Peter Mung’ara Mwaura v Republic [2017] KEHC 2283 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ANTI-CORRUPTION & ECONOMIC CRIMES DIVISION

CR. APPEAL NO. 12 OF 2017

PETER MUNG’ARA MWAURA ..........................................APPLICANT

VERSUS

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

(Being an appeal against the decision (both conviction and sentence) contained in the judgment of Hon. F. KOMBO (Principal Magistrate) in the Chief Magistrates’ Court – Anti Corruption Court at Milimani Criminal Case No. 2 of 2011 delivered on 12th May 2017)

J U D G M E N T

Introduction:

1. Peter Mung’ara Mwaura the Appellant herein was charged with 10 Counts before the Chief Magistrate’s Anti-Corruption Court, Nairobi under the Anti-Corruption and Economic Crimes Act and the Penal Code.

2. The matter proceeded to trial and the Appellant was acquitted of the offences in Count 4, 5, 6, 7, 8, 9 and 10which were underSection 349of thePenal Code.  He was also acquitted of the offence in Count 11 which was under Section 47A(3)of theAnti-Corruption and Economic Crimes Act. The Appellant was, however, convicted of the offence in Count 1 and Count 2 and sentenced to twelve (12) months imprisonment on each count to run concurrently. The Counts were as follows:

Count 1:Deceiving a principal contrary to Section 41(2) as read with Section 48 of the Anti-Corruption and Economic Crimes Act No. 3 of 2003. Particulars were that on or around the 29th day of June 2009 at the Ministry of Education Headquarter, Jogoo House in Nairobi within Nairobi Province, being an employee of the Ministry of Education as an Acting Senior Assistant Director of Education, to the detriment of the said Ministry of Education, knowingly used false payment schedules in support of Surrender Payment Voucher No. 011207 to the said Ministry of Education, to account for imprest of a sum of Kshs. 1,370,000/= issued to him as imprest vide warrant number 0403795 for purposes of training School Infrastructure Committees between 19th May 2009 and 17th June 2009.

Count 2:False accounting by a public officer contrary to Section 331(2) of the Penal Code. Particulars were that on or around the 29th day of June 2009 at the Ministry of Education Headquarters, Jogoo House in Nairobi within Nairobi province, being an Acting Senior Assistant Director of Education, and a person charged with the management of public revenue to wit Kshs. 1,370,000/= money intended to cater for a workshop for  school infrastructure committees for primary schools in Central and Nairobi provinces, knowingly furnished a false return of money received by him for that purpose for the period 19th May 2009 to 27th June 2009 vide Surrender Payment Voucher No. 011207.

Grounds of Appeal:

3. The Appellant  has filed this appeal against both conviction and sentence in Count 1 and 2 above on grounds that the Learned Magistrate erred in law and in fact:

a. In convicting the Appellant of deceiving principal (Ministry of Education) contrary to Section 41(2) as read together with Section 48 of the Anti-Corruption and Economic Crimes Act in Count 1 and False accounting by a Public Officer contrary to Section 331(2) of  Penal Code in Count 2 without any evidence that the said Ministry of Education made, or had any complaint against the Appellant, or any evidence at all that the said Ministry of Education (or any other person suffered any detriment, loss, damage or injury at all).

b. In convicting the Appellant against the weight of evidence and instead based the conviction of the Appellant (in both counts), on matters that did not arise in evidence, or submissions against well established and trite law that in criminal trials a conviction can only be based on the weight of actual evidence adduced and never on the Judge/Magistrates own theories not canvassed in evidence or submission by counsels.

c. In convicting the Appellant on charges that were fatally defective and could not therefore be a basis for conviction of the Appellant.

d. In convicting the Appellant on charges whose basic ingredient is forgery (which must be proved) despite that he cleared the Appellant and the co-accused in ACC2/11 of all forgery allegations.

e. In convicting the Appellant in count 1 an offence under the Anti- Corruption and Economic Crimes Act without compliance (by the Prosecution) with the mandatory provisions of Sections 36 and 37 of the said Act, requiring consent to prosecute from the Director of Public Prosecutions, absence of which renders the trial a nullity.

f. By failing to and/or refusing to consider that the trial violated the Appellant’s fundamental rights under Article 50 of the Constitution of Kenya 2010 to have the trial commenced and concluded without unreasonable delay.

g. In the manner of analysis of evidence thus drawing wrong inferences and making wrong findings.

h. By accepting the evidence by the prosecution witnesses without giving sufficient reasons and failing to consider the Appellant’s evidence.

i. In convicting the Appellant on evidence taken by a Predecessor without complying with the mandatory provisions of Section 200 of the Criminal Procedure Code Chapter 75 of the Laws of Kenya.

j. By shifting the burden of proof to the Appellant against the Law which except in specified cases places the burden of proof on the Prosecution.

k. In convicting the Appellant without proof of mens rea and in failing to address his mind to whether there was any evidence establishing that the Appellant had a corrupt or guilty mind whereas, no conviction ought to arise without proof of a guilty mind (malice aforethought).

l. By failing to comply with mandatory provisions of Section 169(1) of the Criminal Procedure Code which required him to set out in the judgment the points for determination, the decision thereof and the reasons for the decision and Section 169(2) which mandatorily requires that the offence be specified and Section of the Law on which one is convicted in the judgment.

m. In failing to weigh the credibility of prosecution witnesses and thereby causing and allowing unmerited evidence to form the basis of the conviction.

n. By demonstrating open bias against the Appellant and which prejudiced the Appellant’s case with the result that he convicted him without just cause.

o. In convicting the Appellant on uncorroborated, insufficient and contradictory evidence without warning himself of the dangers inherent in doing so.

p. In going out of his way to support the Prosecutions failure and refusal to call available material witnesses and without just cause and basing the resultant conviction on the Law of Averages and “Sampling” which have no application in a criminal trial.

q. In convicting the Appellant without evidence of any loss or quantifying how much was lost, if any at all.

r.  By handing a sentence that was manifestly excessive in the circumstances of the case.

Submissions for the Appellant:

4. It was the Appellants submission that there was no difference between the set of facts, events and circumstances forming the alleged offences yet the Penal Codeat Section 2(f)  clearly states that:

“if a person does an act which is punishable under the Code and is also punishable under another written law………… he shall not be punished for that act both under that written law and also under this Code”

Thus by convicting the Appellant in Count 1 and 2, the trial Magistrate is said to have failed to take into consideration the defect in the Charge Sheet. The defect was such that it rendered a nullity and infringed on the Appellants constitutional right to a fair trial.

5. Secondly, the Appellant argued that there was a total disconnect between the charge and the particulars of the offence. That whereas the charge read as deceiving principal contrary to Section 41(2)as read withSection 48of theAnti-Corruption and Economic Crimes Act, the particulars thereunder did not say anything about “deceiving a principal”, or even mention the words deceiving principal. The Appellant was thus left in the dark as to the specific identity of the principal, referred to.

6. The Appellant argued that the defect in the charge was such that evidence tendered in support of the charges was at variance with the particulars of the charges. Whereas in the charge it is alleged that the Appellant was an employee of the Ministry of Education, evidence by the Human Resource officer Fredrick Onyango Adeka (PW 48) produced a copy of the Appellants letter of employment revealing that he was employed by the Public Service Commission.  It was not ascertained who the Appellants principal was and none was called to answer the description.

7. The Appellant took issue with the charge in Count 2 which spoke of public revenue and not imprest. It was his argument that imprest which is paid out to an employee is expenditure and therefore the learned magistrate erred in law and fact by finding that they are one and the same.

8. The Appellant raised issue with regard to the charge sheet, which specified the complainant as the Republic of Kenya through the Anti-Corruption Commission, whereas the charge itself is signed by the officer in charge at Kilimani Police Station. Section 7(1)(a) and (b), Section 35(1), 36 and 37of the Anti-Corruption and Economic Crimes Act clearly set out the procedure to be followed in investigating and prosecuting a charge and offence under the Act. Upon receiving a complaint, the EACC is enjoined to investigate and compile findings which are submitted to the DPP who then authorizes prosecutions. Without such authority from the DPP, any resultant prosecution is null and void, (See -Nicholas Muriuki Kangangi V Republic Criminal Appeal No. 331of 2010)it is the Appellants submission that no such evidence was exhibited in the Appellants trial in the lower court. No authority to prosecute from the DPP was exhibited.

9. On the evidence, the Appellant submitted that the prosecution deliberately failed to place evidence before the court to establish one of the most crucial and must prove ingredients of the charges in both Count 1 and 2 on which the Appellant was convicted and sentenced by the lower court, which is the element of “detriment.” The amount mentioned of Kshs. 1,370,000 was the value of the imprest and not what was allegedly lost. The prosecution failed to indicate the amount lost, or would have been lost. The contents of the audit conducted were not made known to the court. The learned Magistrate failed and or refused to take this into consideration contrary to the decision in Bukenya V Uganda (1972) EA 549.

10. The Appellant submitted that the prosecution withheld crucial evidence from the court and which the Appellant could use in his defence. PW6 John Mureithi Mbogo an accountant at the Ministry of Education examined the Surrender Voucher used to surrender Kshs. 1,370,000 imprest to the Appellant and indicated that it was in order and cleared it.  He examined supporting documents but was surprised to note that the receipts against which payments were made though presented to him and examined, were not presented to the lower court as exhibits.  Payment to the participants were made against receipts produced, or written at site and the figures in the receipts agreed with what was reflected in the payment schedules.

11. The Appellant argued that the element of the principal and the person who actually complained is unknown. The permanent secretary who was admittedly the Accounting officer of the Ministry of Education was not called as a witness, neither was his representative.  Leah Rotich who was called denied any wrongdoing on the Appellants part, or having made any complaint.  The Appellant relied on the case of Sew Singh Mandia V Republic 1966 E.A 315, wherein it was held that in criminal law, in corruption charges, intention or relevant motive must be proved.

12. The Appellant’s submission also urged the court to examine the proceedings and note that the trial Magistrate failed to consider the Appellant for the lowest punitive sentence permitted by law for the offence, notwithstanding the admission that he was a first offender, was of poor health had heavy family obligations and had national duty. The Trial Magistrate failed to consider the Appellant for a non-custodial sentence or a fine. The Appellant urged the court to allow the Appeal and order both his conviction and sentence to be quashed and set aside.

Submissions for the Respondent:

13. The Respondent urged were that the prosecution proved its case to the required standard in law and the ingredients of the offences prescribed were established in the two counts.  The Respondent stated that the Appellant was charged with an economic crime arising from public funds which came to him through the Ministry of Education he being an employee of the public, working under the Ministry of Education. The amount given to him as imprest came from public funds.

14. On who the Complainant herein was  the Respondent relied on the case of Republic v Pattni [2005] 1 KLR 301 in which it was stated that:

“The term complainant indicated the prosecution and the person so described in the charge. It is clear from Section 26(3) of the constitution ….”

The Respondent also relied on the case of Republic v Mwaura [1979] KLR 209in whichCortran J,quoting the court of Appeal in Tanzania, acquiesced that the word complainant includes the public prosecutor.

15. It was the Respondent’s case thatArticle 157 of the Constitution of Kenya gives power to the DPP to institute and undertake criminal proceedings against any person, before any court other than a court martial, in respect of any offence alleged to have been committed. The DPP also has power to take over and continue criminal proceedings commenced in any court other than a court martial that have been instituted or undertaken by another person or authority with the authority of the person or authority.

16. The Respondent contended that the issue of a defective charge sheet, was raised by the trial magistrate who pointed out that the offence did not lie in subsection 2 as cited in the charge sheet. The irregularity was however not considered fatal since from the onset, the Appellant knew that the charge facing him was one of corruption under the Anti-Corruption And Economic Crimes Act. Its particulars were clearly spelled out which included the date of the offence, the place of the offence, the act constituting the offence and the name of the Ministry which was affected by the act of the appellant.

17. On the issue of proof of mens rea, the Respondent argued that the appellant was an imprest holder which he was given and was supposed to account for the money that was public property. He failed to do so and falsely accounted for it. The mens rea for committing the offence had therefore been established.

18. On the issue of compliance with Section 169(2)of theCriminal Procedure Code, the Responded cited the case of Baland Singh V R Criminal Appeal No. 483 indicates that:

“failure to comply with the provisions of section 169, aforesaid, is an irregularity, even though no certificate has been granted that the case is fit for appeal on grounds of fact or mixed fact and law such irregularity will entitle and indeed oblige the Court of Appeal to examine the facts of the case with a view of determining whether there has been a failure of justice.”

19. The Respondent submitted that the sentence imposed upon the Appellant was within the law and was not harsh in any way, since he misappropriated public funds for his own benefit and should pay for that which he did wrong.  That the Appellant was rightly convicted of the two counts, since he surrendered false documents in support of the money he had been given us imprest thus falsely accounting for it.  The Respondent maintains that the findings of the trial court were based on sound and cogent evidence and urged the court to dismiss the appeal and uphold the conviction.

Analysis and determination:

20. The Appellant has filed this appeal against both conviction and sentence in Counts 1 and 2 above  based on eighteen (18) grounds.  This is a first appeal and therefore, I am under duty to evaluate the evidence placed before the trial court and arrive at my own conclusions in that regard, bearing in mind that I did not have the opportunity to see or hear the witnesses as they testified and give allowance therefor.  (Okeno -vs- Republic [1972] E.A. 32).

21. The first ground of this appeal argues that the Learned Magistrate erred in law and fact in convicting the Appellant of deceiving principal (Ministry of Education) without any evidence that the said Ministry of Education made, or had any complaint against the Appellant, or any evidence at all that the said Ministry of Education (or any other person suffered any detriment, loss, damage or injury at all).

22. In his testimony in the trial court, the Appellant indicated that the witnesses called from the Ministry all confirmed that he owed nothing to the Ministry and that Mr. Haya the Chief Accountant, approved the Surrender Voucher because he was satisfied with it, while the Voucher Examiner (PW6) passed the Surrender after examination because everything tallied.

23. He pointed out that neither the Permanent Secretary, nor the auditor from the Ministry, nor the Ministry Audit Report were availed in Court. He asserted that the Document Examiner had not linked him with any of the writings in the Payment Schedule and he denied ever doing anything to deceive his principal.

24. The evidence on record indicates that PW1 Ms. Leah Rotich then (Director of Basic Education), PW2 George Oyaro Haya (Chief Accountant) and PW3 Patrick Kinyua Njagi (then Deputy Finance Officer) in their testimonies revealed that no complaint had been raised within the Ministry regarding the imprest in question. The Appellant submitted a Surrender Voucher No. 011207 which indicated that the Kshs. 1,307,000/= was spent. PW10 cleared the Appellant’s name from the imprest which marked the end of the surrender process which had gone through the normal channels of approval and examination.

25. On the other hand, it was the investigator’s testimony (PW 49) that an allegation had been made against the Appellant that he had misappropriated Kshs. 1,370,000/= which was issued to him on imprest for a school infrastructure committee facilitation workshop. Investigations revealed that the Transport Schedule, Lunch Allowance Schedule and the Facilitation Schedules had been tampered with by adding to the values reflected, either the figure ‘1’ or ‘x2’, thereby inflating the amounts by Kshs. 1,000 or doubling the actual amount.

26. Indeed it is the state who is the complainant herein. See Republic v Pattni (2005) 1 KLR 310, wherein the court defined a complainant as follows:

“The term complainant indicated the prosecution as well as persons so described in the particulars of the charge. It is clear from section 26(3) of the Constitution that the state, through the Attorney General, is or can become the complainant in every criminal proceeding.”

27. As expressed in grounds 13, 14, 15 and 16 of the Appeal, the appellant argued that the trial court erred in law and in fact in failing to weigh the credibility of prosecution witnesses and thereby causing and allowing unmerited evidence to form the basis of the conviction. That the trial court convicted the Appellant on uncorroborated, insufficient and contradictory evidence and in so doing, demonstrated open bias against the Appellant thereby prejudicing his case. The Appellant also argues in grounds 2 and 4 that the trial court erred in law and in fact in convicting the Appellant on charges, whose basic ingredient is forgery, which must be proved against the weight of evidence, and instead based the conviction on matters that did not arise in evidence or submissions.

28. I have reviewed the evidence adduced by the prosecution, which included a total of 49 witnesses who testified for the State in support of the charges. The Investigator (PW49) told the trial Court that according to the budget, 390 participants were scheduled to attend the workshop; however a total of 504 participants attended. He interviewed 137 participants and recorded statements from 132 of them, out of which 43 witnesses who were all participants in the subject workshops testified in the trial.

29.  It was the evidence of several witnesses during the trial that the amount of money they received was not the same amount reflected against their particulars in the payment schedules herein (Pros Exh 11,11A, 12, 15, 20, 21, 22 and 23). A summary of  some of the  pertinent witness testimonies was that:

a. PW 13 Stephen Mbachia Muchiri received Kshs. 600 being transport reimbursement contrary to the Kshs. 1,600 reflected in the Schedule and that the Appellant herein personally handled his payment.

b.PW 17 Jane Wanjiru Waithera received Kshs. 860/= being reimbursement for transport and Kshs. 200 Lunch allowance, contrary to the Kshs. 1,860 and Kshs. 400 (200x2) reflected in the Payment Schedule.

c.PW 21 Peter Girau Chege to received Kshs. 1,200 as transport reimbursement as reflected in the payment schedule.  He denied receiving the Kshs. 200x2 reflected on the schedule as lunch allowance.

d. PW 27 Charles Kinuthia received only Ksh.800 contrary to the kshs. 1,800 reflected in the payment schedule. It was his testimony that he was paid directly by the Appellant herein.

e. PW 28 and PW 29 both denied receipt of the amounts reflected in the Payment Schedule and indicated that it is the Appellant herein who had written down the amounts in the schedule.  On cross examination however both witnesses revealed that they were not quite sure who had written the payment details.

f. PW 30 James Kibaka Mwaniki received Kshs. 380 contrary to the Kshs. 1,380 reflected in the Schedule.

g. PW 37 Susan Mirigo Nderitu received Kshs. 280/= contrary to the Kshs. 1,280 reflected against her details in the Schedule. It was her testimony that one Alice Ndirangu whose name she had put down on the List of Participants was indicated to be the recipient of Kshs. 1,400 according to the payment Schedule, despite the fact that she had not attended the workshop.

30. There is no rule governing the number of witnesses that the prosecution ought to call to give evidence.  The prosecution has the discretion to call such number of witnesses as it thinks shall support its case.  See Section 143of the Evidence Act which provides that:- “No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for he proof of any fact.”

31. I am therefore inclined towards the sentiments of the Trial magistrate, who indicated that in a case of this nature, it would only take the sound evidence of one witness to affect the validity of the accounting process for imprest No. 0403795. The prosecution was under no obligation to call more witnesses than would be necessary to prove its case and whether or not a fact in issue is proved, is not dependent on the number of witnesses called to prove it.

32. Grounds 8 and 14 of the Appeal argue that the Learned Magistrate erred in law and in fact by accepting the evidence of the prosecution witnesses without giving sufficient reasons and failing to consider the Appellants evidence thereby demonstrating open bias against the Appellant. I have considered the evidence of the Appellant, who gave sworn testimony in the trial court, and did not call any witnesses. It was the Appellants testimony that he was employed by the Ministry of Education as a Senior Assistant Director of Education. One of his duties was to conduct the workshops in question.

33. The Appellant organized the workshops for the period from 26th May 2009 to 26th June 2009 at Kamwenja TTC and was in charge of the imprest for the workshop. He stated that travel reimbursements were made to participants on production of receipt.    Participants were also paid for lunches and facilitators were paid allowances. Payment schedules were used for the payments. The particulars in the schedules were the participants’ own names, district of origin, TSC Number, amount and signatures. The participants were paid after signing the schedule.

34.  The Appellant denied that he personally made any payments. He said he was assisted by facilitators and his secretary. He acknowledged that he surrendered the imprest to the Surrender Voucher section.  The Voucher goes through five stages upon its surrender, one of which is examination. In this case the Voucher went through internal audit and his name was removed from the Imprest Register.

35. Ground 11 of the Appeal reads that the Learned Magistrate erred in law and in fact by convicting the Appellant without proof of mens rea and in failing to address his mind to whether there was any evidence establishing that the Appellant had a corrupt or guilty mind. The evidence adduced at trial reveals that the Appellant herein made payments directly to participants. It was the testimony of PW 13, 14, 16, 24, 27, 34 and 39 that the Appellant herein personally made their payments.

36. Having considered the evidence on record, submissions by Counsel, authorities annexed thereto, I have arrived at the conclusion that this ground lacks merit. The evidence adduced in the trial reveals that there were discrepancies in payments such that some amounts were inflated by adding the number “1” in front of the money value, or adding “x2” at the end of the money value to imply it had been paid twice. This position has been advanced by several witnesses and supported by the documents produced as exhibits. The implication is that the participants who attended the Kamwenja TTC workshop were paid less than what was reflected in the schedules. Under cross examination the Appellant acknowledged that he had an obligation to ensure that what he presented to the Ministry was accurate.  The participants indicated the amounts paid on the schedule and that it was his responsibility to ensure that correct payments were made and also reflected in the Schedule.

37. On the issue of non-compliance with Section 200 of the Criminal Procedure Code, as argued in ground 9 of the Appeal, the record shows that the hearing of the matter began on 6th January, 2011 when plea was taken by the appellant. The hearing proceeded before SPM Nyambura (as she then was) until she was transferred after 41 witnesses had testified.  SPM Mulekyo took over and Section 200 was complied with as evidenced in the proceedings. The matter proceeded until 2015 when the magistrate was also transferred after 46 witnessed had already testified. The matter proceeded before PM Kombo from where it had reached and a judgment was delivered, which judgment is the subject of this appeal.

38. The decision in appeal case no290 of 2010 Joseph Kamau Gichuki v Republicto which the Respondent referred this court reads:

“this court has previously held that section 200 of the CPC 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 borne in mind before invoking section 200 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 the witnesses, the time that had lapsed since the commencement of the trial and prejudice likely to be suffered by either the prosecution or the accused.”

39. Section 200 Criminal Procedure Code reads as follows:

“(1) Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may—

(a) deliver a judgment that has been written and signed but not delivered by his predecessor; or

(b) where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or re-summon the witnesses and recommence the trial.

(2) Where a magistrate who has delivered judgment in a case but has not passed sentence, ceases to exercise jurisdiction therein and is succeeded by a magistrate who has and exercises that jurisdiction, the succeeding magistrate may pass sentence or make any order that he could have made if he had delivered judgment.

(3) 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.

(4) 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.”

I do not therefore discern any prejudice which was suffered by the party in the instant case in reference toSection 200 Criminal Procedure Code.

40. Counsel for the Appellant argued that no money has been shown by the state to have been lost in view of the absence of an audit report to show that the Ministry of Education lost money. These sentiments are expressed in the grounds of this Appeal under ground 17.  I find in respect of Counts 1 and 2 as did the trial court that the Appellant surrendered false documents in support of the expenditure against Imprest Warrant No. 0403795. That the amounts reflected were manipulated such that there was inflation.

41. At the same time, evidence put forth by the prosecution reveals that some of the payments reflected therein were not in fact payments made for the purpose indicated. Several witnesses have identified the Appellant as having personally made some of the impugned payments and thus the Appellant cannot feign lack of knowledge that the amounts were fictitious. It was the evidence of the Appellant at the trial that it was his duty as an imprest holder to render an accurate surrender, which he did not do.

42. On the meaning of “principal” Section 38 of the ACECA  provides the meaning of “principal” is a person, whether in the public or private sector, who employs an agent or for whom, or on whose behalf an agent acts. In this case, the accused person acted for the Ministry of Education.

43. Among the questions interpreted in Nicholas Muruki Kangangi v AG C. Appeal No 331 of 2010,was one regarding Section 35(1)of the Economic Crimes Act. On Second Appeal the Court of Appeal interpreted Section 35(1)(2)of the Act as hereunder:

“What clearly emerges from these provisions is that KACC must report its investigations to the Attorney-General and in the report it may recommend the prosecution of a person for corruption or economic crime.   The Attorney-General may, in turn, either accept or reject the recommendation to prosecute and the only check on the power of the Attorney-General to accept or reject KACC’s recommendation to prosecute lies in the National Assembly.   Where the Attorney General rejects the recommendation to prosecute his report to the National Assembly:-

“shall set out succinctly the reasons for not accepting the recommendation.”

44. The Court of Appeal terminated the proceedings in the Magistrate’s Court but with a direction that there was nothing to bar the prosecution from restraining the said charges if they complied with the provisions of the Act.

45. Section 35(1) and (2) require EACC to make and submit a report of its investigations to the Director of Public Prosecutions with recommendation as to whether the suspect should or should not be prosecuted for corruption or an economic crime.  There is no evidence that this provision of the law which is mandatory was ever complied with. I find that the grounds of appeal as raised by the Appellant on conviction under Count 1 succeed.

46. On the issue of sentences as expressed in ground 18, the Appellant complained that they were manifestly excessive.  The Appellant’s submission also urged the court to examine the proceedings and note that the trial court failed to consider the Appellant for the lowest punitive sentence permitted by law for the offence, notwithstanding the admission that he was a first offender, was of poor health had heavy family obligations and had national duty. The trial court failed to consider the Appellant for a non-custodial sentence or a fine. The Appellant urged the court to allow the Appeal and order both his conviction and sentence to be quashed and set aside.

47. Section 331 of the Penal Code false accounting by a public officer states that:

“331 (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.”

48. Section 41(2) of the Anti-Corruption and Economic Crimes Act No. 3 of 2003 as read with Section 48 thereof provides that:

“41(2) An agent who, to the detriment of his principal, uses, or gives to his principal, a document that he knows contains anything that is false or misleading in any material respect is guilty of an offence.

Section 48(1) A person convicted of an offence under this Part shall be liable to —

(a) a fine not exceeding one million shillings, or to imprisonment for a term not exceeding ten years, or to both”

49. Lastly, the Appellant argues in grounds 6, 7 and 10 of the appeal that the trial court erred in law and in fact by failing and/or refusing to consider that the trial violated the Appellants fundamental rights under Article 50of the Constitution of Kenya, 2010 to have the trial commenced and concluded without unreasonable delay. The Appellant argues that the trial court erred in law and in fact by shifting the burden of proof to the Appellant against the law and from his analysis drew the wrong inferences and made wrong findings.

50. It is my considered view that sufficient evidence of whatever nature requires to be placed before the court and it suffices if, in the opinion of court, the evidence is sufficient to establish beyond reasonable doubt that an offence took place and that there is a direct connection of the offence to the accused.  In the case before the trial court the learned magistrate was satisfied based on the evidence adduced, that the prosecution had proved their case beyond reasonable doubt.

51. Having considered all the evidence afresh, I find that the grounds of appeal as raised by the Appellant on conviction under Count 1 and sentence have merit.  First, for being duplicitous in view of the fact that it is the same set of circumstances for which the Appellant was convicted in Count 2 and secondly, for noncompliance with Section 35 ACECA.  I therefore quash the conviction and the sentence under Count 1 and set it aside.

52. The grounds of appeal as raised on conviction and sentence under Count 2 are found to lack merit.  I therefore dismiss the appeal on count 2 and confirm both the Conviction and sentence therein.

It is so ordered.

DATED, SEALEDandDELIVEREDatNAIROBIthis3rd day of November, 2017.

………………………………….

L. A. ACHODE

JUDGE