[2022] KEHC 15386 (KLR)

Omondi v Republic (Criminal Appeal 24 of 2020) [2022] KEHC 15386 (KLR) (9 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15386 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal 24 of 2020

PJO Otieno, J

November 9, 2022

Between

Hellen Atieno Omondi

Appellant

and

Republic

Respondent

(Being an appeal from the conviction and sentencing of Hon. B. Ochieng (CM) in Kakamega Criminal Case No. 1 of 2016)

Judgment

1. The Appellant was arraigned before the Chief Magistrate at Kakamega in Criminal Case No 1 of 2016 charged with four counts under the Anti-Corruption and Economic Crimes Act. Three of the counts alleged corruptly soliciting for a benefit contrary to section 39(3) (a) as read with section 48(1) while the fourth was that of Corruptly receiving a benefit contrary to section 39(3) (a) as read with section 48(1) of the Anti-Corruption and Economic Crimes Act No 3 of 2003.

2. The particulars of the offence in count1, were set out to be that on March 18, 2016 at Kabras Criminal Investigation Department Office within Kakamega County, the Appellant, being a person employed, to wit, the National Police Service, as a corporal of police, attached to Criminal Investigations Unit at Kabras, Criminal Investigation Department, corruptly solicited for a benefit of Kshs 10,000/- from Pritt Saiya, as an inducement so as to investigate abusive and threatening text messages sent to the said Pritt Saiya by his son namely Titus Kutondo, a matter relating to the affairs of the said public body.

3. For count 2 also on Corruptly soliciting for a benefit, they were that on June 3, 2016 at Kabras Criminal Investigation Department Office within Kakamega County, the Appellant, being a person employed, to wit, the National Police Service as a corporal police attached to Criminal Investigations Unit at Kabras Criminal Investigation Department, corruptly solicited for a benefit of Kshs 6,000/- from Pritt Saiya, as an inducement so as to investigate abusive and threatening text messages sent to the said Pritt Saiya by his son namely Titus Kutondo, a matter relating to the affairs of the said public body.

4. The particulars of the offence for count 3 were set out that on June 17, 2016 at Kabras Criminal Investigation Department Office within Kakamega County, the Appellant, being a person employed, to wit, the National Police Service as a corporal police attached to Criminal Investigations Unit at Kabras Criminal Investigation Department, corruptly solicited for a benefit of Kshs 5,000/- from Pritt Saiya, as an inducement so as to investigate abusive and threatening text messages sent to the said Pritt Saiya by his son namely Titus Kutondo, a matter relating to the affairs of the said public body.

5. Lastly, the particulars of the offence for count 4 were that on June 17, 2016 at Kabras Criminal Investigation Department Office within Kakamega County, the Appellant, being a person employed, to wit, the National Police Service as a corporal police attached to Criminal Investigations Unit at Kabras Criminal Investigation Department, corruptly received a benefit of Kshs 5,000/- from Pritt Saiya, as an inducement so as to investigate abusive and threatening text messages sent to the said Pritt Saiya by his son namely Titus Kutondo, a matter relating to the affairs of the said public body.

6. The prosecution called a total of Ten (10) witnesses towards the proof of the case against the appellant and the following is a brief summation.

7. PW1, Pritt Saiya, the complainant, testified that on March 18, 2016 he reported at the Kabras Police station having received an SMS from his son threatening his life and was attended to by the Appellant who informed him that it would take 2-3 days to trace the suspect. Three months passed by without the suspect being arrested and so he decided to follow up with the Appellant whom on March 18, 2016 demanded for money from him to hire and fuel a car. He reported the incident at EACC Kisumu and on June 3, 2016, they gave him a recording device and trained him how to use it. He met up with the Appellant at the police station, recorded their conversation and returned the recording device to EACC. On June 17, 2016, he was given a recording device again by EACC officials as well as money and asked to meet with the Appellant. He met with the Appellant at a retail outlet next to the police station where he handed her the money and then signaled the EACC officers that she placed the money in a blue metallic bag. The EACC officers then intercepted the Appellant whose bag they checked and recovered Kshs 5000 that had been given to her. He indicated that he had agreed with the Appellant to give her Kshs. 6000 but was only able to raise Kshs 5,000/= which he gave her. He produced the recording device as PMF1-1 and further stated that he was given dusted money amounting to Kshs 6000 by the EACC officers which he gave to the Appellant. He produced the 6000 notes as follows;1st note S/No DR 70564652nd note S/No DR 58475973rd note S/No DY 15370514th note S/No DZ 40007725th note S/No DR 75611976th note S/No EB 5171380

8. He clarified that he gave the Appellant Kshs. 5000 and upon her arrest Kshs. 9,000/- was recovered from her purse. He stated that the 5000 recovered from her had the following serial numbers:-1st note S/No DR 70564652nd note S/No DR 58475973rd note S/No DY 15370514th note S/No DZ 40007725th note S/No DR 7561197

9. He went on and indicated that the Kshs. 4000 belonging to the Appellant had the following serial numbers;1st note S/No. DT 59933132nd note S/No DR 16810383rd note S/No DY 82299394th note S/No DZ 4700704

10. On cross examination, he detailed that the video of him giving the Appellant money only captured her torso and not her face. He stated that when he gave the Appellant the money she placed it in a bag which she threw away into the bush on being accosted by the EACC officials though the same was not captured on video.

11. PW2, No xxxx Justus Makau Kitetu, testified that he is the OCPD Kericho East division and previously the OCPD Kakamega North. He stated that on June 17, 2016 he was in his office when he was informed by his driver that there was a commotion outside the OCS office. He headed there and met with CIP Kidogo from EACC, the Appellant, a DCI officer and some other officers who informed him that the Appellant had received a bribe and the money had been recovered from a blue metallic handbag which was then placed on the table of the OCS. The witness opened the bag and found Kshs 9000 in a thousand denominations which according to CIP Kidogo, Kshs 5000 out of the 9000 was the trap money while the rest belonged to the owner of the bag. He was given photocopies of the 5 notes with which he compared and confirmed matched those allegedly recovered from the appellant. He was further shown an audio clip in which he confirmed featured the Appellant and prosecutor Nyongesa.

12. On cross examination he stated that he played the role of calming down the situation and facilitated EACC officials to carry out their mandate. He however confirmed that he did not witness the Appellant receive money and that the audio clip he was shown was faint and that he could only identify the Appellant from her torso being familiar with her.

13. PW3, Wycliffe Sirengo, testified that he was an Investigating officer with EACC and that on June 16, 2016, while at the Kisumu office, he received a request from his colleague Nicodemus Mulinge to treat Kshs 6000 to be used in investigation in Kabras Police station. The Kshs 6000 had the following serial numbers: -EB 5771380BZ 4000772DR 7057475DY 1537051DR 5847597DR 7561197

14. He then photocopied the noted and signed against them. On cross examination he stated that the serial number captured in his statement as BZ 400772 was a typing error since it was meant to be 4000772.

15. PW4, No xxxx APC Effie Vidolo of EACC Kisumu testified that her duty entails providing security to officers in the field. She stated that on June 16, 2016 she was informed by CI Kidogo that she would accompany them to Kakamega and that on June 17, 2016, they picked PW1 at Malava who was given devices to record sound and visuals. They were then shown the currency notes and the photocopies thereof and PW1 was instructed to go to the police station and once he had handed over the cash to the Appellant he was to inform them. They were later alerted by PW1 that he had acted as instructed and the team proceeded to the police station where PW1 identified the Appellant to them, the appellant got alarmed when asked to surrender the money, started walking towards the OCS’ office and threw away the handbag containing the money, which bag she retrieved and handed it to the OCS. The OCPD later joined the team, opened the bag, recovered 9,000 and later prepared an inventory of the money, purse and phone recovered from the Appellant.

16. On cross examination she stated that she was behind the Appellant when she threw away the bag though she had not indicated the same in her statement. She stated that her statement did not contain the serial numbers of the notes and further that she did not see anyone solicit or receive money from the complainant and that no money was recovered from the Appellant’s purse.

17. PW5, No xxxx CI Francis Kiptoo Kidum of EACC testified that they received a complaint from PW1 and in acting on the matter he confirmed the testimony of PW4. He further stated that the OCPD came and took possession of the bag which had the money and that Kshs 5000 was found in one compartment of the bag and Kshs 4000 in another. He checked the serial numbers and the same tallied with the photocopies of the notes. He then prepared an inventory which was signed by all the members present including the accused. When cross examined the witness stated that he did not indicate the serial numbers of the recovered money in his statement. He further stated on the June 17, 2016, the Appellant was given 6000 by PW1 and she returned 1000 to PW1 though this information is not captured in his statement.

18. PW6, Millicent Obura testified that she was an Administration Police office attached to EACC, Kisumu, and that on June 17, 2016 she was called by PW5 and informed of an operation that was to take place in Malava Town. She reiterated the testimony of PW4 and PW5 and further stated that in retrieving the money from the blue metallic bag, the OCPD wore gloves.

19. On cross examination she stated that she did not see the Appellant receive money and only heard her demand for money through the voice recording device. She further stated that it was PW2, the OCPD, who recognized the Appellant’s voice and that she did not indicate the serial number and denomination of the money.

20. PW7, No xxxx CI Simon Kiambi testified that he was a DCIO at Kakamega North Division and that on June 17, 2016 he was summoned by PW2 in his office and was informed that the Appellant had been arrested by EACC officers for receiving a bribe of Kshs 5000/-. He witnessed the comparison of the five Kshs 1000 notes recovered against the photocopies made by EACC officers and was later shown a video footage where he was able to identify the Appellant. He said there was an arrest to be made in Bungoma but the motor vehicle for the station was then unserviceable.

21. On cross examination he stated that he did not describe the appellant’s attire and that there was no indication in the video where the appellant received the money. On availability of a vehicle to be used to effect an arrest in Bungoma, the witness said there was one but was unable to remember its registration nor its driver. On the video clip the witness told the court that the same was shaky and showed that there were three officers negotiating and that only the accused and not the other two was arrested.

22. PW8, Catherine Serah Mugambi, testified that she was a forensic analyst at the Government Chemist and that on June 23, 2016 they received exhibits from EACC accompanied by an exhibit memo form submitted by one Patrick Mbijiwe. They were Kshs 9000 in 1000 denominations with the below listed serial numbers;DP 7056465DY 1537051DR 5847597EB 5171380DZ 4000772DT 5993313DB 1681038CD 8229939EF 4700704DR7561197

23. Upon receipt of the notes they took swabs on each note, on the right and left hand of the Appellant, the blue metallic handbag, the khaki envelope and a control sample of EPQ powder packed in a glove and wrapped in an envelope. On July 4, 2016, she compared the contents of the control sample to see if they could be detected in any of the samples and ascertained that the powder was a mixture of components which were detected in cash 9000, 1000, right and left hand swabs, half cut envelope and inner pocket of the handbag. She then prepared a report in that regard which she produced as an exhibit.

24. On cross examination she stated that all the notes were contaminated by the chemical and that contamination can be occasioned by handling and that no particular notes amounting to Kshs 6,000 or 5,000 was handed over to her for analysis.

25. PW9, Patrick Mbijiwe testified that he was an investigator with EACC, Kisumu office and that on March 2, 2016 he received a report from the complainant, PW1 pursuant to which, he later on proceeded to Butali Shopping Centre and met up with PW1 who informed them how he had gone to the Cid office but got no assistance. They gave him a recording device and showed him how to use it. They then accompanied PW1 to Kabras Police Station with instructions to meet the officer demanding a bribe and record their conversation. On March 17, 2016, in the company of Nichodemus Mulinge, Francis Kidogo, Madam Obura and Effie Vidoro they proceeded to Butali Shopping Centre, gave PW1 a recording device and money totaling to Kshs 6000/- whose photocopies he had. He witnessed the complainant sign the photocopies notes and inventory and then he escorted PW1 to Kabras Police station.

26. After dropping PW1 at the station, PW1 went to the CID offices and left with the Appellant to a shop near the station. He observed them and saw the Appellant open a blue metallic bag after receiving something from PW1. PW1 then flashed his phone and immediately they approached the Appellant and introduced themselves. There was a commotion, the Appellant threw the bag before entering the OCS office but the OCS collected the bag. The OCPD joined in the office of the OCS, opened the bag and recovered Kshs 9000 of which 5000/- tallied with the serial numbers of photocopied notes. He put the money in an envelope and played back the recorded video and the OCS and the OCPD recognized the image of the Appellant. He again swabbed both hands of the Appellant and placed the same in an envelope. He equally took a Samsung mobile phone recovered from the Appellant as an exhibit and forwarded the below listed exhibits to the government chemist; Kshs 9000 cash

Kshs 1000 note

Right hand swab of the accused

Left hand swab of the accused

Metallic hand bag

Half cut envelope

Control sample APQ powder

27. On cross examination he stated that no money was recovered from the possession of the Appellant, that he did not indicate in his statement that he saw the appellant open the blue bag and put money inside neither that there was confrontation the appellant nor that she threw away the bag. In his evidence, he said at least thrice that no money was recovered from the accused.

28. PW 10, Nichodemus Mulinge, testified that he was an investigator with EACC. He reiterated the testimony of PW9 and further stated that he prepared the transcript of the recorded conversation between the Appellant and PW1 which he produced.

29. On cross examination he stated that the video footage neither captures the person handing over the money nor the one receiving the money. He stated that one can only identify the Appellant by physique though he does not describe her physique, that the names in the transcript are not on the audio and video and that nowhere in the recording did the appellant demand Kshs 6,000 or 5,000. He then added that the work ticket for the station vehicle indicated that it was unserviceable at the time and further that the Appellant received Kshs 5000 and gave PW1 Kshs 1000 for fare back home.

30. After the prosecution closed its case, the appellant was found with a case to answer for which she opted to give sworn testimony without calling any witness. His evidence was that she was No xxxx, a police officer attached to Big Area Kakamega North and that her duties included collecting and disseminating intelligence to her superiors. On June 17, 2016, she was at the CID office in Malava when three men abruptly entered and arrested her and asked her to appear at the EACC offices on June 25, 2016.

31. She refuted claims that she demanded a bribe from PW1 and stated that on the day of her arrest she had not worn trouser and a blouse but short blue dress and a black handbag with a flowered picture of a cartoon and produced the dress and the bag as exhibits. She denied ever knowing the complainant before the material time nor ever demanding or receiving any money from him as alleged. She then delved into the character of the complainant as a convict of manslaughter in HCCR case No 1 of 1982 who was convicted to serve five years’ imprisonment. She alleged that the case against her was a fabrication.

32. On cross examination she stated that she did not have a photo of her wearing short blue dress and a black handbag with a flowered picture of a cartoon adding that a convicted criminal can keep grudges.

33. Judgment was subsequently delivered and the accused person convicted on counts II and IV and fined a sum of Kshs 50,000/- or to serve six months’ imprisonment in default of payment of the fine.

34. Dissatisfied with the Judgment and sentencing of the trial court, the Appellant has filed this appeal premised on the following grounds: -'a)That the evidence relied upon by the prosecution in the criminal case was obtained by or through the process of entrapment and is therefore inadmissible.b.That the learned trial magistrate erred in both law and in fact by convicting the Appellant without taking into account that there was no written consent from the Director of Public Prosecutions to prosecute her and the prosecution was in total violation of the mandatory procedure as provided under Section 35(1) and (2) of the Anti-Corruption and Economic Crimes Act No 3of 2003 (Cap 65 Laws of Kenya).c.Thatthe EACC and the prosecution team acted in malice and bad faith and intended to oppress, humiliate and prejudice the Appellant.d.Thatthe prosecution failed to meet its burden of proof beyond reasonable doubt. The court erred in law and fact in finding that the salient and substantial contradictions in the prosecution case could not create doubt in mind which could be resolved in favor of the Appellant.e.Thatthe trial court erred in law and in fact in failing to appreciate the fact that all the prosecution witnesses were unreliable, untrustworthy and undependable in their testimonies.f.Thatthe Learned Magistrate erred in law and fact by admitting an uncorroborated video into evidence.g.Thatthe Honourable Magistrate erred in law and in fact by failing to make a Ruling on May 17, 2018 on an important objection by the defense thereby denying the Appellant a fair trial as envisioned under Article 50(1) and (2) of theConstitution of Kenya, 2010. h.Thatthe Honourable Magistrate erred in law and fact by delivering one judgment on the July 7, 2020 in open court and then substantially modifying and varying the final judgment.i.Thatthe Learned Magistrate made colossal material errors in law and fact which denied the Appellant a fair trial and guaranteed a tainted prejudicial judgment against the Appellant.j.That the Learned Trial Magistrate erred in law and in fact in making his decision without considering all the facts before her and ignored his paramount duty as well as his inherent powers of doing substantial justice in the matter having regard to all the circumstances of the case.k.The Learned Trial Magistrate’s judgment is unfair and unjust and cannot be sustained as is, as it is contrary to the Constitution of Kenya (2010), the Rules of Fair Play and Natural justice and against fundamental justice.'

35. Interestingly, the Respondent has responded to the appeal by some 11 grounds termed grounds of opposition. I say interestingly, or just strangely, because I find no legal foundation of filing such a document as a response to an appeal. The said grounds of opposition to the appeal read: -'a)That the crime was not directly or indirectly initiated by the enforcement officer or its agents but the same was initiated by the accused.b)That there was no persistent undue inducement demonstrated on the part of the complainant.c.That there was no resistance that was demonstrated on the part of the accused to show that she was unduly being induced to commit a crime.d.That the method employed by the enforcement officer of recording the happenings was after the fact because negotiations/discussions into the matter had already taken place.e.That it has not been demonstrated that the accused was an agent of the state and in fact he was not an agent.f.That in this case there was no contradiction on the sum of money that was solicited and the sum of money that was received by the Appellant.g.That the Appellant was positively identified in the video and audio clips by the prosecution witnesses.h.That the prosecution’s case was cogent, consistent and had high degree of probability as such it met the threshold of a case presented beyond reasonable doubt.i.That the errors sighted do not have probative value and do not taint/weaken the prosecution’s case in any manner.j.That the prosecution discharged its burden of proof and has established beyond reasonable doubt the charges by way of oral evidence that was tendered by the 10 prosecution witnesses, documentary evidence, electronic evidence and the report by the government analyst.k.That the appeal lacks merit and the same should be dismissed and the conviction and sentence as was imposed by the trial court be upheld.'

36. The parties opted to argue the appeal by way of written submission and have filed their respective submissions in arguing the appeal.

Appellant’s Submissions 37. The Appellant has submitted that the evidence relied upon by the prosecution in the criminal case was obtained by or through the process of entrapment and is therefore inadmissible by relying on the decision in Mohamed Koriow Nur v Attorney General [2011] eKLR andR v Mack [1988] 2 SCR 903 for the proposition that entrapment occurs when the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaging in a criminal activity.

38. It is additionally submitted that the recording of June 3, 2016 is vague on the Appellant soliciting for a bribe and despite that fact EACC decided to entrap the Appellant without conducting a background check or an inquiry. He argues that where entrapment occurs, a defendant ought to be excused because the police have behaved improperly and relies on the case of R v Loosey [2001] UKHL, 53for that proposition. The of entrapment by the investigators was termed and viewed as a violation of the Appellant’s constitutional right to privacy, personal liberty, dignity and fair trial.

39. On whether the prosecution met its burden of proof beyond reasonable doubt, it is the submission of the Appellant that the prosecution failed to prove beyond reasonable doubt that the Appellant was the one who demanded and received money. Counsel argues that the testimonies of the prosecution witnesses was inconsistent and unreliable with PW1 testifying that he was given Kshs 5000 by EACC officers while PW9 stating that PW1 was given Kshs 6000. He further claims that none of the prosecution witnesses confirmed if the voice in the audio recording was that of the Appellant and also that the video produced by the prosecution only shows the torso of the person receiving the money thus leaving the question on the identity of the person receiving the money.

40. He claims that the evidence of PW1 was not corroborated since he is the only person who allegedly witnessed the Appellant receive the money. He goes ahead to submit that the trial Magistrate allowed numerous errors such including:-a)Convicting the Appellant with the offence of corruptly receiving contrary to section 39(3)(a) as read with section 48(1) of the Anti-Corruption and Crimes Act yet the particulars of count IV are corruptly soliciting and that section 39 was repealed and deleted by Act No 47 of 2016 and as such at the time the Appellant was charged in July 8, 2016, section 39 was no longer law;b)It was stated that the handbag was thrown in a bush yet there was no bush on the video clip which captures a lady collecting the handbag;c)The Samsung phone recovered was not connected to the Appellant since no IMEI number was taken;d)there was no criteria for identification of the Appellant as an officer;e)The audio recordings had four people, two males and two females with the male voice asking for Kshs 3000 for fuel;f)Chemical powder AP4 was found in all the notes making Kshs 9000;g)On the charge sheet the venue is Kabras Shopping Centre whereas in the judgment the venue is captured as Kabras Criminal Investigation Department Office;h)The OCS was a key witness but he never testified;i)The voice identification by the OCPD was illegal;j)The trial court failed to rule on an objection that the prosecution was producing illegally obtained evidence;k)The serial numbers of the 4000 kshs recovered in the handbag and purportedly belonging to the Appellant produced by PW1 differs from those produced by PW2;l)The serial numbers of the money treated for the sting operation and produced by PW3 differs from those produced by PW1;l)The serial numbers of the monies forwarded by the EACC investigators to the government analyst differs from the monies produced by the government analysis.

41. Counsel submits that the discrepancies in the serial numbers is reasonable doubt and that the prosecution amended Count IV on the charge sheet without leave of the court.

Respondent’s Submissions 42. It is the submission of the Respondent that the defense of entrapment as raised by the Appellant does not suffice for the reason that an essential element of entrapment is that the acts charged as crimes ought to be incited directly or indirectly by officers or agents of the government. They argue that merely reporting a complaint and assisting in detection of the offence does not make one an agent of the state and to this regard they cite the case of Republic v John Njoroge Chege [2020] eKLR.

43. They argue that no explanation has been put forward by the Appellant to explain the required ingredients of entrapment and that if anything, the defence of entrapment is being used by the Appellant for the very first time on appeal.

44. On the issue of contradictions by the prosecution witnesses, the prosecution submits that there was no contradiction on how much had been solicited and how much was recovered since all the witnesses confirmed that the Appellant solicited for Kshs 6000 and eventually received Kshs 5000 which was recovered in her purse. They claim that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail and that discrepancies may be expected and cited the case of Philip Nzioka Watu v Republic [2016] eKLR in this regard. They take the view that that the errors cited do not negate the probative value of the prosecution’s case because the same are minor and not substantial.

45. On whether the evidence of PW1 was corroborated, the Respondent submits that tape recording is admissible provided the voices recorded are properly identified and that there is no objection to a copy of a transcript of the tape recording then cited the case of Chrisantus Aleke Atebe v R [2018] eKLR to support the position. That the Appellant did not raise any objection to the production of the recordings by PW10 was underscored with addition that her voice in the audio-video clips was confirmed by PW7 and PW2.

46. It was that the position of the prosecution that it had proved its case beyond reasonable doubt and placed reliance on the decisions in Gordon Omondi Ochieng v republic [2021] eKLR andBakare v State [1987] I NWLR (PT 52) 579 where the court observed and held that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt.

47. They argue that the copy of the charge sheet on the record of appeal shows that the particulars in Count IV of the charge sheet were duly amended to reflect the offence of corruptly receiving a benefit and that the Appellant herself during her defence introduced herself as a police officer.

Issues 48. This court has anxiously considered the grounds of appeal, the proceedings of the lower court and the submissions by both the Appellant and the Respondent and discerns the following issues for determination: -a)Whether the charge preferred against the appellant was not an offence after the repeal of sections 39 and 48 of the Act?b)Whether the evidence relied upon the prosecution was obtained by entrapment and its effect on the case?c)Whether the prosecution complied with the requirements of section 35(1) and (2) of the Anti-Corruption and Economic Crimes Act and its effect on the case?d)Whether the testimonies of the prosecution witnesses were marred with inconsistencies sufficient to negate proof beyond reasonable doubt?

Analysis Whether the charge preferred against the appellant was not an offence after the repeal of sections 39 and 48 of the Act? 49. The propriety of the charges against the appellant was given huge premium it being contended that while the matter was pending trial, the law was changed by deleting section 39 of the Anti-Corruption and Economic Crimes Act pursuant to section 23 of the Bribery Act, No 47 of 2016. The fact of deletion of section 39 of the ACECA is not debatable for the court is bound to take judicial notice of such developments in the law. The question is however the effect of such deletion. Did the deletion do away with the offence with which the accused was charged?

50. The answer to that question is to be found in the amending statute at section 27 which in the spirit and letter of Section 23 (3) (e) of the interpretation and general provisions Act Cap 2 Laws of Kenya and stipulates that: -'27 (1) This section applies with respect to bribery offences or suspected bribery offences under the Anti-corruption and Economic Crimes Act, 2003. (2)Any investigation or prosecution or court proceedings instituted before the commencement of the Act based on an offence under the Anti-Corruption and Economic Crimes Act, 2003 shall be continued under the Anti-Corruption and Economic Crimes Act, 2003. '

51. Clearly the law preserved all that had been done by way of investigation, prosecution or court proceedings commenced under the repealed law. The court in Republic v Juma Kalume Kalama [2018] eKLR had this to say on section 27(2) of the Bribery Act:'This provision is meant to breathe life into the previously commenced investigation or prosecution or court proceedings instituted under the repealed law and to midwife or ensure smooth delivery or transition of such investigation or prosecution or proceedings commenced or instituted during the lifetime of ACECA to the repealing or new Act. It is trite that no one should be charged of an offence that did not exist at the time it is alleged to have been committed.'

52. I am persuaded and fully agree that the deletion of the provisions of section 39 of ACECA by the Bribery Act did not defeat or terminate the charge against the accused person that was pending determination by the time the law was enacted and came into force on the January 13, 2017. Accordingly, the fault on the trial court on the basis of amendment lacks merit and is dismissed.

Whether the evidence relied upon the prosecution was obtained by entrapment and its effect on the case 53. This defence does not appear to have been urged in the proceedings at the trial but the appellant has argued it very strenuously and the respondent has equally submitted on it hence it rests on the court to make a determination on it. The court takes the view that parties have left the issue for its determination in line with the courts mandate on first appeal.

54. The ingredients for the defence of entrapment were addressed by Justice Warsame (as he then was) in Mohamed Koriow Nur v Attorney General [2011] eKLR as follows: -'In my view, every law abiding citizen would likely commit a crime if sufficiently motivated. In determining whether entrapment occurred, it is important to analyze and scrutinize how much and what manner of persuasion, pressure and cajoling was brought to bear by the law enforcement agent to induce persons to commit crime. Entrapment entails;(1)The use of one pressure(2)Creating an unusual motive(3)Making the crime unusually attractive(4)Creating an opportunity to commit a crime.(5)Criminal plan originated by State agents.(6)Gaining the confidence of the accused by taking reasonable steps to assure that the person was not being set up.(7)Outrageous police conduct.'

55. I will not delve to address all the ingredients for the defence of entrapment by noting that the discussions on giving a bribe commenced between the Appellant and PW1 and that it was PW1 who made a complaint to the EACC officials and together they forged a sting operation to arrest the Appellant. The EACC officials only joined an on-going arrangement between PW1and Appellant and for the reason that the plan was initiated by PW1 who merely reported a complaint and assisted the EACC officers in detection of the offence and that he was not an agent of the state, the defence of entrapment by the Appellant fails. Of course if there was to be evidence that the complainant was working in cohorts with the authorities, from the word go, to fix the appellant that defence would have been established. No such material was availed in this matter hence that argument fails.

Whether the prosecution complied with the requirements of Section 35(1) and (2) of the Anti-Corruption and Economic Crimes Act 56. The Appellant argues that there was no written consent from the Director of Public Prosecutions to prosecute the Appellant and thus her prosecution was in total violation of the provisions of Section 35(1)(2) of the Anti-Corruption and Economic Crimes Act. That section provides: -'(1)Following an investigation the Commission shall report to the Director of Public Prosecutions on the results of the investigation.(2)The Commission’s report shall include any recommendation the Commission may have that a person be prosecuted for corruption or economic crime.'

57. The provision does not call, in mandatory terms, for a written consent from the Director of Public Prosecution for the Appellant to be prosecuted unlike the repealed section 12 of the Prevention of Corruption Act which expressly provided for a written consent from the Attorney General before a prosecution under that act could be initiated.

58. The court interprets section 35 not to disclose any legislative intention that before a prosecution is initiated the Director of Public prosecution must give his consent in writing. Had the legislature intended that a written consent to be issued by the DPP before every prosecution under the Act is initiated, nothing would have stopped the drafters of the statute to say so in clear and unequivocal terms.

59. For that reason, the court finds and holds that there is no requirement for the DPP’s written consent under section 35(1)(2) Anti-Corruption and Economic Crimes Act before a prosecution under the Act can be initiated.

Whether the testimonies of the prosecution witnesses were marred with inconsistencies and contradictions pointing to failure to prove the case beyond reasonable doubt 60. It is the contention of the Appellant that it was not clear how much money was given by PW1 to the Appellant. Looking at the testimony of PW1, he first says that he was given Kshs 5,000/- by the EACC officers then later mentions that the amount that was given to him was Kshs 6,000 and that he gave the Appellant Kshs 5,000. There is also the evidence about how and where the purse/bag containing the money was recovered. PW6 is on record saying that it was the OCS who recovered the money from the ground, PW1and PW3 said the purse was recovered in a thicket where the appellant had thrown it while PW10 said the money was recovered from the accused. In this case, with the evidence of the appellant that it was a case of frame up, it was important for the witnesses, some senior police officers to be consistent on where and how the money was recovered.

61. The Appellant has also cited inconsistencies in the serial numbers of the notes allegedly given to PW1 and those recovered from the Appellant. I have looked at the testimonies of the prosecution witnesses and I do note discrepancies in the serial numbers of the notes; For instance, PW3 who photocopied the money to be used in the sting operation stated that the six notes making the Kshs 6000 had the following serial numbers; EB 5771380, BZ 400072, DR 7057475, DY 1537051, DR 5847597 and DR 7561197. PW1 testified that the Kshs 5,000 he gave the appellant had the following serial numbers; DR 1537051, DY 5847597, BZ 400072, DR 7561197 and DR 7056465 whereas the serial numbers of the monies examined by PW8, the forensic analyst were; DP 7056465, DY 1537051, DR 5847597, EB 5171380, DZ 4000772, DT 5993313, DB 1681038, CD 8229939, EF 4700704 and DR7561197.

62. Those discrepancies are indeed glaring on the alphabetical letters in the serial numbers of the notes produced by PW1 and those he was given by the EACC officials. It is the learning of the court that the serial number of a bank note is only complete when the alphabetical letters are taken together with the numerals. I find the disparity in the numbering by the three witnesses to be grave and glaring as to be sufficient to create doubt in the mind of the court as which notes were in fact treated and given to the complainant and whether the same were ultimately given to and recovered from the appellant. It is of note that such discrepancies were never taken into account and addressed by the court. It is the courts finding, therefore that in failing to note and address the inconsistencies the trial court erred and failed to execute its duty of thoroughly scrutinizing the entire evidence before entering a conviction. Such a conviction is therefore unsafe and ought not be upheld.

63. The obligation of a first appellate court is to look at the inconsistencies and determine whether or not they are too grave so as to raise suspicion and doubt as to whether the Appellant committed the offences she was convicted of and it is the finding by the court that the inconsistencies sufficiently create a reasonable doubt as to how much of which notes was given to the complainant and whether there was indeed recovery from the appellant.

64. The offence of soliciting and receiving a benefit or bribe is proved when three ingredients are proved. The ingredients entail solicitation, offer or receipt of a gratification asked for, offered or paid as a motive or reward for inducing by corrupt or illegal means by a person employed as a public officer or who acts for and on behalf of another person, so as to confer a favour or ask for a favour to render some service due or expected from the recipient of the favour or benefit. See Paul Mwangi Gathongo v Republic [2015] eKLR.

65. The totality of the evidence adduced was that PW1 was communicating with the Appellant seeking help in arresting his son who had been hurling insults at him through text messages. PW1 indicated to the Appellant that his said son could have been in Busia. It comes out from the evidence that to get to Busia the Appellant indicated that the police needed to hire a vehicle and fuel it at a cost of Kshs 6,000 to and fro. While the evidence by PW1 may suggest that the Appellant asked for a sum of Kshs 6000 from the complainant in order to hire a vehicle, travel to Busia and effect arrest on PW1s son, two questions arise; whether the money was for hire of a motor vehicle for transport or to motivate investigations. The evidence given by PW9 and 10 show that there was no investigation pending. The appellant and the colleague with whom the chatted with the complainant were to travel to Busia to affect arrest. No irresistible evidence exists to show that the money was payable as an inducement to investigate. Instead, the evidence of the DCI, PW7, was unequivocal that there was an arrest to be made in Busia by the appellant but at the time the office Landover, Reg No GK A xxx was unserviceable (see page 37 of the proceedings). That evidence leaves no doubt that the matter had been investigated and all was outstanding was the arrest which was impeded by the lack of transport. If the evidence of the immediate boss to the appellant was to be doubtful, that of PW10 would just suffice if not corroborate same. In his evidence while on cross examination, PW1, the EACC investigator had this to say: -'I have monthly returns for motor vehicle DCI kakamega North. The work ticket shows the motor vehicle was unserviceable. I have no document to show that the vehicle was serviceable during that time.'

66. I find the evidence by those senior public officer to demonstrate that the Office of the DCI had no motor vehicle for its operation and that service delivery was to continue. That may explain why three officers, in the evidence of PW7 were freely talking about the need to hire a vehicle to go and effect an arrest. To this court if there was a corrupt intent by the appellant, the same was shred and executed by the other two officers whose details are not given and who were never called as witnesses. The court is concerned why those other two officers were never involved in the case even at the level of witnesses.

67. In whole the court finds that the evidence presented before the trial court and on which a conviction was founded was not coherent nor watertight, but was riddled with inconsistency that ought to have created a reasonable doubt in the mind of the court. Such doubt, the law mandate, must be resolved in favour of the accused. Here, the trial court in failing to appreciate the gravity of the inconsistency and failure to ensure that critical ingredient of the offences was duly proved beyond reasonable doubt, the court erred.

68. In conclusion, it is the finding of the court that the conviction was unsafe and it is therefore quashed and the sentence founded upon it set aside. Let the appellant, if in custody be released forthwith unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 9TH DAY OF NOVEMBER 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Ms. Mburu for the AppellantMs. Chala for the State/RespondentCourt Assistant: Polycap Mukabwa