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JudgmentSAMUEL NJOROGE NGUGI VS The Republic21 min read

SAMUEL NJOROGE NGUGI VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(From Original Conviction and Sentence of Hon. Martha W. Mutuku in the Chief Magistrate’s Court at Mombasa, in Criminal Case No. 11 of 2018 dated 26th January, 2024)


Introduction

  1. The Appellant was charged before the Court with the offence of:-

COUNT I: RECEIVING A BRIBE CONTRARY TO SECTION 6 (1) (a) AS READ WITH SECTION 18(1), (2) OF THE BRIBERY ACT NO. 47 OF 2016. Particulars of the same being that on 8th day of June 2018, at Saba Saba, Spaki, within Mombasa County being a person employed by a public body to wit National Hospital Insurance Fund as NHIF Driver I, you requested a financial advantage of Kshs. 25,000/- from Mr. Bernard Kyalo Nzioka in order to overlook an alleged penalty/ of Kshs. 19,200/- and probable prosecution for alleged late payment of the Academy's employees NHIF monthly deductions, a matter relating to the affairs of the said public body.

COUNT II: RECEIVING A BRIBE CONTRARY TO SECTION 6 (1) (a) AS READ WITH SECTION 18(1), (2) OF THE BRIBERY ACT NO. 47 OF 2016. The particulars of the same being that on 8th day of June 2018, at Saba Saba, Spaki, within Mombasa County being a person employed by a public body to wit National Hospital Insurance Fund as NHIF Driver I, you requested a financial advantage of Kshs. 23,000/- from Mr. Bernard Kyalo Nzioka in order to overlook an alleged penalty/ of Kshs. 19,200/- and probable prosecution for alleged late payment of the Academy's employees NHIF monthly deductions, a matter relating to the affairs of the said public body.

  1. The Appellant was charged, he denied the charges and the trial court put down the case for hearing. The prosecution called ten (10) witnesses and at the close of the prosecution’s case, the trial court found the Appellant with a case to answer; put him to his defence and eventually acquitted him in count and  convicted  him in count 2 and ordered to pay a fine of Kshs 100,000/- or serve six (6) months in .
  2. Being dissatisfied with the said judgment the appellant lodged the present appeal relying on the following grounds:
  3. The Learned Magistrate erred in Law and fact in finding that there was efficient evidence or at all capable of finding the Appellant Guilty beyond doubt in count two and sentenced to pay a fine of Ksh.100,000/- in default serve the jail term.
  4. The Learned Magistrate erred in Law and fact by convicting the Appellant in count 2 whereas the same evidence was used to acquit the Appellant in count one for having no evidence to link the appellant with the offence.
  5. The Learned Magistrate erred in Law and fact by regarding contradictory evidence of the prosecution witnesses that left a lot of doubts which were to be ruled in my favour.
  6. The Learned Magistrate erred in Law and fact in totally ignoring the evidence before it.
  7. The Learned Magistrate erred in Law and fact by failing to take into account the mitigation by the Appellant.
  8. For the reasons advanced in his Petition of Appeal, the Appellant prayed that:
    1. That the appeal be allowed
    2. That the sentence in Count 2 be set aside
    3. That the judgment herein be quashed.

The Prosecution’s case

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

PW 1 Mr. Benard Nzioka told the court that he used to pay statutory deductions for Mazeres Junior Academy. On 5th June, 2018, madam Lugo the director of the school called him and gave him the letter. The letter dated 4th June, 2018 from NHIF was demanding Kshs. 19,200. He doubted the letter which was unsigned and secondly, he had already paid the money. In the evening, Samuel Njoroge called PW1 on phone. Njoroge introduced himself as the person the witness had met at Mariakani NHIF offices. Accused went on to tell PW1 that he had spoken to Mr. Kagunyi. He further told him to look for Kshs. 30,000 to avoid being charged in court. On 5th June, 2018, the witness went to NHIF offices. He showed the letter to the manager who requested him to leave the letter behind. The following day, the manager advised him to go and report the case with EACC. He reported to EACC offices. Njoroge called PW1 and demanded Kshs. 25,000. At the EACC offices he was given Kshs. 25,000 all serialized and kept in an envelope which the witness signed and dated. He was also given a video and audio gadget and agreed with the accused to meet at Saba. He proceeded in company with EACC officers to Saba Saba where the accused had parked his motor vehicle. They met and after exchanging pleasantries, the accused demanded to know if the witness had brought the money. PW1 gave Kshs. 25,000. Out of the Kshs. 25,000 the accused gave him Kshs. 2,000 as a way of showing gratitude. At that point in time the EACC officers arrived and the accused threw the money to the ground. The witness produced receipts to show that he paid NHIF penalties Kshs. 24,000/- on 17th May, 2018. The witness had signed a transcript which was prepared on the same day.

  1. PW1 stated that the letter was written on 4th and received on the same day. That the name of Samuel Njoroge did not appear on the letter. He knew Njoroge once he had been seeing him at Mariakani Sub-branch. The accused had initially demanded Kshs. 30,000 and after negotiations reached Kshs. 25,000. Regarding the video images, the witness explained that his face could not be seen as he was the one who was recording the video images.
  2. PW2 Olive Zuhura Matano, the head teacher at Mazeres Junior Academy. It was her evidence that the school secretary called Fault Kenyola, and informed her about a letter dropped at the school. The letter from NHIF was in respect of unpaid money Kshs. 19,200. She called Benard the accountant who was involved in making statutory payments. Bernard said that he had already paid NHIF and had the receipts to that (MFI-7(a)-(d). she advised him to avoid NHIF offices. Later, she learned from PW1 that the case had been reported to EACC.  When cross examined she said that the accused was not known to her. The letter making the demand had been written by Arthur Kazu. It was also her evidence that though she did not know Njoroge, he had called her the following day demanding to know if she had received the letter.
  3. PW3 Douglas Odhiambo Owino, an employee of NHIF was in his office on 6th June2018 when he got a phone call from Bernard Kyalo. Bernard was not known to him. He met him in the office on 7th June, 2018. Bernard complained that Samuel Njoroge, NHIF driver based in Kilifi and Arthur Kazu a compliance officer based in Mariakani were extorting money from him. He saw the letter that Bernard was holding and advised him to report to the EACC. On 8th June, 2018 at around 10:00am he was called to EACC offices Mombasa where he identified the accused who had already been arrested by EACC officers. He was also shown Kshs. 25,000/- by the accused and a video of a conversation between the accused and Bernard. The witness also signed a certificate of voice and image recognition dated 8th June, 2018.
  4. PW4 Arthur Ndaro Kazu, a compliance and registration officer- NHIF. It was his evidence that he wrote the letter dated 4th June, 2018 MFI-1 to Mazeres Junior Academy. He had delivered the letter to the school and handed it to Fault Kinyola, the school secretary. The accused called PW4 and told him that he knew the directors of the school and that he should allow him to handle the matter. On 8th June, 2018, PW4 confirmed to PW3 that he had indeed written the letter. He later learned that the accused had been arrested while receiving a bribe. He further stated he wrote a letter in his official capacity and that he did not send the accused to demand money. PW4 was called to EACC offices and he was interrogated. He did not hear Njoroge demanding a bribe but his evidence was that he had seen the video clip where Njoroge took the money.
  5. PW5 Mr. Hamisi based at government chemist at Mombasa received evidence accompanied by an external memo from Racheal Nzaro of EACC Mombasa. He received envelope 'A' containing right hand swab 'D', left hand swab 'C' envelope containing 23 notes of 23,000 'D', an envelope marked 'E' containing APQ. Upon analysis he established that all tested positive for APQ. He produced the report he had prepared as NEX 11.
  6. PW6 Omar Ali, an employee of NHIF, visited EACC offices on 8th June, 2018. In the video clip he was able to identify Samuel Njoroge who was their driver. He signed the certificate of voice and image identification. The NHIF official motor vehicle reg No. KCM 087S was parked at the EACC parking yard and was recorded to him. He also produced documents to show that accused was an employee of NHIF and that on the specific day, the accused was in possession of the motor vehicle. On 8th June, 2018 the work ticket indicated that the motor vehicle was to leave Mombasa for Kilifi, Mtwapa and back. In the accused's daily operation the vehicle used to be parked at Makupa police station. When the video clip was played the witness is able to identify the image and voice of Samuel Njoroge, whom he said that he knew very well and had a very cordial working relationship.
  7. PW 7 Sgt. Steven Nyamai, a scenes of crime officer was called by EACC officers. He photographed motor vehicle reg NO. KCM 087S ISUZU pick up double cabin which was parked outside EACC offices in Mombasa. He produced the photograph and the certificate as evidence to court.
  8. PW 8 Seberiani Mtimama, an investigator based at EACC offices Mombasa. When the case was reported to their offices he was tasked to conduct preliminary investigations. He introduced the complainant to a video audio gadget. The accused had made a demand of Kshs. 25,000. Kshs. 25,000 was photocopied and prepared then placed in an envelope. An inventory was prepared before they accompanied PW1 to Saba Saba. At Saba Saba PW1met the accused. PW1 signaled them from where they stood to confirm that the target had made a demand and had received the trap money. They stormed and arrested the accused who upon the officers introducing themselves, threw Kshs. 23,000 to the road side. The Kshs. 23,000 was recovered. Accused was escorted to the EACC offices. APC Kibet prepared swabs on the left and right hand of the accused. A swab certificate was also prepared by the witness. A search was also conducted in the accused official motor vehicle and an inventory prepared.
  9. The IO also communicated to the accused's supervisor who visited the office and did a voice and image recognition and signed a certificate to that effect. The witness also prepared the transcript before another officer took over investigations. He produced all the exhibit before court. When cross examined he confirmed that the demand was increased through a phone call. He did not record the accused,PW1 telephone NO. He did not record a witness statement from a member of public. In XXD the prosecution demonstrated that the accused had made a demand in his conversation with the PW1.
  10. PW 10 Racheal Dzaro, corroborated the evidence of the witnesses. She narrated how the demand was made, and how investigations were conducted while the accused person was eventually arrested, and charged with the offence before court.

The Defence case

  1. The appellant told the Court that on 8th June,2018 he was employed as a driver by NHIF. That he went to Makupa police station to pick the official motor vehicle in order to drive the manager from Nyali to Kilifi offices. The accused used to reside at Spaki which is before Makupa and saba saba. He passed by the garage and adjusted the brakes. Later Bernard Kyalo the complainant in these cases called him. Bernard told him that the inspector from Mariakani had written a letter to him. When they met Bernard had two envelopes. He thought the envelope contained the response only to discover that there was money in the second envelope. When he noticed the heavy envelope had money he returned it to the complainant and in the process,  it fell down, that is when the EACC officers approached and arrested him. They all drove in the NHIF motor vehicle to ACK gardens where EACC offices are situated. In the offices they found Douglas Owino. The accused stated that he then realized that Douglas had set him up. That three weeks prior Douglas had visited his offices in Kilifi and told him that he was lazy and would make sure that the accused was fired. Then the accused got interdicted and thereafter a relative by the name Dinah was employed to take his place.
  2. He denied ever taking a bribe and stated that he did not demand for a bride too and that though Douglas and Omar testified that they had identified the voice of accused from the recording, that that was not his voice. It was his evidence that it would not make sense to ask for Kshs. 25,000 on a count of a penalty Kshs. 19,200.

Submissions

  1. The Appellant filed him submissions where he averred that being aggrieved by the Judgment of Hon Martha Mutuku (CM) delivered on 26th January 2024 at Mombasa Criminal Case No. AC11 of 2018 REPUBLIC VS SAMUEL NJOROGE NGUGI chose to appeal from the Judgment on the grounds below:-
  2. The Learned Magistrate errored in law and fact in finding that there was sufficient evidence or at all capable of finding the Appellant guilty beyond doubt in count No. 2 a fine of Kshs. 100,000/- in default serve the jail term. The evidence relied on is an audio vision record taken by PW1 who is not a professional photographer or recording expert nor videographer. The said video does not show who the giver of the envelope is and the evidence is not sufficient because PW1 cannot be seen in the video.
  3. The Learned Magistrate errored in law and fact by convicting the Appellant in count 2 whereas the same evidence was used to acquit the Appellant in count 1 for having no evidence to link the Appellant with the offence. The Learned Magistrate in his Judgment acquitted the Appellant on count No.1 and convicted him on count No.2 which according to him is a duplication of count No. 1. The Magistrate has made a legal Lacuna in acquitting the offender in count No. 1 which to him is a duplication of count No. 2 which he then convicted the said offender. The Trial Court errored in law and in fact in acquitting the Appellant in count No. 1 and convicting him in count No. 2.
  4. The Learned Magistrate errored in law and in fact by regarding contradictory evidence of the prosecution witnesses that left a lot of doubts which were to be ruled in favour of the Appellant. There is no evidence adduced by PW1 to prove that the Appellant asked for a bribe of Kshs. 30,000/-.
  5. There was no evidence of serial numbers of Kshs. 25,000/- notes used as evidence. The Learned Magistrate errored in law and fact in totally ignoring the evidence before it. That it could be true that Douglas Owino had sinister moves and had planned to fix the Appellant who is a driver by organizing with PW1 and the EACC. There was no evidence that the EACC found the Appellant with the envelope. EACC did not take any video showing PW2 handing over Kshs. 25,000/- to the Appellant. The Learned Magistrate relied on circumstantial evidence and a lot of hearsay as evidence to convict the Appellant.
  6. In conclusion, the Appellant submitted that the Respondent did not prove their case beyond reasonable doughty. The video does not show PW1 Handing over the envelope to the Appellant. The only person seen in the video is the Appellant while the bearer of the envelope is not seen, we cannot say it's PW1 or somebody else.

Analysis and Determination

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

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

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

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

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

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

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

  1. Having reviewed the trial Record, the grounds of appeal and the parties’ submissions, the only issue for determination is whether the prosecution case that was insufficient to convict the Appellant on the first count could be used for the second count.
  2. The Appellant faced the charge of receiving bribery contrary to section 6(1)(a) as read with section 18 (1),(2) of the Bribery Act No. 47 of 2016. Section 6 of the Bribery Act under which the appellant was charged provides as follows:

(1)   A person commits the offence of receiving a bribe if —

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

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

(c)    in anticipation of or as a consequence of a person requesting for, agreeing to receive or accepting a financial or other advantage, a relevant function or activity is performed improperly by that person, or by another person at the recipients' request, assent or acquiescence. (Emphasis added).

  1. In Gideon Makori Abere – Versus - Republic [2019] eKLR the court considered the provisions of section 6 of the Bribery Act and set out the ingredients therein as follows:

“From the wording of the two provisions quoted, one can conveniently distil in summary the ingredients of the offence as firstly, one has to request, receive or agree to receive a financial or (other) advantage, there must be the mens rea that by so receiving some function or activity should be improperly performed by that person or by somebody else and lastly the function must be of a public nature or of such a nature carried out by a public officer.”(Emphasis added)

  1. I take the view that a reading of section 6 of the Bribery Act demonstrates that requesting for a bribe is an element of the offence of receiving a bribe. In this case, the appellant was charged with the offence of receiving a bribe, an element of which is requesting for a bribe. The evidence presented before the court which I have set out earlier in this judgment shows that the Appellant issued the Complainant with a letter showing that he was in arrears with his NHIF remittance; that evening the Appellant called him on phone introducing himself as the person he had met at the Mariakani NHIF offices. According to the Complainant the appellant called him and demanded for Kshs 23,000/-. They later met according to the Complainant and he handed over the envelops of money to the Appellant.
  2. There was a swab done on the Appellant’s hand and he was found to have APQ powder tainted hands. I must take note however that when the officers arrested the Appellant he did not have money in his possession. Sub section (a) of Section 6 the court appreciates relates to a situation where the person requests, agrees to receive or receives a financial or other advantage intending to influence or to cause improper performance of the relevant function by himself or by another person. In this regard there should be evidence of the conversation that the Appellant and the Complainant had where the Appellant was alleged to have stated that he will influence the said decision of performance of an action.
  3. PW 1 told the court that the Appellant called him on phone; it would be sufficient enough to have produced the said call logs as the videos alone could just have been he had called the Appellant to the meeting place to set him up. There are so many doubts and holes to the evidence of the Complainant that could have only been filed with sufficient evidence. Nobody else was present when the appellant made the demand. When he reported to the EACC, the officers awaited to verify whether that demand was there hence the necessity for a recording device.  In other words, they could not take the information of the complainant on its face value without corroborative evidence. If the report of the complainant was sufficient without further verification, the officers would have moved straight to arrest the appellant.
  4. Corroboration is a key ingredient in criminal proceedings.  Where the court relies on the evidence of a single witness, the court must warn itself of the dangers of such conviction. In the case of Chila – Versus - R (1967) EA 722 at Page 123 Paragraph C the court had this to say:     

“The judge should warn himself of the danger of acting on uncorroborated testimony of the complainant, but having done so, he may convict in the absence of corroboration if he is satisfied that her evidence is truthful.  If no such warning is given then the conviction will normally be set aside unless the court is satisfied that there has been no failure of justice”.

  1.   I do not agree with the submissions of the Accused that the evidence was contradictory and was not sufficiently corroborated . I am also aware of the dangers of convicting on the evidence of a single witness.
  2. In this case there is a chain of events that led to the arrest of the Appellant . It is trite law that the prosecution case should be proved beyond reasonable doubt.
  3. I take note that the Appellant submitted that the trial court relied on circumstantial evidence.
  4. For circumstantial evidence to work, it must be inconsistent with the accused’s innocence. In the case of Ahamad Abolfathi Mohammed and Another – Versus - Republic [2018] eKLR, Court had this to say on circumstantial evidence:

“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. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.’

  1. Further, the conditions for the application of circumstantial evidence in order to sustain a conviction in any criminal trial have been laid down in several authorities of this court. Suffice to mention Abanga alias Onyango – Versus -  Republic CR. App NO. 32 of 1990(UR) in which this court held as follows:

“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 guilt of the accused; (iii) the circumstances taken cumulatively, should form 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.”

  1. In this case the evidence  to linking  the Appellant to the crime is  the oral evidence of PWI ,the swabs and the voice and visual recording which were produced in court.  The appellant's defence was that the complainant called him and they met ,but he was to  collect come letters  which he said he thought was the response.  That places him at the crime scene. It also confirms that there was prior communication between the two and a response needed. He also touched the envelopes containing the money and that is how the APQ powder was found on his hands.
  2. Their lengthy communication, when they met,  was captured on both visual and audio records.
  3. He faulted the visual recording as it was only him (Appellant ) visible taking the envelope.   The investigator explained that pw1 was the recorder and therefore he could not record himself.  That makes sense.
  4. As for the oral recording the voice was properly identified and a full transcript produced as PEXT 8. In the lengthy exchange, there is no mention of any letter or response.  The two discussed the money and even joked about fixing his boss. Even when he gave PW2 The discount, the tape was running.
  5. His voice was identified by his supervisor OMARI ALI MWATABU, who signed the certificate of voice recognition Pext 20.
  6. Considering the entire evidence on record this Honourable finds that the prosecution established the case against the accused to the required standards. 
  7. As for why he was acquitted in one charge and convicted in the other , the court found that the particulars were the same and count 1 was a duplicate of count 2.
  8. As regards the sentence , I find that it was , in fact on the lower side.
  9. Accordingly the appeal fails and it is hereby dismissed.  Both the conviction and the sentence are upheld.

IT IS SO ORDERED ACORDINGLY.

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

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

MR NGIRI……………State Counsel;

THE APPELLANT

    SAMUEL NJOROGE NGUGI VS The Republic SAMUEL NJOROGE NGUGI VS The Republic