[2022] KEHC 13795 (KLR)

Waluke & 2 others v Republic (Anti-Corruption and Economic Crimes Appeal 07, 9 & 10 of 2020 & Anti-corruption and Economic Crimes Miscellaneous 21 of 2020 (Consolidated)) [2022] KEHC 13795 (KLR) (Anti-Corruption and Economic Crimes) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13795 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Appeal 07, 9 & 10 of 2020 & Anti-corruption and Economic Crimes Miscellaneous 21 of 2020 (Consolidated)

EN Maina, J

October 6, 2022

Between

Hon. John Koyi Waluke

1st Appellant

Grace Sarapayi Wakhungu

2nd Appellant

General Conractors Ltd

3rd Appellant

and

Republic

Respondent

(Appeal from the conviction and sentence by the Milimani Chief Magistrate Court (Hon. Elizabeth Juma - C.M.) in Anti-Corruption Case No. 31 of 2018)

Judgment

Background 1. By these consolidated appeals, John Koyi Waluke, Grace Sarapay Wakhungu and Erad Supplies Limited (hereinafter the 1st, 2nd and 3rd Appellants respectively), challenge their conviction and subsequent sentencing by the trial court in Milimani Anti-Corruption Chief Magistrate’s Court ACC No 31 of 18. In the trial court the 1st Appellant was the 2nd accused, the 2nd Appellant the 1st accused while the 3rd Appellant was the 3rd accused.

2. The Appellants were charged with various corruption-related offences stemming from an Award of a tender to supply 40,000 metric tonnes of white maize to the National Cereals and Produce Board ('the NCPB') awarded to the 3rd Appellant, which resulted in a contract dated August 26, 2004. A dispute arose between the 3rd Appellant and the NCPB on the latter’s alleged breach of contract by failing to provide a Letter of Credit to the 3rd Appellant, which dispute was referred to arbitration.

3. In an Arbitral Award delivered on July 7, 2009, the 3rd Appellant was successful and was awarded a sum of USD 3,106,000 which was made up of USD 1,960,000 for loss of profit and USD 1,146,000 for storage charges. The 3rd Appellant was also awarded interest on the total sum at the rate of 12% per annum from October 27, 2004 until payment in full.

4. The enforcement of the Award resulted in the garnishment of the NCPB’s bank accounts held at National Bank of Kenya, Kenya Commercial Bank and Cooperative Bank in the sum of Kshs 13,364,671. 40, Kshs 297,086,505 and USD 24,032 respectively, which amounts were paid to the 3rd Appellant through it’s advocates’ bank accounts. It then allegedly emerged that the evidence relied upon by the 3rd Appellant and produced by the 2nd Appellant in the arbitral proceedings, to wit, invoice number 12215-CF-Erad upon which the storage charges were awarded was a false document. The subsequent payment by NCPB of approximately Kshs 313,364,671/-, being part of the amount awarded to the 3rd Appellant in the Award led to the prosecution of the three Appellants at the trial court. The first and 2nd Appellants were directors of the 3rd Appellant.

5. At the end of the trial and by a Judgement delivered on June 22, 2020, the 1st and 3rd Appellants were acquitted in Count 1 (under Section 215 of the Criminal Procedure Code) but were found guilty and convicted in Counts 3, 4 and 5. The 2nd Appellant was convicted on all Counts 1,2,3, 4 and 5. The Appellants were then sentenced as follows;a)Count 1 – 1st accused a fine of Kshs 100,000/- in default to serve one (1) year imprisonmentb)Count 2 – 1st accused fined Kshs 100,000/- in default serve one (1) year imprisonment.c)Count 3 under Section 48(1)(a):(i)1st accused fined Kshs 500,000/- in default serve 3 years imprisonment.(ii)2nd accused fined Kshs 500,000/- in default serve 3 years imprisonment.(iii)3rd accused fined Kshs 500,000/- to be paid by the 1st and 2nd accused persons(applicants) in default to serve 3 years imprisonment.d)Count 3 under Section 48(2)(a) being double the amount lost by NCPB-(i)1st accused fined Kshs 594,175,125 in default serve 7 years imprisonment.(ii)2nd accused fined Kshs 594,175,125 in default serve 7 years imprisonment.(iii)3rd accused – fined Kshs 594,175,125 and that, the 1st and 2nd accused persons (Applicants) each to pay in default each of them to serve 7 years imprisonment.e)Count 4 under Section 48(1)(a)-(i)1st accused fined Kshs 500,000/- in default 3 years imprisonment.(ii)2nd accused fined Kshs 500,000/- in default 3 years imprisonment.(iii)3rd accused fined Kshs 500,000/- and that the 1st and 2nd accused each to pay in default each to serve 3 years imprisonment.f)Count 4 under Section 48(2) (a) a mandatory fine two times the amount of loss suffered by the complainant NCPB amounting to Kshs 13,364,671. 40 -(i)1st accused – fined Kshs 26,729,342. 80 in default 7 years imprisonment.(ii)2nd accused fined Kshs 26,729,342. 80 in default 7 years imprisonment.(iii)3rd accused – fined Kshs 26,729,342 to be paid by the 1st and 2nd accused each in default each of the accused to serve 7 years imprisonment.g)Count 5 under Section 48(1)(a)-(i)1st accused fined Kshs 500,000/- in default 3 years imprisonment.(ii)2nd accused fined Kshs 500,000/- in default 3 years imprisonment.(iii)3rd accused fined Kshs 500,000/- to be paid by the 1st and 2nd accused each in default each to serve 7 years imprisonment.h)Count 5 under Section 48(2)(a) a mandatory fine for two times of the quantifiable loss of USD 24,032-(i)1st accused (2nd Appellant) fined USD 48,064 in default 7 years imprisonment.(ii)2nd accused fined USD 48,064 in default 7 years imprisonment.(iii)3rd accused fined USD 48,064 to be paid by the 1st and 2nd accused (Appellants) in default each to serve 7 years imprisonment. The fine imposed in terms of US Dollars to be paid in Kenya shillings at the prevailing market rates.i)Count 5 under Section 48(2)(b) being fine double the amount benefitted.(i)1st accused fined Kshs 80,000,000/- in default to serve 7 years imprisonment.(ii)2nd accused fined Kshs 100,000,000/- in default to serve 7 years imprisonment.

The Appeal 6. The 1st Appellant filed a Petition of Appeal dated June 29, 2020 and a Supplementary Petition of Appeal dated October 21, 2020 while the 2nd and 3rd Appellants filed Petitions of Appeal dated July 7, 2020 and July 6, 2020 respectively.

7. The Appellants collectively challenge their conviction and sentence on grounds that:i.The learned trial magistrate erred in law and fact in ignoring a pertinent, admitted and common ground that each of the payments that formed the subject matter of the charges in this matter were premised on an arbitration award, that was confirmed by the High Court and pursuant to Garnishee Orders of the High Court which facts negated the theory by the prosecution, that such payment made pursuant to and in execution of an order of a Superior Court, could be held by a Magistrate's/ Subordinate Court to be 'fraudulent' particularly where there is no order varying and/or setting aside the said superior court order.ii.The learned trial magistrate erred in law and fact in proceeding with the proceedings before her as if she was sitting on appeal against the arbitration award and the subsequent High Court proceedings confirming the award and authorizing execution of the High Court decree.iii.The learned trial magistrate having appreciated that out of the various limbs of the arbitration award, only one had been brought into question before her, namely, the claim for storage charges erred in law and fact in reaching the conclusion that the approximately Ksh 314,000,000 that was the subject matter of the trial before her out of the cumulative claim of approximately Ksh 600,000,000, was on account of storage charges, and not lost profits, interests and costs of litigation which were distinct and separate awards by the arbitrator and duly confirmed by the High Court.iv.The learned trial magistrate erred in law and fact in convicting the appellant herein on counts 3, 4, and 5 of the charge sheet without any evidence that the appellant herein (2nd accused) had received any of the monies specified in the said counts of the charge sheet.v.The learned trial magistrate erred in law and fact in relying on the most incredible evidence of one Freddy Chetty (PW 22) to form an adverse inference against the accused and in the process, unlawfully shifted the burden of proof to the appellant.vi.The learned trial magistrate erred in law and fact when she ignored crucial evidence exculpating the appellant from any criminal enterprise.vii.The learned trial magistrate erred in law and fact when she relied on untested, prejudicial evidence of unverified remarks from the arbitration proceedings to hold the 2nd accused criminally liable.viii.The learned trial magistrate erred in law and fact in failing to make an adverse inference against the prosecution for failure to call an admittedly crucial witness, namely, Mr Alfred Maynard.ix.The learned trial magistrate erred in law and fact when she misapprehended and misapplied the provisions of Section 48(1) (b) of the Anti-Corruption and Economic Crimes Act with the consequence that she meted out punishment against the appellant that was plainly unlawful.x.The learned trial magistrate erred in law and fact in ignoring ample and time-tested principles of criminal trials such as burden of proof, standard of proof and principles of sentencing.xi.The Trial Court convicted the Appellants in the absence of mens rea.xii.The Trial Court erred in law and in fact by shifting the burden of proof to the accused persons in a criminal trial.xiii.The Trial Court erred in law and fact by finding that the elements of uttering a false document contrary to sections under sections 353 read with section 356 had been established against the 2nd Appellant.xiv.The Trial Court erred in law and fact by finding that the elements of perjury under section 108 (1) read with section 110 of the Penal Code had been established against the 2nd Appellant.xv.The Trial Court erred in law and fact by finding that the elements of fraudulent acquisition of public property contrary to section 45 read with section 48 of the Ant-Corruption and Economic Crimes Act, 2003 had been established.xvi.The Trial Court erred in law and in fact by finding that Jacob Juma was not an official of the 3rd accused under section 23 of the Penal Code.xvii.The Trial Court erred in law and in fact by finding that Jacob Juma did not receive a sum of Kshs 113,000,000/= from the total sum of money paid to the 3rd Accused.xviii.In the absence of evidence from a forensic document examiner, the trial court erred in law and in fact by finding that exhibit No 43 was not a genuine document.xix.The trial court misdirected itself on the facts to the extent of finding that the Appellant commenced the process of importation of maize without a letter of credit.xx.The trial court erred in law and in fact by finding the 2nd Appellant did not follow the right sequence of events.xxi.The trial court erred in law and in fact by finding that the accused persons had raised a false claim of storage charges.xxii.The trial court erred in law and in fact by finding that the Appellant had given up 100% of their profit in the business.xxiii.The trial court erred in law and in fact by failing to take into account mitigating factors when sentencing the Appellants.xxiv.The trial court erred in law and in fact by taking into account extraneous considerations when imposing the sentence.

The Charges 8. The Appellants were charged as follows:-In Count one, the 1st, 2nd and 3rd accused (2nd, 1st and 3rd Appellants respectively) were charged with Uttering a false document contrary to Section 353 as read with Section 349 of the Penal Code. Particulars were that, on or about the February 24, 2009 being the Directors of Erad Supplies and General Contracts Limited, within Nairobi City County in the Republic of Kenya, knowingly and fraudulently uttered a false invoice No 12215-CF – Erad for the sum of USD 1,146,000 as evidence in the arbitration dispute between Erad Supplies & General Contracts Limited and National Cereals and Produce Board purporting it to be an invoice to support a claim for costs of storage of 40,000 metric tonnes of white maize purportedly incurred by Chelsea Freight.

9. In Count two, the 1st accused (2nd Appellant) Grace Sarapay Wakhungu, was charged with the offence of perjury contrary to Section 108(1) as read with Section 110 of the Penal Code. Particulars were that, on or about the February 24, 2009 being a Director of Erad Supplies and General Contracts Ltd, within Nairobi City County in the Republic of Kenya while giving testimony in an arbitration dispute between Erad Supplies and General Contracts Limited and National Cereals and Produce Board knowingly gave false evidence for claims for costs of storage of 40,000 metric tonnes of white maize purportedly incurred by Chelsea Freight.

10. In Count three, all the three Appellants were jointly charged with the offence of fraudulent acquisition of public property contrary to Section 45(1)(a) as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act 2003. Particulars were that, on or about the March 19, 2013, in Nairobi City County within Nairobi in the Republic of Kenya, being the Directors of Erad Supplies and General Contracts Limited, together with Erad Supplies and General Contracts Limited, jointly and fraudulently acquired public property to wit Kshs 297,386,505 purporting to be costs of storage of 40,000 metric tonnes of white maize purportedly incurred by Chelsea Freight, loss of profits and interest.

11. In Count four, the appellants were jointly charged with the offence of fraudulent acquisition of public property contrary to Section 45(1)(a) as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act 2003. Particulars were that, on or about the June 27, 2013 in Nairobi City County within Nairobi in the Republic of Kenya, being the Directors of Erad Supplies and General Contracts Limited, together with Erad Supplies and General Contracts Limited, jointly and fraudulently acquired public property to wit, Kshs 13,364,671. 40 purporting to be costs of storage of 40,000 metric tonnes of white maize purportedly incurred by Chelsea Freight loss of profits and interest.

12. In Count five, the Appellants were charged with fraudulent acquisition of public property contrary to Section 45(1) (a) as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act 2003. Particulars were that on or about the July 2, 2013 in Nairobi City County within Nairobi in the Republic of Kenya, being the Directors of Erad Supplies and General Contracts Limited together with Erad Supplies and General Contracts Limited, jointly and fraudulently acquired public property to wit, USD 24,032,000 purporting to be costs of the storage of 40,000 metric tonnes of white maize purportedly incurred by Chelsea Freight and loss of profits and interest.

13. The Appellants aggrieved by both the conviction and sentence filed three separate appeals: ACEC CR Appeal Nos 7, 9 and 10 of 2020 which were consolidated by an order of this court made on October 14, 2020.

14. As a first appellate court, this court is duty bound to subject the evidence in the trial court to fresh and exhaustive scrutiny and make its own conclusions, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses firsthand and make provision for it. This duty was well stated in the case of Okeno vs Republic [1972] EA 32 and re-stated in the case of Kiilu & Another vs Republic [2005]1 KLR 174.

15. The prosecution’s case as it emerged from the evidence of the 27 prosecution witnesses is summarized below: PW1 Anne Gathoni Kamau testified that at the material time, she was the Company Secretary of the NCPB; That there was scarcity of maize in the year 2004 necessitating the NCPB’s tender for importation of a total of 180,000 metric tonnes. That the 3rd Appellant was amongst the five (5) companies which were awarded the tenders and which entered into contracts with the NCPB and that specifically the contract between NCPB and the 3rd Appellant was for the supply of 40,000 metric tonnes of maize. PW1 testified further that the contracts were predicated upon letters of credit being issued to the suppliers but that only four (4) of the companies were issued letters of credit because the funds ran out before the 3rd Appellant was issued with a letter of credit. That therefore the 3rd Appellant’s contract was not honoured leading to a dispute between them which was subsequently resolved through arbitration. She testified that the Award was in favour of the 3rd Appellant and attempts to set it aside in court were futile.

PW2 Cornel Ngelechey, then Finance Manager of NCPB testified that following a garnishee order issued in favour of the 3rd Appellant. NCPB funds in its accounts at the National Bank of Kenya, Kenya Commercial Bank and Cooperative Banks were attached and subsequently paid to the firm of Ahmednassir and Company Advocates, the then Advocates for the 3rd Appellant. That the said banks remitted Kshs 13,364,671. 40, USD 24,032. 50 and Kshs 14,952,309 respectively.

PW24 Jemimah Mungai testified that the 1st and 2nd Appellants were Directors and shareholders of the 3rd Appellant; that the 1st Appellant held 750 shares while the 2nd Appellant held 1250 shares. A third shareholder, Jacob Juma had resigned as director on March 8, 2006 vide form 203A.

16. It was further the Prosecution's case that the evidence relied on by the Appellant’s in the arbitration proceedings, invoice no 12215-CF-ERAD, marked and produced as Exhibit 43 in the trial court purportedly issued by Chelsea Freight Ltd to the 3rd Appellant demanding for payment of USD1, 146,000 in storage costs was a forgery. PW13 Mr Joshua Nyawano testified that he represented NCPB in the Arbitral proceedings between NCPB and Erad Supplies & General Contractors Ltd which commenced on February 24, 2009 and which were presided by Arbitrator Evans Thiga Gaturu; that the claimant was represented by the 2nd Appellant who produced several documents in support of the claim among them, Invoice No 12215-CF-ERAD dated January 22, 2005 for the sum of USD 1,146,000 (Exhibit 43): (The arbitration proceedings were themselves produced and marked as Exhibit 41) that, the 2nd Appellant was the sole witness for the complainant Company, Erad Supplies Ltd after which an award of USD 3,106, 000 was awarded to the Complainant. PW13 stated that the said claim was made up of USD 1,960,000 for loss of profit and a second limb of USD 1,146,000 as storage charges, costs of the suit and interest at the rate of 12%.

17. PW22 Freddy Chetty produced Exhibit 63 and testified that he was a Member and director of Chelsea Freight Ltd which was registered on June 25, 2002 and that the principal business of the said company was freight services. The company was based in Durban South Africa. He added that the other Directors of the Company were Alfred Leon Maynard and Thilogan Pillay. PW22 stated that he was solely responsible for the company's accounts and that neither the company nor its members/directors have had any dealings with the 1st Appellant, 2nd Appellant and the 3rd Appellant concerning storage of maize or any other business. According to PW22 Invoice No 12215-CF-ERAD dated January 22, 2005 for the sum of USD 1,146,000 (Exhibit 43) was not issued by Chelsea Freight Ltd or any of its directors. That the invoice exhibited numerous discrepancies as proof of the fact it was a false document that did not originate from Chelsea Freight Limited. It was his testimony that:- Chelsea Freight had offices only in Durban, South Africa and not anywhere else, that Chelsea Freight Ltd had neither been involved in maize shipping and/or storage in South Africa or any other country nor had it conducted any business with the Appellants and further that the invoice was a computer print out and did not bear the signature of any of the Directors or the company stamp. The witness vehemently disputed that the invoice was issued by Chelsea Freight.

18. It was the prosecution’s case that the Appellants fraudulently acquired the funds in issue by giving false evidence, namely the invoice, during the arbitral proceedings. PW15 testified that on March 19, 2013, Kshs 297,386,505 was transferred via RTGS to the bank account of Soita & Saende Advocates. That the money was afterwards disbursed as follows: Nancy Baraza Advocate Kshs 40,000,000, 1st Appellant Kshs 40,000,000 and 50,000,000 to 2nd Appellant while Kshs 13,364,671 from the account of NCPB at National Bank of Kenya and USD 24,032. 50 from Cooperative Bank was paid to Ahmednassir & Company Advocate.

19. PW27 Kipsang Sambai, the investigating officer in the case, testified that he sought Mutual Legal Assistance from the Republic of South Africa to verify the particulars of Chelsea Freight and its involvement in the supply of maize to the 3rd Appellant. That he recorded statements from two out of the three directors of the Company who denied having ever dealt with the 3rd Appellant. That the Directors of Chelsea Freight stated that the invoice PExh 43 had features which belonged to their company like the name, address and bank details but the invoice did not emanate from them. That he therefore came to the conclusion that no maize was bought or stored in South Africa and recommended the charges proffered against the Appellants.

The defence Case 20. The 2nd Appellant, who was the first witness testified that they signed the contract with NCPB on August 26, 2004 (PExh2) and were to receive a Letter of Credit from NCPB. She gave evidence on the effort she made to pursue the Letter of Credit from NCPB in vain and stated that they were frustrated from performing their contractual obligation by the failure by NCPB to open a letter of credit in favour of the 3rd Appellant. On the storage charges, her evidence was that Chelsea Freight had three directors, but that she dealt with one Chiko Slanders who in turn dealt with a Mr Alfred Leon Maynard, a director of Chelsea Freight. That Mr Maynard relocated to India. She denied having dealt with Freddy Chetty (PW 22). Her evidence was that the invoice, which was the subject of the case, must have been exchanged between Chiko Slanders and one of their directors the late Jacob Juma who has since died. She stated that the said Jacob Juma was following up the tender and that he wrote a letter dated October 8, 2004 to the Managing Director NCPB informing him that they were being pursued on storage charges. She testified that the impugned funds were paid to the company lawyers and that part of the money is still outstanding. That they eventually referred the matter to arbitration as per the contractual provision and went through the arbitration process with NCPB. That at the end of the arbitration process, they were awarded the damages as per PEX 42. NCPB’s counterclaim for damages was dismissed. That the arbitration award was confirmed by the High Court.

21. She testified that there were futile attempts by NCPB to stop the payment of the award by filing Misc Civil Application 639/2009 which was dismissed by Justice L Njagi on June 28, 2011. She produced the ruling as DEX 37. That NCPB again filed another application before Justice Odunga which was equally dismissed. She also produced the ruling of Justice Odunga as DEX 38. That they proceeded to execute the decree and she produced DEX 28, a Garnishee order issued by Justice Mabeya attaching NCPB’s bank account at National Bank of Kenya. That the 1st Appellant was paid Ksh 50 Million and Jacob Juma paid himself over Ksh 100 million, while she was paid Ksh 40 Million.

22. DW2’s defence is that he only received Ksh 50 million which was paid to him by Saende and Company Advocates. That he was a stranger to the moneys that were paid to Messrs Ahmednasir Abdikadir and Company Advocates and it was that law firm which can answer where they took the money. That the prosecution ought to have charged them and that the prosecution missed the point and missed the person to be charged for those moneys paid to the said law firm (Ahmednasir Abdikadir and Company Advocates). He also stated that he was also surprised to be charged on issues he was not involved in since he did not participate in the arbitration proceedings and further that the money was lawfully paid to him through a Garnishee order of a court of law. He denied any wrongdoing on his part.The appeal was canvassed through written submissions.

Submissions of the 1st Appellant 23. The 1st Appellant relied on the 1st Appellant’s Supplementary Petition of Appeal dated October 21, 2020, the written submissions dated November 26, 2020 and the oral submission at the highlighting. She was represented by Mr Ongoya together with Ms Ngania Advocates.

24. Mr Ongoya, Advocate who submitted that there was a duly signed and valid contract between the 3rd Appellant and NCPB; that the NCPB fully participated in the arbitration proceedings and the Award granted in favour of the 3rd Appellant; that, the award was under the following 4 distinct heads:- Loss of profit (anticipated from the business); Cost of storage of the maize; Costs of the suit i.e the arbitration; and interest and further that the prosecution only raised issue with the second limb of the Award, namely cost of storage. Learned Counsel further submitted that the charges herein are based on a payment made pursuant to court proceedings; that there is a concession that the garnishee orders originated from the High court and were not forged; that, pursuant to that garnishee order Erad attached money held by NCPB and paid to the 3rd Appellant, a juristic person and not the 1st Appellant. He submitted that out of the decretal amount that was paid, Sarapai Wakhungu (2nd Appellant) received some Kshs 40 million while John Walukhe (1st Appellant) received Kshs 50 Million.

25. Counsel contended that the order showed that the decree holder had a claim for USD 6,140,859. 80 which was supposed to be paid by NCPB. That the Learned Magistrate therefore erred in concluding that that the amount paid out was on account of storage charges but not the other awards as the order did not specify what the amount paid was for.

26. Counsel for the 1st Appellant also argued that having been exculpated by the trial court on the first count, the 1st Appellant cannot be criminally liable on counts 3,4,5. That Section 23 of the Penal Code provides that for a person to be held criminally liable for acts of commission or omission of a company, that person must be in charge or acting on the affairs or activities of the company. It is not enough that his name appears in the list of Directors. Counsel asserted that the 1st Appellant did not participate in the tender process, the sourcing of maize or the arbitration proceedings and that he only received the Kshs 50 Million by virtue of being a passive Director of the 3rd Appellant. In regard to the Arbitrator’s remarks on alleged attempt to bribe him by one 'Captain Waluke', Counsel submitted that the 1st Appellant did not appear in person, as John Koyi Walukhe before the arbitrator, he therefore had no opportunity to correct the record for anything the arbitrator said about him or about another person whose name strikingly resembled his. Counsel highlighted that there was an error on the part of the trial court for ignoring pertinent, admitted and common ground that each of the payments mentioned in counts 3, 4, 5 were made out of a judicial process and such payment confirmed by a superior court could not be held by a subordinate court to be fraudulent without there being an order varying the superior court order.

27. Counsel submitted that the trial magistrate erred when she proceeded with the matter before her as if she was sitting on appeal against both the arbitration award and the subsequent proceeding of the High Court confirming that award. That the trial magistrate erred when she concluded without evidence that the approximately Kshs 314,000,000 that was the subject matter of counts 3,4,5 out of the cumulative claim of Kshs 600,000,000 was on account of storage charges and not lost profit, interest and costs of litigation which were distinct, separate and unimpugned awards from the arbitration. Further that the trial magistrate erred when she convicted the 1st appellant of counts 3,4,5 in the absence of any evidence that he had received the money specified in those counts and that by ignoring crucial exculpating evidence from the 2nd Appellant (DW1) the trial magistrate was unfair to the 1st Appellant by relying on unverified remarks from the arbitration proceedings to hold the 1st appellant criminally liable.

28. Lastly, Counsel argued that the trial magistrate erred by sentencing the 1st appellant who had received 50 million as a director to pay Kshs 297,086,505 x 2 as a person distinct and separate from what the other accused persons were ordered to pay a misapprehension of Section 46 of the Anti-Corruption and Economic Crimes Act

29. Ms Ng’ania Advocate while making further submissions on behalf of the 1st Appellant contended that the conviction was unsafe and inconsistent with the evidence. That PW22 Freddy Chetty whose evidence supported the alleged forgery of the invoice testified to the possibility that someone else other than himself and other directors of Chelsea Freight could have dealt with 3rd Appellant and that the details on the invoice (PExh 43) were correct. It was therefore incumbent upon the trial magistrate to satisfy herself that P Exh 43 was a forgery and that it did not emanate from Chelsea Freight before reaching a conclusion that it was forged.

30. Learned Counsel submitted that PW23 Andrew Christopher Newnoff who described himself as a police officer based in South Africa did not investigate Chelsea Freight and did not shed light on the authenticity of this document which was alleged to be a forgery, that the evidence of PW22 remained weak to sustain a conviction where proof beyond reasonable doubt was required and further that PW29 Kipsang Sambai’s evidence against Chelsea Freight is hearsay while PW23 distanced himself and stated Chelsea Freight was not within his jurisdiction. Counsel contended that the trial court erred in concluding that P Exh 43 was a forged document made by the defence in support of a fictitious claim for storage changes. There was no evidence that could have led the court to make that conclusion, that the trial magistrate proceeded on a dangerous trajectory when she failed to deal with the issue of whether forgery was proven which led to a miscarriage of justice. Further that the 1st count was on forgery and uttering a false document and formed the substratum of the charges. It was incumbent upon the prosecution to establish forgery.

31. On the standard of proof, Counsel submitted that it was below the balance of probabilities and that the fact that one is veracious, is shouting at the top of his voice for repeating the same words is not a test known to criminal law.

32. On sentencing, Counsel submitted that the question as to the distribution and allocation of money should not have informed the trial magistrate in sentences the appellants; that there was no basis for the Kshs 297 million in sentencing the 1st appellants; that, it is clear that the 1st Appellant received Kshs 50 million, the 2nd appellant Kshs 40 million and the 3rd appellant nil and hence the conviction and sentence of the 1st appellant was unlawful and unsafe and contrary to Article 50 of theConstitution. Counsel urged that the 1st Appellant’s supplementary petition should be allowed.

Submissions of the 2nd Appellant 33. The 2nd Appellant relied on her Petition of Appeal dated July 7, 2020 and written submissions dated January 20, 2021 and July 20, 2021.

34. Senior Counsel Paul Muite on behalf of the 2nd Appellant submitted that the payments were made pursuant to a decree of the High Court, approving the arbitration award followed by Garnishee orders issued by the High Court. That the trial court was bound by the judgment, decree and garnishee order. Senior Counsel Paul Muite submitted that loss of profits was assessed by the arbitrator and adopted by the High Court at USD 1,960,000, the storage charges at USD 1,360,000 and that the amount recovered was less than the amount awarded in respect of loss of profit. Counsel stated that there was no dispute concerning the contract between NCPB and the 3rd Appellant for supply of 40,000 tonnes of white maize. That it is also not in dispute that the reason the maize was not imported was because NCPB was to avail a letter of credit to Erad supplies limited which it did not and had NCPB complied with its part of the contract, there would have been no prayer for loss of profit.

35. Senior Counsel argued that there was no basis for the trial court to have speculated that the money in the garnishee order was in respect to storage charges. Senior Counsel cited the case ofCR 11 of 2013 Caroline Wanjiku NgugiRepublic [2015] eKLR and argued that where certain facts are capable of interpretation in a manner consistent with innocence of the accused and also consistent with guilt, then the court must give the benefit of doubt to the accused and the trial court therefore should have interpreted the award in a manner consistent with the innocence of the 2nd appellant. Counsel contended that the Constitutional requirement of a fair trial demands that a case must be proved beyond reasonable doubt. The fact that the totality of the Award of Kshs 600 Million was not recovered meant that a conviction should not have occurred.

36. Thirdly, Senior Counsel submitted that failure by the prosecution to call a critical witness Mr Maynard made the conviction wholly unsafe with regard to the authenticity of the invoice, and that no forensic evidence was tendered by the prosecutor to prove forgery.

37. Dr Okubasu who appeared together with Senior Counsel Paul Muite submitted that when the arbitral award was made NCPB unsuccessfully sought to set aside the arbitral award, that, the application was heard by Njagi J who addressed the question which the trial court addressed itself to and ruled in favour of the appellants. A subsequent application for review of Njagi J’s orders was made before Odunga J who declined to set aside the award. That the Award was enforced through a garnishee order issued by Mabeya J, and that if this court allows the trial court to scuttle the orders of the High Courts, it will bring the judicial system to disrepute. Dr Okubasu submitted that the prosecution failed to prove its case beyond reasonable doubt that the rule of thumb is that the burden of proof always lies with the prosecution and at no time does the burden shift to the accused to prove his guilt. He cited the case of Republic versus David Ruo Nyambura & Others.

38. On the sentence, Dr Okubasu contended that the total amount paid to the 2nd appellant was Kshs 313,364,667. This amount was less by about 2 million to come to the total for loss of profit which means that to date storage charges are yet to be paid yet the trial court condemned the 2nd appellant to pay a total of Kshs 626,681,248. 8. The company was also penalized a similar amount and the 1st appellant the same amount. Counsel stated that this was six times the amount paid by NCPB which shows that the trial court was only interested in establishing the culpability of the accused persons. Counsel also stated that the court did not state whether the sentences were to run concurrently.

39. Counsel further contended that PW22 testified that he was paid a stipend to testify, hence an incentive to frame the appellants; that while there were 3 directions only one was called to testify; that the other director recorded a statement but was not called. All this leads to an inference of innocence and an inference of guilt and it would only have been fair if an inference of innocence was made; That in the minds of the public the appellants were paid for maize they did not supply but the positon is that they were paid for breach of contract and further that whether the document was handwritten or otherwise, forgery could only be proved through forensic evidence.

Submissions by the 3rd Appellant 40. Mr Kangogo, Learned Counsel for the 3rd appellant relied on the Petition of Appeal dated July 6, 2020 and written submissions as well as the oral submissions. He framed two issues for determination: whether Exh no 43 was sufficient and safe evidence to warrant conviction of the 3rd appellant; and whether the trial court could sit on appellate jurisdiction over the arbitral award. He submitted that the prosecution’s case solely rested on PExh 43. That the said PExh 43 is a legitimate invoice from Chelsea Freight. That the said company had 3 directors as confirmed by PW22 but only two of them are alleged to have written witness statements. Counsel contended that aside from the two directors Chelsea Freight had 14 other employees who could have dealt with third parties without the knowledge of PW22. As such the 3rd appellant submits that Exb P43 was a genuine invoice and it was unsafe for the trial court to rely on the memory of a single uncorroborated witness to find the contrary. Counsel contended that this despite PW22 confirming that the details of Exh 43 are similar to the invoice that they issued in terms of the time, location and even the bank accounts. Counsel stated that a forged document must tell a lie about itself yet Exh 43 does not. Counsel stated that nowhere in the record does PW22 claim that Exh 43 was a forgery. Further there is no forensic report to confirm or deny that fact; that this only goes to show the shallow incomplete and selective investigation conducted a decade after Exh 43 was issued. Counsel asserted that aside from the magistrate not cautioning herself on taking the evidence of one director she shifted the burden of proof to the 3rd appellant to show exh 43 was genuine. Counsel stated that this violates Article 50 (2) of theConstitution on the principle of presumption of innocence and that all the payments were made pursuant to arbitration proceedings and the award was unsuccessfully challenged in the High Court.

41. Counsel argued that the trial magistrate acknowledged that the charges against the 3rd appellant were for the storage claim only and it raises a high level of doubt how the trial court came to the conclusion that the garnished amount catered for storage costs. Counsel submitted that the 3rd appellant was convicted on counts 3, 4, 5 without the trial court establishing that the amount paid was transferred to it and this despite acknowledging at page 490 that NCPB’s failure to issue a letter of credit was a breach of contract deserving of a civil remedy. Counsel implored this court to arrive at the conclusion that the third appellant and the other appellants were wrongfully convicted without any evidential basis.

Submissions of the Respondent 42. Learned Prosecution Counsel Ms Kimiri appearing together with Mr Muteti vehemently opposed the consolidated appeals. They relied on the written submissions dated May 5, 2021, list of authorities of even date, the proceedings of the lower court, the exhibits therein and the oral submissions.

43. Counsel conceded that the invoice (Exhibit 43) is the foundation of the case and submitted that the prosecution’s case was that the invoice was not a genuine document and in as much as the appellants, especially the 3rd appellant, executed the award of the arbitrator in the High Court and subsequently garnishee orders were granted in their favour the said proceedings were anchored on fraud. Counsel submitted that the prosecution called PW22 Fredy Chetty who demonstrated to the trial magistrate the discrepancies in the invoice and was able to convince the court why the invoice did not emanate from his company Chelsea Freight in South Africa. Counsel stated that the witness testified that Chelsea Freight never dealt with maize and never dealt with the appellants and that it was admitted by the 2nd Appellant in a sworn defence when she testified that the invoice was issued to them by one Chiko; that this was also confirmed by the 1st Appellant when he told the court that for sure he did not know where this invoice emanated from. Counsel stated that this was an admission by the appellants that they did not know the source of exhibit 43 yet this is the same document they used to persuade the arbitrator to award them costs for storage of maize.

44. Counsel submitted further that in her defence the 2nd appellant produced various documents among them Exhibit 39- a letter dated January 5, 2005. This letter was acknowledging receipt of the invoice in question before the invoice was issued. The invoice is dated January 22, 2005. The letter is dated January 5, 2005 so how was the 3rd Appellant through the 2nd Appellant acknowledging receipt of the invoice before it was issued; That that is a difference of 15 days and the only inference is a premeditated mind on the part of the 2nd Appellant who was the author of the letter and it can only point to the non-existence of this invoice but if it exists it did not emanate from Chelsea Freight.

45. Counsel contended that the 1st appellant who was an active director of the 3rd appellant confirmed he had no knowledge of this invoice and went ahead to lay blame on the 2nd Appellant together with one Jacob Juma (deceased) as the persons who knew where the invoice emanated from. Counsel stated that the charge of uttering a false document and the evidence tendered by the prosecution was not challenged in cross-examination to the satisfaction of the trial court.

46. Counsel for the Respondent also submitted that the proceedings in the High court where the arbitration award was being executed were civil in nature and the issue of authenticity or otherwise of any document relied on in the arbitration proceedings was not an issue for determination before that court. The issue of the criminal culpability of the appellants came way after investigations were conducted following a report by parliament on the payment made by NCPB to Erad supplies. It is those investigations that unearthed that the documents relied on by Erad supplies was not a genuine document. Therefore, when the trial magistrate heard and determined the charges preferred against the appellants she did not in any way whatsoever sit as an appellate court to either challenge or confirm the orders of the High court. Counsel stated that an attempt was made by the Appellants through a Petition heard by Mumbi J seeking orders to bar the Director of Public Prosecutions from preferring charges against them but the petition was dismissed. Counsel asserted that as a result of the garnishee and arbitral proceedings monies were paid out to the 1st, 2nd and 3rd appellants which resulted to fraudulent acquisition of public property.

47. Counsel submitted that the appellants have made this court to believe that the payment was for storage of maize but that the payment to the 1st, 2nd and 3rd appellants and their counsel was unjustified and unlawful and therefore the charges facing the appellants were justified.

48. Learned Prosecution Counsel, Mr Muteti, submitted that Section 137 of the Criminal Procedure Code lays down the rules for framing charges; that each charge is a stand-alone charge and the trial court is at liberty to reach a conclusion whether each charge has been established through evidence. Counsel submitted that the sums stated in the particulars were sufficient to inform the accused of the charges; the appellants were sufficiently informed of the charges facing them and they tendered a defence which indicates they sufficiently understood the charges against them so that ground must fail. He submitted that objections to a change must be taken at the earliest opportunity as provided under Section 348 of the Criminal Procedure Code.

49. Counsel submitted further that in the Constitutional Petition Mumbi J stated that exhibit 43 was central in the case and she had no difficulty pointing out matters which in her view were best litigated in the trial court namely were the storage charges and the fact of exhibit 43 being fraudulently obtained. Counsel stated that there was no appeal against the decision of Mumbi J so all the issues the judge picked as being for trial before the trial court were properly before that court; that a judicial pronouncement that is arrived at as a result of fraud being perpetrated in that court or misrepresentation of facts is open to challenge; that the arbitrator did not have the opportunity to hear the evidence that was presented before the trial magistrate.

50. On the culpability of the 1st and 2nd Appellants, Counsel for the Respondent submitted that a company acts through its directors and that the 2nd Appellant appeared as a representative of the company and must take responsibility together with her co-directors. Counsel urged the court to lift the veil and see the real persons behind the contracted arrangements and the beneficiaries of the funds; That the evidence of PW 22 provides all the answers to this matter; that PW 22 having given evidence to the effect that Chelsea Freight never dealt with supply of maize is key; That there was no business that the 3rd appellant and by extension the 1st and 2nd appellants were being paid for.

51. On the sentence, Counsel for the Respondent submitted that the offences for which the appellants were convicted have mandatory sentences under the Anti-Corruption and Economic Crimes Act and as such should be affirmed. That sentencing is a matter of discretion and this court would only interfere if it is shown the trial magistrate acted on wrong principles or if they misdirected themselves after hearing mitigation. Counsel urged the court to uphold both the sentence and the conviction.

Rejoinder by the Appellants 52. Counsel for the 1st Appellant questioned the basis of the alleged criminal culpability of the 1st appellant that the 1st Appellant having been a director of the 3rd Appellant and a recipient of a third of the income resulting from the payment on account of the directorship. Counsel stated that none of these two situations ipso facto creates criminal culpability and contended that to correctly establish the culpability or otherwise of the 1st Appellant the court should consider Section 23 of the Penal Code. Counsel pointed out that there was no act or omission on the part of the 1st Appellant as he was not aware that the offence was being or was intended or was about to be committed. Without conceding that any offense was committed at all, Counsel submitted that the 1st Appellant had no relationship with the acts complained of; That the 2nd Appellant was the Managing Director and the 1st appellant was not responsible for the day-to-day running of the 3rd Appellant. Counsel further stated that PW22’s credibility was impeached by the defence; that, where a conviction is founded significantly on the evidence of an impeached witness the same is ripe for overturning and that this court will find that PW22’s evidence is the same word for word with another witness who was not called. Counsel contended further that the prosecution’s case rested on storage charges and the legal question is whether the trial magistrate had an obligation in law to severe separate costs as a limb of the claim from lost profits as a distinct and separate limb, costs of arbitration as a distinct limb and interest as yet another distinct limb before she could reach a conclusion on whether the money actually paid out related to the impugned limb of the claim. Counsel stated that there was no evidence before the trial court that the Kshs 313 Million in fact related to storage charges.

53. For the 2nd Appellant it was submitted as follows: that there was no evidence that the invoice was forged; the issue of the existence of Chelsea Freight arose at the arbitral proceedings and the arbitrator rejected that claim by NCPB; it was the duty of the prosecution to prove beyond reasonable doubt that the invoice was a forgery; That the sole evidence by PW22 was impeached and the trial magistrate rejected the prosecutor’s application to call a much-needed witness; that the question that troubled the arbitrator was whether storage was a reasonable cost; That NCPB also had a claim for storage against Erad supplies and storage was therefore a reasonably foreseeable claim; That there was nothing untoward about the payment, so the question of law is whether a lower court is able to establish fraud in the face of such a pronouncement by a higher court.

54. On the sentences, it was submitted the trial court erred in imposing three times the sum lost but the law refers to two times; that if a court imposes an out rightly outrageous unlawful sentence, it also means that even the findings were mis-informed; that for a conviction for forgery, proof beyond reasonable doubt demands that evidence of a forensic examiner is critical and crucial. No document examiner was called to give evidence regarding the infamous invoice exhibit 43, which makes the conviction unsafe and further that the prosecution has not adequately answered the issues, and that once an issue has been the subject of a finding by the High Court, it is not open in law for a magistrate to re-open the issue and come to a different conclusion as that would give rise to anarchy. Counsel emphasized that the judgment of the High Court adopted the award and secondly the judgment of Njagi J refused to set aside the award and the judgement of Odunga J also upheld the validity of the invoice and of the arbitration award, the judgment of Kamau J which dismissed another attempt to re-open the arbitration award, the judgment of Mabeya J and finally the Ruling of Onyiego J made in this Appeal. Counsel asserted that Onyiego J’s decision is significant because in granting bail pending appeal the court must be satisfied the appeal has overwhelming chances of success. Counsel wondered why the Respondent would appropriate the Kshs 313 Million to storage charges when it even fell short of what should have been awarded?

55. The 3rd Appellant contended that no memorandum or Articles of association of Chelsea Freight was produced to demonstrate what the company could or could not do; That the burden of proof lies entirely on the shoulders of the prosecution which duty was to be discharged beyond reasonable doubt but the trial court shifted that burden.

56. Counsel asserted that NCPB unsuccessfully challenged the award on grounds of fraud; The standard there was a balance of probability which NCPB could not attain; It was not possible to prove the case beyond reasonable doubt on the text of exhibit 43 and the entire reason the 3rd appellant is before this court is because the NCPB was unable to set aside the arbitral award. Counsel urged the court to set aside the conviction and sentence of the 3rd appellant.

Issues for determination 57. It is not in dispute that there was a contract between National Cereals and Produce Board and the 3rd Appellant which contract became frustrated by reason of the former’s failure to open a letter of Credit for the latter. This was confirmed by Anne Gathoni Kamau (PW1) who at the material time was the corporation secretary for the National Cereals and Produce board(NCPB). It is also not in dispute that subsequently the 3rd Appellant and the NCPB were engaged in arbitral proceedings and that the same were determined in favour of the 3rd Appellant. The NCPB’s subsequent efforts to overturn the arbitral award in the High Court proved futile. Therefore, in execution of the arbitral award the 3rd Appellant sought and obtained a garnishee order which culminated in the payment of the impugned funds.

58. From a review of the respective Petitions of Appeal, the rival submissions of Learned Counsel for the parties, the evidence in the lower court, the exhibits and the law, the following issues arise for determination:i.Whether the trial court and indeed this court are bound by the Award and the Rulings of the High Court on the enforcement of the Awardii.Whether the prosecution discharged the requisite burden of proof against the Appellantsiii.Whether the sentences imposed were harsh or manifestly excessive

Whether the trial court and this court are bound by the Award and the Ruling of the High Court on the enforcement of the Award 59. The Appellants contend that the payments that formed the subject matter of the charges were premised on an arbitration award, that was confirmed by the High Court (Njagi J and Odunga J, as he then was) and pursuant to Garnishee Orders of the High Court (Mabeya J), which facts negated the allegation by the prosecution, that such payment made pursuant to and in execution of an order of a superior court, could be held by a Magistrate's/Subordinate Court to be 'fraudulent' particularly where there is no order varying and/or setting aside the said order of the superior court. The Appellants contend that the decree and garnishee order issued by the High Court proves that the payments were lawful and legal and that such orders would first have to be set aside for conviction to ensue. Lastly, that the allegation that the award was acquired through fraud was made and dismissed by the High court on a lower standard of a balance of probabilities and it could therefore not have been proven beyond reasonable doubt before a court inferior to the superior court.

60. Whether or not the trial court and this court are bound by the award and judgment referred to depends on Sections 44 and 45 of the Evidence Act. Section 44 of the Act states'44. Judgments in rem

(1)A final judgment, order or decree of a competent court which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is admissible when the existence of any such legal character, or the title of any such person to any such thing, is admissible.(2)Such judgment, order or decree is conclusive proof—a)That any legal character which it confers accrued at the time when such judgment, order or decree came into operation;b)That any legal character to which it declares any such person to be entitled accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person;c)That any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;d)That anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.

61. In my view the arbitral award the subsequent rulings of Njagi and Odunga J, as he then was the decree thereafter are not a judgment in rem as they are not judgments that bind the whole world. (See Black’s Law Dictionary Vol) That then leaves this court with Section 45 of the Evidence Act which states:-'45. Other judgments of a public nature.Judgments, orders or decrees, other than those mentioned in section 44 of this Act, are admissible if they relate to matters of a public nature relevant to the inquiry, but such judgments, orders or decrees are not conclusive proof of that which they state.'

62. Given the above provisions of Section 45 the question would then be whether Njagi J and Odunga J’s ruling were of a public nature. It is my considered view that given that the funds in issue in the arbitral proceedings are public funds paid by a public body the rulings were of a public nature. That being the case the rulings, the subsequent decree and garnishee order issued by Mabeya J though they are admissible they are not conclusive proof of that which they state. Indeed they could not be as the issues of fraud canvased here were not canvassed before the judges.

63. In the upshot my finding is that given the provisions of Section 45 of the Evidence Act, the trial court did not and this court cannot be said to be sitting on appeal on a decision of the High Court' as contended by Learned Counsel for the Appellants. The trial court properly acted within its mandate and jurisdiction in considering the case before it based on the charge sheet and the evidence presented and this court is within its jurisdiction to consider and weigh that evidence so as to arrive at its own conclusion.

Whether the prosecution discharged the burden of proof against the Appellants 64. The standard of proof in a civil suit is different from that in a criminal case, with the latter being beyond reasonable doubt. In the case of Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372Lord Denning had the following to say in regard to that standard.'That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail 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 in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.'

65. The charges against the appellants rested fully on the invoice (ExB 43) which was produced at the arbitral proceedings by the 2nd appellant herein. The 2nd Appellant contends that the prosecution did not prove beyond reasonable doubt that the invoice was a forgery. That, Chelsea Freight had three directors although she transacted with only one of the directors namely Leon Maynard who was not called to testify and further, that PW22 and PW7 confirmed that the account details and office address of Chelsea Freight on the invoice, as Jon Roe’s House Durban South Africa, was similar to theirs and that it was possible that the invoice was issued by an employee of Chelsea Freight without the knowledge of PW22. The 2nd Appellant contended that no forensic evidence was adduced to prove that the invoice was a forgery; that the only evidence adduced was that of a witness (PW22) who never dealt with the 3rd Appellant. It was her evidence that the invoice was obtained by one Jacob Juma (deceased) a director of the 3rd Appellant and that it was indeed issued by Chelsea Freight. She stated that the 3rd Appellant dealt with one Chiko Slanders who in turn dealt with Leon Maynard one of the director of Chelsea Freight. This argument was also raised by the 1st and 3rd Appellants who submitted that the evidence was insufficient to support a conviction on Count 1 and the subsequent Counts 2,3,4 and 5 which all flowed from Count 1.

66. I have carefully considered the evidence and rival submissions regarding the invoice. The invoice (Exb 43) is a printed or computer generated document which bears no signature. PW22 while admitting that the invoice bore its name and address vehemently disputed that it was issued by his company. The Investigating Officer (PW 27) was emphatic that he investigated this invoice by way of Mutual Legal Assistance from South Africa and confirmed that it was a forgery; that it was never issued by Chelsea Freight.

67. The onus of proof in a criminal case falls on the prosecution and the standard of proof is beyond reasonable doubt. I have borne this in mind while weighing the evidence concerning this invoice and it is my finding that the invoice was indeed a forgery. PW22 testified that at the time material to issuance of that invoice he was one of the directors of Chelsea Freight and that he was solely in charge of accounts and issuance of invoices. He also gave evidence that Chelsea Freight was a shipping, clearing and forwarding company and that the company folded operations in the year 2013. PW22 was emphatic that the company did not have any dealings with the 3rd Appellant either concerning white maize or at all; that Chelsea Freight could not therefore have issued such an invoice. Even upon rigorous cross-examination by Counsel for the appellants he remained unshaken and firm in reiterating that neither his co-directors, himself or an officer of Chelsea Freight issued the invoice. He emphasized that Chelsea Freight never dealt with maize and that even if a member of the company’s staff issued the invoice then it was not with the authority of the company. Clearly therefore there was evidence beyond reasonable doubt that the document did not emanate from Chelsea Freight. This court believed PW22 because his evidence was consistent and he remained unshaken even upon rigorous cross examination by Counsel for the appellants. He also had no reason, and none was advanced by the defence, to lie against the appellants since he was known either to them or to the National Cereals and Produce Board. The allegation that he could have lied because he was paid to come to testify clearly has no basis as it is no secret that witnesses are reimbursed whenever they attend court to testify. I therefore find his evidence credible, reliable and trustworthy. Moreover whereas it is never the duty of an accused person to prove their innocence Section 111(1) of the Evidence Act provides for instances when the burden of proof shifts to the accused. The Section states:-'111. Burden on accused in certain cases:-

(1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist:Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defense creates a reasonable doubt as to the guilt of the accused person in respect of that offence.(2)Nothing in this section shall—a)Prejudice or diminish in any respect the obligation to establish by evidence according to law any acts, omissions or intentions which are legally necessary to constitute the offence with which the person accused is charged; orb)Impose on the prosecution the burden of proving that the circumstances or facts described in subsection (1) of this section do not exist; orc)Affect the burden placed upon an accused person to prove a defence of intoxication or insanity.'

68. The person with whom the 2nd Appellant dealt with in regard to the invoice, one Chiko Slanders, was not known to Chelsea Freight or the prosecution. That was therefore a fact within the special knowledge of the 2nd Appellant and the onus therefore rested upon her to call that person as a witness to prove that that person indeed obtained the invoice from Chelsea Freight. Section 111(2) (b) is clear that the burden of proving the facts described in sub-section (1) does not lie on the prosecution. Having called PW22 a Director of Chelsea Freight who emphatically denied the invoice was theirs the prosecution had discharged its burden of proof. The prosecution needed not to have called all the Directors in Chelsea Freight to prove that fact.

69. The 2nd Appellant produced letters as evidence that the 3rd Appellant had in fact had dealings with Chelsea Freight. However, the said letters are one sided in that they are all authored by the 3rd Appellant. None is from Chelsea Freight. It is therefore difficult for this court to believe that the same were not manufactured for the purposes of the claim. If indeed there were dealings between the two companies, then at least there would have been one letter from Chelsea Freight. The letters in my view do not prove the facts within the special knowledge of the 2nd Appellant. In the absence of evidence of the especial facts this court finds that for purporting that the invoice was from Chelsea Freight when it was not and for purporting that it was for storage charges for maize when Chelsea Freight did not even deal with storage of maize, then the invoice was a forgery as defined in Section 345 of the Penal Code.

70. There was evidence and it was conceded by the 2nd Appellant that she produced the forged invoice as evidence at the arbitral proceedings. It is my finding that her doing so with full knowledge that her company had not had any dealings with Chelsea Freight is proof that she knowingly and fraudulently uttered that invoice and hence committed the offence of uttering a false document contrary to Section 354 of the Penal Code. Further because she did so in arbitral proceedings, which in their nature amount to judicial proceedings, she gave false testimony material to those proceedings thereby committing the offence of perjury. She was therefore properly convicted on Counts 1 and 2 as charged and her appeal on the two counts lacks merit and is dismissed.

71. Counts 3, 4 and 5 of the charge all flow from Count 1 and arose from the use of the falsified invoice to acquire funds from the National Cereals and Produce Board hence the Appellants obtaining a benefit for themselves and causing a loss to National Cereals and Produce Board, a public body. I am satisfied that the appellants were properly convicted on those counts as well. The appeals in regard to those counts are also not merited and they are dismissed.

72. As for the appeal on the sentence it is my finding that the Sentences imposed upon the respondents are within what is provided in the law (Penal Code in regard to Counts 1 and 2 and Section 48(1) for Counts 3, 4 and 5. The funds paid to the appellants did not have a tag stating that they were for loss of profits not storage charges. Fact is that the same were paid pursuant to a forged invoice. It is trite that as an Appellate Court I ought only to interfere with the sentences imposed by the trial court if that court overlooked some material factor or took into consideration an immaterial factor or that the sentence is manifestly excessive or manifestly lenient in the circumstances of the case or that the court acted on a wrong principle. None of the above is demonstrated in this case and therefore I find no reason to interfere with the sentences imposed.

73. In the upshot the consolidated appeals are hereby dismissed in their entirety and the sentences imposed by the trial court are upheld. The Appellants shall be required to pay the fines forthwith or to serve the default terms of imprisonment.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 6TH DAY OF OCTOBER, 2022. E N MAINAJUDGE