Mary Ngenchi Ng’ethe & 1 other v Republic
The bottom line
#Kenya's Court of Appeal confirmed that public officials can't hide behind 'good faith' when they knowingly mislead their employer in procurement.
What this practically means
#Executive summary
#Key legal issues
#Duty of the first appellate court
The learned Judge properly re-evaluated the evidence and reached his own independent conclusion; no error in the discharge of his mandate.
The Court reviewed the High Court judgment and found the Judge had recalled his duty as a first appellate court, rehashed and analysed the evidence, and reached an independent conclusion, consistent with the principles in Erick Onyango Ondeng' and David Njuguna Wairimu (citing Okeno v R). Accordingly, the ground that the Judge failed to re-evaluate the evidence failed.
Alleged defective charge and contradictions
The variance in dates was not material; the charge sufficiently informed the appellant of the offence; alleged contradictions were not pinpointed and did not vitiate the conviction.
Applying the substantive rather than formalistic test for fatally defective charges, the Court found the particulars informed the appellant of his alleged role as Secretary of the Evaluation Committee in submitting misleading minutes. Counsel failed to identify with precision other alleged contradictions or how they prejudiced the appellant, so the ground failed.
Right to fair hearing and consideration of defence submissions
The trial court considered the defence submissions even though not reproduced verbatim; the appellant was not denied a fair hearing.
The record showed that after the case was placed before a new magistrate in compliance with section 200 of the Criminal Procedure Code, counsel confirmed the appellant would not call evidence, and the trial court referred to the defence submissions. Submissions are a rehash of legal principles, not evidence, and the trial court and Judge both considered them.
Section 178(1) Public Procurement and Asset Disposal Act good-faith immunity
The immunity is not absolute; the appellant did not raise good faith below and, in any event, acted with malicious intention, so the defence fails.
The Court adopted the objective reasonableness test from Harlow v Fitzgerald as adopted by the Supreme Court in Bellevue Development, holding that good faith must be established through evidence and is a question of fact for the trial and first appellate courts. The appellant knowingly presented minutes showing members attended a meeting they did not, and knew there was no valid valuation, so he could not have acted in good faith.
Alleged shifting of the burden of proof
The learned Judge merely summarised the proceedings and properly applied section 111 of the Evidence Act; no burden-shifting occurred.
The passage complained of was a summary at the start of the High Court judgment, before its independent analysis. Under section 111 of the Evidence Act, an accused may bear a burden, on a balance of probabilities, to explain facts peculiarly within his own knowledge; this does not shift the prosecution's burden of proving guilt beyond reasonable doubt.
Sentence on second appeal
Severity of sentence is a matter of fact outside section 361 jurisdiction; the Court would not interfere absent enhancement by the High Court or want of power in the trial court.
Under section 361(1)(b) of the Criminal Procedure Code, sentence appeals are entertained only where the sentence was enhanced by the High Court or the trial court lacked power to impose it. Sentencing is discretionary, and an appellate court must not interfere merely because it would have imposed a different sentence.
Legal principles established
#- On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law; severity of sentence is a matter of fact and outside that mandate.
- A charge sheet is fatally defective only if the defect is substantive and prejudices the accused in understanding and answering the charge.
- The good faith defence under section 178(1) of the Public Procurement and Asset Disposal Act is not absolute; it requires proof of honest belief in lawfulness and objective reasonableness, and ceases to apply where the accused knew or should have known the action violated his oath of office.
- Discrepancies in prosecution evidence warrant acquittal only if they create a genuine doubt as to the accused's guilt; otherwise they may be overlooked.
- While an accused generally bears no legal burden of proving innocence, section 111 of the Evidence Act may place an evidential burden, discharged on a balance of probabilities, regarding facts peculiarly within his knowledge.
Court orders
#- 1.The 1st appellant's (Mary Ngechi Ngethe's) appeal marked as withdrawn pursuant to rule 70 of the Court of Appeal Rules
- 2.The 2nd appellant's appeal dismissed in its entirety
- 3.Judgment of the High Court affirmed
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code (second appeal confined to matters of law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Ngenchi Ng’ethe & 1 other v Republic", Case Analysis (2025). Criminal Appeal (to be read with Anti-Corruption Court Case No. 20 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1549/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.