https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11720

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CRIMINAL APPEAL NO. E265 OF 2023** **WILSON NDUNGU KAMOMOE--------------------------------- APPELLANT** **VERSUS** **REPUBLIC -----------------------------------------------------------RESPONDENT** ***(An Appeal Against The Judgment And Sentence Delivered on the 4th September, 2023 By Hon (S .P.M. ) In Cr. / E 556 of 2014)*** **JUDGMENT** **INTRODUCTION** 1. The Appellant WILSON NDUNGU KAMOMOE was tried, convicted sentenced in the Chief Magistrate Criminal Case Number E 556 of 2014 at Milimani Nairobi and dissatisfied with the judgment of the trial court appealed against the same on the following grounds;- 2. The Honourable Magistrate erred and misdirected herself in law failing to find that the criminal charges against the accused were not disclosed. 3. The Honourable Magistrate erred and misdirected himself further in law and fact in failing to find the prosecution had not proved it’s case against the accused. 4. The Honourable Magistrate erred and misdirected himself in law and fact by failing consider the facts and the evidence by the Defence. 5. The Honourable Magistrate erred and misdirected himself in law and fact by holding that the prosecution had proved its case 6. The sentence was harsh and excessive. **ISSUES FOR DETERMINATION** 1. The following issues for determination arise from the grounds of appeal presented by the appellant;- a). whether the prosecution established its case beyond a reasonable doubt. b). whether the defense of the appellant was considered by the trial magistrate. 1. The parties agreed to file written submissions in this matter but at the time of writing the judgment, on the appellant and counsel for victims had filed submissions thus the court proceeded to determine the appeal on the strength of those submissions and relying on the record of the lower court. **APPELLANT'S WRITTEN SUBMISSIONS** 1. The Appellant submitted that this being a first appeal, the court is under a duty to re-evaluate the entire evidence and proceedings before the trial court and arrive at its own independent conclusions. 2. The appellant relied on **Wanjiku v Republic (Criminal Appeal E021 of 2023) [2024] KEHC 4947 (KLR)** where the court reaffirmed that a first appellate court must reconsider and re-analyse the evidence on record and determine whether the findings of the trial court should be sustained or interfered with. **Whether the Prosecution Proved its Case Beyond Reasonable Doubt,** 1. The Appellant submitted that the burden of proof throughout criminal proceedings rests solely upon the prosecution and never shifts to an accused person. The appellant relied on Republic v Safari Katana Lugo [2021] eKLR, where Nyakundi J stated: “It is trite that once the accused person pleads not guilty to the charge, in all criminal cases, the prosecution bears the burden of proving the crime against each of the set ingredients beyond reasonable doubt... That burden never shifts to any of the accused charged and it therefore remains that his or her conviction is to be based on the strength of the prosecution evidence. The accused bears no responsibility to prove his or her innocence...” 1. The Appellant further submitted that the applicable standard is proof beyond reasonable doubt and relied on **JMN v Republic (Criminal Appeal E017 of 2021) [2022] KEHC 279 (KLR)** where Mativo J explained that reasonable doubt is not a mere possible doubt but one that leaves the court unable to feel an abiding conviction of the truth of the charge. The court further held that a single circumstance creating reasonable doubt is sufficient to entitle an accused person to an acquittal as a matter of right. 2. The Appellant therefore submitted that the prosecution evidence did not attain the required threshold in respect of the offences for which he was convicted. **Count 1 – Conspiracy to Defraud** 1. On this count the Appellant submitted that he was convicted of conspiracy to defraud contrary to section 317 of the Penal Code without sufficient evidence establishing the essential ingredients of the offence. He pointed out that section 317 criminalizes a conspiracy involving deceit or fraudulent means intended to defraud another person. 2. The Appellant relied on Rebecca Mwikali Nabutola, Duncan Muriuki Kaaguru & Ongong’a Achieng v Republic (Criminal Appeal 232 of 2012) [2016] KEHC 7776 (KLR) where the court discussed the ingredients of conspiracy and held that the offence cannot exist without an agreement, consent or combination of two or more persons. The court stated that conspiracy requires a meeting of minds and a common intention to pursue an unlawful purpose and that the existence of a conspiracy may be inferred from circumstances showing a common criminal purpose. The court further emphasized that proof of an agreement and intention to defraud are the key ingredients of the offence. 3. The Appellant further relied on Abdi & another v Republic (Criminal Appeal E033 of 2020) [2024] KEHC 8021 (KLR) where it was held that the prosecution must prove some form of communication or conduct implying a common criminal objective even where direct evidence of communication is unavailable. 4. The appellant submitted that applying those principles, the Appellant submitted that there was no evidence showing any agreement or communication between himself and the co-accused persons. 5. He argued that as a grain supplier, his role ended once grain was delivered to the complainant company and that the weighing, verification and payment processes were entirely controlled by the complainant. He maintained that the prosecution never established any nexus between him and the second accused regarding the alleged inflation of weighbridge tickets. 6. The Appellant further argued that the trial court improperly inferred conspiracy merely because he benefited from payments arising from the allegedly inflated weights. 7. He submitted that no evidence was produced showing that the second accused received any compensation from him or that the two had entered into any arrangement to commit the offences. 8. The appellant also faulted the trial court for relying on hearsay evidence allegedly relating to admissions made by the second accused despite the confession itself having been excluded from evidence. The Appellant therefore submitted that the offence of conspiracy to defraud was not proved. **Regarding Counts 3, 6, 9 and 12 – Forgery** 1. The Appellant submitted that the prosecution failed to prove the offence of forgery contrary to section 349 of the Penal Code. He argued that forgery involves making a false document with intent to defraud and that the prosecution was required to prove that he actually made or participated in making the alleged forged documents. 2. In respect of Count 3, the Appellant argued that the alleged forged weighbridge tickets were generated entirely by employees of Pembe Flour Mills and not by him. 3. He submitted that suppliers merely delivered grain and had no role in creating, altering or generating weighbridge tickets. 4. He posited that according to the evidence, original weighbridge tickets were transmitted internally by company staff for purposes of payment processing. The Appellant therefore argued that he could not be said to have forged documents generated and controlled by the complainant itself. 5. The Appellant relied on **Mugoyia v Republic (Criminal Appeal E142 of 2021) [2024] KEHC 7844 (KLR)** where the court cited Republic v Omar (Criminal Appeal 50 of 2018) [2023] KECA 293 (KLR) and held that: “for one to be convicted of the offence of forgery, evidence must be led to prove that he did in fact make the said document. Without such evidence, the offence of forgery cannot be sustained.” 1. The Appellant also relied on **Francis Bwire Omada v Republic [2006]** **eKLR**, where the Court of Appeal explained that forgery means making a false document with intent to defraud or deceive and that a document becomes false when it falsely represents itself or has been materially altered. 2. Concerning Counts 6, 9 and 12, the Appellant argued that no evidence established that he prepared, generated or altered the miscellaneous income receipts allegedly issued by the County Governments of Kakamega, Narok and Laikipia. 3. The appellant submitted that the document examiner merely found his handwriting and signatures on cheque acknowledgements and not on the allegedly forged receipts. The forensic evidence therefore did not link him to the making of those documents. 4. The Appellant further relied on Mwangi v Republic (Criminal Appeal E011 of 2024) [2024] KEHC 7867 (KLR) where the court held that for forgery to be proved, the prosecution must establish that the accused engaged in one of the acts constituting the making of a false document under section 347 of the Penal Code. 5. The court held that where the prosecution proves only that a document was forged but fails to prove who forged it, the offence is not established. 6. The appellant further relied on Republic v Kibui (Criminal Appeal E009 of 2024) [2025] KEHC 2685 (KLR) where the court held that mere handling of forged documents does not prove that an accused person forged them and that the prosecution must specifically prove that the accused was responsible for creating the forged document. 7. The Appellant therefore submitted that the essential ingredient of making or preparing the forged documents was never proved and that the convictions on the forgery counts were unsafe. **Counts 7, 10 and 13 – Uttering False Documents** 1. The Appellant submitted that the prosecution failed to prove the offence of uttering false documents contrary to section 353 of the Penal Code. He relied on Muthoni v Republic (Criminal Appeal E090 of 2021) [2022] KEHC 14650 (KLR) where Kasango J held: “Uttering is the act of knowingly passing on a false document or using it.” 1. The Appellant submitted that the particulars alleged that he knowingly uttered the false receipts to Ahmed Ali Mohamed, an accounts clerk at Pembe Flour Mills. 2. However, Ahmed Ali Mohamed (PW8) testified that he never received the documents from the Appellant. Instead, he received them from the complainant’s own weighbridge clerk. The Appellant argued that the very person identified in the charge sheet as the recipient of the false documents expressly denied receiving them from him. 3. The Appellant further relied on **Were v Republic (Criminal Appeal E034 of 2022) [2023] KEHC 22483 (KLR)** where the court emphasized that the prosecution must first establish the identity of the person who uttered the false document before addressing issues of knowledge and intent to defraud. The court held that where the identity of the utterer is not established, the charge collapses. 4. The Appellant therefore submitted that the prosecution failed to establish that he presented or delivered the impugned documents to PW8 and consequently failed to prove the offence of uttering false documents. **Whether the Sentence was Harsh and Excessive** 1. The Appellant submitted that the sentence imposed by the trial court was harsh, excessive and disproportionate. He noted that he was convicted on eight counts and fined Kshs. 3,000,000/= on Count 1 and Kshs. 500,000/= on each of the remaining counts, with custodial sentences imposed in default. 2. The Appellant relied on **Kosgei v Republic (Constitutional Petition E008 of 2023) [2023] KEHC 27058 (KLR)** where the court held that punishment must be proportionate to the offender’s moral blameworthiness and that sentencing courts must consider all circumstances of the case before determining an appropriate sentence. The court emphasized the principle of proportionality between crime and punishment. 3. **The Appellant argued that the evidence only established that he supplied grain and received payment, but did not establish that he participated in weighing, document generation or fraudulent manipulation of records. He therefore contended that the sentences imposed did not reflect his actual level of culpability.** 4. The Appellant further submitted that the trial court erred in ordering the sentences to run consecutively. He referred to Paragraph 7 of the Judiciary Sentencing Policy Guidelines, which provides that offences arising from a single transaction should ordinarily attract concurrent sentences. 5. The Appellant further relied on John Waweru Njoka v Republic [2001] eKLR, where the Court of Appeal held: “It is an established principle of law that where offences are committed in one transaction, the sentences ought to run concurrently even when laid in separate counts.” 1. The Appellant submitted that all the offences for which he was convicted arose from the same transaction and that the order directing the sentences to run consecutively rendered the punishment excessive and unjust. He therefore urged the court to interfere with the sentence. 2. The Appellant submitted that the prosecution failed to prove the offences of conspiracy to defraud, forgery and uttering false documents beyond reasonable doubt. He further argued that the sentence imposed was harsh, excessive and based on an erroneous exercise of discretion. He therefore urged the court to allow the appeal, quash the convictions, set aside the sentences and grant the prayers sought in the Petition of Appeal. **RESPONDENT’S SUMISSIONS** 1. The Respondent submitted that the Appellant was properly convicted upon overwhelming evidence demonstrating a well-coordinated fraudulent scheme aimed at defrauding Pembe Flour Mills through the inflation of weights of maize and wheat deliveries and the use of forged supporting documents. 2. The Appellant had been charged alongside others with conspiracy to defraud, forgery, making false documents, uttering false documents and stealing. 3. The prosecution case was that between 22nd July 2013 and 8th February 2014, the Appellant and his co-accused conspired to inflate the weights of produce allegedly supplied to Pembe Flour Mills, generated fraudulent weighbridge tickets reflecting inflated weights and presented the same for payment. 4. The Appellant further presented false cess receipts purportedly issued by various County Governments to support his claims for payment. As a result of the fraudulent scheme, Pembe Flour Mills suffered a loss of Kshs. 218,665,038. 5. Following a full trial, the Appellant was convicted on one count of conspiracy to defraud, four counts of forgery and three counts of uttering a false document. 6. The Respondent reminded the Court of its duty as a first appellate court as set out in **Odhiambo v Republic Criminal Appeal No. 280 of 2004**, namely, that the Court is required to re-evaluate and analyze the evidence afresh and arrive at its own independent conclusions while bearing in mind that it did not have the advantage of observing the demeanour of witnesses during trial. 7. The respondent further submitted that the prosecution discharged its burden of proof under Section 107 of the Evidence Act and proved all the essential ingredients of the offences charged under Sections 317, 345 and 353 of the Penal Code beyond reasonable doubt. 8. The Respondent contended that the criminal charges were properly disclosed, the prosecution proved its case beyond reasonable doubt and that the defence was duly considered by the trial court. 9. According to the respondent the conviction was based on sound evidence and the sentence imposed was lawful and justified in the circumstances. 10. The Respondent relied heavily on the testimony of PW1, Salim Abubakar Bajaber, the Managing Director of Pembe Flour Mills. 11. PW1 explained the procurement and payment procedures employed by the company and testified that in January 2014 he noticed discrepancies between actual stocks of maize and wheat and the stock records maintained by the company. 12. He directed PW3, the Internal Auditor, to conduct investigations which revealed that substantial overpayments had been made to the Appellant through the manipulation of weights recorded at Weighbridge No. 1. 13. The fraud was uncovered after duplicate weighbridge tickets extracted directly from the machine were compared with weighbridge tickets used for payment. 14. Although the tickets bore identical serial numbers, the versions used for payment reflected inflated weights. PW1 testified that this discrepancy occasioned a loss of Kshs. 218,665,038 to the company, with the Appellant being the principal beneficiary. 15. PW1 further testified that Accused 2, Mohammed Khalifa, admitted involvement in the fraud and disclosed that he had been recruited into the scheme by Accused 3, Josphat Okeyo. 16. Mohammed Khalifa subsequently withdrew and surrendered Kshs. 1,027,000 from his bank accounts, which he admitted constituted proceeds of the fraudulent activities. 17. PW1 also stated that he caused an affidavit to be recorded before PW15, an Advocate, in which Mohammed Khalifa detailed the manner in which the fraud had been perpetrated. 18. The matter was thereafter reported to the police and all relevant documentation, including weighbridge tickets, payment vouchers and cess receipts, was handed over to investigators. 19. The Respondent further relied on the evidence of PW2, Arthur Omondi, who installed and maintained the weighbridge systems at Pembe Flour Mills. 20. PW2 testified that the weighbridges captured weight automatically and could not be manipulated manually. 21. He explained that the system only generated one original weighbridge ticket and any subsequent printout would automatically be marked as a duplicate. 22. Upon examining the disputed tickets, he concluded that one set could not have originated from the company’s weighbridge system and was likely generated externally using a printer outside the company premises. 23. He also extracted weighbridge data covering the relevant period and produced the same in evidence. 24. PW3, the Internal Auditor corroborated PW1’s testimony. He testified that after conducting stock verification exercise he established significant shortages in physical stock despite records showing otherwise. 25. Following an analysis of weighbridge reports and payment documents, he discovered that discrepancies existed only in transactions processed through Weighbridge No. 1, which was operated by Accused 2. 26. He confirmed that the fraudulent transactions were linked to the appellant and produced comprehensive audit reports detailing the inflated weights and resultant losses. 27. The evidence of PW4 through PW10 was said to have established the operational procedures at Pembe Flour Mills relating to entry of vehicles, weighing, grading, receiving produce and payment processing. 28. Their testimony demonstrated how the appellant’s deliveries were processed and how payment documentation moved through various departments before payment was authorized. 29. The witnesses also confirmed that the impugned transactions were processed using documentation later found to contain inflated weights. 30. The Respondent further submitted that the falsity of the cess receipts used by the Appellant was conclusively established through the testimony of county officials from Kakamega, Laikipia and Narok Counties. 31. PW11, PW12 and PW13 each testified that the receipts purportedly originating from their respective county governments were not genuine. They identified multiple anomalies including obsolete county council letterheads, incorrect serial numbers, improper formats, wrong logos, missing official stamps and inconsistencies with official county records. Their evidence was that the receipts could not have originated from their respective county governments. 32. The Respondent also relied on banking evidence produced by PW14, PW16 and PW17. 33. The evidence established that Mohammed Khalifa indeed withdrew the sums allegedly surrendered to the Managing Director and further demonstrated that substantial payments were made by Pembe Flour Mills to the Appellant. The bank records confirmed the receipt of the impugned funds by the Appellant. 34. Particular reliance was placed on the evidence of PW19, who testified that although certain duplicate weighbridge tickets bore his name, he neither made the deliveries reflected therein nor received any corresponding payments. The prosecution contended that this demonstrated the fraudulent nature of the documentation used to facilitate payments to the Appellant. 35. The Respondent further submits that the expert evidence of PW20, the document examiner, remained uncontroverted. 36. **PW20** established that signatures appearing on the questioned documents belonged to the accused persons, that the stamp impressions differed from genuine company stamps and that the logos and watermarks appearing on PEXH 17 and PEXH 18 originated from different machines and processes. His findings demonstrated that the documents relied upon for payment had been forged. 37. The evidence of PW21 and PW22, particularly that of the investigating officer demonstrated the existence of a conspiracy among the accused persons. 38. PW22 testified that he received 430 original weighbridge tickets and 430 corresponding duplicate tickets bearing identical serial numbers but different weights. His investigations revealed substantial MPESA transfers from the Appellant to his co-accused persons. 39. He also confirmed through inquiries with the relevant county governments that the cess receipts were fake. Upon analysing all the documentary, electronic and oral evidence, he concluded that the Appellant and his co-accused conspired to defraud Pembe Flour Mills through the use of inflated weights and forged documents. 40. He further explained that the total payments made to the Appellant amounted to Kshs. 619,652,623 while genuine payments should have amounted to Kshs. 400,987,585, thereby accounting for the loss of Kshs. 218,665,038 reflected in the charge sheet. 41. With regard to the defence case, the Respondent submitted that it failed to rebut the prosecution evidence. 42. The existence of two sets of weighbridge tickets bearing identical serial numbers, dates and vehicle registrations but different weights was never successfully challenged. Likewise, the findings of the document examiner remained unchallenged, and no independent forensic examination was sought by the defence. The evidence from county officials proving that the cess receipts were false also remained unrebutted. 43. The Respondent argued that the Appellant was the greatest beneficiary of the fraudulent scheme because the payments arising from the inflated weights were deposited directly into his accounts. 44. The appellant signed payment vouchers acknowledging receipt of the funds and never disputed receiving the sum of Kshs. 218,665,038 arising from the fraudulent transactions. 45. The MPESA statements further demonstrated the existence of the conspiracy as they showed substantial payments made by the Appellant to his co-accused persons. Although the Appellant attempted to explain the payments as tokens of appreciation, the Respondent submits that this explanation was implausible because the recipients were already salaried employees of Pembe Flour Mills and no similar payments were made to other employees involved in the procurement process. 46. In answer to the Appellant’s contention that the prosecution failed to prove who actually forged the documents, the Respondent relies on **Alexander Muteti Mutinda & Another v Republic [2015] eKLR**, where the Court held: “it was not necessary for the prosecution to establish who actually made the documents if it managed to establish that the Appellant presented the said documents to the complainant with a view to inducing her to pay them the said sum of money as a consideration for the purported purchase of the suit property. The appellants were the beneficiaries of the said forgeries. That ground of appeal fails.” 1. The Respondent submitted that the same reasoning applies in the present case because the Appellant was the beneficiary of the forged documents and the fraudulent payments made thereunder. 2. The Respondent therefore maintained that the prosecution presented consistent, credible and corroborated evidence proving the offences beyond reasonable doubt, that the issues raised on appeal were fully addressed by the trial court, and that both the conviction and sentence were proper. 3. The respondent urged the court to dismiss the appeal in its entirety. **VICTIM'S WRITTEN SUBMISSIONS** **Scope of the First Appeal** 1. The Victim submitted that this court, being a first appellate court, is obligated to reconsider and re-evaluate the evidence presented before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. 2. The victim cited the case of **Okeno v Republic [1972] EA 32**, where the court held that a first appellate court must reconsider the evidence, evaluate it and draw its own conclusions while giving due allowance to the trial court's advantage of observing the demeanor of witnesses. **Issue 1: Whether the Prosecution Proved the Offences Beyond Reasonable Doubt** 1. The Victim submitted that the appeal does not challenge the evidence itself but merely attacks the consequences flowing from the evidence. According to the Victim, the evidence adduced before the trial court conclusively established that false weighbridge tickets and fabricated cess receipts were used to process payments for produce that was never delivered, leading to a loss of Kshs. 218,665,038/= to Pembe Flour Mills Ltd. 2. The Victim contended that the trial court carefully analyzed both documentary and oral evidence before reaching its findings. **Conspiracy to Defraud** 1. The Victim submitted that the prosecution established a coordinated fraudulent scheme involving manipulation of weighbridge records, fabrication of cess receipts and processing of payments for fictitious grain deliveries. 2. It was argued that the evidence demonstrated a common design among the participants and that the Appellant was a beneficiary of the fraudulent payments. 3. The Victim further contended that the trial court correctly inferred the existence of a conspiracy from the surrounding circumstances and the conduct of the parties. 4. The Victim further submitted that the Appellant's argument that there was no direct evidence of communication between him and the co-accused persons was misplaced because conspiracy is ordinarily proved through circumstantial evidence demonstrating a common unlawful purpose. 5. According to the Victim, the evidence showed that payments were processed in the Appellant's favour using fabricated documents and that substantial sums were transferred to him as a result of the fraudulent scheme. **Forgery** 1. The Victim submitted that the offences of forgery were directly established through documentary evidence and expert testimony. 2. It was argued that duplicate weighbridge tickets were generated bearing identical serial numbers, dates and vehicle details but reflecting different weights. 3. The Victim maintained that the weighbridge system automatically generated original tickets and that any duplicate tickets bearing altered weights could not have originated from the official system. 4. The Victim relied on the evidence of the document examiner (PW20), who examined the questioned weighbridge tickets alongside genuine tickets and established that the questioned tickets were produced through a different printing process and bore non-authentic weighbridge stamp impressions. 5. It was submitted that the examiner further confirmed that the questioned tickets were manufactured outside the official weighbridge system and were therefore fabricated documents. 6. The Victim argued that the offence of forgery was complete once false documents were created to resemble authentic weighbridge outputs. It was contended that the machine-generated records and forensic evidence conclusively demonstrated that the questioned tickets were fabricated and not products of the official weighbridge system. 7. The Victim relied on **R v Dodge and Harris [1971] 2 All ER 1523**, where the court defined a false document as: “A document is false… if the whole or any material part thereof purports to be made by or on behalf of a person who did not make it or authorize its making...” 1. The Victim further relied on **Joseph Mukuba Kimani v Republic (Criminal Appeal No. 76 of 83) [1984] eKLR** on the meaning of forgery and its relationship to inducing another person to act upon a false document. 2. The victim also cited **Caroline Wanjiku Ngugu v Republic [2015] eKLR**, where Mativo J identified the essential ingredients of forgery as: * False making; * Material alteration; * Ability to defraud; * Legal efficacy; and * Intent to defraud. 1. The Victim submitted that all these elements were proved because the questioned documents were false and were relied upon for payment processing and resulted in financial gain to the Appellant. **Uttering False Documents** 1. The Victim submitted that the offence of uttering false documents was equally established. 2. It was argued that payment could only be processed after a supplier submitted supporting documentation including cess receipts. According to the Victim, the Appellant personally presented documents which were later found to be false and thereafter received payment based on those documents. 3. The Victim contended that once a person knowingly presents a forged document and benefits from it, liability for uttering arises. It was submitted that the banking records and payment vouchers demonstrated that payments were processed in favour of the Appellant and deposited into his accounts, thereby linking him directly to the forged documents and the resulting financial benefit. 4. The Victim argued that the Appellant's receipt and retention of funds triggered by the false documents established both knowledge and intent to defraud. The documentary evidence and banking records were said to provide a direct evidentiary link between the false documents and the payments received by the Appellant**.** **Conduct of the Appellant** 1. The Victim further submitted that the Appellant's conduct after payment supported an inference of guilty knowledge. Investigators established that substantial sums received by the Appellant were subsequently transferred to employees responsible for weighing, grading and processing grain deliveries. 2. According to the Victim, those employees were ordinary salaried workers with no lawful entitlement to such payments. The Victim therefore argued that the transfers demonstrated collusion and participation in the fraudulent scheme. 3. The Victim maintained that the prosecution case was supported by a complete chain of documentary evidence, including weighbridge records, cess receipts, banking records, audit findings and expert testimony, all of which pointed to the Appellant’s involvement in the fraud. **Issue 2: Whether the Trial Magistrate Properly Evaluated Both the Prosecution and Defence Evidence** 1. The Victim submitted that the trial magistrate thoroughly considered the Appellant's defence but correctly rejected it because it failed to rebut the prosecution evidence. It was argued that the trial court first analysed the prosecution case and only thereafter considered the defence before reaching its conclusions. 2. The Victim contended that the defence failed to explain the existence of duplicate weighbridge tickets, failed to challenge the expert findings and failed to explain the false cess receipts. The trial court was therefore entitled to find that the defence amounted to a mere denial unsupported by documentary evidence. 3. It was further submitted that the trial court properly considered all material evidence including the testimony of the Managing Director, the internal auditor, county officials, the bank witness, the document examiner and the investigating officer. According to the Victim, the evidence established a coherent and consistent narrative linking the Appellant to the fraudulent transactions. 4. The Victim argued that the trial court's reasoning was cumulative and that each category of evidence reinforced the others. Consequently, the defence did not create any reasonable doubt capable of displacing the prosecution case. **Issue 3: Whether the Sentence Imposed Was Lawful and Justified** 1. The Victim submitted that the sentence imposed was lawful, proportionate and justified in the circumstances of the case. It was argued that the Appellant occupied a central role in a fraud that resulted in losses exceeding Kshs. 218 million and that he was the principal beneficiary of the proceeds. 2. The victim cited the case of **Vanjema v Republic [1971] EA 493**, where the court stated that an appellate court should not interfere with sentence unless it is shown that the sentencing court acted on a wrong principle, overlooked material factors or imposed a manifestly excessive sentence. 3. The Victim submitted that the trial court took into account the scale of the fraud, the duration of the scheme, the financial loss suffered and the Appellant's role in the offence. It was therefore argued that the sentence was neither harsh nor excessive but reflected the seriousness of the conduct proved. 4. The Victim further submitted that the offences involved a sophisticated and coordinated scheme designed to manipulate the complainant company's systems through fabricated documents and fraudulent records. According to the Victim, deterrence was therefore an important sentencing objective in the circumstances. **Issue 4: Whether the Court Should Have Ordered Restitution to the Victim** 1. The Victim submitted that the trial court erred by failing to consider restitution despite convicting the Appellant. It was argued that the criminal justice system does not exist solely to punish offenders but also to restore victims who have suffered loss. 2. The victim relied on the case of **Wasya v Republic (Petition 23 of 2019) [2020] KESC 23 (KLR)**, where the Supreme Court emphasized that victims' rights must be respected and upheld throughout criminal proceedings. 3. The Victim also relied on **Chandi v Republic (Criminal Revision E1529 of 2024) [2025] KEHC 12042 (KLR) (Crim) (31 July 2025) (Ruling)**, where the court clarified that compensation and restitution are intended to prevent victims from being forced to institute separate civil proceedings after criminal liability has already been established. The decision emphasized that restitution promotes the restorative objectives of criminal justice. 4. The Victim submitted that Pembe Flour Mills Ltd lost Kshs. 218,665,038/= directly as a result of the fraudulent scheme and that once the loss had been established through evidence, the court was obliged to consider compensation or restitution. It was argued that failure to order restitution left the victim uncompensated despite the conviction of the offender. 5. The Victim therefore urged the court, while upholding the conviction and sentence, to vary the orders of the trial court and direct restitution in favour of Pembe Flour Mills Ltd in the sum of Kshs. 218,665,038/= together with any other appropriate relief. 6. The Victim further submitted that the prosecution proved the offences beyond reasonable doubt through documentary evidence, expert testimony, banking records and audit findings. 7. He further argued that the trial court properly evaluated both the prosecution and defence cases and arrived at the correct conclusion. The Victim further maintained that the sentence imposed was lawful and proportionate and urged the court not only to dismiss the appeal and uphold the conviction and sentence but also to order restitution of Kshs. 218,665,038/= in favour of Pembe Flour Mills Ltd. **ANALYSIS AND DETERMINATION** 1. The duty of this court as a first appellate court is to re-evaluate the evidence tendered before the lower court, re-examine the same and draw its independent conclusions on the evidence whilst remembering that unlike the trial court this court did not have the advantage of hearing nor seeing the witnesses. 2. The court is guided by the decision in **Okeno v Republic [1972] EA 32**, where the court held that a first appellate court must reconsider the evidence, evaluate it and draw its own conclusions while giving due allowance to the trial court's advantage of observing the demeanor of witnesses. 3. The gist of the appellants appeal is that the case against him was not proved to the required standard and that the trial court erred in convicting and sentencing him. 4. The appellant submitted that there was no evidence to show that he forged the documents used to process the payments thus the court should at the conclusion of the trial declared him innocent of the charges and acquitted him. 5. The appellant did not however from the analysis of the evidence deny the receipt of payments from the complainant company. It follows therefore that he was the principal beneficiary of the proceeds of crime which were proved to have been more than ksh 200,000,000. 6. The court noted from the evidence of Pw1, 2 and 3 that there was evidence that forged receipts were presented for payment and payments processed into the appellants accounts. 7. If one was for a moment to agree with the appellant that he was not privy to any fraud that was going on in the company, the question that one would need to ask then is this; who is that was in the company manufacturing receipts and making payments to the appellants accounts? 8. Further, if the appellant was not part of the conspiracy, why is it that upon receipt of payment in his account he would go on a gifting spree of the employees of the company through Mpesa payments as per the evidence of Pw 22 who stated that through investigations, he established that the appellant paid money to the employees of the company. The witness also testified that he was able to establish that the appellant received a total of 192 open cheques from the complainant for the sum of Ksh 218,665,038 and from the proceeds he sent money to some employees for unspecified reasons. 9. The appellant by feigning ignorance about the goings on in the company was trying to desperately distance himself from what clearly was a fraudulent scheme against the complainant company hatched by himself in cahoots with the employees of the complainant company. 10. The evidence of Pw1was clear on who would bring cess receipts to the company to support his claim for payment and that was the supplier. The appellant. 11. The appellant could not therefore have been paid, payment which remains undisputed without producing cess receipts from the county of product origin of the product. 12. The mere fact that there was no direct evidence to prove that he actually forged the cess receipts cannot absolve him from criminal culpability. 13. The circumstantial evidence available to the court regarding the manner in which payments were processed and made would lead this court to the irresistible conclusion that the appellant forged the documents used to process payments or he was an active participant in the fraudulent scheme thus the evidence satisfied the requirements of the law in regard to principal offenders under Section 20 of the Penal Code which provides; ***“ Principal offenders*** ***(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say;-*** ***(a) every person who actually does the act or makes the omission which*** ***constitutes the offence;*** ***(b) every person who does or omits to do any act for the purpose of*** ***enabling or aiding another person to commit the offence;*** ***(c) every person who aids or abets another person in committing the*** ***offence;*** ***(d) any person who counsels or procures any other person to commit the offence, and in the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission.*** 1. The evidence presented by the prosecution left no doubt that the appellant was a supplier to the company, payments were processed in his favor, the funds were received in his account and that the funds were utilized by him and part of the sums received he shared out with the employees of the company. 2. The prosecution through pw1 connected the overpayments to the appellant and the bank official corroborated the evidence of receipt of the funds by the appellant. 3. In **Sawe vs Republic (Criminal Appeal 2 of 2002) {2003} KECA 182 (KLR)** the court held;- “**As we have already pointed out. the evidence in this case was entirely circumstantial. In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden, which never shifts to the party accused’’** 4. The evidence by the prosecution connected the appellant to the claim for payments, the documents relied on in processing the payments, the account into which the funds were deposited and withdrawn and the distribution of the funds received to persons who were employees of the victim company. 5. The inculpatory facts presented were so overwhelming and there could not have been any other reasonable hypothesis other than that of guilt. 6. The scheme was carefully executed by the appellant jointly with the employees of the victim company and the payments he made to the employees of the company through Mpesa as per the evidence of Pw21 and Pw22 supported the charge of Conspiracy to commit the fraud. 7. The audit report also revealed inflated weights and the documents relied on according to Pw22 were found to be forgeries. The witness was able to establish that the appellant and employees of the victim company conspired to swindle the company through illicit payments to him. 8. The appellants contention therefore that he was not involved in the fraudulent activities involving forgery of weighbridge receipts and cess receipts from the counties could not hold in view of the audit report and the evidence of Pw22. The appellant was the one who made the claims for payment and the supporting documents were forgeries. The irresistible conclusion that this court draws is that he forged the documents in concert with the co-accused to perpetuate the fraud with him being the highest beneficiary. 9. Pw20testified that the forged documents upon examination showed that they did not originate from the company system but were all made from a different machine. 10. The evidence thus leaves no doubt that the appellant and the employees of the company connived in the making of the documents and processed the payments into the appellants accounts which they thereafter distributed amongst themselves with the appellant being the controller of the funds and deciding how much would go to each employee. 11. The inculpatory evidence was thus direct and circumstantial connecting the appellant to the offences charged. 12. The conviction was thus safe and this court finds no reason to interfere with it. 13. On sentence the appellant told this court that the sentence was excessive and invited the court to consider reviewing the same. 14. The appellant further argued that the offence formed part of a series and therefore the sentences should have been concurrent. 15. The court sentenced the appellant; - **a).** Count 1 to a fine of Kenya shillings Three million in default to serve two years imprisonment **b).** Counts 3, 6, 7,9, 10, 12 and 13 to a fine of Ksh Five hundred thousand each in default to serve two years imprisonment. 1. It does appear to this court that the learned Hon Magistrate in exercise of his discretion in sentencing elected to sentence the appellant by way of a fine and in default to serve the default sentence of 2 years in each count. 2. Sentencing is discretionary and the trial court in imposing a sentence is bound to consider the circumstances of the case and be guided by the sentencing guidelines issued by the judiciary. The guidelines are not binding but are meant to ensure that there is consistency in sentencing and transparency in the manner in which courts hand down sentences. 3. The trial court must also consider imposing a proportionate sentence based on the moral blameworthiness of an accused person. A sentence is not meant to be too lenient as to erode public confidence on the justice administration and neither should it be too harsh as to render it unconscionable and disproportionate. The sentencing court must strive to do justice and render a sentence that any informed, reasonable and fair minded bystander fully seized of the facts of the matter would say that justice has not only been done but can be seen to have been done. 4. The trial court must be guided by the evidence and sound legal principles. The Court of Appeal in the case of *Ogolla s/o Owuor v Republic*, (1954) EACA 270, held as follows: - “The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.” 1. The applicable principles in considering sentence on appeal were restated by the Court of Appeal in *Bernard Kimani Gacheru v Republic* [2002] eKLR, in the following terms: ***‘’ It is now settled law, following several authorities by this court and the high court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account the wrong material, or acted on the wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist****”.* 1. The facts of each case thus to a larger extent dictate the nature and type of sentence to impose. 2. Clause 1.3 of the *Sentencing Guidelines* (2023), identifies the objectives of sentencing as: - “a) **Retribution**: To punish the offender for his/her criminal conduct in a just manner. It serves to deter future crime. Victims and society might feel satisfied that the criminal justice system is functioning well when they learn that the offender has received an appropriate sentence for their crimes, which raises trust in the criminal justice system. b) **Deterrence:** To deter the offender from committing a similar offence or any other offence in future as well as to discourage the public from committing similar offences. Thus, it is divided into two components: individual and general deterrence. Individual deterrence is to dissuade the perpetrator with the objective to inflict a punishment severe enough to deter the offender from engaging in criminal activity. The convict is expected to be discouraged from committing crimes in the future as a result of the sentence. The society is the target of general deterrence. Other people are deterred from committing those offences by the punishment meted out to those who commit them. c) **Rehabilitation:** To enable the offender reform from his criminal disposition and become a law-abiding person. It aims at changing the offenders and make it easier for them to reintegrate into society, through a variety of programs and treatments. It focusses on treating the root reasons of criminal behaviour, such as dependency, mental health conditions, or a lack of education. The objective is to give the offender the resources and assistance they need to upon release, become law-abiding citizens. d) **Restorative justice**: To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the meeting those needs. Any harm done to the victim may be compelled to be repaired or restored by the court. The goal is to put the victim back in his precrime status or position. The goal of restoration is to make up for any harm the perpetrator has caused the victim. e) **Restitution;** deters crime by financially penalizing the offender. It is some what like a civil lawsuit damages judgement and occurs when the court directs the offender to compensate the victim for any injury. Restitution may be required in cases of financial loss, property damage, and, in rare cases, mental suffering. It may also take the form of a fine to help defray part of the expense of the criminal investigation and punishment. 1. The objectives set out above are not exhaustive but this court considers these four as key considerations especially where the offence involves the financial loss to the complainant. 2. The court in this matter chose to sentence the appellant to pay a fine and in default imposed 2 years imprisonment on each count. 3. The court having settled on imposition of a fine should not have given a default sentence in excess of 12 months on each count. 4. To the extent that the magistrate failed to consider the provisions of Section 28 of the penal code, the sentence was illegal and to that extent the court would be inclined to intervene, and in place of the 2year default sentence order that the same be substituted with a default sentence of 12 months. 5. The court also did not properly apply its mind to the sentencing guidelines of the court and make restorative orders restitution or compensation. 6. The prosecution through the evidence of Pw1,2 ,3 and 22 were able to prove beyond a reasonable doubt that the appellant received proceeds of crime from the victim company in the sum of Ksh 218,665,038. The fact of loss was a material fact which the court ought to have considered in sentencing thus having failed to do so, this court must step in and remedy the situation. 7. The fact of the irregular payments to the appellant appears to have been ignored by the trial court during sentencing. The trial court in did not in this courts view exercise its discretion in sentencing judiciously. The victim of the crime appears to have been forgotten in terms of the financial loss suffered. 8. The provisions of Sections 23, 24 25 and 26 of the Victims Protection Act are express on compensation orders thus the court ought to have considered that in sentencing. 9. The learned Honorable Magistrate ought to have also considered a compensation order under Section 175 of the Criminal Procedure Code since the loss was quantifiable and there was evidence that the appellant received all the funds into his accounts. 10. This court is minded in line with the sentencing guidelines of the court, applying the provisions of the Criminal Procedure Code and the Victims Protection Act to interfere with the sentencing discretion of the trial court and order that in addition to the fines that the trial magistrate ordered against the appellant, the appellant shall compensate the complainant the Sum of Ksh 218,665,038. 11. An order for compensation in a criminal trial is in addition to the sentence imposed by a trial court and once a court is able to establish from the evidence that the victim suffered a quantifiable loss, the court should make an order for compensation to the victim. 12. In **Hari Kishan & Anr vs Sukhbir Singh & Ors** on 25 August, 1988 Equivalent citations: 1988 AIR 2127, 1988 SCR SUPL. (2) 571, AIR 1988 SUPREME COURT 2127, 1988 (4) SCC 551, (1988) 2 RECCRIR 394, 1988 BBCJ 161, 1988 RAJLR 527, (1988) ALLCRIC 551, 1988 APLJ(CRI) 438, 1989 CRILR(SC&MP) 128, (1988) 3 CRIMES 541, (1988) 2 LS 27, 1988 SCC (CRI) 984, (1988) 3 JT 711 (SC), 1988 (2) KLT SN 80 (SC) the Indian Supreme Court held;- ***“Section 357 empowers the Court to award compensation to victims while passing judgment of conviction. This power of Courts to award compensation to victims is not ancillary to other sentences but it is in addition thereto. This power is intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is recommended to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.”*** 13. An order for compensation will communicate unequivocally the message that crime does not pay to the appellant. The sentence imposed upon the appellant in this case would not deter any one in the future from committing such acts, thus the intervention by this court. 14. The appellant shall make good the compensation within 6 months from the date of the judgment. The provisions of Section 334 of the Criminal Procedure Code shall thereafter apply. 15. The upshot of the above is that the appeal on conviction is dismissed in its entirety but the appeal on sentence succeeds as stated above. 16. The appellant shall therefore pay the fines imposed in respect of each count and in default shall serve 1 year imprisonment for each count consecutively considering that incidents occurred at different times over a span of 6.5 months. In addition, shall pay the compensation as ordered above. 17. It is so ordered. **DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 23RD day of JUNE 2026**. **A. M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Khaemba for the Appellant Mr. Mogere for Respondent Ms Akinyi h/b Muganda for complainant