[2024] KEHC 1709 (KLR)

Republic v Echesa & 4 others (Criminal Appeal E148 of 2021) [2024] KEHC 1709 (KLR) (Crim) (26 February 2024) (Judgment)

Neutral citation: [2024] KEHC 1709 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E148 of 2021

K Kimondo, J

February 26, 2024

Between

Republic

Appellant

and

Rashid Mohamed Echesa

1st Respondent

Daniel Otieno Omondi alias General Juma

2nd Respondent

Clifford Okoth Onyango alias Paul

3rd Respondent

Kennedy Oyoo Mboya

4th Respondent

Crispin Oduor Odipo

5th Respondent

(Appeal from the ruling and order of K. Cheruiyot, Senior Principal Magistrate, in Criminal Case No. 271 of 2020 in the Chief Magistrates Court at Milimani, dated 3rd December 2021)

Judgment

1. The Republic is aggrieved by the acquittal of the five respondents by the lower court and brings this appeal.

2. The respondents were charged with, inter alia, conspiracy to commit a felony contrary to section 393 of the Penal Code. At the close of the prosecution’s case, the learned trial magistrate found that there was insufficient evidence to place the 1st to 4th respondents on their defence on Counts 1 to 11 as well as Count 15 and acquitted them under section 210 of the Criminal Procedure Code.

3. However, the learned trial magistrate found that the Republic established a prima facie case against Crispin Oduor Odipo, the 5th respondent, on three counts. He was accordingly placed on his defence on Counts 12, 13 and 14 which related to having in possession implements for forgery contrary to section 367(d) of the Penal Code.

4. I should add that Pzels Company Limited, which was charged as the 6th accused on Count 3 for obtaining money by false pretenses, was equally not found liable. No appeal has been brought against it but I will have a little more to say in the course of this judgment.

5. The Republic now contends that the evidence disclosed a prima facie case and particularly to the charges of conspiracy which called for a rebuttal from all the five respondents. The State thus prays that their acquittal be set aside and that they be placed on their defence.

6. The 15 counts and their particulars were as follows-Count 1: Conspiracy to commit a felony contrary to section 393 of the Penal Code.On diverse dates between the 2nd October, 2019 and 13th February, 2020 at unknown places within the Republic of Kenya, the 1st to 5th accused persons, jointly with others not before court, conspired together to make documents without authority namely End User Certificate, Non-disclosure Agreement (NDA), notification of award for restricted classified tender number HC2019. 2026 letter from the Ministry of Defence and an Extension of Date of the notification of award for restricted tender number HC2019/2026 from the Ministry of Defence.Count 2: Making a document without authority contrary to section 357(a) of the Penal Code.On the 21st January, 2019 at unknown place within the Republic of Kenya, the 1st to 5th accused persons, jointly, with the intent to defraud and without lawful authority or excuse made a Non-disclosure agreement between the Kenya Defence Forces and Eco Advanced Technologies LLC, document issued by Kenya Defence Forces.Count 3: Obtaining money by false pretenses contrary to section 313 of the Penal Code.On the 21st October, 2019 at Plaza 2000 Mombasa Road in Nairobi City within Nairobi City within Nairobi County, the 3rd, 5th and 6th Accused persons jointly with others not in court, with intent to defraud and deceive, obtained USD115,080 (equivalent to Kshs 11,500,000 from Kozlowski Stanley Bruno by falsely pretending that they were in a position to award him a contract for supply and delivery of military equipment to the Ministry of Defence, a fact they knew to be false or untrue.Count 4: Making a document without authority contrary to section 357(a) of the Penal Code.On the 2nd October, 2019 at unknown place within the Republic of Kenya, the 1st to 5th accused persons, jointly together with others not before the court jointly together with others with the intent to defraud and without lawful authority or excuse made a notification of award for restricted classified tender number HC2019/2026 letter to managing director Howells Investments Sp. Z.O.O Meja Niepodlegei 02-626 Warsaw, Poland purporting it to be genuine document issued and signed by R. M. Gicia for Principal Secretary State Department of DefenceCount 5: Making a document without authority contrary to section 357(a) of the Penal Code.On the 31st January, 2020 at unknown place within the Republic of Kenya, the 1st to 5th accused persons jointly with others before the court, with intent to defraud and without lawful authority or excuse, made an extension, of dates on the notification of award for restricted classified under tender number HC2019/2026 letter to the managing. director Eco Advanced Technologies LLC, from the Ministry of Defence, State Department of Defence purporting to be a genuine document issued by R. M. Gicia for Principle Secretary, State Department of Defence.Count 6: Making a document without authority contrary to section 357(a) of the Penal Code.On the 6th February, 2020 at unknown place within the Republic of Kenya the 1st to 5th accused persons jointly with the intent to defraud and without any lawful authority or excuse made an End User Certificate of Kenya Defence Force purporting to be genuine document issue by Kenya Defence Forces.Count 7: Making a document without authority contrary to section 357(a) of the Penal Code.On 13th February, 2020 at Harambee House Annex in Nairobi City County, within the Republic of Kenya, the1st to 5th accused persons, jointly with others not before court with the intent to defraud and without any lawful authority or excuse, made an agreement Ref No. Highly Classified 2019/2026 for supply, delivery, installation commissioning and maintenance of an integrated communication and security surveillance system between the government of the Republic of Kenya and Eco Advanced Technologies LLC purporting it to be a genuine document issued by the State Department of Defence.Count 8: Uttering of false document contrary to section 357(b) of the Penal Code.On the 13th February, 2020 at Harambee House Annex in Nairobi city County, within the Republic of Kenya, 1st to 5th accused persons jointly with others not before court uttered an agreement for supply, delivery, installation, commissioning and maintenance of an integrated communication and security surveillance system between the government of the Republic of Kenya and Eco Advanced Technologies LLC to Kozi Owski Stanley Bruno.Count 9: Uttering a false document contrary to section 357 of the Penal Code.On 13th February, 2020 at Harambee house Annex in Nairobi city county, within the Republic of Kenya, the 3rd and 5th accused persons, jointly with others before court uttered an agreement for supply, delivery, installation; commissioning and maintenance of an integrated communication and security surveillance system between the government of the Republic of Kenya and Eco Advanced Technologies LLC to Mamdough Mostafa Amer Lofty.Count 10: Personating a person employment in the public service contrary to section 105(B) of the Penal Code.On 13th February 2020 at Harambee House Annex in Nairobi City within Nairobi City County, Rashid Echesa Mohamed [1st accused] falsely presented himself to Kozlowski Stanley Bruno and Mamdough Mostafa Amer Lofty to be a person employed in the Public service as the Personal Assistant to the Deputy President of the Republic of Kenya.Count 11: Personating a person employed in the public service contrary to Section 105(B) of the Penal Code.On diverse date between 2nd October 2019 and 13th February 2020 at unknown place in Nairobi County, within the Republic of Kenya, Daniel Otieno Omondi,[2nd accused] falsely personated to be General Juma from Kenya Defence Forces and you were in a position to award Kozlowskl Stanley Bruno And Mamdough Mostaf Amer Lofty a tender for agreement for supply delivery, installation, commissioning and maintenance of integrated and security surveillance system reference number Highly classified 2019/2026. Count 12: Having in-possession implement for forgery contrary to section 367(d) of the Penal Code.On 20th February, 2020 at Plaza 2000 at Mombasa Road within Nairobi City Nairobi county, Chrispin Oduor Otieno [the 5th accused] without lawful authority or excuse, knowingly had in his possession a rubber stamp implement for which the Ministry of Defence DOD.Count 13: Having in possession implement for forgery contrary to section 367(d) of the Penal Code.On 20th February 2020 at Plaza 2000 at Mombasa Road within Nairobi City in Nairobi, Chrispin Oduor Otieno [the 5th accused] without lawful authority or excuse, knowingly had in his possession a rubber stamp implement for the Ministry of Defence DOD head of supply chain.Count 14: Having in possession implement for forgery contrary to section 367(d) of the Penal Code.On 20th February, 2020, at Plaza 2000, at Mombasa Road within Nairobi City in Nairobi- county, Chrispin Oduor Otieno [the 5th accused] without lawful authority or excuse, knowingly had in his possession a rubber stamp implement for Chief Procurement Officer Ministry of Defence, Received with a postal address of P. O. Box 40668 - 00100, Nairobi.Count 15: Attempt to commit a felony contrary to section 389 of the Penal Code.On diverse dates between the 2nd October, 2019 and the 13th February, 2020 at an unknown place within the Republic of Kenya, the 3rd and 5th accused persons jointly with others not before court attempted to obtain USD 395, 442,000/= equivalent to 39,544,200,000 from Kozlowski Stanley Bruno by falsely pretending that they would be awarded a tender by the State Department of Defence to supply military equipment, a fact they knew to be false or untrue.

7. The petition of appeal is dated 17th December 2021 and raises seven grounds but which can be compressed into four. Firstly, that the totality of the evidence “proved the offence of conspiracy to commit a felony against the four accused persons”. Secondly, that the impugned ruling was delivered after hours at 7:30 p.m. contrary to the Judicature Act. Thirdly, that the learned trial magistrate misapprehended the charges and relied on extraneous matters thereby arriving at an erroneous conclusion. Fourthly, that the ruling failed to formulate the issues or analyse the evidence contrary to section 169 (2) of the Criminal Procedure Code.

8. The appeal is fervently opposed by all the respondents. Their learned counsel, in a synopsis, contended that the Republic failed to establish all the essential elements of the offences; and, that the appeal is hopeless. I was implored to dismiss it at the earliest.

9. Learned Prosecution Counsel lodged submissions dated 12th June 2023 together with a list of authorities. The 2nd and 4th respondents relied on their submissions dated 22nd January 2024. The 1st, 3rd and 5th respondents’ submissions are dated 22nd February 2023. I should add that the 1st, 3rd and 5th respondents had lodged a replying affidavit sworn on their behalf by the 1st respondent on 22nd February 2022 challenging the merits of the appeal.

10. On 31st January 2024, I heard further arguments from all the learned counsel for the appellant and the respondents.

11. This is a first appeal to the High Court. I have examined the record; re-evaluated the evidence and drawn independent conclusions. There is a caveat because I neither saw nor heard the witnesses. Njoroge v Republic [1987] KLR 19, Okeno v Republic [1972] EA 32.

12. I must add two further cautions: In view of the orders that I propose to make, it would be highly prejudicial to delve too deep into the analysis of the evidence of the 18 witnesses because of the danger of usurping the decisional independence of the trial court; and, secondly, the latter decision may itself become the subject of a further or final appeal to the High Court.

13. I will commence with the complaint that the judgment was delivered outside the court hours at 7:30 p.m. It is true that Rule 5 of the High Court (Practice and Procedure) Rules in the Judicature Act sets the times for opening and closing of the court registries to between 8:00 a.m. and 5:00 p.m. on working days. But I have no sufficient evidence or legal basis to impeach the delivery of the ruling merely because it was read outside those hours.

14. What amounts to a prima facie case was well explained in Bhatt v Republic [1957] EA 332 at 334-Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one-‘which on full consideration might possibly be thought sufficient to sustain a conviction.’This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is-‘some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence.’A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true, as Wilson, J., said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by a ‘prima facie case’, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.

15. Applying those principles to the evidence here, I find as follows. The context within which the alleged offences occurred is material. On 13th February 2020, Rashid Echesa Mohamed (the 1st respondent) drove into the Office of the Deputy President at Harambee House Annex in Nairobi in the company of two men of Caucasian extraction. He was driving a Range Rover Registration Number KCR 786H. This was according to the evidence of PW7 Ibrahim Adile, an Administration Police officer who was manning the gate; and, Nicholas Maiyo (PW4), another officer attached to the office.

16. The 1st respondent is a former cabinet secretary and was also well known to the Senior Receptionist, Askar Nyaboke (PW3). She led them to PW2, Naomi Kinyanjui, whose duties included guarding the VIP lift and floors. PW2 did not know the two men accompanying Echesa. The 1st respondent informed her that he had an appointment with the Deputy President. She took the visitors to the reception area. She was advised to escort them to the 2nd floor housing the offices of the Deputy President where they stayed in a VIP office for about 18 or 20 minutes.

17. The evidence has some contradictions but there is commonality that the delegation was shown into some VIP room and remained there for a while. It then transpired that the Deputy President had other engagements and was not coming to the office and they left. The movements of the vehicle at Harambee House Annex was also captured on CCTV Footage referred to by Inspector Kennedy Karanja (PW13).

18. On review of the evidence so far, I concur with the learned trial magistrate that there was a paucity of evidence to back-up Count 10 against the 1st respondent for personating a person employed in the public service by falsely presenting himself to Kozlowski Stanley Bruno and Mamdough Mostafa Amer Lofty on 13th February 2020 to be the Personal Assistant to the Deputy President. The acquittal on that charge is upheld.

19. From the evidence of the investigating officer, CIP Amwayi (PW1), the 5th respondent was found in possession of a rubber stamp implement for the Ministry of Defence DOD, another for the Ministry of Defence DOD Head of Supply Chain and yet another rubber stamp implement for Chief Procurement Officer, Ministry of Defence, Received, with a postal address of P. O. Box 40668 - 00100, Nairobi. I thus concur with the learned trial magistrate that there was sufficient evidence to place him on his defence on Counts 12, 13 and 14. I accordingly uphold that part of the order.

20. From my further analysis of the evidence, I find that the Republic did not present sufficient evidence to require a rebuttal by any of the respondents on Counts 3, 8 and 9 relating to obtaining money by false pretenses and uttering false documents. A key weakness was failure by the Republic to call the victims, Kozlowski Stanley Bruno and Mamdough Mostafa Amer Lofty to the stand. The acquittal on those counts is upheld.

21. I have then studied the evidence of Major Anthony Manyara (PW5), the records officer at Kenya Army. He confirmed that Daniel Omondi alias General Juma, the 2nd respondent, was not a general: his highest rank in the army was a sergeant and was dismissed from the force on 21st December 2016 for conduct to the prejudice of order and service discipline.

22. However, there was a scarcity of evidence to show that that the 2nd respondent impersonated a person employed in the public service between 2nd October 2019 and 13th February 2020 as General Juma from Kenya Defence Forces to Kozlowskl Stanley Bruno and Mamdough Mostaf Amer Lofty. His acquittal on Count 11 is thus upheld.

23. The evidence against Pzels Company Limited, which was charged as the 6th accused, was sketchy at best. It was primarily from an investigator, Moses Mnangat, (PW17) who alleged that ECO Advance Limited had paid to Pzels Company Limited Ksh 11,500,000 a statement that fizzled under cross examination. I readily find that there was insufficient evidence showing that Eco Advance Limited had wired the money into the account of the 5th respondent.

24. It follows as a corollary that no prima facie case was made in Count 3 against the 3rd, 5th and 6th respondents. I would say the same about the allegations in Count 15 on attempted felony. The acquittal of the respondents on those counts is accordingly upheld.

25. I will now return to other parts of the evidence. Minutes after leaving Harambee Annex, and at the GPO corner at Kenyatta Avenue, the Range Rover and its three occupants were intercepted or blocked by five police officers who included PW15 Seargeant Dominic Muli Kamene, a sleuth based at the DCI Headquarters. Upon conducting a hurried spider body search in the middle of the road, he recovered“an agreement Ref No. Highly Classified 2019/2026 for supply, delivery, installation commissioning and maintenance of an integrated communication and security surveillance system between the government of the Republic of Kenya and Eco Advanced Technologies LLC”.

26. He said the agreement was hidden inside the shirt, or “between the shirt and abdomen” of Echesa. I remain alive that the version of the agreement may not have been formally produced at the trial. I say that very carefully and without making a finding. It will now be up to the trial court to weigh that evidence against any defence tendered by any of the accused.

27. According to PW1, CIP Amwayi, the 1st respondent “had personal mobile phones” for Daniel Otieno, Clifford Okoth and Kennedy Mboya (2nd, 3rd and 4th respondents).

28. Following a further tip-off, the police intercepted another Subaru Registration Number KBY 793W along Dennis Pritt Road. A quick body search on its three occupants recovered nothing of interest. The two vehicles and the six occupants were then taken to the DCI Headquarters for further investigations.

29. Inspector Francis Kieti (PW16) processed the vehicles the same day, took photographs and recovered two pocket phones, a laptop and other documents including certificates of incorporation of Cocotesh Investments Ltd and TKE Jefferson Construction Ltd. Some tender documents, non-disclosure agreement, notification of the award, letter from the Ministry of Defence amongst others were also retrieved from the back seat of the Subaru.

30. I have then closely studied the evidence of key witnesses from the Ministry of Defence and Directorate of Criminal Investigations (DCI) such as PW1, PW5, PW8, PW9, PW10, PW11, PW14, and PW17. The totality of their evidence was that the impugned documents recovered from the respondents were inauthentic or were signed or executed by persons without authority. It was also alleged that the agreement recovered from the 1st respondent and the End User Certificate of Kenya Defence Forces were not genuine.

31. Again I say that very carefully and without making a final finding. Like I said at the beginning, it would be prejudicial to analyze the evidence more deeply. But I can safely state the following: PW14, Charles Kiiru Mwaniki, Senior Chief Finance Officer at Defence testified that there was “a poor imitation” of his signatures on the impugned documents such as MFI-9 (a).

32. PW8, Edmond Andayi, a Senior Supply Chain Management Officer, Ministry of Defence stated that the bid document for supply, delivery, installation commissioning and maintenance of an integrated communication and security surveillance system (MFI-7) and non-disclosure agreement (MFI-8) were counterfeit.

33. PW9 Dr. Ibrahim Mohamed, the PS Defence testified that the contract or bidding document dated the 4th day of October, 2019 between the Ministry and Howell Investments for supply, delivery, installation commissioning and maintenance of an integrated communication and security surveillance system and BCO Advanced Technologies did not originate from the ministry of defence.

34. There is also the evidence of PW10 Brigadier Aphaxard Kiungui that the end user certificates (MFI-11 (a) & (b)) were not genuine; and, that such documents are not ordinarily signed by the Chief of Defence Forces or Service Commanders as was the case here. In addition, there was the evidence of the forensic document examiner, CIP Iranda Masiko (PW11) whose general line of evidence was that the signatures appearing on the documents were forged.

35. From my analysis of that further evidence, I find that the Republic had established a prima facie case against the 1st to 5th respondents for the main charge of conspiracy to commit a felony contrary to section 393 of the Penal Code as charged in Count 1; and, for making a document without authority contrary to section 357(a) of the Code as charged in Counts 2, 4, 5, 6 and 7 of the charge sheet.

36. In the upshot, I find that the acquittal of the 1st to 5th respondents on Counts 1, 2, 4, 5, 6 and 7 under section 210 of the Criminal Procedure Code was erroneous and is hereby set aside.

37. Under power granted by section 354 (3) of the Criminal Procedure Code I order that the matter be remitted back to the lower court to place the 1st to 5th respondents on their defence on those counts. The respondents shall appear in person before the Chief Magistrate, Milimani Law Courts Nairobi for mention on 4th March 2024 without fail for directions on their trial.

38. It bears repeating that notwithstanding this order, the respondents are still deemed innocent and are entitled to the rights to a fair trial encapsulated in Article 50 of the Constitution.

39. My final orders are thus as follows -a.That the 1st respondent is hereby acquitted on Count 10 charging him with personating a person employed in the public service by falsely presenting himself to Kozlowski Stanley Bruno and Mamdough Mostafa Amer Lofty on 13th February 2020 to be the Personal Assistant to the Deputy President.b.That the 1st, 2nd, 3rd, 4th and 5th respondents are also acquitted on Counts 3, 8, 9 and 15 relating to obtaining money by false pretenses, uttering false documents and attempting to commit a felony.c.That the order by the trial court made on 3rd December 2021 placing the 5th respondent on his defence for Counts 12, 13 and 14 is hereby upheld.d.That the Republic established a prima facie case against the 1st to 5th respondents for the main charge of conspiracy to commit a felony contrary to section 393 of the Penal Code as charged in Count 1; and, for making a document without authority contrary to section 357(a) of the Code as charged in Counts 2, 4, 5, 6 and 7 of the charge sheet. Accordingly, their acquittal on 3rd December 2021 under section 210 of the Criminal Procedure Code on those six counts is hereby reversed and set aside.e.That the original lower court file shall accordingly be remitted back to the lower court for the court to formally place the 1st to 5th respondents on their defence. The 1st to 5th respondents shall all appear in person before the Chief Magistrate, Milimani Law Courts Nairobi for mention for directions on their trial on 4th March 2024 without fail.It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF FEBRUARY 2024. KANYI KIMONDOJUDGEJudgment read virtually on Microsoft Teams in the presence of-Ms. Ndombi for the appellant instructed by the Office of the Director of Public Prosecutions.Mr. Okatch for the 1st, 3rd and 5th respondents instructed by Okatch & Partners Advocates.Mr. Osewe for the 2nd and 4th respondents instructed by Odero Osiemo & Company AdvocatesMr. E. Ombuna, Court Assistant.