Kamami v Republic (Criminal Appeal E031 of 2023) [2026] KEHC 7480 (KLR) (29 May 2026) (Judgment)

Kamami v Republic (Criminal Appeal E031 of 2023) [2026] KEHC 7480 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEHC 7480 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Appeal E031 of 2023 RN Nyakundi, J May 29, 2026 Between Bonface Mulei Kamami Appellant and Republic Respondent (Being an Appeal from the conviction and sentence delivered by Hon. D. Mikoyan on 13th March 2023 in Eldoret Chief Magistrates’ Anti-Corruption Case No. E001 of 2020) Judgment 1.The Appellant was charged with 2 Counts of the offence of receiving a bribe contrary to section 6(1) as read with section 18(1) and (2) of the bribery Act No. 47 of 2016. The particulars of the offence were that on the 7th day of October 2019, at Directorate of Criminal Investigations (DCI) office in Keiyo South, within Elgeyo Marakwet County, being a person employed by a public body, to wit National Police Service as a Police Constable attached to DCI, requested for a financial advantage of Kshs. 30,000/- from Moses Kipsang, so as to write a favorable school building inspection report for Jolly Children’s Resource Centre school belonging to the said Moses Kipsang. 2.On Count 2, the particulars were that the 8th day of October 2019, at Flax trading center within Uasin Gishu County, being a person employed by a public body, to wit National Police Service as a Police Constable attached to DCI, requested for a financial advantage of Kshs. 20,000/- from Moses Kipsang, so as to write a favorable school building inspection report for Jolly Children’s Resource Centre school belonging to the said Moses Kipsang. 3.The Appellant pleaded not guilty and the matter continued to full hearing.The prosecution called 1 witness and upon establishing that the Appellanthad a case to answer he was placed on his defence. Upon considering the testimonies and the evidence, the trial court convicted him on both counts and sentenced him to pay a fine of Kshs. 100,000 in default of which he would serve 12 months’ imprisonment, to run consecutively. 4.Being aggrieved with the conviction and sentence, the Appellant instituted the present appeal vide a Memorandum of Appeal filed on 24th March 2023 premised on the following grounds;a.That the learned trial magistrate erred in law and in fact in convicting and sentencing the Appellant to 2 years imprisonment.b.That the Learned Trial Magistrate erred in law by failing to independently analyze and/or evaluate the evidence before drawing conclusion as required by law.c.That the learned trial magistrate erred in law and in fact by failing to analyze the evidence of the prosecution and that of the defence and giving reasons for his decision to convict.d.That the learned trial magistrate erred in law and in fact by writing and delivering a judgement that is defective and offends the principals of the law as it contains no ratio decidendi.e.That the learned Trial magistrate erred in law and in fact by failing to consider the contradictory evidence of the prosecution witnesses called.f.That the learned trial magistrate erred in law and in fact by failing hold that the particulars of the offence did not support the charge as contained in the charge sheet.g.That the trial magistrate erred in law and in fact by failing to consider that the evidence as presented to court was one of entrapment rather than solicitation, receiving or demanding.h.That the trial magistrate erred in law and in fact by failing to give weight, consider and analyze the defence case and Appellant submissions in her judgement or even give any reasons hereto.i.That the Learned Trial Magistrate erred in law and fact by failing to give any weight consideration, mention or analysis of the defence exhibits provided by the Appellant and his witnesses.j.That the Learned Trial Magistrate erred in law in fact by replying on and convicting the Appellant on the doubtful and inconclusive evidence of the prosecution witnesses.k.That the Learned trial Magistrate erred in law and fact by imposing a very harsh and improper sentence in the circumstances.l.That the Learned Trial Magistrate erred in law and fact by convicting and sentencing the Appellant on flawed procedures.m.That the Learned Trial Magistrate erred in law and fact by failing to find that the prosecution had not proved its case beyond reasonable doubt Hearing at the trial court 5.PW1 was Moses Kipsang Kipruto a manager of a children center. It is registered. He produced his certificate of registration and stated that on 06/10/19 at 3.00pm he was repairing a fence in a school and 3 officers came. He came to learn that two were policemen and the other from DCIO. They said that they were to close the school because it had not met the standard. He stated that the Accused was to the one he spoke to and that he said he was from DCI and had mandate to close school. He told him to take him round the school and he did. He told him to go to their office at Kaptagat on 7th with the original registration documents. He went but was not carrying anything and when the accused enquired, he referred him to their director and education office. The accused insisted and said he would close the school and PW1 pleaded for more time. He later told him that if he wanted it to end he should pay him Kshs 30,000 as he had mandate to close the school. He wanted a bribe and he told him he had no money so he asked for a down payment. When the accused told him to go look for the money and he consulted his advocate who referred him to EACC. He went to EACC and recorded a witness statement. 6.The witness stated that they taught him how to use a certain gadget of communication which he put on his left shirt. He went with 4 EACC officers to the school and they parked off the road. He called the accused to come to the school. He came and said they should go to another place so they went to his workshop. He told him he was unable to get the money and the conversation was recorded. He said he was a final man and will finish everything. The witness returned the gadget to EACC and went to listen after which they called him and he went to their offices on 9/10/19. They told him me they had listened to the audio and he also listened. He was able to identify the voices. The officers then taught him how to give out treated money and forms to sign and gave him 15000 in an envelope. This is Kaki envelope. PMF3. 7.He went to the school and the officers sat in an office and the Accused came. He met a madam who was coming to pay fees who was a parent/police man and she paid fees. The Accused entered the office and he turned so as to start the gadget in the process the accused stood and said he should go out. As he left he met EACC officers. The audio was played and he stated that he understood the whole audio. 8.During cross examination, he denied the allegation that it was a stage-managed plot to fix the accused. He denied having bad blood. 9.PW2 was Fundi Frank, a regional security officer/investigator with EACC. He stated that they received a complaint form PW1 who said the accused approached him. He wanted financial benefit of 30 k so as to write a favorable budget inspection report for children school. He took up the matter and produced the recording. He stated that they were able to capture some of the conversation and a bribe of Kshs. 30,000 was established. At the school he met the accused and the Complainant. On 09/08/19 they went with Complainant to deliver 30,000 which had been treated. He clarified that it was Kshs.15,000 and stated that he saw the accused going to school with another lady. They went straight to Complainant’s office and did not take long. They apprehended the accused after he had received the money. 10.PW4 was 232033 CIP Samuel at Sub County CID Keiyo South. He stated that on 9.10.2019 he received a team of EACC officers with Mr. Guyo. They told me that they were on an investigating mission in their area that following one of the officers. They had laid a trap to arrest him but he escaped. They asked him to call the officer which he did and he told them to go to the EACC. On 22.01.2019 at the invitation of EACC he went to their offices and listened to that conversation. He was able to identify the voice of Mulei who he had worked with for 2 years. He was still an officer in his office. 11.PW5 was No.2014054 PC Recho, based at Eldoret. She stated that on 8/10/2013 their officer received a bribery allegation report from a Complainant called Moses who lives in Kaptagat and a manager at a children school. He said that a CIP officer of Kaptagat called Mulei on 6/10/2019, visited his school and recommended that the school does not meet a recommended standard. He asked for 30,000 not to close the school if he wrote a favorable report. She was assigned the matter to investigate and called the Complainant and recorded his statement. He was instructed on how to use a recording gadget to capture the conversation. They went to Kaptagat where the Complainant had agreed to meet with the suspect. They recorded the conversation and later, they agreed to do a trap operation on 9/10/2013. They prepared the treated money and formed a team to conduct operations. The accused came and collected the money and they tracked it and arrested him. 12.The court found that the prosecution had established a prima facie case and the Appellant was placed on his defence. 13.The Appellant, as DW1 denied having solicited the bribe and stated that PW4 who identified his voice on the recording was one he had issues with at the station. He attributed the charges to a witch hunt and prayed to be acquitted. 14.As aforesaid, he was convicted of both counts. Appellants’ Submissions 15.Learned counsel for the Appellant submitted that the incurable nature of the charges and the particulars therein could not have attracted any Conviction and how and why the Trial Court found the courage to arrive at a Conviction cannot be traced either from the evidence or on the Law. 16.Counsel cited the provisions of Section 6(1) as read with 18(1) and 18(2) of Bribery Act No. 47 of 2016 under which the Appellant was charged and urged that it was therefore incumbent upon the drafters of the charge sheet to see to it that the charges were proper and in conformity with Sections 134 of the Criminal Procedure Code which states what a proper charge should be. He urged that the charge had to categorically state the exact offence and the particulars in the Charge Sheet to support the facts of receiving a bribe. 17.He submitted that Section 6(1) of the Bribery Act creates numerous offences under 6(1) a, 6(1) b and 6(1) c, once there is discrepancy between what the offence stated and its particulars alleged, and or evidence in support of those facts, it follows that the charge and the evidence are at variance and therefore the same cannot stand. Counsel posited that the Prosecution failed in its duty of disclosing the exact offence the Appellant committed and went to great length to publish any and, all found under Section 6 (1) which was prejudicial to the Appellant. He maintained that this is a clear case of a defective charge and which do not conform to the requirement of Law, getting approval by a trial Magistrate and thereby misdirected himself on issues of fact and Law before him and hence erroneous conclusion of guilty as charged. 18.Counsel submitted that the issue of a defective charge not conforming to requirements of Law as laid under Section 137 and 214(1) of the Criminal Procedure Code was considered in the case of HASSAN JILLO BWANAMAKA & ANOTHER Versus Republic High Court at Mombasa Criminal Appeal No. 1 of 2017 (2018) eKLR. He further submitted that in their case, only the Penal Section was stated in the charge sheet and not the section of numerous Section 6(1) of the Bribery Act was flouted. The need for a charge and particulars thereof to be in conformity with evidence adduced was further considered in the case of Yongo Versus Republic (1983) KLR, 319. 19.Counsel submitted that there was no evidence in support of the charge that the Accused person received a bribe on either 18.10.2019 or 19.102019 and from the Complainant, Moses Kipsang or at all, and he was only charged under the Penal Section and not one describing the offence hence the prejudice. The Investigating Officer, and also the In-charge D.C.I, Key Prosecutions witnesses absolved the Appellant when they both confessed that he did not take the money. He urged that surely, if that was the evidence, what was the basis of conviction for the offence of receiving a Bribe? Closely related to the issue was the alleged fact that the bribe was for Accused/Appellant to write a favorable Report for Jolly School. There was no evidence that any Report was ever prepared by Appellant that same was favorable and same was prepared on consideration for Receiving a Bribe either Kshs.20,000/= or the alleged Kshs.30,000/=. The issue of Receiving is both of Law and fact. It cannot be imaginary soliciting and receiving are two distinct factual issues and their poof cannot be similar. The grave contradiction in the Prosecution's case unless satisfactorily explained, should have been rejected by the Court as inadmissible in support of the offence charged and the particulars of it disclosed in the charge sheet. 20.Counsel placed reliance on the case of MTC Versus Republic C.A E067 of 2021 at Voi and urged that the contradictions by the Prosecution’s case should have been resolved in favour of the Appellant and not otherwise. Counsel posited that examining the Trial before the lower Court holistically, it would be found that same was riddled with mistrials, non-disclosure of material facts allegedly constituting offences and incorrect application of Law to fact obtaining. That the Appellant was never found with either the Kshs.30, 000/= and or Kshs.20, 000/= allegedly received from Moses Kipsang. The admission of the audio (exhibit) and identification of the alleged Accused’s (Appellant’s) voice by his boss was improper, against the rules of evidence and without any weight to serve a Conviction. He urged the court to quash the conviction, set aside the Sentence and in place order for acquittal of Accused person. Respondents’ submissions 21.Learned Counsel for the state submitted that Section 6 (1) (a) of the Bribery Act states that a person who requests, agrees to receive or receives a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly whether by that person receiving the bribe or by another person is guilty of the offence of receiving a bribe. That from the foregoing, the elements of this crime impute guilt on an Accused in a situation where s/he either requests, agrees to receive or receives a financial or other advantage. Counsel recollected the facts and the evidence from the testimonies and submitted that by a reading of section 6(1) (a) of the Bribery Act, liability on the Appellant’s part is not vitiated by failure to receive the actual monies. It suffices that he merely requested. 22.On the contention that the charge sheet was defective in so far as it did not define the offence with specificity. In as much as the offence contemplated herein is capped in section 6 (1) (a) of the Bribery Act, the charge sheet in question spoke of 6(1) to the exclusion of sub section (a) which was remedied by the particulars therein which specified that the Appellant requested for a financial advantage in both counts. He cited Section 134 of the Criminal Procedure Code and the case of Bernard Ombuna v Republic [2010] KECA 994 (KLR) and BNT v Republic (Criminal Appeal 179 of 2019) (2025) KECA 643 (KLR) (4 April 2025) (Judgment). 23.He submitted that the Appellant was well represented during the course of the trial and mounted a defence and therefore cannot claim that the omission of sub section (a) of section 6(1) was a prejudice to him. He cited the provisions of Article 22 (3) (d) of the Constitution as well. 24.In reply to the ground of entrapment, he urged that the same was defined in the case of Ogada v Republic (Criminal Appeal E003 of 2022) [2023] KEHC 23085 (KLR). He also cited the case of Jacobson vs USA, 503 US 54.0, 548 (1992) in this regard. He urged that from the above facts, the Appellant cannot claim that he was entrapped, noting that that he initiated and participated in the negotiations for the aforesaid monies. These negotiations were well captured in audio visual recordings which were later transcribed and adduced as evidence, putting the Appellant at the scene as the key player of the negotiations. 25.In support thereof, the said transcriptions were certified and subsequent certificates adduced as exhibits in line with section 106(b) of the Evidence Act. Learned Counsel for the Appellant then did not object to the said production. In his Defence, the Appellant merely denied allegations stating that he had an altercation with his superiors leading to the charges being framed against him. He did not call any witnesses in support of this neither did he produce any complaint and documentary evidence alluding to the alleged report against his superior. 26.Counsel cited Section 18 of the Bribery Act which provides that an individual found guilty of the offence as captured herein shall be liable on conviction, to imprisonment for a term not exceeding ten years, or to a fine not exceeding five million shillings, or both. This is regardless of the amount in question. He urged that the sentence meted out on the Appellant was a mere slap on the wrist and he invited the Court to find that that the ground informing the harsh sentence is untenable. He urged the court to dismiss the appeal. Analysis & Determination 27.The following issues arise for determination;i.Whether the charge sheet was defectiveii.Whether there was entrapmentiii.Whether the prosecution proved its case to the required standard Whether the Charge sheet was defective 28.The Appellant contends that the charge sheet was defective as it did not disclose an offence that was known in law and clear. It is trite that an accused person is entitled to not only be charged with an offence recognized under the law but also to be furnished with all the necessary details of the offence, to enable him appreciate the nature of the charge(s) against him and to enable him to prepare an appropriate defence. A charge sheet that is deficient in substance would prejudice an accused person’s right to a fair trial as provided for in Article 50(2)(b) of the Constitution. 29.Section 134 of the Criminal Procedure Code. The Section provides that:“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” 30.In determining whether a charge sheet was defective or not, the Court of Appeal, in the case of Sigilani v Republic [2004] 2 KLR, 480 stated that:“The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to a specific charge that he can understand. It will also enable the accused to prepare his defence.” 31.The Appellant was charged with the offence of receiving a bribe contrary to section 6(1) as read with sections 18(1) and (2) of the Bribery Act No. 47 of 2016. Section 6(1) of the act provides as follows;6.(1)A person commits the offence of receiving a Receiving a bribe -a.the person requests, agrees to receive or receives a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly whether by that person receiving the bribe or by another person;b.the recipient of the bribe requests for, agrees to receive or accepts a financial or other advantage and the request, agreement or acceptance itself constitutes the improper performance by the recipient of a bribe of a relevant function or activity.c.in anticipation of or as a consequence of a person requesting for, agreeing to receive or accepting a financial or other advantage, a relevant function or activity is performed improperly by that person, or by another person at the recipients' request, assent or acquiescence.; 32.Section 382 of the Criminal Procedure Code provides as follows;“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.” 33.Having perused the charge sheet it is apparent that the offence was clearly stated in an unambiguous and clear manner. The facts were that the Appellant requested for Kshs. 30,0000/- to write a favorable school building report for Jolly’s children resource center. I note that section 6(1) contains three subsections that go into the particulars of the offences under the said section but from a reading from the particulars, it is discernible that the Appellant had been charged with an offence under section 6(1)(a). it is my considered view that the particulars disclosed were sufficient and therefore the argument on ambiguity is moot. Whether there was entrapment 34.The Appellant contends that the evidence as presented was that of entrapment rather than solicitation, receiving or demanding. Entrapment is defined in the case of Mohamed Koriow Nur vs Attorney General, Petition No. 181 of 2010 (2011) eKLR where Justice Warsame, quoting R vs. Mack (1988) 2s. CR. 903 explained the concept of entrapment as follows.“…Entrapment occurs when (a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bonafide inquiry, and (b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and include the commission of an offence ...” 35.In Republic v Ngumi (Anti-Corruption Case 5 of 2014) [2020] KEMC 1 (KLR) (Crim) (26 May 2020) (Judgment) the court held that;For defence of entrapment to be raised, it has to be demonstrated that the offer to commit the crime was initiated and encouraged by the State itself or by a State agent or a private citizen directly working for State agent, commonly referred to as ‘derivative’ agent. That agency relationship must however be established before the defence can be successfully pleaded. 36.From the evidence on record, the Complainant testified that the Appellant visited the school on 6th October 2019 claiming that he had the mandate to close the school. He told the Complainant that if he wanted to avoid the closure, he was to pay Kshs. 30,000 which prompted the Complainant to seek advice from his legal counsel, who consequently advised him to report the matter to the EACC. Their officers then gave him a recording device and he called back the Appellant, as the Appellant had earlier instructed him, and the conversation was then recorded. In fact, had it not been for the lady who came to the Complainants’ office to pay fees, the Appellant was in the process of receiving the money he had requested. From the sequence of events, the Appellant, on his own volition, went to the Complainants’ premises to request the bribe. It is evident that the Appellant initiated the request for the bribe and therefore, it is my considered view that he was not entrapped. Whether the prosecution proved its case on a balance of probabilities. 37.The elements of the offence under section 6(1)(a) of the Bribery Act are that one must request a bribe. The prosecution led evidence that proved that it is the Appellant who requested the bribe and the recorded conversation and transcripts therefrom corroborated the Complainants’ testimony. The Appellants’ voice was identified by the Complainant when the audio was replayed in court and the identification was corroborated by PW4 who had worked with the Appellant in his office for 2 years. 38.The Appellant requested the bribe under the guise that he had the mandate to close down the school. It is not required that the Appellant receive the bribe for the offence to have been proven. The mere request on its own was sufficient for the offence to have been committed. It follows that the prosecution proved its case to the required standard. Whether the sentence was harsh and excessive in the circumstances 39.The principles guiding interference with sentencing by the appellate court were properly set out in the case of S. –vs- Malgas (1) SACR 469 (SCA) at para 12, where it was held that:- 40.“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would usurp the sentencing discretion of the trial court………however, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”. 41.Similarly in the case of Mokela –vs- The State (135/11)(2011) ZASCA 166, the Supreme Court of South Africa held that:-“It is well established that sentencing remains preeminently within the discretion of the sentencing court. The salutary principle that the appeal court does not enjoy carte balance to interfere with sentences which have been properly imposed by the sentencing court. In my view, this includes the terms and conditions imposed by s sentencing court on how or when the sentence is to be served.” 42.Additionally, in the case of Shadrack Kipkoech Kogo –vs- Republic Eldoret Criminal Appeal No. 253 of 2003, the Court of Appeal stated that:-“Sentencing is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefor an error of principal must be interfered with ( Also see Sayaka –vs- Republic [1989] KLR 306." 43.Section 18 of the Bribery Act provides as follows;8.(1)An individual found guilty of an offence under Penalties.section 5, 6, or 13-a.shall be liable on conviction, to imprisonment for a term not exceeding ten years, or to a fine not exceeding five million shillings, or both; and may be liable to an additional mandatory fine if, as a result of the conduct constituting the offence, the person received a quantifiable benefit or any other person suffered a quantifiable loss.(2)The mandatory fine referred to in subsection (1)(b) shall be—equal to five times the amount of the benefit or loss described in subsection (l)(b); if the conduct that constituted the offence resulted in both a benefit and loss described in subsection (1)(b), equal to five times the sum of the amount of the benefit and the amount of the loss. 44.The Appellant was sentenced to pay a fine of Kshs. 100,000 or serve 12 months’ imprisonment on each count. Considering the sentence provided in law, it is my considered view that the same was lenient and cannot be considered to have been harsh or excessive in the circumstances. 45.The upshot of the foregoing is that the Appeal is dismissed in its entirety and the decision of the trial court is hereby upheld. DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 29TH DAY OF MAY 2026................................R. NYAKUNDIJUDGERepresentation:M/s Sidi for the State