https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/659

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT BUNGOMA** **CRIMINAL CASE NO. E081 OF 2025** **REPUBLIC…………………………………………………………………………………...DPP** **VERSUS** **TOBIAS WEKESA SINGILA & ELIZABETH NASIMIYU ALIAS SHARON…………………………………………………………………ACCUSED PERSONS** **JUDGMENT** 1. Tobias Wekesa Singila and Elizabeth Nasimiyu alias Sharon (“the Accused Persons”) were charged with the offence of personation contrary to section 382 of the Penal Code whose particulars are that: *On the 27th day of January 2025 at 1000hrs at Kanduyi Constituency CDF offices in Bungoma South Sub County within Bungoma County jointly with others not before court with intent to defraud falsely represented yourselves to be Ethics and Anti-Corruption Commission (EACC) officers attached at Kakamega and Nairobi regions respectively; a fact you knew to be false* 1. The Accused Persons denied the charge facing them. Consequently, the prosecution set down this matter for hearing for them to prove their case against the Accused Persons beyond reasonable doubt. 2. A summary of the evidence adduced by the prosecution and the defence is set out below. **Prosecution’s Case** 1. **PW1 Rodgers Munyasia Wanyonyi** is the Kanduyi Constituency office manager. He recalled that on the morning of 27th January 2025, the office administrator (PW2) informed him that EACC officers were coming to the office to interrogate her over some issues. He told PW2 to refer those EACC officers to him since she was a junior staff. 2. He later met the Accused Persons who introduced themselvesas Tobias Singila from EACC Kakamega and Sharon Onyango from EACC Nairobi. He demanded identification documents from the Accused Persons but the Accused Persons failed to produce their identification documents. 3. His inquiries from EACC Bungoma office revealed that the Accused Persons were not EACC employees. This led to the Accused Person’s arrest when the Accused Persons opened up that they had been sent by Sifuna to intimidate PW2 for her to part with Kshs. 150,000/=. 4. He added in cross-examination that after the Accused Person’s arrest, the 1st Accused Person tried luring Sifuna for arrest by informing him that they had been given Kshs. 150,000/= after accomplishing their mission. 5. **PW2 Joyce Mumelo** is the office administrator at Kanduyi Constituency office. Her testimony was that on 29th December 2024, she saw a post from Meshack Sifuna posted in the Marakaru Forum WhatsApp group alleging that she was obtaining 5% bribes from teachers arising from CDF projects. She reported the matter to EACC Bungoma. 6. She also stated that on 25th January 2025, she received a call from the 1st Accused Person who told him that he had been sent by Meshack Sifuna to threaten her as an EACC officer for them to obtain money from her. 7. The Accused Persons visited her in the office on 27th January 2025 where they introduced themselves as Tobias from EACC Kakamega and Sharon Anyango from EACC Nairobi. She led the Accused Persons to PW1, where the Accused Persons were later arrested. 8. In cross-examination, she stated that whereas the 1st Accused Person had earlier on called her and informed her that Sifuna had sent them to impersonate EACC officers, the Accused Persons remained adamant that they were EACC officers on the date they visited the Kanduyi Constituency office. 9. **PW3 David Charles Kharinda Natembeya** is the Head of Institution at Kimkung RC Comprehensive School. He testified that sometime in late 2024, an activist known to him as Sifuna called him, questioning him about CDF procurement procedures. He was later called by DCI officers who informed him that people had been arrested in connection with the CDF project in his school. 10. **PW4 Boaz Walela** is the Head of Institution at Mungeti Primary School. He recalled that someone known to him as Sifuna visited his school and sought information about the Kshs. 1.2M CDF project in his school. He referred him to the Kanduyi CDF office. He was later called to the DCI office, Bungoma, to record a statement over this case. 11. **PW4 No. 89XXX CPL Daniel Marwa** investigated this case. His testimony was that he was on duty at Bungoma Police Station on 27th January 2025 when the OCS instructed him to proceed to the Kanduyi CDF office to deal with a problem. He proceeded to the Kanduyi CDF office while in the company of PC (W) Maurine, 12. The rest of his testimony was a regurgitation of the testimony by PW1 and PW2. He interrogated the Accused Persons when he learned that the 1st Accused Person was a third-year student pursuing a BSC degree in Education at Kibabii University, and that the 2nd Accused Person was a graduate of Kibabii University. 13. In cross-examination, he stated that Sifuna was the mastermind of the personation scheme. He added that PW2 was aware that the Accused Persons were going to meet her pretending to be EACC officers. He also stated that the Accused Persons did not derive a benefit from the personation. **Accused Persons’ Case** 1. Upon closure of the prosecution's case, this court made a finding that the Accused Persons had a case to answer. The Accused Persons were consequently placed on their defence when they elected to give sworn testimony. 2. The 1st Accused Person recalled that someone who introduced himself as Sifuna called him and informed him that Shilo had given him his phone number. Sifuna gave him PW2’s phone number and requested him to book an appointment with PW2 for them to discuss with her about incomplete CDF projects for them to obtain money from her by pretending that they were EACC officers. He called PW2 and told her as much. He added that he met PW2 who told him to find out from Sifuna the identity of the person leading CDF information from the Kanduyi CDF office. 3. He further stated that he met Sifuna and Shilo on 27th January 2025 at around 0900hrs at Kanduyi market when he was introduced to the 2nd Accused Person. They proceeded with the 2nd Accused Person to the Kanduyi CDF office where they were arrested for personating EACC officers. He denied committing the offence. 4. He admitted in cross-examination that he stated in his police statement that he had personated an EACC officer at Kanduyi CDF office. He added that no one forced him to record his statement with the police. He also admitted that he did not report to the police when Sifuna requested him to personate EACC officers. 5. The 2nd Accused Person denied committing the offence. She recalled that she met Sifuna and Shilo on 26th January 2025 at Kibabii when Shilo told her that they were looking for a media person to accompany them to Kanduyi CDF office to follow up on corruption cases involving two schools. 6. She met Shilo, Sifuna, and the 1st Accused Person in Kanduyi on 27th January 2025 when they agreed to go to the Kanduyi CDF office. She accompanied the 1st Accused Person to the Kanduyi CDF office, where they met PW2 and other men who referred to them as EACC officers. They were later arrested for personating EACC officers. She denied deriving a benefit from the personation. She added that the personation objective was not achieved. 7. She conceded in cross-examination that the statement she recorded after her arrest showed that she admitted personating an EACC officer on the date of the incident. **ANALYSIS AND DETERMINATION** 1. This court has carefully given due regard to the evidence on record. This court proceeds to determine whether or not the prosecution proved beyond reasonable doubt that the Accused Persons committed the offence herein. 2. The offence of personation is set out under section 382 (1) of the Penal Code in the following terms: *382 (1.) Any person who, with intent to defraud any person, falsely represents himself to be some other person, living or dead, is guilty of a misdemeanor* 1. This court notes that the Accused Person was charged under section 382 of the Penal Code instead of section 382 (1) of the Penal Code. This court takes the view that the omission did not prejudice the Accused Persons in any way since the particulars of the charge were sufficient to adequately give notice to the Accused Persons that they were facing a charge of personating EACC officers. It thus follows that the said omission did not prevent the Accused Persons from sufficiently mounting their defence against the charge facing them. 2. This court’s reading of section 382(1) of the Penal Code reproduced above is that the prosecution secures a conviction for the offence of personation where they lead evidence to prove beyond reasonable doubt that an Accused Person falsely presented himself to be another person with an intention of defrauding another person ( (See **Kikwau v Republic (Criminal Appeal 32 of 2024) [2024] KEHC 14363 (KLR)**). 3. The evidence led by the prosecution shows that on the date of the incident, the Accused Persons personated EACC officers at Kanduyi CDF offices. Whereas the Accused Persons appeared to suggest that, given that the 1st Accused Person had informed PW2 about their intended visit, they admitted during their defence hearing that the statements they recorded after their arrests showed that they admitted personating EACC officers on the date of the incident. 4. It is noteworthy that despite the Accused Persons attempting to disown their police statements during their defence hearing, they never cross-examined the investigating officer (PW4) on the authenticity of the contents of their police statements. This shows that the Accused Persons’ attempt to disown their police statements during their defence hearing was an afterthought. 5. Even if this court was to believe that the Accused Persons did not intend to personate EACC officers on the date of the incident and that PW2 was aware of their visit, this court wonders why the 1st Accused Person, while very much aware of the scheme hatched by Sifuna to personate EACC officers for the purposes of obtaining Kshs. 150,000/= from the Kanduyi CDF office, failed to dissociate himself from that scheme when he had an option to. The 1st Accused Person instead chose to accompany the 2nd Accused Person to the Kanduyi CDF office to execute the extortion scheme hatched by Sifuna after a briefing by Sifuna and Shilo. 6. Clearly, the Accused Persons' visit to the Kanduyi CDF office on the date of the incident was not a visit by public-spirited citizens interested in finding out any alleged corruption malpractices arising from Kanduyi CDF projects or to share information with PW2 on Sifuna’s scheme to extort the Kanduyi CDF office officials. 7. The foregoing shows that the prosecution proved beyond reasonable doubt that the Accused Persons pretended to be EACC officers on the date of the incident. 8. Turning to the ingredient whether the Accused Persons pretended to be EACC officers with an intention to defraud another person, the Accused Persons appeared to suggest in their defence that they did not commit the offence herein, given that they did not derive any benefit from the incident. 9. It is evident from the statement of the offence that where a person pretends to be another person, the offence of personation is completed where such a person intends to defraud another person from that pretense. It follows that the question of whether an Accused Person obtained a benefit from the pretense is not an ingredient of the offence herein. 10. The foregoing begs the question of whether the Accused Person had an intention to defraud any person on the date of the incident. 11. PW1 testified that after the Accused Persons were arrested on the date of the incident, the 1st Accused Person tried to lure Sifuna for arrest by lying to him that they had been paid Kshs. 150,000/= after completing their mission. PW2 corroborated PW1’s testimony about the Accused Persons’ intention to defraud them by stating that the 1st Accused Person had informed her over a call that Sifuna had instructed him to threaten her as an EACC officer for them to obtain money from her. 12. The Accused Persons did not impeach the evidence led by PW1 and PW2 on their intention to defraud the Kanduyi CDF officials. That evidence remained cogent even after cross-examination. 13. In the circumstances, this court finds and holds that the prosecution proved beyond reasonable doubt that the Accused Persons pretended to be EACC officers on the date of the incident with the intention to defraud Kanduyi CDF office officials. **The Accused Persons’ Defence** 1. This court has duly considered the Accused Persons’ defence in its entirety. The said defence was a mere denial which did not cast any reasonable doubt on the prosecution’s case. The same is dismissed in its entirety. **DETERMINATION** 1. The upshot of the foregoing is that the Accused Persons are convicted under section 215 of the Criminal Procedure Code for the offence of personation contrary to section 382 (1) of the Penal Code. **Judgment read, signed, and delivered in open Court at Bungoma, this 29th day of July 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Wanjala for the Accused Persons Mr. Maroro for ODPP Accused Persons C/A: Mr. Rioba