[2018] KEMC 91 (KLR)

REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI

MILIMANI LAW COURTS

ANTI-CORRUPTION COURT CASE NO: 15 OF 2016

REPUBLIC....................................................PROSECUTOR

VERSUS

ROBERT KIRIAGO.............................................ACCUSED

JUDGMENT

The accused Robert Kiriago is charged in four counts under the Anti-Corruption and Economic Crimes Act No 3 of 2003(ACECA)

In the first, second and third counts the accused is charged with the offence of corruptly soliciting for 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.

In the fourth count accused is charged with the offence of corruptly receiving a benefit contrary to Section 39(3) (a) as read with Section48(1) of the Anti- Corruption and Economic Crimes Act No.3 of 2003.

The accused denied the offences in all the four counts and the case proceeded to hearing. 11 (eleven) witnesses testified in support of the prosecution case and 28 (twenty eight) exhibits were produced.

After the close of the prosecution case this court delivered a ruling on 22nd January 2018 and acquitted the accused in the second and third counts under Section 210 of the Criminal Procedure Code. The accused was placed on his defence in the first and fourth counts. The accused gave unsworn statement in his defence and did not call any witness.

EVIDENCE IN RELATION TO COUNT 1 AND 4

Pw1 Clifford Mwimi Kimanzi the complainant in the first and fourth counts testified that he is a civil engineer and was working at a construction site in Karen belonging to Paul Mwai Nguru (pw10) on 28th September 2016. He was with Peter Njau a driver to pw10 and other construction workers. He was supervising the construction of a house and was inside the house when Peter Njau (pw2) informed him that there were officers from Nairobi county government who wanted to see him.

He went outside and found four officers including the accused who introduced themselves as officers from department of Environment and Anti Dumping county government of Nairobi. They wanted to know whether they had a letter for excavation and he informed them that they did not have it.

The accused told him that his name is Mr. Kiriago and he is the in charge of Environment and Anti-dumping. They told him to stop the excavation work immediately until he obtains an approval letter and the officers left.

He requested for the number of the accused to enable him communicate with him on how to get the letter quickly since they had hired machines and the excavation was going on.

At around 2pm the officers went back to the site in 2 pickup vehicles they met pw1 and pw2 walking back to the site from lunch. They had reached the main gate to the construction site.

The officers arrested Pw1, pw2 the machine operator and a mechanic. They were put in one pickup. Pw1 called pw10, the owner of the site and informed him that they had been arrested. Pw10 asked for the phone number of the in charge of the officers and pw1 gave him the number the accused had given him earlier. He however could not tell whether they communicated since the accused was in a different vehicle.

They were escorted to Nairobi central police station where they were booked and later released on a cash bail of Kshs.20,000/= each. Pw10 paid their cash bail and they were told to appear at City court number 1 on 29th September 2016. They appeared in court on 29th September 2016 and were charged vide case number 12132/2016. The case was fixed for mention on 30th September 2016 and on the mention date the case was fixed for hearing on 18th October 2016.

On 30th September 2016,they went for mention and it was the same day that his boss (pw10) applied for the excavation approval letter. Pw1 then started to follow up on the same, on Friday 7th October, 2016, he decided to call Mr. Kiriago (the accused) to seek assistance in obtaining the approval letter. The accused on his part told him that they could not discuss the issue on the phone but he should arrange to meet him the following Monday.

On Monday the 10th October 2016, Pw1 called Mr. Kiriago (accused) and he asked him to meet him in his office at City Hall Annex. He also asked him whether he had prepared himself with Kshs.140,000. It is at that point the complainant (pw1) decided to report the matter to the Ethics and Anti-corruption Commission for assistance.

After reporting at EACC, his statement was recorded and he was inducted by Mr. Waihenya (PW11) on how to use the recording device which was produced as exhibit number 1. He was to record the conversation between himself and the accused. He was also introduced to other officers Martin Sao Pw8, Joseph Lenjo Pw6 and Abdi Osman Pw9who accompanied him to City Centre for the operation.

When they got to CBD, Pw1 called the accused who informed him that he was at Helena Café across and he should meet him there. Pw1 proceeded there and he met the accused with two other officers. He asked him how he can get the approval letter and about the case pending in court. The accused told him to give Kshs.20,000 so as they could continue with excavation work without harassment and Kshs.120,000 to have the case pending in city court withdrawn.

He did not negotiate with him but the accused demanded that he go and look for the money without delay and take to him. All this was recorded by the recording device, he left the accused at Helena café and they went back to Integrity Centre where he returned the recording device exhibit 1. The conversation as recorded on 10th October 2016was analysed and a demand of Kshs. 140,000 was established as captured in exhibit 8. They then agreed that they carry out further operations on 11th October, 2016.

On 11th October, 2016, he went back to EACC offices at Integrity Centre and met Mr. Waihenya (PW11) who then introduced him to another officer Mr. Mukundi (pw3). Pw3 showed him Kshs.90,000 in one thousand denomination (exhibit 3(1-90), Pw3 proceeded to photocopy the said monies (exhibit 2), pw1 and pw3 then compared the serial numbers of the money exhibit 2, exhibit 3 and the inventory exhibit 6, the serial numbers tallied, he then signed on the photocopy (exhibit 2). Pw3 Mr. Mukundi then proceeded and treated the money for the operation. Mr. Mukundi placed the money in a half cut envelope (exhibit 13) which he had earlier put his initials (pw1) and then gave it to him with instructions that he should not touch the said money (exhibit 3(1-90), and should only hand it to the accused upon demand.

Mr. Mukundi then directed him back to Mr. Waihenya who then inducted him again on how to use digital audio recorders (exhibit 1 and 5 respectively) after he was able to operate the gadgets, Waihenya handed the gadget to him. Mr. Waihenya further constituted a team of officers Lengo (Pw6), Sao (Pw8),andOsman (Pw9) who accompanied Pw1 for the operation. Mr. Sao instructed him to flash his mobile phone once the accused received the money. They drove to CBD in the commission motor vehicle, he left the officers behind who were following him at a distance, and he proceeded to City Hall Annex from where he called the accused.

The accused picked him and took him to his office and he gave him a seat next to him. The accused asked him whether he had brought what they had agreed. He then told him that he had only managed Kshs.90,000. Accused refused and it was then that he requested to talk to Pw10, his boss. He then told him that the boss had agreed that he would look for the balance of Kshs.50,000. The accused told him to place the money in the drawer he had opened half way. The accused then aligned the money and closed the drawer and then told him to look for the balance. All this was captured in the recording as played from the DVD (exhibit 26) which was reduced into the transcript (exhibit 9).

The accused after receiving the money, assured Pw1 that he can now go and continue with the excavation work as he continued with the other issue of facilitating the withdrawal of the case pending in the city court. Pw1 then stepped out, signaled Sao the EACC officer as earlier agreed. They went back to the office; he identified the accused to them, by then accused had been joined by another colleague. He also showed them where he had placed the money in the drawer.

The officers opened the drawer and recovered the money, they compared the money with the photocopy (exhibit 2) and they tallied. He also testified that he saw the officers swabbing the hands of the accused. They went back to Integrity Centre where he returned the recording gadgets and half cut envelop to Waihenya (Pw11). He also identified the voices in the transcript exhibit 8 and 9 to Mr. Waihenya the investigation officer Pw11.

Pw2 Peter Njau Maina stated that on 28th September 2016, he had been sent by his boos Pw10 to his construction site at Karen. When he got there, four officers from the Nairobi County Government went there and asked him to call the in charge. He called Pw1 to the gate where the officers were. The officers inquired whether they had the excavation permit which Pw1 informed them they did not have. The officers who included the accused herein then ordered them to stop the excavation immediately and ensure they have the requisite permits.

The officers left the scene and Pw1 and Pw2 went for lunch and were on their way back at around 2. 30p.m, when they saw the officers coming back in two county motor vehicles. The accused ordered his officers to arrest them (pw1, Pw2 and two others, the machine operator and the mechanic). On their way to the police station, hey called their boss Pw10 and explained to him what had transpired.

The four were escorted to Nairobi central police station where they were booked into the police cells and later released on a cash bail of Kshs.20,000 each and were directed to appear in court the following day and charged with the offence of excavating without permit.

Pw3 Samuel Njiru stated that he works at EACC as an investigator. That on 11th October 2016, he was on duty at Integrity Centre when he was requested by Mr. WaihenyaPw11 to assist him in an investigation he was conducting against a Nairobi City County official. He was handed Kshs.90,000 in one thousand denomination and asked to process the money for an operation.

He stated that he photocopied the money (exhibit 2), prepared an inventory of the same (exhibit 6) then called the complainant (pw1) with whom they compared the serial numbers on the money, the photocopies and the inventory and they found that they all tallied he appended his signature. He then treated the money with APQ powder.After applying the APQ, he put the money in a half cut envelope which had initials of the complainant (exhibit 4)and gave it to the complainant with instructions that he was not to touch it and was only to give the money and leave the envelope in his pocket and retain the said envelope. He then took the complainant toPw11 Mr. Waihenya, he later came to learn that the accused had been arrested after receiving the money.

Pw4 William Kailo Munyoki a government analyst testified that he received the samples forwarded as indicated in the exhibit memo (exhibit 16) which were as follows right hand swab (exhibit 10) left hand swab ( exhibit 11) blue diary (exhibit 12) half cut envelopes (exhibit 4 and 13 respectively) Kshs.90,000 in one thousand denomination with serials as listed in the exhibit memo ( exhibit 3 and 14 respectively) and control sample APQ) exhibit 15. He testified that the exhibits had traces of Anthracene, Phenolphthalein and Quinine (APQ) which was the control sample. He also produced his report as (exhibit 17). He clarified on the typographical error in his report and explained that he had canceled on the date and countersigned as required. He also indicated that he received the exhibit memo on 14th October 2016 as rectified in his report.

Pw5 Lawrence Mwangi Mukuru stated that he works with Nairobi County Government as the assistant director of environment and he is in charge of enforcement activities of environment issues. He also testified that he is the immediate supervisor of the accused. He stated that on 11th October 2016, he was in his office doing his usual duties, at around 11. 00hours when he saw a person whom he had seen the previous day (pw1) at Helena Café with Mr. Kiriago the accused. He indicated that he did not know what they were discussing.

After a while, Pw1 left and then he went to Mr. Kiriago desk to give some instructions. As he was giving instructions four officers who introduced themselves as officers from EACC entered accompanied by Pw1. The officers informed them they were under arrest, pw1 was asked by the officers to show them who he had given the money and he pointed to Mr. Kiriago the accused and also said he had placed the money in the drawer. The drawer was opened and he saw money in one thousand denominations which was taken by one of the EACC officer. They compared the money with the photocopies they had and the serial numbers tallied. The recorded conversation was played to him and he was able to identify the voice of Mr. Kiriago having a conversation with another person. He further produced a voice recognition certificate (exhibit 18).

Pw6 Lenjo Kililo, Pw8 Martin Saoand Pw9 Abdi Osmanwho are investigation officers at EACC corroborated the evidence of each other on how they then travelled to Nairobi CBD to continue with their operations. Pw6 Mr. Lenjo, testified that on 10th October, 2016 Mr. Waihenya(pw11)informed him that he was investigating a corruption case and requested him to assist. Pw11 further informed him that he had also requested his other colleagues Pw8 Saoand Pw9 Osman to be part of the team.

In the case which involved an officer from county government who was soliciting for Kshs.140,000 from Clifford Kimanzi (pw1) in order to allow him to continue with excavation work at Karen without an approval letter from county government and also to facilitate the withdrawal case No. 12132/2016 at city court against the complainant. He saw Mr. Waihenya induct the complainant (pw1) on how to operate the recording devices (exhibit 1 and 5) before he was given the gadgets to go and record the conversation with the suspect. He and his colleagues (pw8 SaoandPw9 Osman) accompanied the complainant to Helena Restaurant within the CBD in Nairobi County. They were closely monitoring both the suspect and the complainant though they did not enter the restaurant. When the complainant joined them after recording the conversation, they went to Integrity Centre where they listened to the conversation and a demand of Kshs.140,000 was established.

He also testified that the following day 11th October 2016, Mr. Waihenya requested Mr. Mukundi to prepare Kshs.90,000 for the operation. He saw Mr. Mukundi hand over the treated money to pw1, he also saw Mr. Waihenya induct the complainant on how to handle the recording devices. Mukundi and Waihenya did not accompany them for the operation, Sao, Osman and himself accompanied the complainant for the operation. Before they left, the complainant was instructed that he should only give the money upon demand and when the suspect receive the money, he should flash Mr. Sao’s phone as a signal.

Upon reaching City Hall, the team accompanied the complainant Pw1 to 1st floor where they saw him meet with the accused. The accused and the complainant entered the office. After sometime, the complainant came out of the office and signaled that the money had changed hands. They went into the office accompanied by the complainant who showed them the specific person he had handed over the money to. They arrested Mr.Kiriago who was seated at his desk and recovered Kshs.90,000 all in one thousand denomination (exhibit 3(1-90). They then compared the money with the photocopies of the notes and the serial numbers tallied. This was witnessed by all who were present including the accused, complainant and the accused immediate supervisor (pw5). He saw Mr. Sao recover the money from the drawer (exhibit 7) and a blue diary (exhibit 12).

On his part, Pw6 swabbed the right and the left hands of the accused (exhibit 10 and 11 respectively). He labeled the swabs and parked them in separate khaki envelopes (brown). He also witnessed Pw8 make an inventory of the recovered half cut khaki envelop (exhibit19) and inventory of staff card for Nairobi City County belonging to accused Robert Kiriago (exhibit 20). They then escorted the accused and Pw5 to Integrity Centre and booked them in. Later Pw5 was released after investigations revealed that he was not part of the soliciting. The accused was also released on cash basil of Kshs.50,000/=.

Pw7 Duncan Oyugistated that he works at Nairobi County government as the acting assistant director in-charge of administration and appointment. His duties includes; processing all the appointments, transfers and deployments, retirements and resignations. He stated that on 9th May 2017 he was in the office when two officers from EACC went there and inquired whether Mr. Robert Kiriago is their employee. He checked through their records and established that he was employed on 21st March 1991 as clerical officer III. He was thereafter promoted and currently he is designated as administrative officer II and he was deployed on 20th November, 2014 to be the deputy in charge Anti-dumping Unit in the Environment Department. On his part, he produced the appointment and promotion letters as exhibit 21, exhibit 22, exhibit 23, exhibit 24 and exhibit 25.

Pw8 SaoandPw9 Osmanwho are investigation officers at EACC corroborated the evidence of Pw6 on how they travelled to Nairobi CBD to continue with their sting operations. On his part Pw8 Martin Sao confirmed that he recovered the trap money from accused’s drawer, he also recovered a blue diary and prepared the inventories to that effect. He also witnessed Pw6 Lengo swab the hands of the accused, they escorted the accused to integrity Centre and he was later released on a cash bail of Kshs.50,000. He also indicated that Mr. Waihenya on 14th October, 2016 requested him to prepare an exhibit memo and forwarded the samples to the government chemist (exhibit 16).

Pw9 Abdi Osman testimony corroborated the evidence of Pw1, Pw6andPw8. On his part he stated that Pw8 Mr. Saorecovered the money after the complainant had indicated where he had put it in a drawer as instructed by the accused. He also indicated that he saw Mr. Mukundi (Pw3) treat the money for the operation.

Pw10 Paul Mwai Nguru testified that he owns the construction site in Karen and Pw1andPw2 were his employees. He stated that on 28th September, 2016 he was called by his foreman (pw1) at 12. 00hours who informed him that city council officers were asking for excavation approval licenses. At around 2. 30p.m. Pw1 called him again and informed him that the city council officers had arrested him, his driver Peter (pw2), the site mechanic and machine operator. He requested for the number of the in charge which was sent to him via text message. He however did not call the number but decided to call his advocate.

He testified that Pw1 andPw2 called him and told him that they had been locked up. He later went to the police station and paid cash bail of Kshs.80,000 i.e Kshs.20,000 for each and they were released to appear in court the following day. He also confirmed that all the four were charged the following day in city court, and he applied for approval letters from the city council and asked his foreman to follow up.

On10th October, 2016 Pw1 told him that one of the arresting officers had told him he can assist to get the approval letter and facilitate the withdrawal of the case at City court so long as he pays a bribe of Kshs.140,000. He instructed him to report the matter to EACC and he was informed later that the officer had been arrested.

Pw11 Livingstone Waihenya an investigator with EACC and lead investigator in this case stated that on 10th October 2016, Clifford Mwimi Kimanzi (Pw1)was brought to him from the report and data center. The complainant was complaining that one Robert Kiriago an officer working with the Nairobi City County Government was demanding for a benefit of Kshs.140,000 as an inducement to as to allow him to continue with the excavation work that he was doing at a construction site at Karen and to facilitate withdrawal of the case pending in City court.

He inducted the complainant on how to operate the recording devices (exhibit 1 and 5) he was to record the initial conversation with the suspect. He also composed a team of his colleagues to accompany the complainant comprising of Pw6, Pw8 and Pw9. The complainant and the officers left for the operation. They came back after sometime and informed him that the complainant had met the suspect of Helena Café and recorded their conversation.

The complainant handed back the recording device, they analyzed with the team and after listening to the conversation they established solicit of a benefit of Kshs.140,000 by the suspect. From the conversation, the suspect was saying Kshs.20,000 was to allow the complainant Pw1 to continue with the excavation work without harassment and Kshs.120,000 was for facilitating the withdrawal of the case the complainant was facing with others at the City court. Since Pw1 was rushing somewhere, they agreed that the further operations be carried the following day.

On 11th October 2016, the complainant Pw1 went to integrity Centre and Pw11 organized a team of investigators comprising of Lenjo, Sao and Osman to help him conduct the operation. He also requested Mukundi (Pw3) to treat the money (Kshs.90,000) for the operation. Pw3 photocopied the money, made an inventory and finally treated the money which he put in a half cut envelope and gave it to the complainant. Pw6, Pw8 andPw9 accompanied Pw1 to City Hall where he was to meet the accused. He confirmed that the accused and Pw5were arrested. They were escorted to Integrity centre where they listened to the recording captured by the gadgets (exhibit 1 and 5) he had given the complainant for the operation. The complainant identified the voices.

He also played the recording to Mr. Lawrence Mukuru (pw5)the immediate boss to the accused. He had been arrested together with the accused as they were found together. After his investigations he found that pw5 was not involved. Pw5 positively identified the voice of Robert Kiriago (accused) in the two recordings (exhibit 8 and 9 respectively). He also signed the certificate of voice recognition (exhibit 18) which he witnessed. He directed Pw8 Mr. Sao to prepare an exhibit memo and forward the samples to the government chemist (exhibit 16). He also followed up with the Human Resource Department at Nairobi County Offices where he metPw7 Mr. Oyugiwho confirmed that indeed the accused was working with them and he recorded a statement to that effect.

He further produced exhibit 1 and 5 which are the recording gadget used in the operation,exhibit 8 and 9which are the transcripts he transcribed from the recordings. He produced the DVD which was played in court (exhibit 26)and a certificate underSection 106(b)of the evidence Act respectively. He produced the printed report from the record and data Centre which captured the initial report of the complainant. He explained that the date is indicated as reported on 11th October 2016 because the system automatically takes the data the date it is fed in. On the previous day when the complainant reported the matter, their systems were down hence the data was fed on the next day.

The accused in his defence gave unsworn statement and did not call any witness. He confirmed that he works with Nairobi City county government as the head of Environmental Operations. He denied the offences in the first and fourth counts. He testified that they had received a complaint that someone was excavating and dumping near Karen Country Club. He proceeded there with his officers and confirmed that there was excavation going on.

The accused asked for the in charge of the site who confirmed that they had no permit for excavation. He directed them to stop the excavation and they left the site but returned later in the afternoon. They found that the excavation was still on going. The accused testified that he called his officers and they arrested the people who were at the site.

He directed that they be escorted to Central police station in a closed pickup and followed from behind in another vehicle. He stated that they asked for the amount of cashbail required and he informed them that it was Kshs.100,000/= but they indicated they could raise Kshs.20,000. He did not follow up but was informed later they had been given a cash bail of Kshs.20,000 and they were to appear in court at City Court the following Monday since it was a Friday.

Later pw1 called him after 3 weeks and introduced himself, he told him to see him in the office. When pw1 called later on he told him that he had gone for tea with his boss and asked him to meet him at café Hellena. He stated that pw1 told him that he wanted to continue with excavation and he asked him whether he had finished the case in court.

He called other officers to confirm the same and they informed him that the case was still in court. Accused testified further thatpw1 did not know the date of the case and one officer attached to court promised to confirm and inform him the following day. He then advised pw1 to come the following day.

On the following day Pw1 called him and requested to see him. Pw1 went to his office and pulled a chair and sat near drawers then left while pretending to be on phone. Immediately some people entered and introduced themselves as officers from EACC and told him that he was under arrest.

They told him to remove the money and his hands were swabbed. His boss and himself were handcuffed and escorted to Integrity Centre where they recorded statements. He was released on a cashbail of Kshs.50,000/= and was told to report after 2 weeks but he fell sick and was admitted at Guru Nanak Hospital. He was arraigned in court later after the court insisted that he appears in court.

Accused denied that the diary which was produced belonged to him and stated that the desk where the money was recovered was communal. He said that the money was not recovered from him and he did not pocket the same hence it was not meant for him.

In summary this is the evidence which was presented by the prosecution and defence.

The issues for determination are:-

1. Whether the accused corruptly solicited for a benefit of Kshs.140,000/- from Clifford Mwimi Kimanzi (pw1) as charged in the first count.

2. Whether the accused corruptly received a benefit of Kshs.90,000/= from Clifford Mwimi Kimanzi (pw1) as charged in the fourth count.

THE LAW AND ANALYSIS OF THE EVIDENCE

Accused is charged with the offence of corruptly soliciting for a benefit contrary to Section 39(3) as read with Section 48(1) ofthe Anti-corruption and Economic Crimes Act No. 3 of 2003. (ACECA) in the first count.

The prosecution is required to proof that:-

1. The accused is an agent within the meaning of the act (ACECA).

2. The inducement benefit of reward was intended to influence the accused from doing or not doing something or showing favour or disfavour to any person on a matter touching on officers of accused’s principal or employer.

3. There was solicitation.

In the fourth count in which accused is charged with the offence of corruptly receiving a benefit contrary to Section 39(3) as read with Section 48(1) of the (ACECA). The prosecution is required to prove that the accused received the alleged benefit.

In the case of Mwangi .vs. Republic (2015)eKLR it was held as follows:-

“The main ingredients of the offence of soliciting and receiving a bribe are that the accused must be acting in any capacity, whether in public or private sector, or employed by or acts on behalf of another person, that he must be shown to have obtained or attempted to obtain from any person gratification other than legal remuneration, that the gratification should be as a motive or reward for doing or forbearing to do, in the exercise of his official function, favour or disfavour to any person. The gravamen of the offence is acceptance of or the obtaining or even the attempt to obtain illegal gratification as a motive or reward for inducing a public servant for corrupt or illegal means. The receipt of gratification as a motive or reward will complete the offence.

In order to constitute an offence three things are essential; in the first place, there must have been solicitation or offer or receipt of a gratification. Such gratification must have been asked for, offered or paid as a motive or reward for inducing by corrupt or illegal means, and secondly that someone should be acting in the public or private or employed or acts for and on behalf of another person, or confer a favour or ask for a favour to render some service.”

Section 38(1)of ACECA defines an agent as:-

“a person who in any capacity and whether in the public of private section is employed by or acts for or on behalf of another person.”

The same section defines a principal as:-

“a person whether in the public or private sector who employs an agent or for whom or on whose behalf an agent acts.”

The accused in this case is an employee of Nairobi City County Government as a deputy incharge Anti Dumping Unit in the Environment Department. This was confirmed by Pw5 and pw7. The accused also confirmed the same in his defence. The accused is therefore an agent of Nairobi County Government which is the principal in relation to him.

From the particulars of the charge, the benefit or reward solicited and received was an inducement to facilitate the withdrawal of case number 12132/2016 which is pending before City court Nairobi and to allow the complainant to proceed with the excavation work at Karen without approval letter. From the evidence of Pw1, he reported and made a complaint on 10th October 2016 at EACC where he was directed to Mr. Waihenya Pw11, the investigation officer in this matter.

He also testified that after his colleagues and himself were charged in city court, he continued to follow up onprogress of the excavation approvals with no success. On 7th October, 2016 he called the accused on phone and the accused told him to meet him at City Hall Annex for a talk. On 10th October, 2015, he went and they met with the accused who then asked him if he had prepared himself with Kshs.140,000/= Since he did not have the money and knowing that it was wrong for one to ask for money to render a service, he decided to report the matter to EACC after informing his boss Pw10

On the issue whether accused person corruptly solicited for a benefit as charged in count 1.

"Soliciting"is not defined under the Act. The Concise Oxford English Dictionary defines Soliciting ''as to ask for or try to obtain something from someone".

The Merriam-Webster on line dictionary offers the following definition:- "to ask for (something, such as money or help) from people, companies, etc., to ask (a person or group) for money, help, etc."

In State v. Wallace it was held that "solicitation means the asking, enticing, or requesting of another to commit a crime of bribery." To constitute the crime of solicitation of a bribe, it is not necessary that the act be actually consummated or that the defendant profit by it. It is sufficient if a bribe was actually solicited.

It is corruption to ask for any benefit not legally due in order to do one’s appointed duty and against the public interest to secure a benefit by corruption. A public servant is paid a salary to perform his appointed duties and discharge those duties without seeking other emoluments corruptly.

As per the transcript of the recorded conversation held between Mr. Clifford Mwimi Kimanzi (Pw1) and Robert Kiriago (accused) at Helena Hotel on the 10th day of October 2016. The following is what transpired.

Exhibit 8, page 2 line 19 to page 3 line 1 to line 9.

Robert:Before we even talk

Mwimi:Mmm

Robert:Am I talking to the right person ama kuna the third party, nimekuja kuongea ngoja kwanza uongee na mzee ngojauongee na nani that chain.

Mwimi: Unajua sasa

Robert: Mmm

Mwimi: chain will be easier ni mimi tu na mzee juu sasa

Robert: Ndio sasa mzee anataka aje? ni weweunataka ama ni mzee

Mwimi: Ok ni sisi wote

Robert: Mmh

Mwimi: Because we need to get the letter.

Robert: Eeh

Mwimi: We need to link up na ile case

Robert: Eeh

Mwimi: Those two things ndio tunataka utusaidie

Robert: Kazi ilikuwa imebaki kiasi gani?

Mwimi: Kazi ni ya one day

Robert: Hiyo ya one day leta, utaleta badala ya hiyo fourty

Mwimi: Mmh

Robert: Ulete twenty hiyo wacha nitawasimamia mmalize na hii ya case sasa?

Exhibit 8, page 3 last line at bottom

Robert: haya mkiambiwa mlete one twenty mtaweza hiyo maneno iishe?

Exhibit 8, page 4 line 1

Mwimi:one twenty?

Exhibit 8, page 5, line 5 and 6

Robert:Uende utafute hiyo pesa nakwambia one twenty (120,000) na twenty (20,000) ingine ya kusimamia hiyo nikusaidia myfriend.

Exhibt 8, page 10, line 6 to 13

Robert:Wamesumbuka wanaona ile kesi iko mbaya so kuna vyenye nimemwambia, ile kazi imebaki ni ya siku moja atafutetwenty tutawa simamia.

UV:Eeh

Robert :Mambo ya kortini nimemwambia atafute one twenty, atafute one twenty tupee watu wa kortini tufanye nini hiyo kesi iishebecause ikiendelea si wameweka bond ya eighty.

UV:Mmh

Robert:Ikiendelea kila mtu atapigwa hiyo eighty times four itakuwa ngapi.

Exhibit 8 page 10 line 18 to 21

Robert: Eeh enda utafute hiyo vitu

Mwimi: Niende nitafute alafu nikuje kukuona wewe sindio

Robert: Enda utafute sawa ata ukiona huyu au mimi

UV:Come through him

From the above excerpts, it is obvious that the accused was well familiar with the issue of the Kshs.140,000/=. The responses of the accused clearly indicate that they discussed the issue with Pw1 and he asked for Kshs 140,000/=. The accused therefore solicited for a benefit of Kshs 140,000/= from the complainant Pw1, as charged in count 1.

On the issue whether accused person corruptly received Kshs.90,000 as charged in count 4.

Benefit is defined in Section 2 (1) of the Act as follows:- "benefit" means any gift, loan, fee, reward, appointment, service, favour, forbearance, promise, or other consideration or advantage.

The essential ingredients of the offence are that the accused must have received a benefit as defined above, that it must have been received corruptly as an inducement to bring about some given results in a particular matter, that the benefit must not be legally due or payable.

PW1 in his evidence gave an account of how he met the accused on 11th October 2016 at City Hall Annex. He informed the accused that he had only managed to get Kshs.90,000. At first the accused was hesitant because he had not brought all the money (Kshs.140,000 i.e Kshs.120,000 plus Kshs.20,000) but he later told him to place the money in a drawer which was at his desk. He saw the accused align the notes and close the drawer.

From the transcript (conversation recorded between Mr. Clifford Mwimi Kimanzi (Pw1) and Robert Kiriago (accused)) at City Hall Annex on the 11th October 2016. The following is what transpired;

Exhibit 9 page 1 line 6-16

Robert: kuja kuja kaa hapa

Mwimi: sasa nimepata ninety

Robert: mmm

Mwimi: nimepata ninety

Robert: wacha hivo si nilikuliza uko sawa ukaambia watu uko sawa? Me hu deal straight na nilikwambia na deal straight.

Mwimi: sasa what do we do?

Robert: that can’t work

Mwimi: mmm

Robert: I asked you and I told the people vile nimekufanyia nimekufavour a lot.

Mwimi: eeh ok nilijaribu kung’ang’a na mdosi tutafute pesa kutoka jana bana.

Exhibit 9 page 2 line 1-9

Robert:you see even now sitaki iende tu hivyo ekelea hapo mimi nimekusaidia wewe hujisaidii unajua mimi nakuaga...

Mwimi:eeh

Robert:you see even sitaki iende tu hivyo, wekelea hapo mimi nimekusaidia, wewe hujisaidii

Mwimi: eeh

Robert: kama yeye haoni tulikuwa tunasaidia wacha ataonea mbele

Mwimi: wacha nijaribu kumtext nijue itakuwa aje

Robert: I am not negotiating to gain, you understand?

Shortly after the accused had received the trap money, the complainant signaled he EACC officers that the accused had received the money, they went to where the accused was seated, and the complainant identified the accused and further showed the EACC officers where he had put the money upon instructions from the accused. They opened the drawer and found the money there.

The accused was apprehended by EACC officers. Pw8 recovered the trap money and a diary belonging to accused Pw6 swabbed the hands of the accused . The money, the diary and the swabs were all taken to the Government chemist for analysis.

Pw4 William Kailo Munyoki testified and confirmed that he analysed the items forwarded by Pw8 for analysis with the exhibit memo form (Exhbit 16). He did analysis and established that Exhibit 10, 11,12,13,14and15 all had traces of Anthracene, Phenolphthalein and Quinine(APQ) which was the control sample. This is a confirmation that the accused came into contact with the treated money. He prepared his report which he produced as (exhibit 17).

There is no doubt therefore that accused received a benefit of Kshs 90,000/= from the complainant Pw1 as charged in count 4.

I have considered the defence by the accused and the submissions filed on 12th April 2018.

I find the defence by accused to be just a mere denial.

The desk where the money was recovered belonged to accused and was not communal as stated by accused.

Pw5 confirmed in his evidence that the desk belonged to the accused and he had gone to the desk of the accused when the EACC officers entered. That is why he was also arrested but was later released.

Pw5 further confirmed that he had seen accused with Pw1 on 10. 10. 2016 at cafe Helena and he again saw the accused on 11. 10. 2016 seated next to the accused in the office.

Pw5 stated further that he proceeded to the desk of accused after Pw1 left, EACC officers entered while accompained by Pw1 and found him with accused then recovered the money from the drawer at the accused’s desk.

Considering the evidence prensented there is no doubt that the accused solicited for Ksh. 140,000/= from the complainant as charged in the first count. There is also no doubt that accused received ksh.90,000/= from the accused as charged in the fourth count.

The prosecution has therefore proved this case against the accused to the required standard of beyond reasonable doubt.

I find the accused guilty as charged in counts one and four and convict him accordingly in the two counts for the offence of corruptly soliciting for 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 and the offence 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.

J.O. Magori – SPM

Judgment delivered, dated and signed in open court this 18th day of May 2018 in the presence of accused,Mr Bosire for accused and Mr Nyaberi for accused present

Pros. Counsel MS Samita

C.Clerk-Leaky

J.O Magori - SPM

18. 5.18