Kibuna & 2 others v Republic [2022] KEHC 9986 (KLR)

Kibuna & 2 others v Republic (Anti-Corruption and Economic Crimes Appeal 03, 2 & 12 of 2020 (Consolidated)) [2022] KEHC 9986 (KLR) (Anti-Corruption and Economic Crimes) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9986 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Appeal 03, 2 & 12 of 2020 (Consolidated)

EN Maina, J

July 14, 2022

Between

Paul Thuo Kibuna

1st Appellant

Sophie Wanja Mugwe

2nd Appellant

Millicent Werubo Muigai

3rd Appellant

and

Republic

Respondent

(An appeal against the conviction and sentence in Chief Magistrate Anti-Corruption Court Criminal Case No. 6 of 2012 Millicent Weruma Muigai and 3 others {Hon L N Mugambi CM)

Judgment

Introduction 1. Millicent Weruma Muigai, Sophie Wanja Mugwe, and Paul Thuo Kibuna, (“the 1st, 2nd, and 3rd Appellants”) are former employees of the Pensions Department of the Government of Kenya. At the material time, the 1st and 2nd Appellants were holding the offices of Accounts Assistants while the 3rd Appellant held the office of Accountant 1. They were charged alongside another person in Milimani ACC No. 06 of 2012 Republic vs Millicent Werubo Muigai and 3 others with 12 counts of the offense of Abuse of Office contrary to Section 46 as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act, with each Appellant facing a fraction of the charges.

2. The Appellants were found guilty and convicted on the following Counts:“1)Count I: The 1st Appellant, Millicent Weruma Mugai was charged with abuse of office contrary to section 46 as read with section 48(1) of the Anti-Corruption and Economic Crimes Act, 2003. The particulars are that on or about the 12th day of February, 2010 at the Pensions Department Offices in Bima House in Nairobi Area within Nairobi Province, being an Account Assistant at Pensions Department used her office to improperly confer a benefit of Kshs. 1 million on Alice Wambui Kibugi by examining and appending her signature on a payment voucher number 2009-10-007441 in respect of the pensions gratuity of the said Alice Wambui Kibugi, which had the lumpsum amount inflated from Kshs. 823,530. 00 as per the pensioner benefit computation appendix form to Kshs. 1,823,530. 00 on the payment voucher.2)Count II relates to the same pensioner, Alice Wambui Kibugi, and is an abuse of office charge against the 2nd appellant, Sophie Wanja Mugwe. She is charged with improperly conferring a benefit of kshs. 1 million to Alice Wambui Kibugi on 14th February, 2010, by authorizing payment voucher number 2009-10-007441 that had the lumpsum amount inflated from Kshs. 823,530 as per pensioner computation appendix form to Kshs. 1,823,530. 00 on the payment voucher.3)Count III is an abuse office charge against the 3rd appellant Paul Thuo Kibuna and relates to the same pensioner as in Count 1. He is charged with improperly conferring a benefit of Kshs. 1 million to Alice Wambui Kibugi on 12th February, 2010, by approving voucher number 2009-10-007441 that had the lumpsum amount inflated from Kshs. 823,530. 00 as per the Pensioner benefit computation form to Kshs. 1,823,530. 00 on the payment voucher.4)Count IV is abuse of office contrary to section 46 of the Anti-Corruption and Economic Crimes Act as read with section 48 (1) of the Anti-Corruption and Economic Crimes Act. The 1st appellant, Millicent Weruma Muigai, on the 7th day of February, 2010 at Pensions Department in Bima House within Nairobi Province, being an Account Assistant at Pensions Department used her office to improperly confer a benefit of Kshs. 1 million on Charles Mwathi Muniu by examining and appending her signature on a payment voucher number 2009-10-010806, in respect of the pensions gratuity of the said Charles Mwathi Muniu, which had lumpsum amount inflated from Kshs. 1,185,583. 00 as per pensioner benefit computation appendix form to Kshs. 2, 185, 583. 00 on the payment voucher.5)Count V which relates to the same pensioner as in count IV is also on abuse of office charge but against the 2nd appellant, Sophie Wanja Mugwe. She is charged with improperly conferring a benefit of Kshs. 1 million to Charles Mwathi Muniu on 10th February 2010, by authorizing voucher number 2009-10-010806 that had an amount of 1 million shillings which had lumpsum amount inflated from Kshs. 1,185,583. 00 as per the pension benefit computation appendix form to Kshs. 2,185,583. 00 on the payment voucher.6)Count VI is an abuse office charge against the 3rd appellant and relates to the same pensioner as in count IV. Paul Thuo Kibuna is charged with improperly conferring a benefit of kshs. 1 million to Charles Mwathi Muniu on 7th February, 2010, by approving voucher number 2009-10-010806 that had the lumpsum amount inflated from Kshs. 1,185,583. 00 to 2,185,583. 00 on the payment voucher.7)Count VII is abuse of office contrary to section 46 of the Anti-Corruption and Economic Crimes Act as read with section 48 (1) of the Anti-Corruption and Economic Crimes Act. The 1st appellant Millicent Weruma Mugai, is charged that on or about the 17th day of February,2010 at the Pensions Department in Bima House within Nairobi Province, being an Account Assistant at Pensions Department used her office to improperly confer a benefit of Kshs. 1 million on Peter Mwangi Kariuki by examining and appending her signature on a payment voucher number 2009-10-010581, in respect of the pensions gratuity of the said Peter Mwangi Kariuki, which had lumpsum amount inflated from Kshs. 466,024. 00 as per pensioner benefit computation appendix form to Kshs. 1,466,024. 00 on the payment voucher.8)Count VIII which relates to the same pensioner as in count VII is also on abuse of office charge but against the 2nd appellant Sophie Wanja Mugwe, Accounts Assistant at Pensions Department. She is charged with improperly conferring a benefit of kshs. 1 million to Peter Mwangi Kariuki on 10th February, 2010, by authorizing voucher number 2009-10-010581 that had lumpsum amount inflated from Kshs. 466,024. 00 as per pensioner benefit computation appendix form to Kshs. 1,466,024. 00 on the payment voucher.9)Count IX is an abuse office charge against the 3rd appellant and relates to the same pensioner as in count VII. Paul Thuo Kibuna, an Accountant 1 is charged with improperly conferring a benefit of kshs. 1 million to Peter Mwangi Kariuki on diverse dates between 17th February, 2010, and 22nd February, 2010 by approving voucher number 2009-10-010581 that had an amount of 1 million shillings inflated above the properly computed gratuity lumpsum payment for Peter Mwangi Kariuki.10)Count X is abuse of office contrary to section 46 of the Anti-Corruption and Economic Crimes Act as read with section 48 (1) of the Anti-Corruption and Economic Crimes Act. The 1st appellant, Millicent Weruma Mugai, is charged that on or about the 21st day of February,2010 at the Pensions Department in Bima House within Nairobi Province, being an Account Assistant at Pensions Department used her office to improperly confer a benefit of Kshs. 1 million on Hanah Waithiru Njau by examining and appending her signature on a payment voucher number 2009-10-010249, in respect of the pensions gratuity of the said Hanah Waithiru Njau, which had lumpsum amount inflated from Kshs. 695,760. 00 as per pensioner benefit computation appendix form to Kshs. 1,695,760. 00 on the payment voucher.11)Count XI which relates to the same pensioner as in count X is also on abuse of office charge but against the 2nd appellant, Sophie Wanja Mugwe, Accounts Assistant at Pensions Department. She is charged with improperly conferring a benefit of kshs. 1 million to Hanah Waithira Njau on or about the 22nd February, 2010, by authorizing voucher number 2009-10-010249 that had lumpsum amount inflated from Kshs. 695,760. 00 as per pensioner benefit computation appendix form to Kshs. 1,695,760. 00 on the payment voucher.12)Count XII is an abuse office charge against the 3rd appellant and relates to the same pensioner as in count X. Paul Thuo Kibuna, 1st Appellant is charged with improperly conferring a benefit of Kshs. 1 million to Hanah Waithira Njau on diverse dates between 21st January 2010, and 22nd February 2010 by approving payment voucher that had the lump sum amount inflated from 695,760. 00 as per pensioner benefit computation appendix form to Kshs. 1,695,760. 00 on the payment voucher.13)Counts XIII and XIV are in respect of one Edward Amian Ongati (4th accused) who is not a party to these proceedings.”

3. After hearing and evaluating evidence from both sides the Learned trial magistrate came to the conclusion that because the pensioners named in the charges did not receive the funds in issue the offences of Abuse of Office were not completed and found the Appellants guilty of an attempt to commit each of the offences contrary to Section 47A(1) of the Anti-Corruption and Economic Crimes Act.

4. Subsequently and upon hearing the mitigation by Counsel, the court sentenced the Appellants as follows:1. 1st Appellant: Count I: A fine of Kshs 100,000 in default eight (8) months imprisonment; Count IV a fine of Kshs.100,000 in default eight (8) months imprisonment; Count VII: a fine of Kshs.100,000 in default eight (8) months imprisonment; Count X: A fine of Kshs.100,000/= in default (8) months imprisonment.2. 2nd Appellant - Count II: a fine of Kshs100,000 in default eight (8) months imprisonment; Count V: a fine of Kshs 100,000 in default eight (8) months imprisonment; Count VIII: a fine of 100,000 in default eight (8) months imprisonment; Count XI: a fine of Kshs 100,000 in default eight (8) months imprisonment.3. 3rd Appellant: acquitted in Count III; Count VI: A fine of Kshs.100,000 in default eight (8) months imprisonment; Count IX: a fine of Kshs.100,000 in default eight (8) months imprisonment. Count XII: a fine of Kshs.100,000 in default eight (8) months imprisonment.

5. Being aggrieved by the Judgment and Sentences imposed by the trial court, the Appellants filed separate appeals being ACEC Appeal No. 3 of 2020, ACEC Appeal No. 2 of 2020 and ACEC Appeal No. 3 of 2020. The Appeals were subsequently consolidated by this court (Hon. Wakiaga J.) on 10th November 2020.

The grounds of appeal 6. The 1stAppellant’s Memorandum of Appeal is dated 9th July 2020 while those of the 2nd and 3rd Appellants are both dated 22nd April 2020.

7. The grounds may be summarized as follows:-“1The trial court erred in law by finding that the prosecution had proven its case beyond reasonable doubt whereas the prosecution had not discharged its burden.2. The trial court erred in law by relying on inadmissible evidence, which did not meet the evidential threshold and was unsafe.3. The trial court erred in meting a harsh sentence against the 1st Appellant.4. The trial court erred in law and fact by disregarding crucial evidence submitted during the trial in favor of the appellants.5. The trial court erred in law and fact by failing to take into account the defense given by the appellants.6. The trial court erred in putting a lot of emphasis on the testimony of PW11 whose evidence was not credible as he was an accomplice, to the prejudice of the appellants.7. The trial court erred in law and fact by finding the 2nd and 3rd Appellants guilty of corruption yet it cleared them of the offense of conspiracy.8. The trial court erred in sentencing the 3rd appellant on the 6th count whereas in the judgment he was not convicted in the Count.9. The trial court erred in acquitting the 3rd appellant in the 3rd Count and convicting him in the 9th and 12th Count of similar circumstances.10. The trial court erred in convicting the 3rd appellant on Count 9 contrary to the particulars of the charge.”

8. The Appeal which is vehemently opposed was canvassed through written submissions with those of the Appellants being dated 27th March 2021 and 17th May 2021 and those of the Respondent being dated 19th February 2021. The 3rd Appellant filed supplementary submissions dated 20th February 2022.

Submissions of the 1st Appellant 9. Learned Counsel for the 1st Appellant started by laying out the chronological process of a pension claim from its inception until payment. Counsel stated that the process begins in the claim section before moving to the the data capture section, the assessment section and finally the external auditor's section. The claim is then submitted to the accounts section where it undergoes four levels of approval before qualifying for payment, that is voucher preparation, authority level, verification level, and finally approval level. The claim is then submitted to the cash office where the accountant groups the files based on the mode of payment, generates schedules, and EFT numbers, and passes the files to a group of officers who will examine, verify the accuracy and eventually pay the claim to the pensioner. Counsel asserted that each stage is independent of the other.

10. It is Counsel’s submission that the prosecution failed to call a crucial witness one Mr. Pakesh Kumar who installed the PMIS system and who disabled the audit trail whose evidence would have exonerated the 1st Appellant; That the PMIS system was flawed and all the ICT officers were granted unrestricted access to the system hence there was a lot of forgery and amendments to the vouchers payable to the various pensioners which could not be traced to specific pensioners.

11. Counsel stated that the trial court ignored crucial evidence on the workflow of the PMIS system as testified by ICT staff (PW12); That PW 3 produced a certificate which was erroneous and should have been dismissed and further that Mr. Mweu’s (PW 29) testimony twisted the story as he had initially talked of only 2 suspected cases and did not mention the Appellant. Counsel stated that neither did schedule 444997 (PExh 1) and 444998 (PExh 3) that increased the pension for Simon Kamande contain the signature of the 1st Appellant. Counsel stated that PW 29 did not interview the Appellant and in fact, saw her for the first time in court and could not, therefore, form an opinion on the 1st Appellant’s signature without the report from the document examiner (PW 28). Counsel also stated that PW 29 admitted to not having subjected any of the documents to a forensic examination by the time he concluded the preliminary investigation.

12. Counsel contended that the funds in the four counts 1, 4,7, and 10 were to be paid through Metropolitan National Teachers Sacco and the money was refunded back to the Ministry which evidence was disregarded by the trial court.

13. Counsel stated that the pensions department used both the manual system and the computer system (PMIS) and the learned magistrate erred in disregarding the evidence from the computer system as all the documents filed in the pension file are documents printed from the system and the only manual documents are the vote book register and personal or staff registers. Counsel argued that the evidence in the computer system was tenable; that PW 12 testified that the system had control measures that should have been looked into had proper investigations been carried out and the right individuals apprehended; that PW 3 testified that the computer system had an audit trail which was disabled by the consultant who was nevertheless left to flee the country due to inept investigations and that all the ICT staff who testified before the court PW1,2,19,21 and 22 confirmed that the system was compromised from within hence the defective payments.

14. Counsel pointed out that PW23 confirmed that the 1st Appellant was not amongst the persons who collected the inflated Kshs.1,000,000 from his pension and neither was she implicated as having been in communication with the pensioner at any point; that the 1st Appellant’s alleged signatures on the vouchers were forged yet the verifier of the vouchers who testified as PW 25 was not charged and that the culprits of the scheme and robbery of pension funds the majority being ICT staff are yet to be brought to book.

15. Counsel further submitted that the magistrate correctly found that there was no loss of funds from the alleged forged vouchers issued in relation to the 1st Appellant. Counsel contended that she was barely 2 years in office when she was unfairly netted in a larger scheme without her knowledge or participation and the judgment, conviction and sentence should be set aside.

Submissions of the 2nd Appellant 16. This court notes that even by the time of writing this judgment the submissions of the 2nd Appellant had not been filed. This despite Counsel for the 2nd Appellant being reminded to do so by the registry.

Submissions of the 3rd Appellant 17. The 3rd Appellant’s submissions are dated 17th May 2021 while the supplementary submissions are dated 20th February 2022. He was acquitted in Count 3 and convicted and sentenced on Counts 6,9 and 12.

18. The 3rd Appellant posits that the trial court erred in sentencing him on Count 6 without making a finding on whether or not he was guilty of the charge. That the entire judgment is unclear on whether or not he was convicted of the charge in Count 6. That the entire judgment is confusing and unrelatable thereby occasioning a miscarriage of justice.

19. On the second ground, the 3rd Appellant submits that the trial court erred in acquitting him of Count 6 and convicting him on Counts 9 and 12 which arose from similar circumstances. That in Count 9, the payment voucher no 2009-10-010581 in respect of pensioner Peter Mwangi Kariuki for Kshs. 1,466,024 was forged and does not tally with the amounts in the register of the 3rd Appellant. Referring to the testimony of PW7 the 3rd Appellant states that the Ethics and Anti-Corruption Commission failed to submit the signatures on the forged vouchers for examination by a document examiner and the trial court relied only on Samwel Kipyego Malakwen’s (PW11) confirmation that the signatures belonged to the 3rd Appellant.

20. Further that the trial court erred in finding that the charges against the 3rd Appellant were proved beyond reasonable doubt; that the other verifiers of the vouchers John Muthengi Simba and Mary Mukunya were not prosecuted alongside the 3rd Appellant; that out of all the Counts the 3rd Appellant was charged with, he only worked on the file in Count 9 (PC 222821) and it was an injustice that he was convicted on the other counts given that the documents therein were forgeries; that the testimony of PW1 showed that there were many irregular dealings in the cash office, ICT, and approval which might have extended to the forgeries, missing files, and switching off the audit trail as a cover-up and further that the court disregarded the evidence by PW1 and PW 28 which exonerated the 3rd Appellant. Counsel argued that the court also disregarded crucial evidence on the audit trail, registers, workflow and physical files which showed tampering of vouchers between ICT and cash office. Counsel contended that there was no proof of the 3rd appellant’s participation.

21. Other arguments put forth by the 3rd Appellant are that the court erred in laying a lot of emphasis on the testimony of PW11 who was an accomplice and whose evidence was therefore untrustworthy as he was covering up his tracks; that the court erred in finding the 3rd Appellant guilty of corruption yet it had cleared him on the charge of conspiracy; that the attempted abuse of office did not occur in isolation; that they expected the court to have convicted him under Section 47(A) (3) of the Anti-Corruption and Economic Crimes Act and not 47(A) (1) of the Anti-Corruption and Economic Crimes Act and lastly, the 3rd Appellant did not have a fair trial as the judgment and sentencing were rushed and irregular. Counsel submitted that this occasioned a failure of justice and was a violation of the 3rd Appellant’s constitutional rights.

Submissions of the Respondent 22. In respect of the charges against the 1st Appellant, the Learned Counsel for the Respondent submitted that PW28, the forensic document examiner at Ethics and Anti-Corruption Commission, in his forensic report produced as exhibit number 107 confirmed that indeed the sample signatures belonging to the 1st Appellant were similar to the signatures in the payment vouchers for Hannah Waithera Njau(exhibit 42), Peter Mwangi Kariuki(exhibit 34), Charles Mwangi Muniu(exhibit 36) and Alice Wambui Kabugi(exhibit 32); That Isaac Mumo Sila (PW4) had initially worked on the pension form(GP178) belonging to Alice Wambui Kabugi(exhibit 15) which indicated that the amount that ought to have been paid to Alice was Kshs.823,530/- and not the sum inflated by Ksh.1,000,000/. PW4 also worked on the pension form for Charles Mwathi Muniu(exhibit 35) and indeed confirmed to the trial court that what he had initially tabulated in the pension form was thereafter exaggerated in the payment voucher(exhibit 36). That was the same position as the assessment done for Peter Mwangi Kariuki (exhibit 34).

23. Concerning Count 10, Counsel submitted that it was the evidence of Damaris Mutete Kiamba (Pw6) who was also an assessment officer that the assessment she had done for Hannah Waithera Njau was thereafter inflated by Ksh.1,000,000. Counsel contended that the prosecution discharged its burden of proof at the end of the trial. Counsel referred to the prosecution's submissions filed in the trial court that bring out the various tabulations in the pension form (GP 178) in comparison to the figures that were in the various payment vouchers signed by the Appellants.

24. In regard to the 2nd Appellant’s charges, Counsel stated that evidence was tendered in support of the variance in the sums tabulated in the pensions form vis a vis the various payment vouchers.

25. On the 3rd Appellant’s appeal, the Director of Public Prosecutions stated that in regard to Count 6 the handwritten judgment showed there was a conviction in respect to that count and that looking at the evidence as a whole this Appellant was properly convicted and sentenced. In regard to Counts 3, 9, and 12 Counsel stated that the same relate to different beneficiaries and the learned trial Magistrate did not, therefore, err in convicting the 3rd Appellant on Counts 9 and 12. On the issue of signatures Counsel stated that PW7 was able to recognize and identify the 3rd Appellant's signature having worked with him for 4 years; that the document examiner PW 28 was also able to verify the known specimen signatures with the signatures on the vouchers in question and that PW 11’s testimony also confirmed the signatures on the vouchers belonged to the 3rd Appellant. In response to grounds 3 and 4 Counsel argued that the prosecution proved the charges against the Appellant beyond reasonable doubt and that the conviction was not based on suspicion as alleged but on the evidence adduced by the prosecution and the court's analysis of evidence of both the prosecution and the defense.

26. In response to grounds 6 and 7 Counsel disputed that the Honourable trial Magistrate did not disregard crucial evidence and submitted that there were several counts of abuse of office facing all the Appellants and the evidence adduced related to different transactions on different dates which from the judgment on record were sufficiently dealt with. Counsel concurred with the trial court’s finding that from the facts on record it was manifest that there was a clear intention to commit the offenses of abuse of office, that the means towards the commission of those offenses were overtly put into motion had they not been intercepted before the offence was completed. Counsel asserted that the ingredients of the offence of attempted abuse of office were established from the evidence adduced by the prosecution. For this Counsel cited the decision of the Court of Appeal in the case of John Simiyu Khaemba & Another vs. Republic [2020] eKLR.

Issues for determination 27. From a review of the grounds of Appeal and submissions filed by the Appellants and the Respondent, the following issues arise for determination:1. Whether the prosecution proved its case beyond reasonable doubt;2. Whether the trial court erred in sentencing the 3rd appellant in Count 6 without a conviction; and3. Whether the sentences imposed by the trial court were manifestly harsh or excessive.

Analysis and Determination 28. This being a first appeal, this court is enjoined to re-consider and re-evaluate all the evidence adduced during the trial and come up with its own conclusion, bearing in mind that it did not see or hear the witnesses. See the case of Patrick & Another v R [2005]2 KLR 162

Issue No. 1- Whether the prosecution proved its case beyond reasonable doubt 29. In regard to counts 1,2,3,4,5,7,8,9,10,11 and 12 evidence was adduced that the Appellants signed payment vouchers which had inflated the payments due to the respective pensioners by a whooping Kshs.1 million. It is my finding that had the funds not been intercepted the same would have reached the Bank accounts of the pensioners. A clear intention to commit the offences was put in motion. This despite that there were correct assessments of the pension payable to those pensioners.

30. As aforestated, the trial court in its finding substituted the charges of Abuse of Office contrary to Section 46 of the Anti-Corruption and Economic Crimes Act in all counts 1 to 12 with the lesser charge of Attempted Abuse of Office contrary to Section 47(A) (1) of the Anti-Corruption and Economic Crimes Act. Section 47A of the Anti-corruption and Economic Crimes Act makes an attempt to commit an offence involving corruption or an economic crime, an offence. Section 47A (2) provides that:-“47A (2)For the purposes of this section, a person attempts to commit an offence of corruption or an economic crime if the person, with the intention of committing the offence, does or omits to do something designed to its fulfilment but does not fulfil the intention to such an extent as to commit the offence.”

31. Evidence was led that the Appellants executed their mandates as Accounts Assistants and Accountant 1 improperly by inflating the pension by Kshs. 1,000,000 in each of the counts and subsequently examining, authorizing, and/or verifying the inflated vouchers for payment in excess of the amounts approved by the Director of Pensions. It is not a plausible defense that several other persons within the Department of Pensions, ICT and Accounts Departments had done the same but they were not prosecuted. Criminal liability is borne personally and the Appellants could not be exonerated on account of those others.

32. On the contention that the evidence of PW11 Samuel Kipyego Malakwen should have been disregarded as he was an accomplice, Section 141 of the Evidence Act states that:-“An accomplice shall be a competent witness against an accused person; and a conviction shall not be illegal merely because it proceeds upon the uncorroborated evidence of an accomplice.”

33. The trial court rendered itself extensively on the issue, including the lapses by the Director of Public Prosecutions in failing to charge PW11. In my view in addition to his evidence there was other evidence which went to prove the guilt of the Appellants beyond reasonable doubt and I find therefore that they were properly convicted. The conviction is safe and is upheld.

Issue No. 2. - Whether the trial court erred in sentencing the 3rd appellant on Count 6 without a conviction 34. A primary issue arising for determination is the 3rd Appellant's contention that he was erroneously sentenced on Count 6 despite not being convicted of the charge in this Count. They contend further that the judgment as delivered is confusing and unrelatable and as such contravenes their rights under Article 50 of the Constitution.

35. Section 215 of the Criminal Procedure Code provides that at the end of the hearing of the case, the court may in its judgment either convict, acquit or make an order against the accused person.“215. DecisionThe court having heard both the complainant and the accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an order against him according to law, or shall acquit him.” (underlining mine)

36. The contents and form of the judgment must also comply with Section 169 of the Criminal Procedure Code, which sets out the requirements for a judgment as follows:“169. Contents of judgment1. Every such judgment shall, except as otherwise expressly provided by this Code, be written by or under the direction of the presiding officer of the court in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it.2. In the case of a conviction, the judgment shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted, and the punishment to which he is sentenced.3. In the case of an acquittal, the judgment shall state the offence of which the accused person is acquitted, and shall direct that he be set at liberty.”

37. In Count 6 the 3rd Appellant faced a charge of Abuse of Office contrary to Section 46 as read with Section 48 of the Anti-Corruption and Economic Crimes Act. I have perused the judgment of the trial court and my finding is that the same is silent on the court’s verdict in respect to Count 6. The learned Magistrate did a detailed analysis of the evidence vis a vis the charges and gave a verdict on all the Counts save for count 6 where he omitted to expressly state whether or not he had found the 3rd Appellant guilty of the offence. There is no mention of whether the 3rd Appellant was acquitted or convicted in that count. However, the court proceeded to sentence the 3rd Appellant to a fine of Kshs 100,000 in default eight (8) months imprisonment on that count which in my view was an error incurable under Section 382 of the Criminal Procedure Code and accordingly the appeal in regard to that count is upheld.

Issue No. 3 - Whether the sentences imposed by the trial court were manifestly harsh or excessive 38. The Appellants were sentenced uniformly in each of the counts to a fine of Kshs. 100,000 in default eight (8) months imprisonment. In the case of Bernard Kimani Gacheru v Republic (2002) eKLR, the Court of Appeal held that: -“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”

39. In my view, the sentences were neither harsh nor excessive and the Appellants have not pointed to any illegality that would warrant this court to disturb the same. In the premises I would dismiss the appeals in their entirety. The 3rd Appellant’s appeal in respect to Count 6 is however allowed and the sentence shall in the circumstances be set aside. It is so ordered.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 14THDAY OF JULY, 2022E N MAINAJUDGE