[2022] KEHC 16387 (KLR)

Republic v Amoro (Anti-Corruption and Economic Crimes Appeal 25 of 2019) [2022] KEHC 16387 (KLR) (Anti-Corruption and Economic Crimes) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16387 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Appeal 25 of 2019

EN Maina, J

December 15, 2022

Between

Republic

Appellant

and

Yobesh Amoro

Respondent

Judgment

1. This appeal challenges the acquittal of the respondent under section 210 of the Criminal Procedure Code for the following corruption and economic offences: -a)Count two: where he, together with another who is not a party to this appeal were charged with conspiracy to commit an economic crime contrary to section 47a (3) as read with section 48(1) of the Anti-Corruption and Economic Crimes Act. The particulars of the charge were that on or about the March 29, 2005, in the city of Nairobi within the Nairobi province being the managing director and the finance and administration manager of the Kenya Wines Agencies Limited, respectively, conspired to commit an economic crime, to wit, misappropriation of public funds, by irregularly processing an application for a car loan made by the said Yobesh Amoro (the respondent) to the National Industrial Credit (NIC) Bank Limited for Kshs 2,500,000 purportedly made under the Kenya Wines Agencies Limited, to guarantee the same while knowing that the said Yobesh Amoro (the respondent) had not been formally employed by the said state corporation and was consequently ineligible for a car loan under the aforesaid staff car loan scheme.b)Count three: fraudulent acquisition of public property contrary to section 45(1) (a) as read with section 48(1) of the Anti-Corruption and Economic Crimes Act.Particulars: on April 8, 2005 in the city of Nairobi within Nairobi province while holding, on probationary terms, the office of the finance and administration manager at the Kenya Wines Agencies Limited, a state corporation, fraudulently acquired Kshs 2,500,000 from the National Industrial Credit (NIC) Bank Limited as a car loan purportedly under the Kenya Wines Agencies Limited staff car loan scheme when he was ineligible for a car loan under the aforesaid staff car loan scheme.

2. To prove its case, the state/appellant called sixteen (16) witnesses, the sixteenth being the investigating officer of the case.

3. Briefly the prosecution’s case was that sometimes in the year 2005 the respondent was employed by the Kenya Wines Agencies Limited “KWAL” as finance and administration manager. Sammy Muthoka Mbava (PW14) testified that he was the board chairman of KWAL at the time and that they selected the respondent from two persons that had been presented to the board. He testified that the respondent was however put on probation for six months. The court heard that before the period of probation expired the respondent applied for a car loan of Kshs 2,500,000/= from the staff car loan scheme with ICDC which however only applied to the staff of KWAL who had been confirmed. PW6 testified that although the respondent did not qualify for the loan as his appointment was yet to be confirmed ICDC approved and processed the loan upon the then managing director of KWAL (respondent’s co-accused) expressing that KWAL had no objection to the application. According to Dismus J Onwonga Oyieko (PW6) the loan was approved and processed but the cheque was later cancelled and was never paid to the respondent.

4. After the ICDC cheque was cancelled the respondent applied for a loan of similar amount from the NIC Bank which had a personal loan and mortgage facility for staff of KWAL. The loan was approved and paid. The court heard that for every loan advanced to a staff member, KWAL was required to make a down payment of Kshs 800,000 to NIC as a security for the loan and that this was no different for the loan advanced to the respondent. Moses Wamithi Maigua (PW3) told the court that the loan applied for by the respondent was a car loan; that this fell in the category of personal loans and that unlike the ICDC scheme the NIC Bank loan facility did not have a criteria for eligibility.

5. The court heard that later these “illegal/irregular” terms of employment reached the ears of the board and it culminated in the suspension and subsequently the termination of the respondent. The respondent and the managing director were then investigated and charged with these offences.

6. After considering the evidence in support of the prosecution’s case the learned trial magistrate made a finding that the prosecution had not made out a prima facie case against the respondent sufficiently to warrant him to be put on his defence. The trial magistrate then entered a no-case to answer verdict and acquitted the respondent under section 210 of the Criminal Procedure Code.

7. Being aggrieved by that acquittal the state preferred this appeal. The same is premised on grounds that: -“1)The learned trial magistrate erred in acquitting the respondent yet the evidence tendered by the prosecution proved the charges facing the respondent beyond reasonable doubt.2. The learned trial magistrate erred in finding that the offences that the respondent was charged with were not proved by the prosecution.3. The learned trial magistrate erred in finding that the evidence adduced by the prosecution was insufficient to establish a prima facie case against the respondent.4. The learned trial magistrate erred in finding that the evidence of PW14 casts doubt on the soundness of the Kenya Wine Agencies Limited board’s findings and resolutions made in Pexh 39. 5.The learned trial magistrate erred in finding that the charge sheet was defective.6. The learned trial magistrate erred in finding that there were contradictions on board findings in prosecution exhibit No 39. 7.The learned trial magistrate erred in law by not considering the overwhelming evidence on record and went ahead to acquit the respondent under section 210 of theCriminal Procedure Code.”

8. I have carefully considered the rival submissions and the cases cited but more importantly as the first appellate court I have subjected the evidence adduced in the trial court so as to arrive at my own independent conclusion. I have done this while keeping in mind that I did not see or hear the witnesses who testified.

9. Section 210 of the Criminal Procedure Code enjoins a trial court to dismiss the case and acquit the accused if at the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as the prosecutor and the accused person or his advocate may wish to put forward, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence.

10. When a case is not made out it is said that no prima facie case has been established against the accused. Simply put a prima facie case is defined to mean one where a reasonable tribunal properly directing its mind would convict on the evidence were the accused to be put on his defence and he elects to remain silent – see the case ofBhatt v Republic [1957] EA 332.

11. The issue for determination in this appeal therefore is whether or not the prosecution/appellant established a prima facie case against the respondent sufficiently to warrant him to be put on his defence.

12. It is my finding that on the evidence adduced no prima facie case was made out against the respondent either on count two or count three.

13. On count two evidence was adduced that the car loan under the ICDC staff car loan was intended to benefit staff of KWAL whose appointment had been confirmed. It was alleged that the respondent conspired with his co-accused, the then managing director of KWAL, to apply for and obtain a car loan from KWALwhen in fact he was ineligible. Evidence was however adduced that the loan advanced to the respondent was not the ICDC Staff car loan for which the respondent did not qualify but was obtained from another scheme which KWAL had with the NIC Bank. Moses Wamithi Maigua (PW3) told the court that staff needed not to have been confirmed to benefit from the NIC loan facility and that a car loan such as the one that was given to the respondent fell in the category of personal loan. There was therefore nothing irregular about the respondent receiving the loan. The facts and evidence given in regard to count two would of course have given rise to the offence of an attempt to commit an economic crime under section 47A (2) of the Anti-Corruption and Economic Crimes Act had the respondent been charged in respect to the ICDC loan and there was evidence that he acted fraudulently in applying for the loan. He was however charged in regard to the NIC Bank loan to which he was entitled. From the facts rendered in court there was no evidence that the respondent acted dishonestly. There was also no evidence upon which the trial court could convict the respondent had it put him on his defence and he elected to remain silent.

14. There was evidence that the respondent was to repay the loan through a check-off system but that he could not do so after his employment was terminated, upon the board of KWAL receiving what Sammy Muthoka (PW14) defined as inaccurate information. The issue raised that KWAL lost a sum of Kshs 2. 5 million may not be accurate as there was evidence that proceedings were instituted to recover the money from the respondent.

15. In the upshot I find no merit in this appeal and it is dismissed.

SIGNED, DATED AND DELIVERED VIRTUALLYTHIS 15TH DAY OF DECEMBER 2022. E. N. MAINAJUDGE