Peninah Kimuyu v Republic [2014] KECA 470 (KLR)

INTHE COURT  OF APPEAL

AT NAIROBI

(CORAM: KIHARA KARIUKI P.C.A, KIAGE &GATEMBU JJA)

CRIMINAL APPEAL NO. 106 OF 2012

BETWEEN

PENINAH KIMUYU............................................….APPELLANT

AND

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

(An appeal from the sentence  of the High Court of Kenya at Nairobi  (Achode. J) dated  22nd February,  2012 in

HCCRA NO. 341 OF 2010)

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JUDGMENT OF THE COURT

The appellant appeals to this  Court against the  judgment of the  High  Court    (L.  A. Achode  J.)  delivered on  22nd  February 2012  by which the  learned judge upheld the appellant’s conviction and  sentence by  the  subordinate (Anti-corruption) court on a charge of receiving a benefit contrary to Section 39(3) (a)as read  with 48(1)if the  Anti-corruptionand Economic Crime Act;  No. 3of 2003.   Her  conviction and sentence on two  counts of soliciting a benefit contrary to the same  provisions were  quashed and set  aside  by  the  learned judge.

The particulars of the  confirmed charge were  that;

“On the  19thday   of  October 2016,  at  Rose Avenue  in  Kilimani  Area   within  Nairobi Province, being a person employed by a public body, to with Kenya Police  Force  as  a  Police Corporal, [the appellant] corruptly received a benefit of KSh.4,000 from  Michael Mwangi Nganga as an inducement to hasten the forwarding of an inquiry file  that she was investigating to the Officer Commanding Kilimani Police  Station, a matter in  which  the public  body  is concerned.”

The appellant was arrested in a ‘sting’operation by officers of   the Kenya Anti-Corruption Commission  (KACC) on   the allegation that she  had demanded and  received the sum  of KShs.4,000 from  Michael   Mwangi Nganga (PW1). There  is  a dispute in the  narrative of PW1 and  that of the appellant in her defense as to  how  the  KSh.4,000, which the  officers recovered from a laden  paper bag  the  appellate had,  came  to be  in  the paper bag. Whereas PW1 stated she  gave   the  money to  the appellant who  placed it in  the  bag,  it was  her  contention, that she  had  placed the  paper bag  to the side  while she bought a scratch- card  at a shop  and  that she  was  shocked to  hear  the KACC investigator asking about money.  She then  saw PW1 point at the  bag.   She was convinced that PW1 must have  placed the money in the  bag  while she spoke  to the shopkeeper.  The said money had  been  treated by  the  anti-corruption officers and  the powder was  found on  the  palms of the  appellant’s right hand. The  possibility of its being there due  to a handshake with PW1 or contact with the  paper bag was admitted by the  investigating officer PC Kailu (PW7) in cross-examination.

As we have  already stated, the  learned Judge found the charge of receiving proved and  affirmed the  appellant’s conviction.   The  conviction on  the  offences of soliciting which were   directly  connected to  the  receiving, were  quashed with the  learned Judge having found as follows;

“Ihave   perused  the  transcript  produced inevidenceand  found that the only  connection between the appellant and  the offences of solicitation in  count 1  and  2  in  the question from    PW1:    ‘Do   you    know    the   days    are moving?’ and  the appellant’s response, ‘Yes, the days  are  moving and  you  are  the answer’. There  is  no  evidence  elsewhere  in  the transcript to show  that the appellant solicited KSh.5,000 or  KShs. 4,000  from  PW1.   PW1 himself  confirmed  this  on  cross-examination and   the  learned trial  magistrate also   made the  observation in  her   analysis  of  the evidence.   After   the   careful   analysis   the evidenceon  record I find  that Count  1  and  2 were not proved against the appellant beyond reasonable doubt.”

This finding brings into  sharp  relief the  point of law  that we are  called upon  to determine and  which finds  expression in the appellant’s memorandum of appeal in various formulations: can a  person  be  convicted  of  an  offence  of  receiving  a  benefit contrary to  Section 39(3)  (c) of the  Actif  gets  acquitted of soliciting that very  benefit?  Put another way,  can one  be guilty of receiving if he did not solicit under the  provision?

In  addressing this  issue  before us,  Mr.  Wandugi, the appellant’s learned counsel cited to us two  decisions of the  High Court  as purely indicative of the  manner in  which other judges of that  Court  have   dealt with  the   issue. In  the   first,  PAULKIPCHUMBA KIYAI –VS- REPUBLIC [2013]e  KLR,  Ongudi J. answered the  question in the negative, stating, inter  alia;

“The chargewas  that he  corruptly RECEIVEDand  not that he RECEIVED. It was  for  the prosecution to prove that the money found on the appellant was corruptly received.  Having been found not guilty of corruptly soliciting it was pointless convicting him for corruptly receiving. It was  misdirection by  the learned Magistrate”.

The same  Judge decided PATRICK MUNGUTI NUNGA –VS- REPUBIC [2013]e  KLRwhere, in  similar circumstances,  she held  as follows;

“Did  the  appellant  demandfor   this  money?

The reason  why   the  1sttape  recordingwasdone  was  to establish if  indeed the Appellant had  demanded for  a benefit.  Though PW1  and the officer said  there had  been a demand, the court found that there was  no  such  demand. What then was  the basis  of the 3rdcount?Did the  appellant  receive what  he  had   not demanded for?    If so, why  was  PW1  bribing him? …

The appellant having been acquitted of the offence  of  corruptly  soliciting  for   a  benefit, then  the   offence  of   corruptly  receiving  a benefit could   not stand.   My  finding is  that since  the prosecution failed to establish that indeed the appellant had  made a demand for a  benefit meant that a  charge of  receiving a benefit could  not stand.”

Learned counsel also  cited this  Court’s decision in  ESTHER THEURI WARUIRU & ANOTHER –VS- REPUBLIC  CriminalAppeal No.48of 2008(unreported) for the same proposition. Having perused that  judgment,  we  take   the   view   that  even though the  appeal was allowed on the  basis  that the  appellant’s prosecution was  null  and void for being mounted by  the  anti- corruption Commission absent the  mandatory report to  the Attorney - General under Section35of the  Act,  it did  raise  the very questions we are addressing in this  appeal.  Said the  Court;

“A  pointwas   made  by  Mr.  Monda, PrincipalState Counsel,which  we  thought was  quite important.  The appellants, as stated earlier, faced two counts, the first one  of  soliciting a bribe;  and   the  second   of  receiving  a  bribe. They  were acquitted of the first one  but were convicted of  the  second.    Evidence was adduced that  there was  a  demand, although the trial court appears not to have   accepted it.   If indeed there was a receipt of a bribe, was it received with out a demand? If I thas been offered without being demanded, could the appellants be charged alone without  the person or persons who offered it?   There are certain matters about the appellants’ prosecution which needed to be looked at by the     Attorney-General’s office before the prosecution was undertaken.  We do not know whether the Attorney General would have undertaken the prosecution or what steps he would  have   taken  in  the  matter  had   report been made to him  pursuant to Section 35(1)of the Anti-Corruption and   Economic  Crimes Act.Perhaps the charges would have been appropriately framed to obviate an acquittal.” (our emphasis)

It seems quite clear to us that Section 39(3)of the  Actdoes  not at all  create an  offence of strict liability.   There is no deeming of criminal culpability from the mere fact of receipt of a benefit, itself an often contentious issue as the facts of this  case show.   It cannot have  been  the  intention of Parliament and  it be surmised from a plain  reading of the  provision, that once  it is shown  that an  accused person had  some  money on  him,  then he must have  been  bribed. Were  that the  case,  nothing would be  easier   than  for sums  of money to be  conveniently placed within the  possession and  control of persons who  never demanded, solicited or  knew  about it and  thereby secure  their automatic conviction on charges of receiving bribes.

The  conduct proscribed by  Section 39(3) (a)is simple to discern from the  provision itself:

“a)A person is guilty of an offence if the person…

b) corruptly receives or solicits or corruptly agrees to receive   or   solicit a benefit to which  this section applies.”

(ouremphasis)

The receipt must be corrupt to be criminal.  It is upon the  prosecution to  establish every element of the  offence and for this  particular one it must be shown that where a person did receive a benefit, he did so corruptly. That is why  the  element of bribery has to be established and  the  way  to go about it, where a person is  charged with  both   a solicitation and  receipt in  a single transaction must be  by  a  demonstration that what was received had  been  solicited or demanded and  then  given as an inducement for the doing or  not doing of something in  relation to the  affairs of the  accused person’s Principal, in this case  the Kenya  Police.  It must follow that if  that essential connection is not made, (or  it is merely alleged but not proved) between the receipt  and   a  prior demand  or   solicitation,  the   element  of corruption in the  receipt remains unfulfilled and  so there cannot be  a valid conviction entered.  The situation would be different of  course, where  the   receiving  is  not  tied   to the   charge  of solicitation  which  care   other  evidence  of  corruption  in the receiving would suffice.

Being of that view, we find  that Mr. Monda  the  learned Senior Principal Prosecution Counsel was.correct  inconceding  the appeal, which we accordingly allowed.  The conviction of the appellant is quashed and the  sentence set aside.

Dated and delivered at Nairobi this  11th day of July 2014.

P. KIHARAKARIUKI

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PRESIDENT, JUDGE OF APPEAL

P. O.KIAGE

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JUDGE OF APPEAL

S. GATEMBUKAIRU

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JUDGE OF APPEAL

I certify that thisis a true copy  of the original.

DEPUTY REGISTRAR