Dorothy Ndia & another v Republic [2017] KEHC 6096 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ANTI-CORRUPTION AND ECONOMIC CRIMES DIVISION

CRIMINAL APPEAL NO. 06 OF 2016

(CONSOLIDATED WITH APPEAL NO. 7 OF 2016)

DOROTHY NDIA …………….…..………………....…………1ST APPELLANT

CONCELIA AOKO ONDIEKI ………….………….…………2ND APPELLANT

VERSUS

REPUBLIC …………………………..…..…………….………. RESPONDENT

(Appeal arising from the Judgment of Hon. Felix Kombo SPM in

Nairobi ACC No. 24 of 2011)

JUDGMENT

1. Dorothy Ndia (hereinafter referred to as the 1st Appellant) and Concelia Aoko Ondieki(hereinafter referred to as the 2nd Appellant were charged before the Anti-Corruption Court, Nairobi with the following offences:

Count I

False accounting by a Public Officer Contrary to Section 331 (1) as read with Section 331 (2) of the Penal Code Cap 63 Laws of Kenya.  Particulars being that the 1st and 2nd Appellants on diverse dates between 12th of April, 2009 and 30th of June, 2009 at Jogoo House in Nairobi district within Nairobi Area Province, being a secretary and an acting director for Secondary and Tertiary Education respectively, charged with the management of public revenue to wit Kshs.1,067,500. 00/- intended for the purchase of stationery for Provisional/Regional Capacity Building Workshops on Management of Instructional Materials in Secondary Schools Phase II organized by the Ministry of Education, knowingly furnished a false return of money received by you for that purpose.

Count II

Knowingly giving a false document to one’s principal contrary to Section 41 (2) as read with Section 48 (1) of the Anti-Corruption and Economic Crimes Act No. 3 of 2003.  Particulars being that the 1st Appellant on or about 30th day of June, 2009 at Jogoo House in Nairobi district within Nairobi Area Province, being an agent of the Ministry of Education as a Secretary to the detriment of the Principal, to wit the Ministry of Education, knowingly gave a face document namely a payment surrender voucher dated 30th June, 2009 to Rachel Ngung’u a Senior Accountant with the Ministry of Education, purporting that she had spent an imprest of Kshs.1,067,550/- for the purchase of stationery for Provincial/Regional Capacity Building Workshop on Management of Instructional Material in Secondary Schools Phase II, a document she knew to be materially false.

Count III

Forgery contrary to Section 349 of the Penal Code Cap 63 of the Laws of Kenya.  Particulars being that the 2nd Appellant on or about 29th day of June, 2009 at Jogoo House in Nairobi District within Nairobi Area Province, with intent to defraud made a false document namely a receipt serial number 00455 dated 24th May, 2009 for Kshs.75,800/- purporting to have received it from Sharrif Stationaries and General Suppliers for purchase of Assorted Stationery.

Count IV

Forgery contrary to Section 349 of the Penal code Cap 63 of the Laws of Kenya.  Particulars being that the 2nd Appellant on or about 29th day of June, 2009 at Jogoo House in Nairobi District within Nairobi Area Province, with intent to defraud made a false document namely a receipt serial number 0045 dated 24th May, 2009 for Kshs.72,000/- purporting to have received it from Shariff Stationaries & General Supplies for purchase of Assorted Stationery.

2. Both Appellants had pleaded not guilty to all the counts facing them in the Magistrate’s Court.  The Prosecution called a total of fourteen (14) witnesses while each Appellant gave a sworn statement without calling any witnesses.  Written submissions were filed and later highlighted by the defence counsels.  Count II was dismissed under Section 210 of Criminal Procedure Code.

The 1st Appellant was convicted on the 1st count and sentenced to 2 years imprisonment.  The 2nd Appellant was convicted on counts I, III and IV and sentenced to two (2) years imprisonment on each count, with an order that the sentences run concurrently.

3. The Appellants being aggrieved with both the conviction and sentence, have filed these appeals citing the following grounds;

1ST APPELLANT’S GROUNDS

1. Thatthe Learned Trial Magistrate erred in law and fact in finding that the prosecution had proved its case against the appellant to the required standard insofar as the first count is concerned.

2. Thatthe Learned Trial Magistrate erred in law and fact in convicting the appellant against the weight of evidence on record.

3. Thatthe Learned Trial Magistrate erred in law and fact in placing reliance on the document examiner’s report whose credibility had greatly been shaken during cross-examination and in the appellant’s submissions.

4. Thatthe Learned Trial Magistrate erred in law and fact in ignoring the doctrine of precedence by departing from a binding decision cited before him and therefore arrived at a wrong decision in law.

5. Thatthe Learned Trial Magistrate erred in law and fact in shifting the burden of proof to the appellant.

6. Thatthe Learned Trial Magistrate erred in law and fact in convicting the appellant based on mere suspicion.

7. Thatthe Learned Trial Magistrate erred in law and fact in failing to find that since the appellant had been acquitted on the 2nd count, the 1st count would not stand and was a non-starter.

8. Thatthe Learned Trial Magistrate erred in law in convicting and sentencing the appellant based on flawed proceedings as the trial magistrate never complied with the mandatory provisions of Section 200 of the Criminal Procedure Code.

9. Thatthe Learned Trial Magistrate erred in law and in fact in ignoring glaring contradictions in the prosecution’s case and consequently arrived at a wrong decision.

10. Thatthe Learned Trial Magistrate erred in law and fact in failing to find that the necessary ingredients for the offence of false accounting by a public officer had neither been met nor proved against the appellant.

11. Thatthe Learned Trial Magistrate erred in law and fact in failing to appreciate the facts of the case and consequently, arrived at a wrong decision.

12. Thatthe Learned Trial Magistrate erred in law and fact in failing to resolve the apparent doubts in favour of the appellant contrary to settled principles in law.

13. Thatthe sentence passed by the Learned Trial Magistrate was harsh.

2ND APPELLANT’S GROUNDS

1. Thatthe Learned Trial Magistrate erred in both law and fact in failing to hold that having found as a fact that the case of knowingly giving false document to one’s principal had not been established against the accused, it was not open for him to proceed to convict on a charge of false accounting by a public officer and forgery.

2. Thatthe Learned Trial Magistrate erred in both law and fact in finding that the prosecution had made out a case of false accounting by a public officer and forgery against the appellant whereas there was no evidence to support that finding.

3. Thatthe Learned Trial Magistrate erred in both law and fact in finding that the appellant was guilty of the charge of false accounting by a public officer when the appellant was neither the imprest holder nor the one who surrendered the imprest.

4. Thatthe Learned Trial Magistrate erred in both law and fact in failing to properly analyze and scrutinize the evidence on record in that he appears to have formed an opinion that the appellant was guilty and then set out to look for bits and pieces of evidence here and there to try rationalize his opinion.

5. Thatthe Learned Trial Magistrate erred in both law and fact in shifting the burden of proof to the appellant.

6. Thatthe Learned Trial Magistrate erred in both law and fact in failing to find that the case against the appellant had not been proved beyond reasonable doubts.

7. Thatthe Learned Trial Magistrate erred in both law and fact in failing to scrutinize and properly evaluate the evidence on record and indeed the appellant’s defence regarding counts II and IV of the charge sheet.

8. ThatLearned Trial Magistrate erred in both law and fact in introducing extraneous and irrelevant concepts and consideration in his judgment and in so doing fact fell into error.

9. Thatthe sentence handed out to the appellant is harsh in the circumstance of this case.

When the two appeals came for directions, the Court directed that they be consolidated with HCRA No. 6 of 2016 as the lead file.

4. This being a first appeal, this Court is mandated to re-evaluate the evidence afresh.  The Court of Appeal in the case of Gabriela Kamau Njoroge –vs- Republic (1982 – 88) 1 KAR 1134stated this on the duty of the 1st Appellate court;

“It is the duty of the first Appellate court to remember that parties are entitled to demand of the court of first appeal a decision on both questions of fact and of law and the court is required to weigh conflicting evidence and draw its own inferences and conclusions, but bearing in mind always that it has neither seen or heard the witnesses and make due allowance for this.”

5. In the case of Kiilu & Another –vs- Republic [2005] 1 KLR, the Court of Appeal held;

“2. An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence.  The first appellate court must itself weigh conflicting evidence and draw its own conclusion.

3. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusion; it must make its own findings and draw its own conclusion.  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.”

Equally in the case of Boru & Another –vs- Republic [2005] 1KLR 649, the Court of Appeal held

“4. A duty is imposed on a Court hearing a first appeal to reconsider the evidence, evaluate it itself and draw its own conclusion in deciding whether the judgment of the trial court should be upheld, as well as to deal with any questions of law raised on the appeal.”

6. The evidence adduced by the trial court was that both Appellants were employees of the Ministry of Education (Ministry).  The 2nd Appellant was the Acting Director at the Ministry’s Directorate of Secondary & Tertiary Education (DSTE), while the 1st Appellant was personal secretary to the 2nd Appellant.  Both of them were therefore public servants.

There is no dispute that in May, 2009 the Ministry had scheduled two sets of training for Secondary Schools namely, (i) Instructional Materials (ii) Double-shift sensitization workshops.  The trainings were funded by the Kenya Education Sector Support Programme (KESSP) a program managed by the Government of Kenya through the Ministry.

7. These trainings were approved by the Ministry of Education (Exhibit 19 & 20)through the Permanent Secretary.  There was a total budget of Kshs.1,067,550/- in terms of stationery for the said nationwide trainings.  After issuance of Exhibit 19 and 20, a meeting was held on 12th May, 2009 where among issues discussed was the procurement of stationery materials.  The 2nd Appellant authorized the 1st Appellant to apply and receive the imprest in the sum of Kshs.1,067,550/- (Exhibit 18).  What raised the issues is the surrender of the subject imprest.

8. After the trainings, an audit was undertaken on the use of KESSP funds by the Ministry.  As a result, two reports (Exhibit 31 and 36) were done and submitted to the Ethics and Anti-Corruption Commission (EACC).  Documents relating to a surrender voucher for Kshs.1,067,550/- in the name of the 1st Appellant were compiled and produced as (Exhibit 36).

9. PW1 Winfred Mugure Kibandeworked with the Ministry of Education Procurement Department as a secretary.  She shared an office with the 1st Appellant.  She testified that in the month of May, 2009 the 1st Appellant informed her that she had been asked by her boss (2nd Appellant) to take imprest money. She came with a brown envelope to the office and informed her that, it was the imprest she had been given.  She then went with it to the 2nd Appellant’s office.  When she came out of the 2nd Appellant’s office, she did not have the brown envelope.

10. PW2 Solomon Nyamai Dundais a Procurement Assistant with the Ministry.  His evidence was that the procurement involving stationery for the Ministry’s training did not pass through his department.  Had the proper procedure been followed, a document known as S13 could have been issued.  In this case, it was not issued and their department never received the receipts produced as Exhibit 6 – Exhibit 17 attached to a voucher, Exhibit 1.

11. PW3 Patrick Kinyua Njagi worked as an undersecretary Finance in the Ministry.  He deputized the Chief Finance Officer.  He explained that the imprest warrant No. 0403687 for Kshs.1,067,550/- (Exhibit 18) had been applied for by the 1st Appellant.  It was for material for the two workshops.  The request for the imprest had been made by the 2nd Appellant, the Ag. Director of Secondary and Tertiary Education.  He referred to two Memos in respect of the request (Exhibit 19 & 20).  He approved the imprest on 4th May, 2009.  The money was to be given to the officers who were going to the filed for the workshops.  Besides doing the approvals, he did not do anything else about the imprest

12. PW4 Fred Jonah Ochanda was the then Finance Officer at Kisumu Polytechnic.  He confirmed to the Court that Receipt No. 041952 dated 20th May, 2009 for Kshs.344,000/= (Exhibit 21); Receipt No. 041890 dated 23rd May, 2009 for Kshs.345,200/- (Exhibit 22); Receipt No. 041885 dated 26th May, 2009 for Kshs.340,500/- (Exhibit 23) allegedly issued by Kisumu Polytechnic receipts were not genuine.  He went ahead to produce copies of extracts with corresponding Serial Nos. from Kisumu Polytechnic.  For Exhibit 21, the receipt was issued to a student called Achieng Atela Belgone for Kshs.9,600/- on 12th June, 2009 (Exhibit 24).  For exhibit 22, the receipt was issued on 11th June, 2009 to Otieno Benard Nyandiga for Kshs.15,400/- (Exhibit 25).  For exhibit 23, the receipt was issued to Anyango Nancy Njai for Kshs.15,540/- on 11th November, 2009 (Exhibit 26).

13. In all the instances, the money was received by Mr. Hongo PW6 an accounts staff at Kisumu Polytechic.  The copies of receipts he produced had been made from the duplicate copies at the Polytechnic and were certified by the Principal (EXB 24 – 26).

The originals had been given to the students.  The questioned receipts Exhibits 21 – 23 were allegedly issued by Mr. Hongo at the Kisumu Polytechnic which PW4 refuted.

14. PW5 Isaac Itumo Mutungi was the Chief Supply Chain Management Officer.  He was in-charge of the Secretariat to the Tender Committee and he maintained files for Ministerial Tender Committee Members.  His evidence was to the effect that a meeting had been held on 12th May, 2009 in respect of the matters at hand.  A budgetary schedule of required items was availed and it was resolved that the 2nd Appellant be given an imprest for procurement of the items.  He received a letter (Exhibit 19) in reference to the discussion they had and he gave the approval for preparation of the imprest.  He denied having seen the imprest warrant No. 0403687 (Exhibit 18).  He did not know whether the stationary was ever bought or whether the workshop took place.  As far as he was concerned, everything was in order in respect of the documents he was signing.

15. PW6 Charles Odhiambo Hongois a cashier at Kisumu Polytechnic.  He confirmed that receipts Exhibit 24 – 29 which were certified were issued by the Kisumu Polytechnic. Of the other set of receipts Exhibit 21 – 23 he denied their having been issued by the Kisumu Polytechnic, for two reasons being (i) the Kisumu Polytechnic does not receive any money from the Ministry of Education or any other Ministry, (ii) the receipts (exhibit 21 – 23) had not been certified by the Ministry as being true copies of receipts issued to them.  He also questioned the dates of issue of Exhibit 21 – 23 when the genuine receipts from the Kisumu Polytechnic were issued on totally different dates, as per Exhibit 24 – 26.

16. PW7 Peter Momanyi is the Head of Procurement in the Ministry.  He confirmed attending the meeting of 12th May, 2009 where he directed that a Memo for procurement of the stationery be sent to him for further action.  He did not see the Memo, though the Memo (Exhibit 19) has the signature for approval by Mr. Mutungi, the Chief Procurement Officer who is his deputy (PW5).  After approval, the requisition was to commence through the imprest holder i.e. “the Director of Secondary Education or an authorized officer”.From exhibit 18 he confirmed the applicant therein to have been the 1st Appellant.  After receipt of the imprest money, purchases had to be done and after purchases surrender was to follow.  It was his evidence that the imprest warrant was fully authorized and it was the imprest holder, in this case the 1st Appellant to surrender.  In cases where goods were bought at point of use, one had to fill formS12 or sign at the back of the payment voucher.

17. PW8 Mutuaru Gitonga Mukindia is a Senior Education Officer at the Ministry.  He testified that in May, 2009 he was carrying out workshops on instructional material at Government Training Institute (GTI) Embu for a month as a coordinator.  He had gone to Embu without stationery.  While in Embu, he was called back to the 2nd Appellant’s office to collect the money for stationery.  He went to the 2nd Appellant’s office where he was given Kshs.97,000/- in the presence of both Appellants, Mr. Agan and Mr. Omuga (both fellow officers).  He bought the stationery and later surrendered the receipts at the 2nd Appellant’s office.  He stated that his receipts were not among the bundle of receipts presented to Court as Exhibits 6 – 17.

18. PW9 Michel Wesley Ojiambo worked as a Senior Deputy Secretary in charge of Administration in the Ministry.  He stated that in 2009, he was appointed chair of a Committee to look into allegations of misuse of funds provided for the Ministry to undertake various programs.  The Committee comprised of officers from the Ministry and Internal Auditor General’s office.  Their Terms of Reference were;

To validate findings of fiduciary reporting.

Recommend to the Permanent Secretary the action he should take.

Also give the officers concerned an opportunity to defend themselves.

There was a report forming the basis of their assignment.

19. PW9’s evidence was that the Committee interviewed the 1st Appellant who explained that she received the imprest on behalf of the 2nd Appellant.  Upon receipt of the money, she handed it over to the 2nd Appellant who proceeded to utilize it for the workshops.  That the 2nd Appellant had at the end of the workshops presented her with receipts totaling the imprest amount.  She appended her signature on the surrender voucher.

Following her denial over expenditure, the Committee summoned the 2nd Appellant who appeared before it.  He explained that the 2nd Appellant had confirmed what the 1st Appellant had told the Committee concerning the expenditure.  That it was actually her and not the 1st respondent who had utilized the imprest on the two workshops.  There was a letter which the 1st Appellant had written to the Permanent Secretary (Exhibit 30) confirming the position and the 2nd Appellant had confirmed by way of remarks.

20. The Committee recommended the lifting of the 1st Appellant’s suspension with further investigations into the alleged fraudulent use of the imprest.  The Committee found no wrongdoing on the part of the 1st Appellant.  He indicated that his Committee did not determine whether the workshops actually took place or not.  They left this aspect for relevant authorities to investigate.  He was aware that the Government had an Efficiency-Monitoring Unit (EMU) whose mandate was to investigate usage of funds.  The monitoring unit could investigate the usage of funds, he said.

21. PW10 CIP Jacob Oduor No. 230925 is a document examiner.  He gave his qualifications as follows;

Holder of Bachelor of Education Arts degree from Kenyatta University;

Training as a document examiner at CID headquarters Forensic Lab, National Ribat University, Forensic Evidence Institute in Khartoum, Sudan and Forster & Freeman Forensic Equipment Company based in the United Kingdom

He testified that on 28th October, 2011 while at the CID Headquarters Lab, he received exhibits from Oscar Otieno of Ethics and Anti-Corruption Commission.  These were;

Exhibits 6, 8, 14, 17, 10, 11 and 12 (questioned documents)

Exhibit 33– specimen writing of the 1st Appellant

Exhibit 34 – specimen writing of the 2nd Appellant

The exhibits were accompanied by a Memo form-Exhibit 37.  The request was threefold namely;

i. To ascertain whether the handwriting on Exhibit 6, 8, 14, 17, 10, 11 and 2 were made by the same hand compared to specimen handwriting Exhibit 33.

ii. To ascertain whether the handwriting on Exhibit 6, 8, 14, 17, 10, 11 and 12 were made by the same hand compared to specimen handwriting Exhibit 34.

iii. To ascertain whether the handwriting circled in blue ink on Exhibit 6, 8, 14, 17, 10, 11 and 12 was made by the same hand compared to specimen handwriting in Exhibit 33.

22. He compared the questioned handwriting on Exhibit 6, 8, 14, 17, 10, 11 and 12 to the specimen handwriting on Exhibit 33 and he found the writings on Exhibit 6, 8, 14, 17, 10, 11 and 12 to be similar to specimen writing on Exhibit 33 and were by the same author.  He also compared the questioned handwriting in Exhibit 6, 8, 14, 17, 10, 11 and 12 to the specimen writing on Exhibit 34 and found the writing in Exhibit 14 and 17 to be similar to the specimen writing on Exhibit 34 and were by the same author.

Finally, he compared handwriting circled in blue ink on Exhibit 6, 8, 14, 17, 10, 11 and 12 with the specimen handwriting on Exhibit 33 and he found the handwriting to be similar and by the same author.

23. He also subjected both questioned and specimen handwritings to image magnification procedures to identify any peculiar individual characteristics.  He arrived at the same conclusion as before.  He produced his report as Exhibit 32.  He pointed out that the signatures at the back of the documents were handwriting form and readable as Ndia making the result to be positive.  He explained that he only concerned himself with the receipts marked by the Investigation Officer and not all the receipts.

24. PW11 Christantus Okange is an assistant Director, Quality Assurance and Standards with the Ministry.  He testified that before 12th May, 2009, a colleague “Thomas Omuga” informed him of a workshop which was to take place in Kisumu and he had been listed as a participant.  He further informed him that an imprest had been signed for him by a person he did not disclose.  The said Mr. Thomas Omuga was a Senior Quality Assurance Officer in the area of hearing impairment while the witness was in the area of visual impairment.  At around 11th May, 2009 Mr. Omuga informed him that the person who had signed the imprest was not present, but they could go to the cash office for the money.

25. This witness stated that himself, Mr. Omuga and others went to the cash office at the same time in order to share in the carriage of the money.  He was given Ksh.2,936,000/- by Mr. Wanyama a cashier.  The money was for payment of transport reimbursement to the participants and per diems for the officers.  After they all received their money, they together left for the office of the Director, Secondary Tertiary Education (2nd Appellant) and they found her.  The 2nd Appellant asked all of them to place the money they had on the table.

26. The 2nd Appellant told them that since the amounts were huge, she’d bank the money in Nairobi and the same would be withdrawn in Kisumu.  She directed Mr. Omuga to count for him, (his per diem and airtime) which he did.  The total given to him was Kshs.125,000/-.  He was told to leave and he travelled to Kisumu that same night by bus.  He did not fully attend the workshop due to his ill health.  He however, learnt from Mr. Omuga that the workshop had been moved from Kisumu Polytechnic to Vunduba Hotel in Kisumu.

He explained that while in Kisumu he made no withdrawal in respect of the money they left in the 2nd Appellant’s office.  He did not purchase any materials nor receive any other money while in Kisumu and Mr. Omuga surrendered the imprest.

27. PW12, Lina Ayacko is a Senior Education Officer in-charge of audited accounts and inspection reports with the Ministry.  On 15th March, 2009 at 5. 30 pm, she was in the 2nd Appellant’s office to leave her imprest money which she had collected for a workshop on instructional, materials for secondary schools head teachers.  The money was Ksh.3,100,000/-.  She left the said amount with the 2nd Appellant who said it could be distributed the following day.  She went back to the 2nd Appellant’s office the next day between 7 am and 8. 30 am.  She was with Mrs. Salome Yatich (PW13)and Mutuaru (PW8) when the money was shared out to them.  Her share was Kshs.490,000/- for her per diem, transport, reimbursement for participants and airtime.

28. She conducted her workshop at Nyeri training institute as a coordinator and a facilitator.  The participants were drawn from Nairobi and Nyeri.  She bought some stationery using the per diem given to her.  She accounted for the Kshs.490,000/-.  It was Mr. Agan an Assistant Director who had asked her to process the imprest.  She added that she had never surrendered an imprest before.

29. PW13 Salome Koskei Yatichis a Senior Education Officer in the Ministry.  In May, 2009 she was involved in a workshop on capacity building on instructional material held at the Mombasa Polytechnic.  It is Mr. Agan who had given the instructions on where to go and sign the imprest forms which she did.  When the processing was over, he asked her to go and pick the money which she did.  She collected Kshs.2. 9 million.  On 15th May, 2009 she left the money she had picked with the 2nd Appellant in her office.  On 16th May, 2009 she was in the 2nd Appellant’s office with Lina Ayoko, Mr. Mutuaru Gitonga and Mr. Agan.  The 2nd Appellant told them the money they had picked was for all the regions and had to be redistributed.

30. The share for her region was Kshs.450,000 which she was given and took it to the bank.  It was to cater for transport, reimbursement for participants/facilitators, local running, lunch, field officers and airtime.  During the workshop, she bought pens and some writing materials but she had no receipts.  As she bought them from kiosks. She denied knowledge of the receipts Exhibits 13 – 17 from Shariff Stationers and General Supplies Mombasa.  She was categorical that the money given to her was not for stationeries as Mombasa Polytechnic supplied them with stationery.  She surrendered the money through a surrender voucher.  She admitted being in court over a court case in relation to this money.  Her co-accused in that case is the 2nd Appellant.

31. PW14 George Ojowiis an investigator with Ethics and Anti-Corruption Commission.  He testified that on 23rd February, 2010 he was allocated a case in respect of misappropriation of Kshs.1,067,550/- by a Ministry of Education officer, which had been given to her as imprest.  He referred to an audit report Exhibit 36 and another report Exhibit 31.  During his investigations, it had become clear that some of the documents used were forged and they were irregularities in the surrender by 1st Appellant.

32. He referred to the Memo from the 2nd Appellant dated 21st April, 2009 (Exhibit 37) seeking for approval to incur expenditure.  It was approved together with a list of stationery to be purchased per region.  Each region was to get Kshs.97,000/-.  The regions and officers involved were also listed in an annexture. Pursuant to the approval, another Memo dated 13th May, 2009 was generated by the 2nd Appellant to the Principal Procurement Officer for provision of stationery and writing materials (Exhibit 19).  It is in this Memo that the 1st Appellant is indicated as the person to take the imprest on behalf of other facilitators.

33. Another memo from the 2nd Appellant dated 10th May 2009 to the Principal Procurement Officer came requiring him to procure the stationeries attached and delivered to the regional venues by 14th May, 2009.  He referred to a warrant signed by the imprest holder (1st Appellant) and 2nd Appellant who signed it on 29th June, 2009.  The payment voucher is dated 29th May, 2009.  This voucher had documents attached to it which are cash sale receipt Exhibit 6 – 17, 38 (i) – 38 (viii).

34. After interrogating Rachel Ndungu and Hongo (PW6), Gitoga Mutuaru (PW8), Lina Ayako (PW12) and Salome Kosgei Yatich (PW13) he came to the conclusion that the imprest surrender voucher had been interfered with by replacement.

He also noted that receipts Exhibits 13 – 17 all from Shariff Stationers and General Supplies bore the same receipt number S/no.  00455 and reflects different amounts.  Similarly, receipts Exhibits 10 – 12 from Gimco Supplies Kisumu had the same S/no. 0014 with different amounts.  Receipts Exhibits 7 and 8 from Winam General Supplies Kisumu have the same S/no. 01137 each reflecting Kshs.68,000/- but written in different format.

35. A letter was written to Postal Corporation of Kenya over the postal addresses used in respect to the suppliers (Exhibit 39).  A response was sent (Exhibit 40) showing that the box numbers used were not genuine.  It was therefore clear that they had been a manipulation of documents.  An interview with Mr. Momanyi (PW7) revealed that there had been no need to purchase the said materials as they already had them in store.  There was evidence that none of the field officers received any money from 1st Appellant.  After gathering all this evidence, he prepared and an exhibit memo (Exhibit 35) and forwarded the documents to the Forensic Document Examiner, at the Director of Criminal Investigations Headquarters.  A report was received showing that a number of receipts in question were written by the 2nd Appellant.  The Appellants were then charged after the witness was satisfied with the results of the investigations.

36. The 1st Appellant elected to make a sworn defence without calling any witnesses.  She was secretary to the 2nd Appellant.  It was her evidence that around May, 2009 the 2nd Appellant authorized her to collect an imprest of Kshs.1,067,550/- on her behalf for a workshop.  The reasons being that she had an unsurrendered imprest and so could not take another one.  She collected it and signed for it.  She then took the money to the 2nd Appellant for the purpose of distribution.  Present when she did this were Winfred Kibande (PW1), Mr. Mutuaru (PW8), Mr. Omuga and Mr. Agan.  She denied playing any other role as far as the imprest was concerned, as she was not a participant in the workshop.  She testified that after the workshop the 2nd Appellant informed her that the surrender process had already been initiated and she handed to her a surrender voucher in her name plus receipts.  She denied handing to the 2nd Appellant any receipts, nor signing any receipts in particular exhibit 10 – 17.  She did not sign the surrender voucher at the back to confirm surrender.  She confirmed that the 2nd Appellant did not sign to acknowledge receipt of Kshs.1,067,550/- as there was no prescribed document for that.

37. The 2nd Appellant made a sworn statement in her defence without calling any witnesses.  She testified that she served as Acting Director Secondary and Tertiary Education from late 2007 – 2009.  She was in charge of the Directorate of Secondary and Tertiary Education and its implementation of all programmes in the directorate.  She prepared a work plan for all the activities for the year 2008 – 2009 (DExhibit 2).  Those to manage the workshops were nominated as per Exhibit 19 and 20.  The said officers took imprest and proceeded to the various stations.

38. The Procurement Section raised an issue of there being sufficient stationery in the store hence no need for purchase of the same.  This aspect was then left out of the imprest collected by the officers.  A meeting was held where it was agreed that stationery would be supplied in all seven (7) regions involved before the workshops commenced.  On 10th May, 2009 enquiries were raised concerning the stationery which had not been supplied.  She acted through – a memo (Exhibit 19 & 20).  She nominated the 1st Appellant to collect the imprest on behalf of the officers in the field.  The nomination was on 18th May, 2009.  She said she was sure the officers received the money for stationeries.

39. As coordinator, she knew the workshops took place and she signed surrender vouchers for every imprest holder.  In so doing, she looked at the imprest warrant, the money released and the receipts attached and the summary.  That on 24th May, 2009, she was in Kisumu conducting her own workshops, on Infrastructure Management, having left on 18th May, 2009.  She denied signing anything in Nairobi on 19th May, 2009 and she explained that she signed Exhibit 1 on 29th June, 2009 when it was brought to her.

40. When this appeal came up for hearing, Mr. Kabue for the 1st Appellant in highlighting his submissions states that in convicting the 1st Appellant, the court did not consider the key words “knowingly furnishes” as found in Section 331 (1) and Section 331 (2) of the Penal Code.  It was his submission that no witnesses testified as to having been furnished with a false return by the 1st Appellant. That it was not proved that the 1st Appellant submitted a false return for money.

41. Counsel submitted that the trial court relied heavily on Exhibit 38 (viii) which was a government of Kenya receipt No. 3342896 for Kshs.4,003/- dated 29th May, 2009 yet the 1st Appellant never acknowledged it’s receipt.  That the court misdirected itself in finding that she acknowledged its receipt.

It was Mr. Kabue’s submission that the trial court should have rejected the report by the Document Examiner as was held in the case of Samson Tela Akute –vs- Republic [2006] eKLR.

Finally, he submitted that the Learned Trial Magistrate (LTM) did not comply with Section 200 Criminal Procedure Code.

42. Mr. Mogikoyo for the 2nd Appellant in highlighting his written submissions submitted that the Appellant’s case was not looked at separately and he referred to the case of Munyote –vs- Republic [1985] KLR 662.  That there was evidence to show that the programmes took place and stationery was supplied.  Further, he submitted that there was an imprest holder who was not the 2nd Appellant.  It was the imprest holder who was to surrender the imprest.  The imprest warrant had been properly processed by the Ministry officials.  The 2nd Appellant scrutinized and approved them.  It was his submission that there was no evidence to prove forgery in Count 3 and Count 4.  Further there was no evidence to show that the document was false, or that the 2nd Appellant made a false document.  He referred to the case of Azolozo –vs- Republic1986 KLR 585.

43. He pointed out that the evidence of PW11, PW12 and PW13 relates to other workshops and not the ones in issue.  There were people who should have been called to testify but were not e.g. Mr. Omuga.  He submitted finally that the Learned Trial Magistrate had relied on the evidence of a co-accused to convict the 2nd Appellant.  In summary, the case had not been proved to the required standard and he asked the court to allow the appeal.

44. Mrs. Aluda for the respondent opposed the appeal and stated that they had issued a Notice for enhancement of sentence.  She gave a summary of evidence, stressing that the 2nd Appellant used the 1st Appellant to get the imprest.  That the surrender was by both Appellants.

It was her further submission that Section 200 Criminal Procedure Code was complied with and the Document Examiner’s evidence was only persuasive. She referred the Court to the proceedings of 28th May, 2015 at page 129.

I have considered the record, the grounds of appeal both written and oral submissions, and find the issues arising from the grounds of appeal to be as follows;

i. Whether the Learned Trial Magistrate complied with Section 200 Criminal Procedure Code;

ii. Whether there is a nexus between Count 1 and Count 2 which was dismissed under Section 210 Criminal Procedure Code;

iii. Whether there was sufficient evidence to support theconviction of the Appellants;

iv. Whether this Court should enhance the sentence against the Appellants.

46. The record shows that Mrs. Okundi (then Ag. Chief Magistrate) heard the evidence of PW1 – PW13 before she was transferred and the matter was taken over by Mr. Kombo, PM (as he then was).  It is also on record that both the 1st and 2nd Appellants were represented by Mr. Kabue and Mr. Mogikoyo respectively.

The record shows that the matter came for directions on 28th May, 2015 and this is what transpired.  Present were;

F K Kombo (Mr.) – Principal Magistrate

M/s Gateri for Mr. Monda for the State

M/s Mugure for Kabue for accused

M/s Gateri: Matter is partheard.  One witness remains.  Matter is for directions.

M/s Mugure: We would wish that the matter proceeds from point previously reached

Accused 1: That is the position

Accused 2: I confirm

Court: Matter shall proceed from point previously reached before this Court.

Section 200 (3) Criminal Procedure Code provides;

“Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and reheard and the succeeding magistrate shall inform the accused person of that right.”

Section 200 (4) Criminal Procedure Code provides

“Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.”

47. Mr. Kabue relying on the cases of John Belt Kinengeru –vs- Republic(2015) eKLR; Mwangi –vs Republic (1983) 1 KLR 522 submitted that the proceedings stated at paragraph 46 above shows that there was no compliance with Section 200 (3) Criminal Procedure Code.  That the Appellants were not informed of their right to recall witnesses.  It was therefore his submission that the failure by the Court to explain to the Appellants their right to recall witnesses rendered the proceedings a nullity.  In response, Mrs. Aluda submitted that there was compliance with Section 200 Criminal Procedure Code as could be gleaned from the proceedings at page 129.

48. I have considered the submissions and authorities by Mr. Kabue on this issue.  I have equally considered the submissions by Mrs. Aluda plus the proceedings at page 129.

The record shows that when directions were taken by the Learned Trial Magistrate on 28th May, 2015, both Mr. Kabue and  Mr. Mogikoyo for both Appellants were absent.  M/s Mugure held brief for Mr. Kabue.  There is no mention of Mr. Mogikoyo and it’s not clear whether M/s Mugure held his brief.

Whatever the case, the issue here is whether Section 200 (3) Criminal Procedure Code was complied with or not.  From the record, I see that M/s Mugure simply went ahead to make an election on behalf of the Appellants on the provisions of Section 200 (3) Criminal Procedure Code.

49. It cannot be overemphasized that it is the duty of the Court to inform an accused person of his rights under Section 200 (3) Criminal Procedure Code.  In the case of John Bell Kinengeni –vs- Republic [2015] eKLR the Court of Appeal stated thus;

“InRichard Charo Mole Nairobi Criminal Application No. 135 of 2004,this Court approved the principles set inNdegwa - vs - Republic [1985] KLR 534and stressed that the duty is reposed on the court and there is no requirement that an application made by the accused person for such compliance and that failure to comply with that requirement would in an appropriate case render the trial a nullity as Section 200 (3) required in a mandatory tone that the succeeding Magistrate (read Judge) shall inform the accused person of the right to demand a recall of any or all witnesses to be reheard by the succeeding Magistrate.  InCyrus Muriithi Kamau & Another –vs- Republic Nyeri Criminal Application No. 87 and 88 of 2006.  The court added that the use of the words “shall inform the accused person of that right” in Section 200 (3) (supra) was clearly meant to protect the rights of an accused person and the duty to see that the right is protected is placed on the trial Magistrate and the burden to inform an accused person of the right to have the previous witnesses re-summoned and reheard is placed on the Magistrate in mandatory terms.  InBob Ayub Alias Edward Gabriel Mbwana alias Robert Mandiga(supra), the court ruled that mere mention in the judgment that Section 200 (3) was complied with is hollow without any evidence from the record that it was actually complied with in accordance with the law”.

The above case emphasizes the duty of the court to explain to the accused persons their right under Section 200 (3) Criminal Procedure Code.

50. While appreciating the above to be the position, it is not in all situations of failure to comply with Section 200 (3) Criminal Procedure Code that the trial will be vitiated.  The High Court of Kenya in Nyeri in the case of Michael Waweru Ndegwa Criminal Appeal No. 290 A of 2010 had this to say in a similar situation

“This court has previously held that Section 200 of the Criminal Procedure Code should be invoked sparingly and only in cases where the ends of justice will be defeated if a succeeding Magistrate does not continue a trial commenced by his predecessor.  Some of the considerations to be born in mind before invoking Section 200 Criminal Procedure Code include whether it is convenient to commence the trial de novo, how far the trial had proceeded, availability of witnesses who had already testified, possible loss of memory by witnesses, the time that had lapsed since the commencement of the trial and the prejudice likely to be suffered by either the Prosecution or the accused.”.

In Ndegwa –vs- Republic (supra) the court stated thus;

“The provision of Section 2000 Criminal Procedure Code ought to be used very sparingly; and only in cases where the exigencies of the circumstances are not only likely but will defeat the ends of justice if a succeeding magistrate is not allowed to adopt or continue a criminal trial started by a predecessor.”

51. Coming back to the proceedings of 28th May, 2015 I do note that before the Court recorded anything on compliance with Section 200 (3) Criminal Procedure Code. M/s Mugure advocate, addressed the Court as follows;

“we would wish that this matter proceeds from point previously reached.”

The court went further to address the Appellants who responded as follows;

Accused 1 – that is the position

Accused 2 – I confirm

Although the Learned Trial Magistrate did not record fully what transpired, it is clear that some conversation went on between the Court, defence Counsel and the Appellants.  M/s Mugure and the Appellants could not have been responding to nothing.  From their responses, it is clear Section 200 Criminal Procedure Code had been explained to them.

52. Further to this, the matter did not proceed to hearing on 28th May, 2015.  A fresh hearing date of 22nd June 2015 was taken.  On the 22nd June, 2015 when the matter came for hearing both Mr. Kabue and Mr. Mogikoyo were present and ready to proceed with the case as per the directions taken on 28th May, 2015.  Neither the Appellants nor Counsel raised any issue about their desire to recall witnesses.  Had any such issue been raised, I am more than convinced that the Learned Trial Magistrate would have dealt with it and given them an opportunity to recall them depending on their availability.

53. This then brings me to Section 200 (4) Criminal Procedure Code which provides;

“Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.”

The issue here is whether the Appellants were materially prejudiced by the failure by the convicting Magistrate to record his full compliance with Section 200 (3) Criminal Procedure Code.

The Appellants were represented by counsels who could have informed the court if there was any witnesses whom any of the Appellants wanted recalled, for the court’s direction.  Such information was never given to the court.  It is to be noted that in an issue of this nature, each case must be considered based on its peculiar circumstances to ensure that the ends of justice are not defeated.  Secondly, the Appellants participated in the taking of directions on 28th May, 2015 and the 1st Appellant cannot turn around to claim that these rights were not explained to her.

54. I find that no material prejudice was suffered by the Appellants by the failure by the Learned Trial Magistrate to record its having fully complied with Section 200 (3) Criminal Procedure Code.

Issue No. ii: Whether there is a nexus between Count 1 and Count 2 which was dismissed under Section 210 Criminal Procedure Code.

55. It was the Appellants’ counsels’ argument that Counts 1 and 2 were interrelated and the Appellants should have been acquitted on both counts and not just count 2.

The particulars in Count 2 clearly state that the Appellants knowingly gave a false document to one Rachel Ndung’u.  The said Rachel Ndung’u did not testify.  No one could testify on her behalf and that’s how the Count flopped.  She is the only one who could have confirmed whether she was given and received the false documents or not.  Count 2 was therefore dismissed for the failure of Rachel Ndung’u to testify.

56. On the other hand, in Count 1, both Appellants are accused of knowingly furnishing a false return of money received by them.  There is no mention of a name of a recipient as in Count 2.

It was therefore the duty of the Prosecution to prove the ingredients in this particular Count.  It could not be dismissed for being similar to Count 1, nor just because there had been an acquittal on Count 2.  I therefore answer issue (ii) in the negative.

Issue iii:    Whether there was sufficient evidence to support theconviction of the Appellant

57. There is no dispute that the authority to hold these workshops was given by the Ministry of Education through the various Memos produced herein.  It is also not disputed that the 2nd Appellant was the one who was to take the imprest for the workshops.  She authorized the 1st Appellant to take the imprest because according to her, she had an unsurrendered imprest and so could not be allowed to take another imprest.

It is also not disputed that the 1st Appellant was not a participant in any of the workshops.  She worked as a secretary to the 2nd Appellant.

58. The directions on Exhibit 19 and 20 (Memo dated 13th May, 2009) are clear that the 1st Appellant was to pick the imprest.  This lady was not a participant, nor facilitator and neither did she attend any of the meetings held by the 2nd Appellant with other officers in her office.

There were no directions to the 1st Appellant on how to disburse the money.  In her defence, the 2nd Appellant in response to questions by the prosecuting counsel and Mr. Kabue stated that she confirmed that the 1st Appellant had disbursed the money she did not explain how she had confirmed this.  It was her evidence that she did not give her any instructions on how the disbursements were to be made and to whom.  So how was she to utilize this imprest?  She even says she did not ask the 1st Appellant how she disbursed the money as it was not her role.  She did not know how the officers in the filed may have got their money.  Whose role was it?

59. I find these answers by 2nd Appellant to be very strange.  The reason is that the 1st Appellant who was her secretary, needed to be given instructions on how to disburse the money but the said instructions were not given.

Secondly, the person who ought to have taken this imprest was the 2nd Appellant and not the 1st Appellant.  It’s the 2nd Appellant who authorized her to pick it, obviously on her behalf.

The evidence of the 1st Appellant is that upon picking the imprest, she faithfully took it to her boss (2nd Appellant). PW1 a fellow secretary in the same office confirmed that the 1st Appellant had shared with her the ongoings and she had seen the 1st Appellant with a brown envelope, which she told her contained the imprest amount.  She saw the 1st Appellant enter the 2nd Appellant’s office with it and she did not have it when she came out of the said office.

A Committee set up to investigate these claims of fraud and theft heard both Appellants on this issue.  It exonerated the 1st Appellant but found the 2nd Appellant responsible (Exhibit 31).  The finding by the committee is however, not binding on this Court.  The 2nd Appellant denied receiving this imprest money from the 1st Appellant claiming that the latter would never have given the money to her even if she had asked for it, since the latter knew she had to account for it.

60. PW11 Chrisantus Okange, PW12 Lina Ayako, PW13 Salome Koskei Yatichare all employees of the Ministry and they participated in the workshops of May, 2009.  It was their evidence that they took huge imprests which they surrendered to the 2nd Appellant.  Thereafter, they received a small sum of the deposit in the name of per diems and asked to go to the regions.  It appears to have been a perfected practice.  The 1st Appellant says she deposited the money with the 2nd Appellant and did nothing else since she was not a participant in the workshops.  She was later informed about the surrender by the 2nd Appellant.

All that the 2nd Appellant said on this in her defence was that all these witnesses lied against her.  They were her officers and there was nothing brought out to show why they would lie against her.  Even the element of lying was never put to them in cross-examination.

61. It is my finding that the 1st Appellant upon receipt of the imprest money (Kshs.1,067,550) took it to the 2nd Appellant in her office.  The next issue for determination is what became of this money, Kshs.1,067,550/=.  There is no list of participants, resource persons/facilitators and co-coordinators that was availed to this Court from the Ministry or the 2nd Appellant to confirm that indeed these workshops ever took place.  PW11 Chrisantus Okange though meant to facilitate in the Kisumu workshop, never did so.  He was informed by Mr. Omuga of the change of the workshop from Kisumu Polytechnic to Vundumba Hotel.  Mr. Omuga decided to take over everything and even surrendered the imprest.

62. After the alleged workshops, the imprest had to be surrendered, to show how it had been utilized and/or return of the money.

Annexed to the Memo, Exhibit 19 and 20, was an approved list of stationery per region.  It shows the item and price viz;

Stationery                                                   Amount

250 writing pads @150                                 37,500

250 pens @15                                               3,750

250 name tags/badges @30                         7,500

3 rolls of flip charges @3,000                        9,000

300 folders @70                                          21,000

50 felt pens @60                                           3,000

20 white boards marker @150                      3,000

1 white board eraser @300                             300

200 manilla paper @10                                 2000

20 permanent makers @100                         2000

5 reams of printing papers @400                  2000

2 printer toners for secretariat @ 3000         6000

TOTAL                                                         97,050

63. Any surrender receipt had to reflect which item had been brought in terms of the list above.  Out of the surrendered receipts to the voucher, (Exhibit 1) only exhibit 38 (iv), (v), (a) and (e) have indicted the specific items bought.  The total amount in these receipts is Kshs.16,115/-.  The balance of the receipts refers to ‘assorted stationery’ and the sums are not small.  What items were actually bought as per the approval?  No one can tell from these receipts.  Another observation is that Exhibit 7 and 8 both dated 30th May, 2009 bear the same S/No. 1137 plus same amount of money.  Exhibit 10, 11, 12 all dated 28th May, 2009 bear the same S/No. 0114 with varied sums of money.  Exhibit 13, 14, 15, 16 and 17 all dated 24th May, 2009 bear the same S/No. 00455for varied sums of money save for Exhibit 15 and 16.  Exhibit 21 – 23 have through the evidence of PW4 Fred Jonah Ochanda and PW6 Charles Odhiambo Hongo been proved to be fake receipts as the genuine ones from Kisumu Polytechnic (Exhibit 24 – 26) were produced.

64. The observations pointed out above are so glaring and would not need an expert to detect them.  In spite of all this, the 2nd Appellant signed Exhibit 1 confirming that the expenditure was proper and authorized.  This was on 29th June, 2009.  As an A.I.E holder she had to satisfy herself that all the receipts were genuine before endorsing the voucher.  This is what she states at page 268 lines 2 0 11 of the proceedings;

“I also signed surrender vouchers for every imprest holder (shows prosecution Exhibit 1).  This was brought to me.  It was brought by the imprest holder.  I signed and certified on the document.  I look at the imprest warrant, the money released and the receipts.  There is usually a summary”.

This confirms that she checked all the documents attached to Exhibit 1, including the summary.  She was satisfied that everything was in order in spite of all the anomalies pointed out above.  This could never have been an oversight.  She knew exactly what she was doing and what she was upto.

65. In Count No. 1 the Appellants were jointly charged with the offence of false accounting by a public officer contrary to Section 331 (1) as read with Section 331 (2) of the Penal Code.  The particulars being that they knowingly furnished a false return of money received by them for the purpose of purchase of stationery.

Section 331 of the Penal Code provides;

1. Any person who, being an officer charged with the receipt, custody or management of any part of the public revenue or property, knowingly furnishes any false statement or return of any money or property received by him or entrusted to his care, or of any balance of money or property in his possession or under his control, 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.

66/ From the record and the analysis above, it has clearly come out that:

the surrender voucher (Exhibit 1) as if it was a genuine surrender knowing very well it was not.  The glaring errors in the supporting receipts confirms it was not.

(vi) Her signature as an A.I.E holder was confirming that the purchase of stationery had taken place and the sum paid out should be charged to the said item.  She had all the documents, which she allegedly checked.  Her confirmation was therefore not genuine.  She confirmed what was not.

67. The 2nd Appellant had authority over the 1st Appellant since she was her boss.  Despite the 2nd appellant’s allegations, that the 1st Appellant disbursed money to the field officers, there is no single piece of evidence to show that indeed the 1st Appellant paid out any money to anyone.  There is overwhelming evidence that the field officers were paid money from the 2nd Appellant’s office by Mr. Agan and Mr. Omuga in her presence.  She was therefore aware of what was happening.  This goes further to confirm that indeed this imprest was taken to the 2nd Appellants office by the 1st Appellant.

68. It is my finding that though the 1st Appellant was not involved in the expenditure of this money, she was involved in the surrender of fake receipts. Count 1 is about false accounting.  Both Counsels for the Appellant have argued that the Learned Trial Magistrate placed a lot of emphasis on the Document Examiner’s (PW10) report (Exhibit 32), which they said was contrary to known law.  Cited was the case of Samson Tela Akute –vs- Republic [2006] eKLR where the case ofHassan Salum –vs- Republic(1964) EA 126 was cited with approval.  The court had this to say;

“In saying that he (the expert) had no doubt that the forged signature had been written by the Appellant, he was going for beyond the proper limits.  I think the answer was given in Bishop of Lincon case (1921) 90 LJPC 174 that it is not possible to say definitely that anybody wrote a particular thing.  I think an expert can properly say, in an appropriate case, that he does not believe a particular writing was by a particular person.  On the positive side, however, the most he could ever say is that two writings are so similar as to be indistinguishable and he could of course, comment on the unusual features which make similarity the more remarkable.  But that falls short of saying they were written by the same hand …”

69. The Document Examiner examined the questioned documents together with the specimen writings of both Appellants.  He was of the opinion that Exhibits Nos. 6, 8, 19, 11 and 12 were authored by the 1st Appellant while Exhibit Nos. 14 and 17 were authored by the 2nd Appellant.

Considering that the imprest holder was the 1st Appellant, while the disburser of the money was the 2nd Appellant, the two of them worked together to account for this money.  It has been established that the supporting receipts were fake receipts.  They were surrendered by the 1st Appellant after approval by the 2nd Appellant who had received the money from the 1st Appellant and was the A.I.E holder.

70. All this evidence considered as a whole, finds credence in the Document Examiner’s report.  The 2nd Appellant could not approve a surrender voucher with fake accounting documents involving such a huge sum of money if she was not part of the scheme.  The 1st Appellant could not equally surrender receipts whose source was unknown to her.  The report by PW10 was not the reason for the conviction.  The finding of PW10 was clearly supported by the evidence on record.

I am therefore satisfied that Count 1 was proved against both Appellants beyond reasonable doubt.

71. The receipts the subject of Counts 3 and 4 have been proved to be fake.  Both of them are dated 29th June, 2009 and bear the same receipt number 00455 (Exhibit 14 and 17).  They are purported to have originated from Shariff Stationers & General Supplies Mombasa.

72. PW13 Salome Koskei Yatich who was the Coordinator in the Coast Region said she did not surrender any receipts for stationery as she bought them from kiosks using her per diem.  The receipts are clearly fake and the failure to call any witness from the said Shariff Stationers was of no effect.  These receipts which were approved by the 2nd Appellant were found by PW10 to have been authored by the said 2nd Appellant.

73. The 2nd Appellant explained in her defence that she was not in Nairobi when these receipts were written.  She did not have to be in Nairobi on those dates to write the receipts.  Being fake receipts, they may still have been written on dates other than those shown on the said receipts.  The said alibi was correctly rejected by the Learned Trial Magistrate.

My finding is that the Prosecution proved their case against the 2nd Appellant in Counts 3 and 4.  The 1st Appellant escaped by not being charged with the offence of forgery.  I confirm convictions against both Appellants.

Issue No. iv: Whether this Court should enhance the sentence against the Appellants?

74. The Respondent had filed a Notice asking this Court to enhance the sentence against the Appellants.  It was its duty to explain its reason for the notice for enhancement of sentence.  It has not alleged that the sentence was illegal or unlawful.  No reason has been given for the request for enhancement.  I therefore find that no reason has been advanced for the request for enhancement.

The offences the Appellants were convicted of have other options of sentences besides imprisonment depending on the circumstances of the case.  The record shows that both Appellants were first offenders.  The 1st Appellant did not benefit much from the money in question.  I hereby set aside the sentences meted out and substitute them with the following sentences.

C1 1st Appellant is fined Kshs.300,000/- in default 12 months imprisonment, while  2nd Appellant is fined Kshs.500,000/= in default 18 months in imprisonment.

C32nd Appellant is fined Kshs.50,000/=, in default 6 months imprisonment.

C4 2nd Appellant is fined Kshs.50,000/= in default, 6 months imprisonment.

75. The result is that the appeal against conviction is disallowed, while the appeal against sentence succeeds only to the extent mentioned above.  The sentences to run from the date of conviction.

Dated, signedand delivered this 23rd day of March 2017 at NAIROBI

…………………………

HEDWIG I. ONG’UDI

HIGH COURT JUDGE