Mutwiwa & another v Republic [2022] KEHC 14007 (KLR)

Mutwiwa & another v Republic (Criminal Appeal E025 of 2021) [2022] KEHC 14007 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14007 (KLR)

Republic of Kenya

In the High Court at Nyeri

Criminal Appeal E025 of 2021

JN Njagi, J

October 19, 2022

Between

Titus Mutua Mutwiwa

1st Appellant

Sammy Erusmus Kahindi

2nd Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence by Hon. M. Okuche, PM, in Nyeri CM`s Court AC Case No.3 of 2017 delivered on 18/3/2021)

Judgment

1. The appellants herein are police officers employed in the National Police Service and were at the time that gave rise to this case attached to Nyeri police station where they were performing traffic duties. On the June 9, 2017 at about 7. 30 am they were on traffic check duties along Nyeri-Othaya road when they were arrested by officers from Ethics and Anti-corruption Commission (EACC) on accusations of receiving bribes from motorists. They were taken to the anti-corruption offices in Nyeri where they were searched. The 1st appellant was found with Ksh 2,900/= in various denominations while the 2nd appellant was found with Ksh 1,100/= in various denominations. They were charged.

2. After a full trial, the 1st appellant was convicted in count 1 of the offence of receiving a bribe contrary to section 6(1)(b) of the Bribery Act, 2016as read together with section 18(1) of the said Act. The particulars of the offence were that on or about the June 9, 2017, at about 7. 00am along Nyeri – Othaya Road in the county of Nyeri within the Republic of Kenya he accepted a financial advantage of Kshs 2,900/= from motorists along the said road, which acceptance constitutes improper performance by him of his functions as an officer of the National Police Service.

3. The 2nd appellant was convicted of a similar offence in count 3 whose particulars were that on or about the 9th June 2017, at about 7. 00am along Nyeri – Othaya Road in the county of Nyeri within the Republic of Kenya he accepted a financial advantage of Kshs 1,100/= from motorists along the said road, which acceptance constitutes improper performance by him of his functions as an officer of the National Police Service.

4. Each of the appellants was respectively sentenced to a fine of Ksh 250,000/= in default to serve one-year imprisonment.

5. The 2nd appellant was in addition convicted of the offence of assaulting a person acting under the Anti-corruption and Economic Crimes Act, 2003as read together with section 66(2) of the said Act. The particulars of the offence were that on or about the June 9, 2017, at about 7. 00am along Nyeri – Othaya road in the county of Nyeri within the Republic of Kenya, without lawful excuse, assaulted Samuel Mukundi Njiru, an officer of the ethics and anti-corruption commission acting as such under the Anti-Corruption and Economics Crimes Act, 2003. He was sentenced to a fine of Ksh10,000/= in default to serve 2-months imprisonment

6. The appellants were aggrieved by the conviction and the sentence and filed the instant appeal. The grounds of appeal are that:1. The learned Principal Magistrate erred in law and in fact in misconstruing the mandatory provisions of section 35 (1) of Anti-Corruption and Economics Crimes Act (ACECA) which is couched in mandatory terms and misdirected himself in applying section 32 of ACECA and erroneously applied the law contrary to decided cases and wrong decision. A miscarriage of justice was occasioned to the appellants.2. The learned Principal Magistrate erred in law and in fact in convicting the Appellants on insufficient, inconsistent and contradictory evidence thus arriving at a wrong decision. Prejudice was occasioned to the Appellants.3. The learned Principal Magistrate erred in law and in fact and indeed misdirected himself in holding that this case was dependent wholly on circumstantial evidence when it was indeed based on both direct and circumstantial evidence and proceeded to lay out the test required to proof cases based on circumstantial evidence and totally ignored the aspect on direct evidence which was in favour of the Appellants thus arriving at an erroneous finding of guilt on the part of the Appellants. A miscarriage of justice was occasioned to the Appellants.4. The learned Principal Magistrate erred in law and in fact and indeed misdirected himself in considering extraneous issues that were neither canvassed by the prosecution or the defence and made a determination on them and proceeded to found a conviction of the Appellants. Prejudice and a miscarriage of justice was occasioned to the Appellants.5. The learned Principal Magistrate erred in law and in fact in failing to conclusively evaluate and be seen to consider the defence of the Appellants as a whole and pronounce himself on the several aspects it raised thus arrived at a wrong decision. Prejudice was occasioned to the Appellants.6. The learned Principal Magistrate erred in law and in fact in failing to evaluate the submissions by the defence counsel both after close of the prosecution’s case and after the close of the defence yet there was no submissions from the prosecution or any authorities cited thus dislodging the defence submissions and proceeded to reject them with no congent reasons. Prejudice and a miscarriage of justice was occasioned to the Appellants.7. The learned Principal Magistrate erred in law and in fact in failing to appreciate that vital witnesses were not called to testify and vital exhibits were never produced in court thus shutting out vital evidence that could have shed more light one way or the other as to the culpability of the Appellants. A miscarriage of justice was occasioned to the Appellants.

The prosecution case- 7. The case for the prosecution was that the ethics and anti-corruption office at Nyeri received anonymous information that officers from Nyeri traffic base were soliciting and receiving bribes from motorists along various roads within Nyeri county. An officer from the commission PW9 conducted surveillance in the month of April 2017 in which traffic police officers were captured receiving what was believed to be money from motorists.

8. That on the morning of June 8, 2017 the commission headquarters sent its officers to Nyeri to conduct a sting operation. That on the June 9, 2017 PW9 carried out another surveillance at the junction of Nyeri Othaya road where the two appellants were on traffic checks. PW 9 noted suspicious dealings between them and motorists. The officers from the anti-corruption commission were alerted and proceeded to the place. An officer with the surveillance team under the leadership of PW9 was taking a video recording of the incident. The appellants ran away when they were confronted by the officers. They were pursued. The 1st appellant resisted arrest and bit Samuel Mukundi Njiru PW 4 before the other officers reached the place. He was overpowered and arrested. The 2nd appellant also resisted arrest but he was overpowered and arrested. The appellants were taken to the EACC offices at Nyeri. They were searched. The 1st appellant was found with Ksh 2,900/= in the pockets of his reflector jacket that was in denominations of 100 and 50 notes. The 2nd appellant was found with Ksh 1,100/= in the pockets of his reflector jackets also in denominations of 100 and 50 notes.

9. The two officers of EACC who were injured went to hospital and were treated. They were issued with P3 forms that were completed by …..The appellants were thereafter charged with the afore mentioned offences.

Defence case - 10. In their defence, the appellants stated that on the June 9, 2017 they were on traffic check duties along Nyeri-Othaya road. They were on opposite sides of the road. That at 7. 30 am, a vehicle went and stopped there. Some men alighted from the vehicle. Some dashed towards the 1st appellant and others on the 2nd appellant. The 1st appellant was pinned to the ground by about 5 men. He received some injuries. He was then handcuffed and carried shoulder high to their vehicle. The vehicle was driven to EACC offices at Nyeri. The 2nd appellant was arrested in a similar manner and put in another vehicle, He was taken to the said offices where he found the 1st appellant in a room. Both of them were searched and no money was found on them. An inventory was prepared. The EACC officers claimed to have recovered money from them. They declined to sign the inventory as there was no money recovered from them. They were later released on cash bail. They sought for treatment at Mathari Hospital. They were charged with the offences they were facing.

Submissions – 11. The appeal was canvassed by way of written submissions of the advocate for the appellants, Mr Njuguna Kimani and those of the principal prosecution counsel, M/s Pauline Mwaniki.

12. Mr Kimani submitted that the appellants were charged in counts 1 and 3 under the Bribery Act, 2016. That section 20(1) of the said Actprovides that:The provisions of Anti-corruption and Economic Crimes Act on investigation and prosecution of offences shall apply in investigations and prosecution under this Act.

13. Mr Kimani consequently submitted that before the prosecution could charge the appellants with the offence under the said Act they were required to obtain consent of the Director of Public Prosecutions as stipulated by the provisions of section 35(1) of the Anti-corruption and Economic Crimes Act (ACECA) that provides that:“(1)Following an investigation the commission shall report to the Director of Public Prosecutions on the results of the investigation.(2)The commission’s report shall include any recommendation the commission may have that a person be prosecuted for corruption or economic crime.”

14. Counsel submitted that the provisions of the said section are not optional but mandatory. He relied on the High Court decision in Tobias Musyoka Mutua v Republic in Nyeri HCCA No 43 of 2011 and by the Court of Appeal in Esther Theuri Waruru & Mary Mbaisi Indusa, Nairobi Criminal Appeal No 48 0f 2008 where it was so held. Counsel submitted since no consent was obtained in this case the charges are afoul the law.

15. It was further submitted that the trial court erred in following the reasoning of Justice Ngaah in Nyeri Miscellaneous Criminal Application No 20 of 2014 inStephen Mburu Ndiba v Ethics & Anti-corruption Commission where the learned judge held that there was no requirement under section 35(1) of the ACECA for the Ethics and Anti-Corruption Commission to obtain consent of the DPP before charging a person with an offence. It was the view of the learned judge in that matter that the Commission has powers to charge a person with an offence without obtaining consent of the DPP.

16. Mr. Kimani further submitted that the evidence which was marshalled against the appellants in the charges of bribery was insufficient, inconsistent and contradictory. That the appellants were accused of receiving bribes from motorists on or about the June 9, 2017. That not a single motorist was called to testify against the appellants. That the witnesses who testified for the prosecution could not state from which pockets of the appellants the money was recovered from. That there is contradictory evidence on whether the appellants were on the same side of the road or on different sides when they were arrested. That there is contradictory evidence on whether they were put on the same room when they were searched at the EACC offices.

17. Counsel submitted that the trial magistrate misdirected himself that the case was dependent wholly on circumstantial evidence when it was indeed both direct and circumstantial evidence. That the trial court ignored the aspect on direct evidence which was in favour of the appellants thus arriving at an erroneous finding of guilt on the part of the appellants. That the officer who prepared the surveillance reports, John Wainaina Muturi PW9, denied seeing any of the appellants receiving money from motorists. That he only stated that there was contact between the drivers and the appellants. That the evidence of the witness only showed that there was strong suspicion that the appellants were receiving what he suspected to be money from motorists. That it is trite law that suspicion no matter how strong cannot be a basis for founding a conviction in a criminal case as was stated by the Court of Appeal in Sawe v Republic (2003) KLR 364.

18. It was submitted that the person who captured the video clips produced in court by PW9 did not testify in court. That the camera which was used to do so was also not produced. That the certificate by PW9 touching on the wellness of the video camera had no probative value as he was not the right person to prepare the same. That the said witness said that he retired in 2018. That his gazette notice of appointment of 2001 was extinguished by dint of his retirement hence his certificate of 25/7/2017 was made by a person not known in law.

19. Counsel for the appellant faulted the trial court for considering extraneous issues that were not canvassed by the prosecution or the defence. That the magistrate interpreted the refusal by the appellants to sign the inventory to be that it is because they are police officers and they knew the implication of so signing. That no such theory was advanced either by the defence or the prosecution. Counsel cited the case of Okethis Okale & Others v Republic(1965) EA 555 where the Court of Appeal held that a trial court should not advance a theory not advanced by the prosecution or the defence as this is an extraneous matter -see also John Kahuri Karumu v Republic, Nyeri HCCRA No 112 of 2013.

20. It was further submitted that there was no explanation given on the failure to call the witnesses who allegedly gave out the money and the person who took the video clips. The defence submitted that failure to do so may lead to adverse inference that such evidence would not have been unfavourable to the prosecution – see Bukenya v Uganda1971(EA) 549. Counsel urged the court to set aside the conviction and the sentence.

21. The Principal Prosecution Counsel on her part submitted that the surveillance report of PW9 only showed police officers picking something from motorists and putting it in their pockets. That it also showed police officers picking something from the vehicle door handles and placing it in their pockets. However, that the report only showed contact between the drivers and the police officers and does not show what is being exchanged. That PW9 could not say with certainty that what was being exchanged was money. That the charges against the appellants were based on suspicion that they were receiving bribes from motorists but mere suspicion cannot establish guilt against an accused person. That the evidence adduced by the prosecution was not sufficient to prove the case against the appellants beyond reasonable doubt. The prosecution thus conceded to the appeal on the conviction and the sentence.

Analysis and determination - 22. This being a first appeal, the duty of the court is to look at the evidence presented before the lower court so as to determine whether the appellants were properly convicted. The court is required to subject the evidence as a whole to a fresh and exhaustive examination and make its own findings and draw conclusions but making allowance for the fact that it did not have the advantage of seeing and hearing the witnesses testify– see Okeno v Republic (1972) EA 32. In Kiilu & Another Vs Republic(2005) IKLR 174 the Court Appeal stated that: -An appellant in 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 in the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusionsIt is not the function of a first appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”

23. I have considered the grounds of appeal, the evidence adduced before the lower court and the submissions by the respective advocates for the parties. The issues for determination are:1. Whether non-compliance with section 35(1) of the ACECAwas fatal to the case.2. Whether the certificate on electronic evidence was properly produced in court.3. Whether the money was recovered from the appellants.4. Whether the charges against the appellants were proved beyond reasonable doubt.

Non-compliance with section 35(1) of ACECA- 24. Section 35 of the ACECAprovides that:1. ” Following an investigation the Commission shall report to the Director of Public Prosecutions on the results of the investigation.2. The Commission’s report shall include any recommendation the Commission may have that a person be prosecuted for corruption or economic crime.”

25. Section 36 of the Actrequires the Commission to make quarterly reports to the Director of Public Prosecutions. The section provides that:

36. Quarterly reports(1)The Commission shall prepare quarterly reports setting out the number of reports made to the Director of Public Prosecutions under section 35 and such other statistical information relating to those reports as the Commission considers appropriate.(2)A quarterly report shall indicate if a recommendation of the Commission to prosecute a person for corruption or economic crime was not accepted.(3)The Commission shall give a copy of each quarterly report to the Attorney-General.(4)The Attorney-General shall lay a copy of each quarterly report before the National Assembly.(5)The Commission shall cause each quarterly report to be published in the Gazette.

26. From the record of the trial court, the appellants were charged and prosecuted by the office of the DPP. The officers of the EACC only appeared in court as witnesses. What then would be the necessity of the office of the DPP giving consent to the EACC when it is not the EACC which was prosecuting the case? The office of the DPP is an independent institution and in accordance with Article 157 of the Constitutiondoes not require the consent of any other person or authority to institute charges against any person. Besides that, there is no express provision in section 35 of the ACECA that consent was required from the DPP for the appellants to be charged with the offence. The fact that the DPP prosecuted the appellants meant that they had sanctioned their trial. I therefore do not agree with the submissions by the advocate for the appellants that the commission was required to obtain consent of the DPP before charging the appellants with the offences as they are not the ones who charged them in the first place.

Whether electronic evidence properly produced ­­– 27. It was the evidence of PW9 that he was in charge of the surveillance team of EACC. That he was a trained photographic officer and under notice No 5853 of 2001. That the surveillance herein was conducted between 25th and April 28, 2017 and between 6th and June 9, 2017. That it was recorded by use of a video camera by undercover agents in his presence. The appellants were recorded receiving benefits from motorists. However, that on the June 9, 2017 it is only the 1st appellant who was captured receiving benefits from motorists. Thereafter he, PW9, processed the photographs using a computer. He prepared a certificate under section 106 B (4) of the Evidence act to the effect that he had tested the serviceability of the digital video camera serial No 1365928 that did the recording. That he later downloaded the video clips using a computer serial No 2CE 0510QBK and stored them in a compact disc. That during the shooting of the video clips and downloading of the same to the compact disc the digital camera and the computer used were in good working condition. PW9 produced the said certificate in court as exhibit, Pexh.24.

28. Mr. Kimani submitted that the certificate was of no probative value since it was not made by the officer who recorded the video clips and the camera which was used in doing so was not produced in court.Section 106 B (4) of the Evidence Act that deals with admissibility of electronic records provides as follows:“In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following—(a)identifying the electronic record containing the statement and describing the manner in which it was produced;(b)giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;(c)dealing with any matters to which conditions mentioned in subsection (2) relate; and(d)purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate), shall be evidence of any matter stated in the certificate and for the purpose of this subsection it shall be sufficient for a matter to be stated to be the best of the knowledge of the person stating it.”

29. This section has to be read together with Section 106 B (1) which provides that:“Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as “computer output”) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible.”

30. In George Gabriel Kiguru & another v Republic [2022] eKLR, the court cited the case of MNN vs ENK (2017) eKLR where it was held that:“The provisions of Section 106B have been tested in a number of cases, the case classicus appears to be Republic v Barisa Wayu Matuguda [2011] eKLR where a compact disc (CD) was made from CCTV footage, and the court said:The decision in Republic v Barisa Wayu Matuguda has been followed in several matters at the High Court. I shall cite only two of them. In William Odhiambo Oduol v Independent Electoral & Boundaries Commission & 2 others (2013) eKLR, the issue was admissibility of a video recording done on a Nokia phone, which was then taken to Nairobi and the video recording was then developed to CD. The court noted that the video was recorded, saved in the internal memory of the phone, the phone was connected to a computer using a micro-USB data cable, the file was copied to an empty hard disk, an empty CD was then inserted into the computer CD write RAM, the video file was then written on the CD or VCD using a CD writing application. It was emphasized that it was important to trace the devices for audit purposes. It was held that the certificate has to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, whichever was appropriate. In Nonny Gathoni Njenga & anor v Catherine Masitsa & anor (2014) eKLR, the court found that DVDs sought to be relied on were not accompanied by a certificate as required by the Evidence Act. Then there is R v Robson & Harris (1972) 1 WLR 651, where the issue was the admissibility of tape recordings of alleged conversations between the defendants and a prosecution witness. It was held that in considering the question of admissibility the court was required to satisfy itself that what the prosecution alleged to be original tapes were shown, prima facie, to be original by evidence which defined and described the production and the history of the recording upto the moment of production in court.

31. In the instant case, PW9 stated in his certificate that he is the one who checked that the camera which was used in the recording of the video clips was in good working condition. He described how the production was done and gave the serial number of the computer that was used to download the video. He gave evidence that the undercover agents who did the recording were working under him. That he was present when the recording of June 9, 2017 was done. The certificate therefore met the provisions of section 106B of the Evidence Act. The evidence on the video recording was properly produced in court.

Whether the appellants were found with the money - 32. The appellants were charged with receiving bribes from motorists on the June 9, 2017. The officer in charge of the surveillance team PW9 stated in his evidence that the 2nd appellant was not captured receiving bribes on that day. He said that it is the 1st appellant who was captured doing so on that day.

33. The trial court watched video clips taken on June 9, 2017 where the 1st appellant was said to have been captured receiving benefits from motorists. According to the remarks of the trial court, the 1st appellant was seen picking something stuck on the driver`s door lock handle but that it was not clear what the thing was. At other times he was seen shaking hands with the drivers of the motor vehicles but it was not clearly visible whether any benefit had exchanged hands.

34. PW9 produced video-graphs of June 9, 2017 where the 1st appellant was purported to have been captured receiving money from motorists. However, the video-graphs are not clear on whether what was being received was money. PW9 in his evidence in court stated that he suspected that what was being received was money. He was therefore not sure if the appellant had received money from motorists. There was no evidence that the appellants were captured in a video clip receiving bribes from motorists on the June 9, 2017.

35. The trial court convicted the appellants on the basis that they were found with currency notes in small denominations of Ksh 50/= and Ksh 100/=. The appellants denied that they were found with any such money. They said that they were in the same room when they were searched and that there was no money recovered from any of them. They refused to sign the inventories that were prepared.

36. The police officers who testified in the case gave contradictory evidence on whether the appellants were in the same room when they were searched. Some said that the appellants were in the same room when they were searched while others said that they were in separate rooms. Joseph Wachira PW1 said that the two were searched in the same room in his presence though he did not sign the inventory. Samuel Mukundi PW4 stated that the two were searched in the boardroogm of the EACCC offices and that he is the one who prepared the inventory of recoveries for both of them.

37. Erick Mageta Machogu PW2 stated that the two of them were searched in different rooms and that he only witnessed the search on the 2nd appellant for whom he signed the inventory.

38. Philip Mati Meja PW6 similarly stated that the appellants were searched in different rooms and that he witnessed the search on the 1st appellant and he signed his inventory. He however admitted in cross-examination that he also signed the inventory for the 2nd appellant but said that he could not recall whether he witnessed the search on the 2nd appellant.

39. Alex Nyakundi PW7 also stated that the two were searched in different rooms and that he only witnessed the search on the 1st appellant. That he signed the inventory for the 1st appellant. Asked in cross-examination why he also signed the inventory of the 2nd appellant he said that that must have been done by mistake. He insisted that he did not witness the search on the 2nd appellant.

40. Hilary Chepkwony PW8 on his part stated that the 1st appellant was searched in the EACC`s interview room while the 2nd appellant was searched in the boardroom. That he is the one who searched the 1st appellant and made the recoveries. He signed the inventory that was prepared by Samuel Mukundi. He did not witness the 2nd appellant being searched.

41. Alfred Kinoti PW11 stated that the appellants were searched in different rooms. That he searched the 2nd appellant and made the recovery. He signed his inventory.

42. The manner of treating contradictions in a case was stated by the Court of Appeal in Erick Onyango Ondeng’ v. Republic [2014] eKLR where the court cited with approval the Ugandan case of Twahangane AlfredvsUganda , Cr Appeal No 139 of 2001( 2003) UG CA,6 where the court held that:With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.

43. In Philip Nzaka Watu v. Republic [2016] eKLR the Court of Appeal stated that:“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.

44. In the instant case it is not clear why the prosecution witnesses should differ on whether the appellants were in the same room when they were searcher or whether they were in different rooms. Some of the witnesses signed the inventory for both appellants while it was their evidence that they did not witness both searches. The investigating officer himself, Alfred Kinoti PW11, stated that he only searched the 2nd appellant and he did not witness the 1st appellant being searched yet he signed the inventory for the 1st appellant. There is no explanation why he should have signed the inventory for the 1st appellant when he did not witness his search. Philip Meja PW6 and Alex Nyakundi PW7 stated that they did not witness the search on the 2nd appellant. They could not explain why they signed his inventory when they did not witness the search.

45. Samuel Mukundi PW4 was categorical that the two appellants were searched in the same room and he prepared the inventories for both of them. Joseph Wachira PW1 supported the evidence that the two were searched in the same room. Upon my examination of all this evidence it is my conclusion that the prosecution witnesses were not credible on where the search was conducted and whether they witnessed the search. The contradictions can only create doubt into the mind of the court whether the appellants were found with the money. In Ndungu Kimanyi v Republic (1979) KLR 282 the Court of Appeal held that:“The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unrealiable witness which makes it unsafe to accept his evidence.”The contradictions in the evidence for the prosecution witnesses could only invite a conclusion that they were not reliable.

46. The other material evidence was on the recovery of the money. The trial magistrate found that the money was recovered from the appellants. The question then is whether the court was correct in so finding.

47. The prosecution evidence was that the 1stappellant was searched by Hillary Chepkwony PW8 who found Ksh 2,900/= in the pockets of his police reflective jacket. The money and the jacket were produced in court as exhibits. The evidence also indicated that the 2nd appellant was searched by Alfred Kinoti PW11 who found Ksh 1,100/= in the pockets of his police reflective jacket. The money and the jacket were produced in court as exhibits. In both cases an inventory of the recovered items was prepared. The same were produced in court as exhibits. The evidence on the recovery was supported by the other witnesses who took part in the operation apart from the surveillance officer PW9 who never mentioned whether he was present during the search.

48. Whereas all the officers who witnessed the search stated in their evidence in court that the money was found in the pockets of police reflective jackets of the appellants, they all admitted in cross-examination that none of them mentioned in their self-recorded statements as to where the money was found. The inventories were also silent on where the money was found. I find it baffling how it was a coincidence that all the 6 officers who testified on the recovery would fail to mention in their self-recorded statements that the money was found in the police reflective jackets of the appellants.

49. It is also strange that the surveillance officer PW9 was quick at recording the appellants purportedly receiving bribes from motorists yet he could not record the police search on them. This would have been the best evidence in the recovery yet the investigating officer PW11 did not ask PW9 to record the search. This creates doubt on whether the appellants were found with the money. In my view there was no sufficient evidence to prove that the appellants were found with the money as alleged by prosecution witnesses. The trial court erred in finding that the appellants were found with the money.

50. Counsel for the appellants faulted the trial court for basing the conviction on circumstantial evidence and ignoring the direct evidence of the witnesses. None of the prosecution witnesses who testified saw the appellants receiving money from motorists on the June 9, 2017. The surveillance officer PW9 stated in his evidence that he only suspected that the appellants were receiving money from motorists.

51. The trial court reasoned that the appellants ran away when they were confronted by the EACC officers. That this proved guilt on their part. Further that they were found with money in small denomination notes of Ksh 50/= and 100/= yet they were not in the business of carrying out any trade on the roads that they were manning such that they would be expected to have loose money for purposes of giving change. That all this was sufficient circumstantial evidence that that the money was collected from motorists as bribes.

52. The trial court relied on the case of Musili Tulo v Republic Cr App No 30 of 2013, where the Court of appeal set the test for circumstantial evidence as follows:(i)The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;(ii)Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;(iii)The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

53. A further principle was set out in Musoke v Republic (1958) EA 715 that:It is also necessary before drawing the inference of accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.See also Mwangi & Another v Republic (2004) eKLR.

54. In the case against the appellants, there was no cogent evidence that they were seen receiving money from motorists nor was there sufficient evidence that they were found with the alleged money. They were only being suspected of receiving bribes from motorists. It is settled law that suspicion however strong cannot form the basis of a conviction against an accused person – see Sawe v Republic(2003) KLR 364. Ofcourse the fact that the appellants ran way when confronted by officers from EACC created suspicion of wrong doing. However, the fact of the appellants running away by itself could not have proved the offence without evidence that they were found with the money. The circumstantial evidence against the appellants was therefore not firmly established. The trial court erred in finding that the circumstantial evidence was sufficient to prove the charge of receiving bribes.

55. From the foregoing analysis it is my finding that the charges of receiving bribes against the appellants in counts 1 and 3 were not proved beyond reasonable doubt.

The charge of assault against the 2nd appellant – 56. The 2nd appellant was charged in the alternative to count 4 that he assaulted a person acting under the Anti-Corruption and Economic Crimes Act, 2003contrary to section 66(1)(a) as read with section 66(2) of the said act. The particulars of the offence are that on or about the June 9, 2017nat about 7:30 am along Nyeri- Othaya road in the county of Nyeri without lawful excuse assaulted Samuel Mukundi Njiru, an officer of the EACC acting as such under the Anti-Corruption and Economic Crimes Act, 2003.

57. The evidence for Samuel Mukundi is that he pursued the 2nd appellant after he took to his heels. That when he caught up with him, he got hold of him but he became violent and bite him on the palm of the right hand. He let him go and he ran along a rough road towards a village. He ran after him once more and got hold of him. The appellant picked a hardcore and hit him with it on the right side oft the head and on the knee. He bit him again on the back of the middle finger of the left hand. The other officers arrived and found him struggling with him on the ground. He left the appellant to them as he was in pain. The appellant was overpowered and taken to the EACC Offices. After they were searched he went and reported the incident at Nyeri Police Station. He went for treatment at Outspan Hospital. He was issued with a P3 form. It was completed by Dr Nderitu then of Nyeri County Referral Hospital on 17/7/2017. He found that the complainant had been treated at Outspan Hospital and found with bruises on the scalp, throat and abdomen; human bite and bruises on the hands. The doctor classified the degree of injury as harm. He produced the P3 form as exhibit, Pexh 17.

58. The trial court found that the alternative charge of assaulting a person acting under the Anti- Corruption and Economic CrimesActwas proved beyond reasonable doubt. However, there was no sufficient medical evidence to proof the injuries sustained by the complainant. The P3 form was completed by Dr Nderitu of Nyeri County Referral Hospital while the complainant was treated at Outspan Hospital. The treatment notes from Outspan Hospital were not produced in court. Nobody from that hospital testified in the case so as to identify the treatment notes as emanating from their hospital. It is therefore not known the kind of documents Dr relied on to complete the P3 form and whether they were actually from Outspan Hospital. In the absence of the treatment notes the evidence of Dr Nderitu was no more than hearsay. In the premises the charge of assault was not proved beyond reasonable doubt.

59. The prosecution conceded to the appeal. I find that the appellants were wrongly convicted of the charges. The appeal is merited and is allowed. The convictions entered against the appellants are accordingly quashed, the sentences imposed on them set aside and they are set at liberty forthwith. Any fines that the appellants may have paid are ordered to be refunded to them.

SIGNED THIS 14TH SEPTEMBER, 2022By:J. N. NJAGIJUDGEDELIVERED, DATED AND SIGNED AT NYERI THIS 19TH DAY OF OCTOBER, 2022. By:HON. JUSTICE M. MUYAJUDGEIn the presence of:Njuguna Kimani: for AppellantsMwangi: for RespondentAppellants: PresentRespondent: presentCourt Assistant: Kinyua