Omondi v Republic (Criminal Appeal E095 of 2023) [2026] KECA 1515 (KLR) (31 July 2026) (Judgment)

Omondi v Republic (Criminal Appeal E095 of 2023) [2026] KECA 1515 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1515 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Appeal E095 of 2023 PO Kiage, RB Ngetich & S Radido, JJA July 31, 2026 Between James Ambuso Omondi Appellant and Republic Respondent (Being a partial Appeal from the Judgment of the High Court at Nairobi, Anti-Corruption & Economic Crimes Division (E. Maina J) given on the 26th January 2023 in ACEC Appeal No. 2 of 2022) Judgment 1.In a judgment delivered on 26th January 2023, the High Court (E. Maina, J) partially upheld the conviction and sentence imposed on James Ambuso Omondi (the appellant) by the subordinate court in respect of two charges of corruptly receiving benefits contrary to section 39(3)(a) of the Anti-Corruption and Economic Crimes Act (repealed) as read with section 27(2) of the Bribery Act, 2016, and section 48(1) of the Anti-Corruption and Economic Crimes Act. 2.The charge sheet set out the two counts in the following terms:Count TwoCorruptly receiving a benefit contrary to section 39(3)(a) of the Anti-Corruption and Economic Crimes Act No. 3 of 2003 (now repealed) as read with section 27(2) of the Bribery Act, 2016 and section 48(1) of the Anti-Corruption and Economic Crimes Act No. 3 of 2003.Particulars of the offence James Ambuso OmondiBetween 14th May 2012 and 11th February 2013 in Nairobi County within the Republic of Kenya, being a person employed by a public body to wit, the Water Resources Management Authority, as the Finance and Administration Manager received a benefit of cash amounting to Kshs 445,000/- from Geoffrey Mworia and Patrick Ngemi Masaku as an inducement so as to facilitate continuous disbursement of operation and development funds to the Water Resource Management Authority Mombasa Regional office a matter relating to the affairs of the said public body.Count FiveCorruptly receiving a benefit contrary to section 39(3)(a) of the Anti-Corruption and Economic Crimes Act No. 3 of 2003 (now repealed) as read with section 27(2) of the Bribery Act, 2016 and section 48(1) of the Anti-Corruption and Economic Crimes Act No. 3 of 2003.Particulars of the offence James Ambuso OmondiBetween 12th January 2012 and 20th April 2013 in Nairobi County within the Republic of Kenya, being a person employed by a public body to wit, the Water Resources Management Authority, as the Finance and Administration Manager corruptly receive a benefit of cash amounting to Kshs 465,000/- from Boniface Mbeu Mwaniki as an inducement so as to facilitate continuous disbursement of operation and development funds to the Water Resource Management Authority Tana Catchment Area, a matter relating to the affairs of the said public body. 3.The appellant, further aggrieved with the judgment of the superior court, preferred a second appeal to this Court on the grounds that:i.By sustaining the appellant’s conviction by the lower court on counts 2 and 5 being on the offence of corruptly receiving a benefit upon acquitting the accused on the convictions for the offences of corruptly soliciting for lack of any evidence, the High Court erred in law and fact and departed from the law and binding vertical and horizontal precedents by both the High Court and Court of Appeal.ii.That in upholding the Appellant’s conviction on the 2 counts of corruptly receiving a benefit in the absence of evidence of solicitation and inspite of a plethora of exculpatory evidence, the court violated the stare decisis principle thereby creating uncertainty, unpredictability and unreliability in the law contrary to the rule of law as envisaged by Article 10 of the Constitution, precedent and judge made law.iii.The High Court, in any event, erred in law and fact in holding that the offence of corruptly receiving a benefit had been proved in the face of such glaring evidence to the contrary, proving that no corrupt benefit had been solicited and received and that nobody ever gave out any money for the corrupt benefit to be received.iv.That in upholding the Appellant's conviction on the offence of corruptly receiving a benefit, the Court had lowered the standard of proof in criminal offences to below reasonable doubt and had further shifted the burden of proof in criminal cases to the accused Appellant. 4.The Appeal was heard on 2nd March 2026. Learned counsel Mr Dudley Ochiel and Mr Namada appeared for the Appellant while Learned Principal Prosecution Counsel Ms Njoki Keng’aara appeared for the Republic. Counsel highlighted their written submissions. 5.In advancing the Appellant’s case, Mr Ochiel and Mr Namada made rather straightforward arguments. 6.Taking refuge in Peninah Kimuyu v Republic (2014) KECA 470 (KLR), the counsels urged that an accused person could not be convicted of the offence of corruptly receiving a benefit if they were acquitted of the charge of corruptly soliciting that benefit. 7.The Appellant cited a passage in Kimuyu to the effect that:“It seems quite clear to us that Section 39(3) of the Act does not at all create an offence of strict liability. There is no deeming of criminal culpability from the mere fact of receipt of a benefit, itself an often-contentious issue, as the facts of this case show. It cannot have been the intention of Parliament, and it be surmised from a plain reading of the provision, that once it is shown that an accused person had some money on him, then he must have been bribed. Were that the case, nothing would be easier than for sums of money to be conveniently placed within the possession and control of persons who never demanded, solicited or knew about it and thereby secure their automatic conviction on charges of receiving bribes. 8.The Appellant decried that the superior court avoided following a chain of authorities set by the superior court itself in Stephen Ouma Ambogo v Republic (2021) eKLR and Patrick Munguti Nunga v Republic (2013) eKLR. In these two decisions, the High Court held that where a person had been acquitted of the offence of corruptly soliciting a benefit, then the offence of corruptly receiving a benefit could not stand. 9.The Respondent acknowledged that what was before the superior court was a first appeal and that the court correctly applied the principles set out in Okeno v Repbulic (1972) EA 32. 10.In the same vein, the Respondent agreed that what was before this Court was a second appeal. In this respect, the Respondent supported the conviction and sentence as upheld by the superior court below, and asserted that it had been proved beyond reasonable doubt that the Appellant had corruptly received a bribe to disburse funds due to several projects. The Respondent further contended that both courts below had made concurrent findings that the Appellants had corruptly received a bribe to disburse public funds and that this Court ought not to disturb the concurrent findings of fact. The Respondent did not cite any case law on the legal question posed by the Appellant. 11.This is a second Appeal. Section 361(1)(a) of the Criminal Procedure Code delineates this Court’s jurisdiction on second appeals. It provides:361.Second appeals1.A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section —a.on a matter of fact, and severity of sentence is a matter of fact; orb.…. 12.This Court examined the contours of the provision in Ahamad Abolfathi Mohammed & another v Republic (2018) KECA 743 (KLR) wherein it held:…. a second appeal, we are obliged, by dint of section 361 (1) (a) of the Criminal Procedure Code to consider only issues of law. Where the two courts below have made concurrent findings of fact, we are further obliged to respect those findings unless we are satisfied that the conclusions are not supported by the evidence or are based on a perversion of the evidence. 13.There is no dispute that the superior court upheld the conviction and sentence of the Appellant on the two counts of corruptly receiving and acquitted him on the antecedent counts of corruptly soliciting. 14.The question is, therefore, whether the superior court departed from binding precedent and created instability, unpredictability, inconsistency and incoherence in the rule of law by acquitting the Appellant of the charge of corruptly soliciting a benefit, but upholding the charge of corruptly receiving a benefit. 15.In the Kimuyu judgment relied on by the Appellant, this Court posed the question:Can a person be convicted of an offence of receiving a benefit contrary to section 39(3)(c) of the Act if he gets acquitted of soliciting that very benefit? Put another way, can one be guilty of receiving if he did not solicit under the provision? 16.This Court answered the question in Kimuyu (supra), and the answer has been set out in paragraph 7 above. We have not been given any reason to depart that precedent which remains good law. 17.The superior court acquitted the Appellant of the antecedent counts of solicitation. It could not, therefore, uphold the Appellant’s conviction on the charge of corruptly receiving benefits arising from the same transactions. 18.In the circumstances, the superior court fell into an error of law. 19.The logical result is that we find merit in the Appeal.We quash the conviction and set aside the sentence imposed by the superior court, and order that any fines paid by the Appellant be refunded to him. DATED AND DELIVERED AT NAIROBI ON THIS 31ST DAY OF JULY, 2026.P. O. KIAGE……………………...………..JUDGE OF APPEALR. NGETICH………………………………JUDGE OF APPEAL RADIDO S. OKIYO………………………………….JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR