[2022] KEHC 3002 (KLR)

Ondiek v Republic (Anti-Corruption and Economic Crimes Case E001 of 2021) [2022] KEHC 3002 (KLR) (Anti-Corruption and Economic Crimes) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 3002 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Case E001 of 2021

EN Maina, J

June 9, 2022

Between

Concelia Aoko Ondiek

Applicant

and

Republic

Respondent

(Being an Appeal against conviction and sentence by Hon. L.N Mugambi CM in Milimani Anti-Corruption Case No. 11 of 2010 Republic v Concelia Aoko Ondieki and Christine Wegesa Chacha)

Judgment

Introduction 1. The Appellant Concelia Aoko Ondiek and another who is not before this court were charged with 2 Counts of corruption related offences in Nairobi Anti-Corruption Case Number 11 of 2010. The charges were: -Count 1: False accounting by a public officer contrary to Section 331(2) of the Penal Code.Statement of the offence: - On or about 29th June 2010 at Jogoo House in Nairobi, within Nairobi Province, being an Acting Director of Secondary and Tertiary Education and a Senior Education Officer respectively at the Ministry of Education, officers charged with the management of public revenue, to wit Kshs. 1,478,581; money intended to facilitate infrastructure needs assessment workshops for secondary schools in coast region, jointly knowingly furnished a false return of money received for the said workshop during the period 13th June 2009 to 29th June 2009. Count 2: Fraudulent acquisition of public property contrary to Section 45 (1) as read with Section 48 of the Anti- Corruption and Economic Crimes Act, 2003Statement of the offence: On or about June 29, 2009 at Jogoo House in Nairobi, within Nairobi Province, being a person employed by a public body to the Ministry of Education as an Acting Director of Secondary and Tertiary Education fraudulently acquired public property in the sum of Kshs. 1,078,581; money intended to facilitate infrastructure needs assessment workshops for secondary schools in coast region during the period 13th June 2009 to 29th June 2009.

2. After hearing and evaluating the evidence by both sides the trial court convicted the Appellant on both counts and subsequently sentenced her to one (1) year imprisonment in respect of Count 1 and two and a half (2½) years imprisonment in respect of Count 2. The sentences were to run concurrently.

3. Being aggrieved by the conviction and sentence, the Appellant preferred this appeal. The Petition of Appeal dated 16th February 2021 raises the following grounds: -“1)The learned magistrate misdirected himself in law and fact by not appreciating that while it was alleged, the doctrine of common intention was not established as envisaged in Section 21 of the Penal Code.2)The learned magistrate misdirected himself in law and fact by not appreciating that the evidence in cross examination of the prosecution witness PW1 Martin Orwa, who expressly disowned the letter (P. Exhibit 2) and stated that the signature on the letter was not his. The Learned Magistrate however proceeded to attribute the letter to PW1, and further used the letter as evidence of the contents therein contrary to established rules of evidence.3)The leaned magistrate misdirected himself in law and fact by not appreciating that the evidence adduced by the Prosecution was at variance with the entirety of the particulars of the charges against the Appellant.4)The learned magistrate erred in law and in fact by misapplying Section 331(1) of the Penal Code to the evidence as adduced and thereby erroneously concluded that the particulars of the offence in Count 1 had been proved.5)The learned magistrate erred in law and fact by considering Prosecution evidence adduced against the 2nd Accused as having been adduced against the Appellant, particularly P. Exhibits 6(a), 7, 52 and 75, and further convicting and sentencing the Appellant on the basis of such evidence.6)The trial court misdirected itself in law and fact by failing to consider the defenses raised by the Appellant thereby shifting the burden of proof to her; and further by unusually advancing the position held by the Prosecution thereby constituting itself as a witness for the prosecution.7)The learned magistrate misdirected himself in law and in fact by not attaching requisite weight to the submissions made in mitigation on behalf of the Appellant, and proceeding to impose a custodial sentence with no option of fine.8)The learned magistrate erred in law and in fact by denying the Appellant the benefit of a non-custodial sentence while granting the same to the Appellant's co-accused on the same set of facts.9)The learned magistrate erred in law and in fact by introducing into his judgment his own theories not supported by evidence, and proceeding to impose sentence on the basis of such theories.10)The learned magistrate erred in law and fact by failing to scrupulously comply with Section 200(3) of the Criminal Procedure Code when he took over the trial from his predecessor.”

4. The factual background of the case as presented by the Respondent was that in the financial year 2008/2009, the Ministry of Education embarked on various activities to support the introduction of free secondary education by the government. Part of the programmes that were to be carried out by the Ministry of Education included infrastructure needs assessment workshops throughout the country. This case relates to funds disbursed for the infrastructure needs assessment workshops for the Coast Region and more specifically Kshs. 1,478,581 public funds approved as expenditure for the workshop which was allegedly vested in the care of the appellant to manage but which the Appellant and her co-accused allegedly misappropriated, failed to manage and then falsified records meant to account for the same. A total of 7 Counts were preferred but only Counts 1 and 2 related to the Appellant herein.

The Appellant’s Submissions 5. Learned Counsel for the Appellant condensed the ten grounds of appeal into three broad areas and with regard to Count 1, he submitted that the trial court erred in not finding that the prosecution had failed to prove the charge beyond reasonable doubt. Counsel stated that the prosecution’s failure to prove that the appellant falsified accounts for monies amounting to Kshs. 1,478,581, was crucial as it goes to the foundation of the Appellant’s constitutional right to a fair hearing. Counsel stated that the prosecution was only able to prove that the accused falsified the accounts to the tune of Kshs. 100,000 and hence she should have been charged in respect to that amount only. Counsel stated that it was a grave error for the court to convict the Appellant on this charge despite having made a finding that the prosecution did not prove that there was fraudulent accounting in regard to the entire sum of Kshs. 1,478,581. To support this submission Counsel relied on the case of Peter Nkonge Gatundu v Republic [2021] eKLR.

6. Counsel further stated that the court erred in finding that the appellant was an officer charged with the management of the sum of Kshs. 1,478,581 in that the Appellant was not the Imprest Warrant holder for the relevant Imprest Warrant No. 0520642. Counsel contended that therefore, the appellant did not have the responsibility of managing the monies in issue. Counsel stated that the responsible officer in this case was one Martin Orwa PW1 the imprest warrant holder for the money and it was he that ought to have been charged.

7. On Count 2, Counsel stated that the prosecution did not establish the origin, basis, genesis and existence of the Kshs. 1,078,581 allegedly acquired by the Appellant; That unlike in Count 1 where there existed an Imprest Warrant for Kshs. 1,478,581, there is no corresponding imprest warrant for Kshs. 1,078,581 and this charge therefore has no basis. Counsel stated that the two sums are distinct and separate and the prosecution ought to have proven the existence of the amounts in count 2 and the alleged loss. Counsel contended that suspicion cannot suffice to infer guilt and cited the case of Joan Chebii Sawe v Republic C A No. 2 of 2002 [Unreported] in support.

8. The Appellant further asserted that the court erred in making presumptions on facts that the prosecution had failed to prove. Counsel argued that no money was found in the appellant’s possession and there is no evidence that she benefitted from the funds. Counsel averred that the prosecution had established that some of the monies that were part of the Kshs. 1,078,581, were used for the intended purpose for the Coast Region infrastructure needs workshop and the prosecution therefore did not prove that the entire sum of Kshs. 1,078,581 was lost. Counsel argued that the evidence was at variance with the particulars of the charge and the accused persons did not know what exactly they were defending themselves on.

9. On the sentence, Counsel submitted that the same was unreasonable and excessive as the Appellant was condemned to a custodial sentence with no option of a fine while her co-accused was given a non-custodial sentence. Counsel stated that the basis of this sentence was that the Appellant was a repeat offender having been convicted in ACC 24 of 2011 yet the funds in both cases were for the same infrastructure needs the only difference being that in ACC 24 of 2011 the period in issue was the financial year 2008/2009. Counsel submitted that moreover, the two cases were filed nearly at the same time and the prosecution had only chosen to charge her in different courts to harass her. Counsel stated that the appellant took plea in the present case before taking the one in ACC 24 of 2011 and for that reason she is not a repeat offender and in the circumstances, the sentence is excessive and it ought be reviewed by this court. Counsel urged this court to allow the appeal on the conviction and the sentence.

The Respondent’s Submissions 10. In opposition to the appeal Learned Counsel for the Respondent filed submissions dated 21st March 2022.

11. On the ground that the trial magistrate misdirected himself by not appreciating that the doctrine of common intention was not established Counsel submitted that much as there was no specific mention of the doctrine the trial magistrate elaborately analyzed the evidence. Counsel submitted that from the evidence, one can deduce that there was indeed common intention between the applicant and her co-accused. For this Counsel relied on the case of Uganda v Hussein Hassan Agade & 12 others Criminal Session No. 001 of 2010 and the case of John Ouma Awino & another v Republic [2014] eKLR. Counsel referred to the testimony of PW1, the Director in the Ministry of Education, that after preparing the schedule containing the budget for the infrastructure needs assessment upon receiving it from the Officer in Charge of infrastructure at the ministry he authorized the appellant, who was the Deputy Director of Education to give imprest to any other person to attend the workshop at the coast on his behalf. Counsel stated that PW1 also confirmed that the signature on PEXB 2 was his. Counsel stated that the prosecution proved that the appellant was a public officer and that she received public funds from the Ministry of Education to facilitate the workshop for the infrastructure needs assessment workshop that was carried out at the coast region, that she signed the imprest warrant PExh 3 and that the document examiner confirmed the signature to be hers. Further that the trial court analyzed the evidence and found that the appellant had forged and signed documents in an attempt to falsely account for the funds.

12. Counsel disputed that the learned Magistrate shifted the burden of proof to the appellant and submitted that the prosecution discharged its burden by proving both Counts beyond reasonable doubt.

13. On the sentence Counsel submitted that the sentence meted by the trial court was fair as the Appellant was not a first offender. Counsel further stated that contrary to the appellant’s contention the trial court duly complied with the provisions of Section 200 (3) of the Criminal Procedure Code whereupon the Appellant elected to proceed with the case from where it had reached and hence this appeal lacks merit and it should be dismissed.

Analysis and determination. 14. This being a first appeal, I have a duty to reconsider and evaluate the evidence adduced at the trial so as to arrive at my own independent conclusion while bearing in mind that I did not hear or see the witnesses who gave evidence. This principle was affirmed in the case of Muchoki Irima & 2 others v Republic (1977] eKLR, where the court cited with approval the case of Okeno v Republic 1972 E.A 32 which imposed an obligation on the first appellate Court as follows;“The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v R., (1957] E.A 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post, (1958] E.A. 424. ”

Issues for determination 15. Having considered the grounds of appeal, the Record of Appeal and the rival submissions of learned Counsel three issues arise for determination: -1. Whether the Learned Trial Magistrate complied with Section 200 of the Criminal Procedure Code2. Whether there was sufficient evidence to support the conviction of the Appellant; and3. Whether the sentencing of the Appellant was severe.

Issue No. 1) - Whether the Learned Trial Magistrate complied with Section 200 of the Criminal Procedure Code 16. The proceedings in the trial court were partially heard by the Hon. Mrs. D A Okundi (SPM) who was in conduct of the matter until 13th April 2015 when she went on transfer. On 3rd June 2015 the case was taken over by the Hon. L. Mugambi, Chief Magistrate. The record, (at page 183) of the handwritten proceedings, shows that the learned Magistrate Hon. Mugambi explained to the appellant and her co-accused their rights under Section 200 of the Criminal Procedure Code and invited them to elect whether they wanted to recall the witnesses who had already testified or whether they wanted to proceed from where the case had reached. The record shows that both the appellant and her co-accused elected to proceed with the case from where it had reached whereupon the court gave directions on the hearing.

17. Section 200 (3) of the Criminal Procedure Code provides as follows:“200. Conviction on evidence partly recorded by one magistrate and partly by another(3)Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.(4)Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.”

18. Having considered the record carefully it is my finding that the learned trial Magistrate duly complied with the provisions of Section 200(3) of the Criminal Procedure Code and that ground must therefore fail.

Whether there was sufficient evidence to support the conviction 19. On Count No. 1 the Appellant and her co-accused were jointly charged with the offence of false accounting by a public officer contrary to Section 331 (1) as read with Section 331 (2) of the Penal Code. The particulars were that they knowingly furnished a false return of money received by them for the purpose of the workshop. Section 331 of the Penal Code states;“1)Any person who, being an officer charged with the receipt, custody or management of any part of the public revenue or property, knowingly furnishes any false statement or return of any money or property received by him or entrusted to his care, or of any balance of money or property in his possession or under his control, is guilty of a felony.2)A person convicted of an offence under this section shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding ten years or to both.”

20. The key elements of the offence of false accounting by a public officer are therefore: -1)Whether the accused is a public officer;2)Whether the funds in issue were public revenue or property;3)Whether the money was entrusted to the accused or was received by the accused and whether the accused had a duty over the management of the said funds or any part thereof?4)Whether there was a false return made in connection with the said money; and5)If so, whether the accused knowingly furnished the said false return.

21. It is not disputed that at the time material to this case the Appellant was a public officer, a Deputy Director of Education at the Ministry of Education. It is also not disputed that the funds the subject of the charges against her, to wit, Kshs. 1,478,581 were public funds, the same having been budgeted and approved to facilitate a needs assessment workshop in the Coast region. The same had been approved by Prof. Edward Karega (PW7), the then Permanent Secretary in the Ministry of Education pursuant to a request made in the internal memo produced as Exb 1. There was also evidence from PW1 that he wrote a memo (Exb 5) to the Appellant authorizing her to collect the imprest warrant No. 0520642 (Exb 3) for Kshs.1,478,581 and that the appellant duly signed for it. PW2 the Accountant in the Ministry at the time also testified that the money under the imprest warrant was paid/disbursed to the appellant and she duly signed and indicated her Identity card number as 9290778. The Principal Accounts Controller (PW5) also confirmed that the funds for that imprest warrant were paid to the Appellant. The Appellant conceded having signed the imprest warrant on behalf of PW1 but denied that the funds were disbursed to her. However, I find there was credible evidence that she indeed received the money. That credible evidence was led by the Accountant PW2 and was corroborated by the Principal Accounts Controller (PW5). There is no evidence even from the appellant that these witnesses had any reason to lie against her. As such I find the evidence of the two witnesses trustworthy and reliable and the first, second and third elements of the offence are therefore settled. It is also my finding that much as the appellant was not the holder of the warrant once the funds were disbursed to her then they were entrusted in her custody and care to manage and it follows that she had a duty over the management of the same.

22. On the last two elements, the prosecution adduced evidence that the Appellant falsified the amounts in the payment schedule (P Exh 7) by including in the schedule people who did not attend the workshop. The said people PW1, PW6, PW19, PW31 and PW 34 all gave evidence that they did not attend the workshop. They also testified that they were not paid the (Kshs. 40,000/- for PW1 and the 6,000/- for the others) indicated as paid against their names in that schedule. Payment for lunches (PExh 6a) and transport reimbursement (PExh 75) were similarly falsified and the signatures of the payees all of who did not attend forged, as testified by the document examiner (PW40). The Appellant’s defense to the charges was that she did not pick the imprest in issue because she had already picked another imprest. This assertion cannot however be true given that the signature on the Imprest Warrant was proved to be hers. There was also evidence beyond reasonable doubt that the Appellant acknowledged receipt of the Imprest of Kshs. 1,478,581 and undertook to fully account for the funds on or before 19/6/2009.

23. It is my finding therefore that all the elements of the charge in Count 1 were proved beyond reasonable doubt. The issue of whether the Appellant acquired a benefit for the full amount of Kshs. 1,478,581 does not negate that she committed the offence, but would only go to the sentence. I agree with the learned Magistrate’s finding that Count 1 was proved beyond reasonable doubt and I would accordingly uphold the conviction of the Appellant on that Count.

24. On Count 2 the Appellant was charged with fraudulent acquisition of public property contrary to Section 45 (1) as read with Section 48 of the Anti- Corruption and Economic Crimes Act, 2003 which state:-Protection of public property and revenue, etc.“45. (1)A person is guilty of an offence if the person fraudulently or otherwise unlawfully—(a)acquires public property or a public service or benefit;(b)mortgages, charges or disposes of any public property;(c)damages public property, including causing a computer or any other electronic machinery to perform any function that directly or indirectly results in a loss or adversely affects any public revenue or service; or(d)fails to pay any taxes or any fees, levies or charges payable to any public body or effects or obtains any exemption, remission, reduction or abatement from payment of any such taxes, fees, levies or charges.”

25. At the trial, the prosecution contended that out of the imprest of Kshs.1,478,581 disbursed to the Appellant, a total of Kshs.1,078,581 was not property accounted for and it was hence fraudulently acquired by the Appellant.

26. From the evidence on record and as summarized in paragraph 22 above it is clear that the Appellant falsified the payment schedule for the officers’ lunches, participants lunches and transport reimbursement for participants, the payment schedule for coordination amongst others. It is evident from the evidence adduced at the trial that the funds ended up in the appellant’s pocket although they should have been paid to the participants of the workshop.

27. The Appellant’s defence that she paid the entire imprest amount to the 2nd accused was found to have been fabricated as the acknowledgement (Exb 80) the 2nd accused is alleged to have signed had forged signatures matching that of the Appellant. Secondly, the 2nd accused told the trial court and this court believed her that she only received Kshs. 400,000/- from the Appellant. This therefore left the Appellant with no explanation on how she spent the balance of the Imprest which is Kshs.1,078,581. I agree with the trial court’s finding that the Appellant’s conduct of providing false documents was to falsely the accounts for the same so as to conceal that she had stolen the money. The funds being public property I am satisfied that the appellant committed the offence of fraudulent acquisition of public funds contrary to Section 45(1) as read with Section 48 of the Anti-Corruption and Economic Crimes Act.

Whether the sentence imposed by the trial court was excessive 28. The Appellant was sentenced to one-year imprisonment in Count 1 and two and a half years’ imprisonment in Count 2 which sentences were to run concurrently. The penalty for the offences in count 1 and count 2 are prescribed respectively as follows:“Count 1: Section 331 (2) of the Penal Code:A person convicted of an offence under this section shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding ten years or to both.Count 2: Section 48 of the Anti-Corruption and Economic Crimes Act48. Penalty for offence under this Part (1) A person convicted of an offence under this Part shall be liable to— (a) a fine not exceeding one million shillings, or to imprisonment for a term not exceeding ten years, or to both; and (b) an additional mandatory fine if, as a result of the conduct that constituted the offence, the person received a quantifiable benefit or any other person suffered a quantifiable loss.”

29. It is trite that in sentencing the court determines the sentence based on the options provided by the specific statute creating the offence. However, while sentences are defined by law, the measure of what is an appropriate sentence in a given case is left to the discretion of the trial court and provided the discretion is exercised judiciously and in accordance with the law this court should not interfere. See Fatuma Hassan Salo v Republic Criminal Appeal No. 429 of 2006 [2006] eKLR in which the court emphasized that the discretion “must however, be exercised judicially. The trial court must be guided by evidence and sound legal principle”.

30. The Sentencing and Policy Guidelines state as follows in respect of custodial and non-custodial sentence:“7. 19In deciding whether to impose a custodial or a non-custodial sentence, the following factors should be taken into account:1. Gravity of the offence: In the absence of aggravating circumstances or any other circumstance that render a non-custodial sentence unsuitable, a sentence of imprisonment should be avoided in respect to misdemeanours.2. Criminal history of the offender: Taking into account the seriousness of the offence, first offenders should be considered for non-custodial sentences in the absence of other factors impinging on the suitability of such a sentence. Repeat offenders should be ordered to serve a non-custodial sentence only when it is evident that it is the most suitable sentence in the circumstance. Previous convictions should not be taken into consideration, unless they are either admitted or proved”

31. Additional considerations in sentencing include inter alia, the character of the offender, protection of the community and the offender’s plea in mitigation.

32. In this case, the trial court considered the mitigation by the Appellant and the prosecution’s submissions that the Appellant was not a first offender, having been convicted in ACC 24 of 2011, which conviction was upheld on appeal.

33. In my view, considering the previous conviction of the Appellant on a similar charge and the gravity of the offence, I am not persuaded that the trial court did not properly exercise its discretion in not meting out a non-custodial sentence. The length of the sentence is within the prescribed statutory limits and is appropriate punishment for the offences for which the Appellant was convicted.

34. Accordingly, the appeal is dismissed in its entirety and the conviction and sentences of the trial court in both Count 1 and Count 2 are upheld.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 9TH DAY OF JUNE, 2022. E N MAINAJUDGE