' ''
(Being an Appeal against the decision of Hon. Francis N. Kyambia CM in Criminal Case 754 of 2013 delivered on 11 th February, 2022 acquitting the respondents under Sec 210 of the CPC.)
The respondents were charged with the offence of Conspiracy to contravene provisions of the East African Community Customs Management Act, 2004 contrary to Section 193 of the East African Community Customs Management Act, 2004 . Under Count II, they were charged with the offense of bringing into a customs area prohibited goods for exportation contrary to Section 200 (c) (i) of the East African Community Customs Management Act, 2004.
The particulars of the offence under Count I are that on the 1 st day of December, 2012at the port of Mombasa in Changamwe District within Mombasa County, the 1 st , 2 nd and 3 rd respondents, jointly with others before court conspired to contravene the provisions of the East Africa Community Customs Management Act, 2004 to wit bringing into a customs area prohibited goods namely 1099 pieces of ivory weighing 1833kgs stuffed into 1 x 20 feet container number NYKU 2744973 valued at kshs.91,650,000 for exportation to Vietnam. And, under Count II on the same day, within the said locality, jointly with other before court brought into a customs area prohibited goods to wit 1099 pieces of ivory weighing 1833kgs stuffed into 1 x 20 feet container number NYKU 2744973 valued at kshs.91,650,000 for exportation to Vietnam.
The appellant called fifteen (15) witnesses in support of their case. The learned trial magistrate after considering and analysing the weight of the prosecution evidence held thus:
“…in this case it is alleged by the prosecution that the accused conspired to bring prohibited goods into a customs area. Throughout the evidence adduced by the prosecution there is no direct evidence pointing at the accused persons as the ones who brought the container containing the prohibited goods to the port. It is all based on circumstantial evidence. And the law is very clear that circumstantial evidence to be relied upon, there must be no other existing evidence weakening the chain of circumstances.
From the evidence adduced especially by PW1, the container in question is said to have been handled by his company namely Three Ways Freighters Limited. The port pass of the persons who allegedly booked the container for shipment were retrieved from the system. None of the accused especially the 1 st accused who is said to have been the one who booked the container is indicated in the port pass which was produced in court. (sic)
Similarly, the 2 nd and 3 rd accused are linked with the shipment of the container because at the time they were working with Kenya Revenue Authority, and they were on duty on the dates the container is alleged to have been shipped. It is also the evidence of the prosecution that for purposes of clearance of goods at the port, there was a requirement of a password by the clearing agent as well as the customs officer.
Throughout the prosecution case it was never explained whose password was used to clear the container for shipment and if at all it was any of the accused persons herein.
There is also contradictory evidence as to the clearing agent company which dealt with the container. It is alleged that the container was dealt with by Three Ways Freighters Limited and at the same time that Mwamba Freight Services also dealt with the container.
From the foregoing evidence which is not only contradictory but does not form unbroken chain so as to link the accused with either bringing the container at the port or showing that there was an agreement between the accused to bring the same into the customs area, leaves the prosecution case weak. As the second count relates to the first count it follows that the evidence by the prosecution has not met the threshold of establishing a prima facie case in respect of the same.
For the foregoing reasons I find that the prosecution has not made out a prima facie case to warrant placing the accused on their defence. Consequently, I do hereby acquit the accused persons under Section 210 of the Criminal Procedure Code.”
Being, aggrieved by the above decision, the state preferred the present appeal. It is based on grounds that the learned trial magistrate erred in matters of both law and fact by failing to consider that the prosecution had proved a prima facie case against the respondents from the weight of the evidence and thereby placing the respondents in their defense. Further, that the learned magistrate erred in law and fact by failing to consider that the evidence is not contradictory and linked the respondents to the charged offences specifically the testimonies of PW2 and PW3 that links the respondents to the shipment of the container NYKU 2744973.
Despite directions by this court that the appeal be canvassed by way of written submissions, and severally granting and extending leave for compliance, neither of the parties had filed the same as at the time of making this determination.
Determination
In determining this appeal, this Court is alive to the principles laid down in Okeno v Republic [1972] E.A. 32 that an Appellant on a first appeal is entitled to subject the evidence to a fresh and exhaustive examination and draw its own independent conclusion. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses as they testified. See Peters Versus Sunday Post [1958] East Africa 424.
The jurisdiction of this court on an appeal against an acquittal is provided at Section 354 (3) (c) of the Criminal Procedure Code which states: -
“(1) At the hearing of the appeal the appellant or his advocate may address the court in support of the particulars set out in the petition of appeal and the respondent or his advocate may then address the court.
(2) The court may invite the appellant or his advocate to reply upon any matters of law or fact raised by the respondent or his advocate in his address.
(3) The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may—
…
(c) in an appeal from an acquittal, an appeal from an order refusing to admit a complaint or formal charge or an appeal from an order dismissing a charge, hear and determine the matter of law and thereupon reverse, affirm or vary the determination of the subordinate court, or remit the matter with the opinion of the High Court thereon to the subordinate court for determination, whether by way of re-hearing or otherwise, with such directions as the High Court may think necessary, and make such other order in relation to the matter, including an order as to costs, as the High Court may think fit.”
Section 193 of the Community Customs Management Act, 2004 provides as follows:
“A person who conspires with another person or persons
to contravene any of the provisions of this Act commits an
offence and shall be liable on conviction to imprisonment for a
term not exceeding five years.”
Further, Sec 200 of the Act states that:
“A person who:
…
(c) exports, carries coastwise, or puts on board any aircraft, vehicle or vessel, or brings to any Customs airport, Customs area or place, to be put on board, for exportation or for use as stores or for carriage coastwise-
(i) any prohibited goods; or
(ii) any restricted goods contrary to any condition regulating the exportation, use as stores, or carriage coastwise, of such goods;
commits an offence and shall be liable on conviction to imprisonment for a term not exceeding five years or to a fine equal to fifty percent of the dutiable value of the goods involved, or both”
This court has aptly re-evaluated the prosecution’s evidence and their witness testimonies. There is no direct evidence imputable to the respondents that they indeed brought the prohibited consignment to the Mombasa Port. It is undeniable that the evidence is circumstantial at best. It is not far-fetched to see why the prosecution required a whooping fifteen (15) witnesses. Clutching on straws?
Be that as it may, the threshold and reliance of circumstantial evidence was principled in Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, the Court of Appeal stated as follows;
“However, it is a truism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved…
Before circumstantial evidence can form the basis of a conviction however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the Subject person, and to no other person, as the perpetrator of the offence.”
“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Subject; iii) the circumstances taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” See Abanga alias Onyango v R Cr. App. No 32 of 1990
Conspiracy is an agreement between two or more individuals to act together to achieve an unlawful objective . The agreement itself is the gist of the offence, whilst the actus reus is the fact of agreement. In the case Christopher Wafula Makohga -v- Republic (2014) eKLR the court had this to say on what constitutes the offence of conspiracy.
“11. In Archibold: Writing on Criminal Pleadings, Evidence and Practice (Supra), the learned writers observe at pages 2589 and 2590 that: -
“The offence of conspiracy cannot exist without the agreement, consent or combination of two or more persons... so long as a design rests in intention only, it is not indictable; there must be agreement...
Proof of the existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them.”
From the above, conspiracy to contravene the provisions of the Act under Count I herein, is a matter of inference which in this instant can be deduced by establishing proof of Count II.
Respectfully, save for PW2: Catherine Adhiambo, a senior clerical officer with KPA, none of the other witnesses directly or impliedly implicated the respondents to the offences charged against them. The rest of the witnesses simply testified on the contents of the prohibited goods and how they were cleared, exported and intercepted at their destination without due process having been followed. However, none of the witnesses made mention of the respondents as the perpetrators of the offences.
The implication of the 2 nd and 3 rd respondents over the charged offences was on the pretext that they were employees of KRA and were allegedly on duty on the material days. In fact, the very testimony by PW2 was that while on duty she received an alleged email from the 3 rd respondent to serve the 1 st respondent (as per the message), being the clearing agent in respect of the container NYKU 2744973 but did not interact with either party. However, PW15 Sylvester Mwamba-KRA Mombasa Port In-Charge Gate 18, produced the attendance/duty register which showed that the 3 rd respondent was not on duty on 10/12/2012 during the commission of the offence.
PW3 David Mwarori, a driver by profession, testified that he is the person who took the container to the port, having received the instructions and shipping documents from his employer PW4 Musa Jacob Ramadhan, a transporter, who in turn testified that he received the instructions and release order from a clearing agent of the named ‘Ali’ from Mwamba Freighters.
The narrative is further sunk in array as PW1 Dismus Omudayi, a Director of Three Ways Freighters Ltd, a clearing and forwarding agent, who testified that all licensed operators are issued with a password through which they log in the KRA system and generate requisite documents to facilitate the clearance of cargo but during the material time his domain was dormant and could not be used to conduct business. It was his evidence that in the material year (2012) he sought to renew his password, at which point he was informed that his company was under investigation for its involvement in the exportation of ivory after the consignment entries used to clear the consignment were made through his company. However, the port passes used to clear the goods were retrieved and found to be forgeries and did not to belong to any of his employees. one Dennis Maitha and Alfred Mwamunga. Nowhere, was the 1 st respondent mentioned.
It is therefore boggling as to what the 1 st respondent’s involvement is in the occasion of the offences, and what collusion exists between the respondents as neither of them are implicated in the commission of the offences. Peculiarly, the persons named and deducible as co-conspirators in the prosecution evidence were neither charged nor presented as witnesses herein. Needless to add, the glaring inconsistencies cannot be gainsaid. On one hand, PW1’s company Three Ways Freighters Ltd is implicated as the clearing agent, yet PW4; the transporter and PW12 No. 23862 CP John Githinji DCI, In-charge Revenue Protection testified that the clearing agent was Mwamba Freighters.
Weighing the evidence herein, if any, against the tests that firmly bases a conviction on circumstantial, this court is of the opinion that the case against the 1 st and 2 nd accused persons is anchored on quicksand, at best.
No inference can be conceptualized on the guilt of the accused persons as the basic inculpatory facts against them are non-existent.
Simply put, the prosecution’s case was anchored on quicksand. No court rightfully directing itself on the evidence herein would conclude otherwise. The circumstances from which an inference of guilt was sought to be drawn were neither cogently nor firmly established. The prosecution’s evidence did not link the respondents irresistibly with the commission of the offence without leaving or suggesting any other conclusions without which, its probative value is grossly underwhelming.
In my view, the trial court was justified in its finding that no prima facie case was established to place the respondents in their defence. In the foregoing, the trial court’s decision is upheld and the appeal herein being devoid of merit accordingly dismissed.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this……23RD..day of…..OCTOBER………2025.
W.K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPELLANT(S)............................MR. NGIRI
FOR THE RESPONDENT.............................
COURT ASSISTANT...................................BEBORA MWAKA
'' '
(Being an Appeal against the decision of Hon. Francis N. Kyambia CM in Criminal Case 754 of 2013 delivered on 11 th February, 2022 acquitting the respondents under Sec 210 of the CPC.)
The respondents were charged with the offence of Conspiracy to contravene provisions of the East African Community Customs Management Act, 2004 contrary to Section 193 of the East African Community Customs Management Act, 2004 . Under Count II, they were charged with the offense of bringing into a customs area prohibited goods for exportation contrary to Section 200 (c) (i) of the East African Community Customs Management Act, 2004.
The particulars of the offence under Count I are that on the 1 st day of December, 2012at the port of Mombasa in Changamwe District within Mombasa County, the 1 st , 2 nd and 3 rd respondents, jointly with others before court conspired to contravene the provisions of the East Africa Community Customs Management Act, 2004 to wit bringing into a customs area prohibited goods namely 1099 pieces of ivory weighing 1833kgs stuffed into 1 x 20 feet container number NYKU 2744973 valued at kshs.91,650,000 for exportation to Vietnam. And, under Count II on the same day, within the said locality, jointly with other before court brought into a customs area prohibited goods to wit 1099 pieces of ivory weighing 1833kgs stuffed into 1 x 20 feet container number NYKU 2744973 valued at kshs.91,650,000 for exportation to Vietnam.
The appellant called fifteen (15) witnesses in support of their case. The learned trial magistrate after considering and analysing the weight of the prosecution evidence held thus:
“…in this case it is alleged by the prosecution that the accused conspired to bring prohibited goods into a customs area. Throughout the evidence adduced by the prosecution there is no direct evidence pointing at the accused persons as the ones who brought the container containing the prohibited goods to the port. It is all based on circumstantial evidence. And the law is very clear that circumstantial evidence to be relied upon, there must be no other existing evidence weakening the chain of circumstances.
From the evidence adduced especially by PW1, the container in question is said to have been handled by his company namely Three Ways Freighters Limited. The port pass of the persons who allegedly booked the container for shipment were retrieved from the system. None of the accused especially the 1 st accused who is said to have been the one who booked the container is indicated in the port pass which was produced in court. (sic)
Similarly, the 2 nd and 3 rd accused are linked with the shipment of the container because at the time they were working with Kenya Revenue Authority, and they were on duty on the dates the container is alleged to have been shipped. It is also the evidence of the prosecution that for purposes of clearance of goods at the port, there was a requirement of a password by the clearing agent as well as the customs officer.
Throughout the prosecution case it was never explained whose password was used to clear the container for shipment and if at all it was any of the accused persons herein.
There is also contradictory evidence as to the clearing agent company which dealt with the container. It is alleged that the container was dealt with by Three Ways Freighters Limited and at the same time that Mwamba Freight Services also dealt with the container.
From the foregoing evidence which is not only contradictory but does not form unbroken chain so as to link the accused with either bringing the container at the port or showing that there was an agreement between the accused to bring the same into the customs area, leaves the prosecution case weak. As the second count relates to the first count it follows that the evidence by the prosecution has not met the threshold of establishing a prima facie case in respect of the same.
For the foregoing reasons I find that the prosecution has not made out a prima facie case to warrant placing the accused on their defence. Consequently, I do hereby acquit the accused persons under Section 210 of the Criminal Procedure Code.”
Being, aggrieved by the above decision, the state preferred the present appeal. It is based on grounds that the learned trial magistrate erred in matters of both law and fact by failing to consider that the prosecution had proved a prima facie case against the respondents from the weight of the evidence and thereby placing the respondents in their defense. Further, that the learned magistrate erred in law and fact by failing to consider that the evidence is not contradictory and linked the respondents to the charged offences specifically the testimonies of PW2 and PW3 that links the respondents to the shipment of the container NYKU 2744973.
Despite directions by this court that the appeal be canvassed by way of written submissions, and severally granting and extending leave for compliance, neither of the parties had filed the same as at the time of making this determination.
Determination
In determining this appeal, this Court is alive to the principles laid down in Okeno v Republic [1972] E.A. 32 that an Appellant on a first appeal is entitled to subject the evidence to a fresh and exhaustive examination and draw its own independent conclusion. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses as they testified. See Peters Versus Sunday Post [1958] East Africa 424.
The jurisdiction of this court on an appeal against an acquittal is provided at Section 354 (3) (c) of the Criminal Procedure Code which states: -
“(1) At the hearing of the appeal the appellant or his advocate may address the court in support of the particulars set out in the petition of appeal and the respondent or his advocate may then address the court.
(2) The court may invite the appellant or his advocate to reply upon any matters of law or fact raised by the respondent or his advocate in his address.
(3) The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may—
…
(c) in an appeal from an acquittal, an appeal from an order refusing to admit a complaint or formal charge or an appeal from an order dismissing a charge, hear and determine the matter of law and thereupon reverse, affirm or vary the determination of the subordinate court, or remit the matter with the opinion of the High Court thereon to the subordinate court for determination, whether by way of re-hearing or otherwise, with such directions as the High Court may think necessary, and make such other order in relation to the matter, including an order as to costs, as the High Court may think fit.”
Section 193 of the Community Customs Management Act, 2004 provides as follows:
“A person who conspires with another person or persons
to contravene any of the provisions of this Act commits an
offence and shall be liable on conviction to imprisonment for a
term not exceeding five years.”
Further, Sec 200 of the Act states that:
“A person who:
…
(c) exports, carries coastwise, or puts on board any aircraft, vehicle or vessel, or brings to any Customs airport, Customs area or place, to be put on board, for exportation or for use as stores or for carriage coastwise-
(i) any prohibited goods; or
(ii) any restricted goods contrary to any condition regulating the exportation, use as stores, or carriage coastwise, of such goods;
commits an offence and shall be liable on conviction to imprisonment for a term not exceeding five years or to a fine equal to fifty percent of the dutiable value of the goods involved, or both”
This court has aptly re-evaluated the prosecution’s evidence and their witness testimonies. There is no direct evidence imputable to the respondents that they indeed brought the prohibited consignment to the Mombasa Port. It is undeniable that the evidence is circumstantial at best. It is not far-fetched to see why the prosecution required a whooping fifteen (15) witnesses. Clutching on straws?
Be that as it may, the threshold and reliance of circumstantial evidence was principled in Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, the Court of Appeal stated as follows;
“However, it is a truism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved…
Before circumstantial evidence can form the basis of a conviction however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the Subject person, and to no other person, as the perpetrator of the offence.”
“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Subject; iii) the circumstances taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” See Abanga alias Onyango v R Cr. App. No 32 of 1990
Conspiracy is an agreement between two or more individuals to act together to achieve an unlawful objective . The agreement itself is the gist of the offence, whilst the actus reus is the fact of agreement. In the case Christopher Wafula Makohga -v- Republic (2014) eKLR the court had this to say on what constitutes the offence of conspiracy.
“11. In Archibold: Writing on Criminal Pleadings, Evidence and Practice (Supra), the learned writers observe at pages 2589 and 2590 that: -
“The offence of conspiracy cannot exist without the agreement, consent or combination of two or more persons... so long as a design rests in intention only, it is not indictable; there must be agreement...
Proof of the existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them.”
From the above, conspiracy to contravene the provisions of the Act under Count I herein, is a matter of inference which in this instant can be deduced by establishing proof of Count II.
Respectfully, save for PW2: Catherine Adhiambo, a senior clerical officer with KPA, none of the other witnesses directly or impliedly implicated the respondents to the offences charged against them. The rest of the witnesses simply testified on the contents of the prohibited goods and how they were cleared, exported and intercepted at their destination without due process having been followed. However, none of the witnesses made mention of the respondents as the perpetrators of the offences.
The implication of the 2 nd and 3 rd respondents over the charged offences was on the pretext that they were employees of KRA and were allegedly on duty on the material days. In fact, the very testimony by PW2 was that while on duty she received an alleged email from the 3 rd respondent to serve the 1 st respondent (as per the message), being the clearing agent in respect of the container NYKU 2744973 but did not interact with either party. However, PW15 Sylvester Mwamba-KRA Mombasa Port In-Charge Gate 18, produced the attendance/duty register which showed that the 3 rd respondent was not on duty on 10/12/2012 during the commission of the offence.
PW3 David Mwarori, a driver by profession, testified that he is the person who took the container to the port, having received the instructions and shipping documents from his employer PW4 Musa Jacob Ramadhan, a transporter, who in turn testified that he received the instructions and release order from a clearing agent of the named ‘Ali’ from Mwamba Freighters.
The narrative is further sunk in array as PW1 Dismus Omudayi, a Director of Three Ways Freighters Ltd, a clearing and forwarding agent, who testified that all licensed operators are issued with a password through which they log in the KRA system and generate requisite documents to facilitate the clearance of cargo but during the material time his domain was dormant and could not be used to conduct business. It was his evidence that in the material year (2012) he sought to renew his password, at which point he was informed that his company was under investigation for its involvement in the exportation of ivory after the consignment entries used to clear the consignment were made through his company. However, the port passes used to clear the goods were retrieved and found to be forgeries and did not to belong to any of his employees. one Dennis Maitha and Alfred Mwamunga. Nowhere, was the 1 st respondent mentioned.
It is therefore boggling as to what the 1 st respondent’s involvement is in the occasion of the offences, and what collusion exists between the respondents as neither of them are implicated in the commission of the offences. Peculiarly, the persons named and deducible as co-conspirators in the prosecution evidence were neither charged nor presented as witnesses herein. Needless to add, the glaring inconsistencies cannot be gainsaid. On one hand, PW1’s company Three Ways Freighters Ltd is implicated as the clearing agent, yet PW4; the transporter and PW12 No. 23862 CP John Githinji DCI, In-charge Revenue Protection testified that the clearing agent was Mwamba Freighters.
Weighing the evidence herein, if any, against the tests that firmly bases a conviction on circumstantial, this court is of the opinion that the case against the 1 st and 2 nd accused persons is anchored on quicksand, at best.
No inference can be conceptualized on the guilt of the accused persons as the basic inculpatory facts against them are non-existent.
Simply put, the prosecution’s case was anchored on quicksand. No court rightfully directing itself on the evidence herein would conclude otherwise. The circumstances from which an inference of guilt was sought to be drawn were neither cogently nor firmly established. The prosecution’s evidence did not link the respondents irresistibly with the commission of the offence without leaving or suggesting any other conclusions without which, its probative value is grossly underwhelming.
In my view, the trial court was justified in its finding that no prima facie case was established to place the respondents in their defence. In the foregoing, the trial court’s decision is upheld and the appeal herein being devoid of merit accordingly dismissed.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this……23RD..day of…..OCTOBER………2025.
W.K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPELLANT(S)............................MR. NGIRI
FOR THE RESPONDENT.............................
COURT ASSISTANT...................................BEBORA MWAKA
'' '