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Court of AppealAllowedCriminal Appeal (not separately numbered in the judgment)

Omar v Republic (Criminal Appeal E094 of 2023) [2024] KECA 1670 (KLR)

Court of Appeal of Kenya
22 November 2024
4,610 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal quashed a county finance official's corruption conviction, ruling that acting reasonably during a genuine crisis is not a crime.

What this practically means

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Executive summary

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The Court of Appeal (Kiage, Ali-Aroni and Achode, JJA) allowed the appellant's second appeal against conviction for wilful failure to comply with the laws relating to management of public property under section 45(2)(b) as read with section 48 of the Anti-Corruption and Economic Crimes Act. The appellant, then CEC Finance for Wajir County, had written to the bank designating one Jefi Mworia as sole signatory to the county imprest account contrary to Regulation 85(2) of the Public Finance Management (County Governments) Regulations, 2015, during the absence of the newly appointed Chief Finance Officer and amid unpaid casual workers' demonstrations and political tension. Both the trial magistrate and the High Court (Maina, J.) had convicted and upheld the conviction. The Court of Appeal, confined by section 361(1) of the Criminal Procedure Code to matters of law, held the offence was not proved beyond reasonable doubt: there was no intentional and deliberate desire to flout the law. The appellant's conduct amounted in law to the defence of necessity, recognized at common law and arguably codified by section 92 of the Public Finance Management Act imposing a duty to resolve financial crises; the prosecution failed to rebut it. The court faulted the learned judge for contradictory reasoning, for assuming without evidence that other officers could have been designated, and for wrongly proceeding on the basis that Mworia fraudulently took the withdrawn funds when he had been acquitted. The conviction was quashed, the sentence set aside, and the appellant ordered released forthwith.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether, on the record and given the defence mounted by the appellant, the offence of wilful failure to comply with the laws relating to management of public property was proved beyond reasonable doubt
  2. 2.Whether the appellant's designation of a sole signatory to the County imprest account amounted to a wilful or careless failure to comply with the law under section 45(2)(b) of the ACECA
  3. 3.Whether the appellant's explanation of acting to avert a crisis (a defence of necessity) required the prosecution to rebut it

Key legal issues

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01

Whether the offence of wilful failure to comply with the law was proved beyond reasonable doubt

Holding

The conviction was unsafe; the prosecution did not prove wilfulness, and the appellant's action in designating a sole signatory during a genuine crisis was a reasonable response amounting in law to the defence of necessity, entitling him to the benefit of doubt.

Reasoning

The court held that giving full meaning to section 45(2)(b) of ACECA, the appellant's conduct did not amount to a wilful or careless failure to comply with the law. Faced with unpaid casual workers demonstrating amid political tension and the absence of the newly appointed Chief Finance Officer, the appellant acted under compulsion of circumstances. The trial magistrate and the judge failed to inquire whether his action was reasonable, and the judge wrongly theorized about alternative appointees without evidence. The money withdrawn was used to pay salaries, and the signatory Mworia himself had been acquitted.

p. 8
02

Whether the learned judge's reasoning on the appeal was vitiated by contradiction and errors

Holding

Yes. The judge contradicted herself by faulting the appellant for usurping the power to designate signatories while simultaneously holding he should have designated a second signatory, and she relied on an erroneous assumption that Mworia fraudulently took the withdrawn funds.

Reasoning

The judge had earlier found the appellant had no legal duty or power to designate signatories, yet criticized him for not appointing another signatory alongside Mworia. There was no evidence of other officers who could have been designated. The judge also allowed the fact of withdrawals to colour her assessment, proceeding on the erroneous basis that Mworia took the money for himself when the evidence showed it paid pending salaries and Mworia was acquitted of the related charges.

p. 7

Legal principles established

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  • On a second appeal, the Court of Appeal's jurisdiction is restricted to matters of law only.
  • Where an accused's sworn testimony and cross-examination of witnesses raise a defence such as necessity, the prosecution is bound to rebut it; failure to do so leaves the benefit of doubt with the accused.
  • Section 92 of the Public Finance Management Act, imposing on the CEC Finance a duty to resolve a financial crisis, amounts to a statutory codification of the defence of necessity in the criminal-liability context.
  • For an offence of wilful failure to comply with the law, the prosecution must prove beyond reasonable doubt an intentional and deliberate desire to flout the law; courts must also inquire whether the officer's action was reasonable in the circumstances.

Court orders

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  1. 1.The appellant's conviction for wilful failure to comply with the laws relating to management of public property is quashed
  2. 2.The sentence of a fine of Kshs.800,000 and, in default, four years' imprisonment is set aside
  3. 3.If the appellant is held on account of this case, he shall be set at liberty forthwith unless otherwise lawfully held

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya, Anti-Corruption and Economic Crimes Division at Nairobi
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code - second appeal restricted to matters of law

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result, we quash the appellant's conviction, set aside the sentence and direct that if held on account of this case, the appellant shall be set at liberty forthwith unless otherwise lawfully held.
p. 8Final orders - conviction quashed, sentence set aside, release directed
We think that had the two courts below attempted an enquiring into whether the appellant's action was in the circumstances reasonable, they would as likely as not have concluded in the afirmative. Being of that view ourselves, we must conclude that the appellant was entitled to and should have been accorded the benefit of doubt.
p. 8Benefit of doubt and duty to assess reasonableness
Given the full circumstances of the case, it seems to us that on a proper reading of the charge, and giving the words of section 45 (2)(b) of ACECA full and proper meaning, the appellant's action cannot be said to have amounted to a wilful or careless failure to comply with the law.
p. 7Construction of section 45(2)(b) ACECA - wilfulness
The version the appellant presented amounted to in law, though not expressly so characterized and articulated, was the defence of necessity.
p. 8Defence of necessity recognized on the facts

Issues in the judgment

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minor

The judgment inconsistently records the withdrawn sum, variously stated as Kshs.26.1 million and Kshs.21,000,000.

minor

The trial court is recorded as holding that section 119(1) of the Act placed no duty on the CEC Finance, but the provision referenced is not clearly identified as belonging to the ACECA or another statute in the judgment text.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Omar v Republic (Criminal Appeal E094 of 2023) [2024] KECA 1670 (KLR)", Case Analysis (2024). Criminal Appeal (not separately numbered in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1670/eng@2024-11-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.