M'Impwi v Republic (Criminal Appeal 98 of 2018) [2025] KECA 1561 (KLR)
The bottom line
#Kenya's Court of Appeal acquitted a man of giving false information because police never called the two officers named in the charge.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the prosecution proved its case beyond reasonable doubt that the appellant committed the offence of giving false information to a person employed in the public service contrary to Section 129(a) of the Penal Code
- 2.Whether the sentence meted upon the appellant was harsh and excessive
Key legal issues
#Whether the prosecution proved the offence under Section 129(a) of the Penal Code beyond reasonable doubt
The appeal succeeded: the failure to call the two officers expressly named in the charge particulars as recipients of the alleged false information rendered the prosecution case materially deficient, resting on hearsay and inference, and the essential elements of the offence were not proved.
The court held that CI Samuel Yagan and CPL Andrew Nyaga, expressly named in the particulars as recipients of the false information, were never called to testify. Their direct testimony was essential to establish the communication of the information and their status as public servants. Without it, the case rested largely on hearsay and inference, falling short of the criminal standard of proof beyond reasonable doubt.
Whether the sentence was harsh and excessive
The sentence issue did not arise for determination since the conviction was unsustainable and the sentence had to fall with it.
Because the court found the prosecution had failed to prove the offence, the conviction was quashed and it followed that the sentence imposed by the trial court and modified by the High Court (probation order) could not stand. The sentence was set aside as a consequence of the acquittal rather than on an independent assessment of harshness.
Legal principles established
#- A second appellate court is confined to matters of law and is generally bound by concurrent findings of fact of the two courts below, departing only where such findings are unsupported by evidence, proceed from a misapprehension of the evidence, or are plainly untenable.
- Where the particulars of a charge expressly name the recipients of the alleged false information, the prosecution must call those persons or account for their absence; failure to do so leaves a fatal gap and the charge cannot be sustained.
- The prosecution must independently prove that persons named in the particulars of a charge under Section 129(a) of the Penal Code were, at the material time, persons employed in the public service.
Court orders
#- 1.The appeal is allowed
- 2.The conviction is quashed
- 3.The sentence set aside by the courts below is set aside
- 4.The appellant is acquitted of the charge
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- Criminal Appeal No. 38 of 2018
- Jurisdiction invoked
- Second appeal under Section 361 of the Criminal Procedure Code, limited to matters of law
Relief refused
#Determination of the sentence issue on its merits
Given the failure of proof, the question of sentence did not arise
Costs
No costs order was made in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
we are generally bound by concurrent findings of fact by the two courts below departing therefrom only in the rarest of cases where they are not based on any evidence or proceed from a misapprehension of the evidence or are plainly untenable.
It is significant that two crucial witnesses, namely CI Samuel Yagan and Cpl. Andrew Nyaga, who were expressly named in the particulars of the charge as the recipients of the alleged false information, were not called to testify.
The omission to call them rendered the prosecution case materially deficient.
Without the direct testimony of the two named officers, the prosecution's case rested largely on hearsay and inference, which fell short of the standard of proof required in criminal proceedings.
The upshot is that the appeal is meritorious and is hereby allowed. The conviction is quashed and the sentence set aside. The appellant is acquitted of the charge.
Orders accordingly.
Issues in the judgment
#The evidence summary inconsistently attributes testimony: paragraph 7 records PW6 (Sgt Tosiah Gichobi) as the investigating officer, but the following sentence states 'PW5 testified that the appellant was a member and a board member of the Sacco. PW5 testified that the CEO of the Sacco withdrew the money on the authority of the appellant.' — these appear to relate to PW5/PW2 rather than PW6, and PW6 is also inconsistently named ('Tosiah Gichobi' vs 'Josiah Gichohi' for PW1).
The judgment does not bear a case number of its own on its face; the only appeal number recorded is that of the first appeal below (Meru High Court Criminal Appeal No. 38 of 2018).
No costs order was made despite the appeal being allowed; the judgment ends with the acquittal and 'Orders accordingly' without addressing costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M'Impwi v Republic (Criminal Appeal 98 of 2018) [2025] KECA 1561 (KLR)", Case Analysis (2025). Criminal Appeal (not numbered in judgment; second appeal from Meru High Court Criminal Appeal No. 38 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1561/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.