In the lower court, the appellants faced the following four counts;
Count 1- Receiving a bribe contrary to Section 6 (1) (a) as read with Section 18(1) of the Bribery Act no. 47 of 2016 whose particulars were that on 5 th day of March 2019, Tirus Ndambuki Musyoka and Kyalo Munyao Nthiwa at Joska Police Post within Machakos County, being persons employed by a public body to wit, Ministry of Interior and Coordination of National Government as Lukenya Location Chief and Inspector of Police Joska Police Post jointly requested for a bribe of Kshs. 50,000/= from Peter Muhia Njenga with intent that, in consequence, they would release his 8 head of cattle detained at KBC police station.
Count 2- Receiving a bribe contrary to Section 6 (1) (a) as read with Section 18(1) of the Bribery Act no. 47 of 2016 the particulars thereof being that on 7 th March 2019 at Joska shopping centre within Machakos County, Tirus Ndambuki Musyoka, Francis Bundi Wilson and Kyalo Munyao Nthiwa being persons employed by a public body to wit, Ministry of Interior and Coordination of National Government as Chief Lukenya Location, Officer Commanding KBC Police Station and Inspector of Police Joska Police Post respectively, jointly requested for a bribe of Kshs. 50,000/= from Peter Muhia Njenga with intent that, in consequence, they would release his 8 head of cattle held at KBC Police Station.
Count 3- Receiving a bribe contrary to Section 6 (1) (a) as read with Section 18 (1) of the Bribery Act no. 47 of 2016 whose particulars were that on 8 th day of March 2019 at Joska shopping centre within Machakos County, Tirus Ndambuki Musyoka, being a person employed by a public body to wit, Ministry of Interior and Coordination of National Government as Chief Lukenya Location received a bribe of Kshs 40,000/= from Peter Muhia Njenga with intent that, in consequence, he would release his 8 head of cattle held at KBC Police Station.
Count 4- Abuse of office contrary to Section 46 as read with Section 48 (1) of the Anti-Corruption and Economic Crimes Act no. 3 of 2003. The particulars in this count were that on 8 th day of March 2019 at Joska shopping centre within Machakos County, Tirus Ndambuki Musyoka, being a person employed by a public body to wit, Ministry of Interior and Coordination of National Government as Chief Lukenya Location, used his office to improperly confer a bribe of Kshs. 40,000/= upon himself, which comprised of money obtained and received from Peter Muhia Njenga so as to release his 8 head of cattle held at KBC Police Station.
The appellants pleaded not guilty and the prosecution called a total of twelve witnesses in its efforts to prove the four counts. The trial court convicted all the appellants and sentenced them as follows;
The 2 nd and 3 rd appellants, Kshs 50,000.00 each in default to serve one year in jail on count 1.
All the appellants, Kshs 50,000.00 each in default to serve one year in jail on count 2.
The 3 rd appellant Kshs 50,000.00 in default to serve one year in jail on count 3.
The 3 rd appellant Kshs 50,000.00 in default to serve one year in jail on count 4.
The appellants were aggrieved by the conviction and sentence and preferred appeals herein. The 1 st and 2 nd appellant filed appeal number E006 of 2024 while the 3 rd appellant filed a separate appeal vide criminal appeal number E018 in the criminal division of the High Court. On 21-01-2025, Honourable Justice K. Kimondo transferred appeal number E018 of 2024 to this court upon which it was registered as appeal number E001 of 2025. When the parties appeared before me on 8-04-2025, I ordered that the two appeals be consolidated for purpose of hearing with the arrangements of the appellants as it appears in the title to this judgment and with proceedings being taken in file number E006 of 2024.
The Act mentioned in the charge sheet as Bribery Act does not actually exist. What we have is Anti-Bribery Act. But that does not go into the root of the case and I take it as a small issue of misdescrption of the Act. I have looked at the two petitions of appeal and gather therefrom that the issues for determination are whether there was enough evidence to warrant conviction of the appellants and whether the sentences were harsh, excessive or severe. The grounds of appeal border on allegations that the prosecution’s case was unreliable, uncorroborated and contradictory.
This being a first appeal, this court is obligated to re-evaluate the evidence produced before the trial court and come to its own independent conclusion but having in mind the fact that I did not take the evidence of the witnesses and did not have the advantage of observing their demeanour. The Court of Appeal in Joseph Kipkemoi Ngetich v Republic (2018) KECA 120 (KLR) cited with approval the holding in Okeno v R (1972) EA 32 thus;
‘In the case of Okeno v. R [1972] EA 32, at page 36, the predecessor to this Court stated:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R [1957] E A 336) and to the appellate courts own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions - Shantilal M. Ruwala v. R [1957] EA 570. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower courts’ findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses - See Peters v. Sunday Post [1958] EA 424”.
As stated above, the prosecution called 12 witnesses. PW1 was the complainant. He told the court that on 25-02-2019, one Teresiah Nduku in whose custody he had kept his cows for fattening telephoned and informed him that two of his workers had been arrested by the area Chief. He sent his friend Francis Mwangi to Joska police station where he found a Police Inspector known as Munyao who referred him to KBC police station. This was on 5-03-2019.
Francis was told to go with the owner of the cows and the complainant went later to Joska police station and found Inspector Munyao who called the area Chief known as Ndambuki and when the Chief came, he told him that the cows could not be easily released to him because the case was known by his bosses including the OCS KBC police station. He told them to bring Kshs 50,000.00 for the animals to be released and threatened that they would be donated to a children’s home. They went to EACC and met one Ronald Ochieng and reported. They were given a mobile like audio visual recording device which he signed for. He identified the device in court.
On 7-03-2019, they left EACC for Joska accompanied by Ronald Ochieng and another EACC officer known as Ngeno and on the way, Francis telephoned Inspector Munyao who confirmed that he was waiting for them. On arrival, Munyao telephoned the Chief who came. He also called OCS KBC police station who said he was at a garage. They went to Green Resort Club where the witness told them he had only found 10,000.00. The OCS told them that they were jokers and they got angry. He told them that he would go and look for the balance and went back to EACC where the recording was played.
The next day, they returned to EACC where they were given an envelope with Kshs 40,000.00. He confirmed the amount and he was warned not to touch the money. He identified the envelope in court and the Kshs 40,000.00. He stated that the money in court was punctured but what he was given was not punctured. He was given a photocopy of the money which he and one Ali Abdi signed. They then went to Joska with eight EACC officers. Francis and him were in different vehicles. They went and met Inspector Munyao at the same hotel they were before where the Chief joined them.
They sat at an excluded spot with the Chief and the OCS while the EACC sat at different points. He told the OCS and the Chief the much he had and gave the money to the Chief. The Chief took the money, counted and pocketed it and was arrested at that point. Francis pointed out the pocket where the Chief had put the money and it was retrieved and counted and recorded the serial numbers. The OCS was also searched and a wallet recovered. They then returned to EACC where statements were recorded and he was called back on 14-03-2019 and signed some documents and an inventory and listened to the conversation which he confirmed. He identified the inventory and transcript of the recording which was in kikuyu and swahili languages.
The video recording was then played in court. The court observed that the clip was inaudible as the volume was very low even when turned to the maximum and adjourned for twenty minutes. When the court resumed, the clip had some points of low audibility which required a level of straining to hear. The prosecution then introduced a second transcript and the second audio clip. The second one was good in clarity and audibility. The witness confirmed that what was played was what he recorded. He stated further that the second transcript which was identified as MFI10 was the conversation between OCS Bundi, Chief Ndambuki and Inspector Munyao. He identified Chief Ndambuki as the 3 rd appellant, OCS Bundi as the 1 st appellant and Inspector Munyao as the 2 nd appellant.
In cross-examination, PW1 said that his neighbour Teresiah informed him that his workers had been arrested for cultivating bhang. He had kept the cows for one year while Teresiah kept goats. He confirmed that he had a case in Machakos related to livestock theft. He added that Inspector Munyao and the Chief asked for documents to confirm ownership of the cows but he did not have any and that he did not know the appellants before the incident. He stated that it was the Chief who told him to give money. He also stated that the wazee referred to in the transcript meant the Chief and Inspector Munyao. He also stated that nobody had asked for 10,000/= and that he was given 40,0000/= on a brown envelop. He stated that he was not asked for a bribe on 5-03-2019. He gave 40,000/= on 8-03-2018 and that he did not give money on 6-03-2019 and 7-03-2019.
He said that he met the 1 st appellant on 6-03-2019. He knew the 2 nd appellant earlier on 27-02-2019 and that he didn’t not know the appellants’ tribe and that he spoke with Mwangi in kikuyu language. He insisted that he was shown how to use the gadget for recording by EACC officers and it was played when he returned it. He stated that he was present when transcription was done on 22-03-2019. He also stated that he did not give the 1 st appellant any money neither did he give the 2 nd appellant any money. He also said that at no time did the 1 st appellant ask for Kshs 50,000.00. He admitted that he was trapping the appellants and added that he did not see the money he was given by one Zilpah being treated. He also said that the OCS was entertaining himself with his friends and that he did not take the money to the OCS because he was not dealing with him. He added that the 2 nd appellant was not present when the money was given. It is recorded that the complainant refused to answer whether he had falsely implicated the 2 nd appellant.
Zilpah Awour was the second witness. She was an investigator working with EACC. She recalled that on 7-03-2019, she was in the office when one Ronald Ochieng another investigator introduced to her two complainants, Francis and Peter and she proceeded to induct them on use of a gadget for purposes of obtaining evidence upon which they left. She identified the gadget as MFI1. The complainants returned the following day and Mr. Ochieng requested her to treat Kshs 40,000.00 in denominations of 1,000.00. She made a photocopy of the currency and Peter Muhia and her signed and then she made an inventory containing serial numbers of the currency notes. She also signed an envelope. She identified the inventory as MFI6. She added that she treated the notes with APQ chemical which is obtained from Government Chemist. The two complainants left for the operation. She did not know what happened thereafter. She produced MFI5 and MFI6 as exhibits 5 and 6 respectively.
When she was cross-examined, she stated that her role was to assist in preparation of the evidence and stated further that she did not have any qualifications in handling gadgets and the only training she got was in the office. She could not tell whether the complainants remained with the gadget until the next day but insisted that she gave the treated money to Peter. She also admitted that there was no evidence that Francis participated in the induction as he had not signed anywhere. The gadget did not have a manufacturer’s name and she did not know the manufacturer. She stated that on 7-03-2019, they did not proceed for operations.
Bith Wanyenje Juma Mursi testified as the third witness. He was an investigator with EACC and a gazetted photographs officer. She recalled that on 14-03-2019, she was on duty around Joska in Nairobi when Ronald Ochieng requested him to take photographs of eight heads of cattle which were within KBC police station compound. He took video clips and photographs which he later transferred to his computer in office and printed the photographs. He prepared a certificate under section 106B of the Evidence Act and prepared a report which he produced as exhibit 11. He also produced the photographs as exhibits 11a and 11b, the certificate as exhibit 11c and an inventory he had signed as exhibit 11d. the witness was not cross examined.
PW4 was one Elizabeth Warukira Karitu who told the court that he was at the time of the offence the Assistant Commissioner of Athi River Sub-County and the supervisor of Tirus Ndambuki Musyoka the 3 rd appellant. She stated that she was called by one of the village elders and informed that the 3 rd appellant had been arrested together with the 1 st appellant. She was called to record a statement with EACC and identified the 3 rd appellant in video clips she was shown. She prepared a certificate that she had identified him and produced the certificate dated 3-04-2019 as exhibit 12. In answering one question in cross-examination, she stated that she did not witness the offence.
John Ngeno was called as the fifth witness and told the court that she was an investigator with EACC and that on 8-03-2018 his senior Rodger Akaki informed him that he received a report from a member of the public that some police officers and an Assistant Chief had demanded Kshs 50,000.00 in order to release cows that were held at KBC police station. Akaki instructed him to provide a back-up to the arresting team upon which the organized a team comprised of Ronald Ochieng, Vincent Samba, Eric Mabeta, Kipyegon, Koskei, Philip Messa, Ali Abdi, Zilpah Awuor and driver Samuel Ekelasi and they proceeded to Joska area and sent the complainant and Francis Mwangi with Kshs 40,000.00.
The complainant met the Assistant Chief and a message was sent to Ronald Ochieng that the Assistant Chief had received the money. They immediately proceeded inside a hotel called Resort and Francis Mwangi pointed out Tirus Ndambuki to them and they arrested him. He recovered the amount which he still held in his hands and handed it to Ronald Ochieng.
When he was cross-examined, the witness stated that the money he recovered was treated with APQ and he could not recall the clothes the 3 rd appellant wore or whether he had a jacket. He added that he did not witness the 3 rd appellant receive the money and that he went in first with Ronald Ochieng and found the 3 rd appellant walking to the car park and arrested him within the building of the hotel. He added that he was the one who recovered the money from the front right pocket of the 3 rd appellant’s trouser with his bare hands in presence of the complainants who saw what happened.
In further cross-examination, the witness retracted his earlier testimony after being shown his statement he had recorded with the investigator which was produced as defence exhibit 3. He changed and said that the 3 rd appellant removed the money from his pocket and he (the witness) received it from his hands wearing gloves. He added that he was aware that the money was treated. The 3 rd appellant was swabbed thereafter. The witness denied putting the money in the pocket of the 3 rd appellant to trap him.
PW6 was Francis Mwangi Ndungu a businessman living in Kiambu. He told the court that on 25-02-2019, he was with Peter Muhia at Burma market when Peter told him that his two herdsmen had been arrested at Joska and his cows seized and detained at the police station. On request of Peter, he went to Kangundo law courts and found that the herdsmen had been charged with cultivating cannabis and granted cash bail of Kshs 100,000.00.
He raised the issue of the cows and was referred to KBC police station where he went and found the Deputy OCS a Mr. Maina who told him to follow up at Joska police post with the one Inspector Kyalo Munyao. At the station, the Inspector told him that the herdsmen had been arrested by the area Assistant Chief one Tirus Ndambuki who would explain the circumstances of the arrest and he instructed him to go back with the owner of the cows. Him and Muhia went back to Joska police post on 5-03-2019 where they found Inspector Munyao who called the Assistant Chief and they discussed how the animals could be released. This discussion went into money and Mr. Ndambuki asked for Kshs 50,000.00 while the owner said that he could pay Kshs 10,000.00 upon which Mr. Ndambuki threatened to have the cows donated to a children’s home.
On 6-03-2019, they went to EACC where Muhia recorded a statement after they met Mr. Ochieng. A lady showed them how to use a recording gadget and they left to return the following day on 7-03-2019 when Muhia was given the recording gadget. They went to Joska with EACC officers where they met Mr. Munyao. The EACC officers stayed out of reach monitoring what was going on and Mr. Munyao instructed them to go to Green Resort Hotel to wait for is Boss the OCS Mr. Bundi and the Assistant Chief. When they arrived, Mr. Munyao introduced them to the OCS and explained the issues. The OCS asked ‘wamekuja wamejipanga namna gani?’ and Muhia said he had Kshs 10,000.00 then the OCS said to him ‘hiyo ni mchezo uko nayo’. The OCS then said it was not clear whether the animals were stolen or not. Muhia then said he would need time to prepare himself. They made recording and gave the gadget to the EACC officers.
He added that they were asked to go the next day on 8-03-2019 which they did and he and Mr. Muhia were given a recording gadget. Mr. Muhia was given Kshs 40,000.00 and shown how to handle it upon which they proceed to Joska police post accompanied by eight EACC officers and on the way, he called Mr. Munyao and told him that they were prepared as agreed. Mr. Ndambuki then called him and said they should meet at the resort they had met earlier instead of the police post. After a short while Mr. Ndambuki and Mr. Bundi came but Mr. Bundi did not sit with them. They told Mr. Ndambuki that they had brought Kshs 40,000.00 and he accepted the money then left their table and went to the table where the OCS had sat upon which they signaled one of the officers who went and arrested Mr. Bundi and recovered his gun and mobile phone. They also recovered money form Mr. Ndambuki’s pocket. They went back to EACC on 12-03-2019 and the recordings they had made were played and they confirmed the contents. The witness identified the appellants in court.
Upon cross-examination, he said that he did not know that the complainant faced a case of stock theft and denied that his motor vehicle KCU 829F had transported stolen items. He confirmed that he was Muhia’s driver in 2018 and 2019 but he was not paid for it as they just used to work together. He stated that the 2 nd and 3 rd appellants never asked him for money and he never gave them any and he could not tell why they were charged. The money was handled by Mr. Muhia in an envelope. He stated that it was not PW5 who recovered the money but another officer known as Ochieng. The money was recovered at the parking area from the right pocket. He also denied that he was being used to cover up a case of stolen animals which scheme failed.
In further cross-examination by Mr. Ario for the 3 rd appellant, the witness denied that he was scared of Muhia and that he had not paid for maintenance of the animals. He added that he was given a gadget in the second time but he could not confirm that MFI1 is the gadget he was given. They were three at the table when the money was given to Ndambuki. He added that he sent a text to EACC officers that they were through and the officers drew near. He also confirmed that the OCS was seated in a different point in the hotel. He stated that the gadget only captured up to the point of handing over the money.
The seventh witness was one Alex Kinyanjui a digital business analyst with EACC based at the forensic laboratory. After giving his qualifications, he told the court that he received two exhibits from Ronald Ochieng through an exhibit memo dated 11-03-2019. The memo was forwarding two exhibits that were a samsung mobile IMEI No. 356204096738867 recovered from Francis Bundi Wilson and Huawei Mobile IMEI No. 869785029372352 recovered from Tirus Ndambuki Munyao. He also received a list of mobile phone numbers 0722440624 (for Kyalo Munyao Nthiwa), 0796389000 (for Peter Muhia Njenga), 072250659 (for Francis Mwangi Ndungu), 0722575147 (for Samuel Mukuusi), 0722315829 (for Samuel Mukuusi) and 0727942264 (for Elizabeth). He produced a report dated 11-03-2019 showing calls and short messages between the Samsung mobile and Huawei mobile phones for between 6-03-2019 and 8-03-20281 as exhibit 15 and the exhibit memo as exhibit 14.
In cross-examination, he stated that the Huawei phone did not communicate with Peter Muhia Njenga. He added he could not tell the nature of calls as they only got the call logs. There was no interpretation of the information in the messages. He could not tell the registration details of the sim cards as the investigations officer did not give him the ownership details. He did not read through the messages and from what he could see, there was no message relating to money. Among the calls to Francis Mwangi Ndungu, there were three missed calls at different times.
The next witness was James Wachira an investigator with EACC who told the court that on 22-03-2019, his colleague Ronald Ochieng requested him to prepare a transcript where one of the languages used was kikuyu language which he understood. He was given a compact disc with two conversations recorded on 7-03-2022 and 8-03-2022. He invited the complainant and played the conversation with him. He translated the kikuyu parts into swahili. The complainant also confirmed the transcription as a true reflection of the recorded conversation and signed a certificate to that effect. He also proceeded to prepare a certificate under Section 106B of the Evidence Act. He identified MFI8 which was a transcription of conversation between Tirus Ndambuki Musyoka, Kyalo Munyao, Muhia Njenga and Mwangi dated 23-03-2019. He also identified MFI9 which was which was the translated version of MFI8. He also identified and produced MFI10 which was a transcription of conversation between Muhia, Mwangi, Munyao, Ndambuki and Bundi.
In cross-examination, he told the court that he extracted the information from compact disc to his computer and he did not know the voices in the recording. The recording had an unidentified voice did not say anything that would have needed him to talk to them. He added that he had been asked to translate because the investigating office did not understand the language. He could not tell whether the content in the CD was tampered with as he was not given the original to compare with. He admitted that what was in the CD was secondary recording. He added that the only person who identified the voices was Mr. Muhia and Mwangi which was sufficient but they were not there to say who was the speaker in the conversation.
PW9 was Dennis Owino Onyango an analyst with the Government Chemist. He stated that he received a total of eight exhibits from EACC investigators and upon swabbing and analysisng the same, he prepared a report dated 3-05-2019. He produced the exhibit memo as exhibit 18 and his report as exhibit 20.
When he was cross-examined, he stated that the Government Chemist is the only custodian of APQ chemical in Kenya. He stated further that, his role was to test whether presence of APQ chemical was positive in the currency and the exhibits submitted to him. He stated that he tested all the notes and the envelope but he could not recall whether the envelope was sealed and that two samples which related to Francis Bundi had negative results meaning that he did not have contact with the chemical. He stated further that the exhibits were sealed but it was not proper sealing because it was not the recommended wax sealing. He admitted that it was true that the swabs and control sample could lead to contamination if not properly sealed.
Samuel Mukusi was called as PW10 who recalled that on 21-03-2019 at which time he was the Sub-County police commander of Athi River, he was called by Ronald Ochieng working with EACC with a request to go to their offices and when he arrived, he had a discussion with Mr. Ochieng who asked him to listen to an audio clip. He listened and he was able to identify the voice of his former OCS Mr. Bundi and Inspector Munyao who was then in charge of Joska police post. He was also able to identify the voice of Tirus Ndambuki, the Chief of Lukenya then he was requested to record a statement.
The witness was invited again on 25-07-2019 by the same officer where they discussed about animals that had been seized in connection with the matter and confirmed that he was aware of the eight animals and of the suspects who had been arrested for being in possession of cannabis and arraigned in court. He added that he had worked together with OCS Bundi and Inspector Munyao for eight months. He also knew Mr. Tirus Ndambuki as they had held meetings in relation to theft of livestock which was a problem in the area.
He told the court in cross-examination that he was stationed at KBC police station and that he had seen the animals but didn’t know what was the issue around them then. He stated that no complaint had come to his offices about the animals which had been there for about a week after the arrest of the appellants. He added that he did not see any money being given out. He also admitted that he could not authenticate the voices because someone can imitate a voice. He also stated that when he went to identify the voices, he was already aware of the issue and the case. He was however not able to identify the setting for the video clips which added to his doubt whether the voices were an imitation.
Eric Mabete Machusit who testified as PW11 told the court that he was an EACC investigator. He said that he was approached by Ronald Ochieng on 8-03-2019 to join a team that had assembled for an operation. He joined Vincent Sambe, Philip Meja, Kipyegon Kosgey, Ali Abdi, John Ngeno and Zilpah Jalang’o. Zilpah was assigned the role of treating the operation money while the rest were to accompany the complainants to the field for the assignment.
They left office at 12 noon and arrived at Joska at 3 pm. While at Joska, the complainants entered Green Resort Club accompanied by John Ng’iru and Vincent Sambe. Ronald Ochieng, Philip Mejja and Kosgey entered into an adjacent restaurant facing the entrance of Green Resort. Him and Abdi Ali remained outside the restaurant. He added that at 4.10 pm, he received an sms from Francis Mwangi informing him that one of the suspects had arrived. After some time, he received a call from Francis Mwangi that one of the suspects had received the money and he informed Mr. Ali and they proceeded to the restaurant where they met the two complainants at the entrance. Francis Mwangi showed him the suspect he had given money. They went and introduced themselves to them and told them that they were under arrest for requesting and receiving a bribe. They cooperated and Ronald Ochieng asked the one who had received the money to produce it and he did so from the right front pocket of his trousers.
The witness added that John Ng’iru wore clean gloves and received the money and a mobile from the suspect. He also searched the other suspect and recovered a ceska pistol loaded with 11 rounds of live ammunition and a mobile phone. He also wore gloves and together with Kipyegon Kosgey and the other officers verified the serial numbers of the recovered Kshs 40,000.00 in Kshs 1,0000 denominations and all matched.
The witness swabbed the hands of the suspects from whom the money was recovered in the name of Tirus Ndambuki and stored the swabs in an envelope he labeled A and B. Ronald also did a swab of the hands of the other suspects. At the office, they prepared an inventory of what was recovered. The suspects were then booked at EACC police station and he informed Mr. Ochieng to call the 3 rd suspect known as Kyalo Munyao based in Joska police station who had been adversely mentioned by the suspects they had arrested.
He was placed on cross-examination where he told the court that he did not exchange contacts with the complainants when he met them but he got the contact of Francis Mwangi at the scene. He added that the 2 nd appellant did not come to the scene and he had no personal knowledge of a request for money by the suspects oth
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Count 1- Receiving a bribe contrary to Section 6 (1) (a) as read with Section 18(1) of the Bribery Act no. 47 of 2016 whose particulars were that on 5 th day of March 2019, Tirus Ndambuki Musyoka and Kyalo Munyao Nthiwa at Joska Police Post within Machakos County, being persons employed by a public body to wit, Ministry of Interior and Coordination of National Government as Lukenya Location Chief and Inspector of Police Joska Police Post jointly requested for a bribe of Kshs. 50,000/= from Peter Muhia Njenga with intent that, in consequence, they would release his 8 head of cattle detained at KBC police station.
Count 2- Receiving a bribe contrary to Section 6 (1) (a) as read with Section 18(1) of the Bribery Act no. 47 of 2016 the particulars thereof being that on 7 th March 2019 at Joska shopping centre within Machakos County, Tirus Ndambuki Musyoka, Francis Bundi Wilson and Kyalo Munyao Nthiwa being persons employed by a public body to wit, Ministry of Interior and Coordination of National Government as Chief Lukenya Location, Officer Commanding KBC Police Station and Inspector of Police Joska Police Post respectively, jointly requested for a bribe of Kshs. 50,000/= from Peter Muhia Njenga with intent that, in consequence, they would release his 8 head of cattle held at KBC Police Station.
Count 3- Receiving a bribe contrary to Section 6 (1) (a) as read with Section 18 (1) of the Bribery Act no. 47 of 2016 whose particulars were that on 8 th day of March 2019 at Joska shopping centre within Machakos County, Tirus Ndambuki Musyoka, being a person employed by a public body to wit, Ministry of Interior and Coordination of National Government as Chief Lukenya Location received a bribe of Kshs 40,000/= from Peter Muhia Njenga with intent that, in consequence, he would release his 8 head of cattle held at KBC Police Station.
Count 4- Abuse of office contrary to Section 46 as read with Section 48 (1) of the Anti-Corruption and Economic Crimes Act no. 3 of 2003. The particulars in this count were that on 8 th day of March 2019 at Joska shopping centre within Machakos County, Tirus Ndambuki Musyoka, being a person employed by a public body to wit, Ministry of Interior and Coordination of National Government as Chief Lukenya Location, used his office to improperly confer a bribe of Kshs. 40,000/= upon himself, which comprised of money obtained and received from Peter Muhia Njenga so as to release his 8 head of cattle held at KBC Police Station.
The appellants pleaded not guilty and the prosecution called a total of twelve witnesses in its efforts to prove the four counts. The trial court convicted all the appellants and sentenced them as follows;
The 2 nd and 3 rd appellants, Kshs 50,000.00 each in default to serve one year in jail on count 1.
All the appellants, Kshs 50,000.00 each in default to serve one year in jail on count 2.
The 3 rd appellant Kshs 50,000.00 in default to serve one year in jail on count 3.
The 3 rd appellant Kshs 50,000.00 in default to serve one year in jail on count 4.
The appellants were aggrieved by the conviction and sentence and preferred appeals herein. The 1 st and 2 nd appellant filed appeal number E006 of 2024 while the 3 rd appellant filed a separate appeal vide criminal appeal number E018 in the criminal division of the High Court. On 21-01-2025, Honourable Justice K. Kimondo transferred appeal number E018 of 2024 to this court upon which it was registered as appeal number E001 of 2025. When the parties appeared before me on 8-04-2025, I ordered that the two appeals be consolidated for purpose of hearing with the arrangements of the appellants as it appears in the title to this judgment and with proceedings being taken in file number E006 of 2024.
The Act mentioned in the charge sheet as Bribery Act does not actually exist. What we have is Anti-Bribery Act. But that does not go into the root of the case and I take it as a small issue of misdescrption of the Act. I have looked at the two petitions of appeal and gather therefrom that the issues for determination are whether there was enough evidence to warrant conviction of the appellants and whether the sentences were harsh, excessive or severe. The grounds of appeal border on allegations that the prosecution’s case was unreliable, uncorroborated and contradictory.
This being a first appeal, this court is obligated to re-evaluate the evidence produced before the trial court and come to its own independent conclusion but having in mind the fact that I did not take the evidence of the witnesses and did not have the advantage of observing their demeanour. The Court of Appeal in Joseph Kipkemoi Ngetich v Republic (2018) KECA 120 (KLR) cited with approval the holding in Okeno v R (1972) EA 32 thus;
‘In the case of Okeno v. R [1972] EA 32, at page 36, the predecessor to this Court stated:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R [1957] E A 336) and to the appellate courts own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions - Shantilal M. Ruwala v. R [1957] EA 570. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower courts’ findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses - See Peters v. Sunday Post [1958] EA 424”.
As stated above, the prosecution called 12 witnesses. PW1 was the complainant. He told the court that on 25-02-2019, one Teresiah Nduku in whose custody he had kept his cows for fattening telephoned and informed him that two of his workers had been arrested by the area Chief. He sent his friend Francis Mwangi to Joska police station where he found a Police Inspector known as Munyao who referred him to KBC police station. This was on 5-03-2019.
Francis was told to go with the owner of the cows and the complainant went later to Joska police station and found Inspector Munyao who called the area Chief known as Ndambuki and when the Chief came, he told him that the cows could not be easily released to him because the case was known by his bosses including the OCS KBC police station. He told them to bring Kshs 50,000.00 for the animals to be released and threatened that they would be donated to a children’s home. They went to EACC and met one Ronald Ochieng and reported. They were given a mobile like audio visual recording device which he signed for. He identified the device in court.
On 7-03-2019, they left EACC for Joska accompanied by Ronald Ochieng and another EACC officer known as Ngeno and on the way, Francis telephoned Inspector Munyao who confirmed that he was waiting for them. On arrival, Munyao telephoned the Chief who came. He also called OCS KBC police station who said he was at a garage. They went to Green Resort Club where the witness told them he had only found 10,000.00. The OCS told them that they were jokers and they got angry. He told them that he would go and look for the balance and went back to EACC where the recording was played.
The next day, they returned to EACC where they were given an envelope with Kshs 40,000.00. He confirmed the amount and he was warned not to touch the money. He identified the envelope in court and the Kshs 40,000.00. He stated that the money in court was punctured but what he was given was not punctured. He was given a photocopy of the money which he and one Ali Abdi signed. They then went to Joska with eight EACC officers. Francis and him were in different vehicles. They went and met Inspector Munyao at the same hotel they were before where the Chief joined them.
They sat at an excluded spot with the Chief and the OCS while the EACC sat at different points. He told the OCS and the Chief the much he had and gave the money to the Chief. The Chief took the money, counted and pocketed it and was arrested at that point. Francis pointed out the pocket where the Chief had put the money and it was retrieved and counted and recorded the serial numbers. The OCS was also searched and a wallet recovered. They then returned to EACC where statements were recorded and he was called back on 14-03-2019 and signed some documents and an inventory and listened to the conversation which he confirmed. He identified the inventory and transcript of the recording which was in kikuyu and swahili languages.
The video recording was then played in court. The court observed that the clip was inaudible as the volume was very low even when turned to the maximum and adjourned for twenty minutes. When the court resumed, the clip had some points of low audibility which required a level of straining to hear. The prosecution then introduced a second transcript and the second audio clip. The second one was good in clarity and audibility. The witness confirmed that what was played was what he recorded. He stated further that the second transcript which was identified as MFI10 was the conversation between OCS Bundi, Chief Ndambuki and Inspector Munyao. He identified Chief Ndambuki as the 3 rd appellant, OCS Bundi as the 1 st appellant and Inspector Munyao as the 2 nd appellant.
In cross-examination, PW1 said that his neighbour Teresiah informed him that his workers had been arrested for cultivating bhang. He had kept the cows for one year while Teresiah kept goats. He confirmed that he had a case in Machakos related to livestock theft. He added that Inspector Munyao and the Chief asked for documents to confirm ownership of the cows but he did not have any and that he did not know the appellants before the incident. He stated that it was the Chief who told him to give money. He also stated that the wazee referred to in the transcript meant the Chief and Inspector Munyao. He also stated that nobody had asked for 10,000/= and that he was given 40,0000/= on a brown envelop. He stated that he was not asked for a bribe on 5-03-2019. He gave 40,000/= on 8-03-2018 and that he did not give money on 6-03-2019 and 7-03-2019.
He said that he met the 1 st appellant on 6-03-2019. He knew the 2 nd appellant earlier on 27-02-2019 and that he didn’t not know the appellants’ tribe and that he spoke with Mwangi in kikuyu language. He insisted that he was shown how to use the gadget for recording by EACC officers and it was played when he returned it. He stated that he was present when transcription was done on 22-03-2019. He also stated that he did not give the 1 st appellant any money neither did he give the 2 nd appellant any money. He also said that at no time did the 1 st appellant ask for Kshs 50,000.00. He admitted that he was trapping the appellants and added that he did not see the money he was given by one Zilpah being treated. He also said that the OCS was entertaining himself with his friends and that he did not take the money to the OCS because he was not dealing with him. He added that the 2 nd appellant was not present when the money was given. It is recorded that the complainant refused to answer whether he had falsely implicated the 2 nd appellant.
Zilpah Awour was the second witness. She was an investigator working with EACC. She recalled that on 7-03-2019, she was in the office when one Ronald Ochieng another investigator introduced to her two complainants, Francis and Peter and she proceeded to induct them on use of a gadget for purposes of obtaining evidence upon which they left. She identified the gadget as MFI1. The complainants returned the following day and Mr. Ochieng requested her to treat Kshs 40,000.00 in denominations of 1,000.00. She made a photocopy of the currency and Peter Muhia and her signed and then she made an inventory containing serial numbers of the currency notes. She also signed an envelope. She identified the inventory as MFI6. She added that she treated the notes with APQ chemical which is obtained from Government Chemist. The two complainants left for the operation. She did not know what happened thereafter. She produced MFI5 and MFI6 as exhibits 5 and 6 respectively.
When she was cross-examined, she stated that her role was to assist in preparation of the evidence and stated further that she did not have any qualifications in handling gadgets and the only training she got was in the office. She could not tell whether the complainants remained with the gadget until the next day but insisted that she gave the treated money to Peter. She also admitted that there was no evidence that Francis participated in the induction as he had not signed anywhere. The gadget did not have a manufacturer’s name and she did not know the manufacturer. She stated that on 7-03-2019, they did not proceed for operations.
Bith Wanyenje Juma Mursi testified as the third witness. He was an investigator with EACC and a gazetted photographs officer. She recalled that on 14-03-2019, she was on duty around Joska in Nairobi when Ronald Ochieng requested him to take photographs of eight heads of cattle which were within KBC police station compound. He took video clips and photographs which he later transferred to his computer in office and printed the photographs. He prepared a certificate under section 106B of the Evidence Act and prepared a report which he produced as exhibit 11. He also produced the photographs as exhibits 11a and 11b, the certificate as exhibit 11c and an inventory he had signed as exhibit 11d. the witness was not cross examined.
PW4 was one Elizabeth Warukira Karitu who told the court that he was at the time of the offence the Assistant Commissioner of Athi River Sub-County and the supervisor of Tirus Ndambuki Musyoka the 3 rd appellant. She stated that she was called by one of the village elders and informed that the 3 rd appellant had been arrested together with the 1 st appellant. She was called to record a statement with EACC and identified the 3 rd appellant in video clips she was shown. She prepared a certificate that she had identified him and produced the certificate dated 3-04-2019 as exhibit 12. In answering one question in cross-examination, she stated that she did not witness the offence.
John Ngeno was called as the fifth witness and told the court that she was an investigator with EACC and that on 8-03-2018 his senior Rodger Akaki informed him that he received a report from a member of the public that some police officers and an Assistant Chief had demanded Kshs 50,000.00 in order to release cows that were held at KBC police station. Akaki instructed him to provide a back-up to the arresting team upon which the organized a team comprised of Ronald Ochieng, Vincent Samba, Eric Mabeta, Kipyegon, Koskei, Philip Messa, Ali Abdi, Zilpah Awuor and driver Samuel Ekelasi and they proceeded to Joska area and sent the complainant and Francis Mwangi with Kshs 40,000.00.
The complainant met the Assistant Chief and a message was sent to Ronald Ochieng that the Assistant Chief had received the money. They immediately proceeded inside a hotel called Resort and Francis Mwangi pointed out Tirus Ndambuki to them and they arrested him. He recovered the amount which he still held in his hands and handed it to Ronald Ochieng.
When he was cross-examined, the witness stated that the money he recovered was treated with APQ and he could not recall the clothes the 3 rd appellant wore or whether he had a jacket. He added that he did not witness the 3 rd appellant receive the money and that he went in first with Ronald Ochieng and found the 3 rd appellant walking to the car park and arrested him within the building of the hotel. He added that he was the one who recovered the money from the front right pocket of the 3 rd appellant’s trouser with his bare hands in presence of the complainants who saw what happened.
In further cross-examination, the witness retracted his earlier testimony after being shown his statement he had recorded with the investigator which was produced as defence exhibit 3. He changed and said that the 3 rd appellant removed the money from his pocket and he (the witness) received it from his hands wearing gloves. He added that he was aware that the money was treated. The 3 rd appellant was swabbed thereafter. The witness denied putting the money in the pocket of the 3 rd appellant to trap him.
PW6 was Francis Mwangi Ndungu a businessman living in Kiambu. He told the court that on 25-02-2019, he was with Peter Muhia at Burma market when Peter told him that his two herdsmen had been arrested at Joska and his cows seized and detained at the police station. On request of Peter, he went to Kangundo law courts and found that the herdsmen had been charged with cultivating cannabis and granted cash bail of Kshs 100,000.00.
He raised the issue of the cows and was referred to KBC police station where he went and found the Deputy OCS a Mr. Maina who told him to follow up at Joska police post with the one Inspector Kyalo Munyao. At the station, the Inspector told him that the herdsmen had been arrested by the area Assistant Chief one Tirus Ndambuki who would explain the circumstances of the arrest and he instructed him to go back with the owner of the cows. Him and Muhia went back to Joska police post on 5-03-2019 where they found Inspector Munyao who called the Assistant Chief and they discussed how the animals could be released. This discussion went into money and Mr. Ndambuki asked for Kshs 50,000.00 while the owner said that he could pay Kshs 10,000.00 upon which Mr. Ndambuki threatened to have the cows donated to a children’s home.
On 6-03-2019, they went to EACC where Muhia recorded a statement after they met Mr. Ochieng. A lady showed them how to use a recording gadget and they left to return the following day on 7-03-2019 when Muhia was given the recording gadget. They went to Joska with EACC officers where they met Mr. Munyao. The EACC officers stayed out of reach monitoring what was going on and Mr. Munyao instructed them to go to Green Resort Hotel to wait for is Boss the OCS Mr. Bundi and the Assistant Chief. When they arrived, Mr. Munyao introduced them to the OCS and explained the issues. The OCS asked ‘wamekuja wamejipanga namna gani?’ and Muhia said he had Kshs 10,000.00 then the OCS said to him ‘hiyo ni mchezo uko nayo’. The OCS then said it was not clear whether the animals were stolen or not. Muhia then said he would need time to prepare himself. They made recording and gave the gadget to the EACC officers.
He added that they were asked to go the next day on 8-03-2019 which they did and he and Mr. Muhia were given a recording gadget. Mr. Muhia was given Kshs 40,000.00 and shown how to handle it upon which they proceed to Joska police post accompanied by eight EACC officers and on the way, he called Mr. Munyao and told him that they were prepared as agreed. Mr. Ndambuki then called him and said they should meet at the resort they had met earlier instead of the police post. After a short while Mr. Ndambuki and Mr. Bundi came but Mr. Bundi did not sit with them. They told Mr. Ndambuki that they had brought Kshs 40,000.00 and he accepted the money then left their table and went to the table where the OCS had sat upon which they signaled one of the officers who went and arrested Mr. Bundi and recovered his gun and mobile phone. They also recovered money form Mr. Ndambuki’s pocket. They went back to EACC on 12-03-2019 and the recordings they had made were played and they confirmed the contents. The witness identified the appellants in court.
Upon cross-examination, he said that he did not know that the complainant faced a case of stock theft and denied that his motor vehicle KCU 829F had transported stolen items. He confirmed that he was Muhia’s driver in 2018 and 2019 but he was not paid for it as they just used to work together. He stated that the 2 nd and 3 rd appellants never asked him for money and he never gave them any and he could not tell why they were charged. The money was handled by Mr. Muhia in an envelope. He stated that it was not PW5 who recovered the money but another officer known as Ochieng. The money was recovered at the parking area from the right pocket. He also denied that he was being used to cover up a case of stolen animals which scheme failed.
In further cross-examination by Mr. Ario for the 3 rd appellant, the witness denied that he was scared of Muhia and that he had not paid for maintenance of the animals. He added that he was given a gadget in the second time but he could not confirm that MFI1 is the gadget he was given. They were three at the table when the money was given to Ndambuki. He added that he sent a text to EACC officers that they were through and the officers drew near. He also confirmed that the OCS was seated in a different point in the hotel. He stated that the gadget only captured up to the point of handing over the money.
The seventh witness was one Alex Kinyanjui a digital business analyst with EACC based at the forensic laboratory. After giving his qualifications, he told the court that he received two exhibits from Ronald Ochieng through an exhibit memo dated 11-03-2019. The memo was forwarding two exhibits that were a samsung mobile IMEI No. 356204096738867 recovered from Francis Bundi Wilson and Huawei Mobile IMEI No. 869785029372352 recovered from Tirus Ndambuki Munyao. He also received a list of mobile phone numbers 0722440624 (for Kyalo Munyao Nthiwa), 0796389000 (for Peter Muhia Njenga), 072250659 (for Francis Mwangi Ndungu), 0722575147 (for Samuel Mukuusi), 0722315829 (for Samuel Mukuusi) and 0727942264 (for Elizabeth). He produced a report dated 11-03-2019 showing calls and short messages between the Samsung mobile and Huawei mobile phones for between 6-03-2019 and 8-03-20281 as exhibit 15 and the exhibit memo as exhibit 14.
In cross-examination, he stated that the Huawei phone did not communicate with Peter Muhia Njenga. He added he could not tell the nature of calls as they only got the call logs. There was no interpretation of the information in the messages. He could not tell the registration details of the sim cards as the investigations officer did not give him the ownership details. He did not read through the messages and from what he could see, there was no message relating to money. Among the calls to Francis Mwangi Ndungu, there were three missed calls at different times.
The next witness was James Wachira an investigator with EACC who told the court that on 22-03-2019, his colleague Ronald Ochieng requested him to prepare a transcript where one of the languages used was kikuyu language which he understood. He was given a compact disc with two conversations recorded on 7-03-2022 and 8-03-2022. He invited the complainant and played the conversation with him. He translated the kikuyu parts into swahili. The complainant also confirmed the transcription as a true reflection of the recorded conversation and signed a certificate to that effect. He also proceeded to prepare a certificate under Section 106B of the Evidence Act. He identified MFI8 which was a transcription of conversation between Tirus Ndambuki Musyoka, Kyalo Munyao, Muhia Njenga and Mwangi dated 23-03-2019. He also identified MFI9 which was which was the translated version of MFI8. He also identified and produced MFI10 which was a transcription of conversation between Muhia, Mwangi, Munyao, Ndambuki and Bundi.
In cross-examination, he told the court that he extracted the information from compact disc to his computer and he did not know the voices in the recording. The recording had an unidentified voice did not say anything that would have needed him to talk to them. He added that he had been asked to translate because the investigating office did not understand the language. He could not tell whether the content in the CD was tampered with as he was not given the original to compare with. He admitted that what was in the CD was secondary recording. He added that the only person who identified the voices was Mr. Muhia and Mwangi which was sufficient but they were not there to say who was the speaker in the conversation.
PW9 was Dennis Owino Onyango an analyst with the Government Chemist. He stated that he received a total of eight exhibits from EACC investigators and upon swabbing and analysisng the same, he prepared a report dated 3-05-2019. He produced the exhibit memo as exhibit 18 and his report as exhibit 20.
When he was cross-examined, he stated that the Government Chemist is the only custodian of APQ chemical in Kenya. He stated further that, his role was to test whether presence of APQ chemical was positive in the currency and the exhibits submitted to him. He stated that he tested all the notes and the envelope but he could not recall whether the envelope was sealed and that two samples which related to Francis Bundi had negative results meaning that he did not have contact with the chemical. He stated further that the exhibits were sealed but it was not proper sealing because it was not the recommended wax sealing. He admitted that it was true that the swabs and control sample could lead to contamination if not properly sealed.
Samuel Mukusi was called as PW10 who recalled that on 21-03-2019 at which time he was the Sub-County police commander of Athi River, he was called by Ronald Ochieng working with EACC with a request to go to their offices and when he arrived, he had a discussion with Mr. Ochieng who asked him to listen to an audio clip. He listened and he was able to identify the voice of his former OCS Mr. Bundi and Inspector Munyao who was then in charge of Joska police post. He was also able to identify the voice of Tirus Ndambuki, the Chief of Lukenya then he was requested to record a statement.
The witness was invited again on 25-07-2019 by the same officer where they discussed about animals that had been seized in connection with the matter and confirmed that he was aware of the eight animals and of the suspects who had been arrested for being in possession of cannabis and arraigned in court. He added that he had worked together with OCS Bundi and Inspector Munyao for eight months. He also knew Mr. Tirus Ndambuki as they had held meetings in relation to theft of livestock which was a problem in the area.
He told the court in cross-examination that he was stationed at KBC police station and that he had seen the animals but didn’t know what was the issue around them then. He stated that no complaint had come to his offices about the animals which had been there for about a week after the arrest of the appellants. He added that he did not see any money being given out. He also admitted that he could not authenticate the voices because someone can imitate a voice. He also stated that when he went to identify the voices, he was already aware of the issue and the case. He was however not able to identify the setting for the video clips which added to his doubt whether the voices were an imitation.
Eric Mabete Machusit who testified as PW11 told the court that he was an EACC investigator. He said that he was approached by Ronald Ochieng on 8-03-2019 to join a team that had assembled for an operation. He joined Vincent Sambe, Philip Meja, Kipyegon Kosgey, Ali Abdi, John Ngeno and Zilpah Jalang’o. Zilpah was assigned the role of treating the operation money while the rest were to accompany the complainants to the field for the assignment.
They left office at 12 noon and arrived at Joska at 3 pm. While at Joska, the complainants entered Green Resort Club accompanied by John Ng’iru and Vincent Sambe. Ronald Ochieng, Philip Mejja and Kosgey entered into an adjacent restaurant facing the entrance of Green Resort. Him and Abdi Ali remained outside the restaurant. He added that at 4.10 pm, he received an sms from Francis Mwangi informing him that one of the suspects had arrived. After some time, he received a call from Francis Mwangi that one of the suspects had received the money and he informed Mr. Ali and they proceeded to the restaurant where they met the two complainants at the entrance. Francis Mwangi showed him the suspect he had given money. They went and introduced themselves to them and told them that they were under arrest for requesting and receiving a bribe. They cooperated and Ronald Ochieng asked the one who had received the money to produce it and he did so from the right front pocket of his trousers.
The witness added that John Ng’iru wore clean gloves and received the money and a mobile from the suspect. He also searched the other suspect and recovered a ceska pistol loaded with 11 rounds of live ammunition and a mobile phone. He also wore gloves and together with Kipyegon Kosgey and the other officers verified the serial numbers of the recovered Kshs 40,000.00 in Kshs 1,0000 denominations and all matched.
The witness swabbed the hands of the suspects from whom the money was recovered in the name of Tirus Ndambuki and stored the swabs in an envelope he labeled A and B. Ronald also did a swab of the hands of the other suspects. At the office, they prepared an inventory of what was recovered. The suspects were then booked at EACC police station and he informed Mr. Ochieng to call the 3 rd suspect known as Kyalo Munyao based in Joska police station who had been adversely mentioned by the suspects they had arrested.
He was placed on cross-examination where he told the court that he did not exchange contacts with the complainants when he met them but he got the contact of Francis Mwangi at the scene. He added that the 2 nd appellant did not come to the scene and he had no personal knowledge of a request for money by the suspects oth
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