Issue No. (i) Whether the prosecution proved the Charge in Count 1 beyond reasonable doubt
18.This being a first appeal, this court is expected to analyze and evaluate all the evidence adduced before the lower court afresh so as to draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses. (See the case of Okeno vs Republic  EA 32, Pandya -vs- Republic  EA 336 and Kiilu & Another vs. Republic 1 KLR 174.)
19.On whether the Charge in Count 1 was proved beyond reasonable doubt, the prosecution called a total of 93 witnesses and due to the sheer number of witnesses, this court will only highlight the evidence of the key witnesses.
20.PW 1, an Accountant II at the Ministry of Education Jogoo House, testified that the Appellant applied for an imprest of Kshs.2, 936,000/= through imprest warrant number 0403685 dated May 18, 2009 (EXBP.1) The witnesses stated that the impest had initially been taken by PW4-Andrew Limo but the same was surrendered and thereafter given to the Appellant. PW2, an Accountant II with the same ministry also confirmed that the Appellant applied for the imprest of the sum stated and that it was him (PW2) who committed the imprest in the vote book on May 20, 2009. PW3 an Accounts Assistant whose work was to ensure payment vouchers were recorded in the financial system confirmed that PW4 Andrew Limo who had initially been given the money surrendered the same through a miscellaneous receipt which was produced as PExh 2.
21.PW4, a Principal Accountant in the Ministry and the head of the accounts unit, testified that the Appellant applied for the imprest of Kshs 2,936,000/= and that she endorsed the payment on the May 22, 2009. It was her evidence that the money the Appellant applied for was to be used to carry out a capacity building workshop in the South Rift region. PW6 also an Accountant II within the Ministry, produced the voucher and documents used to surrender the imprest (EXB P 6). She stated that the field officer's payment schedule attached to the voucher showed that the Appellant was the paying officer. PW7, the Dean of Students at the Rift Valley Institute of Science & Technology told the Court that whereas there were four workshops hosted at the institute no participants were hosted in the institute during the dates indicated in the transport reimbursement schedules produced as EXB P 8 (a) – (j) while PW11, an Assistant Director at the office of the Provincial Director of Education, stated that he was not aware of the training that was conducted at the Rift Valley Institute of Science and Technology with respect to Exhibit 8(a) – (j). On his part PW13, a Chief Accountant at the Ministry, testified that the Appellant surrendered the imprest through the payment voucher produced as EXB P.6.
22.The investigating Officer’s (PW 92) testimony was that the Appellant took the imprest and the same was approved by one Concelia Ondieki; that the document examiner formed the opinion that the signature on the imprest belonged to the Appellant; that the Appellant received the sum of Kshs 2,936,000/ from Jogoo House on May 22, 2009; that there was no training that took place at the Rift Valley Institute of Science & Technology as indicated in the schedules marked as prosecution exhibit number 8(a) to (j) and that prosecution witnesses 14 to 87 disowned the signatures appearing against the payment schedules for transport reimbursement. Further that those were the documents that were used by the Appellant to surrender the imprest.
23.When the court put the Appellant on his defence he conceded that at the material time he was the Chief Quality Assurance Officer at the Ministry of Education. He however vehemently denied that he was involved in any training in Nakuru and stated that on the material dates he was facilitating a training at the Nyeri Technical Training Institute and hence he could not have been in Nakuru. He contended that the training in Nyeri started on May 20, 2009 and ended in mid-June 2009. He was emphatic that he did not go to Nakuru during that period and contended that apart from Nyeri the only other place he went to was Nanyuki. He produced a certified copy of the Nyeri TTI visitor’s book to prove that he was there on May 20, 2009. He contended that he only learnt of the training in Nakuru when he was questioned about it by officers of the Ethics and Anti-Corruption Commission. He disputed that he received any money in relation to a training in Nakuru or that he signed any imprest for the same. He stated that the documents show that the money was paid to Andrew Limo on May 15, 2009 and contended that it could not have been returned by May 18, 2009 in order for it to be given to him on May 20, 2009. He denied that he went to the Ministry of Education Headquarters. He explained how an imprest is issued and surrendered.
24.In support of his alibi, the Appellant called two witnesses: Linah Ayaoko (DW2) who testified that it was she who incited the Appellant to facilitate the workshop at the Nyeri TTI and that they were together throughout the workshop from May to June. She however admitted that the imprest warrant for the Nakuru Workshop bore the name of the Appellant.
25.Susan Waruri Ngure (DW3) stated that at the time she was the District Education Officer – Laikipia District; that she knew the Appellant as he worked under her and that she is the one who released him to go for the training in Nyeri after he was identified as one of the officers. She stated that she preferred for him to go to Nyeri instead of Nakuru because he was also in-charge of the Kenya National Examination Council examinations in the District and he needed to be close to the office. She contended that she was sure he was in Nyeri because of the schedules he signed as a trainer.
26.I have carefully evaluated the evidence adduced by both sides. The prosecution adduced evidence that on May 22, 2009 the Appellant received the sum of Kshs 2,936,000/= as imprest to conduct a training which was to take place in Nakuru in the month of May 2009. The imprest had initially been issued to Andrew Limo (PW12) but he refunded it whereupon it was issued to the Appellant. Andrew Limo (PW12) explained that he refunded the money because he was uncomfortable with conducting the training and when he explained that to his superior, one Concelia Ondieki, she instructed him to return the money. He testified that because he had received the money in cash on a friday and had left it in her office he only waited until Monday to return it. PW1, PW2, PW3 and PW5 who were all accountants at the Ministry of Education confirmed that Andrew Limo (PW12) surrendered the imprest and that it was then issued to the Appellant after he applied for it. It was their evidence that the Appellant signed the imprest form and that he also signed that he had received the money. PW3 confirmed that the money was paid to the Appellant who signed for it. Elias Kimani (PW5) testified that he is the one who in fact paid the money to the Appellant. PW5 explained that although he paid the money to the Appellant on May 22, 2009 the paid stamp read September 18, 2005 probably because the stamp was not adjusted to show the correct date an explanation which I find plausible. The evidence of PW1 and PW3 was corroborated by that of Cornelius Makutwa Sai (PW2) who testified that he met the Appellant when he (the Appellant) went to the Ministry of Education to apply for the imprest. He even stated that the Appellant was stationed at Laikipia at the time. The evidence of PW1, PW3 and PW5 was further corroborated by that of John Lokolol (PW92) a forensics investigator at the Ethics and Anti-Corruption Commission. This witness was cross examined at length by Counsel for the Appellant but he remained steadfast that the Appellant received the imprest sum of Kshs 2,936,000.
27.Further evidence was adduced that the training for which the imprest was taken never took place. The prosecution called a considerable number of witnesses and their evidence was that they did not attend the workshop during the period in issue. One of them (PW20) testified that he indeed attended a workshop at the rift Valley Institute but that was between 24th – May 26, 2009 and that he was paid Kshs 500/- only but not the 2000/= he is alleged to have been paid in the impugned schedules. There is therefore proof beyond reasonable doubt that the documents that were used to surrender the imprest were all a sham as there were no participants as alleged and no trainings took place at all.
28.The Appellant mounted an alibi that he could not have been at the Nakuru Training Institute because throughout the period in issue he was in a training in Nyeri. He even called two witnesses and produced a Nyeri TTI visitor’s book which he signed on May 22, 2009 to signify that he was there. I have considered the alibi but I am not satisfied that the same did anything to weaken the prosecution’s case which is that no training took place in Nakuru at the time in issue. Yes, there was evidence of other trainings at the venue and indeed some witnesses verified that they took part in those. However, there was no training at all in respect of the imprest that was issued to the Appellant. No training took place and the people who it is alleged participated and were paid were called as witnesses and they all emphatically stated they did not attend such a training and that they were not paid. Even the service providers like the Hotel Waterbuck through their representatives were emphatic that they did not provide any services during the period in issue and that they were not paid. PW7 the Dean of the Rift Valley Technical Institute confirmed that the purported training did not take place. There was therefore proof beyond 'a shadow of doubt' that the documents that were used to surrender the imprest, to wit, the schedules of participants and the receipts were all falsified. This is an offence that could have been committed anywhere and it is immaterial that the Appellant was in Nyeri but not in Nakuru. It was proved beyond reasonable doubt that the handwriting on the false documents matched that of the Appellant. His alibi cannot therefore stand.
29.Section 41(2) of the Anti-Corruption & Economic Crimes Act states:-
30.Section 38 (1) of the Anti-corruption and Economic Crimes Act defines an agent as a person who, is in any capacity, whether in the public or private sector is employed by or acts for or on behalf of another person. For all intents and purposes therefore the Appellant was an agent of the Permanent Secretary Ministry of Education. By surrendering the imprest using falsified documents knowing very well that no training had taken place he acted to the detriment of his principal thereby committing the offence charged in count 1. In the premises I find that the charge against him was proved beyond reasonable doubt and that his appeal against conviction has no merit.