The 1 st to 9 th Respondents herein were charged jointly in count 1 and individually and/or jointly in 10 other counts before the trial court with various offenses under Sections 45, 46, 47 and 48 of the Anti-Corruption and Economic Crimes Act No. 3 of 2003. The alleged offences were said to have been committed sometime between March, 2014 and September, 2014 in relation to a feasibility study on Integrated Solid Waste Management Project. The respondents pleaded not guilty and the case proceeded to trial. The prosecution called a total of 22 witnesses in support of its case and the respondents ultimately put to their defence.
The specific charges were as follows;
Count 1- against all the respondents- Conspiracy to commit an offence of economic crime contrary to Section 47A(3) as read with Section 48 of the Anti-Corruption and Economic Crimes Act. The particulars were that between 15 th March and 25 th September 2014, in Busia County within the Republic of Kenya jointly and severally conspired to commit an economic crime to wit engaged in a scheme to defraud the County Government of Busia to the tune of Kshs 8 million for a purported feasibility study on integrated waste management project which was to be carried out by Madam R Enterprises Ltd.
Count 2- against the 1 st respondent only- engaging in a project without prior planning contrary to Section 45(2)(c) as read with Section 48 of the Anti-Corruption and Economic Crimes Act particulars being that on or about 7 th April 2014 in Berlin Germany, being the Governor of Busia County, he intentionally engaged in a project namely feasibility study on integrated solid waste management project by entering into a Memorandum of Understanding with Madam R Enterprises Ltd without prior planning.
Count 3- Against the 2 nd and 3 rd respondents- engaging in a project without prior planning contrary to Section 45(2)(c) as read with Section 48 of the Anti-Corruption and Economic Crimes Act particulars being that between 7 th April 2014 and 25 th September 2014, in Busia County within the Republic of Kenya, being the County Executive Member for Water, Environment and Natural Resources and County Executive Member for Economic Planning respectively, jointly engaged in a project namely; feasibility study on integrated solid waste management project without prior planning.
Count 4 against the 1 st respondent only - abuse of office contrary to Section 46
as read with Section 48 of the Anti-Corruption and Economic Crimes Act. The particulars were that on 7 th April 2014, at Berlin, Germany he used his office to improperly confer benefit of Kshs 8,000,000/= to Madam R Enterprises Limited by signing a Memorandum of Understanding with the said Madam R Enterprises Ltd which had not been procedurally procured as per the Public Procurement and Disposal Act 2005.
Count 5 against the 1 st respondent only - abuse of office contrary to Section 46
as read with Section 48 of the Anti-Corruption and Economic Crimes Act. The particulars were that on 12 th May 2014, at Busia County within the Republic of Kenya, being the Governor of Busia County, he used his office to improperly confer benefit of Kshs 8,000,000/= to Madam R Enterprises Limited by approving the payments for the said Madam R Enterprises Ltd which had not been procedurally procured as per the Public Procurement and Disposal Act 2005.
Count 6 against the 3 rd , 4 th and 5 th respondents- willful failure to comply with
the law relating to management of funds contrary to Section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes Act. The particulars were that, between 9 th May 2014 and 25 th September 2014 in Busia County, within the Republic of Kenya, being the County Executive Member for Finance and Economic Planning, Chief Officer Finance and Economic Planning and Head of the Treasury Accounting respectively, being persons whose functions concerned management of public revenue willfully failed to comply with the law relating to management of funds to with Section 138 (6) of the Public Finance Management Act, 2012 by knowingly approving payments amounting to Kshs 8,000,000/= to Madam R Enterprises Ltd for a feasibility study on integrated solid waste management, a project for which funding had not been appropriated.
Count 7 against the 3 rd , 4 th and 5 th respondents- fraudulently making payments
from public revenue for services not rendered contrary to Section 45(2)(a)(ii) as read with Section 48 of the Anti-Corruption and Economic Crimes Act particulars being that between 9 th Amy 2014 and 25 th September 2014 in Busia County within the Republic of Kenya being the County Executive Committee Member for Finance and Economic Planning, Chief Officer Finance and Economic Planning and Head of Treasury Accounting respectively, being persons whose functions concerned management of public revenue fraudulently made payments to Madam R Enterprises Ltd for services not rendered.
Count 8 against the 6 th , 7 th and 8 th respondents- fraudulent acquisition of public
property contrary to Section 45(1)(a) as read with Section 48 of the Anti-Corruption and Economic Crimes Act. The particulars were that on 14 th May 2014 at Busia County, within the Republic of Kenya, being the Finance Manager, proprietor and beneficiary of Madam R Enterprises respectively, fraudulently acquired public property to wit Kshs 4,000,000/= from Busia County Government for services not rendered.
Count 9 against the 6 th , 7 th , 8 th and 9 th respondents- fraudulent acquisition of
public property contrary to Section 45(1)(a) as read with Section 48 of the Anti-Corruption and Economic Crimes Act. The particulars were that on 25 th September 2014 at Busia County, within the Republic of Kenya, being the Finance Manager, proprietor and beneficiary of Madam R Enterprises respectively, fraudulently acquired public property to wit Kshs 4,000,000/= from Busia County Government for services not rendered.
Count 10 against the 6 th , 7 th and 8 th respondents- failure to pay taxes contrary to
Section 45(1)(d) as read with Section 48 of the Anti-Corruption and Economic Crimes Act whose particulars were that on 14 th May 2014, at Busia County, within the Republic of Kenya being Finance Manager, proprietor and beneficiary of Madam R Enterprises respectively, failed to pay taxes being VAT to the Kenya Revenue Authority a sum of Kshs 551,724/=.
Count 11 against the 6 th , 7 th and 8 th respondents- failure to pay taxes contrary to
Section 45(1)(d) as read with Section 48 of the Anti-Corruption and Economic Crimes Act whose particulars were that on 25 th September 2014, at Busia County, within the Republic of Kenya being Finance Manager, proprietor and beneficiary of Madam R Enterprises respectively, failed to pay taxes being VAT to the Kenya Revenue Authority a sum of Kshs 551,724/=.
On the 16 th May 2025, the trial court having considered the evidence on record delivered a judgment in which it found that the prosecution had failed to prove their case beyond any reasonable doubt in relation to all the charges against the respondents and proceeded to acquit them under section 215 of the Criminal Procedure Code. Being dissatisfied by that decision, the appellant herein filed a petition of appeal dated 28 th May 2025 citing the following grounds;
The Learned Magistrate gravely erred in law and in fact by failing to analyze the entirety of the prosecution's evidence, and proceeded to render a decision based solely on the defence tendered despite the overwhelming and uncontroverted evidence presented by the prosecution.
The Learned Magistrate erred in law and in fact by failing to appreciate and analyze the cogent, credible, and truthful evidence adduced by the prosecution, which demonstrated that the respondents conspired to defraud the County Government of Busia of Kshs. 8,000,000/=.
The Learned Magistrate misdirected herself in law and fact by failing to recognize that the Memorandum of Understanding (MOU) signed in Germany, which formed the basis for the activities the 9 th respondent was to undertake, constituted a serious breach of the County Governments Act, the Public Finance Management Act, and the Public Procurement and Disposal Act. The trial court erroneously disregarded this evidence and mischaracterized the MOU as a non-binding framework rather than a binding contract.
The Learned Magistrate failed to caution herself and/or remind herself of her duty as the trial court to determine the points of departure between the approved budget presented by the prosecution which was supplied to the EACC and the alternative budget presented by the accused. The Magistrate further failed to analyze the rebuttal evidence produced by the prosecution, which discredited the authenticity of the budget relied on by the accused persons. This omission led to a significant misdirection in law, as the court failed to determine which of the conflicting budgetary documents merited greater evidentiary weight.
The Learned Magistrate erred in law and in fact by unjustifiably attributing more weight and consideration to the budget produced by the accused, which purported to make provision for the disputed project, despite prosecution witnesses having established that no such budgetary allocation existed.
The Learned Magistrate failed to appreciate the evidence presented by the prosecution that the feasibility study project was undertaken without prior planning or approvals, which were only sought retroactively after the signing of the MOU.
The Learned Magistrate erred in law and in fact by failing to recognize that the budget documents and public participation notices presented by the accused were procured after the commencement of investigations, and specifically tailored to counter the prosecution's case, after the accused had already been charged and served with a notice to produce. Consequently, the court ought to have given such documents minimal probative value.
The Learned Magistrate failed to consider the prosecution's evidence that Madam R Enterprises Ltd., the company allegedly engaged to carry out the feasibility study, was primarily a hardware business with no capacity or expertise to conduct feasibility studies for the County Government of Busia.
The Learned Magistrate failed to appreciate that the 9 th Respondent, despite offering unsworn evidence, did not produce any proof of having paid tax on the funds received from the County Government of Busia.
My role as the first appellate court is to analyze, consider and evaluate the evidence produced in the trial court and come to my own independent conclusion but as I do so, I will keep in mind that I did not take the evidence first hand and I did not have an opportunity to observe the demeanour of the witness and as such, I should give due allowance for that. This is a basic legal principle which has been established since the celebrated case of Okeno vs. Republic (1972) EA 32 which has been cited in many cases including Mwangi v Republic [2025] KEHC 9457 (KLR) where the court held that;
‘At the conclusion of the case, it is noteworthy that the role of the first appellant court is to re-evaluate the evidence adduced in the trial court afresh and arrive at its own conclusion taking into account the fact that the court did not have the benefit of the demeanour of the witness.’
In addition to the above, an appellate court should in my view constrain itself within the area challenged by the appellant as it is not expected to dwell on issues which may have been settled at the trial court and parties satisfied. The reconsideration of evidence should therefore be limited to the grounds of appeal which is in line with Section 350 of the Criminal Procedure Code which provides.
‘A petition of appeal shall be signed, if the appellant is not represented by an advocate, by the appellant, and, if the appellant is represented by an advocate, by the advocate, and shall contain particulars of the matters of law or fact in regard to which the subordinate court appealed from is alleged to have erred, and shall specify an address at which notices or documents connected with the appeal may be served on the appellant or, as the case may be, on his advocate; and the appellant shall not be permitted, at the hearing of the appeal, to rely on a ground of appeal other than those set out in the petition of appeal. ’
There are of course provisos to the above Section but they do not apply to this appeal. In execution of mandate as aforesaid, I first reproduce what I consider to be the relevant parts of the evidence of the parties in the following paragraphs.
The prosecution’s case
PW1 was Charles Wakhungu Wasike who was an MCA of for Buhoyo East Ward. He testified that he was in the delegation that travelled to Germany where they met an investor company known as Madam R Investment Company Ltd whose directors are the 7 th and 8 th respondents and added that the trip was funded by the 9 th with the County Government of Busia (hereinafter referred to as ‘the Government’) only giving them out of pocket allowances. During that visit, a Memorandum of Understanding (hereinafter referred to as ‘the MOU’) on waste management was signed on 7 th April, 2014 between the 9 th respondent and the Government with the 1 st respondent signing on behalf of the Government. It was his testimony that he was not aware whether the said trip had been planned for.
During cross-examination, he was shown the Government’s County Integrated Development Plan (CIDP) which he admitted was a legal requirement and was approved by the County Assembly and it contained a column on funding. It was his testimony that some attachments were missing from the CIDP and that the Governor could not spend money without the authority of the Assembly. He also confirmed that there was a Supplementary Budget for the financial year 2013/2014 which indicated there was an allocation of Kshs 4 million for feasibility study and that he was never shown the Busia County Appropriation Amendment Act 2013/2014. He also confirmed that there was an Appropriation Act 2014/15 published on 29 th June 2014 and assented to on 30 th June 2014 to commence on 30 th July 2014 and there was money appropriated for feasibility studies.
Josephat Wandera alias Makulu Kalumbe was the second witness who testified that he was the MCA for Lingulu ward. He testified that he received a letter (exhibit 2) from the Faun Kirchhoff group dated 18 th March 2014 addressed to the 1 st respondent through the office of the Speaker. He was shown and identified prosecution exhibit 2 which was the budget for the Government but added that the same was not the true budget for the Government for the year.
During cross-examination, it was his testimony that he was seeing exhibit 2 for the first time. He added that on the 30 th June, 2014, there was a special sitting of the Assembly where the supplementary budget for the year 2013/2014 was passed and later sent to the Governor for assent. He further stated that the Government was not defrauded of the Kshs 8 million and the feasibility study was planned in terms of the budget and the CIDP and further confirmed that work was done but not completed due to the non-delivery of trucks. He concluded by stating that there have been no audit queries hence payments were lawfully made.
PW3 was one Dan Orabidi Emorneri testified that he was an accountant working with the Government and his duties involved verifying payments from different departments and ensuring there were no computation errors. He produced prosecution exhibits 1 to 5 and stated that he was the person who received, examined, and verified the payment vouchers, one on the 14 th May 2014 for Kshs 4 million to the 9 th respondent through Family Bank account number 02500026060, Kisumu Reliance branch and the second one for Kshs 4 million on 23 rd September, 2014 (vouchers produced as prosecution exhibits 4(a) & 5(b) and passed them for payment. He testified that following his verification, the same were passed to the Head of the Treasury for approval and thereafter to the Principal Officer Finance.
In cross-examination, he confirmed that the payments were lawful, budgeted for and authorized and it is on that basis that he proceeded to sign the vouchers. He asserted that services were rendered by the 9 th respondent and that he was aware that there was a feasibility study report and that the Government got value for its money. It was his testimony therefore that they did not acquire 4 million irregularly.
The fourth prosecution witness was John King'ori Muchiri, the head of security and investigations at Family Bank who testified that pursuant to summons from EACC, he supplied and also produced as exhibits the account opening documents, statements, EFT requests, and other relevant documents in respect of 9 th respondent’s bank account at Family Bank as prosecution exhibits 6 to 11. It was his testimony that the said account received Kshs 4 million from a Cooperative Bank Account belonging to the Government on the 14 th of May, 2014. He added that there was a swift transfer form dated 15 th May, 2014 for 5607.32 Euros to Sebastian, the purpose thereof indicated as salary. He testified further that on the 25 th of September, 2014, a swift was received for the said account from the Central Bank of Kenya for Kshs 4 million and on the same day, a transmission notification was received for 7,000 Euros to Sebastian indicated to be for directors’ salary. When he was cross-examined, he indicated that there was no issue about how the account was being run and that there were no reasons to question the transactions. He concluded by stating that no money from the said account was sent to any of the 1 st to 4 th accused therein.
PW5, one John Moseti Orioro, the KRA regional manager for Western Kenya, in charge of domestic taxes told the court that pursuant to a letter from EACA, he provided tax information in respect of 7 th and 9 th respondents. It was his testimony that Madam R Enterprises was registered as a sole proprietorship by the 7 th respondent in 2007 and only filed returns in 2008 but had not filed returns since then. Regarding the 6 th respondent, it was his testimony that she has been compliant in terms of filing returns. During cross-examination, he stated that Madam R Enterprises Ltd was registered in late 2014.
Allan Wafula Mabuka who was the 6 th prosecution witness testified that he was the Clerk of the County Assembly of Busia (hereinafter referred to as ‘the Assembly’) since 2014. He was custodian and supplier of official documents from the Assembly. He confirmed that he provided information and all relevantnt documents to the EACC investigator (PW19) pursuant to their request. He produced the letters of request and forwarding the documents and two supplementary budgets as exhibits. He also produced two supplementary budgets. In cross-examination, he stated that prosecution exhibit 13 which was one of the budgets he produced was a draft and could not be used for accountability purposes. He was shown and identified the proper budget as DMFI 2(b) and stated that in the revised budget, there was an allocation of Kshs 4 million for feasibility study.
Pressed further, PW6 also confirmed that there was an Appropriation Amendment Bill which was taken through the Budget Appropriation Committee and thereafter it was passed as the Supplementary Amendment Act 2014. He further confirmed that according to a document identified as DMFI 8, Kshs 5 million was allocated for the feasibility study for the financial year 2014/2015. He stated that the Appropriation Acts were never shown to him by EACC. The witness therefore confirmed that the feasibility study was budgeted and appropriated for.
Zephania Owuor Onima the Deputy Director in charge of Complaints in NEMA testified that he was requested to give insights on expected contents of a feasibility study and comment on feasibility report given to the Government. It was his testimony that the report was a progress report and not a feasibility or pre-feasibility study. He testified that he then prepared a report based on the provided documents and added that it was revealed that the project had commenced without the relevant licenses from NEMA and that the 9 th respondent had no licenses to collect, transport or operate a waste disposal facility. In cross-examination, he stated that there was no requirement for licenses to conduct a pre-feasibility study but licenses were required for implementation of a project.
PW8, who introduced himself as Nicodemus Mulaku and the County Secretary of the Government was expected to produce minutes dated 7/5/2014 which was objected to on the basis that he was not an employee of the Government at the time and he did not record any statement. He was thus stood down and PW9 one, Beneya Kwendo Okalo took the witness stand. He was the head of Supply Chain in the Government from 2013 until he retired in 2016.
PW8 told the court that on the 20/1/2016, he was visited by EACC officers who inquired about waste management and wanted information from in relation to how the services of the 9 th respondent were procured while showing him the MOU. He testified that he did not have any information to give them as he was not involved whatsoever in the process giving rise to the MOU nor was he present in any meeting thereof. When he was cross-examined, he confirmed that the said project was approved by the County Executive Committee (CEC) and the Assembly and that it was not a must for the MOU to go through the procurement process.
The prosecution’s tenth witness was Peterson Wachira, a clerical officer in the Office of the Registrar of Companies. His evidence was on registration, directorship and the status of the 9 th respondent which I don’t find relevant to the issues in this appeal.
The 11 th witness to be called by the prosecution was Grace Matinde Mchuma, a CEC Member of the Government who confirmed having attended the 44 th CEC meeting where a discussion on waste management contract being issued to the 9 th respondent was done and resolution passed. It was her testimony that the decision was unanimous and that implementation was thereafter subject to the user department. This position was supported by PW 12 one Dr. Maurice Peter Simiyu who confirmed that the minutes produced as exhibit 24 was a true record of the said meeting.
Martin Shikuku Kafwa testified that he was the County Executive Member for Culture and Social Services and confirmed attending the 44 th CEC Meeting where among others the proposed partnership with the 9 th respondent with regards to cleaning Busia town was discussed and a cabinet memo which was passed. Similar testimonies came from PW 16, one Bernadette Muyomi and PW 17, one Azida Ali.
Stephen Yego a forensic document examiner working with EACC was the fourteenth prosecution witness. His testimony was in respect of documents specifically MOU, a letter dated 12-05-2014, and bank transfer documents. There is no contestation on execution or authorship of the documents and as such I do not consider the evidence relevant to this appeal. The same applies to testimony of PW18 one Jacob Odour who examined payment vouchers.
J. J.O. a protected witness told the court that he was employed by 9 th respondent in May 2014, as the County Relations Coordinator. He was the link between the Government and the company and also supervising employees of the Government. It was his testimony that work was fine between May and August 2014 but they experienced problems from September to January. In cross-examination, he stated that he was employed by the Government through a letter signed by Timon Mboga, the Chief Officer Environment. It was his testimony that they began work on 29/4/2015 after 9 th respondent had already disengaged.
Pressed further, PW15 confirmed that he did not work for the Government before 2014 and added 3 rd and 4 th respondents went to Germany and witnessed the transaction on the MOU and that public funds were used. However, on being shown a document marked as MFI 5(3), he stated that their names were not there. It was also his testimony that he presented the petition on payment and that there was a resolution by the Assembly directed to the Government. He also stated that there was work done by the company. He further stated that besides non-payment, he had no issues against the 9 th respondent.
PW19 was Abraham Kipkoech Kemboi who was the investigating working with the EACC. It was his testimony that they received an anonymous report dated 16/5/2015 which he produced as exhibit 31 alleging serious breach of law by senior officials of the Government in acquisition of integrated solid waste management. Upon receiving the report, initial analysis was done and it was found to merit investigation. He testified that he together with Timothy Munga Wahome began investigating the said allegations by requesting for relevant documents from the Government, the Assembly, KRA and Registrar of Companies through official letters. He added that the vide a letter dated 6/10/2015 from the County Secretary, they received the MOU and it was indicated that it was not a joint venture and needed no approvals from the treasury.
He then wrote another letter requesting for further documents and statement recordings and further requested from the Clerk of the Assembly confirmation that the project was budgeted for. He thereafter received the proposed supplementary budget for the financial year 2013/2014, report on budget appropriation committee on supplementary estimates and the approved budget as well as the second and last supplementary budgets. He later received a letter forwarding the Appropriation Acts for financial year 2013/2014 and 2014/15. He also receiving documents relating to payments made to the 9 th respondent.
The witness added that investigations revealed that a delegation from the Government visited Germany on 1/4/2014 which trip was funded by Faun Kirchhoff and organized by the 9 th respondent. The trip was in relation to solid waste management which resulted in signing of an MOU on 7/4/2014 in which the Government was obligated to pay Kshs 8 million to the 9 th respondent in two installments of Kshs 4 million. The project was to be done in two phases as well.
He added that during investigations, he discovered that the 9 th respondent was incorporated in July 2014 but the MOU was signed in April 2014 when it was non-existent. He testified that according to investigations, on 9-04-2014, the CEC for Water and Natural Resources sought approval for re-allocation of Kshs 4 million towards the feasibility study which had not been planned for yet they were expected to pay Kshs 8 million. The CEC Finance advised him to make proper re-allocation of the vote for approval by the Assembly and seek concurrence of the Governor and Executive Committee pending approval of Assembly within prescribed time. A payment voucher number 6262 dated 14/5/2014 was later prepared in favour of the 9 th respondent.
The witness added that the MOU was signed by the 9 th respondent whereas payments were made to Madam R Enterprises and that from the documents they received, there was no allocation or re-allocation for the feasibility study. It was also his testimony that on 23 rd September, 2014, the 2 nd payment voucher no. 4575 was prepared in favour of Madam R Enterprises which payment was sourced from two votes. He added that upon payment of the second installment, the 9 th respondent opted out of the arrangement citing frustrations from the Government. They recovered a report on the feasibility study sent by Sebastian in January 2016 and which was said to have been concluded on 3/9/2014.
He further testified that following the investigations, they enquired from the KRA whether taxes were paid which response was that no taxes were paid from payments by the Government. He maintained that the engagement with the 9 th respondent did not follow the Public Procurement and Disposal Act and that the 1 st respondent abused his office in so engaging without due regard to the procurement laws and approving payments and further that the said project had not been planned for.
In cross-examination, PW19 confirmed that the trip to Germany was facilitated by Madam R Enterprises. He also confirmed that there was provision for the same in the CIDP which was passed following public participation. He also confirmed that the MOU was passed by the CEC’s 44 th meeting and that a feasibility study was conducted and the same was budgeted for. He stated further that he was not aware if there was a procurement plan for 2013/14 or 2014/2015 and that he became aware of the CIPD during the hearing and that the said documents were not supplied to them following their requests.
Regarding the question on who was authorized to sign the vouchers, he stated that he had no evidence of delegation of authority to the 4 th respondent. He added that, Madam R Enterprises and not Madam R. Enterprises Ltd was paid. On the issue of tax, the witness stated that it was Kshs 551,724/= being 16% of 4 million and the same had not been paid. When he was further shown Tax Compliance Certificates for the 7 th respondent and penalties for late filing, he stated that KRA staff were better placed to answer on the issue of the taxes.
Timothy Munga Wahome the 20 th prosecution witness testified that he was also an investigator with EACC Bungoma Branch and that he investigated the case together with PW 19. His testimony in addition to repeating part of what PW19 stated was a recap of the evidence of the witnesses who testified in respect of the payments to Madam R Enterprises and
[...truncated]
The specific charges were as follows;
Count 1- against all the respondents- Conspiracy to commit an offence of economic crime contrary to Section 47A(3) as read with Section 48 of the Anti-Corruption and Economic Crimes Act. The particulars were that between 15 th March and 25 th September 2014, in Busia County within the Republic of Kenya jointly and severally conspired to commit an economic crime to wit engaged in a scheme to defraud the County Government of Busia to the tune of Kshs 8 million for a purported feasibility study on integrated waste management project which was to be carried out by Madam R Enterprises Ltd.
Count 2- against the 1 st respondent only- engaging in a project without prior planning contrary to Section 45(2)(c) as read with Section 48 of the Anti-Corruption and Economic Crimes Act particulars being that on or about 7 th April 2014 in Berlin Germany, being the Governor of Busia County, he intentionally engaged in a project namely feasibility study on integrated solid waste management project by entering into a Memorandum of Understanding with Madam R Enterprises Ltd without prior planning.
Count 3- Against the 2 nd and 3 rd respondents- engaging in a project without prior planning contrary to Section 45(2)(c) as read with Section 48 of the Anti-Corruption and Economic Crimes Act particulars being that between 7 th April 2014 and 25 th September 2014, in Busia County within the Republic of Kenya, being the County Executive Member for Water, Environment and Natural Resources and County Executive Member for Economic Planning respectively, jointly engaged in a project namely; feasibility study on integrated solid waste management project without prior planning.
Count 4 against the 1 st respondent only - abuse of office contrary to Section 46
as read with Section 48 of the Anti-Corruption and Economic Crimes Act. The particulars were that on 7 th April 2014, at Berlin, Germany he used his office to improperly confer benefit of Kshs 8,000,000/= to Madam R Enterprises Limited by signing a Memorandum of Understanding with the said Madam R Enterprises Ltd which had not been procedurally procured as per the Public Procurement and Disposal Act 2005.
Count 5 against the 1 st respondent only - abuse of office contrary to Section 46
as read with Section 48 of the Anti-Corruption and Economic Crimes Act. The particulars were that on 12 th May 2014, at Busia County within the Republic of Kenya, being the Governor of Busia County, he used his office to improperly confer benefit of Kshs 8,000,000/= to Madam R Enterprises Limited by approving the payments for the said Madam R Enterprises Ltd which had not been procedurally procured as per the Public Procurement and Disposal Act 2005.
Count 6 against the 3 rd , 4 th and 5 th respondents- willful failure to comply with
the law relating to management of funds contrary to Section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes Act. The particulars were that, between 9 th May 2014 and 25 th September 2014 in Busia County, within the Republic of Kenya, being the County Executive Member for Finance and Economic Planning, Chief Officer Finance and Economic Planning and Head of the Treasury Accounting respectively, being persons whose functions concerned management of public revenue willfully failed to comply with the law relating to management of funds to with Section 138 (6) of the Public Finance Management Act, 2012 by knowingly approving payments amounting to Kshs 8,000,000/= to Madam R Enterprises Ltd for a feasibility study on integrated solid waste management, a project for which funding had not been appropriated.
Count 7 against the 3 rd , 4 th and 5 th respondents- fraudulently making payments
from public revenue for services not rendered contrary to Section 45(2)(a)(ii) as read with Section 48 of the Anti-Corruption and Economic Crimes Act particulars being that between 9 th Amy 2014 and 25 th September 2014 in Busia County within the Republic of Kenya being the County Executive Committee Member for Finance and Economic Planning, Chief Officer Finance and Economic Planning and Head of Treasury Accounting respectively, being persons whose functions concerned management of public revenue fraudulently made payments to Madam R Enterprises Ltd for services not rendered.
Count 8 against the 6 th , 7 th and 8 th respondents- fraudulent acquisition of public
property contrary to Section 45(1)(a) as read with Section 48 of the Anti-Corruption and Economic Crimes Act. The particulars were that on 14 th May 2014 at Busia County, within the Republic of Kenya, being the Finance Manager, proprietor and beneficiary of Madam R Enterprises respectively, fraudulently acquired public property to wit Kshs 4,000,000/= from Busia County Government for services not rendered.
Count 9 against the 6 th , 7 th , 8 th and 9 th respondents- fraudulent acquisition of
public property contrary to Section 45(1)(a) as read with Section 48 of the Anti-Corruption and Economic Crimes Act. The particulars were that on 25 th September 2014 at Busia County, within the Republic of Kenya, being the Finance Manager, proprietor and beneficiary of Madam R Enterprises respectively, fraudulently acquired public property to wit Kshs 4,000,000/= from Busia County Government for services not rendered.
Count 10 against the 6 th , 7 th and 8 th respondents- failure to pay taxes contrary to
Section 45(1)(d) as read with Section 48 of the Anti-Corruption and Economic Crimes Act whose particulars were that on 14 th May 2014, at Busia County, within the Republic of Kenya being Finance Manager, proprietor and beneficiary of Madam R Enterprises respectively, failed to pay taxes being VAT to the Kenya Revenue Authority a sum of Kshs 551,724/=.
Count 11 against the 6 th , 7 th and 8 th respondents- failure to pay taxes contrary to
Section 45(1)(d) as read with Section 48 of the Anti-Corruption and Economic Crimes Act whose particulars were that on 25 th September 2014, at Busia County, within the Republic of Kenya being Finance Manager, proprietor and beneficiary of Madam R Enterprises respectively, failed to pay taxes being VAT to the Kenya Revenue Authority a sum of Kshs 551,724/=.
On the 16 th May 2025, the trial court having considered the evidence on record delivered a judgment in which it found that the prosecution had failed to prove their case beyond any reasonable doubt in relation to all the charges against the respondents and proceeded to acquit them under section 215 of the Criminal Procedure Code. Being dissatisfied by that decision, the appellant herein filed a petition of appeal dated 28 th May 2025 citing the following grounds;
The Learned Magistrate gravely erred in law and in fact by failing to analyze the entirety of the prosecution's evidence, and proceeded to render a decision based solely on the defence tendered despite the overwhelming and uncontroverted evidence presented by the prosecution.
The Learned Magistrate erred in law and in fact by failing to appreciate and analyze the cogent, credible, and truthful evidence adduced by the prosecution, which demonstrated that the respondents conspired to defraud the County Government of Busia of Kshs. 8,000,000/=.
The Learned Magistrate misdirected herself in law and fact by failing to recognize that the Memorandum of Understanding (MOU) signed in Germany, which formed the basis for the activities the 9 th respondent was to undertake, constituted a serious breach of the County Governments Act, the Public Finance Management Act, and the Public Procurement and Disposal Act. The trial court erroneously disregarded this evidence and mischaracterized the MOU as a non-binding framework rather than a binding contract.
The Learned Magistrate failed to caution herself and/or remind herself of her duty as the trial court to determine the points of departure between the approved budget presented by the prosecution which was supplied to the EACC and the alternative budget presented by the accused. The Magistrate further failed to analyze the rebuttal evidence produced by the prosecution, which discredited the authenticity of the budget relied on by the accused persons. This omission led to a significant misdirection in law, as the court failed to determine which of the conflicting budgetary documents merited greater evidentiary weight.
The Learned Magistrate erred in law and in fact by unjustifiably attributing more weight and consideration to the budget produced by the accused, which purported to make provision for the disputed project, despite prosecution witnesses having established that no such budgetary allocation existed.
The Learned Magistrate failed to appreciate the evidence presented by the prosecution that the feasibility study project was undertaken without prior planning or approvals, which were only sought retroactively after the signing of the MOU.
The Learned Magistrate erred in law and in fact by failing to recognize that the budget documents and public participation notices presented by the accused were procured after the commencement of investigations, and specifically tailored to counter the prosecution's case, after the accused had already been charged and served with a notice to produce. Consequently, the court ought to have given such documents minimal probative value.
The Learned Magistrate failed to consider the prosecution's evidence that Madam R Enterprises Ltd., the company allegedly engaged to carry out the feasibility study, was primarily a hardware business with no capacity or expertise to conduct feasibility studies for the County Government of Busia.
The Learned Magistrate failed to appreciate that the 9 th Respondent, despite offering unsworn evidence, did not produce any proof of having paid tax on the funds received from the County Government of Busia.
My role as the first appellate court is to analyze, consider and evaluate the evidence produced in the trial court and come to my own independent conclusion but as I do so, I will keep in mind that I did not take the evidence first hand and I did not have an opportunity to observe the demeanour of the witness and as such, I should give due allowance for that. This is a basic legal principle which has been established since the celebrated case of Okeno vs. Republic (1972) EA 32 which has been cited in many cases including Mwangi v Republic [2025] KEHC 9457 (KLR) where the court held that;
‘At the conclusion of the case, it is noteworthy that the role of the first appellant court is to re-evaluate the evidence adduced in the trial court afresh and arrive at its own conclusion taking into account the fact that the court did not have the benefit of the demeanour of the witness.’
In addition to the above, an appellate court should in my view constrain itself within the area challenged by the appellant as it is not expected to dwell on issues which may have been settled at the trial court and parties satisfied. The reconsideration of evidence should therefore be limited to the grounds of appeal which is in line with Section 350 of the Criminal Procedure Code which provides.
‘A petition of appeal shall be signed, if the appellant is not represented by an advocate, by the appellant, and, if the appellant is represented by an advocate, by the advocate, and shall contain particulars of the matters of law or fact in regard to which the subordinate court appealed from is alleged to have erred, and shall specify an address at which notices or documents connected with the appeal may be served on the appellant or, as the case may be, on his advocate; and the appellant shall not be permitted, at the hearing of the appeal, to rely on a ground of appeal other than those set out in the petition of appeal. ’
There are of course provisos to the above Section but they do not apply to this appeal. In execution of mandate as aforesaid, I first reproduce what I consider to be the relevant parts of the evidence of the parties in the following paragraphs.
The prosecution’s case
PW1 was Charles Wakhungu Wasike who was an MCA of for Buhoyo East Ward. He testified that he was in the delegation that travelled to Germany where they met an investor company known as Madam R Investment Company Ltd whose directors are the 7 th and 8 th respondents and added that the trip was funded by the 9 th with the County Government of Busia (hereinafter referred to as ‘the Government’) only giving them out of pocket allowances. During that visit, a Memorandum of Understanding (hereinafter referred to as ‘the MOU’) on waste management was signed on 7 th April, 2014 between the 9 th respondent and the Government with the 1 st respondent signing on behalf of the Government. It was his testimony that he was not aware whether the said trip had been planned for.
During cross-examination, he was shown the Government’s County Integrated Development Plan (CIDP) which he admitted was a legal requirement and was approved by the County Assembly and it contained a column on funding. It was his testimony that some attachments were missing from the CIDP and that the Governor could not spend money without the authority of the Assembly. He also confirmed that there was a Supplementary Budget for the financial year 2013/2014 which indicated there was an allocation of Kshs 4 million for feasibility study and that he was never shown the Busia County Appropriation Amendment Act 2013/2014. He also confirmed that there was an Appropriation Act 2014/15 published on 29 th June 2014 and assented to on 30 th June 2014 to commence on 30 th July 2014 and there was money appropriated for feasibility studies.
Josephat Wandera alias Makulu Kalumbe was the second witness who testified that he was the MCA for Lingulu ward. He testified that he received a letter (exhibit 2) from the Faun Kirchhoff group dated 18 th March 2014 addressed to the 1 st respondent through the office of the Speaker. He was shown and identified prosecution exhibit 2 which was the budget for the Government but added that the same was not the true budget for the Government for the year.
During cross-examination, it was his testimony that he was seeing exhibit 2 for the first time. He added that on the 30 th June, 2014, there was a special sitting of the Assembly where the supplementary budget for the year 2013/2014 was passed and later sent to the Governor for assent. He further stated that the Government was not defrauded of the Kshs 8 million and the feasibility study was planned in terms of the budget and the CIDP and further confirmed that work was done but not completed due to the non-delivery of trucks. He concluded by stating that there have been no audit queries hence payments were lawfully made.
PW3 was one Dan Orabidi Emorneri testified that he was an accountant working with the Government and his duties involved verifying payments from different departments and ensuring there were no computation errors. He produced prosecution exhibits 1 to 5 and stated that he was the person who received, examined, and verified the payment vouchers, one on the 14 th May 2014 for Kshs 4 million to the 9 th respondent through Family Bank account number 02500026060, Kisumu Reliance branch and the second one for Kshs 4 million on 23 rd September, 2014 (vouchers produced as prosecution exhibits 4(a) & 5(b) and passed them for payment. He testified that following his verification, the same were passed to the Head of the Treasury for approval and thereafter to the Principal Officer Finance.
In cross-examination, he confirmed that the payments were lawful, budgeted for and authorized and it is on that basis that he proceeded to sign the vouchers. He asserted that services were rendered by the 9 th respondent and that he was aware that there was a feasibility study report and that the Government got value for its money. It was his testimony therefore that they did not acquire 4 million irregularly.
The fourth prosecution witness was John King'ori Muchiri, the head of security and investigations at Family Bank who testified that pursuant to summons from EACC, he supplied and also produced as exhibits the account opening documents, statements, EFT requests, and other relevant documents in respect of 9 th respondent’s bank account at Family Bank as prosecution exhibits 6 to 11. It was his testimony that the said account received Kshs 4 million from a Cooperative Bank Account belonging to the Government on the 14 th of May, 2014. He added that there was a swift transfer form dated 15 th May, 2014 for 5607.32 Euros to Sebastian, the purpose thereof indicated as salary. He testified further that on the 25 th of September, 2014, a swift was received for the said account from the Central Bank of Kenya for Kshs 4 million and on the same day, a transmission notification was received for 7,000 Euros to Sebastian indicated to be for directors’ salary. When he was cross-examined, he indicated that there was no issue about how the account was being run and that there were no reasons to question the transactions. He concluded by stating that no money from the said account was sent to any of the 1 st to 4 th accused therein.
PW5, one John Moseti Orioro, the KRA regional manager for Western Kenya, in charge of domestic taxes told the court that pursuant to a letter from EACA, he provided tax information in respect of 7 th and 9 th respondents. It was his testimony that Madam R Enterprises was registered as a sole proprietorship by the 7 th respondent in 2007 and only filed returns in 2008 but had not filed returns since then. Regarding the 6 th respondent, it was his testimony that she has been compliant in terms of filing returns. During cross-examination, he stated that Madam R Enterprises Ltd was registered in late 2014.
Allan Wafula Mabuka who was the 6 th prosecution witness testified that he was the Clerk of the County Assembly of Busia (hereinafter referred to as ‘the Assembly’) since 2014. He was custodian and supplier of official documents from the Assembly. He confirmed that he provided information and all relevantnt documents to the EACC investigator (PW19) pursuant to their request. He produced the letters of request and forwarding the documents and two supplementary budgets as exhibits. He also produced two supplementary budgets. In cross-examination, he stated that prosecution exhibit 13 which was one of the budgets he produced was a draft and could not be used for accountability purposes. He was shown and identified the proper budget as DMFI 2(b) and stated that in the revised budget, there was an allocation of Kshs 4 million for feasibility study.
Pressed further, PW6 also confirmed that there was an Appropriation Amendment Bill which was taken through the Budget Appropriation Committee and thereafter it was passed as the Supplementary Amendment Act 2014. He further confirmed that according to a document identified as DMFI 8, Kshs 5 million was allocated for the feasibility study for the financial year 2014/2015. He stated that the Appropriation Acts were never shown to him by EACC. The witness therefore confirmed that the feasibility study was budgeted and appropriated for.
Zephania Owuor Onima the Deputy Director in charge of Complaints in NEMA testified that he was requested to give insights on expected contents of a feasibility study and comment on feasibility report given to the Government. It was his testimony that the report was a progress report and not a feasibility or pre-feasibility study. He testified that he then prepared a report based on the provided documents and added that it was revealed that the project had commenced without the relevant licenses from NEMA and that the 9 th respondent had no licenses to collect, transport or operate a waste disposal facility. In cross-examination, he stated that there was no requirement for licenses to conduct a pre-feasibility study but licenses were required for implementation of a project.
PW8, who introduced himself as Nicodemus Mulaku and the County Secretary of the Government was expected to produce minutes dated 7/5/2014 which was objected to on the basis that he was not an employee of the Government at the time and he did not record any statement. He was thus stood down and PW9 one, Beneya Kwendo Okalo took the witness stand. He was the head of Supply Chain in the Government from 2013 until he retired in 2016.
PW8 told the court that on the 20/1/2016, he was visited by EACC officers who inquired about waste management and wanted information from in relation to how the services of the 9 th respondent were procured while showing him the MOU. He testified that he did not have any information to give them as he was not involved whatsoever in the process giving rise to the MOU nor was he present in any meeting thereof. When he was cross-examined, he confirmed that the said project was approved by the County Executive Committee (CEC) and the Assembly and that it was not a must for the MOU to go through the procurement process.
The prosecution’s tenth witness was Peterson Wachira, a clerical officer in the Office of the Registrar of Companies. His evidence was on registration, directorship and the status of the 9 th respondent which I don’t find relevant to the issues in this appeal.
The 11 th witness to be called by the prosecution was Grace Matinde Mchuma, a CEC Member of the Government who confirmed having attended the 44 th CEC meeting where a discussion on waste management contract being issued to the 9 th respondent was done and resolution passed. It was her testimony that the decision was unanimous and that implementation was thereafter subject to the user department. This position was supported by PW 12 one Dr. Maurice Peter Simiyu who confirmed that the minutes produced as exhibit 24 was a true record of the said meeting.
Martin Shikuku Kafwa testified that he was the County Executive Member for Culture and Social Services and confirmed attending the 44 th CEC Meeting where among others the proposed partnership with the 9 th respondent with regards to cleaning Busia town was discussed and a cabinet memo which was passed. Similar testimonies came from PW 16, one Bernadette Muyomi and PW 17, one Azida Ali.
Stephen Yego a forensic document examiner working with EACC was the fourteenth prosecution witness. His testimony was in respect of documents specifically MOU, a letter dated 12-05-2014, and bank transfer documents. There is no contestation on execution or authorship of the documents and as such I do not consider the evidence relevant to this appeal. The same applies to testimony of PW18 one Jacob Odour who examined payment vouchers.
J. J.O. a protected witness told the court that he was employed by 9 th respondent in May 2014, as the County Relations Coordinator. He was the link between the Government and the company and also supervising employees of the Government. It was his testimony that work was fine between May and August 2014 but they experienced problems from September to January. In cross-examination, he stated that he was employed by the Government through a letter signed by Timon Mboga, the Chief Officer Environment. It was his testimony that they began work on 29/4/2015 after 9 th respondent had already disengaged.
Pressed further, PW15 confirmed that he did not work for the Government before 2014 and added 3 rd and 4 th respondents went to Germany and witnessed the transaction on the MOU and that public funds were used. However, on being shown a document marked as MFI 5(3), he stated that their names were not there. It was also his testimony that he presented the petition on payment and that there was a resolution by the Assembly directed to the Government. He also stated that there was work done by the company. He further stated that besides non-payment, he had no issues against the 9 th respondent.
PW19 was Abraham Kipkoech Kemboi who was the investigating working with the EACC. It was his testimony that they received an anonymous report dated 16/5/2015 which he produced as exhibit 31 alleging serious breach of law by senior officials of the Government in acquisition of integrated solid waste management. Upon receiving the report, initial analysis was done and it was found to merit investigation. He testified that he together with Timothy Munga Wahome began investigating the said allegations by requesting for relevant documents from the Government, the Assembly, KRA and Registrar of Companies through official letters. He added that the vide a letter dated 6/10/2015 from the County Secretary, they received the MOU and it was indicated that it was not a joint venture and needed no approvals from the treasury.
He then wrote another letter requesting for further documents and statement recordings and further requested from the Clerk of the Assembly confirmation that the project was budgeted for. He thereafter received the proposed supplementary budget for the financial year 2013/2014, report on budget appropriation committee on supplementary estimates and the approved budget as well as the second and last supplementary budgets. He later received a letter forwarding the Appropriation Acts for financial year 2013/2014 and 2014/15. He also receiving documents relating to payments made to the 9 th respondent.
The witness added that investigations revealed that a delegation from the Government visited Germany on 1/4/2014 which trip was funded by Faun Kirchhoff and organized by the 9 th respondent. The trip was in relation to solid waste management which resulted in signing of an MOU on 7/4/2014 in which the Government was obligated to pay Kshs 8 million to the 9 th respondent in two installments of Kshs 4 million. The project was to be done in two phases as well.
He added that during investigations, he discovered that the 9 th respondent was incorporated in July 2014 but the MOU was signed in April 2014 when it was non-existent. He testified that according to investigations, on 9-04-2014, the CEC for Water and Natural Resources sought approval for re-allocation of Kshs 4 million towards the feasibility study which had not been planned for yet they were expected to pay Kshs 8 million. The CEC Finance advised him to make proper re-allocation of the vote for approval by the Assembly and seek concurrence of the Governor and Executive Committee pending approval of Assembly within prescribed time. A payment voucher number 6262 dated 14/5/2014 was later prepared in favour of the 9 th respondent.
The witness added that the MOU was signed by the 9 th respondent whereas payments were made to Madam R Enterprises and that from the documents they received, there was no allocation or re-allocation for the feasibility study. It was also his testimony that on 23 rd September, 2014, the 2 nd payment voucher no. 4575 was prepared in favour of Madam R Enterprises which payment was sourced from two votes. He added that upon payment of the second installment, the 9 th respondent opted out of the arrangement citing frustrations from the Government. They recovered a report on the feasibility study sent by Sebastian in January 2016 and which was said to have been concluded on 3/9/2014.
He further testified that following the investigations, they enquired from the KRA whether taxes were paid which response was that no taxes were paid from payments by the Government. He maintained that the engagement with the 9 th respondent did not follow the Public Procurement and Disposal Act and that the 1 st respondent abused his office in so engaging without due regard to the procurement laws and approving payments and further that the said project had not been planned for.
In cross-examination, PW19 confirmed that the trip to Germany was facilitated by Madam R Enterprises. He also confirmed that there was provision for the same in the CIDP which was passed following public participation. He also confirmed that the MOU was passed by the CEC’s 44 th meeting and that a feasibility study was conducted and the same was budgeted for. He stated further that he was not aware if there was a procurement plan for 2013/14 or 2014/2015 and that he became aware of the CIPD during the hearing and that the said documents were not supplied to them following their requests.
Regarding the question on who was authorized to sign the vouchers, he stated that he had no evidence of delegation of authority to the 4 th respondent. He added that, Madam R Enterprises and not Madam R. Enterprises Ltd was paid. On the issue of tax, the witness stated that it was Kshs 551,724/= being 16% of 4 million and the same had not been paid. When he was further shown Tax Compliance Certificates for the 7 th respondent and penalties for late filing, he stated that KRA staff were better placed to answer on the issue of the taxes.
Timothy Munga Wahome the 20 th prosecution witness testified that he was also an investigator with EACC Bungoma Branch and that he investigated the case together with PW 19. His testimony in addition to repeating part of what PW19 stated was a recap of the evidence of the witnesses who testified in respect of the payments to Madam R Enterprises and
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