed for a Ward Administrator in the first advertisement were; a Kenyan citizen, 1st degree from a recognized university with 2 years' experience in administration and management, diploma with 5 years' experience, and satisfaction of Chapter 6 of the Constitution. In the second advertisement, the requirements for Ward Administrator were; a Kenyan citizen, 1st degree with work experience of 2 years in administration and management, diploma with 3 years’ experience in administration and management and any other experience in community development.
He added that his highest academic qualification was O-levels and A-levels and that he had also done a 2-year programme with computer consultants in computer programming and systems analyst. He went on to narrate some in-job trainings he attended in different companies and government institutions. He stated further that he was later on alerted that he was successful after going through interviews.
In cross-examination, he was shown some documents and confirmed having some academic and professional certificates. He also made reference to Section 51(2) of the County Governments Act which sets out qualifications for a Ward Administrator. He added that he had a lot of professional qualifications and technical knowledge in administration and experience. He stated further that the advertisement for 2/8/2013 was not in tandem with the Act as it talked of a degree whereas the Act did not require a degree. He alleged that he was actually over qualified for the job. According to him, in fact, the government was giving him special assignments. He added that the 2nd respondent was not in office on 2/8/2013 and could therefore not have put up the advertisement. He added that he learnt of his shortlisting from newspapers.
He added that he had been cleared by the EACC itself and he was not aware of any letter that it wrote to say that he was not suitable. He was cleared by a CRB, HELB, and the DCI. He concluded that anyone saying that the respondents appointed him wrongly or illegally was totally wrong.
Fred Nyambane Owanda working with the Technical and Vocational Education Authority hereinafter referred to as ‘TVEA’) testified as the 8th witness. He told the court that the Authority organizes and regulates training institutions by registering them. He said that Vision College of Business and Accounts was not in their records as a registered institution. Mountain Top Institution was registered as Mountain Top Hotel and Travel Institute. In cross-examination, he stated that they do not regulate courses administered by the professional institutions like IPA or IPSC. He also admitted that Kenya Institute of Management offered recognized professional course and they do not regulate it or universities.
PW9 was Stephen Yego a forensic document examiner working with EACC stationed in Nairobi. The summary of his evidence was that the 1st and 2nd respondents signed several minutes of the Board and appointment letters in question.
George Mwangi a Sub-County Administrator with the government was the tenth witness. He testified that he saw advertisements in the media, applied and was recruited as he was qualified although the advertisements had put qualifications which were not in the law. Interestingly, the witness told the court that the qualifications shown against his name in the list of applicants were not correct. For instance, he did not possess a bachelors degree but the list showed that he had. He also pointed out that the list had many errors. Like PW4, this witness seemed to be hostile as the state counsel is seen stopping and warning him twice about giving evidence he had no facts about especially when he seemed to testify against the prosecution case.
He added that before he joined the government, he was working with an organization called Portions Link where he was the managing partner in charge of research and training. He was cross-examined by Mr. Wahome and said that the only requirement for a Sub-County Administrator is that, one should have qualification and knowledge in management. He added that at the time of the advertisement, the Board was not in existence. He also emphasized that his performance since employment was satisfactory and he had been promoted for good work. He admitted that one Priscilla was one of those who interviewed him and she scored him very highly yet she was not one of the accused persons. He also stated that he did not know any of the accused persons before the recruitment.
PW11 was Priscilla Muthoni Wanjiri working with the ministry of Education at Jogoo House as an assistant secretary. She told the court that she was previously working in the government as the Executive Committee Member in charge of public administration. She recalled that she was invited in the recruitment of candidates of Sub-County Administrator. The decision to recruit was made by the County Executive Committee at which time the Board was not fully functional as it had only the Chairperson and a Secretary.
She added that her role was to give technical advice on administrative issues. Before the interview, they ascertained if the applicants had qualified for shortlisting. She added that those shortlisted had qualified. She stated further that she went through the list to confirm that the applicants had the minimum qualifications. After the interviews, the panelist added up the scores then they handed over the score sheets to the Secretary of the Board, the 2nd respondent. She was later given a list of successful candidates to issue letters of appointment. She was also required to do quick background check which she did not. According to her, the background check should have been done before the shortlisting. She added that it was the County Secretary who issued the letters to the successful candidates and that the Executive Committee had faith in what the Board did.
When she was placed under cross-examination, she told the court that the advertisements were not put up by the respondents. She admitted that the requirements set out in the advertisements of 2/8/2013 and 29/11/2013 were not in line with Section 50 and 51 of the County Governments Act and therefore they contravened the law. She stated that the Board followed the statutory provisions and did not breach them. She admitted that she scored George at 80 per cent. She also confirmed that Phares was qualified for the job of Ward Administrator and her recommendations in her score sheets were that the two were qualified for the positions they had applied. She added that she was the supervisor of both George and Phares and could vouch for them. They were amongst the best performers.
Testifying as the 12th witness, Elijah Wambugu Ndegwa who worked in the Presbyterian Church of East Africa, in the department known as Theology Education Extension told the court that his responsibilities included office administration, recruiting and assisting students taking courses, administering and marking exams, compiling data and preparing for graduation. He joined Mt. Kenya region in December 2012 and was confirmed in 2013.
In regard to this case, the witness said that she was called by a Mr. Salat from EACC who wanted to confirm the authenticity of a certificate issued to one Jackson Thagana. I don’t find the testimony of this witness relevant to this appeal as it does not relate to the counts in issue.
PW 13 was George Kariuki an advocate of the High Court of Kenya. He told the court that he was appointed as a member of the Board around July 2013 but he resigned shortly after 2 or 3 weeks before he could be sworn in and before the Board could have its first sitting. He stated that he participated in drafting an advertisement for some positions including the Ward and Sub-County Administrators in issue in this matter.
He added that the Transition Authorty and Public Service Commission gave them general specifications for each of the posts. In regard to the Sub-County Administrators, the request was that the candidates must be a Kenyan with at least a degree from a recognized university in Kenya and a post-graduate qualification, work experience of not less than 5 years and meeting Chapter 6 of the Constitution. Sub-County Administrator was to be equated to a job group of profession management level.
He added that the Ward Administrator’s post was equated to a middle level management staff and was required to have a bachelors degree in the field and 10 years' experience. He added that they also looked at the County Government Act to see if the positions were established by the law. They were also guided by Public Service Commission Career Progression Guidelines (hereinafter referred to as ‘the guidelines’). He added that he resigned before the advertisement was published and that the contents of the advertisements were in line with their discussions with the Transition Authority.
In cross-examination, the witness stated that, he did not draft the advertisement and insisted that there was no Board as per the law. He admitted that the guidelines in court were dated July 2014 while the activities they were doing were in July 2013 and admitted that he could not have used the guidelines before the court and that the guidelines did not speak of Ward and Sub-County Administrators. He added that Sections 50 and 51 of the County Governments Act does not require degrees for the said positions. He also stated that he did not know of any offence the respondents had committed.
PW 14 was James Wambua a Deputy Commissioner in Tharaka Nithi County who in 2015 was an Assistant County Commissioner in Tetu in Nyeri County. He testified that in 2014, he was co-opted in an interview panel for interviews conducted on 6/2/2014 whose secretary was the 2nd respondent. He was involved in the interviews of Ward Administrators as a technical member based on his experience as an administrator.
He stated that at the end of each candidate's interview, they would give back the score sheet to one member of the panel. He added that, the basic qualification that the candidates needed to have was a diploma. The witness added that after handing over his score sheets, he did not participate further in the recruitment including the aggregation of the scores of all the candidates. He did not get to know who succeeded from amongst the people he interviewed.
In cross-examination, the witness stated that, he participated in the interviews to provide technical support. He added that one of the candidates he interviewed and scored was Phares whom he gave a score of 80 per cent.
Eliud Muriithi the 15th witness joined the Board in July 2013 and left in July 2018. He stated that, the operations of the Board started in October 2013 when all the members were recruited and sworn in before which time, advertisement for the jobs in issue had been placed by the then Transition Authority in liason with the government’s executive. He stated further that the Board was not consulted about the advertisements as they just saw them in the press. According to him, they saw the requirements for the jobs but there was nothing they could do.
The witness added that during the briefing about the positions, the Chairperson of the Board informed the Board that, since these advertisements had been done through another body, the Board should adopt those advertisements and their responses as their own. The Board therefore owned the advertisements and the whole process without variations. He was present in all the meeting but he was not sure of the meeting of 4-11-2013 stating that the meeting he remembered attending dealt with Executive Committee Members.
The witness stressed that he did not participate in the shortlisting for the positions of the Ward and Sub-County Administrators which was done during the month of November 2013 on a date that he was not present. After being shown the minutes for 4-11-2013, he changed the story and stated that he was present at the meeting that day but insisted that the minutes showing that the Ward Administrators and Sub-County Administrators were short listed on that day are not correct.
He insisted that it was the Board which did the shortlisting and that it adopted the guidelines and the parameters set out in the advertisements which it relied on in selecting those to be interviewed. He added that he also participated in the interviews a
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