[1993] KECA 62 (KLR)

IN THE COURT OF APPEAL

AT NYERI

(Coram: Apaloo CJ, Gachuhi & Cockar JJ A)

CRIMINAL APPEAL NO 113 OF 1992

KIMUNYU ……….………...APPELLANTS

VERSUS

REPUBLIC………..……….RESPONDENT

(Appeal from a judgment of the High Court of Kenya at Nyeri

(Mr Justice PK Tunoi) dated 20th September, 1992,

in HC CR Appeal No 109 of 1992)

JUDGMENT

The appellant, a clerical officer in Kirinyiga District Land Office at Kerugoya, was convicted of corruption contrary to section 3 (1) of the Prevention of Corruption Act (Cap 65) of the Laws of Kenya, and sentenced to four years’ imprisonment. His appeal against conviction to the superior court at Nyeri was dismissed but the sentence was reduced to 2 years’ imprisonment. This being a second appeal it is not for this Court now to question the concurrent findings of fact made by the two lower courts. After claiming that six of the seven grounds of appeal had raised issues on law, Mr Mahan, who appeared for the appellant, then argued grounds No 3, 4, and 7 together and grounds No 1, 2, and 5 together. He abandoned ground no 6 as that related to sentence.

With regard to grounds No 3, 4, and 7 which he argued first, Mr Mahan’s contention was that having accepted the evidence of the complainant, Police Inspector John Ndungu Munoru (PW1), a prosecutor at Makadara Law Courts, and having made findings of fact thereon, neither of the two lower courts thereafter had made any attempt to consider the true legal relationship that was created between the complainant and the appellant during the period that the corrupt demand was made. He maintained that had either of the two lower courts directed its mind to a consideration of that issue then a proper finding would have been that PW1 was an accomplice, whose evidence needed corroboration. That failure amounted to a misdirection.

This being an interesting point of law, we feel that in order to be able to grapple with it properly, it would be of benefit to briefly recount the facts relating to the events when the first and the subsequent and more onerous corrupt demands were made. What happened was that the complainant, desirous of having land parcel Ngariama / Lower Ngariama / 580 registered in his favour, presented the requisite documents at the Revenue Office, Kerugoya, in order to pay the required stamp duty plus the other necessary fees to enable registration to be effected. The stamp duty was assessed at Shs 3,000/=, and he was required to pay Shs 3,350/- which included fees for items like certificate of title, search certificate, opening new register, copying and preparation. He paid the sum of Shs 3,350/= at the Revenue Office and obtained the official receipt (Ex 4 ). He then took the documents to Land Office at Kerugoya and presented them at the counter. About 15 minutes later the appellant called out his name beckoned him outside, leading him to a place behind the main building. Here he demanded to be paid Shs 500/=. The complainant asked him what this money was for as he had already paid the whole of the sum of Shs 3,350/=. The appellant told him that it was to speed up the registration and issuance of the title. The complainant who did not have the money pleaded for the registration to proceed and that he would pay the money later but all to no avail. After a week he returned with Shs 500/= and was met by the appellant and a tall lady who was holding his documents. They both now demanded Shs 2,000/= for processing of the title deed and refused to accept Shs 500/=. The complainant said that he then became suspicious, reported to the police at Nyeri, and a trap was arranged. What followed has no bearing on the issue of whether or not the complainant was an accomplice and so we will now deal with arguments put forward by Mr Mahan on this issue.

Mr Mahan, after stressing that the complainant was not an ordinary layman but an Inspector of Police engaged in prosecuting criminal cases before criminal courts, questioned his behaviour in failing to arrest the appellant immediately when the corrupt demand was made, failing to report to the police immediately and finally bringing the money corruptly demanded in order to pay it. To reinforce his arguments Mr Mahan drew the Court’s attention to the following passages from the complainant’s evidence:

“We went behind the main building. He told me I had to pay 500/=. I asked him what the money was for as I had paid the whole amount ie 3,350/=. He told me the money was for speeding the process of my title deed and it was his boss who required it. I told him I had no such money as I had finished all the money I had . He told me to go and look for 500/= before the title deed could be processed. I pleaded with him to process the title and I would bring the money later and he refused. I went home. On 8th October, 1990, I went back to the said Lands Office ready with the 500/=. I met the accused. He recognised me. He came out and called me outside. He asked me if I had brought the 500/= and I told him yes”

And near the end of his cross-examination this is what the complainant had said:

“………. I had no intention of victimizing anyone until accused demanded further money from me.”

Mr Mahan argued that neither of the two lower courts had made any finding on the nature of the complainant’s role after he acceded to meet the corrupt demand for Shs 500/=. He knew that this money was for speeding up the process of issuance of the title deed and that the money was meant for the appellant’s boss. During cross-examination there was a clear admission of the fact that had further demands not been made the complainant would have paid the corrupt demand of Shs 500/= and made no report about it to the authorities.

The actions of the complainant up to this stage, according to Mr Mahan, were clearly those of an accomplice who was willing to meet the corrupt demand of Shs 500/=. We entirely agree with Mr Mahan that the complainant became an accomplice when he agreed and infact brought the sum of Shs 500/= with him to pay knowing that this was a corrupt demand. However, thereafter, he was a statutory accomplice in relation to events which took place following the report he made to the police after the amount being demanded corruptly was increased. We observe that in the authority cited by Mr Mahan – Norbert Oluoch Obanda v Republic[1982-88] 1 KAR 325 in which the facts were of a similar nature to those in this appeal, the Court of Appeal had similarly distinguished the role of the complainant into a real accomplice and a statutory accomplice. Both the lower courts had, as Mr Mahan rightly pointed out, completely over-looked this issue and failed to make a finding thereon from the evidence which both had accepted. We accept Mr Mahan’s submission that the complainant’s evidence needed independent corroboration.

However, in this case, a failure on the part of the lower courts to make a finding that the complainant was an accomplice whose evidence needed corroboration, is not going to be of any assistance to the appellant. Corroboration is supplied by the events relating to the successful execution of the trap laid down by the police. On 16th October, 1990, the trap almost aborted when the appellant refused to accept even the increased demand of Shs 2,000/= and had, instead demanded a further sum of Shs 1,000/=. The police responded by cutting pieces of paper into the shape and size of Shs 100/= notes and covering them with two genuine notes which the complainant on 18th October, 1990, handed over to the appellant together with the bundle of the genuine treated Shs 2,000/=. It was while the appellant was counting the bundle of Shs 2,000/= that the police pounced on him. These events, and in particular those relating to his receiving the money, not at the counter in the land registry but inside Maru’s bar, his counting it, his re-action on noticing the paper money, all provide a strong corroboration to the complainant’s evidence. On account of that, despite the failure on the part of both the lower courts to consider and make a finding on this issue, we reject grounds No 3, 4, and 7 of the appeal.

In respect of grounds No 1, 2, and 5 Mr Mahan contended that the act of receiving the money had not been completed and therefore it had not been established that the appellant had in actual fact received the money. In his view the act of receiving would have been completed if the appellant had done something more such as putting the money in his pocket or walking away with it. With respect we do not subscribe to that view. The prosecution evidence clearly showed that the appellant took hold of the money in order to keep it. There is no evidence of an unwillingness on his part to accept the money. His act of counting the money reinforces the inevitable conclusion that he was doing so because he intended to keep the money. We are satisfied that the act of receiving the money by the appellant had been completed by the time the police pounced on him arrested him and we, therefore, reject these grounds of appeal also. This is a safe conviction and we dismiss the appeal.

Dated and Delivered at Nyeri this 22nd day of July, 1993

F.K. APALOO

……………………

CHIEF JUSTICE

J.M. GACHUHI

………………………….

JUDGE OF APPEAL

A.M COCKAR

………………………….

JUDGE OF APPEAL