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Case Class: Criminal


Republic V FM Alias M [2016] eKLR

Case Number: Criminal Case 38 of 2013 Date Delivered: 19 May 2016

Judge: Stella Ngali Mutuku

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v FM alias M

Citation: Republic V FM Alias M [2016] eKLR

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Muia Mutinda V Republic [2016] eKLR

Case Number: Criminal Appeal 6 of 2015 Date Delivered: 19 May 2016

Judge: Lilian Nabwire Mutende

Court: High Court at Kitui

Parties: Muia Mutinda v Republic

Citation: Muia Mutinda V Republic [2016] eKLR

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Evans Wamalwa Simiyu V Republic [2016] eKLR

Case Number: Criminal Appeal 118 of 2013 Date Delivered: 19 May 2016

Judge: Erastus Mwaniki Githinji, Martha Karambu Koome, Hannah Magondi Okwengu

Court: Court of Appeal at Nairobi

Parties: Evans Wamalwa Simiyu v Republic

Citation: Evans Wamalwa Simiyu V Republic [2016] eKLR

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Richard Gathecha Kinyaru & Another V Republic [2016] eKLR

Case Number: Criminal Appeal 82 of 2013 Date Delivered: 19 May 2016

Judge: Erastus Mwaniki Githinji, Martha Karambu Koome, Hannah Magondi Okwengu

Court: Court of Appeal at Nairobi

Parties: Richard Gathecha Kinyaru & John Thendu Ndichu v Republic

Citation: Richard Gathecha Kinyaru & Another V Republic [2016] eKLR

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John Victor Oburu V Republic [2016] eKLR

Case Number: Criminal Revision 91 of 2016 Date Delivered: 19 May 2016

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: John Victor Oburu v Republic

Citation: John Victor Oburu V Republic [2016] eKLR

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Laban Nyoike Mwangi V Republic [2016] eKLR

Case Number: Miscellaneous Criminal Application 280 of 2015 Date Delivered: 19 May 2016

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Laban Nyoike Mwangi v Republic

Citation: Laban Nyoike Mwangi V Republic [2016] eKLR

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Republic V Paul Mutwiri Munene [2016] eKLR

Case Number: Criminal Case 55 of 2015 Date Delivered: 19 May 2016

Judge: Roseline Pauline Vunoro Wendoh

Court: High Court at Meru

Parties: Republic v Paul Mutwiri Munene

Citation: Republic V Paul Mutwiri Munene [2016] eKLR

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Chrispine Ochieng Owoko & 2 Others V Republic [2016] eKLR

Case Number: Criminal Case 19 of 2015 Date Delivered: 19 May 2016

Judge: James Aaron Makau

Court: High Court at Siaya

Parties: Chrispine Ochieng Owoko, Raphael Muganda Masawa Alias Ruf & Kelvin Odhiambo Ogoha v Republic

Citation: Chrispine Ochieng Owoko & 2 Others V Republic [2016] eKLR

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Republic V Benjamin Kithinji, Benard Mutura & Another [2016] eKLR

Case Number: Criminal Case 63 of 2015 Date Delivered: 19 May 2016

Judge: Roseline Pauline Vunoro Wendoh

Court: High Court at Meru

Parties: Republic v Benjamin Kithinji, Benard Mutura & Cosmas Kirimi

Citation: Republic V Benjamin Kithinji, Benard Mutura & Another [2016] eKLR

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Republic V Isaiah Mbaabu Baithana [2016] eKLR

Case Number: Criminal Case 39 of 2012 Date Delivered: 19 May 2016

Judge: Roseline Pauline Vunoro Wendoh

Court: High Court at Meru

Parties: Republic v Isaiah Mbaabu Baithana

Citation: Republic V Isaiah Mbaabu Baithana [2016] eKLR

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P O O V Republic [2016] eKLR

Case Number: Criminal Appeal 142 of 2015 Date Delivered: 19 May 2016

Judge: Grace Wangui Ngenye

Court: High Court at Nairobi (Milimani Law Courts)

Parties: P O O v Republic

Citation: P O O V Republic [2016] eKLR

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N I V Republic [2016] eKLR

Case Number: Misc Criminal Application 46 of 2016 Date Delivered: 19 May 2016

Judge: Margaret Njoki Mwangi

Court: High Court at Kakamega

Parties: N I v Republic

Citation: N I V Republic [2016] eKLR

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Alfonce Kyalo Nzaza V Republic [2016] eKLR

Case Number: Criminal Appeal 55 & 64 of 2015 (Consolidated) Date Delivered: 19 May 2016

Judge: Bwonwong'a Justus Momanyi

Court: High Court at Embu

Parties: Alfonce Kyalo Nzaza v Republic

Citation: Alfonce Kyalo Nzaza V Republic [2016] eKLR

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Rebecca Mwikali Nabutola & 2 Others V Republic [2016] eKLR

Case Number: Criminal Appeal 232 of 2012 Date Delivered: 19 May 2016

Judge: Grace Wangui Ngenye

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Rebecca Mwikali Nabutola, Duncan Muriuki Kaaguru & Ongong’a Achieng v Republic

Citation: Rebecca Mwikali Nabutola & 2 Others V Republic [2016] eKLR

Whether it was illegal to frame a substantive charge of conspiracy together with substantive charges for specific offences

Rebecca Mwikali Nabutola & 2 Others V Republic

Criminal Appeal No. 232 of 2012

In The High Court of Kenya

At Nairobi

G. W. Ngenye – Macharia J

May 19, 2016.

 

Reported By Njeri Githang’a & Winnie Matiri

 

Criminal law-charges and information-joinder of counts- Joinder of two or more accused in one charge -whether the charge sheet was defective for mis-joinder and duplicity- whether it was illegal to frame a substantive charge of conspiracy together with substantive charges for specific offences Criminal Procedure Code, section 135 & section 136

 

Criminal Law-offences- offence of conspiracy - what was required in order to proof an offence of conspiracy to defraud-whether an offence of conspiracy could stand against one person - circumstances where it was it was undesirable to join a count of conspiracy with counts for substantive offences

 

 

Brief Facts

The Appellants filed an appeal from the conviction and sentence in the Chief Magistrate Court. The 1st Appellant contended that the court did not comply with sections 199, 211 and 200(3) of the Criminal Procedure Code and did not record the demeanor of the prosecution witnesses. He cited the charges as bad for duplicity, and that the Court failed to address the issue of joinder of the accused persons in her judgment. He further contended that the evidence adduced did not prove the case beyond a reasonable doubt.

The 2nd Appellant contended that the trial court shifted the burden of proof and erred in holding that the Appellant ought to explain how the money was spent. The 2nd Appellant also faulted the Court’s failure to consider the capacity in which he was charged, which amounted to a fatal error which rendered the charge sheet and entire proceedings null and void. He also faulted the Court for applying the wrong facts on the charges.

The 3rd Appellant argued that the prosecution evidence was contradictory and that the evidence was not sufficient to support a conviction, thus the prosecution had not proved its case beyond reasonable doubt. He further stated that the trial Court relied on inadmissible evidence and that the findings were not based on actual evidence. The sentence imposed was manifestly excessive and wrong in law.

 

Issues

  1. Whether the charge sheet was defective for mis-joinder and duplicity.
  2. What was required in order to proof an offence of conspiracy to defraud?
  3. Whether an offence of conspiracy could stand against one person.
  4. Whether it was illegal to frame a substantive charge of conspiracy together with substantive charges for specific offences.

 

Held

  1. Section 200(3) of the Criminal Procedure Code required that where a succeeding magistrate commenced the hearing of proceedings and part of the evidence had been recorded by his predecessor, the accused person could demand that any witness be resummoned and reheard and the succeeding magistrate should inform the accused person of that right. The record showed that the Court proceeded to inform the Appellants of their right under section 200(3). The provision was explained to both the Appellants and their respective counsels. Therefore, the trial Court complied with section 200(3) of the Criminal Procedure Code.
  2. Section 199 of the Criminal Procedure Code provided that when a magistrate recorded the evidence of a witness, he should also record such remarks (if any) as he thought material respecting the demeanour of the witness whilst under examination. That provision, as worded, particularly the use of (if any), meant it was not mandatory, and gave the presiding magistrate discretion to record such remarks, if he saw fit, on witnesses’ demeanor. It was well within the law for the succeeding magistrate to proceed on the basis of the recorded evidence even in the absence of remarks as to the demeanor of the witnesses. The 1st Appellant’s argument in that respect failed and that ground of appeal similarly failed.
  3. Section 211 of the Criminal Procedure Code required that where the Court found that a case had been made out against the accused, sufficiently to justify placing the accused on his defence, the Court should again explain the substance of the charge to the accused, and should inform him that he had a right to give evidence on oath from the witness box, and that, if he did so, he would be liable to cross-examination, or to make a statement not on oath from the dock, and should ask him whether he had any witnesses to examine or other evidence to adduce in his defence. The Court should then hear the accused and his witnesses and other evidence (if any). The counsel for the various parties responded appropriately after the explanation and that was a demonstration that the parties understood what was required of them and the ground was consequently dismissed.
  4. Section 134 of the Criminal Procedure Code stipulated that every charge or information should contain, and should be sufficient if it contained, a statement of the specific offence or offences with which the accused person was charged, together with such particulars as could be necessary for giving reasonable information as to the nature of the offence charged.  Injustice would be occasioned where evidence was called relating to many separate counts all contained in one count because the accused could not possibly know what offence exactly he was charged with. In the instant case, the charge sheet had 11 counts of specific offences each with particulars describing the alleged contravention of the law. None of the counts as drafted contained more than one offence and the charges were therefore not bad in law for either duplicity or joinder of counts.
  5. It was not illegal per se to join an alternative charge of conspiracy. Indeed, it was not necessarily illegal to frame a substantive charge of conspiracy together with substantive charges for specific offences. Each case must be considered according to its facts. The following points should be considered;
  1. As a general rule where there was an effective and sufficient charge of a substantive offence, the addition of a charge of conspiracy was undesirable. It was not desirable to include a charge of conspiracy which added nothing to an effective charge of a substantive offence. The conspiracy indeed could merge with the offence.
  2.  To that general rule there were exceptions, as for instance:-
  1. Where it was in the interest of justice to present an overall picture, which a series of relatively small substantive offences could not do; sometimes a charge of conspiracy could be the simpler way of presenting the case.
  2. Where there was clear evidence of conspiracy but little evidence that the conspirators committed any of the overt acts; or where some of the conspirators but not all, committed a few but not all, of the overt acts, a count for conspiracy was justified.
  3. Where charges of substantive offences did not adequately represent the overall criminality disclosed by the evidence, it could be right and proper to include a charge of conspiracy.
  1.  But a count for conspiracy should not be included if the result would be unfair to the defence, and that had always to be weighed with other considerations.
  2.   It could be necessary to try a count for conspiracy separately from substantive counts which were only examples of carrying out the conspiracy.
  3.  Where the evidence disclosed more than one conspiracy, it was undesirable to charge all the conspiracies in one count, but it may not be bad in law as Musinga’s case showed.
  4. Other factors concerned the number and type of conspirators. For instance, the possibility of two being husband and wife, or of two conspirators the possibility that one may be acquitted, might need to be safeguarded.
  1. The question was why or in what circumstances it was undesirable to join a count of conspiracy with counts for substantive offences. The main ground was unfairness to the accused, which was a general consideration. That might arise because the accused might not know with what he was charged with precisely, or might be embarrassed to be obliged to defend in the alternative.
  2. Where an indictment contained substantive counts and a related conspiracy count, the Court required the prosecution to justify the joinder, or failing justification, to elect whether to proceed on the substantive or on the conspiracy counts. A joinder was justified if the Court considered that the interests of justice demanded it. Severance followed from the Court’s inherent powers to see that its process was not abused, in the sense that the Accused was guarded against oppression or prejudice. It was for that purpose that the rule was that the objection must be taken at the earliest opportunity. Therefore, the inclusion of the charges of conspiracy together with substantive offences did not render the charges as drafted defective or undesirable.
  3. Section 23 of the Penal Code recognized offences by corporations in that where an offence was committed by any company or other body corporate, or by any society, association or body of persons, every person charged with, or concerned or acting in, the control or management of the affairs or activities of such company, body corporate, society, association or body of persons should be guilty of that offence and liable to be punished accordingly, unless it was proved by such person that, though no act or omission on his part, he was not aware that the offence was being or was intended or about to be committed, or that he took all reasonable steps to prevent its commission. The charges as drafted were proper, and no question of mis-joinder arose. The question of liability would only be determined upon consideration of evidence, and a further determination on whether the 2nd Appellant borne liability as a director of the company.
  4. In order to proof an offence of conspiracy to defraud, the elements to be proved were the existence of an agreement and the intention to defraud the public. It was not enough that two or more persons pursued the same unlawful object at the same place or in the same place. It was necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It was not, however, necessary that each conspirator had been in communication with every other.
  5. An agreement in a charge of conspiracy could be proved in the usual way or by proving circumstances from which the Court presumed it. Proof of the existence of a conspiracy was generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them. That required that a common purpose between or among the subject parties was proved. Common intention was set out in section 21 of the penal Code where it was stated that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence was committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them was deemed to have committed the offence. In the instant case, there was no evidence of an express agreement among the appellants to defraud from the facts set out. Since it was an offence of conspiracy, it could not stand against one person. The entire charge therefore failed.
  6. Section 45 of the Anti-Corruption and Economic Crimes Act dealt with offences related to the protection of public property and revenue.  Public property was defined as real or personal property, including money, of a public body or under the control of, or consigned or due to, a public body. Section 45(2)(b) provided that an officer or person whose functions concerned the administration, custody, management, receipt or use of any part of the public revenue or public property was guilty of an offence if the person willfully or carelessly failed to comply with any law or applicable procedures and guidelines relating to the procurement, allocation, sale or disposal of property, tendering of contracts, management of funds or incurring of expenditures.
  7. The charge of failure to comply with the law relating to procurement was against the 1st Appellant because she was the accounting officer in the ministry and as such was enjoined to ensure that public funds under her charge were incurred prudently and in accordance with the law and procedures. From the facts, the actions and omissions of the 1st Appellant amounted to careless failure in that regard. Section 3(a) defined an accounting officer as a public entity other than a local authority, the person appointed by the Permanent Secretary to the Treasury as the accounting officer or, if there was no such person, the Chief Executive of the public entity. Section 27 provided that an accounting officer should be responsible for ensuring that the public entity charged under him complied with the regulations and any directions with respect to each of its procurements. The Act also required that a procuring entity should have a procurement plan in line with its budgeting process. That charge was therefore proved.
  8. The offence of abuse of office charged against the 1st Appellant was couched under section 46 of the Anti-Corruption and Economic Crimes Act where a person who used his office to improperly confer a benefit on himself or anyone else was guilty of an offence. Under Section 2 of the Anti-Corruption and Economic Crimes Act a benefit meant any gift, loan, fee, reward, appointment, service, favour, forbearance, promise or other consideration or advantage. The prosecution was under a duty, in proving the offence to show that the Appellant improperly used her public office to confer a benefit.  It was also crucial as part of the ingredients to show the nature of benefit conferred.
  9. The 3rd Appellant was charged with willful failure to comply with the law relating to procurement. Section 26(3)(c) 48 of the Anti-Corruption and Economic Crimes Act  required that all procurement procedures should be handled by different offices in respect of procurement initiation, processing and receipt of goods, works and services. The obvious objective behind that requirement was to among others ensure transparency and accountability in public processes and related expenditure. Section 29(3) of the Public Procurement and Disposal Act, required approval by the tender committee.  Proper procurement procedure was not followed. None of the documentation presented was in relation to the subject matter.
  10. Section 27(1) of the Public Procurement and Disposal Act provided that subject to the Act, all approvals relating to any procedures in procurement should be in writing and properly dated, documented and filed. He ought to have provided a reasonable explanation as the accounting officer of Kenya Tourism Board. As long as public funds were to be expended whether by contribution or otherwise, the expenditure ought to have undergone the requisite procurement procedure. In line with Section 27, of the Public Procurement and Disposal Act, the 3rd appellant being the managing Director bore the responsibility of ensuring the Kenya Tourism Board complied with the procurement laws. The 3rd appellant failed in that respect, and the guilt on Count VI as charged was confirmed. The 3rd Appellant was also charged with fraudulently making payments from public revenues for services not rendered. From the facts, the charges could not stand as the services were subsequently delivered.
  11. The 2nd Appellant and the 4th Accused (Maniago Safaris) were charged with fraudulent acquisition of public property. Section 45(1)(a) of the Anti-Corruption and Economic Crimes Act created the offence of  fraudulent or otherwise unlawful acquisition of public property or a public service or benefit. Fraudulent actions introduced the element of deception purposed at gaining a benefit. From the facts, the charge was not proved to the required standard.

Appeal allowed with respect to counts I, II, V, VII, X and XI. Conviction quashed and sentences set aside.

Decision upheld with regard to the case against the 3rd Appellant in respect of count IV and against the 1st Appellant in respect of Count VII

Cases

East Africa

1. Kinyanjui v Republic [1988] KLR 76 – (Followed)

2. Omboga v Republic [1983] KLR 340 – (Explained)

Statutes

East Africa

1. Anti-Corruption and Economic Crimes Act, 2003(Act No 3 of 2003) sections 42(3); 45 (2) (a) (iii) (b); 46; 47 (a); 48 – (Interpreted)

2.    Criminal Procedure Code sections 199,134,135,136(1); 200(3); 211- (Interpreted)

3.    Penal Code (cap 63) sections 21, 23,317, 327 – (Interpreted)

4.    Public Procurement and Disposal Act, 2005 (Act No 3 of 2005) sections 2, 3 (a); 26(3) (c); 27(1); 29(3); 74(3);75 – (Interpreted)

Tests & Journals

1. Garner,BA., (Ed) (2009)  Black’s Law Dictionary, St Paul Minnesota :West Group Publishers 9th Edn  p 578

2. Richardson,J (Ed) (2010) Archibold’s Criminal Pleadings, Evidence and Practice  London: Sweet & Maxwell  p 3025 , 3026

Advocates

1.  M/s Betty Mwenesi and Mr Were for the 1st Appellant.

 2. FN Njanja for the 2nd Appellant.

 3.  Mr Saende for the 3rd Appellant.

 4.  Mr Warui for the Respondent.

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Republic V Patrick Ngunzu Muteti & 5 Others [2016] eKLR

Case Number: Criminal Case 6 of 2016 Date Delivered: 17 May 2016

Judge: Edward Muthoga Muriithi

Court: High Court at Machakos

Parties: Republic v Patrick Ngunzu Muteti, Franics Kaimi Benard Duncan Maithya Muteti Nicholas Muthiani Musembi Alfonse Kioko Nzioka & Joseph Ndonye Mutua

Citation: Republic V Patrick Ngunzu Muteti & 5 Others [2016] eKLR

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Republic V Deputy Inspector General Of Police & Another Ex-Parte Gitonga Mohammed Stanley [2016] eKLR

Case Number: Miscellaneous Civil Application 59 of 2015 (JR) Date Delivered: 17 May 2016

Judge: Mathew John Anyara Emukule

Court: High Court at Mombasa

Parties: Republic v Deputy Inspector General of Police & OCS Likoni Police Station Ex-Parte Gitonga Mohammed Stanley

Citation: Republic V Deputy Inspector General Of Police & Another Ex-Parte Gitonga Mohammed Stanley [2016] eKLR

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Gilbert Oduori V Republic [2016] eKLR

Case Number: Criminal Appeal 81 of 2013 Date Delivered: 16 May 2016

Judge: Francis Tuiyott

Court: High Court at Busia

Parties: Gilbert Oduori v Republic

Citation: Gilbert Oduori V Republic [2016] eKLR

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Martin Simiyu Mukhakha V Republic [2016] eKLR

Case Number: Criminal Appeal Case 46 of 2015 Date Delivered: 16 May 2016

Judge: Abida Ali-Aroni

Court: High Court at Bungoma

Parties: Martin Simiyu Mukhakha v Republic [2016] eKLR

Citation: Martin Simiyu Mukhakha V Republic [2016] eKLR

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Republic V Amos Gichuhi Kimeria [2016] eKLR

Case Number: Criminal Case 49 of 2012 Date Delivered: 16 May 2016

Judge: Maureen Akinyi Odero

Court: High Court at Nakuru

Parties: Republic v Amos Gichuhi Kimeria

Citation: Republic V Amos Gichuhi Kimeria [2016] eKLR

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Robert Wanjohi Kinyua V Republic [2016] eKLR

Case Number: Criminal Appeal 548 of 2014 Date Delivered: 16 May 2016

Judge: Stephen Nyangau Riechi

Court: High Court at Nyeri

Parties: Robert Wanjohi Kinyua v Republic

Citation: Robert Wanjohi Kinyua V Republic [2016] eKLR

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