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MagistrateDismissedCriminal Case (unnumbered in judgment)· [2020] KEMC 7 (KLR)

Republic v Ngatia & another (Anti-Corruption Case 14 of 2019) (Anti-Corruption and Economic Crimes) [2020] KEMC 7 (KLR)

Chief Magistrate's Court
3 November 2020
EJE. Juma
9,578 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~38 min to read original · ~4 min brief

The bottom line

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A Kenyan court acquitted two police officers of bribery because prosecutors couldn't prove who demanded the money or that any bribe was actually received.

What this practically means

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Executive summary

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Two police officers attached to the Mlolongo/Athi River Weighbridge Police Station were jointly charged on Counts I, V and VI and separately on Counts II, III (1st accused) and IV (2nd accused) with conspiracy to commit a corruption offence, receiving bribes, and abuse of office arising from an incident of 9 October 2017 in which truck drivers PW1 and PW8 were allegedly flagged down for over-speeding and asked for Kshs 10,000 to forebear enforcement. The prosecution called nine witnesses, including the two drivers, an M-Pesa agent from whom PW1 withdrew Kshs 2,000, EACC officers, translators who certified transcripts of a covertly recorded audio-visual clip, and the investigating officer. The defence, in unsworn testimony, denied being on traffic duty, disputed the transcripts and recording, and explained the encounter through PC Fredrick Ongulia, who was neither charged nor called as a witness. The court framed seven issues: identification, demand and receipt, entrapment, selective prosecution, admissibility of electronic evidence, proof to the required standard, and reasonable doubt. It held the certificates of transcription admissible under sections 65 and 106B of the Evidence Act but rejected entrapment as inconsistent with the denial of the offences. However, identification was not positive, the description of the officers did not fit the accused, the money was not recovered, the original recording was empty, and the independent witness PW5 could not identify the voices. The conspiracy count failed for want of proof of agreement, and counts VI and V fell with the others. Doubt was resolved in favour of the accused, who were acquitted of all six counts under section 215 CPC, with bail refund ordered.

Key legal issues

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01

Positive identification of the accused

Holding

Identification was not positive; the description of the officers by PW1 did not fit the accused persons

Reasoning

PW1 only described the officers as slim, tall, one with a gap on the lower jaw teeth and probably Luhya. The court found the description did not match the accused, that they were not arrested on the spot, and that no independent voice identification corroborated the recordings. Weak identification created doubt fatal to the charges.

p. 7
02

Entrapment

Holding

The entrapment defence failed on the evidence, being akin to an admission of the charges

Reasoning

The defence alleged PW1 was a state agent who persistently cajoled the accused into uttering incriminating words. The court evaluated the superior-court precedents on entrapment but found no evidence demonstrating entrapment or encouragement by any prosecution witness, noting the plea was inconsistent with the denial of the offences.

p. 8
03

Selective prosecution

Holding

The omission to charge or call PC Fredrick Ongulia, though unexplained, was noted but did not by itself vindicate the accused

Reasoning

The investigating officer admitted PC Ongulia, who was heavily mentioned, was not charged on account of being indisposed. The court observed this left open the criteria for selecting the accused for prosecution, and agreed that ignoring exculpatory evidence points to negligent investigation, contributing to the doubt against the prosecution case.

p. 9
04

Admissibility of electronic evidence and transcripts

Holding

The certificates of transcription by PW4 and PW7 were proper and admissible, though PW1 ought to have been involved in the gadget hand-over certificate

Reasoning

The court examined sections 65 and 106B of the Evidence Act and the certificates executed by the translators and investigating officer, holding them compliant. Kiswahili portions required no separate certificate since Kiswahili is a language of the court. The deficiency in the hand-over certificate by PW9 was noted but the recordings were admitted.

p. 13
05

Whether the prosecution proved the six counts beyond reasonable doubt

Holding

The prosecution failed on all six counts; the accused were acquitted under section 215 CPC

Reasoning

There was no proof of demand or receipt of the bribe, no recovery of money, the recording device produced in court had no content, PW5 could not identify the voices, and the conspiracy count failed for want of a shown agreement. Doubt was resolved in favour of the accused on all counts.

p. 18

Legal principles established

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  • The burden of proof rests on the prosecution throughout and never shifts to the accused
  • Computer print-outs and electronic evidence are admissible where the conditions in section 65 of the Evidence Act are met and a proper certificate is produced
  • Conspiracy cannot exist without proof of a meeting of minds or agreement between the alleged conspirators
  • Doubt in the prosecution case is resolved in favour of the accused

Court orders

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  1. 1.Both accused found not guilty in all six charges and acquitted under section 215 of the Criminal Procedure Code
  2. 2.14 days right of appeal explained
  3. 3.The state to be provided with certified copies of the proceedings and judgment
  4. 4.The defence to be supplied with a copy and certified judgment upon payment of the requisite charges
  5. 5.The cash bail to be refunded to the depositors
Jurisdiction invoked
Original criminal jurisdiction over charges under the Anti-Corruption and Economic Crimes Act and the Bribery Act; acquittal under section 215 Criminal Procedure Code

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, "Republic v Ngatia & another (Anti-Corruption Case 14 of 2019)  (Anti-Corruption and Economic Crimes) [2020] KEMC 7 (KLR)", Case Analysis (2020). Criminal Case (unnumbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/7/eng@2020-11-03

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