Ngamau & another v Republic (Criminal Appeal E115 & E116 of 2023 (Consolidated)) [2025] KECA 1753 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed convictions against a businessman and company for receiving about KShs 180 million in public funds for services never rendered.
What this practically means
#Executive summary
#Key legal issues
#Whether the charges under section 45(1) ACECA violated the right to a fair trial under Article 50(2)(b) and (c)
No violation. The appellants had legal representation, the law breached and particulars of the acts constituting the offence were clearly stated, and they were accorded the opportunity to cross-examine, present evidence and receive a reasoned judgment.
The court held that assessment of fair-trial rights is based on due process accorded during the trial, not agreement with the outcome. Section 45(1)(a) ACECA criminalises fraudulently or otherwise unlawfully acquiring public property; the particulars specified the amounts received and the fact that no services were rendered. The complaint of defective charges was belated and without merit.
Whether withdrawal of charges against deceased accused persons and the absence of fresh charges affected counts 10 and 11
Withdrawal had no legal significance for the remaining counts. Under section 87(a) CPC the prosecution may withdraw charges at any stage before judgment, and under section 202 only the charges against the deceased abate.
The court found no count in the charge sheet for an offence known as 'services not rendered'; the claim that new charges should have been drawn was without legal basis. The offences were stand-alone and could be proved separately with evidence tendered in respect of each accused. The appellants were accorded full procedural safeguards during the trial.
Whether the learned Judge misapplied the PPDA to sustain a conviction when the appellants were not charged under the PPDA
The ground fails. It was imperative for the courts below to examine the genuineness of the contracts under which public monies were paid, and a party who knowingly benefits from an unlawful procurement process is culpable.
The offences charged were unlawful acquisition of public property, and the monies were acquired under the guise of contracts. There was no paper trail of the procurement process that birthed the contracts. Section 27 of the PPDA 2005 imposed responsibilities on all actors including contractors, suppliers and consultants, and Regulation 6 of the Code of Ethics for Suppliers prohibits fraudulent, collusive or corrupt practices. It takes two to tango.
Whether improper reliance was placed on evidence concerning deceased accused persons
No. The courts below evaluated the evidence in totality and no culpability of the deceased accused persons was transposed to the 1st appellant.
The conviction rested on the document examiner's report confirming the 1st appellant's signature on the falsified contracts, evidence of bank officials and Fund officials disowning the contracts, and the 1st appellant's pursuit of the funds at Chase Bank. The circumstantial evidence satisfied the Abanga test. Reliance on statements of deceased persons would be lawful where corroboration exists.
The effect of the State's concession of appeal on counts 10 and 11
The concession is not binding on the Court; the court independently satisfied itself that the conviction was sound.
Although State Counsel conceded the appeal on counts 10 and 11 on the basis that no witness saw the 1st appellant make the documents, the court held that the evidence was circumstantial and subjected it to the Abanga test. The circumstances established cogently pointed to the 1st appellant's guilt, so the conviction on those counts stood notwithstanding the concession.
Legal principles established
#- On a second appeal, the Court of Appeal's mandate is confined to questions of law and it will not interfere with concurrent findings of fact of the two lower courts unless based on no evidence, perverse, or legally unsound.
- The death of a co-accused causes only the charges against that accused to abate; the remaining accused may still be tried on their individual culpability, provided the charges are otherwise valid and supported by evidence.
- A person who knowingly benefits from an unlawful procurement process is equally culpable under the law; suppliers and consultants must comply with procurement legislation.
- Circumstantial evidence must satisfy the Abanga test: the circumstances must be cogently and firmly established, of a definite tendency unerringly pointing towards guilt, and cumulatively form a chain so complete that there is no escape from the conclusion of guilt.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.It is so ordered
- On appeal from
- High Court of Kenya at Nairobi, Anti-Corruption and Economic Crimes Division
- Anti-Corruption and Economic Crimes Appeal No. E018 of 2021
- Jurisdiction invoked
- Second appeal under section 361(1)(a) of the Criminal Procedure Code, confined to questions of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngamau & another v Republic (Criminal Appeal E115 & E116 of 2023 (Consolidated)) [2025] KECA 1753 (KLR)", Case Analysis (2025). Criminal Appeal Nos E115 of 2023 and E116 of 2024 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1753/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.