[2022] KEHC 335 (KLR)

Wanga & another v Republic (Criminal Appeal 64 of 2019) [2022] KEHC 335 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 335 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Appeal 64 of 2019

MM Kasango, J

May 5, 2022

Between

Michael Abala Wanga

1st Appellant

Valentine Magero

2nd Appellant

and

Republic

Respondent

(Being an appeal from the judgment of Hon. J. Kituku PM delivered on 20th July 2018 and appeal against sentence by Hon. T. Nyangena SPM on 30th July 2019 in Kiambu Chief Magistrates Court in Criminal Case No. 201 of 2016)

Judgment

1. Michael Abala Wanga, the 1st Appellant and Valentine Magero, the 2nd Appellant were charged with five counts before the Kiambu Chief Magistrate’s Court. After trial the 1st appellant was convicted of the offence of making a document without authority contrary to Section 357(a) of the Penal Code. The 2nd Appellant was convicted of the offence of abuse of office contrary to Section 101(2) of the Penal Code. Both appellants were sentenced to each serve six months imprisonment.

2. They have filed this appeal against that conviction and sentence. The appellants presented 12 grounds of appeal but those grounds were reduced to one ground that is, whether the prosecution proved its case beyond reasonable doubt.

3. The 1st appellant at the material time, was the Chief Executive of the Kenya Medical Laboratory Technicians and Technologist Board (hereafter Kenya Medical). The 2nd appellant was a Board members of Kenya Medical. The prosecution’s case is that the 1st Appellant awarded a contract to an NGO namely, RAM – Africa where the 2nd Appellant was a director. The trial court found that the prosecution had failed to prove the charges of conspiracy to defraud, offence of uttering a false document and in respect to 1st appellant, the offence of abuse of office. The appellants were acquitted of those charges but were each convicted on one count as stated above.

4. The conviction against the 1st appellant related to a letter he admitted he wrote on behalf of Permanent Secretary. That letter is dated 9th September, 2011. It is addressed to the branch Manager of National Bank of Kenya, Kenyatta National Hospital Branch. That letter communicated that the 1st appellant, in addition to four other signatories would be a mandatory signatory to the bank accounts of the Kenya Medical. The writer of the letter is reflected as Ngari M.W. (Ms) CBS, Permanent Secretary. That letter was signed and a stamp was superimposed on that signature. The stamp is entitled “Ministry of Medical Services – the Kenya Medical Laboratory Technician & Technologist Board Executive Officer.”

5. The Permanent Secretary denied signing that letter. 1st appellant while offering his defence under oath stated in respect to that letter:-“I wrote it on behalf of permanent secretary as a CEO …I discussed with the Permanent Secretary and she approved.”

6. The trial court in convicting 1st appellant for the offence of making a document without authority, the letter referred to above stated:-“On the face of it, it is clear it is accused (1st appellant) who wrote that letter and superimposed stamp of his office as the executive officer…… if accused 1 (1st appellant) was acting on delegated authority he should have signed “for” and indicated he was so acting n delegated authority.”

7. 1st appellant was convicted for the offence of making a document, the aforestated letter, without authority contrary to Section 357(a) of the Penal Code. That Section provides:-“Any person who, with intent to defraud or to deceive:(a)without lawful authority or excuse makes, signs or executes for or in the name or on account of another person, whether by procuration or otherwise, any document or electronic record or writing.”

8. Justice G.W. Ngenye Macharia had occasion to consider that Section in the case Dennis Binyenyavs.Republic (2018) eKLR and stated:-“27. From the definition, the offence constitutes the following ingredients:

i.Proof of the making, signing or execution of a document and that the same was done by the accused,ii.Proof that the making, signing or execution was without lawful authority or excuse andiii.Proof that the making, signing and execution was with the intention to defraud or deceive.”

9. That determination by Justice Ngenge Macharia is remarkably persuasive for my analysis of this case. Indeed, the 1st appellant admitted having written and signed the impugned letter. Although 1st appellant, in his defence, stated that he wrote and signed that letter on authority of the Permanent Secretary, no such authority was shown. The Permanent Secretary testified in the case on behalf of the prosecution and while being cross examined, she was not asked whether she authorised 1st appellant to write and sign the impugned letter. Although two ingredients of the offence were proved by prosecution, it is the third ingredient that I find was not proved.

10. The Court of Appeal in the case Mary Syevotha Petervs. Republic (2019) eKLR identified the ingredients the prosecution ought to prove for an offence contrary to Section 357 of the Penal Code as follows:-“43. This Court while discussing the components of the offence of making a false document in Joseph Muerithi KanyitavsR [2017] eKLR expressed:“That offence is committed by the making, signing or executing a document, electronic record or writing, for or in the name of another person. In addition the making, signing or execution must be without lawful authority or excuse, and with the intent to defraud or deceive.”[Emphasis added]

44. Therefore, proof of the said offence, such as in this case, entailed the prosecution to firstly establish that the transfer document was made and/or executed without the lawful authority of the other party thereto, that is, Mariam and then secondly, that the appellant did so with the intent to deceive.”

11. In my humble view, the prosecution failed to prove that the 1st appellant intended to or did in fact deceive in making and signing the impugned letter.

12. Deceit is defined in the Black’s Law Dictionary as:-“The act of intentionally leading someone to believe something that is not true; an act designed to deceive or trick … a false statement of fact…”

13. The letter was addressed to the Branch Bank Manager of National Bank of Kenya. The manager testified at the trial. He confirmed having received the impugned letter appointing 1st appellant as a mandatory signatory of the bank accounts of Kenya Medical. He said the accounts had four other signatories. He stated that the Bank on receiving instructions about signatories where no fundamental changes is made to signatories, the bank acted on such instructions. This is what he stated:-“Once it has a letter head and no fundamental changes in the signatories are (sic) just act.I did a background check up and I was satisfied …We acted on the letter after being satisfied it was genuine.”

14. The prosecution, as can be seen from the above evidence failed to prove that the 1st appellant in making the document he did so within intent to deceive. This is because the Permanent Secretary confirmed 1st appellant was a signatory to the bank account. He continued to be a co-signatory to the bank alongside 4 other signatories. The impugned letter required 1st appellant to be mandatory signatory to the bank accounts. There is obviously no deceit on the part of the 1st appellant in making that request. The making and signing of the impugned letter by the 1st appellant fell short of a criminal act. At most, such could only attract a disciplinary action by the employer. The prosecution therefore undoubtedly failed to prove the case of making a document without authority contrary to Section 357(a) of the Penal Code, on the required criminal standard. The trial court therefore erred to convict the 1st appellant for that offence.

15. The 2nd appellant was convicted by the trial court for the offence of abuse of office contrary to Section 101(1) as read with Section 102 of the Penal Code. Section 101 provides:-“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.

16. The 2nd appellant was a member of the Board of Kenya Medical. He was also a Board member of an NGO known as RAM. RAM was awarded contract to provide training for inspectors of Kenya Medical. It is the award of that contract which attracted the charge against the 2nd appellant. A three judge bench had occasion to consider the provisions of Section 101(a) of the Penal Code in the case Julius Memevs.Republic &another (2004) eKLR where that court made a finding the aforestated section requires the prosecution to prove prejudice as a necessary ingredient.

17. The prosecution failed to prove that Kenya Medical suffered any prejudice as a consequence of the award of that contract.

18. But perhaps the greater failure is that the prosecution failed to produce the said contract awarded the RAM. The prosecution also failed to prove that the 2nd appellant was sitting in the meeting that deliberated the awarding of that contract. Indeed, when one considers the entirety of the prosecution’s evidence, one is unable to find any incriminating evidence against the 2nd appellant. The prosecution called Wilson Njeri Kaaria, a Board Member of Kenya Medical who confirmed that the award of the contract was discussed in a committee of the Board which decision, was ratified by the Board.

19. 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. The prosecution failed to prove its case against the 2nd appellant.

DISPOSITION 20. Accordingly, having the above discussion in mind, I find that the appellants’ appeal against conviction and sentence does succeed. Both appellants’ convictions therefore are quashed and their sentences are hereby set aside.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 5THDAY OF MAY, 2022. MARY KASANGOJUDGECoram:Court Assistant : Mourice1st Appellants : - Not presentFor Respondent : - Mr. KasyokaMr. Ochichi for complainantJUDGMENT delivered virtuallyMARY KASANGOJUDGE