[2022] KEHC 16007 (KLR)

Ndung’u v Republic (Anti-Corruption and Economic Crimes Appeal 22 of 2017) [2022] KEHC 16007 (KLR) (Anti-Corruption and Economic Crimes) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16007 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Appeal 22 of 2017

EN Maina, J

December 1, 2022

Between

Joseph Karanja Ndung’u

Appellant

and

Republic

Respondent

(Being an Appeal against the judgment of Hon. Felix Kombo SPM in Milimani Anti-Corruption Case No. 14 of 2012 Republic v Eden Odhiambo Robinson, Ruth Wanyagu Sande, Orego Odhiambo Fredrick, Joseph Karanja Ndung’u, Flora Ngina Ngonze, George Muya Njoroge, and George Ochanda Machooka)

Judgment

1. The appellant was the 4th accused of seven persons charged with three offences pertaining to the award of a Tender for supply of promotional materials to the Catering Tourism Development Levy Trustees where the appellant held the position of Head of Procurement. The first charge was a joint charge of careless failure to comply with the law relation to procurement contrary to section 45 (2) (b) of the Anti-Corruption and Economic Crimes Act. The particulars of the charge were: -“On divers dates between the September 6, 2010 and October 28, 2010 at the Catering and Tourism Development Levy Trustees offices within the City of Nairobi in Nairobi County of the Republic of Kenya, being members of Catering and Tourism Development Levy Trustees Tender Committee, persons whose functions concerned the management of public property, jointly and carelessly failed to comply with the law relating to procurement by carelessly failing to comply with provision of section 88(b) of the Public Procurement and Disposal Act, 2005 as read with Regulation 59 of the Public Procurement and Disposal Regulations, 2006 by disregarding the threshold matrix in the first schedule of the said Act when awarding the procurement of promotional materials tender number CTDLT/Q4/2010-2011 to M/s Pinnacle Media Productions Limited through the Request for Quotation Procedure.”

2. The Appellant was separately charged with two counts of Making a document without authority contrary to Section 357 (a)of thePenal Code. On both counts it was alleged that between September 6, 2010 and October 28, 2010 the appellant had with intent to deceive and without lawful authority or excuse made two documents to wit CTDLT Request for Quotation (count 2) and CTDLT Confidential Business Questionnaire (count 3), purporting that the said documents were submitted by M/s Ultra Limited as part of a bid for Tender No CTDLT/Q/04/2010 – 201.

3. The appellant and his co-accused all pleaded not guilty to the charges but upon hearing and evaluating the evidence presented before him the trial magistrate found the Appellant’s co-accused not guilty of the charge in which they were jointly charged (count1) but convicted the Appellant on that count and also on counts 2 and 3. The magistrate however exercised his powers under Section 179 (2) of the Criminal Procedure Code and to reduce Counts 2 and 3 and substituted them with a conviction for the offence of Forgery contrary to Section 349 of the Penal Code.

4. The Appellant was subsequently sentenced as follows:-“Count I:To pay a fine of Kshs 750,000/=.Count 2:To pay a fine Kshs 250,000/= each in default of payment of fine to serve imprisonment for one year in each count.”

5. Being aggrieved by the conviction the appellant preferred this appeal which is premised on the following grounds: -“1. The learned trial magistrate erred in law and fact by convicting the appellant on the ground that the appellant was a member of the tender committee.2. The learned trial magistrate erred in law and fact by convicting the appellant on the ground that he used the wrong procurement method.3. The learned trial magistrate erred in taw by convicting the appellant on the ground that the items ought to have been procured under open tender method.4. The learned trial Magistrate erred in law by disregarding the statutory guidance by the Public Procurement Oversight Authority that the Request for Quotation maximum value of Kshs 1,000,000/= was per item.5. The learned trial magistrate misconducted himself by finding that ignorance of the Public Procurement and Disposal Act, 2005 and the Regulations thereunder was a defence for the members of the tender committee.6. The learned trial magistrate erred in law and fact by failing to find that by failing to invite an expert to assist it deliberate the matter before it the tender committee was deemed to understand and know the law.7. The learned trial magistrate erred in law and fact by finding that the appellant had an implied duty to advise the tender committee.8. The learned trial magistrate erred in law by failing to find that it was the duty of the tender committee to independently review. verify and ascertain that the procurement method adopted was in tandem with the Act, the Regulations and the directives of the Public Procurement Oversight Authority.9. The learned trial magistrate erred in law and fact by convicting the appellant on evidence not adduced by the tender committee.10. The learned trial Magistrate erred in law by disregarding the statutory guide by the Public Procurement Oversight Authority that the appellant had no role other than minute taking during the tender committee meeting.11. The learned trial magistrate erred in law and fact by convicting the appellant on the evidence of PW 1 1 who was not a credible witness.12. The learned trial magistrate erred in law by finding that the appellant had made and uttered the impugned quotations.13. The learned trial magistrate erred in law by convicting the appellant based on the unlawful and uncorroborated opinion of PW 14. 14. The learned trial magistrate erred in law and fact by convicting the appellant without any evidence that he personally benefitted from the forged quotations.15. The learned trial magistrate erred in law and fact by failing to find that the prosecution evidence was weak and incapable of sustaining a conviction.16. The learned trial magistrate erred in law and fact by failing to give the benefit of the doubt generated by the flaws in the investigations, the generality of the circumstances of the case and presentation of the evidence by the prosecution as required by law.17. The learned trial magistrate misconducted herself by failing to abide by case law before and binding on him and by failing to record his reasons therefore.18. The conviction in the circumstances of the case was such that a manifest travesty of justice occurred therein.”

6. The appeal is vehemently opposed.

7. Counsel for the parties canvassed their arguments by way of written submission.

8. Mr Gachuba, learned counsel for the appellant quoted heavily form the Public Procurement and Disposal Act, 2005 and submitted that the appellant was not a member of the tender committee, that no evidence was adduced before the trial court to demonstrate that the tender committee sought any advice from the appellant or that the appellant indeed gave the tender committee such advice; that the trial magistrate should not have admitted the evidence given against the appellant by the co-accused; that the charges were not proved beyond reasonable doubt; that evidence of a handwriting/document examiner is never conclusive and that therefore the trial magistrate erred in convicting the Appellant and this court should allow the appeal quash the conviction and set aside the sentences.

9. Learned counsel for the appellant also placed reliance on the following decided cases: -1. Anyuma S/O Omolo & Another vs Republic(1953) 20 EACA 218 – where it was held that the confession of a co-accused is the weakest kind: that it is accomplice evidence needing corroboration.2. Republic vs Wadingombe bin Mkwanda & others91941) 8 EACA 33 where it was held that it would not be proper to convict on the unsupported evidence of a co-accused.3. Hassan EA, the case of Republic vs Podmore (1930) 46 TLR365 and the case of Wakeford vs Lincoln (Bishop) (1921) 90 LJPC 174 where it was held that a handwriting expert can only point out similarities in the handwritings but cannot make a conclusive opinion that the handwriting was that of a particular person.

10. On her part learned Prosecution Counsel M/s Ndombi submitted that the trial court properly analyzed the evidence. She stated that the Appellant being a Procurement Manager had knowledge of the best procurement method for different tenders but he did not offer advice to the Tender Committee yet those members had no prior knowledge of procurement procedures. Learned Counsel contended that in regard to the charges of forgery there was water tight evidence against the Appellant as all the quotations and regret letters emanated from his office and the evidence of the document examiner, supported this. Counsel urged this court to dismiss the appeal for lack of merit.

11. In a rejoinder filed in answer to the submissions of the Respondent, Learned Counsel for the Appellant reiterated that the Appellant was not a member of the tender committee. Counsel submitted that the Appellant was not an advisor to the Tender Committee either; that Regulation 12(7) of the Public Procurement and Disposal Regulations 2006 provided that a tender committee could invite independent advisors or members of the procurement unit to explain submissions or to provide technical advice, where required. Counsel argued that Section 27 (3) of the PPDA 2005 obligated each member of the Tender Committee to ensure compliance with the law but that the Appellant was not a member. Quoting Section 27(3) of the PPDA 2005 and Regulation 10 (2) (b) of the 2006 Regulations Counsel asserted that there was no evidence to demonstrate that the Appellant performed the statutory functions of the tender committee and that the appellant wondered why the Respondent refused to appeal the trial magistrate’s erroneous findings and acquittal of the appellant’s co-accused. Counsel contended that if there was any willful or careless failure to comply with the law and guidelines relating to procurement then such failure could only be attributed to the tender committee. Counsel also stated that the Respondent did not cite any law that required the Appellant to have knowledge of the best procurement method to be used or to offer advice to the Tender Committee on the same. He urged this court to find that the conviction is unsafe, quash the same and set aside the sentences and consequently order the fines be refunded.

Analysis and Determination. 12. As the first appellate court my duty is to reconsider and evaluate the evidence before the trial court so as to arrive at my own independent conclusion while keeping in mind that I did not see or hear the witnesses who gave evidence. See the case of Okeno vs Republic (1972) EA 32 and the case of Kiilu & Another vs Republic (2005), KLR 174. I have also taken the rival submissions into account.

13. On count 1 the appellant and his co-accused were charged under section 45 (2) (b) of Anti-Corruption & Economic Crimes Act (ACECA) which states:“2. An officer or person whose functions concern the administration, custody, management, receipt or use of any part of the public revenue or public property is guilty of an offence if the person:-(a)...............(b)willfully or carelessly fails to comply with any law or applicable procedures and guidelines relating to the procurement, allocation,sale or disposal of property, tendering of contracts, management of funds or incurring of expenditures;…”

14. This is a charge which pertains to officers or persons who are concerned with among others, the management of public property or revenue. The appellant and his co-accused were alleged to have committed the offence for carelessly failing to comply with section 88(b) and Rule 59 of the Regulations 2006 by disregarding the threshold matrix referred thereto.

15. There is no dispute that the Appellant was the Head of Procurement at the CTDLT (Catering & Tourism Development Levy Trustees). As such he was an officer charged with inter alia, the management, receipt or use of any part of public property as is envisaged in Section 45(2) of the ACECA. He was an expert in procurement matters hence his employment in that entity in the capacity of Procurement Manager. It is evident even from his own defence that he was present when the tender the subject of this charge was awarded. My reading of the evidence as a whole revealed that the other members of the tender committee had no prior knowledge of procurement matters.

16. The tender the subject of the charges against the Appellant was for goods worth over Kshs. 11 million. The relevant threshold matrix for a Class A Procuring Entity such as the CTDLT was the First schedule of the Regulations which provided that the Request for Quotation method could be used only if the maximum level of expenditure did not exceed Kshs. 1,000,000/=. The provision read as follows: -“maximum level of expenditure under this method is Kshs 1,000,000/=”.

17. In my view the aforestated minimum referred to the entire expenditure but not to the unit price and as such to begin with the method used by the Tender Committee was erroneous as for any expenditure above Kshs 1,000,000/= the open Tender Method should have been used.

18. The Appellant referred to an FAQ document to justify the use of the request for quotation but in my view the FAQ document was not relevant and would not have in any case superseded the Act and Regulations.

19. As stated earlier the Appellant was the only expert in procurement matters who was present when the Tender Committee made its deliberations in regard to this tender. While he may not have had a vote or place in the decision making of the committee it behooved him to offer guidance to the other members. As stated earlier he was an employee of the procuring entity and an officer whose functions concerned the management of public property and under Section 27 (3) of the PPDA, 2005 each employee of a public entity, as he was, had an obligation within the area of his/her responsibility to ensure compliance with the Act and the regulations. It is also evident that because of his silence the Tender Committee erroneously applied the incorrect threshold matrix. Indeed, in his defence the 1st accused stated that the Appellant herein had no issues with the matrix applied hence their choice. This in my view translates to abdication of responsibility hence willful and careless failure on the part of the Appellants. Further had he wanted to, he could have corrected the error when the CEO of the CTDLT requested him to convene a meeting to discuss the tender. I am satisfied therefore that the Appellant willfully ignored the provisions of Sections 26 (3) (b), 88 (b), Section 89 (2) (c) of the PPDA 2005, and Regulation 59 (1) of the PPD Regulations Act. The violation of Section 89 (2) (c) arose when he purported to have issued requests for quotations to four firms knowing very well that only one company Media Productions would receive the same.

20. The objectives of the provisions of thePublic Procurement and Assets Disposal Actare inter alia to encourage competition but it is clear from the evidence that the conduct of the Appellant right from the beginning was intended to stifle that objective. That explains why he deliberately kept mum when the Tender Committee resorted to the wrong procurement method and why he ensured that the request for quotation was sent to only one company. I am satisfied that count 1 of the charge was proved against him beyond reasonable doubt and that the trial magistrate did not err in convicting him for the offence.

21. In regard to counts 2 and 3 there is no doubt in my mind that the documents referred to were forgeries. This was confirmed even by Mr Mweni (DW8) a handwriting expert witness called by the Appellant. The documents did not emanate from Ultra Limited. Indeed, witnesses from the four companies to whom it was purported the request for quotations were sent all denied participating in the procurement. It was their evidence that they were not invited to participate in the tender. There was other evidence such as Appellant being associated with making of the documents by the document examiner, there was also evidence from PW11 (Mary Kitaka) that she received the documents from the Appellant.

22. Whereas the evidence of a handwriting expert is just but an opinion which is not binding on the court there is no reason for this court to disregard the opinion that was offered by the handwriting expert as there was other evidence tending to the guilt of the accused in so far as his preparation of the questioned documents was concerned. That evidence included that of PW11 who categorically disputed that she prepared or issued documents to the four firms or even that she was involved in the selection of those companies and that she got the questioned documents from the appellant but not from the Tender box.

23. In regard to the contradiction between the evidence of the two handwriting experts I find that having considered the evidence as a whole that of PW14 was more credible and reliable. This is also given that PW14 was able to explain the methodology he had used to arrive at his conclusion while DW8 did not. It was also evident that the equipment used by PW14 was better placed to give a more reliable result.

24. In the upshot I am satisfied beyond reasonable doubt that the Appellant committed the offences for which he was convicted in counts 2 and 3. The trial magistrate applied the correct principle in exercising his power under section 179 (2) Criminal Procedure Code to reduce the charge as he did. The appeal therefore fails and it is dismissed in its entirety. The conviction and sentences imposed by the trial court are affirmed and upheld. It is so order.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 1ST DAY OF DECEMBER, 2022. E.N. MAINAJUDGE