https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12579

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI CRIMINAL APPEAL NO. E044 OF 2025 JUSTINE NYANGARESI ARATI………………………………………………………………..APPELLANT VERSUS REPUBLIC…………………………………………………………………………………………. RESPONDENT **JUDGMENT** ***(Being an Appeal from the decision by Hon. P.N Gesora Chief Magistrate in Makueni EACC E001 of 2024 dated 10th December, 2024)*** **Introduction.** 1. The appellant was charged with three counts of receiving a bribery contrary to Section 6(1) as read with Section 18 of the Bribery Act No. 47 of 2016. The appellant was tried and found guilty in respect of all the three charges. He was convicted and sentenced to pay a fine of Kshs. 20,000/= on each count. 2. The particulars of the charges were that on 2nd, 4th and 9th days of June, 2020 at Kalamba shopping center within Makueni County in the Republic of Kenya, being a police officer attached at Kalamba Police Post he requested for a financial advantage of Kshs. 3,000/= from Nelson Musyoka Mbingu with intent that he would release motorcycle registration number KMDE 868W to him. 3. The appellant was aggrieved by the conviction and sentence and he lodged this appeal to the High Court. The appellant raised several grounds to wit: 4. *That the learned trial magistrate erred in law and fact by convicting the appellant without credible, corroborated or consistent testimony from the complainant, who denied making the initial report, denied receiving a recording device, and further swore an affidavit withdrawing his complaint;* 5. *That the learned trial magistrate erred in law and fact by relying on electronic evidence that was neither properly authenticated nor corroborated, contrary to the Evidence Act and applicable procedural safeguards, particularly when the chain of custody for the alleged recording was broken and the complainant denied participating in it;* 6. *That the learned trial magistrate erred in law and fact in failing to consider that the alleged subject of the bribe-the motorcycle- had already been released prior to the alleged bribery, thereby negating the required element of inducement or improper performance under Section 6(1)(a) of the Bribery Act No. 47 of 2016;* 7. *That the learned magistrate erred in law by failing to properly consider the defence of entrapment, despite the accused being lured into accepting money from unknown individual under circumstances orchestrated by EACC officers;* 8. *That the learned magistrate erred by shifting the burden of proof to the appellant, requiring him to explain the presence of marked money, despite clear contradictions and inadequacies in the prosecution’s case;* 9. *That the learned trial magistrate erred in fact and law by convicting the appellant against the weight of the evidence, which was riddled with inconsistencies, contradictions and procedural irregularities; and* 10. *That the trial court failed to properly evaluate the evidence and misapprehended material facts, thereby arriving at an unsafe and unsustainable conviction.* **Prosecution Case.** 1. The prosecution case was that on 4th June, 2020 the complainant (PW1) reported to EACC officers that his motorcycle had been intercepted by police officers who were enforcing curfew regulations following the Covid-19 pandemic among them the appellant herein. 2. The motorcycle had been intercepted on 31st May, 2020 wherein the appellant demanded a bribe of Kshs. 1,000/= else the motorcycle will be confiscated. He did not yield to the demand and the motorcycle was impounded and taken to Kalamba police post. 3. The complainant made a follow up and the appellant continued demanding a bribe to release the motorcycle. 4. PW10 an investigator with EACC took up the matter and inducted PW1 on how to use digital recorder. PW1 went and got the recording of the conversation with the appellant demanding Kshs. 3,000/= as bribe to release the motorcycle. 5. Following the recording PW10 instructed PW2 to translate the recording which was in Kiswahili and Kikamba into English. PW2 stated that the complainant recognized his voice where the appellant was demanding a bribe of Kshs. 3,000/= before the motorcycle can be released. PW2 produced the transcripts both the original and translated version of the same as exhibit. She also produced certificate of translation as exhibit. 6. In the meanwhile, PW10 introduced PW5 to the complainant and requested her to prepare treated money which she gave to the complainant to hand over to the appellant. 7. At the same time PW10 assembled a team of officer from EACC among them PW6, PW7 and PW8 to conduct a sting operation. They proceeded to Kalamba market and arrested the appellant when receiving the treated money from the complainant. 8. Upon arrest they did a quick search on the appellant and recovered the money from the accused left rear pocket of his trousers. The scene was also recorded. An inventory was prepared which was signed by the officers and the appellant. A certificate was also prepared pursuant to Section 106B of the Evidence Act. 9. PW10 then prepared an exhibit memo and forwarded swabs obtained from the appellant’s trouser and the treated money together with a controlled sample to PW9. PW9 analyzed the exhibits and found that the controlled sample was detected in the swabs obtained from the appellant. 10. PW3 confirmed that the appellant was employed as a police officer having been appointed on 6th July, 2017 and at the time of the alleged offence he was attached at Kalamba police post. 11. PW4 confirmed that he was informed of the arrest of the appellant on allegations that he had impounded a motorcycle and was demanding a bribe to release it. He the motorcycle was not at the station. He later identified the voice of the appellant from the recorded conversation and signed certificate of identification. 12. PW10 preferred the charges against the appellant after completing his investigations. **Defence Case.** 1. The defence case was solely based on the sworn testimony of the appellant. He confirmed that he was a police officer attached at Kalamba police post. 2. The appellant defence is that on 9th June, 2020 he was asleep after his shift when he received a call from unknown number. Later he went to a hotel. While there someone who money in his hand greeted him. Shortly he was arrested by EACC officers and taken to Machakos police station. 3. He said he was entrapped with the money and in any case the complainant swore an affidavit withdrawing the complaint. **Appellant’s Submissions.** 1. The appellant submitted that there was no credible and corroborative evidence to warrant conviction. He argued that the complainant swore an affidavit withdrawing the complaint. He testified that he was not interested in the case. He denied making report to the EACC officers nor being issued with any recording device. In essence it is argued that the allegations against the appellant were not true. The trial court was faulted for failing to evaluate these circumstances hence the conviction was unsustainable. 2. The appellant further submitted that nothing was produced in court to show that the alleged motorcycle was ever lawfully or unlawfully impounded. It is submitted that there was no Occurrence Book entry, inventory of seizure or any other records or evidence to show that the motorcycle was impounded and detained at the police post. In essence the appellant argues that there is nothing which would have motivated him to solicit or receive a bribe. 3. The appellant faulted the trial court for largely relying on the electronic evidence particularly the audio recordings which the complainant disowned raising fundamental questions as to their origin, identity of the maker and authenticity of such evidence. 4. The appellant further submitted that the entire case was founded on entrapment and investigator-driven. The appellant argued that the complainant did not initiate the report, the sting operation was orchestrated by the EACC officers and that the appellant was approached and handed over the trap money under controlled circumstances which the trial court failed to consider. 5. Finally, the appellant submitted that the trial court did not meaningfully consider his defence before dismissing it rendering the conviction unsafe. 6. In short the appellant argued that the prosecution did not prove the charges to the required standard of beyond reasonable doubt. **Respondent’s Submissions.** 1. The respondent maintained that the prosecution proved the charges beyond reasonable doubt as the evidence against the appellant was forthright, corroborated and credible. 2. Further the respondent submitted that the recantation and unwillingness of the complainant to take part in the proceedings does not negate the fact that he made a complaint which sparked the investigation. It is argued that the complainant took part in the investigations by recording statement which was corroborated by the other evidence adduced by the prosecution witnesses. 3. Regarding the challenge by the appellant on the electronic evidence adduced, the respondent submitted that the same met the legal threshold for admissibility under Section 106B (4) of the Evidence Act as certificates of the same were produced without objection from the defence. 4. The respondent submitted that the trial court did not shift the burden of proof on the appellant and if at all the same was shifted, it was within the requirements of the law. 5. The respondent further submitted that there was no entrapment as argued by the appellant. It is submitted that no pressure was put on the appellant to receive the bribe from the complainant. He freely requested for it. The respondent relied on the decisions in the case of ***Alexander Muturi Kinoti vs Republic Criminal Appeal No. E010 of 2023 (20241) KEHC 8354 (KLR)*** where the court dealt with the defence of entrapment in similar circumstances and the same was rejected. **Analysis and Determination.** 1. This being a first appeal to the High Court, the duty of this court is to examine the record and re-evaluate the evidence adduced before the trial court and draw my own independent conclusion. In so doing, this court cannot overlook the fact that it did not have the advantage of hearing and seeing the witnesses testify in court. It must make allowance for that fact but scrutinize the entire evidence adduced before the trial court. ***(See Okeno vs Republic (1972) E.A 32)*** 2. Further it must be appreciated that it is a cardinal principle of the criminal law that the prosecution has the duty to prove a charge against an accused person beyond reasonable doubt. ***(See Stephen Nguli Mulili vs Republic (2014) e KLR*** 3. Guided by the foregoing, I have re-evaluated the evidence adduced by the prosecution and the appellant’s defence before the trial court. The appellant was charged under Section 6(1)(a) of the Bribery Act which provide: ***“A person commits the offence of receiving bribe if-*** 1. ***the person requests, agrees to receive or receives a financial advantage intending that, in consequence, a relevant function or activity should be performed improperly by that person receiving the bribe or by another person.”*** 2. From the foregoing, the offence of receiving bribe is committed if a person requests or agrees to receive, or actually receive a financial or other advantage, with intention that a relevant function or activity is to be performed improperly regardless of whether the improper performance is by the person receiving the bribe or by another person. 3. Section 6(2) and (3) provides: ***“(2) For the purposes of subsection (1) (a) and (c) it shall not matter-*** 1. ***If the recipient requests for, agrees to receive or receive or intends to receive or accept advantage directly or through a third party; or*** 2. ***If the advantage is or is intended to be for the benefit of the recipient or another person.*** ***(3) for purpose of subsection (1) it shall not matter-*** ***(a) the recipient is performing the function or activity;*** ***(b) the person giving the bribe knows or believes that the performance of the function or activity is improper; or*** ***(c) where a person other than the recipient is performing the function or activity, whether that person knows or believes that the performance of the function or activity is improper.”*** 1. What is relevant function or activity is set out in Section 7 of the Act and includes function of public nature or carried out by a state officer or public officer. The function or activity performed must meet at least one of the conditions set out in section 7(1)(b) of the Act that it is expected to be performed in good faith, or to be performed impartially, or the person is in a position of trust by virtue of performing it. 2. From the foregoing the essential ingredients of the offence of bribery are that an accused person must have requested, agreed to receive or actually received financial or other advantage. The accused must have intended that a relevant function or activity should be performed improperly by the person or other person, and the function or activity must be of public nature or such a nature carried by a public officer. ***(See Gedeon Makori Abere vs Republic (2019) e KLR.*** 3. I have analyzed the trial court proceedings. It is clear that a report was made to the EACC that the appellant was asking for a bribe to release a motorcycle which had been impounded. Investigations were conducted by the EACC officers leading to the arrest of the appellant who was allegedly requesting for the bribe. 4. The complaint is said to have been made by the complainant (PW1). The record shows that the complaint was reluctant to testify in court. He swore an affidavit withdrawing the complainant. When he eventually appeared in court he declined to testify in court. He was declared a hostile witness 5. He was cross-examined on his statement. He admitted that his motorcycle was impounded by the police. He further admitted that he was given Kshs. 3,000/= by the officers from EACC. He further stated that his motorcycle was eventually released. 6. The appellant argued that the complainant having recanted his statement made to the police, the trial court ought not to have ignored his testimony and rely exclusively on the evidence of the investigators. 7. The jurisprudential interpretation of the weight to be attached to evidence of a hostile witness was considered in the case of ***Batala vs Uganda (1974) E.A 402*** where the Court of Appeal stated: ***“The giving of leave to treat a witness as hostile is equivalent to a finding that the witness is unreliable it enables the party calling the witness to cross-examine him and destroy his evidence. If the witness is unreliable, none of his evidence can be relied on, whether given before or after he was treated as hostile and it can be given little, if any, weight.”*** 1. Further in the case of ***Abel Monari Nyanamba & 4 Others vs Republic (1996) e KLR*** Lessit J as she then was in discussing how the evidence of a hostile witness should be treated stated: ***“The evidence of a hostile witness is indeed evidence in the case although generally of little value. Obviously, no court could find a conviction solely on the evidence of a hostile witness because his unreliability must itself introduce an element of reasonable doubt.”*** 1. Generally, a hostile witness is a person called to testify by a specific party in a trial, but whose testimony turns out to be openly uncooperative, biased or contradictory to the case of the party who called him. The question to be answered is whether the evidence of such witness should be totally discredited? 2. In answering the above I find persuasion in the Indian case of ***Sat Paul vs Delhi Administration (1976) 1 SCC 727*** where the Supreme Court of India in discussing how to treat evidence of a hostile witness stated: ***“From the above conspectus, it emerges clear that even in criminal prosecution when a witness is cross-examined and contradicted with the leave of the court by the party calling him, his evidence cannot as a matter of law, be treated washed off the record altogether. It is for the judge of fact to consider in each case whether as result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds in the process, the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness, as a whole, with due caution and care accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the judge should as a matter of prudence, discard his evidence in toto.”*** 1. From the above decision, it is clear that not all time the evidence of a hostile witness should be disregarded. If the court finds part of the evidence of the hostile witness credible looked against the entire evidence adduced by the prosecution it can proceed and accept the same. In other words, if such evidence is corroborated by some other material evidence on record, the court can still convict. 2. In the instant case, I have re-examined the record of the trial court. It is not in dispute that the complainant was declared a hostile witness prompting the prosecution to cross-examine him. 3. In cross-examination, although the complainant denied recording statement with the EACC officers, a statement was shown to him which he did not deny recording. Further the complainant was categorical that his motorcycle was impounded. He was also categorical that he was given treated money by the EACC officers to take to the appellant. 4. Further when cross-examined by the defence counsel, he confirmed a report was made to EACC officers although he denied making the report himself. Again, although the complainant denied making the report to the EACC officers, he admitted that they telephoned the appellant severally and finally the appellant was traced in a hotel. Further, even after denying any recordings were done, a transcript of the recordings was produced in court by PW2. 5. The totality of the foregoing is that the report leading to the arrest of the appellant on allegations of soliciting bribe to release the impounded motorcycle was triggered by the complainant. And when looked in the lens of the whole of the prosecution case, the trial court cannot be faulted to have ignored the hostile evidence of the complainant. Indeed, in his judgment, the trial court clearly observed that it all started with the complainant who triggered the conversation where demand for bribe was made, leading to the recordings and eventually arrest of the appellant. 6. The second ground raised by the appellant is that there was no evidence to show that the alleged motorcycle was ever impounded so as to motivate the appellant to request for a bribe. A clear reading of Section 6(2) and (3) of the Bribery Act (reproduced hereinabove), all the prosecution has to show is that an accused person requested or received a bribe. 7. In any case, PW1 categorically stated that his motorcycle was impounded and later returned to him. PW10 corroborated his evidence that it is the complainant who reported to EACC that the appellant was soliciting for a bribe. Initially, Kshs. 1,000/= which was later enhanced to Kshs. 3,000/=. There were also transcripts of the communication between the complainant and the appellant and audio clips produced in court to support that the appellant requested for bribe to release the motorcycle. 8. Further the import of Section 6(2) and (3) of the Bribery Act is that the offence of bribery is complete the moment a person in an official or working capacity asks for, obtain or attempts to obtain illegal benefit or reward, even if no money changes hands or the intended favour is never performed. 9. The appellant faulted the electronic evidence adduced before the trial court for not meeting the threshold under the Evidence Act. Section 106B of the Evidence Act prescribes the conditions for the admissibility and use of electronic evidence. Under subsection (4) such evidence must be accompanied by a certificate as proof of authenticity which must include identity of the electronic record and how it was produced, particulars of the device used and signature of a person responsible for the device. 10. In the instant case the prosecution relied on electronic evidence in form of transcripts and audio clips. They were all accompanied by certificate under Section 106B of the Evidence Act. The mere fact the complainant disowned the recordings, looked in totality of the evidence adduced by the prosecution can only be termed as a red herring considering that the complainant is the one who made the report to the EACC officers triggering the collection of the electronic evidence. 11. The appellant argued that trial court relied on evidence obtained through entrapment. A defence of entrapment can only succeed where it is clear that an accused person was induced to commit a crime which he was not disposed to commit. In such circumstances, such evidence is obtained contrary to Article 50(4) of the Constitution and is inadmissible. 12. In the instant case, it is clear from the evidence adduced that the complainant reported to the EACC that the appellant was asking for a bribe. Following this report the EACC officers conducted a sting operation to nab the appellant. Had the complainant not solicited for a bribe from the complainant, EACC officers would not have swung to action and conduct the operation. It cannot be correct as argued by the appellant that the entire transaction was driven by the investigators so as to argue that the appellant was induced to commit the offence. 13. The totality of the evidence adduced before the trial court which I have evaluated clearly shows that after the complainant’s motorcycle was impounded, the appellant asked for bribe to release the same. This is what triggered the operation by the EACC officers and the arrest of the appellant. There was no entrapment as argued by the appellant. 14. The appellant argued that the trial court did not consider his defence. It is clear from the judgment of the trial court that his defence was considered and found to be untenable. I have equally as the first appellate court considered the appellant’s defence weighed against the prosecution case and I find the same did not rebut the prosecution case. 15. The sum total of the foregoing is that the appeal herein is not merited in the circumstances and the same is dismissed. The finding of the trial court both on conviction and sentence is upheld. **Dated, signed and delivered virtually this 6th day of August, 2026** **Francis Kyambia** **Judge of the High Court.**