Director of Public Prosecutions v Kimunya & 3 others [2022] KEHC 13498 (KLR) | Abuse Of Office | Esheria

Director of Public Prosecutions v Kimunya & 3 others [2022] KEHC 13498 (KLR)

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Director of Public Prosecutions v Kimunya & 3 others (Anti-Corruption and Economic Crimes Appeal 6 of 2020) [2022] KEHC 13498 (KLR) (Anti-Corruption and Economic Crimes) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13498 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Appeal 6 of 2020

EN Maina, J

October 6, 2022

Between

Director of Public Prosecutions

Appellant

and

Amos Kimunya

1st Respondent

Lilian Wangiri Njenga

2nd Respondent

Jonghae Wainaina

3rd Respondent

Midlands Limited

4th Respondent

(Being an Appeal under Section 348(A) of the Criminal Procedure Code CAP 75 Laws of Kenya against the Ruling of Hon. Felix Kombo (SPM) in the Chief Magistrates Court at Nairobi in ACC No. 4 of 2014 delivered on 20th May, 2020)

Judgment

Background 1. The 1st, 2nd, 3rd and 4th Respondents were charged with 8 Counts of various corruption-related offences under the provisions of the Anti-Corruption and Economic Crimes Act No 3 of 2003 and the Penal Code, Cap 63 of the Laws of Kenya in Chief Magistrates Anti-Corruption Court Milimani Case No 4 of 2014 Republic v Amos Kimunya and 3 others. The offences are alleged to have arisen from the allocation and transfer of the parcel number Nyandarua/Njabini/5852 measuring 25 acres from Settlement Fund Trust to Midlands Limited, the 4th Respondent herein. The parcel of land is located at the Njabini Settlement Scheme.

2. Upon hearing the matter, the trial court acquitted the Respondents on all 8 Counts under Section 210 of the Criminal Procedure Code, vide a Ruling delivered on May 20, 2020. The Director of Public Prosecutions (“the Appellant”) being aggrieved by the trial court’s ruling filed the present appeal. The Appeal is premised on 19 grounds stated in its Petition of Appeal dated June 5, 2020 as follows:“1That the Learned Trial Magistrate erred in law and fact in finding that the Settlement Trust Fund hereinafter referred to as Settlement Trust was the complainant and not the Ministry of Agriculture.2. That the Learned Trial Magistrate erred in law and fact in finding that the Settlement Fund Trust was the legal owner of plot No 530. 3.The Learned Trial Magistrate erred in law and fact in finding that the prosecution case had not made out a prima facie case against the accused persons.4. That the Learned trial Magistrate erred in law and fact by failing to thoroughly scrutinize and appraise himself of the evidence adduced thereby arriving at the wrong conclusions.5. That the Learned Trial Magistrate erred in law and fact in finding that Count No 2 was defective.6. That the Learned Trial Magistrate erred in law and in fact in finding that the failure to call Kombo Mero was fatal to the prosecution case and thereby drawing an adverse inference.7. That the Learned Trial Magistrate erred in law and fact finding that PW13 was of dubious utility without basis.8. That the Learned Trial Magistrate erred in law and fact in finding that PW6, PW14, PW15 and PW16 were of dubious utility without basis.9. That the Learned Trial Magistrate erred in law and fact in failing to take into account the provision of section 111 of the Evidence Act.10. That the Learned Trial Magistrate erred in law and fact by failing to exhaustively scrutinize the evidence adduced thereby arriving at the wrong findings.11. That the Learned Trial Magistrate erred in law and fact in finding that neither Njabini Fund Trust Settlement nor its principal the Ministry of Agriculture could obtain right through PW5 pros exhibit 1. 12. That the Learned Trial Magistrate erred in law and fact in finding that the investigating did not undertake an exhaustive investigation.13. That the Learned Trial Magistrate erred in law and fact in shifting the burden of proof with regarding to the meetings of the Settlement Fund Trust in contrast to the provisions of section 111 of the Evidence Act.14. That the Learned Trial Magistrate erred in law in failing to find that the prosecution had adduced sufficient evidence to establish a prima facie case.15. That the Learned Trial Magistrate erred in law and fact in finding that the accused 3 and 4 did not acquire the plot 530 fraudulently.16. That the Learned Trial Magistrate erred in law and fact in finding the process of transferring plot No 530 to Midlands Limited was proper.17. That the Learned Trial Magistrate erred in law and fact by acquitting the accused persons on the respective counts that they were charged with.18. That the Learned Trial Magistrate failed to take into account the totality of the prosecution evidence adduced and erroneously acquitted the accused persons under section 210 of the Criminal Procedure Code.19. That the Learned Trial Magistrate erred in law in acquitting the accused persons under section 210 of the Criminal Procedure Code.”

3. The Appellant seeks orders that this court reverses the -findings of the learned trial magistrate, finds that the prosecution had established a prima facie case against the accused persons and directs that all the accused persons be put on their defense under Section 211 of the Criminal Procedure Code.

4. The Appeal is opposed by the 1st, 2nd and 3rd Respondents who have filed their respective written submissions May 23, 2022, June 22, 2022 and May 24, 2022 respectively. The 4th Respondent did not file any documents in respect of this Appeal.

The Charges 5. The Respondents were charged as follows:Count I Abuse of office contrary to section 46 as read with Section 48 of the Anti-Corruption and Economic Crimes Act, 2003Amos Kimunya on or about June 30, 2005 at Ardhi house within Nairobi County being persons employed as in the Public Service, to wit, the Ministry of Lands and Housing as the Minister used your offices to improperly confer a benefit on Midlands Limited by causing to be allocated the said company a public land identified as Nyandarua/Njabini/5852 while knowing that the said land was not available for alienation.Count II Failure to disclose a private interest to one’s principal contrary to Section 42(1)(a) as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act, 2003Hon. Amos Kimunya on or about June 30, 2005 at Ardhi house within Nairobi County being Minister in charge of Ministry of Lands and Housing and whilst knowing that the Government was not aware of your private interest in Midlands Limited, failed to disclose that you were a Director and allowed the allocation of public land identified as Nyandarua/Njabini/5852 to the said company.Count III Fraudulent disposal of public property contrary to Section 45(1) (B) as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act No 3 of 2003Hon. Amos Kimunya on or about June 30, 2005 at Ardhi house within Nairobi County being persons employed as in the Public Service, to wit, the Ministry of Lands and Housing as the Minister used your offices to improperly confer a benefit on Midlands Limited by causing to be allocated the said company a public land identified as Nyandarua/Njabini/5852 while knowing that the said land was not available for alienation.Count IV Breach of trust by a person employed in the public service contrary Section 127 of the Penal CodeHon. Amos Kimunya on or about June 30, 2004 at Ardhi house within Nairobi County being a person employed as in the Public Service, to wit, the Ministry of Lands and Housing as the Minister and being concerned with the administration of public land, committed a breach of trust by causing to be disposed off a public property to wit land parcel No Nyandarua/Njabini/5852 to Midlands Limited, an act which was prejudicial to the public.Count V Breach of trust by a person employed in the public service contrary Section 127 of the Penal CodeLilian Wangiri Njenga on or about June 30, 2005 at Ardhi house within Nairobi County being a person employed in the Public Service, to wit, the Ministry of Lands and Housing as the Director of Land Adjudication and Settlement and being concerned with the administration of public land, committed a breach of trust by causing to be disposed off a public property to wit land parcel No Nyandarua/Njabini/5852 by issuing a Letter of Offer to Midlands Limited, an act which was prejudicial to the public.Count VI Abuse of office contrary to section 46 as read with Section 48 of the Anti-Corruption and Economic Crimes Act, 2003Lilian Wangiri Njenga on or about June 30, 2005 at Ardhi house within Nairobi County being a person employed in the Public Service, to wit, the Director of Land Adjudication and Settlement used your offices to improperly confer a benefit on Midlands Limited by allocating the said company a public land identified as Nyandarua/Njabini/5852 while knowing that the said land was not available for alienation.COUNT VII Fraudulent disposal of public property contrary to Section 45(1) (B) as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act No 3 of 2003Lilian Wangiri Njenga on or about June 30, 2005 at Ardhi house within Nairobi County being a person employed in the Public Service, to wit, the Director of Land Adjudication and Settlement fraudulently disposed of a public property to wit land parcel No Nyandarua/Njabini/5852 by issuing a letter of offer to Midlands Limited while knowing that the said land was not available for alienation.COUNT VIII Fraudulent acquisition of public property contrary to Section 45(1) (A) as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act No 3 of 2003Junghae Wainaina and Midlands Limited on or about February 06, 2006 at Ardhi House within Nairobi County, fraudulently acquired of a public property to wit land parcel number Nyandarua/Njabini/5852 registered in the name of Settlement Fund Trustee while aware it was not available for alienation

Submissions by the Appellant 6. The Appellant begins by re-stating the testimonies of the 17 prosecution witnesses as presented during trial. The Appellant submits that from the evidence, it is not in doubt that the land subject of the appeal was registered in the name of the Settlement Trust Fund and not the Farmers Training Centre and that the land had been occupied by Njabini Farmers Training Center. That the land was occupied by a government institution, the said Njabini FTC (“the Njabini FTC”) and in the circumstances, it was public land held in trust by the Settlement Trust Fund its behalf. That the Respondents were aware of this fact and indeed the 4th Respondent entered into an Agreement with the Njabini FTC in the pretext of training farmers.

7. The Appellant submits that the contract was a scheme to excise part of the Njabini FTC land and not to assist farmers, that at the end of the contract, the 4th Respondent did not yield back the land to the FTC. That the FTC initially owned Plot No 530/ Njabini Settlement Scheme measuring 75 acres, which land was subdivided into two parcels numbers 5851 and 5852 measuring approximately 50. 4 acres and 25 acres respectively. The measurement for the two plots has been interchangeably referred to in the submissions as 20. 38 hectares and 10. 12 hectares respectively. That the 4th Respondent was allocated the fertile portion of the land which they have since developed by putting up structures.

8. The Appellant contends that PW8, a trustee of the Settlement Trust testified that there were no discussions on the allocation of the land to the 4th Respondent. That the Respondents were well aware of the contract between the FTC and the 4th Respondent for the implementation of the project for potato seed production for a period of two years. That in fact, there was no letter of termination of this contract.

9. The Appellant contends that in June 2005, the material time of the allocation and transfer of the land, the 1st Respondent was a Director and Shareholder in the Respondent company as well as a Trustee of the Settlement Trust Fund and the Minister of Lands, hence the need for disclosure of his interest in the 4th Respondent company. There was a conflict of interest on the part of the 1st Respondent but he failed to disclose the same during the allotment and transfer of land.

10. The Applicant contends further that the 4th Respondent was not incorporated with the object of resettlement of landless people; that the land was later subdivided and utilized to acquire a loan of Kshs 85,000,000 contrary to the Agriculture Act and the Settlement Fund Trust. That the land was held in trust as it was occupied by the Farmers Training Center Njabini and was not available for transfer. They submit that the Ministry of Agriculture denied the request for transfer of the land to the 4th Respondent and for that reason, the subsequent request was made to the Ministry of Lands as the 1st Respondent was the Mister of Lands at the material time and readily assisted with the acquisition.

11. The 1st and 2nd Respondents, being public officers acted in breach of trust, abuse of office and fraudulently disposed of public land thereby disenfranchising 26000 farmers. They urged the court not to draw an adverse inference against the prosecution for failing to call Kombo Mweru as a witness as he had no role in the illegal transfer.

12. Finally, they contend that there was no duplicity of charges as they were properly framed; that the trial court misapprehended the facts and the applicable law; and the evidence adduced by the prosecution met the threshold of prima facie case as set out in Bhatt v R Supra. They urge the court to allow the appeal.

Submissions by the 1st Respondent 13. The 1st Respondent opposes the Appeal and makes submissions in support of the trial court’s Ruling on three broad grounds: that the Appeal is inherently incompetent as the Record of Appeal is incomplete; the Appellant did not adduce any evidence against the 1st Respondent which requires rebuttal, and the failure to either charge Mr. Kombo Mweru as a witness was a fatal defect on the part of the Appellant.

14. The 1st Respondent submits that the Record of Appeal filed by the Appellant does not include any exhibits and is therefore incompetent. That considering the appeal as presented would be a waste of judicial time and resources as the court, being the first appellate court, cannot carry out its duty to re-evaluate the evidence and reach its own conclusion as the record lacks the exhibits relied upon in the trial court and the written submissions of the Respondents.

15. On Count 1, the 1st Respondent contends that the prosecution failed to establish a prima facie case against him. That the allocation of the subject land followed due process and there was no evidence of fraud and in any case the officers who approved the transfer by the Settlement Fund Trust to the 4th Respondent were not questioned by the Ethics and Anti-Corruption Commission and were not charged. That if there was any criminal offence in the disposal of the land, it was committed by the Settlement Fund Trust and all the three trustees should have been charged as required under Section 23 of the Penal code.

16. They contend that the person who signed the transfer was the Permanent Secretary of the Ministry of Lands yet he was not charged. That the 1st Respondent was charged for acts done in the performance of his statutory duty as Trustee of the SFT and he is protected from legal action under Section 198 of the Agriculture Act Cap 318 (repealed) which law provides:“198. Neither the Minister nor any other person or body of persons shall be personally liable to any action or proceedings for or in respect of any act or thing done or omitted to be done in good faith in the performance or exercise or intended performance or exercise of any duty or power imposed or conferred by or under this Act.”

17. On Count 2, they submit that the 1st Respondent bought his shares in the 4th Respondent company in public alongside other politicians; that his shareholding was a mere 250 shares representing 0. 02% of the total shares. On Count 3, the 1st Respondent submits that the prosecution failed to adduce evidence to prove the offence of fraud and breach of trust. That the prosecution failed to discharge its burden under Section 107 of the Evidence Act.

18. The 1st Respondent submits that the exclusion of the PS for Ministry of Lands Kombo Mweru and the Settlement Fund Trust is fatal to the prosecution's case. That the allocation of land to the 4th Respondent was made by the Settlement Fund Trust and it should have been responsible and accountable for the transfer. That the prosecution had a duty to call Kombo Mweru as a witness but they failed to do so, hence an inference that the evidence would have been unfavorable to the prosecution. They relied on the case of Ali Mohamed Ibrahim v Republic [2017] eKLR.

19. They submit that the Appeal as it stands cannot be sustained; the prosecution failed to present evidence on the alleged irregular transfer of the land and as such the appeal should be dismissed with costs.

Submissions by the 2nd Respondent 20. The 2nd Respondent in opposing the appeal framed one issue for determination: whether the trial court erred in acquitting the 2nd Respondent under Section 210 of the Criminal Procedure Code.

21. They submit that the Settlement Fund Trust was the registered owner of the land Nyandarua/Njabini/530, which was subdivided into two parcels Nyandarua/Njabini/5851 and Nyandarua/Njabini/5852 and the latter was allocated and subsequently transferred to the 4th Respondent by law procedure.

22. They contend that the FTC board members and farmers were mistaken on the ownership of the property hence the charges; that the land did not belong to the FTC or the Ministry of Agriculture. They submit that the Settlement Fund Trust has powers to dispose of land under Section 167 of the Agriculture Act Cap 318 (repealed) as it is a body corporate with the power to purchase, hold and dispose of immovable property to settle settlers on either unalienated government land or land purchased from private owners.

23. The 2nd Respondent contends further that the prosecution failed to prove a prima facie case against her; that the burden of proof lay with the prosecution to prove all charges against the Respondent. That the legal principles guiding the court on prima facie case revolve around the sufficiency of evidence establishing the ingredients of the offense; a mere scintilla of evidence is not enough, and evidence adduced by the prosecution such that a reasonable tribunal properly directing its mind would convict the accused in absence of any explanation. They relied on R T Bhatt v Republic [1957] EA 332-334 and 335 cited in Republic v Benson Nzuki Musau [2018] eKLR in support.

24. They referred to Section 172 of the Agriculture Act and submitted that the officer administering the SFT was the Permanent secretary for the Ministry of Agriculture, at the time being Kombo Mweru. That he was the accounting officer and was responsible for ensuring that the resources are used in a lawful and authorized manner. That he was the person who signed the transfer of land to the 4th Respondent and should have been either charged or called as a witness. That the prosecution’s failure to call him as a witness was fatal to its case. They relied on a US court decision Hurd v People 25 Mich 405, 416

25. In closing, they submit that the prosecution failed to adduce sufficient evidence to require a rebuttal from the 2nd Respondent; the trial court’s Ruling cannot be faulted and urged the court to dismiss the appeal.

Submissions by the 3rd Respondent 26. The 3rd Respondent in opposing the appeal framed two broad issues for determination: whether the prosecution established a prima facie case for the Respondents to be placed on their defense and whether the acquittal orders by the trial court should stand and be affirmed by this court.

27. The 3rd Respondent contends that the prosecution did not adduce any evidence to warrant the accused being placed on their defense. That there is no evidence of fraud on the transfer of the land to the 4th Respondent; that the 3rd Respondent is not a joint owner of the land. That PW2, PW5, and PW12 gave evidence that the land transfer was legal and procedural and the prosecution's accusations were baseless. That PW7 testified that no bribe was offered and there was no forgery or any illegality whatsoever.

28. It is their position that the case was based on the wrong notion that the land belonged to the Ministry of Agriculture. That the SFT, the owner of the land has never claimed to be defrauded; the criminal case was instituted by the officials of the Ministry of Agriculture who erroneously claimed ownership of the land. That there was no evidence that the land was public land. That the 3rd Respondent executed the application for land allocation as one of the 12 Directors of the 4th Respondent and there was no illegality in the process. That the prosecution witnesses were not familiar with the law relating to Settlement Fund Trust hence the weaknesses in the case.

29. The 3rd Respondent contends that the case was completely devoid of evidence and marred with mischief of selective prosecution. That the failure to call Kombo Mweru, the officer administering the land on behalf of the SFT is proof of the mischief as the prosecution is required under Section 143 Evidence Act to avail all witnesses.

30. The 3rd Respondent closes by submitting that the prosecution witch-hunted and prosecuted him out of 12 Directors of the 4th Respondent company contrary to Section 23 of the Penal Code. The prosecution was therefore an abuse of the court process by virtue of the selective prosecution. They cited R v Attorney General ex parte Kipngeno Arap Ngeny [2001] eKLR and Agnes Ngenesi Kinyua v Director of Public Prosecutions & another [2019] eKLR. They urged the court to dismiss the appeal.

Issues for determination 31. Whether the prosecution established a prima facie case against the Respondents.

Analysis and determination 32. The trial court’s acquittal of the Respondents was premised on the following findings:1. The charges in Count 1, 3,4, 6 and 7 cannot stand and are for dismissal.2. The charge in count 2 against the 1st accused is bad in law for failing to disclose the offence envisaged in Section 42(1) (a) as read with 42(1) (b).3. The charge in count 5 against the 2nd accused dismissed for lack of evidence.4. The charge against the 3rd and 4th accused in count 8 must fail because no fraud is demonstrated in the process of acquisition of the title to land parcel no Nyandarua/Njabini/5852 from the SFT.

33. It is trite that it is the duty to analyze and re-evaluate the evidence which was before the trial court and make its own conclusions on that evidence, taking cognizance that the appellate court did not have the benefit of seeing the witnesses when they testified and therefore cannot tell what their demeanor was. See the locus classicus case of Okeno v Republic [1972] EA 32. The court, therefore, considers the evidence as below.

34. The prosecution called a total of 17 witnesses who testified and produced a number of documents. PW 1 and PW 13 from Njabini Farmers Training Center testified that the FTC was under the Ministry of Agriculture and it occupied and used the land for training farmers on potato farming. They testified that the land was not available for allocation as it was public land located at Njabini Settlement Scheme; that the 4th Respondent had illegally excised 25 acres from the FTC land and had set up a factory without the consent of the FTC. That the FTC had an contract with the 4th Respondent in which they were to use the land for two years for potato seed production but the 4th Respondent terminated the contract and utilized the land for different activities.

35. PW 2, PW5 and PW 12 former officers of the Ministry of Lands and Housing testified that the green card for the land showed that the title was in the name of the Settlement Fund Trust. They gave evidence on their respective roles in the allocation, survey, subdivision and transfer of the land to the 4th Respondent.

36. Five witnesses PW 3, PW6, PW7, PW8 and PW11 were employees of the Ministry of Agriculture at the material time. PW 3, James Ongwae, then Permanent Secretary for the Ministry testified that he received a request for the 4th Respondent seeking to be given a portion of land in the year 2004, a request he declined as it was public land that was not available for allocation through a letter PExh 9. This testimony was corroborated by PW6 and PW7 who confirmed that there was no approval for the allocation and the encroachment and excision of the land hampered the farmer’s use of the land.

37. PW 14, PW15 and PW16 were farmers. They testified that the FTC occupied the land where they used to attend trainings. That it was a government facility and the land was excised and allocated to the 4th Respondent. PW10, Registrar of Companies testified that the 1st Respondent was a Director of the 4th Respondent, a public registered company, between the years 2005 and 2007, during which the land was allocated.

38. PW17 were investigator attached to the Ethics and Anti-Corruption Commission testified that the 2nd Respondent directly participated in the illegal allotment of land to the 4th Respondent. That she issued the instructions for subdivision PExh 4 and letters for allotment for the two land parcels resulting from subdivision ( PExh 5 and 10) to Njabini FTC and the 4th Respondent respectively. That even though the land title was in the name of Settlement Fund Trust, the land was public land and occupied by the Farmers Training Centre, a government institution. That at the material time the government had ceased issuing title deeds to government institutions. That the 4th Respondent entered into a contract with the FTC as a scheme to excise part of the land.

39. He testified further that no meeting of Trustees was conducted in respect of the allocation and the FTC was not informed of the subdivision and subsequent excision and transfer of part of the land. That the 2nd respondent did not have authority to issue the letter of offer to the 4th Respondent as the Minister for Agriculture had declined the request.

40. He testified that the 1st Respondent, being the Minister of Lands caused the land to be allocated to his company, the 4th Respondent despite having knowledge that it was public land, held in trust by the STF and was to be utilized in the resettlement of landless people. That the 4th Respondent company does not deal with the resettlement of landless people and it is evident that the allocation was illegal.

41. Finally, that the 1st respondent did not disclose his interest in the land or exonerate himself as he was the Minister of Lands at the material time. There was no meeting of the trustees of the STF approving the allocation and transfer. That collectively, the 1st and 2nd Respondents as public officers acted in breach of trust as they were aware that the land was not available for allocation. The 3rd Respondent was charged in his capacity as director of the 4th Respondent and he signed the application for allotment of the land; that he was a party to the initial contract between the FTC and the 4th Respondent and was aware that the land was not available for allocation. Lastly, that he opted not to call Kombo Mweru as a witness as his evidence would not be of value.

42. In respect of the offence of abuse of office in Count 1 and VI, Section 46 of Anti-Corruption and Economic Crimes Act provides:“Section 46. A person who uses his office to improperly confer a benefit on himself or anyone else is guilty of an offence.”

43. The two ingredients of the offence of abuse of office are: i) the person must have used a public office to improperly confer something to himself or to anyone else; and ii) the thing conferred must be in the nature of a benefit. It is not disputed that the 1st and 2nd Respondents were at the material time public officers, holding the offices of Minister and Director of Land Adjudication and Settlement at the Ministry of Lands and Housing respectively. The issue for consideration is whether there is evidence that the 1st and 2nd Respondents in their respective capacities improperly transferred the land to Midlands Limited, the 4th Respondent.

44. The 1st Respondent was at the material time one of three Trustees in the Settlement Fund Trust, which held the land subject of these proceedings in trust on behalf of the landless for their resettlement in accordance with the provisions of the Agriculture Act, Cap 318 (repealed). PW8, minister for Agriculture and a Trustee of the SFT testified that the Trustees did not meet to deliberate the transfer of the land and in fact, an initial request for the allocation had been declined. The land was allocated to a company, the 4th Respondent, to whom the 1st Respondent is a shareholder and director.

45. In my view, regardless of the number of shares owned by the 1st Respondent, it suffices that the land was allocated to his company during his tenure as Minister for Lands and Trustee of the SFT, contrary to Sections 167 and 181 of the Agriculture Act Cap 318 without the approval of the other Trustees. This calls for an explanation by the Respondents on whether the objects of the 4th Respondent company include resettlement of landless people and whether the land was used in furtherance of this objective. Indeed, the land in itself was public land not available for allocation to the company as it was held in trust for settlers. Rule 3 of the Land Utilization and Settlement Rules, 1962 provides the following mandatory requirements:“3. Every application for participation in an approved settlement scheme shall be made in the appropriate form specified in the First Schedule to these Rules, and the applicant shall be required to satisfy the Board that he is—(a)a resident of the Colony;(b)an experienced farmer or that he is prepared to undergo a course of agricultural training to the satisfaction of the Board;(c)in possession of financial resources adequate to enable him to undertake farming under the scheme in question;(d)prepared to comply with such directions as the Board may give in respect of his farming operations; and(e)that he has attained the age of twenty-one years.”

46. The 4th Respondent company was not a “settler” as defined under Section 2 of the Agriculture Act: “a person holding land in an approved settlement scheme and includes an assisted owner or farmer”

47. Neither was the company a beneficiary of the Njabini Settlement Scheme as it was not a landless or displaced person or a farmer in the scheme or a Farmers Training Center for which the land was allocated for. The 2nd Respondent issued a letter of offer which set the ball rolling in the process of the excision and transfer to the 4th Respondent. There is in fact evidence that the land was used as security to secure a loan for Kshs 85,000,000. In my view, the prosecution established a prima facie case against the 1st and 2nd Respondents on Counts I and VI respectively and they should accordingly be put on their defence.

48. Count II is against the 1st Respondent on failure to disclose a private interest to one’s principal contrary to Section 42(1)(a) of the Anti-Corruption and Economic Crimes Act. This law states:“42. Conflicts of interest(1)If an agent has a direct or indirect private interest in a decision that his principal is to make the agent is guilty of an offence if—(a)the agent knows or has reason to believe that the principal is unaware of the interest and the agent fails to disclose the interest; and(b)the agent votes or participates in the proceedings of his principal in relation to the decision.”

49. I agree with the trial court’s finding that this charge is defective. The ingredients of the offence under Section 42 above are comprised in both paragraphs (a) and (b) of Section 42 (1) which are joined by the word “and”. The charge refers only to Section 42(1)(a) that is to say “failure of disclosure” which by itself does not make a complete offence as this law requires that such failure be accompanied by the “agent’s voting or participation in the proceedings of the principal”. The finding of the trial court on Count II is therefore is proper and should be upheld.

50. Counts III and VII are on fraudulent disposal of public property contrary to Section 45(1) (B) of the Anti-Corruption And Economic Crimes Act while Count VIII is on fraudulent acquisition of public property contrary to Section 45(1) (A) of the Anti-Corruption And Economic Crimes Act. These are charges against the 1st, 2nd, 3rd and 4th respondents respectively.“45. Protection of public property and revenue, etc.(1)A person is guilty of an offence if the person fraudulently or otherwise unlawfully—(a)acquires public property or a public service or benefit;(b)mortgages, charges or disposes of any public property.”

51. It is admitted that the subject land Nyandarua/Njabini/5852 was transferred to the 4th Respondent company. The Respondent’s contention is that the process of allocation and transfer was legal.

52. On the other hand, PW8 Kipruto Kirwa, then Minister for Agriculture and Trustee of the STF testified that the process on the allocation and transfer was illegal as he was not involved as Trustee in the allocation of the land to the 4th Respondent. That the purpose of the STF was to acquire land and transfer it to locals for settlement. The land was not to be ceded to the 4th Respondent.

53. It is my view that once the prosecution had established that the land was owned by the Settlement Fund Trust and that it was irregularly excised and transferred to the 4th Respondent company, the prosecution had successfully established a prima facie case against the Respondents. The roles of the 1st Respondent as Minister for Lands, 2nd Respondent as Director of Adjudication, and 3rd Respondent as Director of the 4th Respondent were clear in the entire scheme of the allocation and transfer. It was also established that each of the Respondents had a role to play in the transfer including singing the application and issuance of the letter of offer and it is imperative that they should be put on their defense to exonerate themselves on the charges in Counts in III, VII and VIII.

54. Counts IV and V are against the 1st and 2nd Respondents on the charge of breach of trust by a person employed in the public service contrary Section 127 of the Penal Code. The law provides:“127. Frauds and breaches of trust by persons employed in the public service1)Any person employed in the public service who, in the discharge of the duties of his office, commits any fraud or breach of trust affecting the public, whether the fraud or breach of trust would have been criminal or not if committed against a private person, is guilty of a felony.2)A person convicted of an offence under this section shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding ten years or to both.”

55. The land subject of these proceedings was a property registered in the name of the Settlement Trust Fund, a creature of statute established under the Agriculture Act Cap 318(repealed). The property was held in trust for the “settlers” and farmers within the Njabini Settlement Scheme. From the foregoing analysis, the excision and transfer to a company ostensibly owned and under the control of the 1st Respondent, Minister of Lands at the material time, would or could be interpreted as a breach of trust.

56. In my finding therefore, the prosecution established a prima facie case against the 1st and 2nd Respondents by virtue of their undertaking the subdivision and transfer of land belonging to a Settlement Fund Trust contrary to Sections 167 and 181 of the Agriculture Act and the Land Utilization and Settlement Rules, 1962 and to the detriment of the interests of the farmers/settlers. Accordingly, the trial court misdirected itself in acquitting them under Section 210 of the Criminal Procedure Code.

57. In conclusion, it is my finding that the evidence adduced by the prosecution met the threshold of a prima facie case having been established against the Respondents on Counts 1, 3, 4, 5, 6, 7, and 8. Accordingly the order acquitting the Respondents is hereby set aside and it is directed that each of the respondents be placed on their defence on the respective charges. To that end the Respondents shall be required to present themselves before the Anti-Corruption Court (Hon. Mugambi -CM) on October 11, 2022 for directions failing which warrants of arrest shall issue. Count 2 against the 1st Respondent is a defective charge and the trial court’s finding in that respect is upheld.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 6TH DAY OF OCTOBER, 2022. E N MAINAJUDGE