[2022] KEHC 16384 (KLR)

Director of Public Prosecutions v Ooro & 5 others (Anti-Corruption and Economic Crimes Appeal 4 & E005 of 2022 (Consolidated)) [2022] KEHC 16384 (KLR) (Constitutional and Human Rights) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16384 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Anti-Corruption and Economic Crimes Appeal 4 & E005 of 2022 (Consolidated)

EN Maina, J

December 15, 2022

(FORMERLY HOMABAY ACEC APP. NO. E016 OF 2022)

Between

Director Of Public Prosecutions

Appellant

and

Michael Owino Ooro

1st Respondent

Isaac Ouso Nyandege

2nd Respondent

Otieno Bob Kephas

3rd Respondent

Caroline Chepkemoi Sang

4th Respondent

Maurice Odiwuor Amek

5th Respondent

Judith Omogi

6th Respondent

As consolidated with

Anti-Corruption and Economic Crimes Appeal E005 of 2022

Between

Director Of Public Prosecutions

Appellant

and

Otieno Bob Kephas

1st Respondent

Caroline Chepkemoi Sang

2nd Respondent

Maurice Odiwuor Amek

3rd Respondent

(Being an Appeal against the conviction and sentence by Hon. Thomas Obutu, S.P.M at Homabay by a judgment delivered on 14th June 2022 in ACC No. 001 of 2018; Republic v Otieno Bob Kephas & 6 Others)

Judgment

1. In HCACEC Appeal No. 4 of 2022 the Appellants are former public officers employed in various capacities in the County Assembly of Homabay and Members of the County Assembly respectively. They were charged with various counts of corruption offences and economic crimes contrary to Sections 47A, 45 (1) (a) and 46 as read together with Section 48 of the Anti-Corruption and Economic Crimes Act, resulting in a loss of approximately Kshs. 27,872,278 by Homabay County Assembly. At the culmination of the trial, and vide Judgment of the court delivered on 14th June 2022 and the Ruling on Sentence delivered on 17th June 2022, the 6th Accused/Respondent was acquitted of Counts 1 and VII under Section 215 of the Criminal Procedure Code, while the 1st to 5th Accused/Respondents were convicted and sentenced in Count 1 and the respective charges in Counts II to XI.

2. The 1st to 5th Respondents were convicted and sentenced as follows in the charges in Counts I to XI:1. Count I Conspiracy to commit an offence of corruption contrary to Section 47A (3) as read with Section 48 of the Anti-Corruption and Economic Act 1st to 5th Respondents sentenced to pay a fine of Kshs. 500,000/- in default three years imprisonment.2. Count II Unlawful Acquisition of Public Property Contrary to Section 45 (I) (a) as read with Section 48 of the Anti-Corruption and Economic Act against Otieno Bob Kephas, 1st accused, sentenced to pay a fine of Kshs. 8,600,000/- in default six (6) years imprisonment.3. Count III Unlawful Acquisition of Public Property Contrary to Section 45 (1) (a) as read with Section 48 of the Anti-Corruption and Economic Act against Caroline Chepkemei Sang, 2nd accused, sentenced to pay a fine of Kshs. 14,424,278 in default six (6) years imprisonment.4. Count IV Unlawful Acquisition of Public Property Contrary to Section 45 (1) (a) as read with Section 48 of the Anti-Corruption and Economic Act against Maurice Odiwuor Amek, 3rd accused, sentenced to pay a fine of Kshs. 14,424,278 in default six (6) years imprisonment.5. Count V Unlawful Acquisition of Public Property Contrary to Section 45 (I) (a) as read with Section 48 of the Anti-Corruption and Economic Act against Michael Owino Ooro, 4th accused, sentenced to pay a fine of Kshs. 8,496,000 in default six (6) years imprisonment.6. Count VI Unlawful acquisition of public property Contrary to Section 45 (1) (a) as read with Section 48 of the Anti-Corruption and Economic Act against Isaac Ouso Nyandege sentenced to pay a fine of Kshs. 7,000,000/- (Seven Million) in default 5 (five) years imprisonment.7. Count VIII Abuse of office contrary to Section 46 as read together with Section 48 of the Anti-Corruption and Economic Act against Otieno Bob Kephas, Caroline Sang and Maurice Amek, 1st, 2nd and 3rd accused, sentenced to pay a fine of Kshs. 300,000/- (three hundred thousand) in default three years’ imprisonment.8. Count IX Abuse of office contrary to Section 46 as read together with Section 48 of the Anti-Corruption and Economic Act against Otieno Bob Kephas, Caroline Sang and Maurice Amek sentenced to pay a fine of Kshs. 300,000/- (three hundred thousand) in default three years’ imprisonment.9. Count X Abuse of Office Contrary to Section 46 as read together with Section 48 of the Anti-Corruption and Economic Act against Otieno Bob Kephas, Caroline Sang and Maurice Amek) sentenced to pay a fine of Kshs. 300,000/- (three hundred thousand) in default three years’ imprisonment.10. Count XI Fraudulent payment from public revenues for services not rendered Contrary to Section 45 (2) (a) (iii) as read with Section 48 of the Anti-Corruption and Economic Act against Otieno Bob Kephas, Caroline Sang and Maurice Amek sentenced to pay a fine of Kshs. 300,000/- (three hundred thousand) in default three years’ imprisonment.The 6th Respondent was acquitted of Count VII which was a charge of unlawful acquisition of public property contrary to Section 45 (1) (a) as read with Section 48 of the Anti-Corruption and Economic Act.

3. The 1st to 5th Respondents, being dissatisfied with the conviction and the sentence filed their respective appeals in Homabay HCCRA Nos. 15/2022,16/2022,17/2022 and 18/2022 which were transferred to this court vide the court’s Ruling of 28th July 2022 and the appeals consolidated into ACEC Appeal No. E004 of 2022. The Respondents raise the following grounds of appeal:1. The learned trial magistrate erred in law and fact by finding that the prosecution had proved their case beyond reasonable doubt2. The learned trial magistrate erred in law and fact by convicting the Appellants on contradictory evidence3. The learned trial magistrate erred in law and fact by convicting the 1st to 5th accused persons on the offence of conspiracy to commit an offense of corruption whilst discharging the 6th and 7th accused.4. The learned trial magistrate erred in law and fact by relying on inadmissible electronic evidence contrary to Section 106 B Evidence Act.5. The learned trial magistrate erred in law and fact by according undue weight on inadmissible electronic evidence6. The learned trial magistrate erred in law and fact by failing to consider the defence tendered by the Appellants7. The learned trial magistrate erred in law and fact by failing to consider the mitigation tendered by the Appellants8. The conviction and sentence cannot be supported by any scintilla of evidence tendered before the trial court.9. The trial court exhibited bias and prejudice against the Appellants.

4. Concurrent with the Respondents’ appeals, the Director of Public Prosecutions filed a cross-appeal against acquittal of the 6th Respondent and the sentence meted against the 1st to 5th Respondents vide ACEC Appeal No. E005 of 2022 Michael Owino Osoro and 5 Others v Director of Public Prosecutions in its Petition of Appeal dated 28th June 2022, the DPP raises the following 10 grounds of appeal:1. That the Appeal is against the findings of the Learned Trial Magistrate acquitting the 6th Respondent under Section 215 in Count VII.2. That the Appeal is against the Learned Trial Magistrate failing to impose the statutory applicable sentence under Section 48(1) of the Anti-Corruption and Economic Crimes Act No. 3 of 2003 in its Ruling on Sentence delivered on 17th June 2022. 3.That the Learned Trial Magistrate fatally erred in law and fact in failing to find that the Prosecution did not prove their case beyond reasonable doubt against the 6th Accused in respect to Count VII.4. That the Learned Trial Magistrate erred in law and in fact in holding that it could not be said that the 6th accused applied and unlawfully acquired public finds as the document examiner exonerated her from any wrongdoing as the signature on the imprest warrant did not belong to her and were therefore a forgery despite the trial courts finding that Kshs. 1,300,000 had been traced to her account.5. That the Learned Trial Magistrate Judgement and Order acquitting the 6th Respondent in Count VII of the Charge Sheet under Section 215 of the Criminal Procedure Code.6. That the Learned Trial Magistrate finding acquitting the 6th Respondent on Count VII under Section 215 of the Criminal Procedure Code constituted a grave miscarriage of justice.7. That the Learned Trial Magistrate misdirected himself and applied the wrong legal principals in finding that the 6th Accused did not apply for any imprest warrant and therefore did not fraudulently acquire public property despite the overwhelming evidence that Kshs. 1,300,000/= the subject matter of Count VII were traced to her personal bank account.8. That the learned trial magistrate erred in law and in fact in acquitting the Respondents on all the counts without analyzing the overwhelming evidence as against each respondent and the roles they played leading to the commission of the offences charged.9. That the learned magistrate erred in law by failing to consider the weight of the evidence against the Respondents.10. That the learned magistrate erred in law in failing to impose the sentence prescribed by the relevant sections of ACECA. the learned magistrate issue, sentence under Section 48 (1) (a) and opted to only issued a mandatory fine under Section 48 (2) whereas the mandatory fine under Section 48(2) of the Anti - Corruption and Economic Crimes Act cannot be applied without first applying section 48(1).

5. The Appellant prays for orders that the court reverses/sets aside the orders acquitting the 6th Respondent, convict the 6th Respondent on Count VII and issue the statutory additional mandatory fine in Counts II, Count III, Count IV, Count V and Count VI in line with Section 48 (1) (b) and Section 48 (2) of the Anti - Corruption and Economic Crimes Act, No.3 of 2003, that is a fine of double the amount of funds lost on each Count.

6. By consent of the parties the appeals were consolidated and heard together by way of written submissions.

Submissions by the Appellant 7. The State/Appellant in HCACECA No. 4 of 2022 submitted that the Respondents were charged with 11 Counts regarding the embezzlement of public funds amounting to Kshs. 27,872,278 belonging to the County Assembly of Homabay. That the Respondents used non-existent Imprest Warrants for alleged facilitation of MCA’s travel and conference facilities, accommodation and allowances for trips that never took place.

8. Ms. Wangia, State Counsel for the DPP submitted that investigations conducted by the EACC revealed that the Respondents received the following monies form the Homabay County Assembly: Otieno Bob Kephas Kshs. 4,300,000, Caroline Sang Kshs. 7,212,139, Morris Odiwuor Amek Kshs. 7,312,139, Michael Owino Ooro Kshs. 4,248,000, Isaac Ouso Nyandege Kshs. 3,500,000, Judith Akinyi Omogi Kshs. 1,300,000 amounting to a total sum of Kshs. 27,872,278 lost. That the 1st Respondent authorized the payments from the County Assembly Suspense account No. xxxx through 9 Authorities to pay addressed to the Manager, Equity Bank of Kenya Homab Bay Branch on various dates between 2nd June 2016 and 24th January 2017. The 1st Respondent provided false supporting documents justifying the payments, that is , Imprest Warrants, Approvals by County Assembly Clerk and Chief Finance Officer, List of Members and Staff to attend functions, Receipts of various hotels and purported approvals from the County Assembly Liaison Chair.

9. They framed 3 issues for determination: whether the trial court erred in finding that the charges against the Respondents were proved to the required standard by the prosecution; whether the trial court erred in acquitting the 6th Respondent and sufficiency of the sentences meted.

10. They submitted that the prosecution proved the charges beyond reasonable doubt. On Count 1, they outlined the ingredients of the offence of conspiracy to commit an offence of corruption as held in Rebecca Mwikali Nabutola & 2 Others [2016] eKLR; that public funds were illegally acquired through various acts of the Respondents with a common intention based on the following evidence and law:-1. Section 117 of the Public Finance Management (County Governments Regulation, 2015) describes an Imprest Warrant as an accountable document and that must be issued serially. In this case, the imprest warrants were issued randomly, that is, Imprest Warrant 6116 to 6124 were issued before 6101 to 6105 hence the Imprest Warrants were filled out randomly.2. Several Imprest Warrants were issued on the same date for the same activity3. There were many applicants applying for imprest warrants the same day for the same activity supported by one authority to pay to the bank.4. Facilitation of payment was vide an authority to pay letter addressed to the Branch Manager Equity Bank to pay specific accounts yet the debiting Homa Bay County Assembly Account was not indicated in the Authority to Pay letter.5. The intended beneficiaries of these imprest warrants, that is, Members of the County Assembly confirmed that no payments were made to them either in cash or via their bank accounts against the alleged functions and imprest applications made by the suspects.6. The Investigators obtained Court Orders/Warrants to investigate the accounts of the suspects, who took the false imprest. Their individual bank statements were obtained through Court orders from their respective bank and an examination thereof revealed that the monies due to be paid out as allowances were not withdrawn in lump sum but were spent in bits and pieces by the appellants long alter the purported conferences.7. Specimen signatures were taken from the Respondents who had allegedly approved the Imprest warrants for the County Assembly functions which never took place. The said signatures were subjected to examination by the forensic document examination expert and the same confirmed to be bearing the 1st to 5th Respondent’s signatures. It was however noted that the liaison officers did not append their signatures to the imprest documents and their signatures as well as the 6th Respondent’s signature were determined to have been forged.8. Further, the hotels where the alleged functions took place namely the Twin Tower Hotel, Great Lake Hotel in Kisumu, Joventure Hotel and Prime Water Hotel in Migori testified and their respective managers and representatives stated that the functions were not held in their premises as alleged.9. All the Imprest Warrants were authorized by Otieno Bob Kephas (Accounting Officer Clerk of the County Assembly), Caroline Chepkemoi Sang (Head of the Finance Department Chief Finance Officer), Maurice Odiwuor Amek (Senior Accounts Controller) and Edwin Omondi Okello (Cashier)10. An examination of the imprest documents of the suspects revealed that the imprest applications were made in the various Respondents names and the same were approved for payments by the 1st, 2nd, and 3rd appellants and the 7th accused.11. With a view to disguise the source of the money and to avoid audit trails, the payments were effected through the Equity Bank Homa Bay Branch Suspense Account.12. The custodian of the Imprest Register Maurice Odiwuor Amek (3rd Accused) ensured that the entries in the Imprest Register in respect to the Imprest Warrants in question captured that the said imprest had been surrendered.13. Otieno Bob Kephas and Maurice Odiwour Amek were aware of the existence of the suspense account. That vide an application for funds transfer dated 14 February 2017 requesting for Kshs. 5,532,461 to be transferred from the Homa Bay County Assembly Account No. 0981xxxxxxxx to the Equity Suspense, the names that appear at the customer ID and signatures are those of Otieno Bob and Maurice Amek.14. The MCAs listed in the attendance list denied having attended any meetings at the assigned hotels or having been paid. The said MCAs were called as prosecution witnesses: Michael O. Mireri (PW2), Ruth Anyango Ombura (PW3), Ellyphalet Osuri Omaro (PW7), Beatrice Aching Marande (PW10), John Lenox Ochieng (PW11), Richard Ouma Ogello (PW12), Christopher Ouma Mbata (PW13), Clement Nyariera Olago (PW14) Kennedy Okwach Oranga (PW15) and Julius Odhiambo Gaya(PW16).

11. The Appellant submitted that the electronic evidence was valid as it was accompanied by a certificate PExh 131 produced by PW28; That the court duly considered the Defences by the Respondents which were not plausible and that the convictions were safe.

12. On whether the trial court erred in acquitting the 6th Respondent, a nominated MCA, they submitted that although the court held that the 6th Respondent did not apply for any Imprest Warrant, that did not exonerate her from the offence of fraudulent acquisition of funds. That the 6th Respondent was paid Kshs. 1,300,000 based on the Imprest Warrants; that her defence that the payment was for her salaries and allowances was not plausible.

13. On the sentences, they submitted that the trial court was under a duty to mete out two sentences against the 1st to 5th Respondents, first under Section 48(1)(a) and second under Section 48(2) (a). That the court wrongly exercised its discretion in the computation of the fines in Counts II, III, IV, V, VI and that the same should be enhanced by this court. Lastly, that the Respondents’ respective appeals should be dismissed for lack of merit.

Submissions of the Respondents/Appellants in HCACEC E005 of 2022. 14. Mr. Ouma Counsel for 1st, 2nd and 5th Respondents submitted that they were convicted on the belief that they conspired to commit the offence in Count 1; that no evidence was adduced to show that he applied for Imprest Warrants; that there was no forensic examination of his signature to prove that he executed the documents. That the court did not consider the Defence case; that the Judgment was utterly wrong for the DPP to file a cross appeal.

15. They submitted that the trial Magistrate misinterpreted the facts of the case, that the 5th Respondent was not an authorizer and his role was merely to register as a clerk; that he had submitted all the previous warrants and it was an error to acquit the 6th Appellant and convict the 5th Respondent. That the court erred in relying on immaterial facts.

16. They submitted further that sentences were valid in law; that should the court uphold the conviction, the sentences should remain undisturbed as per the principle of stare decisis. They cited the case of Joshua Gichuki Mwangi v Republic Criminal Appeal No. 84 of 2015.

17. Mr. Seko Counsel for the 3rd Respondent submitted that the two key ingredients of the offence of conspiracy, that is common intention and an agreement or meeting of minds were not proved. That the alleged embezzlement was featured in the Auditor General's report for 2014 and 2017 as a constitutional requirement under Article 229(5) and (6); that the reports were not produced hence no evidence of the alleged embezzlement of funds in Homa Bay County. On the Imprest Warrants, they submitted that the signatures of the persons who signed them were not properly interrogated; that PW1 who was required to shed light on the signatures was not cross-examined on the same; that there was no evidence that the signatures were forgeries. That PW4 confirmed that the Imprest Warrants were properly signed and complied with the provisions of the PFMA Act. That the internal Audit did not disclose fraud.

18. On the charges of unlawful acquisition of public funds, Counsel submitted that there was no evidence of knowledge on the part of the 3rd Respondent; that he was merely executing his duties and it beats logic that the internal auditors did not raise queries on the payments made to the 3rd Respondent. That as a Clerk of the Assembly for the period 2014 to 2017, the 3rd Respondent was entitled to allowances; that between the period 2014 to 2016, the county assembly and the Executive were operating as one hence the payment was amongst the pending bills.

19. The 3rd Appellant contended further that the court erred in convicting him as the funds were not public funds; that the evidence was contradictory on the source of funds deposited into the suspense accounts and subsequently the Respondent’s accounts. That no evidence was given of the withdrawal of the funds from the accounts to any other accounts and all the witnesses from the bank testified that they were not aware of the source of funds that were in the Suspense account; they could not authenticate nor confirm the propriety of the suspense account and the certificate of electronic evidence PExh 41 did not meet the test of authenticity. Lastly, there was no evidence that the funds were moved from the suspense account to the 3rd Appellant’s account.

20. On their part, the 6th Respondent in their written submissions submitted her acquittal under Section 215 of the Criminal Procedure Code was proper. That to the extent that the Appellant’s own witness exonerated the 6th Respondent from any participation in generating the disputed imprest warrants through a forensic report produced as Prosecution Exhibit Number 9A, it could not be possible that the 6th Respondent committed the alleged offences in Counts I and VII. The forensic report produced as exhibit 9A, revealed that the 6th Respondent did not apply for the imprest warrants- exhibit 5C and 6C and the same were therefore forgeries and the forged documents were used to wire the money into the personal account of the 6th Respondent without the 6th Respondent’s notice and without her participation or input.

21. They contended further that the 6th Respondent and other prosecution witnesses testified to the effect that there used to be in existence accumulated unpaid travel, conference and accommodation allowances due to staff for the county assembly which were paid at a later date. That the 6th Respondent reasonably believed that the payments were part of the accumulated unpaid allowances arising from previous activities at the county assembly.

Analysis and determination 22. The following issues arise for determination:1. Whether the prosecution proved the charges against the 1st to 5th Respondents beyond reasonable doubt2. Whether the trial court erred in acquitting the 6th Appellant3. Whether the sentences meted against the Appellants were lenient

Whether the prosecution proved the charges against the 1st to 5th Respondents beyond reasonable doubt 23. As a first appellate court, it is this court's duty to re-evaluate the evidence and make its own conclusions, bearing in mind that this court has not had the benefit of hearing or seeing the witnesses. In the locus classicus case of Okeno v Republic [1972] EA 32 at 36 the East Africa Court of Appeal held as follows on the duty of the Court on a first appeal: -“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. ”

24. On Count 1, the 1st to 6th Respondents were charged together with another with the offence of conspiracy to commit an offence of corruption contrary to Section 47A(3) as read with Section 48 of the Anti-Corruption and Economic Crimes Act.

25. The definition of conspiracy was considered by the court in Rebecca Mwikali Nabutola & 2 others v Republic [2016] eKLR, where the court referred to the Black Law Dictionary 9thEdition definition as follows:-“An agreement by two or more persons to commit an unlawful act coupled with intent to achieve the agreement’s motive and (in most states) action or conduct that furthers’ the agreement; a combination for an unlawful purpose”.

26. As submitted by both the Appellant and Respondents, the key ingredients of the offence of conspiracy are the existence of an agreement and the intention to defraud the public.

27. The Respondents were at the material time public officers, employed, elected and nominated to the County assembly of Homa Bay respectively. From the evidence adduced at the trial court, it is apparent that the applications for imprests were made in the various Respondents' names and the same were approved for payments by the 1st, 2nd, and 3rd respondents and the 7th accused. Otieno Bob Kephas, 3rd Respondent, as the Clerk, authorized the payments of the public funds from the County Assembly Suspense Account No. 0980xxxxxxxx through 9 Authorities to pay addressed to the Manager, Equity Bank of Kenya Homa-Bay Branch on various dates between 2nd June 2016 and 24th January 2017. It is important to note that, contrary to the 3rd Respondents’ assertion, that funds held in the County Government accounts are public funds under the provisions of the Public Finance Management Act.

28. The prosecution evidence showed further that the 1st Respondent provided falsified supporting documents justifying the payments, including List of Members and Staff to attend functions PExh 10(d), Receipts of various hotels and purported approvals from the County Assembly Liaison Chair. The MCAs in the list denied ever attending the meetings or being paid for the trips and the document examiner confirmed that the signatures of the MCAs and liaison were forged. Further, the staff from hotels Twin Tower Hotel, Great Lake Hotel in Kisumu, Joventure Hotel and Prime Water Hotel in Migori testified and their respective managers and representatives stated that the functions were not held in their premises as alleged.

29. The prosecution established that the 1st to 6th Respondents received the funds in their personal accounts, and the defence explanation that the particular amounts were their salaries and allowances was not proven in evidence. There was therefore a clear concert amongst the 1st to 5th Respondents in the application for the warrants and the subsequent payment for fictitious trips. In my view, the trial court’s conviction of the 1st to 5th Respondents was proper and should be upheld.

Whether the trial court erred in acquitting the 6th Appellant 30. The court acquitted the 6th Respondent on the basis of the document examiner’s evidence PExh 9A that her signature had been forged and as such she did not apply for the Imprest Warrant.

31. The court held that the gaps in the evidence surrounding the imprest warrants showed that her signature was forged, thus delinking the 6th Respondent from participation in the generation of imprest warrants and processing of any payments coupled with the testimony of the 6th Respondent during her defence hearing led to a finding of innocence on the part of the 6th Respondent.

32. It is noted that the instructions to the bank to effect payments in respect to the 6th Respondent were in respect of unpaid allowances or salary as shown in exhibit 124. It is my finding therefore that the acquittal of the Respondent under Section 215 of the Criminal Procedure Code was proper and is therefore upheld.

Whether the sentences meted against the Appellants were lenient 33. The penalty for the charges against the Respondents is provided for under Section 48 of the Anti-Corruption and Economic Crimes Act.“48. Penalty for offence under this Part(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; and(b)an additional mandatory fine if, as a result of the conduct that constituted 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 determined as follows—(a)the mandatory fine shall be equal to two times the amount of the benefit or loss described in subsection (1)(b);(b)if the conduct that constituted the offence resulted in both a benefit and loss described in subsection (1)(b), the mandatory fine shall be equal to two times the sum of the amount of the benefit and the amount of the loss.”

34. The trial court sentenced the Respondents as follows:1. Count I Conspiracy to commit an offence of corruption contrary to Section 47A (3) as read with Section 48 of the Anti-Corruption and Economic Act 1st to 5th accused sentenced to pay a fine of Kshs. 500,000/- in default three years imprisonment.2. Count II Unlawful Acquisition of Public Property Contrary to Section 45 (I) (a) as read with Section 48 of the Anti-Corruption and Economic Act against Otieno Bob Kephas, 1st accused, sentenced to pay a fine of Kshs. 8,600,000/- in default six (6) years imprisonment.3. Count III Unlawful Acquisition of Public Property Contrary to Section 45 (1) (a) as read with Section 48 of the Anti-Corruption and Economic Act against Caroline Chepkemei Sang, 2nd accused, sentenced to pay a fine of Kshs. 14,424,278 in default six (6) years imprisonment.4. Count IV Unlawful Acquisition of Public Property Contrary to Section 45 (1) (a) as read with Section 48 of the Anti-Corruption and Economic Act against Maurice Odiwuor Amek, 3rd accused, sentenced to pay a fine of Kshs. 14,424,278 in default six (6) years imprisonment.5. Count V Unlawful Acquisition of Public Property Contrary to Section 45 (I) (a) as read with Section 48 of the Anti-Corruption and Economic Act against Michael Owino Ooro, 4th accused, sentenced to pay a fine of Kshs. 8,496,000 in default six (6) years imprisonment.6. Count VI Unlawful acquisition of public property Contrary to Section 45 (1) (a) as read with Section 48 of the Anti-Corruption and Economic Act against Isaac Ouso Nyandege sentenced to pay a fine of Kshs. 7,000,000/- (Seven Million) in default 5 (five) years imprisonment.7. Count VIII Abuse of office contrary to Section 46 as read together with Section 48 of the Anti-Corruption and Economic Act against Otieno Bob Kephas, Caroline Sang and Maurice Amek, 1st , 2nd and 3rd accused, sentenced to pay a fine of Kshs. 300,000/- (three hundred thousand) in default three years imprisonment.8. Count IX Abuse of office contrary to Section 46 as read together with Section 48 of the Anti-Corruption and Economic Act against Otieno Bob Kephas, Caroline Sang and Maurice Amek sentenced to pay a fine of Kshs. 300,000/- (three hundred thousand) in default three years imprisonment.9. Count X Abuse of Office Contrary to Section 46 as read together with Section 48 of the Anti-Corruption and Economic Act against Otieno Bob Kephas, Caroline Sang and Maurice Amek) sentenced to pay a fine of Kshs. 300,000/- (three hundred thousand) in default three years imprisonment.10. Count XI Fraudulent payment from public revenues for services not rendered Contrary to Section 45 (2) (a) (iii) as read with Section 48 of the Anti-Corruption and Economic Act against Otieno Bob Kephas, Caroline Sang and Maurice Amek sentenced to pay a fine of Kshs. 300,000/- (three hundred thousand) in default three years imprisonment.

35. Sentencing is generally a matter of discretion for the trial court, provided that the discretion is exercised judiciously.

36. For each Count from Counts II, III, IV, V and VI, the trial court sentenced the Respondents to double the benefit incurred. For the remaining counts I, VIII, IX, X, and XI, the court sentenced the Respondents to a fine of KShs. 300,000 in default 3 years’ imprisonment for each count. The learned Magistrate justified the sentence by stating that these particular offences were not quantifiable. In my view, the sentences imposed were within the law and should remain undisturbed.

37. In the upshot this court finds that the consolidated appeals and cross-appeal are unmerited and should be dismissed forthwith and the trial court’s judgment and sentence upheld.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 15THDAY OF DECEMBER, 2022. E. N. MAINAJUDGE