[2022] KEHC 11642 (KLR)

Oduor & another v Republic (Criminal Appeal 97 of 2019) [2022] KEHC 11642 (KLR) (11 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11642 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal 97 of 2019

SN Riechi, J

May 11, 2022

Between

Edwin Otieno Oduor

1st Appellant

George Moseti

2nd Appellant

and

Republic

Respondent

(Being an appeal from the Judgment, conviction and sentence of Honourable D.O Onyango then acting Senior Principal Magistrate Court at Kimilili EACC case NO. 1 of 2018 delivered on 21st June 2019)

Judgment

1. The 1st appellant is Edwin Otieno Oduor and 2nd appellant George Moseti were charged in Senior Principal Magistrates court Kimilili with 3 counts under the Bribery Act.Count 1: Receiving a bribe contrary to section 6 (1) (a) as read with section 18(1) and (3) of the Bribery Act, 2016.

2. The particulars of the offence is that Edwin Otieno Oduoron 28th December, 2016 at the Kabras police station within Kakamega County, being traffic police officer at Kabras Sub Base, improperly requested a financial advantage of Kshs 20,000 from Glyde Wemanya, with intent to improperly release a motor cycle reg. no. KMDJ 234K make TVS LX model which was detained at Kabras police station for unspecified traffic offences.Count II: Receiving a bribe contrary to section 6 (1) (a) as read with section 18 (1) and (3) of the Bribery Act, 2016.

3. The particulars of the offence is that Edwin Otieno Oduoron January 30, 2017at the Kabras police station within Kakamega County, being traffic police officer at Kabras Sub Base, improperly requested a financial advantage of Kshs 5,000 from Glyde Wemanya, with intent to improperly release a motor cycle reg. no. KMDJ 234K make TVS LX model which was detained at Kabras police station for unspecified traffic offences.Count III: Receiving a bribe contrary to section 6 (1) as read with section 18(1) and (3) of the Bribery Act, 2016.

4. The particulars of the offence is that George Mosetion January 30, 2017at the Kabras police station within Kakamega County, being traffic police officer at Kabras Sub Base, improperly received a financial advantage of Kshs 5,000 from Glyde Wemanya, with intent to improperly release a motor cycle reg. no. KMDJ 234K make TVS LX model which was detained at Kabras police station for unspecified traffic offences.

5. After full hearing the appellants were found guilty of the offence of Receiving a bribe contrary to section 6 (1) as read with section 198 (1) and (3) of the Bribery Act and each fined Kshs 50,000 in default 12 months imprisonment. Dissatisfied with the conviction and sentence they both appealed to this court. Mr. Kituyi filed appeal for 1st appellant Edwin Otieno in Bungoma HCCRA 78 of 2019 and Mr. Musyoki Mogaki for 2nd appellant in Bungoma HCCRA 97 of 2019. Both appeals having arisen from same file in Kimilili EACC 1/2018 were consolidated and ruling file adopted as Bungoma HCCRA 97/2019.

6. Mr. Kituyi for 1st appellant in his ground of appeal stated.1. That the trial magistrate erred in law and fact by making a conclusion that the 1st appellant committed an offence of bribery contrary to Section 6 (1) (a) as read together with section 18(1) and 3 of the Bribery Act 2016 without consideration that no certification of authentication by prosecution witnesses was ever produced before court to corroborate their evidence on exhibits.2. That the trial magistrate erred in law and fact to convict the 1st appellant on evidence of identification of trouser when it was clear that prosecution witnesses gave contradicting colour with exhibits before court which evidence was clearly rebutted by the defence.3. That the trial magistrate erred in law and fact by convicting the appellant on the alleged charge of bribery heavily relying on evidence video exhibit which exhibits could not corroborate evidence of the prosecution witnesses on demand of bribery and the same showing blurred images.4. The trial magistrate erred in law and fact to convict the 1st appellant person on alleged charge of bribery which particulars of charge were defective and do not support the charge.5. The trial magistrate erred in law and fact by failing to consider that the prosecution failed to follow due process to charge the accused person as the charges were never approved by the office of the Director of Public Prosecution as required by the law.

7. For the 2nd appellant Musyoki Mogaka advocate faulted the trial magistrate judgment on the following grounds.1. The learned trial magistrate erred in law and in fact by convicting and sentencing the Appellant on charges that were not proved to the required standard in law.2. The learned trial magistrate erred in law by lowering the standard of proof in criminal cases thus convicting and sentencing the Appellant on flimsy grounds and on the basis of doubtful witness testimonies.3. The learned magistrate erred in law and in fact in failing to find that there were reasonable doubts in the evidence tendered by the prosecution which doubts ought to have been resolved in favour of the Appellant.

8. The respondent Republic, filed a cross appeal. In their petition of cross appeal by Samwel Thuo, prosecuting counsel dated 26. 9.2019, the Respondent cross appealed on the following grounds:1. That the trial magistrate erred in law in not taking into consideration the gravity of the charges against the applicable law in passing the minimal sentence of 12 months in prison in default of paying a fine of Kshs 50,000 for counts 2 and 3. 2.That the trial magistrate erred in law in not regarding the infringed provisions of the Bribery Act Number 47 of 2016 in passing the minimal sentence.3. That the trial magistrate passed an illegal sentence in clause 1 because section 6 (1) as read with Section 18(1) and (3) of the Bribery Act Number 47 of 2016 prescribes a penalty for soliciting and receiving a bribe to be a term of imprisonment not exceeding ten years or a fine not exceeding five million shillings.4. That the trial magistrate erred in law in abusing discretion by passing the minimal illegal sentence and wrongfully exercising undue leniency in the circumstances.

9. Briefly the evidence before the trial court was that PW1 Glyde Wamanya was the owner of a motor cycle Reg. No. KMPJ 234K. TVS star. On December 14, 2016at 12 p.m. he was taking his motor cycle which had a mechanical problem to a garage in Malava. He was pushing it along the road when he met 1st Appellant Edwin Otieno a traffic officer who asked him where he was taking it. He explained. The 1st Appellant told him to push it to Kabras police station where it was detained. At the station George Moseti 2nd Appellant was asked and did take the motorcycle to the store. He left the police station and thereafter made several visits to the station inquiring about his motor cycle.

10. On December 28, 2016he approached the 1st appellant Edwin Otieno who now demanded Kshs 20,000 if he wanted it to be released. He later informed his wife Joan Mbakaya who also went to plead with police officers but to no avail.

11. On January 2, 2017he went back to 1st appellant Edwin Otieno who now lowered the demand to Kshs 15,000. He then went and reported the demand by 1st appellant to EACC officials.

12. On January 19, 2017 Emmanuel Kabasi from EACC met the witness and inducted him how to use a recording device and instructed him to record conversation with Edwin Otieno (1st appellant) and George Moseti (2nd appellant) but he did not meet them that day.

13. On January 30, 2017he met 1st appellant Mr. Otieno where he recorded the conversation where Otieno now demanded Kshs 5000. HE went back to Mr. Kubasu who gave him treated Kshs 5000. He then went back to the station where he found 2nd appellant George Moseti who he handed over the money to. As he handed the cash to Moseti, Mr. Otieno arrived. Mr.Otieno went to the base commanders office where he got the Ignition keys. George Moseti then took him and handed over the motor cycle to him. He then alerted Mr. Kubasu and other officers who came and went to the traffic office where the money was recovered from the trouser of 2nd appellant Moseti. He testified that the money was actually recovered from outside the traffic commander’s office.

14. PW4 Patrick Misiwe an Investigator with EACC was asked by Emmanuel Okubasu to prepare Kshs 10,000 in Kshs 1000 notes to be used in an operation at Kabras police station. He applied ABQ powder on the notes and inserted the money in ½ cut envelope which he signed. He handed over the same to Francis Kahiga. Later he received back Kshs 5000 and was informed by Emmanuel that only Kshs 5000 had been used.

14. PW5 C.I Silverster Kochero was approached by chief inspector Kidogo of EACC who told him had arrested 2 officers at the traffic department. He then went with the DCIO to the office. As he approached the Traffic office he saw Kshs 5000 in Kshs 1000 denomination outside the office. The EACC team picked the notes. He confirmed in cross-examination that he did not know where the money came from.

15. PW6 Francis Kayaga Owangwa attached to Malava EACC office on January 30, 2017together with other officers meet the PW1 Glyde Wamanya whom they gave Kshs 5000 to give to the police officer who had asked for the bribe. He remained at a strategic place. The complainant went into the traffic office and shortly later signaled him. He went to the office. He was the first to arrive. He noticed the 2nd appellant wanted to throw out the money. He tried to stop him in vain. He was wearing a whitish trouser. Other officers joined him and the 2 appellants were arrested. They asked 2nd appellant to remove the trouser which he kept as Exh.7.

16. PW11 PC Emmanuel Kubasu upon receipt of demand of bribe by PW1 Glyde Wamanya prepared for an operation on January 19, 2017. He gave the complainant a recording device where demand was recorded and also gave him Kshs 5000. At 5 p.m. the witness went to the station and then alerted them that he had given the money. He went to the station and saw the complainant pushing the motorcycle. Complainant then led him to the traffic police office where he found the 2 appellants. He introduced himself. 2nd appellant George Moseti rushed to another office and he heard his colleague saying Moset has thrown away the money through the window.

17. The money was recovered by Mr. Kidogo. He also recovered a long trouser from 2nd Appellant George Moseti. They took inventory where the colour of the trouser was indicated was white but he confirmed that the one in court is grey in colour.

18. The appellants gave evidence in their defence. The 1st appellant testified that on December 23, 2016 he had arrested PW1 and had intended to charge him for riding a motor cycle without a driving licence, without helmet and safety jacket. That while at Kabras police station, PW1 escaped leaving his motor cycle behind. On December 26, 2016 he went to his rural home and was unable to come to the station until January 3, 2017 other persons including a lady came to enquire about the motor cycle between 5th and January 9, 2017. On 30. 1.2017 after interventions form other people including Mr. Kia and Kungwana, the motor cycle was released to the complainant. Immediately the complainant left, 2 men went to the traffic office and had them arrested. He never saw any money. That the 2nd accused had a white trouser and not a grey one.

19. The 2nd accused person testified that he reported to Kabras Traffic sub base on 1. 10. 2016 and proceeded on leave until October 25, 2016. He took over as in charge of the Traffic sub Base. That the complainant who had been arrested on December 23, 2016 escaped from their office. After intervention from third parties, he released to PW1 a motor cycle which he had left at the station during his escape. He warned PW1. Immediately thereafter, officers from EACC arrived and arrested him alongside the 1st appellant. That no money was recovered from any of them. That photographs taken by Mr. Kidogo were not produced in court. That his white trouser was taken. That the grey trouser produced in court is not his.

20. By the directions of the court, the appeal was canvassed by way of written submissions. Mr. Kituyi for 1st appellant submitted. That the trial court had found that the count 2 against the 1st appellant was defective and improper and that having found so he found 1st appellant guilty on 2nd count. He submitted there was no evidence to link 1st appellant to the offence as there is no evidence by either witnesses or devices used to show that 1st appellant received the money. He submits further that the voice recording in the devises provided was not corroborated and therefore do not carry much weight. He referred to the decision in Giduwa Makuri Abere v Republic (2019) eKLR.

21. M/s Musyoka Moseti for 2nd appellant George Moseti submitted that the onus is on the prosecution to prove a charge against an accused beyond reasonable doubt. Counsel submitted that PW1 Glyde the complainant never testified that the 2nd appellant Goerge Moseti asked for a bribe from him. In fact he was clear that the request had been made by the 1st appellant, Otieno but not 2nd appellant Moseti. He submits that the evidence be the complainant was that on material day he found 2nd appellant Moseti in the office facing a wall and told him “bring the thing.” He submitted that the 2nd appellant having never asked the complaint for a bribe was unlikely to have asked for that thing as the complainant states. Counsel further submits there is a contradiction on the colour of trouser 2nd appellant Moseti was wearing and which was produced as Exh.7. Counsel therefore submits that the prosecution did not prove its case beyond reasonable doubt.

22. The Republic Respondent filed written submissions by Shabola Ahinduka principal prosecution counsel. He submitted that the 2nd appellant was positively identified as among the officers who detained the complainant Glyde’s motor cycle, that though he did not demand the bribe he was co-conspirator he is the one who asked to be given the cash and released the motor cycle. He submitted that he removed the money and threw it out and evidence was tendered placing them at the scene and the state proved the charge beyond reasonable doubt. On sentence prosecuting counsel submits that whereas sentencing is discretional, the sentence imposed was too lenient and ought to be enhanced.

23. This is a first appeal. The duties of the first appeal court is to re-evaluate the evidence and reach its own conclusion. In doing so the court must bear in mind that it did not hear or see the witnesses which the trial court had the advantage of (See Ekeno v R 1972 E.A 32. )

24. The appellants were both charged with the offence of receiving a bribe contrary to section 6 (1) (a) as read with section 18(1) and (3) of the Bribery Act, 2016.

25. Section 6. (1) A person commits the offence of receiving bribe if –(a)the perrson requests, agrees to receive or receives a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly whether by that person receiving the bribe or by another person;

26. Section 18. (1) An individual found guilty of an offence under section 5, 6, or 13-(a)shall be liable on conviction, to imprisonment for a term not exceeding ten years, or to a fine not exceeding five million shillings, or both; and(b)may be liable to an additional mandatory fine if, as a result of the conduct constituting the offence, the person received a quantifiable benefit or any other person suffered a quantifiable loss.(3)Any other person who commits an offence under section 5, 6, or 15 shall be liable on conviction to a fine not exceeding five million shillings.

27. From the petitions of appeal and the submissions by respective counsel for the parties, the issues distilled for determination by this court can be broadly stated as follows:(1)Whether appellants received a bribe.(2)Whether the prosecution proved its case against appellants beyond reasonable doubt.(3)If 1,2 is in the affirmative whether the sentence meted out is unlawful.

28. On whether the prosecution has established that appellant received a bribe. PW1 in his evidence testified that though he had discussed with and was alerted by Otieno to go he went to the office and found 2nd appellant Moseti. He gave the money to Moseti. Mr. Otieno then arrived and congratulated him for co-operating. He was therefore clear that he never gave the money to the 1st appellant on that day.

29. None of the prosecution witnesses testified as to whether and how the 1st appellant received the Kshs 5000 which the complainant sought to give him. The trial magistrate in addressing the issue in respect of 1st appellant in his judgment stated:“The issue is whether the accused improperly requested financial advantage of Kshs 5000 from PW1 with intent to improperly release the motor cycle. I have carefully considered the evidence of PW1. I have considered the evidence of the video recording along with other available evidence. PW1 gave a detailed account as to how he met the 1st accused and of the several days he talked to him about the release of his motor cycle held at the police station. The oral evidence of PW1 taken together with all the other witnesses is in my assessment consistent and cogent enough to establish that the 1st accused improperly requested to a financial benefit of Kshs 5000. The prosecution have proved beyond reasonable doubt the payment for which the financial benefit was requested. The defence by the 1st accused is unbelievable and unable to displace the evidence by the prosecution.”

30. In respect of 2nd appellant George Moseti, PW1 Glyde’s evidence is that while he was among those who had been involved in the impounding of the motor cycle, he 2nd appellant did not discuss the demand for or amount of bribe that was needed. Indeed, this witness was clear that it is Otieno who had demanded it. In fact he confirmed on the material day he had agreed with Otieno to signal him to take the money. He then stated in his evidence:"The Kshs 5000 was placed inside the blue half cut envelope. I was instructed only to remove the 5000 from the envelope without removing the envelope. I was to wait for a call from Mr. Oteino at 5. 30 p.m. I received a call from Mr. Otieno. I realized he was alerting. I rushed to Kabras police station where he was. At the office I found Mr. George Moseti while facing the wall. Mr. Moset I told me give me that thing while holding his hand to his back. As I handed over the cash to him Mr. Otieno arrived and congratulated me for co-operating. Mr. Otieno asked me if I knew how my ignition keys looks like. He escorted me to Base Commander’s office where I was shown some keys. Mr. Moseti escorted me to the yard where I was allowed to take my motor bike. I was still holding a recording device recording their voices. I signaled Mr. Kubasu after I had received my motor bike. I called Mr. Kubasu using cell phone number 0716205895. The officers arrived quickly into the traffic offices. I moved close and saw the money being recovered from the back pocket of Mr. Moseti jeans trouser. I can identify the jeans trouser.Court: Grey jeans trouser is MF1 -7. I saw Mr. Moseti throw the money through the window form base commander’s office one Mr. Francis Kidogo of EACC recovered the money while wearing gloves. The money was recovered from outside the window. The DCIO of Malava, OCS Malava police station was also present.There were 4 EACC officers. They asked Mr. Otieno and Moseti to sit down. The videos were played in the presence of the 2 Mr. Otieno and Mr. Moseti. An inventory for the recovered Kshs 5000 was prepared. All of us present signed. I can identify the inventory”.

31. On being cross-examined by Abok for the appellant on this issue he stated:"The money was collected outside the window by Francis Kidogo. I was outside the office. The door to the office was open I was about 1 m form the office 4 EACC officers were inside the office 2 were at the door. At that time the recording had stopped I was only to captured receipt and demand for the money when the money was thrown outside the window, there was no recording. No photocopy was taken of the money. There were witnesses who saw the money being picked from the ground.In my statement the 2nd accused told me “give me that thing”. I did not indicate the money in the statement Kshs 5000 was recovered I had retained the half cut envelope in my pocket. I signed the documents using 2 biros.Court: MF1 5 shown to witness.MF1-5 was singed using bic blue.MF1 4 &8 was signed using bic black.MF1 3 was signed using bic blue.Court: MF1 -5 and MF1 -3 are signed by 2 different blue pens.The 2 documents MF1 -5 and MF1 -3 were signed at different times. I know that I signed using black and blue pens. The 2nd accused threw the money and so it was not recovered in his person.I received threats from the accused persons when we met in Webuye they stopped me and I ran away. I reported to EACC officers as I did not find it good to report to Malava police station. The clips were played from the laptop and not from the recording device. When the clips were played at the office, the 2nd accused persons were present. Also present were DCIO, OCS and even some traffic police officers. The names of the accused persons and police stations are not mentioned in the clips.”

32. On further cross-examination he stated that the 2nd appellant threw the money and it was not recovered on his person.

33. PW5 Chief Inspector Silvestor Kachero in his evidence testified that while going to the traffic office he saw Kshs 5000, in Kshs 1000 denominations outside the office. PW6 Francis Kayaga Owangwa testified that he was the first one in his party to enter the traffic office and saw 2nd appellant threw the money out. Upon being cross-examined by Abok for appellant he stated:"The trouser that was recovered was indicated as white. I did not sign photocopies of the money. The complainant signed the photocopy of the money and inner side of the cut envelope.I recorded my statement on February 1, 2017. This was after arrest. The serial numbers of the recovered money is not indicated in my statement. I did not indicate in my statement that I recovered a white trouser. The money was recovered from the right back pocket of the 2nd accused. The money was in one pocket I did not see the money change hands. At time of arrest one officer had a recording device what we had recorded earlier was the basis of our arrest. I do not involve much in investigations. A photo of the recovered money was taken. I have not seen the photos in court. I do not know what note was recovered first. The notes were not spread out after being thrown out of the window. The money was recovered between 2 p.m and 6 p.m. I am not sure of the exact time.”

34. The evidence of these witnesses as to where the money was recovered is sort of self-contradictory. What is clear however is that the money according to PW5 was found outside the office and not on the person of the 2nd appellant George Moseti, which fact is confirmed by PW8 Nicodemus Mulinge who confirmed they did not recover any money from the 2 appellants.

35. Reliance was placed by the prosecution on the allegation that the 2nd appellant received the money placed it in his pocket and threw it away leading the APQ powder with which it was treated on his trouser pocket. Indeed PW11 PC. Emmanuel Kubasu testified that they asked 2nd appellant to hand over the trouser where he had kept the money and they took the trouser for analsyis.

36. This is the trouser which was produced as Exh.7. In the inventory it was recorded as white trouser. However PW7 Dennis Owino Onyango the Government analyst testified that what he received from Nichodemus Mulinge for analysis was a light grey khaki trouser and not the white one indicated in the inventory by police.

37. On the issue the learned trial magistrate in his judgment while finding that the exhibit was grey and not white he concluded that it was not material. With due respect, this was the only evidence that the prosecution sought to tender to link the recovery of the money to the 2nd appellant. It was therefore in my view not an immaterial evidence. It was material as the prosecution sought to rely on it. Even if it was, the fact that all the prosecution witnesses stated it was white and even recorded in their statements that it was white and yet on the observation of court and PW7 was grey goes to if nothing to the credibility of the witnesses, evidence and their ability to recollect what happened.

38. PW4 Patrick Mijiwe an officer of EACC was requested and applied ABQ powder on the 10,000 notes but was later informed only Kshs 5,000 which was used. He explained that the purpose of applying the powder on the money is to tell if a person touched the money.

39. Indeed PW7 Dennis Onyango the Government analyst testified that he received a left hand swap allegedly for George Moseti 2nd appellant contained in cotton wool and was marked D2. This witness did not testify as to the results of the analysis and whether the swab marked D2 contained any evidence that the left hand of the 2nd appellant from where the swab was taken had traces of the ABQ material with which the Kshs 5000 had been treated with. Indeed PW4 Protus Majiwa stated in cross-examination by Abok for accused:"I applied ABQ powder on the notes. The money was to be used in operation. It helps us to tell if accused person touched the money. I have not seen any report to the effect that nay of the accused persons touched the money.”

40. From the evidence on record did the prosecution prove the charges against the appellant beyond reasonable doubt? To give meaning to this concept of burden of proof of beyond reasonable doubt in criminal case the Federal Court of United States in the case of United States v Smith 267F.3d 1154, 1161 (D.C Cir.2001) (Citing in re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1076 (1970) (Harlan, J., concurring)the court stated:"the burden is upon the state to prove beyond reasonable doubt that the defendant is guilty of the crime charged. It is a strict and heavy burden. The evidence must overcome any reasonable doubt concerning the defendant’s guilt, but it does not mean that a defendant’s guilt must be proved beyond all possible doubt. A reasonable doubt is a fair, actual and logical doubt based upon reason and common sense. A reasonable doubt may arise either from the evidence or from lack of evidence. Reasonable doubt exists when you are not firmly convinced of the defendant’s guilt, after you weighed and considered all the evidence. A defendant must not be convicted on suspicion or speculation. It is not enough for the state to show that the defendant is probably guilty. On the other hand, there are very few things in this world that we know with absolute certainty. The state does not have to overcome every possible doubt. The state must prove each element of the crime by evidence that firmly convinces each of you and leaves no reasonable doubt. The proof must be so convincing that you can rely and act upon it in this matter of the highest importance. If you find there’s a reasonable doubt that the defendant is guilty of the crime, you must give the defendant the benefit of that doubt and find the defendant not guilty of the crime under consideration.”

41. In this appeal I have considered the evidence on record and submissions by counsel for appellants and the state, I find that the charge against the appellant was not proved beyond any reasonable doubt. I therefore find that this appeal has merit and is therefore allowed.

42. Having so found, I do not think it is necessary to make any finding on the cross appeal by state. The fine of Khs 50,000 if paid to be refunded to the appellants.

DATED AT BUNGOMA THIS 11TH DAY OF MAY, 2022S.N RIECHIJUDGE