https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/350

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT NAKURU** **MCCR NO. E2050 OF 2023** REPUBLIC……………………………….……………………DIRECTOR OF PUBLIC PROSECUTIONS **VERSUS** MESHACK RONO………………………………………………………….……….……………1ST ACCUSED JOSHUA KIPKEMBOI LELEI…….…………………………………….……………………2ND ACCUSED JACKSON KIPLAGAT MANDAGO……….………….…………………………………. 3RD ACCUSED **RULING.** 1.0 **Introduction** **1.1 Background** 1. The County Government of Uasin Gishu (hereinafter referred to as the County) is one of the County Governments in Kenya established under Article 176 of the Constitution of Kenya, 2010. In 2016 through an Act of the County Assembly, known as Uasin Gishu County Education Revolving Fund Act, 2016, the County established a revolving fund known as Uasin Gishu Education Revolving Fund (hereinafter referred to as the Fund). PW1, **Joel Cheruiyot Chelule**, chaired the fund. He was being deputised by PW3, **Susan Keino**, while PW2, **Loice Jelimo** was a member of the fund, and PW6, **Joel Korir**, a director. The 1st Accused, **Meshack Rono**, was a deputy director. 2. The fund was domiciled at the County’s department of Education, Youth Affairs and Sports. The purpose of the fund and how it operated was well summarised in the testimony of its then director, PW6. Its main purpose was to grant loans to students which would then be recovered from the students. The loan was meant to assist students and or fund needy students to advance their education, mainly in the field of nursing. A committee used to identify the deserving students. They would visit local colleges whom they would partner with in the program. 3. Under the leadership of the then governor, the 3rd accused person herein, **Jackson Mandago**, it was felt that there was need to start an overseas fund. They thus started the process of amending the parent Act that formed the fund so as to extend the program to fund overseas studies, similar to a program that was being ran by the neighbouring County of Elgeyo Marakwet. 4. A committee involving PW1, the chair of the Fund, PW6, the fund’s director, the Chief Officer in the Department (whose case was withdrawn, filed separately and is therefore not subject of this trial), and the 1st Accused herein, Meshack Rono, held a meeting at the Chief Officer’s boardroom to deliberate on how to extend the funding so as to cover overseas studies. 5. On or about 4th August 2021, the 3rd Accused, PW1, PW6 and the 1st Accused among other officials travelled to Finland on a further fact-finding mission on the overseas education funding. They visited some colleges there, notorious one being Tampere University where the 3rd Accused signed a Memorandum of Understand (MoU) on some areas of co-operation between the university and the County. 6. Meanwhile sometimes in 2022, the committee initiated the amendment in the Act. The Chief Officer’s office then placed an advertisement calling for suitable candidates for interview with a view to joining the overseas program[[1]](#footnote-1). The **advertisement** was produced as **PEXH. No.26**. 7. The Chief Officer then appointment several officers, including the 1st Accused to run the secretariat. They were to ensure that the program become successful. They were to receive applications, then conduct interviews at a cost of approximately Kshs. 6000 to 9,000/=. The exams were administered both in written and oral forms by an agent from Tampere University known as Max Global. Results would then be released in the order of performance. The successful students would then pay the fees at a KCB Account operated by Uasin Gishu Education Trust (hereinafter referred to as the Trust) and would then be issued with an offer letter. 8. On the Trust Account, some minutes opening the account were shown to the members of the revolving fund when some issues cropped up. The minutes[[2]](#footnote-2) had their signatures, but they denied attending the meeting. The witnesses, despite the denials, however confirmed that they received some monies from the Trust for various administrative purposes[[3]](#footnote-3). 9. PW4, **Meshack Chemwor**, Director of Gender, Social Services, Education, Culture and Sports, at the County is alleged to have attended the meeting and supervised the election of the officials of the Trust. He however also denied attending and participating in the elections. 10. PW6 confirmed that all the trustees were aware that they were receiving the monies as Trustees. He further confirmed that he was elected in absentia, but that he nevertheless took up the position. The Trust was taken over by the current county administration after the 3rd accused had left office and compliant students still travelled overseas even after the new administration had taken over. Apart from some administrative expenses, the County paid the monies to the universities, while some parents were refunded. The parents and the victims who appeared as witnesses in court confirmed that apart from the 1st Accused, the 2nd Accused, **Joshua Lelei**, was also based at the Secretariat at 11th Floor KVDA Plaza. 11. Meanwhile, most of the parents who paid the fees, or part thereof, experienced delays in having their children travel overseas. Demonstrations were held and in December, 2022, it became apparent that the issue was much bigger than had been thought. The new governor thought it wiser to establish a task force chaired by his deputy, PW26, **Engineer John Barorot,** to investigate the issue. 12. The County Assembly also received and considered a petition from the concerned parents about the operations and legality of the program. Both branches of the County considered the issue/ petition, and among their recommendations was that the issue/ petition be forwarded to the investigating authorities including the Directorate of Criminal Investigations (DCI) and the Ethics and Anti-Corruption Commission (EACC) for investigations. Pursuant to the recommendations, the County reported the matter to the institutions which commenced investigations. **1.2 The Charges** 1. The DCI at headquarters in Nairobi, mainly acting on the **county assembly’s resolution dated 22/03/2023**, produced herein as **PEXH. No. 438**, commenced investigations. PW138, **No. 235542 CIP Martin Munene**, conducted the investigations and ultimately charged the accused persons herein with various counts of offences as follows: 1. **Count I: Conspiracy to Commit a Felony contrary to Section 393 of the Penal Code**: The particulars are that on diverse dates between 01/03/2021 and 12/09/2022 within Uasin Gishu County, jointly with others not before court, the accused persons herein conspired to steal Kshs. 1,100,000,000.00 from Account No. 1285922778 domiciled at Kenya Commercial Bank Eldoret, registered under Uasin Gishu Education Trust Fund, meant for overseas university fees for students under the Uasin Gishu County Oversea Education Program. 2. **Count II: Stealing Contrary to Section 268(2) as read with Section 275 of the Penal Code** where it is alleged that the 1st and 2nd Accused, on diverse dates between the month of June 2021 and 12th September 2022 at the same bank, jointly with others not before court, stole Kshs. 56,512,300/= from the same account. 3. **Count III:** **Stealing Contrary to Section 268(2) as read with Section 275 of the Penal Code** where it is alleged that the 1st Accused, on diverse dates between 15/06/2021 and 05/09/2021 at the same bank, jointly with others not before court, stole Kshs. 26,563,939/= from the same account. 4. **Count IV: Stealing Contrary to Section 268(2) as read with Section 275 of the Penal Code** where it is alleged that the 2nd Accused, on diverse dates between 12/08/2021 and 12/09/2022 at the same bank, jointly with others not before court, stole Kshs. 4,803,400/= from the same account. 5. **Count V: Abuse of Office contrary to Section 101 as read with Section 102(A) of the Penal Code, Cap. 63 Laws of Kenya,** where the particulars allege that the 1st Accused and 2nd Accused on 21/05/2021, at the same bank, jointly with others not before court, being persons employed in the public service, falsely misrepresented that the Uasin Gishu Overseas Education Trust Account was being opened for the Uasin Gishu County Government, an act which was prejudicial to the County Government of Uasin Gishu. 6. **Count VI: Abuse of Office contrary to Section 101 as read with Section 102(a) of the Penal Code, Cap. 63 Laws of Kenya** where the particulars allege that the 3rd Accused on diverse dates between 01/03/2021 and 31/03/2022 at Eldoret town within Uasin Gishu County, being the Governor of Uasin Gishu County arbitrarily entered into a Memorandum of Understanding between various Universities in Finland and Canada on behalf of Uasin Gishu County Government without resolution and approval by County Assembly of Uasin Gishu, an act which was prejudicial to the County Government of Uasin Gishu. 7. **Count VII: Abuse of Office contrary to Section 101 as read with Section 102(A) of the Penal Code, Cap. 63 Laws of Kenya** where the particulars allege that the 3rd Accused on diverse dates between 01/03/2021 and 31/03/2022 at Eldoret town within Uasin Gishu County, being the Governor of Uasin Gishu County arbitrarily misrepresented that the County Government of Uasin Gishu was offering full scholarship to students to study in Finland and Canada, an act which was prejudicial to the students under the Uasin Gishu Education Trust Program. 8. **Count VIII: Abuse of Office contrary to Section 101 as read with Section 102(a) of the Penal Code, Cap. 63 Laws of Kenya** where the particulars allege that the 3rd Accused on diverse dates between 01/03/2021 and 31/03/2022 at Eldoret town within Uasin Gishu County, being the Governor of Uasin Gishu County arbitrarily seconded Uasin Gishu county government staff to a private entity, namely Uasin Gishu Overseas Education Trust, thereby drawing salary from the county government of Uasin Gishu, an act which was prejudicial to the citizens of Uasin Gishu county. 9. **Count IX: Forgery Contrary to Sections 345 and 347 (d) (ii) as read with Section 349 of the Penal Code, Cap 63 Law of Kenya** against the 1st and 2nd Accused with the particulars that on 06/05/2021 at unknown place within the Republic of Kenya, the 2 accused persons jointly with others not before court forged a document, namely a Declaration Trust dated 06/05/2021 in respect of Uasin Gishu Overseas Education Trust, purporting it to be a genuine document signed by Dr Joel Cheruiyot Chelule, Dr. Susan Jepkosgei Keino and Loice Jelimo Cheruiyot with intent to defraud Uasin Gishu Overseas Education Trust. 10. **Count IX: Forgery Contrary to Sections 345 and 347 (d) (ii) as read with Section 349 of the Penal Code, Cap 63 Law of Kenya** against the 1st and 2nd Accused with the particulars that on 23/04/2021 at unknown place within the Republic of Kenya, the 2 accused persons jointly with others not before court forged a document, namely a Minutes of Uasin Gishu Overseas Education Trust purporting them to be genuine document signed by Dr. Joel Cheruiyot Chelule with intent to defraud Uasin Gishu Overseas Education Trust. **2.0 Prosecution’s Case** 1. The prosecution called 138 witnesses, mostly being the victims, and produced several documentary exhibits. The prosecution’s case and evidence can be summarised as follows. Students and parents consistently testified that they were lured by an official County Advertisement **Exhibit 26**, believing that they were enrolling in a county-backed scholarship program initiated by the then-Governor Jackson Mandago, the 3rd accused herein. Parents recounted the extreme financial sacrifices made to meet the demands of the program, including the emergency sale of ancestral lands, the liquidation of life savings and the procurement of high-interest bank loans; these funds were remitted through a mix of direct cash deposits at **KCB Bank Eldoret** and RTGS transfers, with single families paying between **Kshs 650,000** and **Kshs 1.3M** to the account number **1285922778**.Victims testified that they joined the program with the knowledge that it was a full Uasin Gishu County scholarship program while others were informed that they will make a onetime payment whereby once they paid the amount needed it would cater for the whole academic program. It was thus alleged that there was blatant misrepresentation by the three accused persons to the said victims. 2. Simultaneously, students testified to a ‘bait-and-switch’ experience where, after paying tuition, they were burdened with ‘hidden fees’ for Finnish language ‘Pathway’ courses, only for the scheme to collapse into cancelled admissions and visa rejections because the accused persons had failed to remit their fees to the universities in Finland and Canada. While a limited number of parents testified to receiving partial or full refunds, these were often described as delayed responses to the mounting public outcry and did not compensate for the lost time, interest on loans nor the nugatory educational opportunities. 3. The resulting evidence depicts a situation where the vast majority were left in debt and the students were left stranded without the education they paid for or the full refund of their money. They alleged that the whole process of initiating and executing Uasin Gishu Overseas Education programme was not clear and victims had no full disclosure but they trusted the process since it was being spearheaded by the 3rd accused person who at the beginning of the program in 2021 was a sitting Governor of Uasin Gishu County government hence a person of immense influence. 4. PW1, **Dr. Joel Cheruiyot Chelule,** testified in his capacity as the Chairman of the Uasin Gishu County Education Revolving Fund, producing his appointment letter as (**Exhibit 1)**. He stated that in September 2022, he was shocked to discover that his name appeared as a member of the Uasin Gishu Overseas Education Trust alongside the CECM for Education, Mr. Joseph Kurgat. PW1 informed the court that he had never signed the Trust Deed nor had he participated in any activities related to the registration of the said Trust. To his surprise, he learned that he was required to respond to a petition filed by aggrieved parents whose children were intended beneficiaries of the program. 5. Consequently, he denied any participation in the program and categorically distanced himself from the **Trust Deed (Exhibit 324)** and the **Minutes** dated **23rd April 2021 (Exhibit 2 & 4)**, which authorize the opening of bank accounts and the election of signatories. PW1 declared that these documents, which suggested his participation and signature, were forgeries. Furthermore, alongside two other individuals, he prepared an affidavitswornon **25th January 2023 (Exhibit 6)** denouncing any knowledge of the Trust's operations and formally requested that their names be expunged from the trustee membership. He testified that he never signed the Trust deed nor the Minutes. 6. In cross-examinations, which was rigorous and included his recall, he gave serious contradictory evidence which seriously dented his credibility as to whether or not he was aware of the Trust Fund and whether he was an active beneficiary where his children had been sent abroad through the funds, and whether his travel with the 3rd accused was well within his knowledge and whether he received various payments from the Trust Fund. 7. PW2, **Loice Jelimo Cheruiyot Murrey,** testified that she is currently the Vihiga County Director of Education, working for the Teachers Service Commission (TSC). She testified that she was appointed as a member of the Uasin Gishu County Education Revolving Fund on **5th May 2019**, producing her appointment letter as **Exhibit 11.** She noted that her contract expired on **14th May 2022** and was not renewed. PW2 clarified that the specific role of the Revolving Fund was to manage student scholarships within Kenyan institutions on a loan sponsorship basis. She categorically denied being a member of the Uasin Gishu Overseas Education Trust and testified that she only became aware of the Trust’s existence on **3rd October 2022,** following a petition by parents whose children were in Finland. Furthermore, she denied ever signing the Trust Deed and indicated to the court that the signature appearing on the document was a forgery. She confirmed that at the time her tenure with the Fund ended, the entity was not considering or processing overseas students, thereby distancing herself from the unauthorized operations of the Trust. She confirmed that she never signed the Trust deed nor the Minutes. Her credibility was also seriously impeached during rigorous cross examinations on why she kept on attending the meetings of the Trust and withdrawing allowance even after her term had ended. 8. PW3, **Susan Keino,** testified that she is the current Vice Chairperson of the Uasin Gishu County Education Revolving Fund. She informed the court that she has been out of the country on sabbatical leave since September 2022. PW3 categorically disowned her purported appointment as a trustee of the Uasin Gishu Overseas Education Trust and further disputed the minutes **(Exhibits 2 and 4)** which suggested a resolution was passed to open a bank account. She testified that she never attended any such meeting and denied being a signatory to the Trust’s bank account. Along with PW1 and PW2, she provided specimen signatures which, upon forensic examination by **PW-135**, confirmed that she did not sign the **Declaration of Trust (Exhibit 324)** or the authorizing minutes. In cross-examination, she however confirmed that while on sabbatical leave, she was engaged at Laurea University in Finland, one of the main universities that was involved in the overseas program, whose connection she obtained and achieved during her engagement with the overseas funds. 9. PW26, **Eng. John Kibet Barorot**, the then Deputy Governor was appointed to chair the task force to deal with the matter. The appointment came via **PEXH. NO.102**. The terms of reference included looking at the overseas education program with a view to coming up with long- and short-term solutions by December 2022. The task force engaged various stakeholders including the student victims, neighbouring county of Elgeyo Marakwet and concluded that the program was a modified version of the Elgeyo Marakwet one. They realised that Elgeyo Marakwet found it difficult to utilise the money paid by their students because the same was paid into the county coffers, thus converting it into public money. That in the case of Uasin Gishu County, a trust was therefore formed. The trust operated the Trust Account at KCB Eldoret where parents would pay between Kshs. 900,000/- and 1,400,000/- depending on the course i.e. whether it was a diploma course or a degree, mainly in Nursing. There was further a mandatory pathway program that included learning Finnish language and the amount for the pathway formed part of the payments. The universities representatives from Finland used to travel during the evaluation of the candidates. 10. There was also another program sending students to study in Canada and was ran directly by the Trust since the studies were to be undertaken in English language. The main issue, according to the task force findings, was how to attend the studies before the parents provide the bank statements that was to be used to procure the visas for the students. The partnership with the County was therefore a simpler way to procuring visas without the necessity of parents providing bank statements. 11. When the parents raised their complaints about the delay in travelling, and despite some students having already travelled, the parents developed a serious mistrust towards the program. According to PW26, the task force had to convince the parents and students that the program was not a scholarship so as to develop more trust with them. Because the initial account was in Kenyan Currency, the task force opened an account in foreign currencies and a financial director was appointed to be in charge of the new accounts. PW26 confirmed that the accounts are still running and several victims who complied eventually travelled and graduated[[4]](#footnote-4). The task force published its **report** with the recommendations. The same was produced herein as **PEXH. No. 103**. The witness stated that they have since refunded Kshs. 69,000,000/- to students who were unable to travel. That the County now owes some parents around Kshs. 100,000,000/-. That some parents did not pay fully for their children who had travelled, these children therefore utilised other parents’ monies. That the amount wrongly credited to these children was Kshs. 66,000,000/=. That most of the students who were unable to travel, was mainly because the embassies changed the rules mid-way the process and as such they were unable to get visas. 12. PW26, went ahead to further clarify that about Kshs. 17,000,000/- was lost as the same was paid in a cohort that not all were qualified. That the university however refused to refund the amount as it argued that the same was high. The task force further found that some students did not complete the fees payment, but that the Trust nevertheless went ahead to pay for them. 13. PW26, further confirmed that some double payments amounting to Kshs. 92,000,000/- was paid in error to some universities in Canada. That these double payments amounted to administrative errors which cannot be accounted for. He therefore recommended a proper audit because towards the tail end of the task force, the principal trustee turned unco-operative and even denied them access to the KCB account that was being operated by the Trust. That the figure in their report approximate the lost or unaccounted for amount at Kshs. 8,000,000/-. 14. PW36, **Stephen Lel**, was the County Attorney at the time. He confirmed that the 3rd Accused one day arrived from Finland with an MOU which he had signed with Tampere University. That he went through it and confirmed that it was well done and signed. He thus gave it the go ahead. The **MOU** was produced herein as **PEXH. No. 159**. He stated that the MOU was an understanding between the County and Tampere University including matters of co-operation in areas of education, learning, consultation, school programs and commercial activities. He stated that after the 2022 general elections, he started hearing issues and politics concerning the overseas program, mainly that the money had been misused. According to him, the program was largely successful. 15. PW41, **Joseph Kurgat**, was the County Executive Committee Member (CECM) in charge of Education, Culture, Social Services, Sports and Gender at the County at the time. He confirmed that his duties included policy formulation for the department, and co-ordination of the department. He however denied being in charge of the overseas program here. That he came to learn about it when some children came to his office at KVDA Plaza, 11th floor inquiring about the program. That he then came to know that the program was being run by his chief officer in charge of Youth and Sports, PW6, 1st Accused whom he confirmed was PW6’s deputy, 2nd Accused, **Joshua Lelei**, who was the chief Education of the revolving fund among other officer who have not been charged herein. That the officers, though working under him, operated independently most of the time. That his chief officer failed to give him a report of the program despite him calling for the same. That he therefore had to call for the report using letters on 03/08/2022[[5]](#footnote-5), a second reminder dated 22/08/2022[[6]](#footnote-6), culminating in a show cause letter for insubordination dated 25/08/2022[[7]](#footnote-7). He eventually consulted with PW26, the Deputy Governor, and agreed that a forensic auditor be engaged. 16. In cross-examination, the witness however contradicted himself and confirmed that he was aware of the overseas program and the amendment that upgraded the county revolving fund to cover overseas institutions. That he paid for his son who is now in a university in Canada under the overseas program. 17. PW79, **Hillary Kiprop**, an advocate of the High Court of Kenya, informed the court that in early March 2021, between March and April, he attended an overseas education meeting held at Eldoret. He personally knows the 2nd Accused herein. He informed the Court that the 2nd Accused approached him and requested him to register for him a trust. That the purpose of the Trust was to assist students travel overseas. That the county was to have a stand-alone account for the transaction so as to separate it from the Public Finance Management Act. That the 2nd Accused then introduced him to some members who had earlier been introduced to the meeting as members of the County Education Revolving Fund. He then prepared a Trust Deed using 2nd Accused’s equipment. He then confirmed that the trustees from the education sector signed the prepared Deed. That they included PW1, PW2, PW3, PW6, the principal trustee, and the 1st Accused. He then proceeded to Nairobi to register the Trust. Before registration, the 2nd accused requested him to amend the objectives to enhance the scope. He therefore did the amendment and forwarded the same to Eldoret. The final version was then forwarded to him by courier. He then attached the Identification cards for the proposed trustees as supporting documents before proceeding to register the Trust. He forwarded the **registered Deed** back to the 2nd accused via a courier. It established the Uasin Gishu Overseas Education Trust, and was produced herein as **PEXH. No. 324.** 18. PW101, **John Kipchumba**, was in 2023 working with the Ministry of Education based at RVTTI where he was the registrar. He stated that as a registrar at the institution, his duties entailed marketing, external linkage, student admission etc. that on 04/09/2023, he received a **letter from the DCI** requesting him to provide them with a report and statement regarding some monies that were pain to the institution from the County Overseas Fund to the institution. The letter dated 28/08/2023 as **PEXH. No. 401.** He responded that the money was not received by their institution. He recorded a **statemen**t to that effect which was also admitted herein as **PEXH. No. 402**. He however confirmed that during that period, they provided facilities for interview of students who were proceeding to overseas for education. That the facilities were provided free of charge. They received a request for use of the facilities from the Chief Officer[[8]](#footnote-8). 19. PW109, **Richard Yogo**, from the County Assembly, where he works as a deputy clerk. He informed the court that some of his duties included management of committees, leading clerks at the table etc. He went ahead to inform the court that the county assembly received a Petition from a member of the public concerning the Finland Scholarship issue[[9]](#footnote-9). The petition prayed that the assembly listen to their pleas over the scholarship program. By a Resolution dated 01/12/2022, the assembly formed an ad hoc committee to investigate the issue. The petition was dispatched to various agencies including the DCI[[10]](#footnote-10). Through a **letter dated 02/03/2023**, the resolution forwarded the petition to the various agencies for further action. They included the petitioners, the National Assembly, Senate, National Employment Authority, IPOA, Office of the Attorney General and the DPP[[11]](#footnote-11). 20. PW115, **Hon. Gilbert Kiptoo Chepkonga**, a member of the assembly confirmed that he chaired the ad hoc committee. He confirmed that the former CECM for Sports, Culture and Education (PW41) was invited, but failed to attend the committee. That he instead wrote to the committee distancing himself from the program. That the then officer holder was also invited but also failed to honour the invitation to attend the committee. The committee thus felt frustrated and made the following observation: 1. That the Finland scholarship program was not a scholarship and was detrimental to the parents because the children at Tampere University were not accorded a flexible learning environment for them to earn a living. That the university believed that the students had been granted full scholarship. 2. That there was no legal framework in Uasin Gishu County to manage the entire program as the assembly was yet to rectify the same. 3. That the management of the program’s Trust Account 1285922778 at KCB, Eldoret East Branch was done in a manner resembling a merry-go-round. That the account has no documents authorising withdrawals or any transaction at all. That some of the trustees – 4 of them – were locked out completely from the operations of the account. That some of the trustees had requested to be removed completely from the list of Trustees. 4. The committee therefore requested the executive to act so as to stop the flow of cash into the account. 5. That new application into the overseas program be stopped. 6. That students who had paid fees and other incidentals be assisted to travel. 7. That the County Attorney (PW36) to step aside because of professional negligence for failing to proper advise the County. 8. That EACC and DCI to investigate and take appropriate action. 9. That any county official who benefitted from the funds be suspended immediately. 10. That KCB to take disciplinary action against its staff who allowed the Trust Account to be opened without due diligence. 11. That the County Executive engage the services of an independent and reputable auditor to audit the account and report back to the Assembly within 30 days. 21. He further informed the court that these recommendations were made on 28/02/2023 but that the assembly is yet to see the report in the assembly. In cross-examination he confirmed that the committee did not invite the 3rd accused. He further confirmed that there has been no forensic analysis to confirm that the funds were lost. 22. PW134, **Edwin Bett**, was the County Secretary at the County between the years 2019 and 2024. His **employment contract** was admitted herein as **PEXH. No. 509**. As a County Secretary, he was the secretary to the County Executive Committee. His main task was to organise the committee’s meeting and communicate the resolutions to the CECMs’. He confirmed that the Uasin Gishu Education program was being ran by the Department of Education and Youth Affairs. He confirmed that the new administration formed a task force in December 2022 which was headed by the then Deputy Governor, PW26. That he was also a member of the task force. He further confirmed that the officers who travelled abroad were duly cleared to travel[[12]](#footnote-12) upon invitation by one of the universities abroad[[13]](#footnote-13). That there was further invitation from Laurea University[[14]](#footnote-14) which caused him to travel upon clearance by the PS – Devolution[[15]](#footnote-15). 23. He confirmed in cross-examination that the Trust ran the financial aspect of the program. That the trust was however not created by the County Government. He further confirmed that the program was being run at the department level and that it required no cabinet approval. He further confirmed that transfer of staff to different departments was his role. He confirmed that the law was amended in early 2022 to introduce the overseas program, which was however different from the revolving fund, as it was funded by the parents and no the county. 24. PW135, **NO. 240526 IP Martin Kitai**, is a qualified forensics document examiner with more than 10 years working experience. He confirmed that on 12/08/2023, they received some exhibits that included a question document marked A which is PEXH. No. 324. Also marked A2 were minutes of the Trust Fund produced herein as PEXH. No. 514. Marked A3 were other minutes of the Trust Fund produced herein as PEXH. No. 515. He also received and marked as B1 a known signature of PW2. The known signature of PW1 was marked as B2, while B3 was his specimen signature. B5 was the specimen signature of PW2, while B6 was the specimen signature of PW3. He was to compare the question signature marked as As, with the specimen and known signatures marked as letter Bs. He concluded in his opinion that the signatures in As were not made by either of the authors of the known and specimen signatures in Bs. He produced his **report** as **PEXH. No. 517.** 25. In cross-examination, he confirmed that the question documents were certified copies which were reproduced from the originals. That it was better if he could have used the original documents. He stated that in making the analyses, he considered natural variations by looking at the signatures. That the reports were verified by a team of experts. 26. PW137, **Domtilla Mayo**, was working at KCB Eldoret East branch as the manager in the years 2022 to 2023. She informed the court that as concerns this case the 1st accused person, PW6 and the chief officer/ Principal Trustee went to the bank and requested to open an account. She advised them to avail an introductory letter[[16]](#footnote-16), national IDs[[17]](#footnote-17), KRA Pins[[18]](#footnote-18), minutes[[19]](#footnote-19), declaration trust[[20]](#footnote-20) and the trust deed. That all the documents were supplied except the Trust Deed. The **account opening form** was produced as **PEXH. No. 519**. She was informed that the Trust Deed was still being processed at the Lands Office. They thus requested for a waiver to allow the opening of the account to proceed without the deed. That their chief officer at the Headquarters granted the waiver. The **email conversation excerpt** with their Headquarters were produced as **PEXH. No. 523**. The account was thus opened and was operated by the 3 as signatories. It was Account No. 1285922778, Uasin Gishu Overseas Education Trust Account. The account received some deposits from various children and parents. That later the DCI commenced investigations on the account. They thus provided the bank statements and other documents as required by the DCI. That later on another euro account was open as a sister account and using the same documents as number 1301422746. She produced the s**tatemen**t as **PEXH. No. 525.** The account was also subjected to investigations by the DCI. Some withdrawals were made from account including a **cheque of Kshs. 6,478,000/-** signed by the Principal Trustee and the 1st Accused for visa processing for particular students. The same was made on 14/01/2022 and was produced as **PEXH. No. 526**. Kshs 11,050,000/- was done through **a swift transfer on 19/01/2023** by the same 2 signatories remitting the amount to Canada. She spoke to the 1st accused who confirmed through a particular letter that he was remitting the money for payment of school fees for particular students at British Columbia University. The cheque was produced as **PEXH. No. 527.** Another cheque withdrawal dated 27/01/2023 was made by the same officials and was verified by the branch’s operations manager for Kshs. 1,440,000/-. Several other withdrawals were done by the 3 signatories, amounting to a total of Kshs. 586,633,204.71. 27. In cross-examination, the witness confirmed that the introductory letter came from the County, but not the CECM, Finance. That the withdrawals show where the monies were going to. That some of the monies were for visa processing, while others went to pay school fees, mainly at Tampere University. That the monies withdrawn did not use to benefit the trustees. That she did not complete any suspicious transaction throughout during the operation of the accounts. That their bank or any of its employees has not been reprimanded by any authority regarding the Trust. That none of the accounts has ever held 1.1 billion throughout their operations. That the highest amount in the account was Kshs. 130,000,000/- which kept on fluctuating depending on the deposits and withdrawals. That as at 25/08/2022, Kshs. 35,000,000/- was in the account. That there is no time the 1st accused came with no supporting documents of the universities and students that the withdrawal was meant for. She therefore confirmed that the 1st accused has not stolen or misappropriated any of the monies in the account. That indeed PEXH. No. 527 was brought to them with a list of 15 students with detailed information of where the cheque withdrawal was meant for. That she cannot remember the 2nd accused withdrawing any money from the bank. 28. PW138, **N0. 235542 CIP Martin Munene**, the Lead Investigator, testified that his inquiry established a conspiracy to steal a sum of **KES 1.1 billion** from account number **1285922778**, domiciled at Kenya Commercial Bank, Eldoret. He noted that the account was registered through a private trust under the name **Uasin Gishu Education Trust Fund**. He further testified that this amount had been deposited by victims, including students and parents, as fees and other incidental costs, under the expectation that the students would study abroad under the Uasin Gishu County Education Programme. The Investigator testified that his investigation observed that the victims were under the perception that the program was spearheaded by the Uasin Gishu County Government. They gained confidence in the scheme because the 3rd Accused, who was the Governor at the time, was the pioneer of the Programme. However, the investigation established that it was a private program initiated for the purpose of stealing money by the Accused persons and others who are still at large. He submitted the **Trust Deed (Exhibit 324)** for examination to the Document Examiner via an **Exhibit Memo** dated **12th August 2023 (Exhibit 513)**. That the investigation revealed that the Trust Deed was forged; specifically, the signatures appearing on the Trust Deed and minutes for **PW1, PW2** and **PW3** were forgeries. The Investigator also acquired bank statements for account number **1285922778** and the Euro account number **1301422746**, which were produced as **Exhibits 524 and 525** respectively. That these statements confirmed the deposits made by the victims and revealed the cash withdrawals made by the 1st and 2nd accused persons. He testified that while the 3rd Accused advertised the Programme as a County initiative using County apparatus and employees, it was a private Programme intended for their own benefit. He testified further, the investigation revealed that the accused persons claimed they had paid the **Rift Valley Technical Training Institute (RVTTI)** a sum of **KES 200,000** for student interview venues, withdrawn from account number **1285922778**. That, however, investigations supported by letters dated **5th September 2023** (**Exhibits 403 and 404**) established that this amount was never paid to the institution. The Investigator testified that the 1st and 2nd accused persons withdrew various amounts of cash totaling to **KES 56,512,300** and further each one of the withdrew **KES 26,563,939** and **KES 4,803,400** respectively from account **1285922778**, which remain unaccounted for to date. He also testified that the 1st and 2nd accused person with others not before court also received various cash amount made for interviews that were never deposited in the various accounts that were formed. He further stated that the entire overseas program had three accounts that were run by private individuals and the three accounts were not Uasin Gishu County government accounts since they were not sanctioned by the CEC finance of the county. He stated further that the auditor general could not audit the accounts since they were not for the county government. He produced the appointment letters for accused 1st and 2nd as **exhibits 605 and 606** respectively confirming that they were employees of Uasin Gishu County Government between 2021 to 2022. Finally, he produced a letter dated **21st July 2023** (**Exhibit 610**) confirming that the overseas Programme was never approved by the Uasin Gishu County Cabinet. He testified that the 3rd accused arbitrarily entered into Memorandums of Understanding with various universities without the resolution or approval of the Uasin Gishu County Assembly (**Exhibit 608**). He further testified that the 3rd accused initially misrepresented the program as a full scholarship to Finland and Canada, only for it to later emerge that all students were required to pay their own fees. The Lead Investigator further testified that he established that the **Trust Deed (Exhibit 324)** was prepared by **Hillary Kiprop Marrimoi (PW79)**. That during the recording of his statement, **PW79** stated that after preparing the document, he forwarded it via North Rift Shuttle to Eldoret. The document was subsequently returned to him for witnessing and registration, having purportedly been signed by all the trustees. The Investigating Officer’s evidence shows that during the interrogation of PW79, the witness confirmed that the trustees whose names appeared on the Trust Deed did not physically appear before him for the signing or witnessing process. The Investigating Officer testified that no official appointment letter existed authorizing advocate Hillary Marrimoi to act for the County, proving the Trust was created by private individuals. That this lack of formal instruction reveals that the initiative was a private enterprise masquerading as a legitimate county government program. The investigating officer herein stated that there were 3 accounts herein which were opened and operated without being sanctioned by the CEC for Finance. That the investigations did not have the input of the auditor-general. He further confirmed that no public money was involved or used in the program. That further, there was no any link of any of the monies withdrawn to any personal account of the accused persons herein. 3.0 **Submissions** 1. There were submissions filed for both sides herein, with the defence making joint submissions 3.1 **Accused Person’s Submissions** 1. Learned counsel for the defence, led by Mr. Limo, submitted that the evidence adduced by the Prosecution reveals that the Programme was a legitimate county initiative aimed at facilitating overseas education for Uasin Gishu residents, established under the Uasin Gishu County Education Revolving Fund Act, 2016 (as amended in 2020 to include overseas education). That shortfalls in funds arose from external factors, such as changes in university requirements and parental non-payment, not from any criminal intent or misconduct by the Accused. 2. Counsel referred the court to the provisions of Section 306(1) and (2) of the criminal procedure code which provides inter alia thus; ***When the evidence of the prosecution case is concluded the court shall consider the evidence and any arguments made by either the defence or prosecution case to determine whether a case against the accused has been made on the allegations /or charge. If the court finds that there is no evidence that the accused has committed an offence the court shall record a finding of not guilty and order for discharge or acquittal*** 1. Counsel argued that the law on no case to answer is well-settled in Kenyan jurisprudence. That under Section 210 of the Criminal Procedure Code, the court may rule that there is no case to answer if, at the close of the prosecution’s evidence, there is insufficient evidence to establish a prima facie case against the accused. Counsel then cited the case of ***Ramanlal Trambaklal Bhatt v R [1957] EA 332*, where** a prima facie case is ‘***one on which a reasonable tribunal, properly directing its mind to the law and the evidence, could convict if no explanation is offered by the defence*.**’ That in the cited case, the court emphasised that the evidence must be such that, if unrebutted, it would warrant a conviction, but mere suspicion or conjecture is insufficient. That the court further held that ***…prima facie case was defined to exist where evidence can prove essential elements of the offence and reasonable tribunal properly constituted addressing its mind on that facts and the law may convict if no evidence to be offered in rebuttal.*** 1. That this this principle has been affirmed in numerous Kenyan decisions. Counsel, for example cited the case of ***Republic v Galgalo [2007] eKLR***, where the High Court held that where the prosecution’s evidence is so weak, discredited, or inconsistent that no reasonable court could convict on it, the accused should be acquitted at this stage without being called upon to defend. Similarly, in ***Antony Njeru Kathiari & Another v Republic [2007] eKLR***, the court reiterated that the test is not whether the prosecution has proved the case beyond reasonable doubt, but whether there is evidence upon which a conviction could be based if the defence offers no explanation. Any doubt at this stage must be resolved in favour of the accused. 2. On the burden of proof, learned counsel referred the Court to the provisions of Section 107 of the Evidence Act Cap 80 which provides as follows ***1.Whoever desires any court to give judgment as to any legal right or liability dependent on existence of facts which he asserts must prove that those facts exist.*** ***2.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.*** 1. That it is the duty of prosecution to present evidence in support and prove each and every element and particular of the charge. That further, the provisions of Section 109 of the Evidence Act provides as follows: ***The burden of proof as to any particular fact lies on the person who wishes the court to believe that its existence, unless is provided by any law that the proof of that fact lies on any particular person.*** 2. That further the court in ***Peter Wafula & 2 others v Republic (2014) e KLR*** held as follows: - ***…on whether or not the burden of proof should shift under any circumstances, it is now a well settled principle of law that, the burden of proof in criminal matters never leaves the prosecutions backyard. Viscount Sankey L.C in the case of H.L (E) WOOLMINGTON V DPP (1935)A.C 462 PP481 in subtle and masterly fashion stated the law on legal burden of proof in criminal matters that; “throughout the web of English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoners guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained*** 1. That in ***Woolmington v DPP [1935] AC 462***, adopted in Kenyan law, the presumption of innocence persists, and the burden remains on the Prosecution to adduce sufficient evidence. Counsel went on to submit that Kenyan courts have applied this in cases like ***Festo Wandera Shiraku v Republic [2015] eKLR***, where the Court of Appeal acquitted on a no case submission due to evidential gaps, stating that ‘***the prosecution must lay a foundation for each element of the offence.’*** 2. That an accused person can only be put on his defence to answer a charge if the prosecution has established a prima case, the accused can never be called to aid the prosecution in building their case. Equally the court cannot infer or assist the prosecution filing the gaps in their case as held in ***R.T Bhatt v Republic, (1957) EA*** above where the appellate judges observed that: - ***…remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the case merely one, which on full consideration might possibly be thought to sustain a conviction. This is perilously near suggesting that the court will fill the gaps in the prosecution case. Nor can we agree that the question whether there is some evidence, irrespective of credibility or weight, sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence*** 1. That further back home, in ***Saitoti v Republic [1986] KLR 488*,** the court held that if the evidence is inherently unreliable or contradictory, no prima facie case exists. That the Prosecution’s case here relies on conjecture, flawed forensic evidence, and contradicted testimonies, falling far short of establishing a prima facie case. 2. The defence then proceeded to address each count sequentially, highlighting evidential deficiencies, inconsistencies, and legal misapplications, supported by statutory provisions, caselaw, and the prosecution’s evidence under the following heads: - 3. **Nature of the Programme as a County Initiative:** Learned counsel submitted that multiple witnesses, including PW6 (Joel Kipkorir Ruto, Director of the Uasin Gishu County Education Revolving Fund - UGCERF), PW26 (Eng. John Barorot, former Deputy Governor), and PW79 (Adv. Hillary Kiprop Rutto Marrimoi), testified that the Programme was a county government initiative, not a private scheme. That PW6 stated that the programme was a county initiative and not a private programme discussed by the County Assembly, which then approved the programme. That PW26 then corroborated by stating that the advert for the programme was put in the Dailies initially to assist students to access local academic institutions, but that later on an amendment was made to include overseas education. That his aligns with the Uasin Gishu County Education Revolving Fund Act, 2014 (as amended in 2020), which empowers the county to establish funds for education, including overseas opportunities. Counsel quoted the provisions of Section 3 of the Act which provides that: ‘***The object and purpose of this Act is to provide a framework for the establishment of a revolving fund to support needy students pursuing higher education…’*** That the Trust was created to ring-fence parental contributions from county revenue, avoiding issues faced in Elgeyo Marakwet County, as noted by PW6 and PW26. That the Investigating Officer (IO), PW138 (Martin Munene), admitted during cross-examination to not having considered that the trust was created to obviate issues faced in Elgeyo Marakwet county, which had a similar programme as noted in the taskforce report. That this negates any prima facie evidence of intent to defraud, as required for conspiracy and stealing under Sections 393 and 268(1) of the Penal Code. Learned counsel then cited the decision in ***Republic v Prazak [1978] KLR 18***, where the court ruled a no case to answer where evidence showed legitimate purposes, emphasising that the prosecution must prima facie establish criminal intent. 4. **Taskforce Report and Financial Accountability:** learned counsel submitted thatPW26’s Taskforce Report (Exhibit 103) detailed that 323 students travelled to Finland and 61 to Canada, with refunds of Kshs. 69 million to 125 parents and Kshs. 70 million from Canadian universities. That shortfalls (Kshs. 66 million from non-paying parents; Kshs. 17 million overpaid to Finnish universities) were due to external changes, not theft. That PW138 admitted to not considering the Taskforce’s analysis showing overpayments and refunds from universities when calculating the alleged loss of funds. That no forensic audit was conducted, despite recommendations, rendering lost figures speculative. Counsel relied on the decision in ***Republic v Orende (Criminal Appeal 106 of 2023) [2024] KEHC 11516 (KLR****),* where the Court ruled no case to answer where financial discrepancies lacked prima facie audit evidence. 5. **No Personal Gain or Suspicious Transactions:** Counsel submitted on this head thatPW138 admitted that he obtained orders to check the accounts of the accused persons, and he did not find any trail of money from the trust account or any suspicious deposits or withdrawals. That PW137 (Domtila Mayo, retired KCB official) confirmed that at no time did she transfer any money to the account of any of the accused persons. That it is therefore the defence submissions that the above fails to establish prima facie evidence for stealing charges, as intent to deprive permanently (Section 268(2)(a) Penal Code) requires evidence of misappropriation for personal benefit. Learned counsel relied on the case of ***Gatura v Republic (Criminal Appeal E018 of 2021) [2024] KEHC 12814 (KLR)***, where no case to answer was found where no prima facie link to personal gain existed. 6. **Flawed Forensic Evidence on Forgery:** here, learned counsel argued that allegations of forged Trust Deed and minutes rest on PW135 (Martin Kitai)’s report, but that he instead admitted using photocopies, which rendered him unable to assess pen pressure/ink spread on copies. That he also admitted to lack any international certifications and best practises. That the witness also admitted that he was aware of the charges against the accused persons, hence failing the simple test of bias because the report was not blinded. That it was also clear that PW138 supplied photocopied specimens without verifying authorship. Learned counsel relied on the case of ***Republic v Wageni (Criminal Appeal E001 of 2022) [2024] KEHC 11954 (KLR)*,** where flawed forensic evidence led to a ruling of no case to answer on forgery grounds. That it should further be remembered that PW79 testified that all trustees signed the trust deed in his presence, thereby contradicting PW1, PW2, and PW3’s denials. 7. **Victim Testimonies:** Under this head, the learned counsel submitted that the victims focused on non-travel due to changed requirements (such as full-year fees instead of semester; bank balance proofs), and not the Accused misconduct. That PW5 (Sammy Kipkemboi Tanui) stated: ‘***He is not accusing the accused persons but the County Government of Uasin Gishu***.’ That many victims admitted awareness of Programme terms but unprepared for mutations. That this further shows no prima facie evidence of misrepresentation, as adverts (Exhibit 20) did not promise ‘full scholarships’ as grossly argued by PW 138. On this point/ learned counsel relied on the decision in ***Festo Wandera Shiraku v Republic [2015] eKLR***, inconsistent victim testimonies led to no case to answer. 8. **Continuation Post-3rd Accused’s Tenure:** Learned counsel continued to argue that PW26 noted that the Programme ran similarly after the 3rd Accused left office, with trustees managing. That further PW138 admitted that the 3rd Accused was not the Governor by November 2022 payments. That this therefore isolates him from later issues, failing to establish prima facie involvement. 9. **Legal Basis for Programme:** on this point, learned counsel argued that the 2020 Amendment to the Uasin Gishu County Education Revolving Fund Act allowed overseas education. That Section 3 extended the program to ‘higher education’, including abroad. That PW138 admitted ignorance of the amendment of the Act. He admitted to not being aware of the 2020 amendment, which allowed the county to assist students in studying abroad. That it is the defence submission that the Fourth Schedule of the Constitution (Part 2, Clause 14) devolves education functions to counties, supporting county-led initiatives. That no prima facie illegality was therefore shown. 10. Counsel then went ahead to submit on specific counts as follows: - ***3.1.1 Count I: Conspiracy to Commit a Felony (Section 393 Penal Code):*** 1. Learned counsel started by quoting the provisions of Section 393 of the Penal Code, Cap. 63, Laws of Kenya, which provides as follows: ***Any person who conspires with another to commit any felony, or to do any act in any part of the world which if done in Kenya would be a felony, and which is an offence under the laws in force in the place where it is proposed to be done, is guilty of a felony and is liable, if no other punishment is provided, to imprisonment for seven years, or, if the greatest punishment to which a person convicted of the felony in question is liable is less than imprisonment for seven years, then to that lesser punishment***. 1. Counsel then proceeded to submit that the essence of conspiracy lies in the agreement between two or more persons to commit an unlawful act, often inferred from circumstantial evidence, but requiring prima facie proof of a ‘meeting of minds’ with a common criminal intent. The defence therefore submitted that, to establish a prima facie case for conspiracy, the Prosecution must adduce evidence which, if believed, shows: - 1. An agreement between the accused and at least one other person; 2. The agreement’s purpose was to commit a felony; and 3. Some overt act or conduct in furtherance of that agreement*.* 2. That the above ingredients were held in ***Eric Ramanzani Abdalla v Republic [2020] eKLR***, where the court ruled no case to answer absent clear prima facie evidence of a meeting of minds, noting mere association is insufficient. That in this case, the charge alleges a conspiracy between the Accused Persons to steal KES. 1,100,000,000 from the Trust account between 15th March 2021 and 12th September 2022. That however, the evidence adduced falls woefully short of establishing these elements prima facie. That the Investigating Officer, PW138, admitted during cross-examination that he was unable to respond to the reason why he charged the 2nd accused person with conspiracy, whereas he is not listed as a signatory to the trust. Furthermore, that there is no documentary or testimonial evidence of communications, meetings, or overt acts indicating a conspiratorial agreement among the Accused. That PW6 (Joel Kipkorir Ruto) explicitly opined that none of the accused persons defrauded the victims, and emphasised the Programme’s legitimacy as a county initiative. That similarly, PW26 (Eng. John Barorot), detailed in the Taskforce Report (Exhibit 103), stated that financial shortfalls arose from external factors such as university policy changes and parental non-payments, not from planned theft. That the Taskforce estimated unaccounted funds at only Kshs. 8 million dues to poor record-keeping, not the inflated KES. 1.1 billion alleged, and PW138 conceded he ignored these findings in formulating charges. Counsel then relied on the case of ***Gatura v Republic (Criminal Appeal E018 of 2021) [2024] KEHC 12814 (KLR*)**, where the High Court ruled no case to answer on conspiracy charges, despite circumstantial evidence of a bank heist, where there was no prima facie evidence of prior communication or agreement with the co-accused. That the court emphasised that ‘***conspiracy requires inference from acts in pursuance of a common criminal purpose***,’ but absent such links, no prima facie case exists. Counsel went ahead to submit that in the present case, analogous to ***Gatura***, no call data, emails, or witness accounts establish prima facie contact or planning among the Accused for illicit purposes. That the Trust was lawfully created (per PW79 and PW137), and funds were disbursed for Programme operations, as corroborated by bank records showing no transfers to personal accounts, as testified by PW138, who admitted that he found no trail of money from the trust account or any suspicious deposits or withdrawals. Learned counsel further submitted that Kenyan courts have consistently held that suspicion, however strong, cannot establish a prima facie case. That in the case of ***Joseph Ngunguru Wanjohi v Republic [2017] eKLR,*** the High Court ruled no case to answer on conspiracy for robbery, finding circumstantial evidence inadequate as it did not exclude reasonable hypotheses of innocence. That the court reiterated that the evidence must be incompatible with innocence, while relying on ***Sawe v Republic [2003] KLR 364***. That further, as quoted in ***Genya Mwasaha v Republic [2018] KECA 369 (KLR*)**: ***Needless to say, suspicion alone was not even sufficient to place the appellant on his defence. See the oft-cited case of Ramanlal T. Bhatt v. R [1957] EA 332 where the Court stated as follows:*** ***The onus is on the prosecution to prove its case beyond reasonable doubt and a prima facie case is not made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.”*** ***The question whether there is a case to answer cannot depend only on whether there is “some evidence irrespective of its credibility or weight, sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough; nor can any amount of worthless discredited evidence.”*** ***The judge hearing the case stated misdirected himself on the law when considering the question whether a prima facie case is made out, and, as it could not be said that the magistrate at the resumed trial would necessarily have reached the conclusion he did, had he not been influenced by this misdirection, it was not safe to allow the conviction on the first count to stand.”*** 1. That in the instant case, the Programme’s success of 323 students to Finland and 61 to Canada contradicts any prima facie felonious intent. That PW26 testified that Kshs. 17 million was overpaid and that Kshs. 66 million from non-payers was explained by legitimate challenges, not conspiracy. That during cross-examination, PW138 was tongue-tied to reconcile the conspiracy charge when the findings of the Taskforce were that the programme was successful. The defence contended that there is no prima facie evidence of a meeting of minds. It relied on the case of ***Sijenyi v Republic (Criminal Appeal E021 of 2021) [2023] KEHC 22805 (KLR****),* where a no case to answer was ruled on conspiracy to defraud in a land transfer case, as no evidence linked the appellant prima facie to others in a common unlawful purpose. That similarly, here, the Accused’s actions align with their roles in a county-approved initiative (Uasin Gishu County Education Revolving Fund Act, 2014, amended 2020). That PW6 testified that the Trust avoided revenue pitfalls seen in Elgeyo Marakwet, an important fact that PW138. The defence therefore submitted that there is no prima facie case established as there is no meeting of minds. Further that it is trite to note that the 3rd Accused signed MOUs publicly, and trustees operated transparently. That even in cases where a prima facie case was found, such as ***Republic v Echesa & 4 others (Criminal Appeal E148 of 2021) [2024] KEHC 1709 (KLR),*** the court required concrete evidence of joint actions and forged documents. That in the ***Echesa case***, forensic analysis and recovered items established prima facie links, unlike in the present case, where PW135’s forensic report on the Trust Deed was flawed, as he admitted use of photocopies, no evidence of pen pressure analysis, and PW79 confirmed voluntary signatures by the trustees who had earlier denied that they had signed. That in the High Court in ***Echesa*** applied ***Bhatt v R [1957] EA 332***, but here, the totality of evidence such as refunds and student travels fails to establish a prima facie case for conspiracy. That in ***Gathanji v Republic (Criminal Appeal E035 of 2025) [2026] KEHC 513 (KLR),*** the court ruled no case to answer on conspiracy where no overt acts evidenced the alleged agreement, emphasising that conspiracy cannot be based on conjecture. That likewise, in ***Malit v Republic (Criminal Appeal E021 of 2025) [2025] KEHC 12609 (KLR*),** lack of a prima facie ‘meeting of minds’ led to no case to answer. That the Prosecution’s reliance on inflated lost figures while ignoring its own evidence of the Taskforce analysis and flawed forensics mirrors the evidential gaps in these cases, failing to meet the Bhatt test. Lastly, the defence relied on ***Walter Aguvasu v Republic [2020] eKLR*,** where the Court held that suspicion cannot provide a prima facie basis for inferring guilt. Therefore, the defence prayed for a ruling of no case to answer in Count I, as the evidence is insufficient to warrant putting the Accused on their defence. ***3.1.2. Counts II, III, IV: Stealing (Section 268(1) R/W 275 Penal Code):*** 1. Learned counsel commenced his submissions in these counts by quoting the provisions of Section 268(1) of the Penal Code which defines stealing as ‘***fraudulently and without claim of right takes anything capable of being stolen… with intent permanently to deprive…***’, while Section 275 continues as follows: ‘***Guilty of the felony termed theft and is liable… to imprisonment for three years.***’ That for a prima facie case, the ingredient of intent is key, as held in ***Osman & another v Republic (Criminal Appeal E033 of 2024) [2025] KEHC 4659 (KLR*),** where the prosecution must adduce evidence which could prove fraudulent intent if unrebutted. The defence therefore went ahead to submit that the prosecution has not established prima facie intent to deprive. That the funds were used for the Programme towards payment of fees, allowances, furniture, and visa fees. That PW6 testified that all funds withdrawn were for operational expenditure. That PW26 testified that Trustees paid fees directly to universities. That on the other hand, PW138 was unable to demonstrate how he arrived at the impugned figures and admitted not considering overpayments. Learned counsel relied on the case of ***Wesah & 2 others v Republic (Criminal Appeal 134 of 2023) [2025] KEHC 1964 (KLR),*** no case to answer was ruled where funds were prima facie traced to legitimate use. Learned counsel went ahead to argue that the 2nd Accused is not a signatory to the Trust Account as alleged by PW138. The defence therefore submitted that this demonstrates the shoddy investigations by PW138. That in fact, the charges against the 2nd Accused are misplaced and speculative. On this point, learned counsel further relied on the case of ***Republic v Wageni (Criminal Appeal E001 of 2022) [2024] KEHC 11954 (KLR)*,** where lack of access negated a prima facie case for stealing. Counsel concluded his submissions on these counts by submitting that the counts for as long as they purport to show that the 2nd Accused, who is not a signatory to the impugned Trust Account, stole any money is plainly reckless wrong. It therefore prayed for a ruling of no case to answer on these counts. ***3.1.3 Counts V, VI, VII: Abuse of Office - Section 101 R/W 102(A) Penal Code:*** 1. Again, leaned counsel commenced his submissions on these counts by quoting the provisions of section 101(1) which defines the above offence as follows: ‘***Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another is guilty of a felony.’*** That a prima facie case in these counts therefore requires evidence of an arbitrary act and prejudice, as in ***Koros v Republic (Criminal Appeal 32 of 2019) [2022] KEHC 10250 (KLR):*** here it was held ‘***Must prima facie prove prejudice***.’ Counsel submitted that for Count V – there is no evidence of a misrepresentation of account. That PW79 testified that he received instructions from the 2nd Accused, and he also testified on oath that the trustees signed the trust deed in his presence. That on the other end, PW137 testified that the account domiciled at KCB was opened legally. The Defence therefore submitted that there is no prima facie prejudice since the funds were separated for the program. That when this fact was placed before PW138 by way of cross-examination, he was unable to demonstrate how the opening of a trust account was prejudicial to the program of the victims. As to Count VI, on the issue of the MOUs signed without approval, learned counsel submitted that the complainant for this charge then ought to have been the County Government, whose representative did not testify in Court. That secondly, there is no prejudice demonstrated to have been suffered by the county even remotely. That PW6 testified that MOU’s were signed with several universities, which necessitated the amendment of the Uasin Gishu County Education Act, amendments that the Assembly approved (PW6). Counsel therefore submitted that no prima facie prejudice was demonstrated as it was confirmed that the programme benefited students. Learned counsel relied on the case of ***Wanga & another v Republic (Criminal Appeal 64 of 2019) [2022] KEHC 335 (KLR),*** which held that no case to answer where acts prima facie advanced public interest. As to Count VII, the key element therein was scholarship misrepresentation. Learned defence counsel then argued that the production of PEXH No. 26 diminished the relevance of this count once the same was produced as an Exhibit. That the advertisement produced by the prosecution was clear that the program was not a scholarship. That further to the above, all the victims who testified had paid some money to the trust account, meaning all of them understood that it was a paid program and not a scholarship, as alleged. That the prosecution did not have any witnesses who testified that he/she did not pay a single cent, but still had a complaint because he/she believed the program was offering a full scholarship. That PW138: was unable to demonstrate misrepresentation or the usage of the word ‘scholarship’. That PW26 testified that there was no free education in Finland for non-citizens. He stressed that parents were informed of fee payment. Counsel then relied on the case of ***Stephen Mwai Gachiengo & another v Republic [2000] eKLR****,* by submitting that there is no case to answer where no prima facie intent to prejudice was shown. ***3.1.4 Count VIII: Abuse of Office - Section 101 R/W 102(A) Penal Code (Seconding Staff):*** 1. counsel submitted that the charge alleges that the 3rd Accused, between 1st March 2021 and 31st March 2021, arbitrarily seconded county staff to the Trust, drawing salaries prejudicial to Uasin Gishu citizens. Counsel then submitted that as with other abuse counts, prima facie evidence requires arbitrary action and prejudice (Section 101(1)). That PW26 testified that staff secondment supported Programme operations, a legitimate county initiative. That further PW138 failed to quantify prejudice or show arbitrariness, admitting no complaints from seconded staff or citizens. That in ***Hosea Waweru & 2 others v Republic [2012] KEHC 4667 (KLR)***, no case to answer was ruled where secondments advanced public goals without proven harm. That similarly, absence of prejudice negates the charge, as in ***Koros v Republic [2022] KEHC 10250 (KLR)*.** The defence therefore submitted for a no prima facie case, as actions were administrative and beneficial. ***3.1.5 Counts IX and X: Forgery - Sections 345, 347(d)(ii) R/W 349 Penal Code:*** 1. Learned counsel commenced his submissions on these 2 counts by defining the offence of forgery as provided for in section 345 of the Penal Code as making a false document with intent to defraud. Section 349 imposes liability for such acts. Counsel then submitted that for a prima facie case, the prosecution must show false making and intent (Section 347). That PW135’s report is unreliable: based on photocopies, no bias blinding, and no international standards. That PW79 confirmed that trustees signed voluntarily, contradicting denials. That admittedly, PW138, provided unverified specimens to PW135, who went ahead and produced a shoddy, unverifiable and inconclusive report. That there is no prima facie intent to defraud, as the Trust operated legitimately. Counsel referred the court to the decision in ***Shah v Republic [2024] KEHC 837 (KLR)*,** where no case on forgery was held where forensic evidence was flawed and intent unproven. That further, in ***Kariuki v Republic [2025] KEHC 12408 (KLR)*,** acquittal followed due to uncorroborated signatures and lack of prejudice. 2. In conclusion learned counsel submitted that having digested the charges and the particulars of the offence against the evidence their submissions above, no prima facie case was made out against any of the accused person. The Prosecution’s case is riddled with inconsistencies, unproven allegations, and reliance on flawed evidence. That as per ***Indama v Republic (Criminal Revision E113 of 2025) [2025] KEHC 16237 (KLR),*** where no case to answer was ruled on conspiracy for insufficient prima facie proof, all charges fail the Bhatt test. Counsel therefore prayed that the Honourable Court rule that there is no case to answer on all counts, acquit the Accused, and discharge them unconditionally under Section 210 of the Criminal Procedure Code. **3.2 The Prosecution’s Submissions** 1. Learned Counsel for the prosecution, **Mr. Moses Macharia**, submitted that the prosecutions have been able to prove its case to the required standard. That the Prosecution has provided a complete system audit of these crimes. From the forged Trust Deed **(Exhibit 324),** the forged minutes **(exhibit 2 & 4)** to the **unauthorized bank withdrawals (Exhibit 524)** and the documented absence of County government approvals **(Exhibit 610)**, the evidence is overwhelming. The prosecution has provided cogent evidence piecing together this scheme orchestrated by all the accused persons systematically. 2. In a bid to convince the court that it has established its case to the required standard, the prosecution went into the details of analyzing and evaluation its evidence in all the counts herein as follows- ***3.2.1. Counts 1, 9 and 10: Conspiracy to Commit a Felony Contrary to Sections 393 of the Penal Code and Forgery contrary to sections 345 and 347 of the Penal Code, Laws of Kenya:*** 1. Mr. Macharia submitted that the prosecutions have presented facts and evidence proving that there was a broad conspiracy between the 3 accused persons with others not before court to commit a felony, namely stealing from account number 128922778 domiciled at KCB, Eldoret, registered under the Uasin Gishu Overseas Education Trist and was intended for overseas university fees for students under the Uasin Gishu Overseas Education Programme. That the prosecution through the investigating officer, adduced evidence proving that the aforementioned bank account transacted a total sum of Kshs. 1,100,000,000/-. That this fact was conclusively supported by the bank statement produced as Exhibit 524. That PW137 through her testimony confirmed that the 1st and 2nd Accused persons would occasionally withdraw funds from the aforementioned bank account. That this witness produced Exhibits 526 - 569 showing that indeed the 1st and 2n accused persons withdrew enormous amounts of money from the said accounts. that further, the 3rd Accused person had presented to the public that they were running a full scholarship programme which is a means a form of non-repayable financial aid granted to student to support educational expenses such as tuition fees, and sometimes living costs. That the evidence of some of the victims who testified also confirmed attending meetings which were convened and addressed by the accused persons where they were informed that the program will be sponsored by the county as a scholarship only to learn later that they were to pay fees for themselves and that the county will only issue a bank statement as security. Learned counsel further submitted that the ingredients of the offence of conspiracy have been met as required by the law. That the evidence of the Document Examiner has proved that the Declaration of Trust (Exhibit 324) and the Minutes (Exhibits 2 and 4) were appended with forged signatures of PW1, PW2 and PW3. That this fact rendered the entire Uasin Gishu Overseas Education Program an illegal program ab initio. That the Document Examiner produced his report as Exhibit 517 confirming that the purported signatures of PW1, PW2 and PW3 appearing in the Declaration of Trust and the minutes were not signed by them, and was further confirmed by PW1, PW2 and PW3 that they never signed the Declaration of Trust nor the Minutes. That the 3rd accused person being the pioneer of the program as the Governor of the County oversaw the implementation and successful registration of the Declaration of Trust to kick start the program. That with regards to the essential ingredients of Conspiracy, the Prosecution asserts that a 'meeting of minds' does not require a formal written agreement or direct communication between all parties. It relied on the case of ***R v. Meyrick & Ribuffi (1929) 21 Cr App R 94,*** which held that it is not necessary for conspirators to know each other or have communicated directly; it is sufficient if they are all working toward the same unlawful goal—a 'community of design.' That in this case, the 3rd Accused provided the 'public platform' and the veneer of legitimacy using County apparatus and county employees, while the 1st and 2nd Accused handled the private paperwork, convened meetings to persuade the victims and the subsequent withdrawal of funds. Their actions were perfectly synchronized to achieve a common unlawful object**:** the defrauding of parents and students. ***3.2.2. Counts 2, 3 & 4: Stealing Contrary to Section 275 of the Penal Code (1st & 2nd Accused):*** 1. learned counsel submitted that the Prosecution has established that funds intended for student fees were fraudulently converted for personal use, as evidenced by the testimony of the Investigating Officer (**PW138**) and **Bank Statement Exhibit 524**, which recorded transactions withdrawn on diverse dates between the months of June 2021 and September 2022 by the 1st and 2nd Accused persons. That this evidence of theft is further corroborated by the testimony of the Bank Representative (**PW137**), who produced **Exhibits 526–602** confirming that the 1st and 2nd Accused persons personally performed massive cash withdrawals totaling **KES 56,512,300** and further each one of them withdrew **KES 26,563,939** and **KES 4,803,400** respectively (totaling to **KES 87,879,639**), all of which remain unaccounted for to date. that a specific instance of fraudulent pretext was highlighted regarding a **KES 200,000** withdrawal purportedly for RVTTI venue hire; however, **exhibits 403 and 404** proved this was never paid to the institution. Consequently, the Prosecution submitted that under the precedent of ***Ramanlal Trambaklal Bhatt v. Republic [1957] EA 332***, the unexplained depletion of these funds by the authorized signatories creates a clear *prima facie* case that requires the Accused to be placed on their defense. That furthermore, the Bank official (**PW137**), in her testimony, confirmed that while the 1st and 2nd Accused presented documents to support these withdrawals, she was categorically clear that the said documents did not originate from the Finance Department of the County Government of Uasin Gishu, further proving the unauthorized and private nature of the transactions. ***3.2.3 Count 5: Abuse of Office Contrary to Section 101 of the Penal Code (1st & 2nd Accused)*** 1. Learned counsel submitted in this count that the Prosecution has established a clear case of Abuse of Office against the 1st and 2nd Accused persons. That at all material times, the 1st and 2nd Accused were employees of the Uasin Gishu County Government in their capacities as **Deputy Director County Education Revolving fund** and **Chief Education Officer Revolving Fund** respectively, as evidenced by their appointment letters produced by the IO as **Exhibits 605 and 606**. That the evidence of **PW138** and various County officials demonstrated that the 1st and 2nd Accused persons utilized their positions and the County’s administrative infrastructure to facilitate a private Programme without any requisite legal framework. This is supported by the fact that there was no official letter from the County Government appointing Hillary Marrimoi to draft the Trust Deed as he was verbally instructed by 2nd accused person, nor was there any Cabinet or County Assembly approval for the program as evidenced by **Exhibits 606 and 610**. The Prosecution further relied on the precedent in ***Republic v. Nyanamba & 8 others [2020] KEMC 10 (KLR)***, where the court held that a public officer commits an abuse of office when they engage in acts that are prejudicial to the public interest by bypassing statutory financial and administrative procedures. That by using County employees and apparatus to promote a private enterprise that resulted in the loss of money the Accused persons acted arbitrarily and in total disregard of the law. This unauthorized use of public office for private benefit, coupled with the disregard for the **Public Finance Management Act**, constitutes a formidable *prima facie* case. ***3.2.4. Counts 6,7 & 8: Abuse of Office Contrary to Section 101 of the Penal Code (3rd Accused):*** 1. The Prosecution asserted that the 3rd accused person committed an abuse of office by performing arbitrary acts that misrepresented a private scheme as a legitimate public program. That he unilaterally entered into Memorandums of Understanding (MOUs) with foreign universities and attempted to manipulate the **Uasin Gishu County Education Revolving Fund Act, 2016** without the mandatory sanction of the County Assembly or Cabinet (**Exhibits 606 & 610**). That an act is arbitrary when it is done without any predictable guiding principle or in total disregard of the law. That by using the prestige of the Office of the Governor to steer parents and students towards an unauthorized private account shielded from the auditor General, the 3rd Accused exercised power without a legal basis, necessitating that he be placed on his defense. That the 3rd accused person being the then Governor of Uasin Gishu County government and the pioneer of the Uasin Gishu overseas education program, misrepresented to the victims/parents that the County government of Uasin Gishu was sponsoring students for the overseas program as a full County scholarship program as shown on the advertisement produced as **Exhibit 20. That t**his was further emphasized by victims who testified that they attended meetings convened by the 3rd accused person who informed them that the program was a full scholarship to be offered by the County government of Uasin Gishu. That later, to their surprise, they were instructed to pay their tuition fees alongside incidental costs intended to cover accommodation, visa processing, insurance, COVID-19 testing, and flight costs. That investigations has further revealed that the program was not sponsored nor initiated by Uasin Gishu County government. That further, while serving as the Governor of Uasin Gishu, the 3rd accused acted arbitrarily by seconding County Government staff including the 1st and 2nd accused persons to a private entity the Uasin Gishu Overseas Education Trust. That this unauthorized redirection of human resources, resulted in staff drawing salaries from the County Government of Uasin Gishu for work performed for a private trust. That this constitutes a clear resource leak or fiscal prejudice to the citizens of Uasin Gishu, as public funds were used to subsidize a private entity without the necessary legal or regulatory approvals. 2. The prosecution concluded that this Honorable Court to find that a formidable ***prima facie*** case has been established against all the three Accused persons and they be placed on their defense for all the counts **4.0 Prima Facie Case** 1. As correctly submitted by both sides to the criminal trial herein, at the prima facie case stage, we are at the 'case to answer' stage of the trial. The main issue at this stage has been well captured in the learned prosecution counsel’s submissions which I adopt as the sole issue for determination at this stage, namely whether the prosecution, in discharging its burden of proof, had established a *prima facie* case that requires me to call upon the accused persons herein to make their defence as required by section 211 of the Criminal Procedure Code[[21]](#footnote-21). If no such case is established, then I am to act accordingly under section 210 CPC[[22]](#footnote-22), and acquit the accused persons herein as per their respective counts. This was held by Lordship, Katiti, J. (as he then was) of Tanzania High Court in the case of ***Jonas Nkize vs Republic [1992] T.L.R. 213 (HC)*** at page 218 as follows: ***If it appears to the court that the case is not made out against the accused person sufficiently to require him to make a defence, either in relation to the offence with which he is charged, or in relation to any other offence of which under provisions of sections...he is liable to be convicted, he shall dismiss the charge, and acquit the accused person.*** [ Emphasis supplied] 1. In ***Anthony Njue Njeru vs Republic******[2006] eKLR[[23]](#footnote-23)***, the Court of Appeal of Kenya was surprised by a High Court Judge's decision to call upon the appellant to make his defence, even after the judge had expressed himself in a ruling at this stage, on a case to answer, as follows: - ***I have considered the evidence before me. The evidence shows that the accused shot the deceased David Sila Kimuyu on 18th July, 2002 at Chiromo University Campus within Nairobi area. There is no eye-witness evidence as to how this happened. All witnesses who gave evidence arrived at the scene of crime after the deceased had been shot and had died. This includes the evidence of John Musyimi Kamwanza, PW2 who testified that he was with the accused but ran away before the accused shot the deceased dead. The relevant evidence on record which attempts to explain the circumstances under which the shooting took place are (sic) on the level of hearsay evidence*** (underlining supplied) 1. The Court of Appeal then commented as follows: ***Having expressed himself so conclusively, we find it difficult to understand why the learned Judge found it necessary to put the appellant on his defence. Was there a prima facie case to warrant the trial court to call upon the appellant to defend himself? It is a cardinal principle of our law that the onus is on the prosecution to prove its case beyond reasonable doubt and a prima facie case is not made out if, at the close of prosecution the case is merely one "*which on full consideration might possibly be thought sufficient to sustain a conviction"*.*** [ Emphasis supplied] 1. *Prima facie* is a Latin word defined by **Black's Law Dictionary, 8th Edition** as ‘***Sufficient to establish a fact or raise a presumption unless disproved or rebutted'***. *Prima facie case* is defined by the same dictionary as ***'The establishment of a legally required rebuttable presumption'***. To digest this further, in simple terms it means the establishment of a rebuttable presumption that an accused person is guilty of the offence he/she is charged with. 2. As impressively submitted by both sides to the criminal trial herein, the standard of proof as to whether the prosecution has established a prima facie case or not was laid down in the celebrated case of ***Ramanlal Trambaklal Bhatt vs Republic [1957] E.A.*** ***332*** where their Lordships, Newham Worley, P., Sir Ronald Sinclair, V. P., and Bacon JA (as they then were) explained the concept at page 334 as follows: - ***The onus is on the prosecution to prove its case beyond reasonable doubt and a prima face case is not made out if at the close of the prosecution, the case is merely one which on full consideration might possibly be thought sufficient to sustain a conviction.*** ***The question whether there is a case to answer cannot depend only on whether there is 'some' evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough; nor can any amount of worthless discredited evidence... It may not be easy to define what is meant by a "prima facie case", but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence*** *(underlining for emphasis is mine)* 1. The same Court in ***Wibiro alias Musa vs Republic [1960] E. A*.** at 186 revisited with approval the ***Ramanlal Case*** above on the issue of *prima facie* case. The courts in East Africa including our own have cited these cases with relish and for a good reason: it is good law. 2. For example, in the case of ***Republic vs Kennedy Otieno & 6 Others (1998) eKLR,*** the High Court of Kenya relying on the above cited authorities, gave a simpler explanation of what constitutes a *prima facie* case. The High Court held that it is a case where there is sufficient evidence upon which the court would convict the accused if no explanation is given. 3. This therefore means that as at the close of the prosecution's case, and where the burden of proof does not shift to the defence, the prosecution should have laid out a case that can convict the accused, assuming that the accused has no defence in rebuttal[[24]](#footnote-24). 4. Justice Odunga in the case of ***Republic vs Alex Musau Jimmy [2022] e KLR***, held that an accused person should not be put on his defence in the hope that he may prop up or give life to an otherwise hopeless case or a case that is dead on arrival[[25]](#footnote-25). 5. Nyakundi J. on his part in ***Republic vs Silas Magongo Onzere alias Fredrick Namema [2017] e KLR***, aptly stated that: ***Where for example an accused has not been identified or recognised and there is absolutely no evidence whether direct or circumstantial linking him to the offence it would be foolhardy to put him on his defence. There is no magic in finding that there is a case to answer and a case to answer ought only to be found where the prosecution’s case, on its own, may possibly, though not necessarily, succeed. An accused person should not be put on his defence in the hope that he may prop up or give life to an otherwise hopeless case or a case that is dead on arrival. Defence case is not meant to fill in the gaping gaps in the prosecution case[[26]](#footnote-26).*** 1. It is trite that for a prosecution's case to convict, it must meet the evidential threshold of proof. Further, and as aforestated, it is trite law that the standard of proof in criminal cases for purposes of a conviction is beyond any reasonable doubt. It is further trite that in a criminal trial, the burden of proof squarely lies upon the prosecution to prove its case beyond any reasonable doubt. As correctly stated in the case of ***Peter Mwangi Kariuki vs Republic (2015) e KLR*** the burden of proof does not shift and it remains constant throughout the trial. 2. Further, this burden of proof on the prosecution must be discharged without necessarily weighing or capitalizing on the weaknesses of the defence case. In the case of ***State of Punjab vs Jagir Singh (1974) 3 SCC 277*,** the Indian Supreme court had this to say: - ***A criminal trial is not like fairy tale wherein one is free to give flight to one’s imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged ... In arriving at the conclusion about guilty of the accused charged with commission of the crime, the court has to judge the evidence by the yard stick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts....*** 1. Justice S. Mutuku in ***Republic vrs Hassan Mohamud Osman [2013] eKLR***, commented as follows: ***The burden of proving a criminal case lies with the prosecution and never shifts to the accused unless where the law specifically provides the same. Even where the court calls upon an accused person to testify in his defence, it is not so as to prove himself innocent. Courts do so with a view to allowing an accused person to have his day in court and perhaps adduce evidence that may rebut the prosecution evidence and raise the much valuable doubt. Even in cases where the defence of insanity or other statutory defence available to an accused person exists the accused is only required to prove such defence on a balance of probability and not beyond reasonable doubt.[[27]](#footnote-27)*** 1. It is incumbent upon the trial judicial officer to weigh the evidence at hand and make a finding that considering the circumstances of the case and the evidence at hand, it would be safe to convict. It has been accepted in legal circles and indeed in numerous precedents that it is better to acquit ten people who are guilty than to convict one innocent person **(See *J.O.O. vs R (2015) e KLR***). For a court to convict, the prosecution must therefore adduce the necessary evidence to prove all the main ingredients of the offence/s. **5.0 Determination.** 1. Having considered each party’s case, and as aptly captured in the learned counsel for the prosecution’s submissions, I considered the following as the main and sole issue for this court’s determination: - ***Whether all the essential ingredients or elements of the charges have been proved beyond reasonable doubt as at the close of the prosecution’s case.*** **5.1. Count I: Conspiracy to Commit a Felony c/s 393 of the Penal Code** 1. On the charge of conspiracy to commit a felony as charged in the 1st Count, the accused persons argued that the charge could not stand without any evidence of the essential ingredient of common intention, and meeting of the minds. The prosecutions, on the other hand argues that a ‘meeting of the minds’ does not require a formal written agreement or direct communication between the parties. The prosecutions however rely on an old 1920 English case of ***Rex v Maverick (TLR) Vol xiv,*** page 421, where in a charge to corrupt police, the English court held as follows: ***It has been further suggested on behalf of the appellants that a clear distinction ought to have been drawn between two things which, it was alleged, were sharply opposed – on the one hand, a series of individual conspiracies between Goddard and the one other person in each case; and, on the other hand, a general conspiracy to which the parties were Goddard and all other persons. It was argued that these two things were mutually exclusively; and no doubt in particular circumstances they might be. When once it was conceded, however that there for persons to conspire it was not necessary that there should be direct communication between each and all of the conspirators, it became necessary to look at the circumstances to see if that argument of mutual exclusiveness was satisfactory.*** 1. I beg to differ with the learned prosecutions counsel. Our case law and jurisprudence might have developed further than the old English case. The offence of conspiracy to commit a felony is provided for in Section 393 of the Penal Code. The Section provides as follows: - ***Any person who conspires with another to commit any felony, or to do any act in any part of the world which if done in Kenya would be a felony, and which is an offence under the laws in force in the place where it is proposed to be done, is guilty of a felony and is liable, if no other punishment is provided, to imprisonment for seven years, or, if the greatest punishment to which a person convicted of the felony in question is liable is less than imprisonment for seven years, then to that lesser punishment.*** 1. In ***Lawrence Gitau Karanu v Republic [2020] eKLR***, Hon. Lady Justice Mary Kasango, stated that the dominant aspect of the offence of conspiracy is that there must be an agreement, a meeting of the mind. On her part, in ***Ann Wangechi Mugo & 6 others v Republic [2022] eKLR***, Hon. Lady Justice L. Njuguna stated as follows: ***29. As earlier stated, all the appellants herein were charged with the offence of conspiracy to commit an offence of corruption while the 3rd, 4th and 5th appellants were charged with abuse of office. The Penal Code and ACEA do not define the word “conspiracy”. The Black Law Dictionary 9th Edition defines conspiracy as follows: An agreement by two or more persons to commit an unlawful act coupled with intent to achieve the agreement’s motive and (in most states) action or conduct that furthers’ the agreement; a combination for an unlawful purpose.*** ***30. In Archibold; writing on criminal pleadings, evidence and practice, he observes;*** ***“The offence of conspiracy cannot exist without the agreement, consent or combination of two or more persons so long as a design rests in intention only, it is not indictable. There must be an agreement; proof of the existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them."*** ***31. The Court of Appeal in Gichanga v Republic [1993] KLR 143 held that;*** ***“With respect to the offences of conspiracy, the crucial issue is whether the appellant and his fellow conspirators acted in concert with the intention that the Board be induced to part with its money.”*** ***32. To prove a conspiracy, the prosecution had to establish that the respondents together with others, agreed by common mind to defraud the complainant. The inference must be made both from the actions of the accused and the evidence tendered in court (see Republic v Anne Atieno Abdul & Others [2017] eKLR). Further Halsbury’s Laws of England Vol. 25 observes that;*** ***“It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place, it is necessary to show a meeting of the minds, a consensus to effect an unlawful purpose.*** ***33. It requires that a common purpose between them or among the subject parties is proved. Common intention is set out in Section 21 of the Penal Code as follows;*** ***When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."*** 1. Applying the above principles to the facts and circumstances of this case, it is my considered view that the prosecution failed to prove that there was a meeting of minds to constitute the offence of a conspiracy to commit a felony. That proof should be by clear admissible evidence, whether direct or circumstantial, and not by conjecture as happened in this case. The prosecution did not demonstrate that the accused persons herein were acting with another person or with each other with the common intention of stealing 1.1 billion from the Trust Account herein. 2. On this point, I find further reliance on the decision of Justice Mabea in ***Malit v Republic (Criminal Appeal E021 of 2025) [2025] KEHC 12609 (KLR*),** where he held that a meeting of the mind is an essential ingredient that must be proved by the prosecution to the required standard. The learned judge held as follows: ***41. To establish a charge of conspiracy, the prosecution needs to lead evidence demonstrating that an accused with others, by his actions committed the offence with which he is charged. There must be a meeting of mind between an accused his other conspirators. (See*** [***Republic v Anne Atieno Abdul & others***](https://uk.practicallaw.thomsonreuters.com/D-017-1716?transitionType=Default&contextData=(sc.Default)) ***[2017] eKLR.)*** ***42.There must also be a common intention by two or more persons to commit an offence as set out in section 21 of the Penal Code which provides that: -*** ***“Where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in prosecution of such purpose an offence is committed of such a nature that its commission was probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”*** ***43.The standard of proof in criminal cases is proof beyond reasonable doubt and not on a balance of probabilities. This was the holding by*** [***Lord Denning in Miller v Minister of Pensions [1947] 2 ALL ER 372 – 373***](https://uk.practicallaw.thomsonreuters.com/D-017-1716?transitionType=Default&contextData=(sc.Default)) ***as follows:*** ***“That degree is well settled. It needs not reach certainly, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of doubt. The law would prevail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility of his favour which can be dismissed with the sentence, of course, it is a doubt but nothing short of that will suffice."*** 1. From the facts set out in this case, there is no evidence of an express agreement among the accused persons herein to Steal any money from the Trust Account. The conspiracy can only be proved or disproved from the facts revealed. Firstly, the 2nd and 3rd accused were confirmed not to have been a signatory to the Trust Account. Secondly, the 1st Accused’s actions align with his role as per his appointment letter produced herein as PEXH. NO 605, which was by the County Public Service Board, as a deputy director of in a county-approved initiative (Uasin Gishu County Education Revolving Fund Act, 2014, amended 2020). Thirdly, PW6 testified that the Trust avoided revenue pitfalls seen in Elgeyo Marakwet, an important fact that PW138, the investigating officer obviously avoided in his investigations. Further it is trite to note that the 3rd Accused signed MOUs publicly, and trustees operated opened the Trust Account openly and with approval of the bank itself. The bank official herein, PW137, in fact confirmed that the account was opened with a waiver of some requirements, upon approval by the bank’s headquarters. 2. Finally, and of most important herein is the fact that the investigating officer was put to task to explain how he arrived at this figure of 1.1 billion, which he explained that he added the cumulative amounts deposited by the students. This was however contrary to the evidence given by the bank official, PW137, who operated the account who stated that at any given time, no such amount existed in the accounts that the accused would have conspired to steal. She stated that the highest amounts the account held was Kshs. 35,000,000/- and that the withdrawals by, among others, the 1st accused were fully backed by supporting documents which confirmed the universities and students where the payments were to be made. 3. Further, in the absence of any forensic audit, which the County Assembly and the task force had recommended, on the accounts and operations of the Trust operations, this court has been left with the task force’s findings on the amounts, which also contradicted the amount stated in the charge. 4. The task force chair stated that they have since refunded Kshs. 69,000,000/- to students who were unable to travel. That the County now owes some parents around Kshs. 100,000,000/-. That some parents did not pay fully for their children who had travelled, these children therefore utilised other parents’ monies. That the amount wrongly credited to these children was Kshs. 66,000,000/=. That most of the students who were unable to travel, was mainly because the embassies changed the rules mid-way the process and as such they were unable to get visas. PW26, went ahead to further clarify that about Kshs. 17,000,000/- was lost as the same was paid in a cohort that not all were qualified. That the university however refused to refund the amount as it argued that the same was high. The task force further found that some students did not complete the fees payment, but that the Trust nevertheless went ahead to pay for them. PW26, further confirmed that some double payments amounting to Kshs. 92,000,000/- was paid in error to some universities in Canada. That these double payments amounted to administrative errors which cannot be accounted for. He therefore recommended a proper audit because towards the tail end of the task force, the principal trustee turned unco-operative and even denied them access to the KCB account that was being operated by the Trust. That the figure in their report approximate the lost or unaccounted for amount at Kshs. 8,000,000/-. There is thus no admissible evidence to prove that the account herein had Kshs. 1.1billion as alleged. This exaggeration of the figures dents the credibility of the investigations as there is no evidence to back the figure quoted in the charge sheet that the accused persons herein are accused to have conspired to steal. Probably and most likely the inflated figure without any evidential backing was meant to embarrass and or humiliate the accused persons. 5. Such unwarranted inflating of figures or splitting a massive number of counts in a charge sheet to intimidate, confuse, or embarrass an accused person can be challenged as an abuse of the court process and a violation of the right to a fair hearing under [Article 50 of the Constitution of Kenya](https://new.kenyalaw.org/akn/ke/judgment/keca/2025/665/eng%402025-04-11). Further section 134 of the Criminal Procedure Code requires every charge to contain specific, accurate and reasonable information regarding the nature of the offence without being vague or artificially bloated. 6. In the case of ***Walingo v Directorate of Criminal Investigation & 4 others; Seno & another (Interested Parties) (Constitutional Petition E028 of 2022) [2024] KEHC 2889 (KLR) (21 March 2024) (Judgment)***, the learned judge stated as follows with regards to artificially bloated of figures in a charge sheet: - ***71.A careful reading of the parties’ submissions as well as the affidavit evidence on record appears to me that on the face of it there are material differences between the figures quoted on the charge sheets and those submitted by the parties. The respondents it appears did not have a direct answer on these variances.*** ***72.In my view i think the same smug of a hurried investigations and specifically after what was termed a media expose. Probably had the respondent done a forensic analysis of the accounts, for that is what this suit stands on, the mathematics would have been different.*** ***73.In the premises the same “does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed therein”. (supra).*** 1. I thus do hereby agree with the defence that the Prosecution’s reliance on inflated lost figures while ignoring its own evidence of the Taskforce analysis and flawed forensics mirrors the evidential gaps in this case. This charge therefore smacks of a hurried investigation done unprofessionally without the benefit of a forensic audit. As correctly submitted by the learned defence counsel, and in applying the case laws cited hereinabove, I do find that a prima facie case has not been established with regards to the 1st Count as there is no meeting of minds and secondly, no evidence of any intention of capacity to steal. Thirdly the charge herein appears meant to embarrass, punish and intimidate, and not for purposes of justice. A court of law has a duty to do justice and uphold the constitutional rights of the accused and such a charge cannot be entertained. **5.2 Counts II, III, and IV: Stealing c/s 268(1) as Read with 275 of the Penal Code** 1. The 1st and 2nd accused were charged with the offence of Stealing in these counts.In count 2, the 1st and 2nd accused were charged with the offence of stealing Kshs. 56, 512, 300/- from the Trust Account herein, while in count 3, the 1st accused was separately charge with stealing Kshs. 10,820,000/-, and in Count 4, the 2nd accused has been accused of stealing Kshs 2, 707, 000/- from the same account. 2. Section 268(1) of the Penal Code defines stealing as ‘***fraudulently and without claim of right takes anything capable of being stolen… with intent permanently to deprive…***’, while Section 275 continues as follows: ‘***Guilty of the felony termed theft and is liable… to imprisonment for three years.***’ Thus, for a prima facie case to be established, and in order to sustain a charge of theft, the prosecution must prove several key elements. Firstly, the property in question must be tangible and capable of being stolen. Secondly, the property must belong to another person or entity. Thirdly, there must be a fraudulent and dishonest taking or conversion of the property by the accused persons. Finally, the prosecution must establish that the accused persons intended to permanently deprive the owner of the property. This was the holding in the case of ***Wesah & 2 others v Republic (Criminal Appeal 134 of 2023) [2025] KEHC 1964 (KLR) (25 February 2025) (Judgment)*** 3. Whereas money is a tangible property that is capable of being stolen, and the funds allegedly stolen herein belonged to the students, I find that the prosecution’s case in these counts fails on the other 2 ingredients: fraudulent and dishonest taking or conversion of the funds herein by the accused persons, and that by so doing, the accused had a permanent intent to deprive. 4. Key relevant witnesses herein, including the bank official and the task force chairman confirmed that the funds that were withdrawn from the account were used for the program towards payment of fees, allowances, furniture for the secretariat, and visa fees. PW6 testified that all funds withdrawn were for operational expenditure. PW26 testified that Trustees paid fees directly to universities. PW138, the investigating officer, was on the other hand again unable to demonstrate how he arrived at the impugned figures and admitted not considering overpayments. Absence any forensic audit, the only money found to have been lost and unaccounted for is Kshs. 8,000,000/-. The task force did not find either of the accused persons herein to be responsible or culpable for the loss, but felt frustrated by the Principal Trustee who denied them access to the account. PW138, was however allowed access to the account and could still not explain where he got those figures he put in the charge sheet that he claims were stolen by the accused persons herein. 5. The 2nd Accused is in fact not a signatory to the Trust Account as alleged by PW138. I thus again do agree that this demonstrates the shoddy and careless investigations by PW138. The charges against the 2nd Accused are misplaced and speculative. On this, I do agree with the learned counsel for the defence that the counts for as long as they purport to show that the 2nd Accused, who is not a signatory to the impugned Trust Account, and was confirmed not to have received any payments from the bank, and further, no evidence of any money being channelled to his account, stole any money is plainly and recklessly wrong. I thus find no proof that either of the accused persons herein stole the amounts stated and I thus therefore hereby make a finding that no prima facie has been established in the 3 accounts as relates to the 1st and 2nd accused person charged therein. **5.3 Counts V, VI, VII & VIII: Abuse of Office - Section 101 R/W 102(A) Penal Code:** 1. In Count V, the 1st and 2nd accused were charged with the offence of Abuse of Office contrary to Section 101 as read with Section 102(A) of the Penal Code, Cap. 63 Laws of Kenya, where the particulars allege that the 1st Accused and 2nd Accused on 21/05/2021, at the same bank, jointly with others not before court, being persons employed in the public service, falsely misrepresented that the Uasin Gishu Overseas Education Trust Account was being opened for the Uasin Gishu County Government, an act which was prejudicial to the County Government of Uasin Gishu. 2. In Count VI, the 3rd accused has been charged with the same offence of Abuse of Office contrary to Section 101 as read with Section 102(a) of the Penal Code, Cap. 63 Laws of Kenya where the particulars allege that the 3rd Accused on diverse dates between 01/03/2021 and 31/03/2022 at Eldoret town within Uasin Gishu County, being the Governor of Uasin Gishu County arbitrarily entered into a Memorandum of Understanding between various Universities in Finland and Canada on behalf of Uasin Gishu County Government without resolution and approval by County Assembly of Uasin Gishu, an act which was prejudicial to the County Government of Uasin Gishu. 3. In Count VII the 3rd accused has further been charged with the offence of Abuse of Office contrary to Section 101 as read with Section 102(A) of the Penal Code, Cap. 63 Laws of Kenyawhere the particulars allege that the 3rd Accused on diverse dates between 01/03/2021 and 31/03/2022 at Eldoret town within Uasin Gishu County, being the Governor of Uasin Gishu County arbitrarily misrepresented that the County Government of Uasin Gishu was offering full scholarship to students to study in Finland and Canada, an act which was prejudicial to the students under the Uasin Gishu Education Trust Program. 4. Similarly in Count VIII the 3rd accused has been charged with the offence of Abuse of Office contrary to Section 101 as read with Section 102(a) of the Penal Code, Cap. 63 Laws of Kenya where the particulars allege that the 3rd Accused on diverse dates between 01/03/2021 and 31/03/2022 at Eldoret town within Uasin Gishu County, being the Governor of Uasin Gishu County arbitrarily seconded, Gishu county government staff to a private entity, namely Uasin Gishu Overseas Education Trust, thereby drawing salary from the county government of Uasin Gishu, an act which was prejudicial to the citizens of Uasin Gishu county. 5. Section 101(1) of the Penal Code defines the above offence as follows: ‘***Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another is guilty of a felony.’*** 6. The High Court in ***Koros v Republic (Criminal Appeal 32 of 2019) [2022] KEHC 10250 (KLR***), while interpreting the above provisions and he ingredients of the offence of Abuse of Office provided therein as follows: ***From the wording of Section 101(1) of the*** [***Penal Code***](https://kenyalaw.org/akn/ke/act/1948/81)***, four elements of the offence emerge: the accused must be an employee in public service; the accused in abuse of his authority acts or sanctions an act; such act or direction to act must be made arbitrarily; and the act must be prejudicial to the rights of another person. It is also important to point out that the offence created by Section 101(1) of the*** [***Penal Code***](https://kenyalaw.org/akn/ke/act/1948/81) ***is distinct and independent from the one established under Section 46 of the Anti-Corruption and Economic Crimes Act.*** ***For a conviction to arise under Section 101(1) of the*** [***Penal Code***](https://kenyalaw.org/akn/ke/act/1948/81)***, the prosecution ought to prove all the four elements of the offence. It is not disputed that the Appellant was an employee in the civil service as at the time when the offence is alleged to have been committed. It is also not disputed that he worked as a land registrar and was mandated to process and issue title deeds.*** 1. As regards the offence in Count V,Counsel for the defence submitted that there is no evidence that there was a misrepresentation of account. That PW79 testified that he received instructions from the 2nd Accused, and he also testified on oath that the trustees signed the trust deed in his presence. That on the other end, PW137 testified that the account domiciled at KCB was opened legally. 2. For the prosecutions, it was submitted that The Prosecution has established a clear case of Abuse of Office against the 1st and 2nd Accused persons. That at all material times, the 1st and 2nd Accused were employees of the Uasin Gishu County Government in their capacities as Deputy Director County Education Revolving fund and Chief Education Officer Revolving Fund respectively, as evidenced by their appointment letters produced by the IO as Exhibits 605 and 606. That the evidence of PW138 and various County officials demonstrated that the 1st and 2nd Accused persons utilized their positions and the County’s administrative infrastructure to facilitate a private Programme without any requisite legal framework. This is supported by the fact that there was no official letter from the County Government appointing Hillary Marrimoi to draft the Trust Deed as he was verbally instructed by 2nd accused person, nor was there any Cabinet or County Assembly approval for the program as evidenced by Exhibits 606 and 610. The Prosecution relies on lower court decision in ***Republic v. Nyanamba & 8 others [2020] KEMC 10 (KLR)***, where the court held that a public officer commits an abuse of office when they engage in acts that are prejudicial to the public interest by bypassing statutory financial and administrative procedures. That by using County employees and apparatus to promote a private enterprise that resulted in the loss of money the Accused persons acted arbitrarily and in total disregard of the law. That this unauthorized use of public office for private benefit, coupled with the disregard for the Public Finance Management Act, constitutes a formidable *prima facie* case. 3. With due respect to the prosecution counsel, I started this section of this judgment by citing and quoting ***Koros v Republic, supra***, which held that the offence of Abuse of Office created by Section 101(1) of the [Penal Code](https://kenyalaw.org/akn/ke/act/1948/81) is distinct and independent from the one established under Section 46 of the Anti-Corruption and Economic Crimes Act. Thus the lower court decision cited and relied on by the prosecution, i,e [***Republic v Nyanamba & 8 others [2020] KEMC 10 (KLR)***](https://kenyalaw.org/akn/ke/judgment/kemc/2020/10/eng%402020-09-03), does not apply to the offence herein given that it addressed charges of abuse of office under Section 46 of the [Anti-Corruption and Economic Crimes Act (ACECA)](https://www.sheriaplex.com/kenya-acts/569-section-101-of-penal-code-cap-63-abuse-of-office), mainly by evaluating whether public officials used their authority improperly to confer benefits. 4. Secondly, I have wondered why the prosecutions appear to always rely on the evidence of the investigation officer, PW138, whose evidence should be secondary and a summary of the investigations and evidence gathered which must be direct and relevant. Nevertheless, PW138 was cross-examined and was unable to demonstrate how the opening of a trust account was prejudicial to the program of the victims. It was indeed confirmed by several witnesses herein, including the chair of the task force that new foreign accounts were opened that continued to operate under the Trust, but with new signatories. 5. Count VI was on the issue of the MOUs signed without approval. On this the county officials who testified herein, including PW1, PW2 and PW3, the County Attorney, the County Secretary, etc confirmed that the MOU signed herein was a good idea for the benefits of the children of Uasin Gishu county, and none pointed an accusing finger at the 3rd accused person. The issues that cropped thereafter related to how the funds were managed and not the signing of the MOU. Thirdly, no proper representative of the County, which ought to be the complainant herein demonstrated any prejudice that the county suffered even remotely. Apart from the witnesses whos evidence I have summarised hereinabove, most crucial witnesses from the county failed to attend court to testify and possibly link any of the accused persons herein with the offence of abuse of office. Those who came were so evasive and claimed that they knew nothing about the program herein, yet some had children who had benefitted and were stydying abroad. Of crucial concern is the fact that even the CECM for Education also claimed that he did not know anything about the program, while videos were shown in court of him advocating for the program. 6. PW6 who appeared candid, however testified that MOU’s were signed with several universities, which necessitated the amendment of the Uasin Gishu County Education Act, amendments that the Assembly approved (PW6). 7. Learned Counsel for the defence has submitted that no prima facie prejudice was demonstrated as it was confirmed that the programme benefited students. The case of ***Wanga & another v Republic (Criminal Appeal 64 of 2019) [2022] KEHC 335 (KLR),*** held that the prosecution having failed to prove Kenya Medical suffered prejudice and having failed to produce in evidence the contract awarded to RAM there was no basis of convicting the 2nd appellant therein. That the prosecution failed to prove its case against the 2nd appellant. I similarly find herein that there was no basis to charge the 3rd accused with the offence of abuse of office on account of the MOUs given there was no evidence tendered to prove that the County suffered any prejudice. 8. As to Count VII, the key element therein was scholarship misrepresentation. In this count I completely agree with the Learned defence counsel that the production of PEXH No. 26, the advert by the count that the victims herein read and acted on diminished the relevance of this count once the same was produced as an Exhibit. The advertisement produced by the prosecution was clear that the program was not a scholarship. Further to the above, all the victims who testified had paid some money to the trust account, meaning all of them understood that it was a paid program and not a scholarship, as alleged. The victims responded to the adverts that referred them to the 11th floor KVDA office which ran the program and were duly guided on the payment’s mode. There were further sensitisation meetings held at Home craft among other venues that duly sensitised the parents and candidates on the payment’s mode. Clearly there cannot be misrepresentations that this was a free scholarship grant by the County. 9. Furthermore, PW138, was unable to demonstrate misrepresentation or the usage of the word ‘scholarship’. PW26 testified that there was no free education in Finland for non-citizens. He stressed that parents were informed of fee payment. 10. As to Count VII, I find no evidence tendered to suggest that the 3rd accused seconded county staff to the Trust herein. it was unanimous from all the witnesses herein that the program herein was being operated at the departmental level and that even the County Secretary was not directly involved with the operation. The county secretary testified in cout as PW134 and confirmed that the role of secondment of staff was his, and not the 3rd acacused’s. In this case, however, the scant evidence adduced herein, proved that the secondment of the staff from the education department was done by the Chief officer in the department who also doubled up as the Principal Trustee. 11. Furthermore, the appointment letters for the 1st and 2nd accused persons produced herein as PEXH Nos 605 and 606, indicates that the letters were signed by the County Public Service Board and, for the 2nd Accused, by the Chief Officer. There is no where indicated that the 3rd accused did the appointments or secondments. This count also therefore fails for lack of proof. 12. Having analysed all the relevant evidence and facts with regards to the counts in this section, i do find no prima facie case established with regards to Counts V, VI, VII and VIII. The counts thus fail for reasons stated in the analysis hereinabove. **5.4 In Counts IX and X: Forgery - Sections 345, 347(d)(ii) R/W 349 Penal Code** 1. In these counts the 1st and 2nd accused were charged with the offences on Forgery c/s 345, 347 (d)(ii) as read with section 349 of the Penal Code. It is alleged that that on 06/05/2021 at unknown place within the Republic of Kenya, the 2 accused persons jointly with others not before court forged a document, namely a Declaration Trust dated 06/05/2021 in respect of Uasin Gishu Overseas Education Trust, purporting it to be a genuine document signed by Dr Joel Cheruiyot Chelule, Dr. Susan Jepkosgei Keino and Loice Jelimo Cheruiyot with intent to defraud Uasin Gishu Overseas Education Trust. 2. While in Count IX, it is alleged that, on 23/04/2021 at unknown place within the Republic of Kenya, the 2 accused persons jointly with others not before court forged a document, namely a Minutes of Uasin Gishu Overseas Education Trust purporting them to be genuine document signed by Dr. Joel Cheruiyot Chelule with intent to defraud Uasin Gishu Overseas Education Trust. 3. The offence of forgery is provided for in section 345 of the Penal Code as making as a false document with intent to defraud. Section 349 imposes liability for such acts. The prosecution must therefore show false making and intent (Section 347). 4. First of all, it was clear from the evidence of that the 1st accused had no role in the making of the deed and the minutes. No one saw him make the minutes and I straight away find no evidence linking him to the charges herein except possibly the fact that he participated in uttering the minutes to the bank official during the opening of the Trust Account. He was however not alone an that fact alone cannot therefore be used to infer that he forged some signatures and minutes as alleged herein. The forgeries could have well been done by the co-signatories given that the Principal Trustee, his boss, was present with him during the uttering of the documents. Finally, the offence of uttering false documents was not brought against him, and given that the offence, though cognate to the offence of forgery, cannot be said to be minor or lesser that the offence of forgery. This is because the provisions of sections 349 and 353 of the Penal Code provides for the same sentence for the 2 offences. Therefore, the provisions for conviction of offences other than those charged as provided under sections 179 and 191 of the Criminal Procedure Code becomes unavailable against the 1st accused person herein. 5. For the 2nd accused person, there is evidence that he participated in the formulation of the Trust Deed. There is however no evidence to prove that he committed any forgery. His handwriting was not examined and there was therefore no evidence linking him to any forgeries herein. 6. I further agree with the learned counsel for the defence that PW135’s report is unreliable as it is based on photocopies, no bias blinding, and no international standards. Having stated so, was the reliance on the evidence of the document examiner sufficient? 7. The accused persons in their submissions think otherwise. The document examiner found that the signatures in the Trust Deed and the minutes formulating the Trust were not for PW1, PW2 and PW3. In fact, the witnesses actively, but cunningly, denied knowledge of the existence of the Trust. Their demeanours while testifying herein exhibited lack of candour as there is evidence that they were aware of the existence of the Trust and had just demanded to be removed as Trustees. Further it was confirmed that some of them were active beneficiaries of the Trust Funds as they had relatives who travelled through the trust and one of them actually benefited by joining one of the universities that was involved in the program herein as a lecturer in Finland. This lack of candour made the court to doubt their credibility and that is the reason why this court opted to heavily rely on the evidence of PW6, who exhibited immense candour, going as far as admitting his involvement in the transactions herein. 8. As aforestated, there was no eye witness to the offence. That notwithstanding, the parties herein agree that the document which was examined by the expert was not an original but a photocopy. No plausible explanation was offered by the prosecution why the original was not submitted to the forensic examiner. The examiner went into detail on how he arrived at his conclusion and the fact that essentially, he did not explain his methodologies in the report. No explanation was given why the photocopy was used by the examiner. Ideally and as provided under section 67 of the Evidence Act Cap 80 Laws of Kenya all documentary evidence ought to be proved by primary evidence. Section 68 thereof provides instance when secondary evidence could be used. From the evidence as presented there is no reason why the document examiner did not use the original documents. It was confirmed that the original documents were available. Though the document examiner conceded that it would have better if he used the originals, the issue of pen-press cannot come out clearly and accurately when a photocopy, which is a picture of the document, is used. How can one determine the issue of pen press in a document which I s basically a picture? In a situation such as this it is prudent to always submit primary evidence. This court will however not assume that there could be no difference between the original as well as a photocopy. I do believe that the legislature had every reason to indicate that when and where to use secondary evidence. The doubtful evidence of the document examiner, the non-involvement of the 1st accused and having doubted the credibility of the witnesses who alleged that their signatures were forged, further makes me find no prima facie case disclosed with regards to counts 1X and X. 9. In the case of **Republic Vs Podmore (1930) 46T LR 365** relied by the court in **Samson Tela Akute Vs Republic (2006) eKLR,** the court stated as hereunder. **…let me say a word about handwriting experts. Let everyone be treated with proper respect, but the evidence of handwriting experts is sometimes misunderstood. A handwriting expert is not a person who tells you, this is the handwriting of such and such a man. He is the person who habituated to the examination of handwriting, practised in the task of making minute examination of handwriting, directs the attention of others to things which he suggests are similarities. That and no more than that, is his legitimate province….** **6.0. Conclusion** 1. In making the final findings herein, let me refer to the case of ***Joan Chebichii Sawe vs Republic [2003] eKLR***, where the Court of Appeal expressed itself thus: ***'The suspicion may be strong, but this is a game with clear and settled rules of engagement. The prosecution must prove the case against an accused beyond any reasonable doubt'***. 2. I also wish to repeat and therefore adopt the position of the Supreme Court of India in the case of ***State of Punjab vs Jagir Singh [1974] 3 SCC 277*** that: ***A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged...In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts...*** 1. I find that the prosecution has failed to establish a prima facie case in any of the charges herein. The main reason for the failure of proof was that most of the witnesses herein were victims whose prayers was for refund. No evidence was led to link the accused persons herein with any criminal culpability. The administrative mishaps, in themselves, are not sufficient to lead to a conviction unless sound evidence as outlined hereinabove are proved to the required standards. Refunds can be sought in a civil forum as the main purpose of a criminal trial is to punish an offender and not to collect debt. Let also comment that most crucial witnesses failed to turn up, while those who turned up were beneficiaries of the scheme and therefore were not of much help in this case. 2. With the failure by the prosecutions due to lack of sufficient evidence, it shall be of no use to put the accused herein on their defences as that shall mean shifting the onus of proving their innocence or otherwise to them. In arriving at this finding, the court does not necessarily make a definite finding that the accused person are factually innocent of the offences with which they are charged. It simply makes a finding that the prosecution has failed to prove their guilt and they are therefore constitutionally deemed to be innocent. That is what our law provides. While some people may be unhappy with the presumption of innocence, it is a time-tested principle in all jurisdictions which apply democratic principles and unless we opt to go the dictatorship mob way, we have no option but to endure it. 3. Since the Constitution of Kenya prescribes the rule of law as a binding national value, then the law is paramount and as was appreciated in ***Dr. Christopher Ndarati Murungaru vs AG and Another, Civil Application No. NAI. 43 of 2006 (24/2006)***, at page 12: ***... [t]he Constitution of the Republic is a reflection of the supreme public interest and its provisions must be upheld by the courts, sometimes even to the annoyance of the public...We have said before and we will repeat it. The Kenyan nation has chosen the path of democracy: our Constitution itself talks of what is justifiable in a democratic society. Democracy is often an inefficient and at times messy system. A dictatorship, on the other hand, might be quite efficient and less messy. In dictatorship, we could simply round up all these persons we suspect to be involved in corruption and economic crimes and simply lock them up without much ado. That is not the path Kenya has taken. It has opted for the rule of law and the rule of law implies due process. The courts must stick to that path even if the public may in any particular case want a contrary thing and even if those who are mighty and powerful might ignore the court's decision*** 1. Bagmall, J. in ***Crowcher vs Crowcher [1972] 1 WLR 425, 430*** stated that: '***...[t]he only justice that can be attained by mortals, who are fallible and are not omniscient is justice according to the law: the justice that flows from the application of sure and settled principles to prove or admitted facts’.*** 2. I thus do hereby dismiss all the charges against the accused person pursuant to the provisions of section 210 of the Criminal Procedure Code and consequently acquit all of them of the offences of Conspiracy to Commit a felony, Stealing, Abuse of Office and Forgery contrary to sections 393,268(1) as red with section 275, 101 as read with 102(a), 345 and 347(d) (ii), all of the Penal Code, respectively. Their cash bails deposited herein be refunded back to the depositors. 3. Before I pen off, on behalf of Nakuru Law Courts, I would wish to thank all those who were involved in one way or the other in these proceedings. All the witnesses who travelled from different places of the Republic, mostly Eldoret, enriched these proceedings by their testimonies. The legal counsel for both sides, defence, prosecutions and the victims, undoubtedly contributed immensely towards the jurisprudence that has been applied herein. The accused persons never missed any proceedings having to travel from far given that the offences herein were alleged not to have been committed within the locality of the court. The court assistants and staff performed crucial roles of keeping the records and evidence of these proceedings in a secure and safe manner. The court orderlies maintained law and order during the proceedings. The media has been with us in these proceeedings right from outset till the end. They came in large number as this was a public intrest case and I am glad that their reporting was fair and accuratly reflected these proceedings and no part of these proceedings was misreported or misrepresented. Finally, and becase I am not an atheist, to the Almight God, for having kept us alive and safe till the conclusion of the trial heren. **DATED, SIGNED AND DELIVERED AT NAKURU IN OPEN COURT THIS\_23rd\_DAY OF\_\_\_July\_\_,2026** **ALOYCE-PETER-NDEGE** **SENIOR PRINCIPAL MAGISTRATE** **In the presence of;** **Court interpreter: Wanyoike** **Prosecution Counsel: Macharia/ Smith** **Defence Counsel: Kibet/ Chebon** **Victim’s Counsel: n/a** **Any Victim Present: n/a** 1. The adverts was produced as PEXH No. 26 [↑](#footnote-ref-1) 2. Produced as PEXH. 4 [↑](#footnote-ref-2) 3. PW1, PW2 and PW3 confirmed to have received some allowances to attend a meeting; while PW6 confirmed withdrawing Kshs. 400,000/-to purchase furniture on 01/10/2022 and Kshs. 120,000/- for travel allowances for the trustees including PW1, PW2, the 1st Accused among other Trustees (Kshs. 36,000 to PW1 s the chair, and Kshs. 34,000/- to each of the other Trustees). The bank statement withdrawing the money was signed by the Principal Trustee who was also the Chief Officer and was produced herein as PEXH. NO.1 [↑](#footnote-ref-3) 4. Refer to his evidence at page 740 and 741 of the handwritten proceedings where he confirmed that so far 823 students have since travelled to universities in Canada and Finland. [↑](#footnote-ref-4) 5. PEXH. No.178 [↑](#footnote-ref-5) 6. PEXH. No. 179 [↑](#footnote-ref-6) 7. PEXH. No. 180 [↑](#footnote-ref-7) 8. PEXH. No. 405 [↑](#footnote-ref-8) 9. PEXH. No. 436 [↑](#footnote-ref-9) 10. PEXH. No. 437 [↑](#footnote-ref-10) 11. PEXH. No. 438 [↑](#footnote-ref-11) 12. PEXH No. 144 [↑](#footnote-ref-12) 13. PEXH. No. 145 [↑](#footnote-ref-13) 14. PEXH. No.512 [↑](#footnote-ref-14) 15. PEXH. No. 511 [↑](#footnote-ref-15) 16. PEXH. No. 522 [↑](#footnote-ref-16) 17. PEXH. Nos. 521 a -c [↑](#footnote-ref-17) 18. PEXH. Nos 520 a-c [↑](#footnote-ref-18) 19. PEXH. No. 2 [↑](#footnote-ref-19) 20. PEXH. No. 324 [↑](#footnote-ref-20) 21. Cap. 75, Laws of Kenya [↑](#footnote-ref-21) 22. *Ibid* [↑](#footnote-ref-22) 23. Cited by the learned counsel for the defence [↑](#footnote-ref-23) 24. See Justice Mutuku's decision in REPUBLIC VRS ABDI IBRAHIM OWL [2013] eKLR [↑](#footnote-ref-24) 25. Cited by the learned counsel for the 1st accused [↑](#footnote-ref-25) 26. Ibid [↑](#footnote-ref-26) 27. See also the Court of Appeal's decision (S. E. O. Bosire, E. O. O'kubasu and J. W. Onyango Otieno, JJ.) in ANTHONY NJUE NJERU VRS REPUBLIC [2006] eKLR [↑](#footnote-ref-27)