The appellants were charged and convicted in the lower court as follows;
Count 1 which was against one Cecilia Samba Mwashigadi (hereinafter referred was to as ‘Cecilia’), 2 nd appellant and 3 rd appellant-conspiracy to commit an offence of corruption contrary to Section 47 (A) (3) as read with section 48 (1) of the Anti-Corruption and Economic Crimes Act no. 3 of 2003. The particulars were that on 21 st day of March 2019, at Shell Petrol Station near Mama Lucy Kibaki Hospital, along Nairobi-Kangundo Road, within Nairobi City County, being persons employed by a public body to wit, the Nairobi City County Government, as Clerical Officer I and Sergeants respectively, jointly conspired to commit an offence of corruption namely receiving a bribe of Kshs.20,000/= from Judith Kanana Riungu with intent that, in consequence, they would allow her to continue with construction at her residential house at Mowlem area.
The 2 nd count which was against Cecilia and the 2 nd and 3 rd appellants was receiving a bribe contrary to Section 6(1) as read with section 18(1) of the Bribery Act particulars being that on 21 st day of March 2019, at Shell Petrol Station near Mama Lucy Kibaki Hospital, along Nairobi-Kangundo Road, within Nairobi City County, being persons employed by a public body to wit, the Nairobi City County Government, as Clerical officer I and Sergeants respectively, requested for a bribe of Kshs. 20,000/ = from Judith Kanana Riungu, with intent that, in consequence, they would allow her continue with constructions at her residential house at Mowlem area.
Count 3 against the 1 st and 2 nd appellants was receiving a bribe contrary to section 6(1) as read with section 18(1) of the Bribery Act no. 47 of 2016, particulars being that on 21 st March 2019 at Shell Petrol Station near Mama Lucy Kibaki Hospital, along Nairobi Kangundo Road, within Nairobi City County, being persons employed by a public body to wit, the Nairobi City County Government, as Inspector III and Sergeant respectively, they received a bribe of Kshs. 20,000/ = from Judith Kanana Riungu, with intent that, in consequence, they would allow her continue with construction at her residential house at Mowlem area.
Being aggrieved by the conviction, the appellants filed this appeal through a petition of appeal dated 14 th July 2025 citing 15 grounds which I collapse to four as follows;
1. THAT the learned Magistrate erred in law and fact in finding that 2 nd and 3 rd appellants were guilty of conspiracy to commit an offence despite insufficient and contradictory evidence presented before the Court which did not link the appellants to the offence.
2. THAT the learned Magistrate erred in law and in fact in finding that the 1 st , 2 nd and 3 rd appellants were guilty of receiving a bribe despite there being no evidence whatsoever that they were in contact with the complainant and the monies in question.
3. THAT the learned Magistrate erred in law and fact in failing to consider the evidence of the appellants as presented in their defence.
4. THAT the learned Magistrate erred in dismissing the appellants' objections without properly considering the evidence adduced, thereby occasioning a miscarriage of justice.
This being a first appeal, this court is under a duty to re-evaluate, reconsider and re-analyze the evidence produced before the lower court and come to its own independent conclusion. It should in doing so, keep in mind that it did not take the evidence of the witnesses and did not have an opportunity to observe their demeanour and as such give due allowance for that. In Mark Oiruri Mose v Republic [2013] KECA 67 (KLR), the Court of Appeal rendered itself thus;
‘It has been said over and over again that the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyse it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that. The well-known case of Okeno vs Republic (1977) EA 32 which sets out that principle has been referred to in several decisions of this Court and of the High Court.’
In my effort to re-consider and re-evaluate the evidence, I will reproduce abridged version of the testimony of the witnesses as hereinbelow.
The prosecution’s case
The prosecution called 11 witnesses the first one being Judith Kanana Riungu who told the court that she had a house at Mowlem estate which she had built up to the ground floor and had intended to dismantle the roof to fit a slab and add one floor. Her neighbour referred her to the Nairobi City County Government (hereinafter referred to as ‘the government’) by calling someone after which five officers of the government including the driver came in a pickup. This was in March 2019.
After she explained herself to the officers, they demanded Kshs 10,000.00 which she gave in cash without a receipt. She identified them as Cecilia, Jane, Stephen, Kirui and the driver whose name she did not get to know. She added that she knew the persons she had mentioned as she used to see them in the market seeking for construction money in order to permit developments. On 18-03-2019, the same five officers returned and told her to add Kshs 20,000.00 as she had added another course.
The witness added that when she failed to give the demanded money, she was arrested and taken to Buruburu police station where she spent the night. The following day, an officer came and took her from the cells telling her that she was being taken to court for an offence of illegal dumping but on the way, they asked her to call her husband which she did upon which they told him that if she were taken to court, she would be fined Kshs 120,000.00 which made him panic and rush to where they were with Kshs 30,000.00 which he gave to Cecilia. Later, the officers picked another Kshs 10,000.00 from Firozi area making a total of Kshs 40,000.00. She added that after she gave out the money, the appellants allowed her to build.
After a few days, the new slab started leaking and she asked Cecilia if she could repair it but she told her not to dare unless she did what they had told her husband upon which she decided to report to Ethics and Anti-Corruption Commission (hereinafter referred to as ‘the EACC’). On 21-03-2029, a Mr. Mukundi of EACC gave her a recording gadget and showed her how to use it in recording conversation which gadget she identified court.
She added that, Mr. Mukundi introduced her to another officer known as Mr. Mbuvi who photocopied and treated notes of Kshs 10,000.00 and gave her the copies which looked exactly like the original in a khaki envelope. She was also shown how to handle the treated money. She identified the notes and the envelope she had signed for in court.
Mr. Mukundi and his colleagues accompanied the witness to Shell petrol station along Kangundo road where she had arranged to meet the government officers. When she met them, she switched on the gadget and started bargaining with Cecilia who was asking for 50,000.00. She went to the government’s car and negotiated with Jane, Kirui and Stephen who agreed to take Kshs 20,000.00 which she gave from the bundle she had been given at the EACC. As the officers were counting the money she had given them, she called Mr. Mukundi and when the officer saw the EACC vehicle, they attempted to drive away but they were blocked by the EACC’s vehicle and arrested.
The witness added that she later returned the remaining money and the recording gadget to the EACC and she was invited to listen to the recording upon which she confirmed that it captured their conversation. The video clip she captured was played in court where she identified Cecilia and the voices of the appellants.
In cross-examination, the witness stated that she was the one who recorded the video which did not show the money. She stated further that the plot she was building belonged to her and her husband although she did not have documents to prove it. She admitted that she did not go to any office and claimed that it was the appellants who called to give her the building plan.
PW1 added that she had dumped stones, sand and cement inside her plot for the construction after she had been arrested and taken to the police station. She put the slab after she was arrested. She admitted that she went to the EACC out of bitterness for having been locked in cells when she had a five months old baby. She stated further that she spoke with the suspect on their mobile phones but she was not asked to give their telephone numbers.
She could not tell who was the overall boss but she spoke to Cecilia at the petrol station who referred her to the other officers in the car. She stated that she gave the money to Stephen whose full name she did not know but she positively identified him in court.
She could not estimate the time between when she gave out the money at the petrol station and when the appellants were arrested but she stated that the distance was about 200 metres. She could also not tell from whom the money was recovered. She alleged that Stephen, Onesmus and Jane touched the money but she could not tell whether Cecilia touched it. She denied that her reporting to EACC was actuated by her bitterness for being arrested.
PW2 was one Simon Ngige Muchiri. He told the court that on 18-032019, he received a call from his wife, PW1 who told her that she had been arrested by the government officers who were taking her to Buruburu police station. He followed and founded her in police cells. He went home and found their children unattended and then called Cecilia to enquire and she told him to go to Buruburu police station and seek her release.
He added that on the following day, he went to the police station. Two ladies and three men removed PW1 from the police cells with intention of taking her to court but on the way, they stopped and demanded Kshs 40,000.00 but he gave them 30,000.00 upon which she was released. Cecilia called later and he took more money to her along Kangundo road near Mama Lucy hospital. Cecilia called again later and asked for Kshs 40,000.00 and that was when they reported to EACC. PW1 was never taken to court. He added that they had been told that the money was for cash bail but they were not given a receipt.
In cross-examination, the witness stated that he was a driver working with the government. He could not recall the date he was called from work but it was mid-week. He also could not recall the day of the week. He added that the government officers were from Embakasi West. Initially, Cecilia asked for Kshs.10,000/- in cash and they gave it but PW1 had been asked to give Kshs.100,000/- for fixing a slab. He did not know why the government officers asked for money for the construction.
Pressed further, the witness told the court that on 18/3/2019, he was at work and the construction work was going on. He had built at the back end of the plot and wanted to erect another house at the front side of the plot and had bought one lorry of stones, one lorry of ballast and one lorry of sand. He had not asked for any permit to dump the building materials. They continued with the construction after the appellants were arrested.
He added that he engaged his mother to plead with Cecilia and the appellants to release PW1 but he did not succeed because they alleged that she had talked badly. He stated that Cecilia did not ask him for any money on 21/3/2019 or on 20/3/2019 but PW1 told him that Cecilia was saying that the money was not enough. He added that Cecilia was very well known and she was the boss to the appellants but he did not know the names of the appellants. He added that he was not happy with the situation but there was nothing he could do since PW1 was already in the cells.
Janet Waeni Kimeu was the third witness. She was an administrator working with the government since 1999. She told the court that on 21-03-2019 she was at work and officers working under her, that is Cecilia and the appellants had been assigned to attend to a complaint along Komarock road which they did. They were not using their ordinary driver. She came to learn later on that day through a Whatsapp post that they had not returned to the office because they had been arrested. She was later summoned at EACC on 24-06-2019 for confirmation that she was their boss but not the immediate supervisor. She confirmed that Cecilia and the 1 st appellant were working under devolution and the 2 nd and 3 rd appellants were working under inspectorate at that time. She had worked with them for one and half years.
When she went to the EACC, a video clip was played and she was asked to recognize the images and voices. She recorded a statement to the effect that she recognized them and signed documents after identifying the four. She went on to identify the certificates of image and voice recognition she signed for each of the accused persons.
In cross-examination, the witness stated that she was not the immediate supervisor of the appellants. She added that the accused persons signed a register for the tasks they were attending to. She confirmed that she had seen three of the four accused persons and the driver in the clip. She stated further that, at the time of watching the clip at the EACC, she was seated with an EACC officer who played the clip for her and that she did not see the image of the 2 nd appellant and their vehicle in the clip. She added that the voice did not mention the 3 rd appellant. She added that she was called to EACC two months after the accused persons were arrested.
PW4 was Ziper Awuor an investigator with EACC whose duty entailed organizing trap and sting operations. She recalled that on 21-03-2019, she was in the office at Integrity Centre when she was requested by one investigator Samuel Mukundi to assist him in investigations he was carrying out which involved the government officials who had requested for Kshs. 40,000/- from PW 1 to allow her to continue with construction of a house around Mowlen area to ensure that she would not be disrupted later.
They left EACC offices in the company of PW1, one Shee Bakari, Ali Molu, Mr. Mukundi and others. They proceeded Shell petrol station along Kangundo road next to Mama Lucy Hospital. The witness added that on reaching the petrol station, PW1 alighted from the vehicle. They also alighted and took positions and after a few minutes, she saw PW1 talking on her mobile phone then she proceeded to a double cabin vehicle branded with the government colours.
The witness added that she saw PW1 move back to the double cabin vehicle after speaking to a lady. PW1 entered the vehicle and sat at the front co-driver’s seat where she stayed for some time. After sometime, PW1 came out and a man also came out of the vehicle. They talked for a few minutes then the man went back to the vehicle. The brown lady who PW1 had first spoken to also entered the vehicle and they drove off. PW1 called and signaled them (the EACC officers) and they all ran and boarded their vehicle and followed that of the government. After 500 metres, the EACC vehicle blocked the government’s vehicle and the officers introduced themselves as EACC officers and told the government officers that they were under arrest.
The witness added that she arrested Cecilia Mwashigadi and Jane Wamarwa who were in the government vehicle with three men and she took the two ladies to the EACC’s vehicle. She conducted a search on both ladies and did not recover anything from them. She left the two ladies in their vehicle and found that Bakari Shee had recovered Kshs. 20,000/- from the government’s vehicle. She matched the 20,000 notes with the photocopies. She found Ali Molu swabbing the hands of the two men.
The witness testified further that, they left the scene to EACC offices to continue with further investigations. The recovered Kshs. 20,000/- was the money which had been treated with APQ chemical. She added that the accused persons had demanded money from PW1 and that PW1 was given EACC treated money to trap them. The witness went on to identify work tickets recovered from the suspects, the inventory for recovery of the work ticket, Cecilia and the appellants.
While being cross-examined by the counsel for the appellants, the witness stated that PW1 was to bribe the accused persons who would allow her to proceed with her building but she admitted that she did not visit the site to see the building. She was also not aware that PW1 had been locked up at Buruburu police station on account of non-compliance. She denied that PW1 lured the accused persons to Shell petrol station while they were on the way. She just heard PW1 saying that she had arrived and was asking the other people on the other end of the call where they were.
She added that the government vehicle had three men and two ladies but she could not tell exactly how they were seated in the vehicle. She added that the ladies were in the vehicle she arrested both when they emerged out and took them to the EACC vehicle. One of the ladies had a bag and a purse which she searched. She also did body search and she did not find anything relevant to the case. She added that they were only searching for their money as they were not clear who had taken the money.
PW4 stated further that she did not witness the recovery of the money but she saw Bakari counter-checking the 20,000 notes with the photocopies. She could not tell in whose custody the money was during transportation to Integrity Centre.
Martin Mbuvi testified as the fifth witness. He told the court that his duties as an investigating officer with EACC included investigating economic crimes, reported corruption cases, planning and executing trap and sting operations and any other duty assigned to him by his superiors. He added that on 21-03-2019, his colleague Mr. Samuel Mukundi requested him to assist him prepare operational trap money for a case that he was investigating involving some officials from the government.
After introducing him to PW1, Mr. Mukundi gave him Kshs. 30,000/- to prepare for the operation. He took photocopies of the notes after which he prepared an inventory then took the complainant through the inventory. He prepared the photocopied money and the original currency by comparing the serial numbers and the photocopies with the real money. After confirming that the money and the photocopies were tallying, they signed the inventory. They also signed a khaki envelope inside which he placed the monies.
The witness added that he proceeded to the exhibit store where he wore clear hand gloves and treated the money using APQ powder, then he inserted 3 bundles of 10,000 each into the envelope in PW1’s presence. He then instructed PW1 not to touch the money until the time of handing over to the officials who were demanding a bribe from her. He produced the inventory which he had prepared, the half-cut khaki envelope, the money and the photocopies of the money as exhibits.
He stated in cross-examination that he wore gloves while treating the money and that he prepared the exhibits before the investigation team went out for the operation.
He added that he could not comment on what was demanded but Mr. Mukundi gave him Kshs. 30,000/- to treat. He was informed that PW1 bargained the bribe to Kshs. 20,000/- and the balance of Kshs 10,000/- was taken back to EACC but he could not tell where the money was. He added that he disposed the gloves which he used into a dustbin. He added that the envelope was for marking the exhibit and he did not see the money or the envelope again after he gave it to PW1. The witness stated further that he did not accompany the operations team as he was left in the office. He pointed out that the preparation was done on 21-03-2019 and not 22-03-2019.
PW 6 was one Paul Odera Jabaya a driver working for the government. He told the court that on 21-03-2019, he was attached to Kamukunji Sub-County but he was instructed by Susan Onanga his boss to relieve one ailing driver at Embakasi West Sub-County. He proceeded to Embakasi West Sub-County and reported to one Stephen who assigned him work and signed his work ticket. He identified the work ticket which was filled by Stephen that day for motor vehicle registration number 47CG 289A a Grand Tiger double cabin belonging to the government. Mr. Stephen opened and authorised the route as Kangundo road Mowlen, Outering road, Umoja, Embakasi.
On the said date, he drove the vehicle with Mr. Stephen, Mr. Kirui, Madam Jane and Madam Cecilia, all employees of the government and who he did not by then know on board. He drove to Kangundo road where they had work and around lunch time, they asked him to drive to Shell petrol station for lunch. After lunch they went to the vehicle to go back to work but before he drove off, a lady came to the vehicle and sat at the co-driver’s seat.
He added that he never knew the lady who came in and spoke to Jane and Kirui who were seated at the back seat. After talking to the two, the lady boarded the front seat and continued to speak to Jane and Kirui. He heard them discuss about money but he did not focus on their conversation. The lady then alighted and the two passengers who were outside the vehicle namely Cecilia and Stephen boarded and he drove off but another vehicle drove faster and over took them then suddenly blocked his path.
The people in the other vehicle alighted and quickly went to their vehicle and introduced themselves as officers from the EACC and informed them that they were under arrest. The officers from EACC took all his passengers to the other vehicle and searched his vehicle. One of the officers took control of his vehicle and drove them to the EACC offices.
The witness added that a search in his vehicle recovered an envelope from the dash board but he could not tell the contents in it or who placed the envelope on the dashboard. He stated that he did not see money in the envelope although he had indicated at the EACC while recording his statement that he saw money. He added that he did not see the officers comparing the money. He produced the work ticket of the day as an exhibit and identified the accused persons in court and when the video clip was played, he was not able to recognize the voices or faces in the initial stages but as it progressed, he was able to identify faces of the lady who spoke to his passengers, himself, Jane and Kirui at the back seat. He was however not able to recognize the voices.
In cross-examination, the witness stated that it was his first time to work at Embakasi West Sub-County and he was never sent there again. The work ticket was written in his presence when he arrived at 9:00 am. He added that they went to Kangundo road and did not go to all the areas covered in the work ticket. After lunch, while he was waiting for Stephen and Cecilia to board, a lady entered the vehicle in the front seat. He did not talk to her as he did not know her. He insisted that the boss at Embakasi was the 1 st appellant.
The witness added that the lady sat at the co-driver’s seat but turned and faced the two passengers who she engaged in a conversation. He was not able to estimate the time they engaged as he also concentrated on his phone. He heard the lady talk about money and he lost focus and he never knew what they were talking about.
He stated further that he did not know that they were being pursued after he drove off and he could not drive on after they were blocked as he would have collided with the other vehicle. The 1 st and 2 nd appellants were outside the vehicle during the search. He added that the EACC officers conducted a search of his vehicle in the absence of himself and his four passengers. The search yielded a cut envelope and he did not witness the recovery of the envelope. The envelope was not opened immediately to reveal the money. Further, he could not tell if an inventory of the items received was prepared as he did not sign any inventory.
The 7 th prosecution witness, one Moses Ndungu Kimani a Government Analyst at the Government Chemist testified that on 28-05-2019, he received the exhibits mentioned earlier from the investigations officer with instructions to ascertain whether the controlled sample would be contained in all other exhibits. Upon analysis, he concluded that the controlled sample was found to be Anthracine Phenothra and Quinine (APQ). The said APQ was found to be in exhibits marked A, B, C, D, E and F which were all positive on analysis and concluded that they contain APQ powder. He added that the powder was also found on right and left hands swab of Onesmus Kirui.
He was placed on cross-examination and stated that the exhibits he received were plain cotton inside envelopes without gloves. He was given a control sample of APQ powder but they also had a sample of APQ powder in their laboratory which they use for quality control. He could not tell who mixed the sample of APQ. He was categorical that he was the one who opened the envelopes. He added that anyone who handled the money had the powder in their hands and if anyone handles any surface with APQ powder transfers the APQ powder to that surface. He stated further that he swabbed the exhibits in the presence of the investigating officer but the suspects were not at the government chemist.
The prosecution called their eighth witness one Abdi Molu an investigator working with EACC dealing with trap and sting operation and any duty as may be assigned by the Commission. He told the court that on 21-03-2019, his colleague Samuel Mukundi approached and asked him to accompany him to assist with the investigations that he was assigned. Mr. Mukundi also introduced him to the complainant from whom the suspects had demanded a bribe. The complainant had told them that the accused persons had asked from her Kshs 40,000/- so that she could continue to build her house.
A team of investigators comprising himself, Michael Mbuvi, Samuel Mukundi, Alex Nyakundi, Shee Bakari and Zipher Awuor was formed. Mr. Samuel Mukundi asked Mr. Martin Mbuvi to prepare the trap money and instructed the complainant how to use the recording gadget.
He added that they left their offices at Integrity Centre and proceeded to Shell petrol station along Kangundo road near Mama Lucy Hospital and set at place where they could monitor the movement of PW1 and the suspects. The suspects were in a double cabin tiger vehicle belonging to the government.
The complainant spoke briefly outside the vehicle with Cecilia and was directed to where the double cabin vehicle was parked. The complainant then proceeded to the suspected vehicle and she boarded the vehicle at the front passenger’s seat. In a few moments, she got out of the vehicle and Mr. Samuel Mukundi alerted them that the suspects had received the money.
The witnesses stated further that, the suspects had received the treated money of Kshs. 20,000/-. After PW1 alighted, Cecilia boarded their car to drive off. From where he was standing, the witness could not see Jane, Kirui and Anjawa but he could see PW1 seated at the front passenger’s seat.
They chased the double cabin with EACC vehicle and blocked it and introduced themselves as EACC officers and told the occupants that they were under arrest and ordered them to get out of the vehicle. They all got out and Samuel Mukundi searched the two male suspects namely Anjawa and Kirui while Zipher Awuor searched the two lady suspects namely Cecilia and Jane and nothing was recovered from either of them. Mr. Shee Bakari conducted a search on the vehicle and recovered Kshs. 20,000/- in a brown envelope on the vehicle’s dash board. He claimed that he witnessed the recovery of the money by Mr. Shee Bakari.
They were able to compare the recovered Kshs. 20,000/- to the 20 notes of the treated money and the serial numbers tallied. After the recovery, he swabbed the hands of the male suspects Anjawa and Kirui while wearing clean gloves and removed the gloves and placed them in the envelope with the cotton and labelled the envelope. He identified and produced the two gloves, envelopes and the cotton used to swab the two. He gave both envelopes to the investigating officer Mr. Mukundi. He added that the accused persons and their driver declined to sign an inventory they prepared after the search and recovery.
In cross-examination, PW8 stated that he never knew any of the four accused persons before they were arrested. He also said that he did not talk to PW1 but was briefed by Mr. Mukundi. He could not tell whether the complaint’s building was legal or not. He added that they did not visit the site where the construction was done. He insisted that he had taken position near their vehicle and 50 metres away from the suspect’s vehicle. He witnessed PW1 enter the double cabin vehicle but he could not hear what they were saying. He added that he swabbed Anjawa and Kirui while standing near the vehicles. He remembered Bakari searching the dash board and recovering the brown envelope. He admitted that he did not swab the driver as the complainant told him not to.
PW9 told the court that he was the Deputy Director Human Resource department in the government. He maintained all the records of employees of the government as the Deputy Director Human Resource Management. His testimony covered the employment status of the appellants which is no longer in contest and in that background, I don’t find the testimony of the witness relevant in this matter.
Shee Bakari was the tenth witness who was an employee of EACC as an investigator with duties entailing planning and executing sting and t
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Count 1 which was against one Cecilia Samba Mwashigadi (hereinafter referred was to as ‘Cecilia’), 2 nd appellant and 3 rd appellant-conspiracy to commit an offence of corruption contrary to Section 47 (A) (3) as read with section 48 (1) of the Anti-Corruption and Economic Crimes Act no. 3 of 2003. The particulars were that on 21 st day of March 2019, at Shell Petrol Station near Mama Lucy Kibaki Hospital, along Nairobi-Kangundo Road, within Nairobi City County, being persons employed by a public body to wit, the Nairobi City County Government, as Clerical Officer I and Sergeants respectively, jointly conspired to commit an offence of corruption namely receiving a bribe of Kshs.20,000/= from Judith Kanana Riungu with intent that, in consequence, they would allow her to continue with construction at her residential house at Mowlem area.
The 2 nd count which was against Cecilia and the 2 nd and 3 rd appellants was receiving a bribe contrary to Section 6(1) as read with section 18(1) of the Bribery Act particulars being that on 21 st day of March 2019, at Shell Petrol Station near Mama Lucy Kibaki Hospital, along Nairobi-Kangundo Road, within Nairobi City County, being persons employed by a public body to wit, the Nairobi City County Government, as Clerical officer I and Sergeants respectively, requested for a bribe of Kshs. 20,000/ = from Judith Kanana Riungu, with intent that, in consequence, they would allow her continue with constructions at her residential house at Mowlem area.
Count 3 against the 1 st and 2 nd appellants was receiving a bribe contrary to section 6(1) as read with section 18(1) of the Bribery Act no. 47 of 2016, particulars being that on 21 st March 2019 at Shell Petrol Station near Mama Lucy Kibaki Hospital, along Nairobi Kangundo Road, within Nairobi City County, being persons employed by a public body to wit, the Nairobi City County Government, as Inspector III and Sergeant respectively, they received a bribe of Kshs. 20,000/ = from Judith Kanana Riungu, with intent that, in consequence, they would allow her continue with construction at her residential house at Mowlem area.
Being aggrieved by the conviction, the appellants filed this appeal through a petition of appeal dated 14 th July 2025 citing 15 grounds which I collapse to four as follows;
1. THAT the learned Magistrate erred in law and fact in finding that 2 nd and 3 rd appellants were guilty of conspiracy to commit an offence despite insufficient and contradictory evidence presented before the Court which did not link the appellants to the offence.
2. THAT the learned Magistrate erred in law and in fact in finding that the 1 st , 2 nd and 3 rd appellants were guilty of receiving a bribe despite there being no evidence whatsoever that they were in contact with the complainant and the monies in question.
3. THAT the learned Magistrate erred in law and fact in failing to consider the evidence of the appellants as presented in their defence.
4. THAT the learned Magistrate erred in dismissing the appellants' objections without properly considering the evidence adduced, thereby occasioning a miscarriage of justice.
This being a first appeal, this court is under a duty to re-evaluate, reconsider and re-analyze the evidence produced before the lower court and come to its own independent conclusion. It should in doing so, keep in mind that it did not take the evidence of the witnesses and did not have an opportunity to observe their demeanour and as such give due allowance for that. In Mark Oiruri Mose v Republic [2013] KECA 67 (KLR), the Court of Appeal rendered itself thus;
‘It has been said over and over again that the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyse it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that. The well-known case of Okeno vs Republic (1977) EA 32 which sets out that principle has been referred to in several decisions of this Court and of the High Court.’
In my effort to re-consider and re-evaluate the evidence, I will reproduce abridged version of the testimony of the witnesses as hereinbelow.
The prosecution’s case
The prosecution called 11 witnesses the first one being Judith Kanana Riungu who told the court that she had a house at Mowlem estate which she had built up to the ground floor and had intended to dismantle the roof to fit a slab and add one floor. Her neighbour referred her to the Nairobi City County Government (hereinafter referred to as ‘the government’) by calling someone after which five officers of the government including the driver came in a pickup. This was in March 2019.
After she explained herself to the officers, they demanded Kshs 10,000.00 which she gave in cash without a receipt. She identified them as Cecilia, Jane, Stephen, Kirui and the driver whose name she did not get to know. She added that she knew the persons she had mentioned as she used to see them in the market seeking for construction money in order to permit developments. On 18-03-2019, the same five officers returned and told her to add Kshs 20,000.00 as she had added another course.
The witness added that when she failed to give the demanded money, she was arrested and taken to Buruburu police station where she spent the night. The following day, an officer came and took her from the cells telling her that she was being taken to court for an offence of illegal dumping but on the way, they asked her to call her husband which she did upon which they told him that if she were taken to court, she would be fined Kshs 120,000.00 which made him panic and rush to where they were with Kshs 30,000.00 which he gave to Cecilia. Later, the officers picked another Kshs 10,000.00 from Firozi area making a total of Kshs 40,000.00. She added that after she gave out the money, the appellants allowed her to build.
After a few days, the new slab started leaking and she asked Cecilia if she could repair it but she told her not to dare unless she did what they had told her husband upon which she decided to report to Ethics and Anti-Corruption Commission (hereinafter referred to as ‘the EACC’). On 21-03-2029, a Mr. Mukundi of EACC gave her a recording gadget and showed her how to use it in recording conversation which gadget she identified court.
She added that, Mr. Mukundi introduced her to another officer known as Mr. Mbuvi who photocopied and treated notes of Kshs 10,000.00 and gave her the copies which looked exactly like the original in a khaki envelope. She was also shown how to handle the treated money. She identified the notes and the envelope she had signed for in court.
Mr. Mukundi and his colleagues accompanied the witness to Shell petrol station along Kangundo road where she had arranged to meet the government officers. When she met them, she switched on the gadget and started bargaining with Cecilia who was asking for 50,000.00. She went to the government’s car and negotiated with Jane, Kirui and Stephen who agreed to take Kshs 20,000.00 which she gave from the bundle she had been given at the EACC. As the officers were counting the money she had given them, she called Mr. Mukundi and when the officer saw the EACC vehicle, they attempted to drive away but they were blocked by the EACC’s vehicle and arrested.
The witness added that she later returned the remaining money and the recording gadget to the EACC and she was invited to listen to the recording upon which she confirmed that it captured their conversation. The video clip she captured was played in court where she identified Cecilia and the voices of the appellants.
In cross-examination, the witness stated that she was the one who recorded the video which did not show the money. She stated further that the plot she was building belonged to her and her husband although she did not have documents to prove it. She admitted that she did not go to any office and claimed that it was the appellants who called to give her the building plan.
PW1 added that she had dumped stones, sand and cement inside her plot for the construction after she had been arrested and taken to the police station. She put the slab after she was arrested. She admitted that she went to the EACC out of bitterness for having been locked in cells when she had a five months old baby. She stated further that she spoke with the suspect on their mobile phones but she was not asked to give their telephone numbers.
She could not tell who was the overall boss but she spoke to Cecilia at the petrol station who referred her to the other officers in the car. She stated that she gave the money to Stephen whose full name she did not know but she positively identified him in court.
She could not estimate the time between when she gave out the money at the petrol station and when the appellants were arrested but she stated that the distance was about 200 metres. She could also not tell from whom the money was recovered. She alleged that Stephen, Onesmus and Jane touched the money but she could not tell whether Cecilia touched it. She denied that her reporting to EACC was actuated by her bitterness for being arrested.
PW2 was one Simon Ngige Muchiri. He told the court that on 18-032019, he received a call from his wife, PW1 who told her that she had been arrested by the government officers who were taking her to Buruburu police station. He followed and founded her in police cells. He went home and found their children unattended and then called Cecilia to enquire and she told him to go to Buruburu police station and seek her release.
He added that on the following day, he went to the police station. Two ladies and three men removed PW1 from the police cells with intention of taking her to court but on the way, they stopped and demanded Kshs 40,000.00 but he gave them 30,000.00 upon which she was released. Cecilia called later and he took more money to her along Kangundo road near Mama Lucy hospital. Cecilia called again later and asked for Kshs 40,000.00 and that was when they reported to EACC. PW1 was never taken to court. He added that they had been told that the money was for cash bail but they were not given a receipt.
In cross-examination, the witness stated that he was a driver working with the government. He could not recall the date he was called from work but it was mid-week. He also could not recall the day of the week. He added that the government officers were from Embakasi West. Initially, Cecilia asked for Kshs.10,000/- in cash and they gave it but PW1 had been asked to give Kshs.100,000/- for fixing a slab. He did not know why the government officers asked for money for the construction.
Pressed further, the witness told the court that on 18/3/2019, he was at work and the construction work was going on. He had built at the back end of the plot and wanted to erect another house at the front side of the plot and had bought one lorry of stones, one lorry of ballast and one lorry of sand. He had not asked for any permit to dump the building materials. They continued with the construction after the appellants were arrested.
He added that he engaged his mother to plead with Cecilia and the appellants to release PW1 but he did not succeed because they alleged that she had talked badly. He stated that Cecilia did not ask him for any money on 21/3/2019 or on 20/3/2019 but PW1 told him that Cecilia was saying that the money was not enough. He added that Cecilia was very well known and she was the boss to the appellants but he did not know the names of the appellants. He added that he was not happy with the situation but there was nothing he could do since PW1 was already in the cells.
Janet Waeni Kimeu was the third witness. She was an administrator working with the government since 1999. She told the court that on 21-03-2019 she was at work and officers working under her, that is Cecilia and the appellants had been assigned to attend to a complaint along Komarock road which they did. They were not using their ordinary driver. She came to learn later on that day through a Whatsapp post that they had not returned to the office because they had been arrested. She was later summoned at EACC on 24-06-2019 for confirmation that she was their boss but not the immediate supervisor. She confirmed that Cecilia and the 1 st appellant were working under devolution and the 2 nd and 3 rd appellants were working under inspectorate at that time. She had worked with them for one and half years.
When she went to the EACC, a video clip was played and she was asked to recognize the images and voices. She recorded a statement to the effect that she recognized them and signed documents after identifying the four. She went on to identify the certificates of image and voice recognition she signed for each of the accused persons.
In cross-examination, the witness stated that she was not the immediate supervisor of the appellants. She added that the accused persons signed a register for the tasks they were attending to. She confirmed that she had seen three of the four accused persons and the driver in the clip. She stated further that, at the time of watching the clip at the EACC, she was seated with an EACC officer who played the clip for her and that she did not see the image of the 2 nd appellant and their vehicle in the clip. She added that the voice did not mention the 3 rd appellant. She added that she was called to EACC two months after the accused persons were arrested.
PW4 was Ziper Awuor an investigator with EACC whose duty entailed organizing trap and sting operations. She recalled that on 21-03-2019, she was in the office at Integrity Centre when she was requested by one investigator Samuel Mukundi to assist him in investigations he was carrying out which involved the government officials who had requested for Kshs. 40,000/- from PW 1 to allow her to continue with construction of a house around Mowlen area to ensure that she would not be disrupted later.
They left EACC offices in the company of PW1, one Shee Bakari, Ali Molu, Mr. Mukundi and others. They proceeded Shell petrol station along Kangundo road next to Mama Lucy Hospital. The witness added that on reaching the petrol station, PW1 alighted from the vehicle. They also alighted and took positions and after a few minutes, she saw PW1 talking on her mobile phone then she proceeded to a double cabin vehicle branded with the government colours.
The witness added that she saw PW1 move back to the double cabin vehicle after speaking to a lady. PW1 entered the vehicle and sat at the front co-driver’s seat where she stayed for some time. After sometime, PW1 came out and a man also came out of the vehicle. They talked for a few minutes then the man went back to the vehicle. The brown lady who PW1 had first spoken to also entered the vehicle and they drove off. PW1 called and signaled them (the EACC officers) and they all ran and boarded their vehicle and followed that of the government. After 500 metres, the EACC vehicle blocked the government’s vehicle and the officers introduced themselves as EACC officers and told the government officers that they were under arrest.
The witness added that she arrested Cecilia Mwashigadi and Jane Wamarwa who were in the government vehicle with three men and she took the two ladies to the EACC’s vehicle. She conducted a search on both ladies and did not recover anything from them. She left the two ladies in their vehicle and found that Bakari Shee had recovered Kshs. 20,000/- from the government’s vehicle. She matched the 20,000 notes with the photocopies. She found Ali Molu swabbing the hands of the two men.
The witness testified further that, they left the scene to EACC offices to continue with further investigations. The recovered Kshs. 20,000/- was the money which had been treated with APQ chemical. She added that the accused persons had demanded money from PW1 and that PW1 was given EACC treated money to trap them. The witness went on to identify work tickets recovered from the suspects, the inventory for recovery of the work ticket, Cecilia and the appellants.
While being cross-examined by the counsel for the appellants, the witness stated that PW1 was to bribe the accused persons who would allow her to proceed with her building but she admitted that she did not visit the site to see the building. She was also not aware that PW1 had been locked up at Buruburu police station on account of non-compliance. She denied that PW1 lured the accused persons to Shell petrol station while they were on the way. She just heard PW1 saying that she had arrived and was asking the other people on the other end of the call where they were.
She added that the government vehicle had three men and two ladies but she could not tell exactly how they were seated in the vehicle. She added that the ladies were in the vehicle she arrested both when they emerged out and took them to the EACC vehicle. One of the ladies had a bag and a purse which she searched. She also did body search and she did not find anything relevant to the case. She added that they were only searching for their money as they were not clear who had taken the money.
PW4 stated further that she did not witness the recovery of the money but she saw Bakari counter-checking the 20,000 notes with the photocopies. She could not tell in whose custody the money was during transportation to Integrity Centre.
Martin Mbuvi testified as the fifth witness. He told the court that his duties as an investigating officer with EACC included investigating economic crimes, reported corruption cases, planning and executing trap and sting operations and any other duty assigned to him by his superiors. He added that on 21-03-2019, his colleague Mr. Samuel Mukundi requested him to assist him prepare operational trap money for a case that he was investigating involving some officials from the government.
After introducing him to PW1, Mr. Mukundi gave him Kshs. 30,000/- to prepare for the operation. He took photocopies of the notes after which he prepared an inventory then took the complainant through the inventory. He prepared the photocopied money and the original currency by comparing the serial numbers and the photocopies with the real money. After confirming that the money and the photocopies were tallying, they signed the inventory. They also signed a khaki envelope inside which he placed the monies.
The witness added that he proceeded to the exhibit store where he wore clear hand gloves and treated the money using APQ powder, then he inserted 3 bundles of 10,000 each into the envelope in PW1’s presence. He then instructed PW1 not to touch the money until the time of handing over to the officials who were demanding a bribe from her. He produced the inventory which he had prepared, the half-cut khaki envelope, the money and the photocopies of the money as exhibits.
He stated in cross-examination that he wore gloves while treating the money and that he prepared the exhibits before the investigation team went out for the operation.
He added that he could not comment on what was demanded but Mr. Mukundi gave him Kshs. 30,000/- to treat. He was informed that PW1 bargained the bribe to Kshs. 20,000/- and the balance of Kshs 10,000/- was taken back to EACC but he could not tell where the money was. He added that he disposed the gloves which he used into a dustbin. He added that the envelope was for marking the exhibit and he did not see the money or the envelope again after he gave it to PW1. The witness stated further that he did not accompany the operations team as he was left in the office. He pointed out that the preparation was done on 21-03-2019 and not 22-03-2019.
PW 6 was one Paul Odera Jabaya a driver working for the government. He told the court that on 21-03-2019, he was attached to Kamukunji Sub-County but he was instructed by Susan Onanga his boss to relieve one ailing driver at Embakasi West Sub-County. He proceeded to Embakasi West Sub-County and reported to one Stephen who assigned him work and signed his work ticket. He identified the work ticket which was filled by Stephen that day for motor vehicle registration number 47CG 289A a Grand Tiger double cabin belonging to the government. Mr. Stephen opened and authorised the route as Kangundo road Mowlen, Outering road, Umoja, Embakasi.
On the said date, he drove the vehicle with Mr. Stephen, Mr. Kirui, Madam Jane and Madam Cecilia, all employees of the government and who he did not by then know on board. He drove to Kangundo road where they had work and around lunch time, they asked him to drive to Shell petrol station for lunch. After lunch they went to the vehicle to go back to work but before he drove off, a lady came to the vehicle and sat at the co-driver’s seat.
He added that he never knew the lady who came in and spoke to Jane and Kirui who were seated at the back seat. After talking to the two, the lady boarded the front seat and continued to speak to Jane and Kirui. He heard them discuss about money but he did not focus on their conversation. The lady then alighted and the two passengers who were outside the vehicle namely Cecilia and Stephen boarded and he drove off but another vehicle drove faster and over took them then suddenly blocked his path.
The people in the other vehicle alighted and quickly went to their vehicle and introduced themselves as officers from the EACC and informed them that they were under arrest. The officers from EACC took all his passengers to the other vehicle and searched his vehicle. One of the officers took control of his vehicle and drove them to the EACC offices.
The witness added that a search in his vehicle recovered an envelope from the dash board but he could not tell the contents in it or who placed the envelope on the dashboard. He stated that he did not see money in the envelope although he had indicated at the EACC while recording his statement that he saw money. He added that he did not see the officers comparing the money. He produced the work ticket of the day as an exhibit and identified the accused persons in court and when the video clip was played, he was not able to recognize the voices or faces in the initial stages but as it progressed, he was able to identify faces of the lady who spoke to his passengers, himself, Jane and Kirui at the back seat. He was however not able to recognize the voices.
In cross-examination, the witness stated that it was his first time to work at Embakasi West Sub-County and he was never sent there again. The work ticket was written in his presence when he arrived at 9:00 am. He added that they went to Kangundo road and did not go to all the areas covered in the work ticket. After lunch, while he was waiting for Stephen and Cecilia to board, a lady entered the vehicle in the front seat. He did not talk to her as he did not know her. He insisted that the boss at Embakasi was the 1 st appellant.
The witness added that the lady sat at the co-driver’s seat but turned and faced the two passengers who she engaged in a conversation. He was not able to estimate the time they engaged as he also concentrated on his phone. He heard the lady talk about money and he lost focus and he never knew what they were talking about.
He stated further that he did not know that they were being pursued after he drove off and he could not drive on after they were blocked as he would have collided with the other vehicle. The 1 st and 2 nd appellants were outside the vehicle during the search. He added that the EACC officers conducted a search of his vehicle in the absence of himself and his four passengers. The search yielded a cut envelope and he did not witness the recovery of the envelope. The envelope was not opened immediately to reveal the money. Further, he could not tell if an inventory of the items received was prepared as he did not sign any inventory.
The 7 th prosecution witness, one Moses Ndungu Kimani a Government Analyst at the Government Chemist testified that on 28-05-2019, he received the exhibits mentioned earlier from the investigations officer with instructions to ascertain whether the controlled sample would be contained in all other exhibits. Upon analysis, he concluded that the controlled sample was found to be Anthracine Phenothra and Quinine (APQ). The said APQ was found to be in exhibits marked A, B, C, D, E and F which were all positive on analysis and concluded that they contain APQ powder. He added that the powder was also found on right and left hands swab of Onesmus Kirui.
He was placed on cross-examination and stated that the exhibits he received were plain cotton inside envelopes without gloves. He was given a control sample of APQ powder but they also had a sample of APQ powder in their laboratory which they use for quality control. He could not tell who mixed the sample of APQ. He was categorical that he was the one who opened the envelopes. He added that anyone who handled the money had the powder in their hands and if anyone handles any surface with APQ powder transfers the APQ powder to that surface. He stated further that he swabbed the exhibits in the presence of the investigating officer but the suspects were not at the government chemist.
The prosecution called their eighth witness one Abdi Molu an investigator working with EACC dealing with trap and sting operation and any duty as may be assigned by the Commission. He told the court that on 21-03-2019, his colleague Samuel Mukundi approached and asked him to accompany him to assist with the investigations that he was assigned. Mr. Mukundi also introduced him to the complainant from whom the suspects had demanded a bribe. The complainant had told them that the accused persons had asked from her Kshs 40,000/- so that she could continue to build her house.
A team of investigators comprising himself, Michael Mbuvi, Samuel Mukundi, Alex Nyakundi, Shee Bakari and Zipher Awuor was formed. Mr. Samuel Mukundi asked Mr. Martin Mbuvi to prepare the trap money and instructed the complainant how to use the recording gadget.
He added that they left their offices at Integrity Centre and proceeded to Shell petrol station along Kangundo road near Mama Lucy Hospital and set at place where they could monitor the movement of PW1 and the suspects. The suspects were in a double cabin tiger vehicle belonging to the government.
The complainant spoke briefly outside the vehicle with Cecilia and was directed to where the double cabin vehicle was parked. The complainant then proceeded to the suspected vehicle and she boarded the vehicle at the front passenger’s seat. In a few moments, she got out of the vehicle and Mr. Samuel Mukundi alerted them that the suspects had received the money.
The witnesses stated further that, the suspects had received the treated money of Kshs. 20,000/-. After PW1 alighted, Cecilia boarded their car to drive off. From where he was standing, the witness could not see Jane, Kirui and Anjawa but he could see PW1 seated at the front passenger’s seat.
They chased the double cabin with EACC vehicle and blocked it and introduced themselves as EACC officers and told the occupants that they were under arrest and ordered them to get out of the vehicle. They all got out and Samuel Mukundi searched the two male suspects namely Anjawa and Kirui while Zipher Awuor searched the two lady suspects namely Cecilia and Jane and nothing was recovered from either of them. Mr. Shee Bakari conducted a search on the vehicle and recovered Kshs. 20,000/- in a brown envelope on the vehicle’s dash board. He claimed that he witnessed the recovery of the money by Mr. Shee Bakari.
They were able to compare the recovered Kshs. 20,000/- to the 20 notes of the treated money and the serial numbers tallied. After the recovery, he swabbed the hands of the male suspects Anjawa and Kirui while wearing clean gloves and removed the gloves and placed them in the envelope with the cotton and labelled the envelope. He identified and produced the two gloves, envelopes and the cotton used to swab the two. He gave both envelopes to the investigating officer Mr. Mukundi. He added that the accused persons and their driver declined to sign an inventory they prepared after the search and recovery.
In cross-examination, PW8 stated that he never knew any of the four accused persons before they were arrested. He also said that he did not talk to PW1 but was briefed by Mr. Mukundi. He could not tell whether the complaint’s building was legal or not. He added that they did not visit the site where the construction was done. He insisted that he had taken position near their vehicle and 50 metres away from the suspect’s vehicle. He witnessed PW1 enter the double cabin vehicle but he could not hear what they were saying. He added that he swabbed Anjawa and Kirui while standing near the vehicles. He remembered Bakari searching the dash board and recovering the brown envelope. He admitted that he did not swab the driver as the complainant told him not to.
PW9 told the court that he was the Deputy Director Human Resource department in the government. He maintained all the records of employees of the government as the Deputy Director Human Resource Management. His testimony covered the employment status of the appellants which is no longer in contest and in that background, I don’t find the testimony of the witness relevant in this matter.
Shee Bakari was the tenth witness who was an employee of EACC as an investigator with duties entailing planning and executing sting and t
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