1.This is an appeal from the decision of the Senior Principal Magistrate, P. O. Ooko delivered on 28th March, 2023, where the Appellant herein had been charged with two counts of receiving a bribe contrary to Section 6(1)(a) as read with Section 18 of the Bribery Act No. 47 of 2016.
2.The Appellant was acquitted of Count 1 and convicted of Count 2: Receiving A Bribe Contrary To Section 6(1)(a) As Read With Section 18 Of The Bribery Act No. 47 OF 2016.
3.The particulars are that: On 10th December 2020, within Nairobi City County, in the Republic of Kenya, being a person employed by a public body to wit, the Energy and Petroleum Regulatory Authority as Director General, the Appellant requested for a financial advantage of Kshs. 200,000 from Wycliffe Odhiambo Oyoo with intent that, in consequence, he would authorize the unsealing and opening of Nang’inja filling station based at Oyugis within Homabay County.
4.The Appellant filed the Petition of Appeal dated 6/4/2023 and filed on 11/4/2023 against the entire sentence and conviction where he was sentenced to a fine of Kshs. 1,000,000 or 3 years’ imprisonment in default on the charge of receiving a bribe Contrary to Section 18 of the Bribery Act No. 47 of 2016.
The Appellant’s case
5.The appellant has appealed against the conviction on the grounds that the Trial Magistrate erred in law and in fact in;
6.The Appellant prays that the Appeal be allowed and the conviction and sentence recorded against him be quashed and the sentence set aside.
The Appellant’s submissions
7.Learned Counsel for the Appellant, Mr. Mong’eri submitted that the ingredients of the offense of “Receiving a bribe”, there has to be solicitation or offer or receipt of gratification, the gratification must have been asked for, offered or paid as a motive or reward for inducing by corrupt or illegal means, and that someone should confer or ask for a favour to render some service. He relied on the definition provided in the matter of Criminal Appeal No. 12 of 2019 Joseph Charo Dzombo -v- Republic where court stated that:
8.The Appellant submitted that PW7, who was the investigation officer had testified that there was no data from the appellant’s and complainant’s phones to prove communication between them. PW3 had testified that he had used an application from a cyber to communicate with the Appellant but that information was never extracted by PW7 who is a Forensic Analyst and Investigation Officer with the EACC. The audio recording produced before the court did not have the Appellant soliciting for a bribe. Solicitation was thus not proven. He relied on the finding in Patrick Mungutu Nunga v Republic  eKLR Cr. Appeal No. 123/2011 where the court stated that:-
9.The Appellant contends that as per the testimony of PW8, the EACC Officers had asked the Appellant to touch the treated envelope and money before one James Wachira swabbed his hands for APQ chemical which deliberately contaminated his hands. No prior swabs had been done. PW13 also confirmed that the Appellant was asked to touch the envelope with money which was treated before his hands were swabbed. The Appellant’s receipt of the money was also not proven.
10.On the issue of identification of the voice on the recording, the Appellant testified that no witness was called to identify the voice, and the court relied solely on the evidence of the Complainant without it being corroborated. He relied on the finding in ACEC Cr. Appeal No. 19 of 2018, Gideon Makori Abebe -v- Republic where the Court held that:
11.The Appellant submitted that the trial court erred in allowing evidence without compliance with Section 106 B of the Evidence Act.PW7 testified that he did not prepare a certificate under Section 106B (4) of the Evidence Act yet the result was a soft copy, and which also applies to a CD recording. PW13 also confirmed that he did not have a certificate confirming that the gadgets had been tested and were in a good working condition. The Appellant submitted that exhibit 10, lacked a manufacturer’s certificate, procurement documents, and KEB certification. PW13 also failed to prepare an inventory showing that the gadget was handed over to Simba. The testing recording was not produced and neither was the certificate, creating doubt on the credibility of the audio recording relied upon by the prosecution.
12.The Appellant further submitted that for a conviction to stand, the prosecution has to prove guilt of an accused person beyond reasonable doubt. The trial court had thus erred by convicting the Appellant based on the prosecution’s flawed and tainted evidence, having failed to prove solicitation and receipt of the bribe. He relied on the finding in Gideon Makori Abere v Republic (supra) where the court held that:
13.On the issue of excessive sentence, the Appellant submitted that the conviction of a fine of Kshs. 1,000,000 or three year imprisonment was excessive for a charge of Receiving a bribe of Kshs 200,000 considering that the Appellant was a first time offender. The Appellant thus prays that if this court upholds the conviction, it reconsiders the sentence passed against the Appellant and reduce the same to a reasonable sentence in line with the sentencing policy guidelines.
14.The Appellant relied on the following cases:
- Criminal Appeal No. 12 of 2019 Joseph Charo Dzombo -v- Republic.
- Patrick Mungutu Nunga -v Republic (2013) Eklr Cr. Appeal No. 123/2011
- ACEC Cr. Appeal No. 19 of 2018, Gideon Makori Abebe -v- Republic
- Criminal Appeal No. 150 of 2012 Paul Kipchumba Kiyai -v- Republic
- Criminal Case No. 6 of 2008 Republic -v- Barisa Wayu Mataguda
The Respondent’s Submissions
15.The Learned Counsel for the Respondent, Ms. Kaniu, submitted that contrary to the submissions made by the Appellant, he was charged with the Offense of “Receiving a bribe” contrary to Section 6(1)(a) of the Bribery Act No 47 of 2016 and not “Soliciting a benefit” contrary to Section 39 of the Anti-Corruption and Economic Crimes Act, 2003; which position has since been repealed.
16.Section 6(1)(a) of the Bribery Act provides as follows:
17.The respondent explains that the Appellant was convicted of receiving financial advantage from PW3 so as to approve the reopening of a filing station which had been closed for selling adulterated fuel. Section 6(1)(a) of the Bribery Act provides for three distinct an independent offense, which are:a.Requesting a financial or other advantage;b.Agreeing to receive a financial or other advantage; andc.Receiving a financial or other advantage.
18.It is the Respondent’s submission that soliciting does not have to be proved for the offense of receiving a bribe to succeed. It is possible for a person to receive a bribe without soliciting or requesting for it. To prove receipt, the prosecution produced audio-visual recording as well as a transcript of the Appellant receiving the bribe amount in an A4 envelope, which was recovered from his office drawer. The prosecution also demonstrated receipt of the bribe by the Appellant through swabs taken of his hands which confirmed the presence of APQ Powder which had been applied to the Kshs. 200,000 operation money as well as the envelope which contained the bribe money.
19.The Respondent further submitted that the relevant function to be undertaken by the Appellant is enumerated under Section 7(1) of the Bribery Act which provides as follows:
20.The Respondent further submitted that the Appellant was the Director General of the Energy and Petroleum Regulatory Authority (EPRA), a creature of statute, established under Section 9 of the Energy Act, 2019 thus he was a public officer by dint of Article 260 of the Constitution of Kenya, 2010 and Section 7 of the Bribery Act. He proceeded to give approval for the reopening of Nyanginja filling station through P. Exhibit 20, which was corroborated by the evidence of PW3. They thus submit that a wholesome review of the evidence adduced in the lower court was sufficient to prove all the requisite ingredients of the offense of receiving a bribe as captured on Count II of the Charge sheet, and that the conviction was merited.
21.On the issue of contamination of the swab and the APQ results, the Respondent submitted that the allegations that EACC officers asked the Appellant to touch the envelope before taking swabs is misleading and false. The facts proved through the audio-visual footage is that the Appellant came into contact with the envelope prior to the arresting officer entering his office and demanding he retrieve the same from where he had stored it. The Appellant had asked PW3 to hand over the envelope, after which he had proceeded to receive it and place it in his office desk drawer. The envelope was in the Appellant’s possession prior to being requested by the EACC officers to hand it over during the search of his office. The Government analyst report produced as P. EXH. 43 confirmed the presence of APQ on the hands of the Appellant. The Respondent thus submitted that the Appellant has not established contamination and the evidence of APQ in his hands remains conclusive and unchallenged evidence.
22.On the issue of identification of the voice in the recording, the Respondent clarifies that the recording was audio-visual and not audio, the Appellant’s voice is captured and he was properly identified by PW3 on 10th December 2010 at EACC Offices, for the purpose of transcription and to confirm the authenticity of the recording. PW13 testified that he had carried out the transcription of the recorded conversation in the presence of PW3 and produced the same as P. Exh 19 and P. Exh 44 respectively. The video recording under P. Exh. 23(a) is clear and PW3 was able to point out the persons captured and positively identified the image of the Appellant in the audio-visual recording. It was thus not necessary to call an independent witness to confirm the image and voice of the Appellant. It was sufficient that PW3 identified the Appellant.
23.On the question of compliance with Section 106B of the Evidence Act in relation to the audio-visual recording, the Respondent submitted that the recording was properly authenticated by PW6 who produced the certificate as P.Exh 25. The Respondent contended that the Appellant’s conviction was based on the evidence of PW3 and PW6 regarding the recorded conversation and not the evidence of PW7 as alluded to by the Appellant.
24.The Respondent submitted that there is no requirement under the evidence Act that an audio-visual recording device ought to be accompanied by a manufacturer’s certificate, procurement documents and a KEBS Certificate as stated by the Appellant. A certificate under Section 106B of the Evidence Act was duly produced in evidence and the recordings were properly admitted into evidence. The Appellant was identified on the audio-visual recording by PW2, PW3, and PW5 who had all interacted with him prior to the trial. The Appellant’s face and voice was clear throughout the conversation with PW3 as recorded.
25.The Respondent further submitted that the recording was uncontested at Defense stage and the Appellant cannot seek to have it expunged at the appeal stage. The recording was played in court before being admitted as evidence in the presence of the Appellant who did not object. P. Exh. 25 indicated that the recording device, P. Exh.10 was serviced and in good condition. The Appellant did not demonstrate that it was not in good working condition at the time of recording the conversation between the Appellant and PW3 during trial.
26.The Respondent submitted that it discharged its burden of proof against the Appellant for the offense of receiving a bribe which rightly resulted in a conviction.
27.As regards that claim that the sentence was excessive, the Respondent submitted that as per Section 18(1)(a) of the Evidence Act, the maximum sentence provided is a fine of Kshs. 5 million or imprisonment of ten (10) years. The Appellant was fined Kshs. 1 million and in default, three years’ imprisonment which falls within the statutory provisions.
28.The Respondent urged this court to be persuaded by the general principles to be applied in an appeal against sentencing as laid out in the South African case of s v Rabie  4 SA 855 (A) where the Court stated that:
29.It was the Respondent’s submission that the test under clause (b) in the quoted case above is whether the sentence is vitiated by irregularity or misdirection or disturbingly inappropriate. The Appellant has not demonstrated any error in the sentencing that would justify interference with the trial court’s sentence. They relied on the decision on the matter of Wanjama v Republic  KLR 493 where it was stated that:
30.The Respondent submitted that the sentence meted by the trial court was just, reasonable and in conformity with the Bribery Act and it should be upheld.
31.The Respondent asked the Court to find the Appeal without merit and dismiss it in its entirety.
32.The respondent relied on the following decided cases in their submissions:
The Issues for determinationi.Whether solicitation is an ingredient for the offense of “Receiving a bribe”.ii.Whether the APQ test was compromised.iii.Whether the audio-visual recording is admissible as per Section 106 of the Evidence.iv.Whether the Appellant was properly convicted.v.Whether the sentence given by the trial court was excessive.vi.Who should bear the cost of the Appeal.
- Libambula v Republic  eKLR
- S -v- Rabie  4 SA 855 (A)
- Wanjama v Republic  KLR 493
Analysis and Determination
33.As the first appellate court, I have re-considered and evaluated the evidence before the trial court so as to arrive at my own conclusion while bearing in mind that I did not see or hear the witnesses who gave evidence. My findings are as follows: -
Issue (i) - Whether solicitation is an ingredient for the offense of Receiving Bribe.
34.The Appellant contends that the ingredients of the offense of Receiving a bribe were not proved as there was no evidence adduced in the trial court that the Appellant solicited for or received a bribe. He claims that there was no evidence on his phone or that of PW3 alluding to any communication where he had solicited for a bribe. PW3 testified that he had communicated with the Appellant through an application called “signal call private messenger application” downloaded at a cybercafé on which the Appellant called him and asked for a bribe of Kshs. 500,000 before he could authorize the re-opening of the Petrol Station. The application deleted the text messages exchanged but he managed to take screen shots. The Appellant had later agreed to a bribe of Kshs. 200,000 and made several calls through the application to give PW3 instructions on how to deliver the money. The Appellant submitted that the application was never adduced in court nor the communication therein.
35.The Respondent contends that the offense of Receiving a bribe does not require solicitation to be proved so long as the accused had received the bribe.
36.PW7 testified that he carried out a digital forensic examination and confirmed that through the application called Signal Private Messages there were calls between 9/12/2020 and 10/12/2020 and messages between 2/12/2020 and 10/12/2020 between the two numbers 0722799109 and 0728080664. Data was not available on the application as it had self-destructive message capability. While communication between the Appellant and PW3 was established, the exact messages and /or instructions were not proven.
38.The accused need not have solicited for a bribe. Accepting to receive, actually receiving, or intending to request for a bribe so as to give favour to the giver of the bribe is sufficient for the offense of receiving a bribe. I find that evidence of solicitation is not necessary for the offense of receiving a bribe, and the lack of evidence of solicitation does not absolve the Appellant of the offense.
Issue (ii) Whether the APQ test was compromised.
39.The Appellant contends that the APQ test was contaminated because the Appellant was asked to touch the envelope and money that was treated before the EACC officer swabbed his hands for the APQ chemicals.
40.The Respondents submitted that the Appellant had touched the envelope and even placed it in his office drawer before the arresting officers entered his office.
41.Being a first appeal, this Court is tasked with the responsibility to re-look at the evidence adduced at the trial Court.
42.PW3 testified that the Appellant took the treated noted in an envelope and placed it in his drawer before he texted the EACC officers alerting them to enter the Appellant’s office.
43.PW8 testified that when they went into the Appellant’s office, his colleague requested him to produce the money he had received from PW3 and he, the appellant retrieved the same from his left hand side and placed it on the table. He confirmed that the officers never swabbed the accused’s fingers prior to asking him to produce the envelope with the treated money.
44.PW9 testified that when he and his colleague Ikua entered the Appellant’s office, they introduced themselves as EACC investigators, informed the Appellant that he was under arrest for receiving bribe, and Mr. Ikua requested the Appellant to produce the money that he had received from PW3. The Appellant had then opened his drawer, produced the treated money taken from PW3 and placed it on the table. Mr. Ikua then conducted swabs on the accused person and put the samples in an envelope.
45.I find the Appellant’s assertion that he touched the envelope containing the treated money only after being instructed by EACC investigators to be misleading. The Appellant has not controverted the evidence that this money was in his drawer or attempted to explain how the money got into his drawers.
46.Whether or not the investigators had asked him to retrieve the money from his drawer, his hands would have still been contaminated the first time he held the envelope to store it in his drawer. I find that the APQ test was not compromised.
Issue (iii) -Whether the audio-visual recording is admissible as per Section 106B of the Evidence.
47.The Applicant contends that the audio-visual recording adduced in evidence was not admissible as it lacked manufacturer’s certification by the person that prepared it, lack of evidence that the recording device was in good working condition, lack of a manufacturer’s certificate, procurement documents, and KEB certification in contravention to Section 106B of the Evidence Act.
48.The Respondent submitted that a certificate in compliance with Section 106B was produced as P.Ex.25. Further, that the recording was clear, identified by all the prosecution witnesses present in the scene, and that the quoted section did not require any certification by the manufacturer, KEBS or any procurement documents.
49.The provision in contention, Section 106B of the Evidence Act provides as follows:
50.The prosecution presented as P. Ex.28, a Certificate under Section 106B(4) of the Evidence Act which provided details as to the identity and position of the person that prepared the certificate, their qualifications, date of extraction of CCTV footage, how the footage was identified and extracted and confirmation that the person that prepared the certificate had lawful control of the gadget used to record the footage and that it was in good working condition at the time of retrieval, and the flash disk where the footage was stored was sealed and handed over to the EACC investigator.
51.The Court of Appeal in County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others  eKLR while discussing the application of Section 106 (B) observed that:
52.In the case of Republic vs Barisa Wayu Matuguda  eKLR the court observed that:
53.I agree with the Respondent that Section 106B of the Evidence Act does not require a person adducing electronic evidence to produce the Manufacturer’s certificate, procurement documents and KEBS certificate.
54.I am satisfied that the certificate produced as P. Exh. 28 is in compliance with Section 106B of the Evidence Act and as such, the audio-visual recording was properly admitted as evidence.
Issue (iv) - Whether the Appellant was properly convicted
55.The Appellant has averred that he was wrongfully convicted based on the grounds that the ingredients of the offense of receiving a bribe were not met and that the evidence relied on was wrongfully admitted.
56.As analyzed above, I have not found merit in any of the assertions put forward by the Appellant and as such, I find that he was rightfully convicted of the offense of receiving a bribe.
Issue (v) - Whether the sentence given by the trial court was excessive.
57.The Appellant has urged this court, that in the event that it finds that the conviction in the trial court was proper, it should find that the sentence was excessive as the Appellant was condemned to pay a sum of Kshs. 1,000,000 or serve imprisonment of three years for an alleged bribe of Kshs. 200,000.
58.The Respondents submitted that the sentence passed by the trial court was well within statutory limits and that this court should not interfere with the sentence unless it finds that the one passed by the trial court was unreasonable or based on wrong facts.
60.Receiving a bribe is an offense under Section 6 of the Bribery Act which provides for a maximum of ten years in prison and Kshs. 5 million fine.
61.In the case of Republic v Jagani & Another  KLR 590 Hon. Justice Hayanga observed in part that: -
62.In the matter of AOO & 6 Others case -v- Attorney General & Another (2017) eKLR, the court stated
63.The sentence imposed against the Appellant was within the law and was not excessive. It is therefore upheld.
64.The upshot is that the appeal is dismissed in its entirety.