https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12309

Republic v Ojaamong & 8 others (Criminal Appeal E015 of 2025) [2026] KEHC 12309 (KLR) (Anti-Corruption and Economic Crimes) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 12309 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Anti-Corruption and Economic Crimes Criminal Appeal E015 of 2025 BM Musyoki, J July 29, 2026 Between Republic Appellant and Sospeter Odeke Ojaamong 1st Respondent Bernard Krade Yaite 2nd Respondent Lenard Wanda Obimbira 3rd Respondent Allan Ekweny Omachari 4th Respondent Samuel Oseko Ombui 5th Respondent Edna Adhiambo Odoyo 6th Respondent Renish Achieng Omullo 7th Respondent Sebastian Hallensleben 8th Respondent Madam R Enterprises Limited 9th Respondent (Being an Appeal from the judgment and order of Hon. E.K. Nyutu (CM) dated 16th May, 2025 in Anti-Corruption case No. 23 of 2018 at the Chief Magistrates Court at Milimani) Judgment 1.The 1st to 9th Respondents herein were charged jointly in count 1 and individually and/or jointly in 10 other counts before the trial court with various offenses under Sections 45, 46, 47 and 48 of the Anti-Corruption and Economic Crimes Act No. 3 of 2003. The alleged offences were said to have been committed sometime between March, 2014 and September, 2014 in relation to a feasibility study on Integrated Solid Waste Management Project. The respondents pleaded not guilty and the case proceeded to trial. The prosecution called a total of 22 witnesses in support of its case and the respondents ultimately put to their defence. 2.The specific charges were as follows;Count 1- against all the respondents- Conspiracy to commit an offence of economic crime contrary to Section 47A(3) as read with Section 48 of the Anti-Corruption and Economic Crimes Act. The particulars were that between 15th March and 25th September 2014, in Busia County within the Republic of Kenya jointly and severally conspired to commit an economic crime to wit engaged in a scheme to defraud the County Government of Busia to the tune of Kshs 8 million for a purported feasibility study on integrated waste management project which was to be carried out by Madam R Enterprises Ltd.Count 2- against the 1st respondent only- engaging in a project without prior planning contrary to Section 45(2)(c) as read with Section 48 of the Anti-Corruption and Economic Crimes Act particulars being that on or about 7th April 2014 in Berlin Germany, being the Governor of Busia County, he intentionally engaged in a project namely feasibility study on integrated solid waste management project by entering into a Memorandum of Understanding with Madam R Enterprises Ltd without prior planning.Count 3- Against the 2nd and 3rd respondents- engaging in a project without prior planning contrary to Section 45(2)(c) as read with Section 48 of the Anti-Corruption and Economic Crimes Act particulars being that between 7th April 2014 and 25th September 2014, in Busia County within the Republic of Kenya, being the County Executive Member for Water, Environment and Natural Resources and County Executive Member for Economic Planning respectively, jointly engaged in a project namely; feasibility study on integrated solid waste management project without prior planning.Count 4 against the 1st respondent only - abuse of office contrary to Section 46 as read with Section 48 of the Anti-Corruption and Economic Crimes Act. The particulars were that on 7th April 2014, at Berlin, Germany he used his office to improperly confer benefit of Kshs 8,000,000/= to Madam R Enterprises Limited by signing a Memorandum of Understanding with the said Madam R Enterprises Ltd which had not been procedurally procured as per the Public Procurement and Disposal Act 2005.Count 5 against the 1st respondent only - abuse of office contrary to Section 46 as read with Section 48 of the Anti-Corruption and Economic Crimes Act. The particulars were that on 12th May 2014, at Busia County within the Republic of Kenya, being the Governor of Busia County, he used his office to improperly confer benefit of Kshs 8,000,000/= to Madam R Enterprises Limited by approving the payments for the said Madam R Enterprises Ltd which had not been procedurally procured as per the Public Procurement and Disposal Act 2005.Count 6 against the 3rd, 4th and 5th respondents- willful failure to comply with the law relating to management of funds contrary to Section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes Act. The particulars were that, between 9th May 2014 and 25th September 2014 in Busia County, within the Republic of Kenya, being the County Executive Member for Finance and Economic Planning, Chief Officer Finance and Economic Planning and Head of the Treasury Accounting respectively, being persons whose functions concerned management of public revenue willfully failed to comply with the law relating to management of funds to with Section 138 (6) of the Public Finance Management Act, 2012 by knowingly approving payments amounting to Kshs 8,000,000/= to Madam R Enterprises Ltd for a feasibility study on integrated solid waste management, a project for which funding had not been appropriated.Count 7 against the 3rd , 4th and 5th respondents- fraudulently making payments from public revenue for services not rendered contrary to Section 45(2)(a)(ii) as read with Section 48 of the Anti-Corruption and Economic Crimes Act particulars being that between 9th Amy 2014 and 25th September 2014 in Busia County within the Republic of Kenya being the County Executive Committee Member for Finance and Economic Planning, Chief Officer Finance and Economic Planning and Head of Treasury Accounting respectively, being persons whose functions concerned management of public revenue fraudulently made payments to Madam R Enterprises Ltd for services not rendered.Count 8 against the 6th, 7th and 8th respondents- fraudulent acquisition of public property contrary to Section 45(1)(a) as read with Section 48 of the Anti-Corruption and Economic Crimes Act. The particulars were that on 14th May 2014 at Busia County, within the Republic of Kenya, being the Finance Manager, proprietor and beneficiary of Madam R Enterprises respectively, fraudulently acquired public property to wit Kshs 4,000,000/= from Busia County Government for services not rendered.Count 9 against the 6th, 7th, 8th and 9th respondents- fraudulent acquisition of public property contrary to Section 45(1)(a) as read with Section 48 of the Anti-Corruption and Economic Crimes Act. The particulars were that on 25th September 2014 at Busia County, within the Republic of Kenya, being the Finance Manager, proprietor and beneficiary of Madam R Enterprises respectively, fraudulently acquired public property to wit Kshs 4,000,000/= from Busia County Government for services not rendered.Count 10 against the 6th, 7th and 8th respondents- failure to pay taxes contrary to Section 45(1)(d) as read with Section 48 of the Anti-Corruption and Economic Crimes Act whose particulars were that on 14th May 2014, at Busia County, within the Republic of Kenya being Finance Manager, proprietor and beneficiary of Madam R Enterprises respectively, failed to pay taxes being VAT to the Kenya Revenue Authority a sum of Kshs 551,724/=.Count 11 against the 6th, 7th and 8th respondents- failure to pay taxes contrary to Section 45(1)(d) as read with Section 48 of the Anti-Corruption and Economic Crimes Act whose particulars were that on 25th September 2014, at Busia County, within the Republic of Kenya being Finance Manager, proprietor and beneficiary of Madam R Enterprises respectively, failed to pay taxes being VAT to the Kenya Revenue Authority a sum of Kshs 551,724/=. 3.On the 16th May 2025, the trial court having considered the evidence on record delivered a judgment in which it found that the prosecution had failed to prove their case beyond any reasonable doubt in relation to all the charges against the respondents and proceeded to acquit them under section 215 of the Criminal Procedure Code. Being dissatisfied by that decision, the appellant herein filed a petition of appeal dated 28th May 2025 citing the following grounds;a.The Learned Magistrate gravely erred in law and in fact by failing to analyze the entirety of the prosecution's evidence, and proceeded to render a decision based solely on the defence tendered despite the overwhelming and uncontroverted evidence presented by the prosecution.b.The Learned Magistrate erred in law and in fact by failing to appreciate and analyze the cogent, credible, and truthful evidence adduced by the prosecution, which demonstrated that the respondents conspired to defraud the County Government of Busia of Kshs. 8,000,000/=.c.The Learned Magistrate misdirected herself in law and fact by failing to recognize that the Memorandum of Understanding (MOU) signed in Germany, which formed the basis for the activities the 9th respondent was to undertake, constituted a serious breach of the County Governments Act, the Public Finance Management Act, and the Public Procurement and Disposal Act. The trial court erroneously disregarded this evidence and mischaracterized the MOU as a non-binding framework rather than a binding contract.d.The Learned Magistrate failed to caution herself and/or remind herself of her duty as the trial court to determine the points of departure between the approved budget presented by the prosecution which was supplied to the EACC and the alternative budget presented by the accused. The Magistrate further failed to analyze the rebuttal evidence produced by the prosecution, which discredited the authenticity of the budget relied on by the accused persons. This omission led to a significant misdirection in law, as the court failed to determine which of the conflicting budgetary documents merited greater evidentiary weight.e.The Learned Magistrate erred in law and in fact by unjustifiably attributing more weight and consideration to the budget produced by the accused, which purported to make provision for the disputed project, despite prosecution witnesses having established that no such budgetary allocation existed.f.The Learned Magistrate failed to appreciate the evidence presented by the prosecution that the feasibility study project was undertaken without prior planning or approvals, which were only sought retroactively after the signing of the MOU.g.The Learned Magistrate erred in law and in fact by failing to recognize that the budget documents and public participation notices presented by the accused were procured after the commencement of investigations, and specifically tailored to counter the prosecution's case, after the accused had already been charged and served with a notice to produce. Consequently, the court ought to have given such documents minimal probative value.h.The Learned Magistrate failed to consider the prosecution's evidence that Madam R Enterprises Ltd., the company allegedly engaged to carry out the feasibility study, was primarily a hardware business with no capacity or expertise to conduct feasibility studies for the County Government of Busia.i.The Learned Magistrate failed to appreciate that the 9th Respondent, despite offering unsworn evidence, did not produce any proof of having paid tax on the funds received from the County Government of Busia. 4.My role as the first appellate court is to analyze, consider and evaluate the evidence produced in the trial court and come to my own independent conclusion but as I do so, I will keep in mind that I did not take the evidence first hand and I did not have an opportunity to observe the demeanour of the witness and as such, I should give due allowance for that. This is a basic legal principle which has been established since the celebrated case of Okeno vs. Republic (1972) EA 32 which has been cited in many cases including Mwangi v Republic [2025] KEHC 9457 (KLR) where the court held that;“At the conclusion of the case, it is noteworthy that the role of the first appellant court is to re-evaluate the evidence adduced in the trial court afresh and arrive at its own conclusion taking into account the fact that the court did not have the benefit of the demeanour of the witness.’ 5.In addition to the above, an appellate court should in my view constrain itself within the area challenged by the appellant as it is not expected to dwell on issues which may have been settled at the trial court and parties satisfied. The reconsideration of evidence should therefore be limited to the grounds of appeal which is in line with Section 350 of the Criminal Procedure Code which provides.“A petition of appeal shall be signed, if the appellant is not represented by an advocate, by the appellant, and, if the appellant is represented by an advocate, by the advocate, and shall contain particulars of the matters of law or fact in regard to which the subordinate court appealed from is alleged to have erred, and shall specify an address at which notices or documents connected with the appeal may be served on the appellant or, as the case may be, on his advocate; and the appellant shall not be permitted, at the hearing of the appeal, to rely on a ground of appeal other than those set out in the petition of appeal.’ 6.There are of course provisos to the above Section but they do not apply to this appeal. In execution of mandate as aforesaid, I first reproduce what I consider to be the relevant parts of the evidence of the parties in the following paragraphs. The prosecution’s case 7.PW1 was Charles Wakhungu Wasike who was an MCA of for Buhoyo East Ward. He testified that he was in the delegation that travelled to Germany where they met an investor company known as Madam R Investment Company Ltd whose directors are the 7th and 8th respondents and added that the trip was funded by the 9th with the County Government of Busia (hereinafter referred to as ‘the Government’) only giving them out of pocket allowances. During that visit, a Memorandum of Understanding (hereinafter referred to as ‘the MOU’) on waste management was signed on 7th April, 2014 between the 9th respondent and the Government with the 1st respondent signing on behalf of the Government. It was his testimony that he was not aware whether the said trip had been planned for. 8.During cross-examination, he was shown the Government’s County Integrated Development Plan (CIDP) which he admitted was a legal requirement and was approved by the County Assembly and it contained a column on funding. It was his testimony that some attachments were missing from the CIDP and that the Governor could not spend money without the authority of the Assembly. He also confirmed that there was a Supplementary Budget for the financial year 2013/2014 which indicated there was an allocation of Kshs 4 million for feasibility study and that he was never shown the Busia County Appropriation Amendment Act 2013/2014. He also confirmed that there was an Appropriation Act 2014/15 published on 29th June 2014 and assented to on 30th June 2014 to commence on 30th July 2014 and there was money appropriated for feasibility studies. 9.Josephat Wandera alias Makulu Kalumbe was the second witness who testified that he was the MCA for Lingulu ward. He testified that he received a letter (exhibit 2) from the Faun Kirchhoff group dated 18th March 2014 addressed to the 1st respondent through the office of the Speaker. He was shown and identified prosecution exhibit 2 which was the budget for the Government but added that the same was not the true budget for the Government for the year. 10During cross-examination, it was his testimony that he was seeing exhibit 2 for the first time. He added that on the 30th June, 2014, there was a special sitting of the Assembly where the supplementary budget for the year 2013/2014 was passed and later sent to the Governor for assent. He further stated that the Government was not defrauded of the Kshs 8 million and the feasibility study was planned in terms of the budget and the CIDP and further confirmed that work was done but not completed due to the non-delivery of trucks. He concluded by stating that there have been no audit queries hence payments were lawfully made. 11.PW3 was one Dan Orabidi Emorneri testified that he was an accountant working with the Government and his duties involved verifying payments from different departments and ensuring there were no computation errors. He produced prosecution exhibits 1 to 5 and stated that he was the person who received, examined, and verified the payment vouchers, one on the 14th May 2014 for Kshs 4 million to the 9th respondent through Family Bank account number 02500026060, Kisumu Reliance branch and the second one for Kshs 4 million on 23rd September, 2014 (vouchers produced as prosecution exhibits 4(a) & 5(b) and passed them for payment. He testified that following his verification, the same were passed to the Head of the Treasury for approval and thereafter to the Principal Officer Finance. 12.In cross-examination, he confirmed that the payments were lawful, budgeted for and authorized and it is on that basis that he proceeded to sign the vouchers. He asserted that services were rendered by the 9th respondent and that he was aware that there was a feasibility study report and that the Government got value for its money. It was his testimony therefore that they did not acquire 4 million irregularly. 13.The fourth prosecution witness was John King'ori Muchiri, the head of security and investigations at Family Bank who testified that pursuant to summons from EACC, he supplied and also produced as exhibits the account opening documents, statements, EFT requests, and other relevant documents in respect of 9th respondent’s bank account at Family Bank as prosecution exhibits 6 to 11. It was his testimony that the said account received Kshs 4 million from a Cooperative Bank Account belonging to the Government on the 14th of May, 2014. He added that there was a swift transfer form dated 15th May, 2014 for 5607.32 Euros to Sebastian, the purpose thereof indicated as salary. He testified further that on the 25th of September, 2014, a swift was received for the said account from the Central Bank of Kenya for Kshs 4 million and on the same day, a transmission notification was received for 7,000 Euros to Sebastian indicated to be for directors’ salary. When he was cross-examined, he indicated that there was no issue about how the account was being run and that there were no reasons to question the transactions. He concluded by stating that no money from the said account was sent to any of the 1st to 4th accused therein. 14.PW5, one John Moseti Orioro, the KRA regional manager for Western Kenya, in charge of domestic taxes told the court that pursuant to a letter from EACA, he provided tax information in respect of 7th and 9th respondents. It was his testimony that Madam R Enterprises was registered as a sole proprietorship by the 7th respondent in 2007 and only filed returns in 2008 but had not filed returns since then. Regarding the 6th respondent, it was his testimony that she has been compliant in terms of filing returns. During cross-examination, he stated that Madam R Enterprises Ltd was registered in late 2014. 15.Allan Wafula Mabuka who was the 6th prosecution witness testified that he was the Clerk of the County Assembly of Busia (hereinafter referred to as ‘the Assembly’) since 2014. He was custodian and supplier of official documents from the Assembly. He confirmed that he provided information and all relevantnt documents to the EACC investigator (PW19) pursuant to their request. He produced the letters of request and forwarding the documents and two supplementary budgets as exhibits. He also produced two supplementary budgets. In cross-examination, he stated that prosecution exhibit 13 which was one of the budgets he produced was a draft and could not be used for accountability purposes. He was shown and identified the proper budget as DMFI 2(b) and stated that in the revised budget, there was an allocation of Kshs 4 million for feasibility study. 16.Pressed further, PW6 also confirmed that there was an Appropriation Amendment Bill which was taken through the Budget Appropriation Committee and thereafter it was passed as the Supplementary Amendment Act 2014. He further confirmed that according to a document identified as DMFI 8, Kshs 5 million was allocated for the feasibility study for the financial year 2014/2015. He stated that the Appropriation Acts were never shown to him by EACC. The witness therefore confirmed that the feasibility study was budgeted and appropriated for. 17.Zephania Owuor Onima the Deputy Director in charge of Complaints in NEMA testified that he was requested to give insights on expected contents of a feasibility study and comment on feasibility report given to the Government. It was his testimony that the report was a progress report and not a feasibility or pre-feasibility study. He testified that he then prepared a report based on the provided documents and added that it was revealed that the project had commenced without the relevant licenses from NEMA and that the 9th respondent had no licenses to collect, transport or operate a waste disposal facility. In cross-examination, he stated that there was no requirement for licenses to conduct a pre-feasibility study but licenses were required for implementation of a project. 18.PW8, who introduced himself as Nicodemus Mulaku and the County Secretary of the Government was expected to produce minutes dated 7/5/2014 which was objected to on the basis that he was not an employee of the Government at the time and he did not record any statement. He was thus stood down and PW9 one, Beneya Kwendo Okalo took the witness stand. He was the head of Supply Chain in the Government from 2013 until he retired in 2016. 19.PW8 told the court that on the 20/1/2016, he was visited by EACC officers who inquired about waste management and wanted information from in relation to how the services of the 9th respondent were procured while showing him the MOU. He testified that he did not have any information to give them as he was not involved whatsoever in the process giving rise to the MOU nor was he present in any meeting thereof. When he was cross-examined, he confirmed that the said project was approved by the County Executive Committee (CEC) and the Assembly and that it was not a must for the MOU to go through the procurement process. 20.The prosecution’s tenth witness was Peterson Wachira, a clerical officer in the Office of the Registrar of Companies. His evidence was on registration, directorship and the status of the 9th respondent which I don’t find relevant to the issues in this appeal. 21.The 11th witness to be called by the prosecution was Grace Matinde Mchuma, a CEC Member of the Government who confirmed having attended the 44th CEC meeting where a discussion on waste management contract being issued to the 9th respondent was done and resolution passed. It was her testimony that the decision was unanimous and that implementation was thereafter subject to the user department. This position was supported by PW 12 one Dr. Maurice Peter Simiyu who confirmed that the minutes produced as exhibit 24 was a true record of the said meeting. 22.Martin Shikuku Kafwa testified that he was the County Executive Member for Culture and Social Services and confirmed attending the 44th CEC Meeting where among others the proposed partnership with the 9th respondent with regards to cleaning Busia town was discussed and a cabinet memo which was passed. Similar testimonies came from PW 16, one Bernadette Muyomi and PW 17, one Azida Ali. 23.Stephen Yego a forensic document examiner working with EACC was the fourteenth prosecution witness. His testimony was in respect of documents specifically MOU, a letter dated 12-05-2014, and bank transfer documents. There is no contestation on execution or authorship of the documents and as such I do not consider the evidence relevant to this appeal. The same applies to testimony of PW18 one Jacob Odour who examined payment vouchers. 24.J. J.O. a protected witness told the court that he was employed by 9th respondent in May 2014, as the County Relations Coordinator. He was the link between the Government and the company and also supervising employees of the Government. It was his testimony that work was fine between May and August 2014 but they experienced problems from September to January. In cross-examination, he stated that he was employed by the Government through a letter signed by Timon Mboga, the Chief Officer Environment. It was his testimony that they began work on 29/4/2015 after 9th respondent had already disengaged. 25.Pressed further, PW15 confirmed that he did not work for the Government before 2014 and added 3rd and 4th respondents went to Germany and witnessed the transaction on the MOU and that public funds were used. However, on being shown a document marked as MFI 5(3), he stated that their names were not there. It was also his testimony that he presented the petition on payment and that there was a resolution by the Assembly directed to the Government. He also stated that there was work done by the company. He further stated that besides non-payment, he had no issues against the 9th respondent. 26.PW19 was Abraham Kipkoech Kemboi who was the investigating working with the EACC. It was his testimony that they received an anonymous report dated 16/5/2015 which he produced as exhibit 31 alleging serious breach of law by senior officials of the Government in acquisition of integrated solid waste management. Upon receiving the report, initial analysis was done and it was found to merit investigation. He testified that he together with Timothy Munga Wahome began investigating the said allegations by requesting for relevant documents from the Government, the Assembly, KRA and Registrar of Companies through official letters. He added that the vide a letter dated 6/10/2015 from the County Secretary, they received the MOU and it was indicated that it was not a joint venture and needed no approvals from the treasury. 27.He then wrote another letter requesting for further documents and statement recordings and further requested from the Clerk of the Assembly confirmation that the project was budgeted for. He thereafter received the proposed supplementary budget for the financial year 2013/2014, report on budget appropriation committee on supplementary estimates and the approved budget as well as the second and last supplementary budgets. He later received a letter forwarding the Appropriation Acts for financial year 2013/2014 and 2014/15. He also receiving documents relating to payments made to the 9th respondent. 28.The witness added that investigations revealed that a delegation from the Government visited Germany on 1/4/2014 which trip was funded by Faun Kirchhoff and organized by the 9th respondent. The trip was in relation to solid waste management which resulted in signing of an MOU on 7/4/2014 in which the Government was obligated to pay Kshs 8 million to the 9th respondent in two installments of Kshs 4 million. The project was to be done in two phases as well. 29.He added that during investigations, he discovered that the 9th respondent was incorporated in July 2014 but the MOU was signed in April 2014 when it was non-existent. He testified that according to investigations, on 9-04-2014, the CEC for Water and Natural Resources sought approval for re-allocation of Kshs 4 million towards the feasibility study which had not been planned for yet they were expected to pay Kshs 8 million. The CEC Finance advised him to make proper re-allocation of the vote for approval by the Assembly and seek concurrence of the Governor and Executive Committee pending approval of Assembly within prescribed time. A payment voucher number 6262 dated 14/5/2014 was later prepared in favour of the 9th respondent. 30.The witness added that the MOU was signed by the 9th respondent whereas payments were made to Madam R Enterprises and that from the documents they received, there was no allocation or re-allocation for the feasibility study. It was also his testimony that on 23rd September, 2014, the 2nd payment voucher no. 4575 was prepared in favour of Madam R Enterprises which payment was sourced from two votes. He added that upon payment of the second installment, the 9th respondent opted out of the arrangement citing frustrations from the Government. They recovered a report on the feasibility study sent by Sebastian in January 2016 and which was said to have been concluded on 3/9/2014. 31.He further testified that following the investigations, they enquired from the KRA whether taxes were paid which response was that no taxes were paid from payments by the Government. He maintained that the engagement with the 9th respondent did not follow the Public Procurement and Disposal Act and that the 1st respondent abused his office in so engaging without due regard to the procurement laws and approving payments and further that the said project had not been planned for. 32.In cross-examination, PW19 confirmed that the trip to Germany was facilitated by Madam R Enterprises. He also confirmed that there was provision for the same in the CIDP which was passed following public participation. He also confirmed that the MOU was passed by the CEC’s 44th meeting and that a feasibility study was conducted and the same was budgeted for. He stated further that he was not aware if there was a procurement plan for 2013/14 or 2014/2015 and that he became aware of the CIPD during the hearing and that the said documents were not supplied to them following their requests. 33.Regarding the question on who was authorized to sign the vouchers, he stated that he had no evidence of delegation of authority to the 4th respondent. He added that, Madam R Enterprises and not Madam R. Enterprises Ltd was paid. On the issue of tax, the witness stated that it was Kshs 551,724/= being 16% of 4 million and the same had not been paid. When he was further shown Tax Compliance Certificates for the 7th respondent and penalties for late filing, he stated that KRA staff were better placed to answer on the issue of the taxes. 34.Timothy Munga Wahome the 20th prosecution witness testified that he was also an investigator with EACC Bungoma Branch and that he investigated the case together with PW 19. His testimony in addition to repeating part of what PW19 stated was a recap of the evidence of the witnesses who testified in respect of the payments to Madam R Enterprises and incorporation details of the 9th respondent and MRE. 35.When he was placed on cross-examination, he stated that he was not aware of any audit queries by the Auditor General and that he never came across the CIDP. He denied that the project was planned, appropriated and budgeted for based on the witnesses and documents they received. He also confirmed that re-allocation of funds was possible depending on the need and that both the CEC and Assembly approved the study and there was nothing criminal about it. He conceded that there was no evidence that any amount from the Kshs 8 million was received by the 1st to 5th respondents but that the period and sequence of events showed a conspiracy. 36.Pressed further, PW20 confirmed that in relation to the 3rd, 4th and 5th respondents, what was done was in accordance with the CEC meeting and he did not recommend charges against them but that was the decision of the Office of Director of Public Prosecutions. On the issue of taxes, he stated that stated that KRA was owed 16% of the Kshs 8 million but he could not speak on its behalf regarding whether it was demanded or not. 37.He claimed in re-examination that prosecution exhibit 2 was the true budget and that the respondents were charged for lack of prior planning since the CIDP was a 5-year projection and there were no annual plans for the financial year 2013/2014. He concluded by stating that the charges on services not rendered was based on the fact that the objective of the MOU was never achieved. He was later recalled to produce prosecution exhibit 30G which was the supplementary budget estimates for the financial year 2014/2015. 38.Peter Kimani Ndung’u, the acting Deputy Director Complaints and Investigations at the Public Procurement Regulatory Authority was called as PW21 to rebut the evidence produced by the respondents. It was his testimony that he received some request from EACC to advice whether they received some documents from Government vide letters dated 17th July, 2020 and 1st February, 2024. The document in question was a letter dated 24th June, 2013 forwarding the procurement plan for the Government for the financial year 2013/2014. He stated that there was no record of ever receiving the same both in the relevant file or in the mail register. He testified that there was no record of ever receiving document produced as defence exhibit 41(a) and (b) and that the stamp in the said letter was not the same as that belonging to the organization which he produced as prosecution exhibit 55. 39.During cross-examination, he stated that the organization had never had a registry and all mails were received at the Director General’s office in which he was not working. Regarding the discrepancies, it was his testimony that the ‘O’ in the two samples received and in the stamp sample he produced were different in diameter and size and the word June in defence exhibit 41 was also lower compared to their sample. He stated that there was no record indicating that he requested for the stamp that was used in 2013 and that he was not a qualified document examiner. He added that he did not check how many counties submitted their procurement plans for that year as they were dealing with a specific matter. 40.PW 22, one Eva Njeri Kimayo also called as a rebuttal witness was working at the Government Press Department under the Executive Office of the President and was currently the Principal Printer in charge of Kenya Gazette and its supplements. It was her testimony that they received a letter dated 1st February 2024 from EACC requesting for information on some documents. The documents attached to the said letter were Busia County Gazette Supplements 2, 8, 21 and 22 (prosecution exhibits 40 to 43) as the first batch as well as defence exhibits 56, 67 and 71 as the second batch. They were asked to confirm whether they printed the said documents. She stated that from her analysis, prosecution exhibits 40 to 43 were done in the government press while the second batch did not conform to their house and style hence not theirs. She produced their response to the EACC’s letter as prosecution exhibit 57. 41.In cross-examination, PW22 stated that she never printed out or cross-referenced the documents received with those from their records. She also confirmed that the first batch were received by EACC from the Government while it was stated that the second batch came from the respondents and their origin was thus questioned. Defence case 42.The 1st respondent gave unsworn statement. He made reference to the CIDP which had been marked as DMFI1 and which he said had a column for solid waste management and a proposed timeframe of 5 years from 2013 to 2017. He added that according to the said plan, 205 million was earmarked for the project which was not limited to county funds alone. He stated further that the CIDP was a mandatory document and development of DMFI1 underwent public participation and was discussed and adopted by the Assembly hence becoming the primary planning document. 43.He added that he was approached by the CECM for Water and Sanitation regarding a proposed sponsor for the project who thereafter sponsored the trip for a selected delegation to Germany for the fact-finding mission. The engagement there resulted in the signing of the MOU which was not a binding document as it needed Executive approval. He testified further that the CEC’s 44th meeting was held and deliberated on the MOU where the CECM for Water and Sanitation was tasked to look for various votes to the tune of Kshs 4 million as they were required to raise Kshs 8 million for the feasibility study. He added that the department was able to raise Kshs 4 million from various re-allocations and that the implementation of the project was by the user department. 44.The 1st respondent stated further that the decision to approve at the CEC meeting was unanimous hence there was no conspiracy. It was his testimony that the investigating officers received all the necessary documents regarding the planning of the said project but had concealed them. He added that from the CIDP, the second planning document was annual procurement plan for the financial year 2013/2014 which had been marked as DMFI 41 where 20 million had been suggested for feasibility study on waste management. There was also the annual procurement plan for the financial year 2014/2015 which was marked as DMFI 35(a) where 5 million was planned. 45.He denied the charges of abuse of office stating that the signing of the MOU was not to confer benefit to 9th respondent and added that he did not approve payment of Kshs 8 million to Madam R Enterprises but that decision was made at the 44th meeting of the CEC. He sated further that the 9th respondent absorbed the casual workers from the Government. 46.The second witness on defence side was one Jairus Ang’ana Oriko, an employee of the Government as a senior superintendent electrical with responsibilities in the department of Water and Natural Resources. He told the court that he was aware of the solid waste management project and that he was tasked with ensuring its implementation according to the terms of reference. He produced minutes of the entry meeting between the Government and the 9th respondent as defence exhibit 43. It was his testimony that the 9th respondent was to undertake the said project in two phases with phase one covering all the activities contained in the MOU. The 9th respondent was to takeover and pay all the casual workers then hired by the department. 47.Jairus added that another meeting was held on 27/8/2014 to discuss the progress on activities which were being implemented and produced the minutes thereof as defence exhibit 48. A further meeting was held on 2/8/2014 which confirmed the study was conducted in accordance with the terms of reference and the last payment approved on 8/9/2014. He confirmed that the project was planned for and the Government benefitted from the said project. During cross-examination, he stated that he was not aware of any tender documents regarding the said project. 48.Godfrey Egessa Odongo was the MCA for Nambala Township Ward who served as the Chair of the Budget and Appropriations Committee of the Assembly between 2013 and 2016. He told the court that his Committee reviewed, discussed and made recommendations to the Assembly on proposed budgets brought to the Assembly. He highlighted the budgetary cycle and stated that the feasibility study had not been budgeted for initially but a supplementary budget was done for it. He stated further that not all items in a proposed budget find their way into the approved budget. 49.He further stated that there was an appropriation of Kshs 3,164,000/= for the department of Water, Environment and Natural Resources in the budget as passed in the Appropriations Act 2013 and stated that an approved budget must have an Act to implement it. It was his testimony that the solid waste management program was in the 2nd supplementary budget and was also provided for in the approved annual budget for the financial year 2014/2015 with 5 million being provided. 50.In cross-examination, DW3 stated that there were no tenders for the solid waste management project and that grants and donations had to be included in the budgets but none were in this case. In re-examination, he testified that the payment of the first tranche of Kshs 4 million was authorized first and the budget thereof approved later. 51.The second respondent was the fourth defence witness. He stated that he was the CEC for Water, Environment and Natural Resources of the Government from June 2013. It was his testimony that there was planning for the feasibility study starting from the CIDP and the Government’s Water, Environment and Natural Resources strategic plan 2014 - 2018 produce which he produced as defence exhibit 73. He testified that he did not receive any benefit and nothing was lost as a result of the said feasibility study which was carried out in two phases; the pre-feasibility study and the feasibility study. 52.The 2nd respondent added that the CEC and the Assembly approved the said project and his functions as CEC was to supervise administration and delivery of services. He stated that the decision to send a delegation to Germany was informed by the report on state of waste management which was produced as defence exhibit 45 and report on garbage collection, transportation and disposal which was produced as defence exhibit 37. He added that upon return, he wrote a letter to the CEC for Finance to facilitate the commencement of the project attaching the MOU which elicited a response in a letter dated 23/4/2014 which was defence exhibit 17. He then presented a MOU in the CEC’s 44th meeting seeking approval of the partnership which was unanimously approved following which, he wrote to the CEC for Finance who then wrote back authorizing the commencement of the project. 53.He added that there was a meeting on 8/5/2014 where it was agreed that the 9th respondent shall take over the casual workers then hired by the Ministry and DW2 was to be the supervisor. Another meeting held on the same day identified the vote on casual wages as suitable for the commitment fee of Kshs 4 million which they ensured was factored in the next supplementary budget. The request was thereafter presented in the Assembly and was approved in the last supplementary budget for the financial year 2013/2014. The technical Committee in the department approved the payment of the said amount and concurrence was thereafter sought from the Governor. He added that the 2nd payment was provided in the annual procurement plan of 2014/2015 where Kshs 5 million was allocated and a Bill and Act which were produced as defence exhibits 70 & 71 were passed. He concluded by stating that the 9th respondent performed all activities as per the terms of reference. 54.The DW 5 was the 5th respondent who was the Government’s Head of Treasury from April, 2013. He was in charge of preparing financial statements among other things. He stated that he never travelled to Germany for the signing of the MOU and his only role was to process the payments which were lawfully approved by the CEC in its 44th meeting, the Assembly and the user department. It was also his testimony that the Controller of Budget oversaw the implementation of the budgets of the Government and authorized withdrawal of the amount paid to the 9th respondent and had never had an issue thereof. He highlighted the procedure on how the vouchers came to pass and added that the same followed the due process. 55.The 6th respondent testified that she never attended any meeting whatsoever as at the time, she was a student at Moi University Mombasa campus. In relation to the charge of conspiracy, she gave a distinction between Madam R Enterprises and Madam R Enterprises Ltd that the former was a sole proprietorship owned by Renish Achieng Omollo who was her biological mother. She added that at the time of signing the MOU, the sole proprietorship was in the process of transitioning into becoming a limited liability company which process was completed on or around the 8th of July, 2014. It was also her testimony that the Government did not pay any amount to travel to Germany as the same was catered for by Madam R Enterprise and Faun Kirchhoff. 56.It was her testimony that no money was paid to the 9th respondent but payments were made to Madam R Enterprises which was a sole proprietorship and hence she did not receive any money thereof. It was her testimony that work was done and she produced a payroll on how payments were made thereof. 57.In relation to the charge of failing to pay taxes, it was her testimony that the taxes were paid save for the fact that returns were filed late hence the payment of penalties for late filing. She added that the 7th respondent was issued with a tax compliance certificate thereafter and that on her part, she was compliant and did not owe KRA any money. 58.The 3rd respondent told the court that he was the CEC for Finance and Economic Planning for the Government. He stated that he never conspired with anyone with regards to the said project as he never travelled to Germany, he was not a signatory to the MOU, he never attended any meetings of the user department and he did not meet any officials or officers from Madam R Enterprises. He stated that what he did in approving was within his ambit of duties and after requisite approvals. He confirmed that the project was planned for, appropriated and budgeted for and that all legal processes were followed. He also stated that payments were made in accordance with the law and as such were not fraudulent. 59.The 4th respondent was the last defence witness. He testified on oath that he started working for the Government in 2013 as the Principal Finance Officer following his deployment there and later as interim Chief Finance Officer and later confirmed into the latter position. He was the Accounting Officer for the Government Treasury. In relation to the charge of conspiracy, he denied conspiring and stated that he was not part of the delegation that went to Germany nor did he take part in the signing of the MOU nor was he in any meeting that approved the said project. 60.It was his testimony that he signed the payment vouchers after due process was followed highlighting the approvals made in the financial year 2013/2014 for the first payment and in the financial year 2014/2015 budget for the second payment. He sought reliance on section 135 of the Public Finance Management Act which allowed payments which had not been appropriated for to be made if need arises but on condition that a supplementary budget for the same is passed. Upon being satisfied, he prepared the necessary forms to the Controller of Budget to approve withdrawal of the said amount which was allowed. 611.Regarding his second charge of failure to comply with law regarding management of funds in section 138(6) of the Public Finance Management Act, it was his testimony that no obligation is placed on the Chief Finance Officer by that Section. According to him the Section did not apply to him. He added that the said Section was complied with as it provided two options for compliance, one there being appropriation or the CECM for Finance having provided written authorization for the commencement of the project. 62.It was also his testimony that the funds used in this instance were not Treasury funds and thus not under his docket but he was involved by virtue of section 109(4)(b) of the Public Finance Management Act which mandates the County Treasury to ensure monies authorized are paid. He also highlighted that Madam R Enterprises was paid and not Madam R Enterprises Ltd. 63.In respect of the charge of fraudulently making payments from public revenue for services not rendered, he stated that he did not approve or make payments to Madam R Enterprises Ltd as per the charge. It was also his testimony that the payments made were for services rendered. 64.During cross examination, the 4th respondent confirmed that the MOU was signed with 9th and that there was no procurement process involved in engaging them. He confirmed that there was no budget before appropriation. It was also his testimony that he was not approving payments but rather facilitating as they had been approved by the relevant persons and bodies. Analysis and determination 65.It is against the above background that I will proceed to consider this appeal in the context of the submissions filed by the parties herein. It is worth to note at this stage that the appeal against the 2nd and 3rd respondents was struck out on 22-01-2026 for reasons that I recorded and the two were consequently discharged from these proceedings. However, for convenience and good flow, they may be mentioned as such in this judgment. 66.I have read and given due consideration to the appellant’s submissions dated 29th August 2025, the 1st respondent’s submissions dated 27th January 2026 and the 4th and 5th respondents’ submissions dated 3rd February 2026 (although the said submissions indicate that they are for the 2nd and 3rd respondents, probably informed by the fact that the appeal against the 2nd and 3rd respondents was struck out). I have also considered the evidence produced before the trial court alongside the impugned judgment. 67.As far as I can discern from the proceedings in the context of the charges, the fulcrum of the case was a Memorandum of Understanding dated 7th April 2014 between the 9th respondent represented by the 7th and 8th respondents (hereinafter referred to as ‘the MOU’) and the County Government of Busia (hereinafter referred to as ‘the government’) represented by the 1st respondent and subsequent payment of Kshs 8,000,000.00 to the 6th , 7th and 8th respondents through the 9th respondent pursuant to the arrangements contained in the MOU. The appellant’s case is that the procurement of the services through the MOU and subsequent payments of the money in question were irregular and unlawful. The respondents did not contest the existence of the MOU but maintained that all the processes and actions related thereto were lawfully and procedurally done and the services for which the payments were done were rendered. 68The 1st respondent has in its submissions raised issue with validity of the charge sheet by claiming that the same was defective. In my view, that issue is not alive. It was not discussed during the trial or in the trial court’s judgement and it cannot be raised at this stage. The 1st respondent did not file any cross-appeal in respect of the defectiveness of the charge and this court must confine itself to issues which have been raised in the petition of appeal. It has been held that issue of competency of a charge sheet is better addressed before the trail court. I agree with the holding in Mwangi & 2 others v Ethics and Anti-Corruption Commission & 3 others [2013] KEHC 1689 (KLR), thus;“I agree with the respondents’ submission that issues of competency of charge sheets are matters perfectly within the jurisdiction of the trial court. I am satisfied that matters of competence of the charge sheets are catered for under sections 89(5), 137 and 214 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya).’ 69.Similarly, I find the 1st respondent’s submissions that the appellant failed to disclose exculpatory evidence which failure was unconstitutional is not an issue for determination in this appeal. That was never raised or considered in the trial court and I will not consider it now. In any case, that failure resulted to acquittal of the respondents and the point became moot. The prosecution’s duty to disclose is limited to the documents or information they seek to rely on during the trial. The prosecution did not seek to rely on the documents the 1st respondent is complaining about and the respondents were not prevented from producing them. But it is important to point out that, this was a valid point for the defence during the trial in order to show malice or selective prosecution. 70.It is important however, to observe that the work of the prosecution is to help the court arrive at a fair and justifiable decision and not necessarily to secure a conviction. The Office of Director of Public Prosecution works in the interest of the public and in my view, public interest would abhor a situation where people are convicted on fabricated evidence or prosecution procured through concealment of pertinent information or evidence. 7111.Having said above, I form the opinion that whether the appellant proved the case against the respondents beyond any reasonable doubts is dependent on the answers to the following issues; 1.Whether the trial court properly analyzed and considered the evidence produced before it? 2.Was there evidence of conspiracy? 3.Whether the execution of the MOU unlawful? 4.Whether the payment of Kshs 8,000,000.00 to the 9th respondent was in breach of the law? 72.The appellant has claimed in the first ground of appeal that the trial court failed to analyze the entirety of the prosecution’s case and gave undue weight to the evidence produced by the defence. Having gone through the judgment of the trial court, I see no reason to fault it for failure to analyze the evidence of the prosecution. The judgment is detailed in terms of analysis of the evidence from both sides including interrogation of the many exhibits produced by the parties. The court may have made errors in its conclusion but even if that were true, it cannot be out of lack of analysis of the entire evidence. It is therefore wrong for the appellant to argue that the decision of the trial court was solely based on the evidence produced by the defence. 7.3It is my further observation that in its submissions on this ground, the appellant has gone on to reproduce summary of what the prosecution and the defence witnesses said in respect of the trip to Germany which culminated to the signing of the MOU but at the end of it, there is no identification of the parts or portions of evidence the trial court failed to consider. I see no basis in disturbing the judgment on ground that the court failed to analyse the evidence before it. 74.On the substantive part of the appeal, I will begin with the count of conspiracy which was against all the respondents. They were alleged to have conspired to defraud the government Kshs 8 million as purported cost of carrying out a feasibility study on integrated solid waste management project. For this charge to succeed, the appellant had a duty to prove that the respondents had an agreement and common intention of defrauding the government. Honourable Lady Justice G.W. Ngenye-Macharia (as she then was) held in Rebecca Mwikali Nabutola & 2 others v Republic [2016] KEHC 7776 (KLR) that;“In order to proof an offence of conspiracy to defraud, the elements to be proved are the existence of an agreement and the intention to defraud the public.’ 75.The offence was said to have been committed between 15th March 2014 and 25th September 2014. This must have been the period from when the idea was conceived to the time the second installment of Kshs 4 million was paid. The evidence placed before the court shows that the idea was borne before the trip to Germany which trip had been approved by the County Assembly of Busia (hereinafter referred to as ‘the Assembly’) as per the evidence of PW6. The MOU was executed in Berlin, Germany on 7th April 2014. After the trip to Germany, the proposal was placed before the County Executive Committee (CEC) on 7th May 2014 as its evident from the minuets of the meeting which were produced as prosecution exhibit 24. In the minutes, it is shown that the same was attended by CEC Members among them the 1st, 2nd and 3rd respondents. Also in attendance were PW11, PW12, PW13, PW16 and PW16 who were not charged in the matter. 76.I have not seen any document or even a suggestion in the oral testimonies that the 3rd, 4th and 5th respondents were part of the team that originated the idea or even participated in any of the meetings which discussed the execution of the terms of the MOU. In my view, bringing these respondents into the bracket of conspiracy as far as the count is concerned was unjustified. The only role they played in the whole process was to examine and approve payment vouchers and there is no evidence that they held talks or consulted with those who had originated the project. 8.There was absolutely no evidence either direct or circumstantial that the two were in the arrangements, planning and execution of the processes which resulted to the MOU and the payments. Other than approving or interacting with payment vouchers and supporting documents, there was nothing that connected these respondents to the process. This being a criminal case, liability is not transferable neither can the said respondents be held vicariously liable. A criminal case is personal and the intentional mind of the accused person as it relates to the commission of the offence is an integral part of the charge. 77.In Tile and Carpet Centre Limited v Kenya Commercial Bank Limited & 2 others [2020] KEHC 4584(KLR), the court stated that;“The general rule is that vicarious liability has no place in criminal law as criminal responsibility is personal in nature.’ 78.I also guided by the holding of Honourable Lady Justice Maureen A. Odero in Republic v Joseph Muhia Mwaura & another [2017] KEHC 5534 (KLR) where she stated that;“It is quite obvious that the 2 accuseds were only arrested because ‘Kengei’ who was their brother was the chief suspect in this murder. This ‘Kengei’ was later lynched and killed by a mob in Kipipiri. There is absolutely no evidence linking either of the 2 accuseds to this murder. They cannot be held liable for the misdeeds of their brother. Vicarious liability is not applicable in criminal law.’ 79.PW11, PW12, PW13, PW16 and PW17 confirmed that the engagement and partnership between the 9th respondent and the government was approved by the County Executive Committee which committed 8 million for the exercise. PW12 testified that the 4th respondent never sat in the meeting which discussed and approved the intended study. Even PW20 one of the investigating officers is on record stating that he had no evidence against the 3rd, 4th and 5th respondents and actually had not recommended them for prosecution. 80.In respect of the other respondents, the only direct evidence produced to demonstrate conspiracy was the trip to Germany where a meeting with the 9th respondent’s directors were held resulting to execution of the MOU. Meeting a person or entity that is intended to be a partner to or procured by the government for specified project cannot on its own be interpreted to be a conspiracy. Governments like any other corporate entity works through natural persons and its officers are expected to hold meetings and consultations with stakeholders, service providers and partners, both the existing and prospective as they discharge their duties or mandates. Otherwise, how would they be expected to execute their functions? 811.There were exhibits produced by the defence which showed that the government involved the public and the Assembly before the project was started. Signing of an MOU does not mean that the parties to it are bound to go by the terms contained therein. An MOU is an expression of intention to enter into an agreement or a binding engagement later and unless the same is followed by overt or a series of indisputable actions which manifest intention to be bound, the 1st respondent cannot be said to have bound the government on 7th April 2013 when the MOU was signed. 82.In Eldo City Limited v Corn Products Kenya Ltd & another [2013] KEHC 5916 (KLR) which has been cited by the 1st respondent, the Honourable Justice A. Mabeya held as follows on the place of a Memorandum of Understanding;“As stated earlier, the MOU between the Defendant and the Plaintiff was a preliminary agreement. Preliminary agreements are referred to by a number of descriptions including letters of intent, heads of agreement, memorandum of understanding or commitment letters. A preliminary agreement is utilized where for one reason or another it is desirable to enter into an interim or initial agreement or understanding pending the parties’ mutual rights and obligations being set out in a formal contract. It is thus a useful tool in commercial transactions. As to the question as to whether MOU’s are legally binding, I would state that the same is partly a matter of construction of the particular document and partly a question of legal analysis. It is therefore a question of fact whereby the Plaintiff has the burden of persuading the Court that such an agreement exists and was in the circumstances binding.’ 83.It was not enough for the prosecution to show that the respondents had a meeting. It had the burden to demonstrate that the meeting had common intention or meeting of minds to defraud the government and I see no such evidence. PW1 was part of the delegation and their evidence did not disclose any unlawful or unprofessional conduct on any of the delegates. If the trip per se would be conspiracy, then these two witnesses should have been with the respondents in the dock. 84.The appellant submits that it is not easy to find direct evidence of conspiracy and if the courts were to insist on it, there will never be conviction for conspiracy. That may be so but, courts are not expected to rely on mere allegations just because proving of the charges before them is difficult. There must be circumstantial or factors which manifest meeting of the minds with intention to defraud. The burden always remains with the prosecution and where it finds hard to collect such evidences, it should not bother charging the suspects for the sake of it. In view of lack of demonstration that the respondents had the intention and agreed to defraud the government, I have no hesitation in returning as the trial court did a verdict of not guilty in respect of all the respondents. 85.The other issues I have identified above can be lumped together around the question of whether the evidence was enough to prove the counts or charges leveled against the respondents. Counts 2 and 3 against the 1st, 2nd and 3rd respondent related to engaging in a project without prior planning. The allegations against the 1st respondent were tied to the meeting in Berlin while the 2nd and 3rd respondents were accused of doing so in Busia between 7th April 2014 and 25th September 2014 which I take to constitute the processes of performance of obligations contained in the MOU. 86.It is common ground that the process of the feasibility study kicked off with execution of the MOU. The prosecution’s case was that there was no prior planning of this study. In its submissions on this count, the appellant has digressed into the area of public funds and finances management. It has not made any submissions supporting its allegation that the project had not been planned. In addition to this omission, I have noted that the evidence produced in court shows that before the 1st respondent travelled to Berlin, the government had a budget for waste management. 87.The prosecution produced exhibit 2 which it purported to be the budget for the financial year which it alleged did not contain an item of feasibility study. As it would turn out during cross-examination of PW19 and the evidence on PW1, PW2 and PW11 the exhibit was a draft which had not been approved. The true and approved budget was defence exhibit 45 which shows that there was budget item of waste management. The defence also produced a CIDP for 2013 to 2017 which was the basic planning document and which was arrived at after public participation. It shows that the amounts for feasibility study would be 26 million. This is in my considered opinion evidence that the waste management project had been planned and feasibility study was an integral part of the project. 88.After the defence hearing and being surprised by the turn of events, the prosecution applied and was allowed to call PW21 and PW22 in order to clarify which of the two sets of exhibits (prosecution’s and defence’s) were genuine. These witnesses in my view did not discredit the documents produced by the defence. All that they said was that the exhibits did not reach their offices which in my view did not mean that they did not exist. PW20 who was also allowed to produce a document after hearing of the defence, produced a supplementary budget estimate for 2014-2015 which was produced as prosecution’s exhibit 30G. He confirmed that he would not expect 1st payment to 9th respondent to be in that document as it was made in 2014. 89.A County Government is run collectively by the Committee and the principle of collective responsibility bound the 1st, 2nd and 3rd respondents to complete the approved process. None of them could therefore be held personally liable leave alone criminally by executing what had been agreed by the Committee. I am alive to the provision of Section 39(1) of the County Government Act which places individual and collective responsibility on the Members of the CECs but in my view, the circumstances of this case call for collective rather than individual responsibility as the Members who were charged did not go beyond or against the resolution of the CEC. The said Section provides that;“The members of the county executive committee are individually and collectively accountable to the Governor in the exercise of their powers and performance of their duties and responsibilities.’ 90.PW3 was the examiner of the vouchers certified that the payment was lawful, budgeted for and arithmetic computations were correct. The witness was satisfied that the vouchers had met all requirements. With this aforesaid kind of evidence coming from the prosecution’s own witnesses, I do not see how the trial court would have reached a verdict of conviction on the 2nd count. The decision of the trial court on these two counts is therefore upheld. 9111.Count 4 and 5 against the 1st respondent accused him of abuse of office by improperly conferring a benefit to the 9th respondent. Going by the testimonies of the prosecution witnesses, these counts were hinged on the execution of the MOU which I have already held was not in violation of any law. The appellant claimed that the services of the 9th respondent had not been procedurally procured but did not adduce evidence to show how the same was supposed to be procured. It is claimed in the charge sheet that the procurement of the services was not in adherence to Public Procurement and Disposal Act 2005. 92.PW8 was the County Secretary which is the highest public service position in the County after the Governor. In his testimony he told the court that that it was not a must for the MOU to go through the procurement process which I take to mean that such partnerships are not subject to the Act. The investigating officer did not state what was wrong with the partnership except giving general narration of how the 1st respondent traveled to Germany and executed the MOU. He actually did not tell the court of his interaction or interrogation of the government’s procurement department. There was also no evidence to show what the 1st respondent did on 12th May 2014 which constituted or led to payment of the Kshs 8 million to the 9th respondent as particularized in count 5. 93.The 1st respondent was not involved in the processing of the payments neither was there evidence adduced to demonstrate that he influenced or prevailed upon the government officers to pay the stated amount. His only involvement in the process of payment was his approval of request from the 2nd respondent for payment of what had been approved by the CEC which in my view was within his lawful execution of duties. Prosecution’s exhibit 30(d) which is a letter dated 12th May 2014 is a testament that there were other processes which had been done before the 1st respondent’s approval was sought. 94.I do not think that I need to say much about count 6 which was against the 2nd, 4th and 5th respondents. They are alleged to have violated Section 138(6) of the Public Finance Management Act 212. That Section provides as follows;If a project that is being financed by a grant or donation from a development partner requires county government funding, the project may only be started when-a.the required funding has been appropriated in accordance with this Act or is otherwise authorised by legislation; orb.the County Executive Committee member for finance has given a written authorisation for the project to begin. 95.There is no dispute that the said respondents were in charge of management of public revenue. The appellant claimed that the amount paid had not been appropriated. This allegation goes against the grain of the prosecution’s evidence. The amount paid was appropriated in the Appropriation Bill of 2013/2014 but in a general vote. The law allows an entity to spend funds allocated from one vote to another. The only requirement in such situation is that the government must regularize the same through a supplementary budget and ensure that it does not spend beyond what had been budgeted for the year. 96.DW3 who was the chairman of Budget and Appropriation Committee of the Assembly of Busia was categorical that the amount was appropriated for the purpose. He testified that the supplementary budget was discussed and approved by the Assembly and that the documents produced by the prosecution as the budget for the year was not the true final budget which was debated and passed by the Assembly. This was in line with the testimony of PW6 on the same exhibit. The trial court was generous enough to allow the prosecution to call PW21 and PW22 after the close of the defence case. Even with this evidence as I have observed earlier, the prosecution was not able to show that the money spent in the feasibility study was not appropriated. 97.The true budget and other documents which were produced by the defence raise serious and glaring doubts on whether the prosecution was advancing a just cause for the benefit of the public or the people of Busia or was pursuing an undisclosed and partisan cause. In view of this, I am inclined to find that count 6 was not proven beyond any reasonable doubt. 98.The 7th count was fraudulent payment from public revenue for services not rendered. The prosecution maintained that there was no feasibility study carried out and insisted that exhibit 50 which the defence said was a feasibility report dated 30th September 2014 was not such because the 9th respondent was not qualified to do it and the contents did not pass the test of a feasibility study. It would appear that the prosecution was pushing a narrative that the 9th respondent was doing a waste management project and not feasibility study. This is despite the exhibit being titled ‘a feasibility study report’. 99.The appellant has submitted that the 9th respondent had no legal capacity to carry out the feasibility study and the other respondents were aware and as such, its services should not have been procured. According to it, the 9th respondent was just a hardware shop. However, other than that statement, the appellant did not demonstrate to the trial court or this court what capacity or capability or expertise was required for the study of that nature. None of the prosecution witnesses was an expert on issues of research and such studies. PW7 who was from NEMA did not succeed in demonstrating the requirements. Actually, he told the court that their mandate did not cover feasibility studies. The position being advanced by the appellant is coming from the submissions yet it is trite that evidence cannot be adduced through submissions. 100.In addition, the purpose of a feasibility study as confirmed by PW7 is to establish viability of an intended project and not to carry out the project. The witness told the court that the study did not meet the standard of a study but said nothing about the competence of the 9th respondent. He said in cross-examination that there was no requirement that one must seek permission for a pre-feasibility study. 101.The prosecution did not adduce any evidence to show that the 9th respondent was paid money other than the Kshs 8 million contained in the MOU. PW15 testified that the 9th respondent had stopped paying the workers who were under it leading to some tension, protests and demonstration. The questions arise that, if the 9th respondent did not do any work for the government, what were the casual workers demonstrating for and what services were being terminated by the 9th respondent through the various emails produced as exhibits 49(a) to 49(d). 102.PW19 confirmed that their investigations showed that after the trip to Germany, there were flurry of activities in the County in execution of the MOU. Did the activities involve those related to the feasibility study or a waste management project? He also confirmed that their investigations tallied with the County Executive Committee recommendations and payments were made from the budget for casuals and claimed that there was no allocation for feasibility study. He spoke of email produced as exhibit 49(d) which was forwarding the feasibility report which was marked as prosecution exhibit 16 (which I find the same as defence exhibit 50. How then can there be claim that the study was not done? There is difference between failure to carry out works and questions on the quality of the works. 103.PW20 who was one of the investigating officers is on record while being cross examined by Mr. Ligunya admitting that his testimony was different from that of several other witnesses and had the witnesses told him what they told the court, he would not have forwarded the file for prosecution and that the documents produced by the defence were different from what they collected from the government. He did not however explain where these differences came from. Did the government deliberately give the investigations team the wrong documents? Did the investigation team deliberately produce the wrong documents? Did the defence manufacture documents for purposes of their defence? It is notable that the 1st respondent told the court that the investigating team went to the Assembly instead of the government’s department of planning and in my view this proposition is plausible. 104.It was the duty of the prosecution to ensure that the questions I have posed above were answered in favour of its case. Instead, the questions still linger and raise more doubts than answers and as such the viability of the charges against the respondents remains insufficient. That being the case, I see no other possible verdict in respect of count 7 except an acquittal. 105.The 6th, 7th, 8th and 9th respondents were charged with fraudulent acquisition of public property. The property they were accused of fraudulently acquiring is the Kshs 8 million paid for the feasibility study. The fulcrum of this count was that the services for which the money was paid were not rendered. I have already held that the evidence produced before the trial court shows that the services were lawfully procured and were rendered. Again, there was no evidence of fraud. In the circumstances, I do not have to belabour this point and it follows that the charge was not proved. 106.On the charges of failure to pay taxes, the 6th, 7th and 8th respondents were accused of failing to pay cumulative Kshs 1,102,348.00 being VAT chargeable on the amount paid by the government on 14th May 2014 and 25th September 2014. These charges were not only ridiculous but also poorly investigated and prosecuted. Tax issues have a procedure of assessment and ascertainment. One cannot just pick one item or transaction and claim that taxes were not paid without making a proper assessment which would involves proper accounting processes. There were no returns exhibited to show that the specific taxes mentioned in count 10 and 11 were due and not paid. PW5, the only witness on this issue told the court that the said respondents had not filed returns. The letter from KRA dated 2nd November 2016 which was produced as prosecution exhibit 12 merely stated that the said 6th, 7th and 9th respondents had not filed VAT returns since 2008. 107.The appellant assumed that every shilling provided as tax should end into KRA accounts. It is matter of public notoriety that a taxpayer has a right to make provisions or deduct taxes paid by it in acquisition of goods and services. It cannot be assumed that the whole of what appears in a tax invoice must be paid in full to the KRA. The appellant should not expect the respondents to prove that they paid tax. They had no such burden but it is notable that the 6th respondent sought and was allowed to produce tax compliance certificate which were marked as defence exhibits 26 and 27. 108.As I come to conclusion of this judgment, I must state that I have noted with concern that the appellant has thrown or thrashed authorities on the face of the court without providing complete citation to enable me find the authorities for purposes of comparison and relevance to this case. Other than the lack of full citation, the authorities appear to me as non-existent. 109.For instance, I have been told of John Moody Lawrence and Others v Republic (Court of Appeal at Nairobi) (Sir Newnham Worky, P Briggs and Bacon JJA). This purported authority was not supplied and I am unable to find it in our depository. What makes me think that it is fake is that my history shows that the Court of Appeal of Kenya was established in 1977 as a successor to the East Africa Court of Appeal and as such there could not have been an appeal from the Court of Appeal in Nairobi in 1957. The appellant could do better. However perhaps my search and research is not proper, deep enough or sufficient and if that be the case, the appellant is urged to assist this court by providing a hard copy of this authority. 110.In the final analysis, I find and hold that the appeal lacks merits and the same is hereby dismissed. It is so ordered. DATED SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JULY 2026.B.M. MUSYOKIJUDGE OF THE HIGH COURT.Judgment delivered in presence of;Mr. Juma Ouko for the 1st respondent.Mr. Miss Kemboi holding brief for Mr. Mong’are for the appellant.Mr. Ligunya for the 4th and 5th respondents and holding brief for Mr. Biko for the 6th to 9th respondent, and