Sgt Andrew Muoki Mutua v Republic

3. The learned trial magistrate misdirected himself in law by failing to follow the correct procedure for the taking of fresh plea when the charges were amended on the2nd of February of 2020. (annexed hereto and marked JMO- 2 is a copy of the Amended charge sheet) 4. The learned trial magistrate misdirected himself in law by convicting the appellant on the basis of inadmissible electronic evidence. 5. The learned trial magistrate misdirected himself in fact and in law by failing to make an adverse inference against the prosecution’s failure to avail key witnesses when such failure was neither explained nor justifiable in the circumstance. 6. The learned trial magistrate misdirected himself in fact and I law by failing to consider the appellant’s defence and the fact that the same gave a plausible explanation against the charges. 7. The learned trial magistrate misdirected himself in fact and in law by sentencing the appellant to a term of imprisonment that was manifestly too harsh in the circumstances. 4. The appellant prays that the conviction be quashed, the sentence be set aside and he be set free. In the alternative if the court upholds the conviction, the court to revise the sentence downwards accordingly. The appellant successfully applied for bail pending appeal vide and application dated 9/4/2021 and in a ruling dated 3/6/2021 the court held that the questions raised by the appellant in his petition of appeal are substantial questions of law that has the potential of overturning the outcome of the trial court that should this court find for instance that the evidence that was adduced was inadmissible, and if it is the case that such evidence is what was used to secure a conviction, then court will be obliged to overturn the findings of the trial court. 5. The court will also be under a duty the nature of the purported amendments to the charge sheet and determine whether failure to exhaustively conduct the plea taking process again caused any miscarriage of justice to the appellant. This court held that the appellant has an arguable appeal raising substantial points of law and in the end ruled that the application for bail was warranted. The appellant was released on bail pending Appeal. The Appeal 6. The court gave directions that the appeal be canvassed by way of written submissions. However, on 24/1/2023 when the matter came up to confirm the filing of submissions the prosecution’s counsel requested for time to consult before filing of the submissions as the matter was a Court Martial. She was given time but despite being given sufficient time and various mentions upto 25/10/2023 they failed to file their submissions and the matter was listed for Judgment as the appellant had complied with the directions and filed his submissions. The Prosecution’s Case 7. PW1 Edwin Kinyua Mureithi testified that he is a serviceman in the National Youth Service. He told the court that he was before court in relation to Kshs. 300,000/= he gave to the appellant. He testified that he was introduced to the appellant by Joseph Wachira Migwi in 2015. Later in 2019 PW1 asked Joseph Wachira if he could assist his to join the military. He sent him the number of the appellant. 8. PW1 called the appellant and asked him to assist him to join the military. The appellant told him he could assist. Later, on 15/11/2019 the appellant called him and they met outside PW1’s office. The appellant told him he had a letter of state and was not obtained for free and he was required to pay Kshs. 300,000/=. The PW1 told the appellant he would consult his parents. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 2

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9. On 16/11/2019 he went to visit the appellant to confirm whether he was military personnel. The PW1 went to DOD and the appellant booked him on the register. The appellant told him he would not reduce the amount. PW1 identified the book where he was signed in his name, ID and phone number, MF-19&6. The PW1 went for recruitment but was not successful. On 7/12/2019 he was called with a number that belonged to the appellant and he informed him that he had a captain who had state letters so he should send the money before 1200Hours. PW1 informed his father who in turn told him to meet him in the Bank at Kerugoya. The appellant had already sent him the account number and the name thro’ Mobile No. 0724xxx for Andrew Muoki Mutua. The Bank was Co-operative Bank Keugoya Branch, Account No. 0111xxx for Andrew Muoki Mutua deposited on 7/12/2019, Deposit slip MF1-2. 10. He then called the appellant and informed him that he had deposited the money and he in turn told him to send a copy of the result slip and ID and he did so thro’ number 0724-xxx. Thereafter, the appellant kept promising him that he would get the letter to no avail. The appellant then failed to pick his calls and when he did, he informed him that the deal had failed. The appellant promised him to refund the money but he never did. PW1 reported to the DOD. Later he was called and he recorded a statement. 11. PW2 Mureithi Kinyua is the father to PW1 and he told the court that his son told him he wanted to join the Military and he told him to go for recruitment which was ongoing. The son went but was not successful. The son then told him there was one Andrew Mutua who could assist him to join the Military and was asking for Kshs. 300,000/=. PW1 then gave him the number of the said Andrew Mutua and he Andrew Mutua called him (PW2) and he informed him that there are slots that are given after the recruitment. The appellant told him it was compulsory for one to give some money which he indicated was Kshs. 300,000/=. 12. PW2 applied a loan of Kshs. 300,000/= and paid it in the account of the appellant which he had sent, Account No. 0111xxx, Account Name Andrew M. Mutua. Deposited on 7/12/2019. He produced the deposit slip as exhibit 2. He told the court that the son never got the job. In cross-examination he told the court that he never met the said Andrew Mutua and he did not know him. He admitted that the appellant is a distant relative as he has married a family member. He however, did not identify him in the court. 13. On the deposit slip he said it did not have the ID number of the appellant and his (PW2) ID number indicated as starting with Zero (0) while his ID number starts with one (1). PW2 stated that he had no evidence that the appellant is the one who set him his bank account number. He said that what he had stated that the appellant had sent his son the account number 0111xxx and his son joined him at the bank and the son filled he deposit slip and deposited money into the account was an error in his statement. That PW2 is the one who filled the deposit slip. That he demanded the money from the appellant but he had no evidence. He further stated that what he was paying was for a state job. 14. PW3 Nelson Madela Kabwere testified that he was called by Kitonga who asked him whether he had a close relative who would like to join the Armed Forces. He said he had none but he had a friend of his whose brother who had an interest in joining the forces. He was to confirm from his friend Adan whether his brother was still interested. He then linked Kitonga and Adan. Kitonga then pointed out to him that he had his friend who he referred to as Major Muoki Mutua who worked at DOD. 15. Later, a meeting was arranged for them to meet at Nairobi. They went to DOD and Kitonga called Muoki. Muoki met them but since the was in uniform he requested for sometime to go and change. Later he came in civilian and meet them. One Shukri who was to be assisted to get a job was also present. Shukri told him that Muoki had told him to give Kshs. 450,000/=. That Shukri and Adan agreed that https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 3

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they will pay half the amount and balance upon receiving a calling letter to report the Recruits Training Centre at Eldoret. Later, he met Shukri who informed him that they had agreed to give Muoki Kshs. 220,000/= via Equity Bank Account. Shukri told him that since he did not know Muoki or Kotonga, he would send the Kshs. 220,000/= to his (PW3) Equity Bank Account. Kitonga told him he was under immense pressure from Muoki as the guys wanted the money so that the letter could be signed. 16. Kitonga told him to send the money to an account belonging to Muoki at Co-operative Bank Kawangware Branch. However, he could not deposit the money because it was on a Saturday and in the meantime Kitonga sent Kshs. 40,000/= to Muoki which he borrowed from his friend as he was under pressure from Muoki. PW3 stated that Muoki called him and instructed him to send him the money through his number and he complied and sent Kshs. 30,000/=. He also sent Kshs. 40,000/= to Kitonga’s friend. He then deposited Kshs. 150,000/= to Equity Bank Account belonging to Muoki. 17. That after that Muoki started taking them in circles saying the letter had not been signed. Eventually Adan and Shukri reported the matter at Shauri Moyo Police Station. PW3 testified he was arrested and Muoki sent him Kshs. 50,000/= and he was released. Later Muoki said his wife could borrow money and refund. The wife sent Kshs. 54,800/= through Mpesa. He forwarded the money to Shukri, Kshs. 54,800/=. He stated that this was before he was arrested. He testified that Muoki never refunded the money and so he decided to report the matter. He reported at Central Police Station. Later, he met Muoki with Edwin who reported the matter at DOD and mentioned him. 18. He (PW3) was summoned by the officers from DOD and he went and recorded a statement. PW3 certified his account opening documents, a copy of his ID card, bank deposit slip, his bank account statement from 1/1/2020 to 29/2/2020, his Mpesa transitions showing the money he sent to the accused and the OB extract from Shauri Moyo Police Station. In cross-examination the witness admitted that the original ID and photocopy held different serial numbers. He further admitted that the OB report was erroneous as stated that the one who wanted to enroll in KDF was Adan Khalif Mohamed and not Shukri as he had testified in the court. 19. PW3 further stated that the person who approached him was Kitonga. He further admitted that what he sent to Muoki was Kshs. 180,000/= and not Kshs. 220,000/= as stated on the particulars of the charge. The witness further admitted that his statement was erroneous as he had recorded Kshs 55,000/ = and not Kshs. 54,000/= as indicated in his statement. PW3 further testified that he could not confirm that Muoki’s wife sent him money. He could not identify a deposit slip showing that he sent Kshs. 150,000/= to Muoki’s account at Kawangware. 20. PW4 Adan Khalif Mohammed Kulow – He testified that PW3 who is his friend and is a lawyer called him at sometime and informed him that he had a friend by name Kitonga who knew a KDF officer by name Muoki. PW3 told him he was a state vacancy for recruitment of KDF officers. He called his younger brother Shukri Mohammed Kulow and informed him about the recruitment and he said he is interested. A meeting was arranged between Shukri, Kitonga and Muoki and they met at Hurlingum Total Petrol Station. Muoki told Shukri he has to pay Kshs. 450,000/=. Shukri said he could only trust PW3. They agreed that the money be deposited in the account of PW3 and that only Kshs. 220,000/= at that time and balance upon him being recruited Kshs. 50,000/= was sent through Mpesa to Muoki. 21. Later he contacted PW3 and he informed him that Muoki was not picking his calls. He advised Shukri to report the matter to the Police at Shauri Moyo Police Station. PW3 reported at Central Police Station. Later himself and PW3 decided to report the matter at the DOD and there were directed to Military Police where they recorded statements. He told the court that PW3 was complaining about Kshs. 180,000/= while Shukri had receipts to show he had transferred Kshs. 220,000/=. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 4

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22. In cross-examination he told the court that PW3 told him that he had sent a total of Kshs.200,000/= to Muoki but PW3 was complaining about Kshs. 180,000/=. That the right amount was Kshs. 200,000/ =. 23. PW5 Joseph Leruk who works with Safaricom Risk Management Department as a fraud investigator. He testified that he received a court order in Miscellaneous Application 404/2020 requesting extract registration details, call data records, Mpesa account records for the period starting 1/1/2020 to 29/2/2020. He got the registration details as follows:No. 0718xxx – is registered in the name of Nelson Mandela Kabwere ID No 31xxx(2)No. 0724xxx registered in the name of Andrew Muoki Mutua ID 22xxx 24. He could not get the call records because Safaricom has call records for three months. Beyond that it is hard to get. On 18/1/2020 at 1750Hours, Kshs. 30,000/= was transferred to Andrew Mutua by Nelson Mandela. On 17/2/2020 at 2050hours Nelson Mandela transferred Kshs. 54,000/= to 0726xxx belonging to Shukri Mohamed Kulow. On 24/2/2020 at 2042hours Nelson Mandela received Kshs. 50,000/= from Andrew Mutua. In cross-examination Pw5 testified that the data which he produced in court was printed by KDF. He further admitted that he had nothing to show that he works for Safaricom and that he did not produce copies of ID cards which were used to register the numbers. 25. PW6 James Mutahi Njeru works at Equity Bank Headquarters Branch as Operations Manager. On 14/6/2020 he was requested to provide Bank Statements for two accounts and account opening documents. These are A/C No. 084xxx & A/C No. 035xxx for a customer Shukri Mohamed Kulow. The documents shows that Kshs. 219,800/= was transferred from the account of Mohamed Shukri to that of Nelson Mandera Kawere out of which Kshs. 150,000/= was transferred to Andrew M. Mutua. 26. He confirmed during cross-examination that the RTGS to Andrew Mutua does not give the account number where the money went. That the ID card number was not indicated as they are not indicated in Mobile Banking transaction. But the Account Opening documents show that the name of the witness and the account opening documents bear the identification documents, that is the identity care numbers. 27. PW7 Francis Murithi testified that he was the Bank manager, Co-operative bank Isiolo. He produced account opening documents for Andrew Muoki Mutua dated 9/10/2020. He identified the account opening documents which was a Military No. 76xxx and civilian ID card No. 22xxx. The Account number was No. 0111xxx, Co-operative Bank Nairobi. He identified a transaction slip, customer copy for account of Andrew Muoki Mutua, deposited at Kerugoya Branch by Muriithi Kinyua on 7/12/2019 MF1-19. 28. On 21/1/2020 Kshs. 150,000 was deposited in the said account by Nelson Mandela Kabwere. The same day Kshs. 40,000/= was withdrawn thro’ ATM at Hurlingham. In cross-examination the witness admitted that the only document he had to proof that he worked for Co-operative bank was a badge which did not have his ID car number, no name and no designation. That it had no signature or nothing confirming the he works for Co-operative Bank. He admitted that a person is identified by producing a photograph when opening an account but he did not produce the photograph of the appellant. He also admitted that the account statement which he produced in court did not capture the ID number of the accused. (see exhibit 19). The witness admitted that the account number he produced in this court does not capture the ID number of the accused nor does it have identity care number (ID) of the amount of Kshs. 300,000/= deposited in the said account. The witness also admitted that he had no written authority or mandate from his employer to represent the bank. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 5

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29. PW8 No. 73xxx Sgt Edwin Limo, 2nd Military Battalion based at Military Defence Headquarters is the one who investigated the matter. He testified that on 16/07/2020 he was tasked by his commanding officer to investigate a case regarding conning case by the appellant. He interviewed Edwin Kinyua, ID 37xxx, Cpl Joseph Wachira and Kinya Muriithi and recorded their statements. He then conducted investigations and found that the Edwin Kinyua wanted to join the Military and had been introduced to the appellant who promised him a job in the Military. The appellant demanded Kshs. 300,000/= in order to assist him to join the Military. Edwin attended the recruitment but was not successful. Edwin and his father Kinyua Muriithi and they went to Kerugoya Town where they deposited Kshs. 300,000/ = in the account of appellant held at the Cooperative bank, Account No. 0111xxx. PW5 confirmed that the complainant Edwin had met the appellant at the Department of Defence Headquarters and was booked in by the appellant. He also confirmed that Edwin and his father had deposited Kshs. 300,000/ = in Cooperative Bank Kerugoya Branch account Number 0111xxx belonging to the appellant. The father of Edwin is the one who gave out the money. 30. PW7 further investigated the case involving Nelson Mandela Kabwere who alleged that on 29/1/2020 he received a phone call from one Kitonga informing him that a service member had a vacancy in the Kenya Defence Forces and wanted to know if Mr. Kabwere knew anybody who was interested in joining the KDF. Kabwere informed his friend Adan Khalif who had a brother who was interested in joining KDF whose name was Mohamed Shukri Kulow. On 17/1/2020 Mr. Mandela met Kitonga and Shukri at DOD headquarters. They met the appellant at the gate and was at the time in full military uniform. He appellant told them to go and wait at Total Petrol Station near Daystar University. The appellant met them later and he demanded Kshs. 450,000/=. They negotiated and Shukri offered to pay Kshs. 220,000/= and the balance of Kshs. 230,000/= upon joining KDF. 31. On 18/1/2020 the appellant received Kshs. 220,000/= in Equity Bank Account for Mr. Mandela. That Shukri did not trust the appellant and so he channeled the money through the account of Mandela. In turn, Mandela sent Kshs. 30,000/= to the appellant and 150,000/= through cooperative bank. The appellant then started dodging Mandela so he decided to take action and so report the matter at Shauri Moyo Police Station. He reported that the appellant had received Kshs. 200,000/= pretending that he was in a position to enroll Mohamed in KDF. In cross-examination PW1 admitted that he did not have documentary proof that number 0726xxx belongs to the appellant. Defence Case 32. The appellant gave unsworn statutory statement in his defence and told the court that he met Edwin Mureithi at a family function in Kerugoya later on he lost contacts with him. Later he met with Cpl Joseph Migwi who is a relative to Edwin and they exchanged contacts. Later he met Edwin at DOD where he was hosted by the said CPL Migwi. He told the court that he had earlier borrowed Kshs.300,000/= to do business of supplying building material and in December 2019 Cpl Migwi asked him whether he still needed the money and he answered in the affirmative. Cpl Migwi advanced him Kshs. 300,000/= which he would refund with interest of 10%. He agreed with Cpl Migwi that the money could be deposited in his bank account whose details he had. 33. On 7/12/2019 Cpl Migwi deposited Kshs. 300,000/= in his bank account. He paid Kshs. 25,000/= being part of the interest upfront. He could not do the work due to the outbreak of Covid 19 which resulted in County wife lockdown. This affected the agreement. It is then Cpl Migwi told him that he had borrowed money from a relative and before he could get him the money Edwin Kinyua reported the matter to the Military Police without his knowledge. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 6

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34. He was not aware that money was deposited by somebody else and not Cpl Migwi. He contended that Edwin was coached to say the money was for recruitment and yet it was paid after the recruitment was over. He told the court that he was not aware of state jobs which the witnesses alluded to. 35. On the second court, the appellant told the court that the Kshs. 300,000/= was from Kitonga who was his business partner and it was meant for business. With regards to Kshs. 150,000/= the appellant stated that it is Kitonga who had borrowed it from Nelson Mandera. The appellant, Kitonga and Nelson Mandera agreed that the money be refunded to Nelson Mandera. The appellant paid Kshs. 50,000/ = and his wife sent Kshs. 55,000/= leaving a balance of Kshs. 45,000/=. That Kitonga agreed to settle the Kshs. 45,000/= and he left the matter at that. He further stated that Kitonga paid Nelson Mandela Kshs. 50,000/= and the (Nelson Mandela) admitted in court that he received Kshs. 50,000/= from Kitonga making a total of 155,000/=. Judgment 36. The Court Martial found the appellant guilty on the three counts and sentenced him to two (2) years imprisonment on the 1st count and dismissal from KDF, 2nd count, six (6) months imprisonment and dismissal from KDF, 3rd count, one (1) year imprisonment and dismissal from KDF. The appellant was dissatisfied with this outcome and filled this appeal. I should point out that the Judgement of the court martial did not form part of the Record of Appeal. The Appeal 37. The appeal is based on the grounds of appeal listed above. The court directed that the appeal be canvassed by way of written submission. However, the respondent did not indicate whether they opposed the appeal and did not file written submissions as directed by this court. The respondent had indicated that they needed to consult as the matter was a court martial. Thereafter, they did not inform the court of the consultations nor did they file submission. The Appellant’s Submissions 38. (1) Defective Charge Sheet and that the amended charge, please was not taken. It is submitted that the learned Magistrate erred by convicting the appellant based on a charge sheet that was defective for being duplex and for being at variance with the evidence adduced. That the amended charge sheet is bad for duplicity. That the said court charges two offences in one count. That it is alleged that the appellant obtained money from two persons. That there ought to be a separate charge for each person from whom money was obtained. That by charging the appellant with a charge that id duplex, the defect cannot be aimed under Section 382 of the Criminal Procedure Code. He relies on the case of Hassan Jilo Bwanamaka & Another -vs- Republic 2018 KLR and Saina -vs- Republic. In the cases it was held that a charge that discloses two offences is bad for duplicity and cannot be cured by Section 382 of the Criminal Procedure Code. 39. Secondly, it is submitted for appellant that the evidence adduced is at variance with the charge. That the particulars in all the counts alleged in all the counts that the appellant obtained money by falsely pretending that he was in a position to recruit the complainants into the Kenya Defence Forces. That the evidence adduced by the complainants was that the appellants promised them state jobs. That at the time the appellant is alleged to have received the money, the recruitment had been undertaken, the complainant Edwin Muriithi had participated but failed to be recruited. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 7

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40. The appellant further submits that he amended charge sheet was not properly read as the procedure laid down in the case of Adan -vs- Republic. That no plea was taken to the amended charge sheet and the appellant did not plead to the charges. That the proceedings were null and void and a conviction cannot stand. The appellant urges the court to quash the conviction in count one. 41. (2) That the offence of obtaining money by false pretences was not proved. He relies on Stephen Ndugua -vs- Republic (2020) eKLR and Abdallah -vs- Republic (1970) KLR where it was held that a representation in the future event cannot support a charge of obtaining by false pretences. That the offence of obtaining money by false pretences must refer to an existing or present fact but not a false fact or event. He relies on Section 312 of the Penal Code (Cap 63 Laws of Kenya) which defines false pretence as follows: “ A false representation made by words, writing or conduct of a matter of fact, either past or present, which representation is false or does not believe to be true is a false pretence.” That false ptentence refers to past or existing events and not future events. That in all the counts, the representation was to a future event but not a present fact. 42. Failure to call critical witnesses It is submitted that in counts 2 & 3 it is alleged that the appellant received Kshs. 30,000/= respectively from one Nelson by pretending that he was in a position to recruit Shukri into the forces. That Shukri was not called as a witness. That the money was obtained to secure his recruitment and he was not called to confirm this or not. That failure to call him as a witness was fatal to the prosecutions case. The appellant submits that eh sentence was harsh as the appellant was not given the option of a fine owing to the fact that he appellant was a first offender and the mitigation. 43. The appellants submits that the prosecution failed to prove their case to the required standards and urges the court to set aside the conviction and sentence and set the appellant free. Analysis and Determination 44. I have considered the proceedings before the court martial, the verdict and the sentence as well as the submissions. The issue that arises for determination is whether the charges against the appellant were proved beyond any reasonable doubts. As noted earlier, the state did not support the conviction. However, this being the first appellate court, it has a duty to analyze the evidence, evaluate it itself and come up with its own independent finding. Section 347 of the Criminal Procedure Code provides: “ Save as in this past provided – A person convicted on a trial held by a sub-odinate court of the first or second class may appear to the High Court and An Appeal to the High Court may be on a matter of fact as well as on matters of law.” 45. The first appellate is therefore supposed to consider matters of fact and law which is essence is a kin to a retrial. The High Court and the Court of Appeal has variously held that he duty of the first appellate court is to analyze the evidence, evaluate it and come up with its own independent finding while bearing in mind that it did not have an opportunity to see and hear witnesses when they testified in order to assess their demeanor and leave room for that. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 8

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46. The leading authority is the case of Okemo -vs- Republic (1972) E.A 32 where the court stated: “ The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusions on the evidence. However, it must war itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that.” 47. The court of Appeal in the case of David Njuguna Wairimu -vs- Republic (2010) eKLR while citing with approval the case of Okeno -vs- Republic (Supra), stated as follows: “ The duty of the first appellate court is to analyze, re-evaluate evidence and itself come up with its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case come to the same conclusions as those of the lower court. It may reverse the conclusions. Were do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” 48. The court went on to state as follows – “ an appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh exhaustive examination (Padya -vs- Republic (1957) EA 336) and to the appellate court’s own decision on the evidence. The appellate court must itself weigh the conflicting evidence and draw its own conclusion. In doing so, it must make allowance for the fact that the trial court has had advantage of hearing and seeking the witnesses. See Peters -vs- Sunday Post (1978) EA 424” 49. In this appeal the appellant had raised seven grounds of appeal but argued two grounds. I will deal with these two grounds. 1. Defective charge sheet and failure to plead by the appellant on the amended charge sheet. The appellant was initially charged with two counts as follows: “ The accused service No. 76xxx Rank, Sgt Name Andrew Muoki Mutua CAU. DHQ, a service member of Kenya Defence Forces and being subject to Kenya Defence Forces Act No. 25 of 2012 under Section 4(a) of the Act is charged with: Committing a Civil offence under Section 133(1) of Kenya Defence Forces Act, 2012 that is to say, obtaining by false pretence contrary to Section 133 of the Penal Code. In that, at Nairobi within Nairobi County on 7/12/2019 with intent to defraud, you obtained the sum of Kenya Shillings three hundred thousand from Mr. Edwin Kinyua Muriithi of National Identity Card No. 37047666 by falsely pretending that you were in a position to secure his recruitment into Kenya Defences Forces as act you knew or ought to have known constitutes an offence. Alternative charge: conduct to the prejudice of good order and service discipline contrary to Section121 of Kenya Defence Forces Act, 2012. At Nairobi within Nairobi County on 7th December 2019 you unlawfully obtained the sum of Kenya Shillings 300,000/= from Edwin Kinyua Muriithi of National Identity Card https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 9

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Number 37xxx as a condition to secure his recruitment into the Kenya Defence Forces an act you knew or ought to have known constitutes an offence. Charge 2: 50. Committing a Civil Offence under Section 133(1)(b) of the Kenya Defence Forces Act, 2012 that is to say, obtaining money by false pretence contrary to Section 133 of the Penal Code in that at Nairobi within Nairobi County on 18/1/2020 with intent to defraud, you obtained the sum of Kshs. 30,000.00 from Mr. Kabwere Nelson Mandela of National Identity Card Number 313 xxx by falsely pretending that you were in a position to secure the recruitment of Mr. Mohamed Shukri Kulow of National Identity Number 36xxx into Kenya Defence Forces, an act he knew or you ought to have known constitutes an offence. Alternative Charge 51. Conduct to the prejudice of Good Order and Service Discipline contrary to Section 121 of the Kenya Defence Forces Act 2012. At Nairobi within Nairobi County on 18th January 2020 you unlawfully obtained the sum of Kenya Shillings thirty thousand (30,000/=) from Mr. Kabwere Nelson Mandela of National Identity Card Number 31xxx as a condition to secure recruitment of Mr. Mohamed Shukri Kulow of National Identity Number 36xxx into the Kenya Defence Forces an act you knew or ought to have known constitutes an offence. Charge 3 52. Committing a Civil Offence under Section 133(1)(b) of the Kenya Defence Forces Act, 2012. That is to say, obtaining money by false pretences contrary to Section 133 of the Penal Code in that, at Nairobi within Nairobi County. On 18/1/2020 with intent to defraud you obtained the sum of Kenya Shillings one hundred and fifty thousand (Kshs. 150,000/=) from Mr. Kabwere Nelson Mandela of National Identity Card Number 313 xxx by falsely pretending that you were in a position to secure recruitment of Mr. Mohamed Shukri Kulow of National Identity Number 36xxx into Kenya Defence Forces an act you knew or you ought to have known constitutes an offence. 53. Alternative charge conduct to the prejudice of good order and service discipline contrary to Section 121 of the Kenya Defence Forces Act, 2012. At Nairobi within Nairobi Cunty on 18th January 2020, you unlawfully obtained a sum of Kenya shillings one hundred and fifty thousand (Kshs. 150,000/=) from Mandela of National Identity Card Number 313xxx as a condition of secure recruitment of Mr. Mohamed Shukri Kulow of National Identity Number 36xxx into Kenya Defence Forces an act you knew or ought to have known constitutes an offence.” 54. These charges were read to the appellant on 3/12/2020 and he pleaded not guilty. The charge sheet was amended on 02/02/2021. See page 133 – 136 of the record. The amended charge sheet dated 27/1/2021 contained an amendment to the first chare and the alternative charge. The Judge advocate stated that the charge sheet was read out to the appellant and he pleaded not guilty. The main amendment was in the particulars of the charge which read as follows: 55. Charge 1 “ Committing a civil offence under Section 133(1) of the Kenya Defence Forces Act, 2012. That is to say obtaining money by false pretences contrary to Section 313 of the Penal Code. In that: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 10

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On 7/12/2019 at Nairobi within Nairobi County with intent to defraud obtained the sum of Kenya Shillings three hundred thousand (300,000/=) from Edwin Kinyua Muriithi National Identity Card Number 37xxx and Mr. Muriithi Kinyua of National Identity Card No. 10192499 by falsely pretending that you were in a position to secure Mr. Edwin Kinyua Muriithi’s recruitment into the Kenya Defence Forces. Alternative Charge Conduct of prejudice of good order and service discipline (sic) contrary to Section 121 of the Kenya Defence Forces Act, 2012. On 7/12/2019 at Nairobi within Nairobi county, you unlawfully obtained he sum of Kshs. 300,000/= from Mr. Edwin Kinyua Muriithi of National Identity Card Number 37xxx and Mr. Muriithi Kinyua of National Identity Card Number 10xxx as a condition to secure Mr. Edwin Kinyua Muriiti’s recruitment into Kenya Defence Forces.” 56. The issue is whether the plea was property taken. The law requires that the offence which the accused person is charged with should be specified in the charge or information with the necessary particulars to enable the accused person to answer it. Section 134 of the Criminal Procedure Code provides: “ Every charge and information shall contain and shall be sufficient if it contains a statement of the specific offence with which accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge. The amended charge as drawn contains a state of a specific offence, namely obtaining money by false pretences and the particulars are elaborately stated to inform the appellant of that offence. The law requires that the charge and every particular thereof must be read and explained to the accused in a language that he understands that once he understands that nature of the charge and the particulars he is called upon to plead to the charge and his answer thereof is recorded as early as possible in the words that he responds to the charge. The court enters a plea of guilty if the accused unequivocally admits the charge and its particular or enters a plea of guilty if the accused does not admit the charge. Where the accused is charged with more than one charge in the same charge sheet, each charge and its should be read and the answer thereof be recorded.” 57. In Adan-vs- Republic 1973 EA the Court of Appeal for Eastern African set out the principles to be followed when taking plea of a person charged with a criminal offence. The court stated: “ The charge and all the essential ingredients of the offence should be explained to the accused in his own language or in a language that he understands 1. The accused’s own words should be recorded and if they are an admission a plea of guilty should be recorded. 2. The prosecution should ten immediately state the facts and the accused should be given an opportunity to dispute, explain the facts or to tell any relevant facts. 3. If the accused does not agree with the facts or raises any question of his guilt his reply must be recorded and charge of plea entered. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 11

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4. If there is not charge of plea a conviction should be recorded and a statement of the facts relevant to sentence together with accused’s reply should be recorded.” 58. From the record of the learned magistrate, this procedure was not strictly followed when the charge sheet was amended. Of interest is that the answer to each charge was not recorded nor is it indicated that each charge was read. The court martial indicated that the amended charge read and the reply by the accused. The charge was read ‘wholesale’ in blatant disregard to the procedures. It is not indicated whether each chare and particulars were read and explained to the accused in a language he understands and the answer. The procedure was no doubt flawed. 59. The issue the court tries to consider are consequences of that failure on the part of the court. The Court of Appeal in Obedi Kilonzo Kavevo -vs- Republic (2015) eKLR stated that: “ Generally, where a suspect has not had a satisfactory trial the fairest and proper order to make is to order a retrial. A retrial on the other hand will be ordered only where the interest of justice requires it and if it unlikely to cause injustice to the appellant. 60. Thus, where the trial is flamed the court will normally order a retiral. What the court has to determine is whether the accused has had a proper trial. The decision whether to order a retiral will depend on the circumstances of each case. See William Ambetsa -vs- Republic (2019) eKLR. There are many decisions on the question as which appropriate case would attract an order of retrial but one of the main principles that has been accepted in that each case must depend on its own particular facts and circumstance of that case but an order of retrial should only be made where the interest of justice requires it. 61. This matter proceeded after the appellant took plea on three charges. In the course of the trial the prosecution amended the chare sheet. The amendment was on the first charge. The appellant proceeded with the trial based on the amended charge sheet and the charge sheet that was preferred before amendment. Since the amended charge sheet was read to the appellant, though in a flamed procedure, the appellant was not prejudiced in any way. He participated in the trial and did not raise the issue with the trial court. 62. Section 382 of the Criminal Procedure Code (Cap 75 Laws of Kenya) provides as follows: “ Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.” It would not be in the interest of justice to order a retrial as no prejudice was occasioned. The chare was amended and witnesses were recalled on appellants request. 63. (2) The second issue still on the charge is whether the charge sheet was defective for duplicity https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 12

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This relates to the first count on the amended charge sheet. It is contended that the charge was duplex for listing two complainants on the same charge. A duplex charge sheet refers to a defective criminal charge that improperly combines multiple distinct offences into a single count, confusing the accused and court about specific crime and potential penalties which violates the principles of fair trial by making defense difficult and can lead to the charge being quashed. Section 134 of the Criminal Procedure Code (supra) requires clarity of the charge and information. 64. The procedure to be followed in framing of the charges is under Section 137 of the Criminal Procedure Code which provides: “ The following provisions shall apply to all charges and information, and, notwithstanding any rule of law or practice, a charge or information shall, subject to this Code, not be open to objection in respect of its form or contents if it is framed in accordance with this Code— a. (i) Mode in which offences are to be charged. —a count of a charge or information shall commence with a statement of the offence charged, called the statement of offence; (ii) the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by enactment shall contain a reference to the section of the enactment creating the offence; (iii) after the statement of the offence, particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary: Provided that where any rule of law or any Act limits the particulars of an offence which are required to be given in a charge or information, nothing in this paragraph shall require more particulars to be given than those so required; (iv) the forms set out in the Second Schedule or forms conforming thereto as nearly as may be shall be used in cases to which they are applicable; and in other cases forms to the same effect or conforming thereto as nearly as may be shall be used, the statement of offence and the particulars of offence being varied according to the circumstances of each case; (v) where a charge or information contains more than one count, the counts shall be numbered consecutively; (i) Provisions as to statutory offences—where an enactment constituting an offence states the offence to be the doing of or the omission to do any one of any different acts in the alternative, or the doing of or the omission to do any act in any one of any different capacities, or with any one of different intentions, or states any part of the offence in the alternative, the acts, (b) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 13

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omissions, capacities or intentions, or other matters stated in the alternative in the enactment, may be stated in the alternative in the count charging the offence; (ii) it shall not be necessary, in a count charging an offence constituted by an enactment, to negative any exception or exemption from, or qualifications to, the operation of the enactment creating the offence; (i) Description of property.— the description of property in a charge or information shall be in ordinary language, and shall indicate with reasonable clearness the property referred to, and, if the property is so described, it shall not be necessary (except when required for the purpose of describing an offence depending on any special ownership of property or special value of property) to name the person to whom the property belongs or the value of the property; (ii) where the property is vested in more than one person, and the owners of the property are referred to in a charge or information, it shall be sufficient to describe the property as owned by one of those persons by name with the others, and, if the persons owning the property are a body of persons with a collective name, such as a joint stock company or "Inhabitants", "Trustees", "Commissioners" or "Club" or other similar name, it shall be sufficient to use the collective name without naming any individual; (iii) property belonging to or provided for the use of a public establishment, service or department may be described as the property of the Government;(iv)coin, bank notes and currency notes may be described as money; and an allegation as to money, so far as regards the description of the property, shall be sustained by proof of an amount of coin or of any bank or currency note (although the particular species of coin of which the amount was composed or the particular nature of the bank or currency note is not proved); and, in cases of stealing and defrauding by false pretences, by proof that the accused person dishonestly appropriated or obtained any coin or any bank or currency note, or any portion of the value thereof, although the coin or bank or currency note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering it or to another person and that part has been returned accordingly; (c) (d) Description of persons.—the description or designation in a charge or information of the accused person, or of another person to whom reference is made therein, shall be reasonably sufficient to identify him, without necessarily stating his correct name, or his abode, style, degree or occupation; and if, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 14

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owing to the name of the person not being known, or for any other reason, it is impracticable to give such a description or designation, a description or designation shall be given as is reasonably practicable in the circumstances, or the person may be described as "a person unknown"; (e) Description of document—where it is necessary to refer to a document or instrument in a charge or information, it shall be sufficient to describe it by any name or designation by which it is usually known, or by the purport thereof, without setting out a copy thereof; (f) General rule as to description—subject to any other provisions of this section, it shall be sufficient to describe a place, time, thing, matter, act or omission to which it is necessary to refer in a charge or information in ordinary language so as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to; (g) Statement of intent—it shall not be necessary, in stating an intent to defraud, deceive or injure, to state an intent to defraud, deceive or injure a particular person, where the enactment creating the offence does not make an intent to defraud, deceive or injure a particular person an essential ingredient of the offence; (h) Mode of charging previous convictions—where a previous conviction of an offence is charged in a charge or information, it shall be charged at the end of the charge or information by means of a statement that the accused person has been previously convicted of that offence at a certain time and place without stating the particulars of the offence; (i) Use of figures and abbreviations.—figures and abbreviations may be used for expressing anything which is commonly expressed thereby;(j)Gross sum may be specified in certain cases of stealing.—when a person is charged with an offence under section 280, 281, 282 or 283 of the Penal Code (Cap. 63), it shall be sufficient to specify the gross amount of property in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged have been committed without specifying particular times or exact dates.” 65. Duplicity will occur when a charge alleges more than one offence or when different penalties apply to the same act, creating ambiguity and hindering the ability of accused to prepare his defence. A duplex charge sheet entails poor framing of the charge and is a serious error which will affect a criminal trial. 66. The Court of Appeal in the case of Nyamai Musyoka -vs- Republic (2014) eKLR stated as follows: “ The test for whether a charge is fatally defective is a substantive one…if a defective charge is followed by a series of procedural or substantive mistakes and which in particular affect the rights of the accused person or the fact goes into the root of the charge, then the court ought to be reluctant to apply Section 382 of the Criminal Procedure Code.” 67. I am inclined to agree with these holding as the charge sheet forms the basis of a criminal trial and the person charged has an inalienable right to fair trial and should therefore be charged with a proper charge which gives clarity on the allegation he is facing. In this case, the amended chare sheet on the first charge and its alternative has a fatal defect as it discloses two complainant and by extension two https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 15

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distinct offences. This is a fundamental defect which goes to the root of the charge for being duplex. The defect is incurable under Section 382 of the Criminal Procedure Code (supra). 68. The appellant has also argued that the evidence advanced by the prosecution does not support the charge. It is trite law that when a party brings an allegation to court, the legal burden is on the party to prove the charge to the required standard. In criminal cases, the standard is that of beyond any reasonable doubts. He who alleges must prove. In criminal charge the burden is on the prosecution to prove the charge and the particulars beyond any reasonable doubt. The prosecution bears the legal and evidential burden. Section 107, 108 and 109 of the Evidence Act provides as follows: “ 107. 108. Burden of proof. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. Incidence of burden. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109. Proof of particular fact. 1. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 69. The prosecution’s allegation on the 1st, 2nd & 3rd courts alleges that he appellant obtained money by falsely pretending that he was in a position to recruit the complainants into the Kenya Defence Forces. The appellant contends that at the time of this incident, the recruitment had already taken place a fact which Edwin Muriithi admitted that at the time the appellant told him that he would give him a letter of state, the recruitment exercise had taken place on 6/12/2019, that he had attended the recruitment exercise at Krugoya Stadium on the said 6/12/2019 but failed. PW8 attested that this act that there was indeed a recruitment which took place on 6/12/2019. 70. Further PW2 alluded to the fact that the money was not for recruitment but for an alleged letter. In Stephen Nguli Mulili -vs- Republic the court of Appeal stated as follows; “ It is not in doubt that the burden of proof lies with the prosecution. The Locus Classicus is the case of Woolmington -vs- DPP (1995) UKHL, where the court eloquently stated that, he “golden thread” in the “web of English Criminal Law” is that it is the duty of the prosecution to prove its case…” 71. The court emphasized that the burden of proof in criminal cases is in the prosecutions back yard and never leaves. The Supreme Court of Nigerial in Bakare State, amplified on the principle and stated as follows: “ Proof beyond any reasonable doubts stems out of the compelling presumption of innocence inherent in the adversary system of criminal justice. To displace the presumption, the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 16

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evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubts means just what it says, it does not admit of plausible possibilities but does admit to high degree of cogency consistent with an equality high degree of probability.” 72. In Miller -vs- Ministry of Pensions, Lord Denming held as follows while emphasizing the obligation of the prosecution to prove its case to a standard of proof beyond any reasonable doubt, “ That degree is well settled. It need not reach certainty but must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect community if it admitted fanciful possibilities deflect the course of justice. If the evidence is so strong against a man as to leave only remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable, the case is proved beyond any reasonable doubts, but noting short of that will suffice.” 73. The charge sheet states that the money was meant to secure recruitment of Edwin Kinyua Muriithi into the Kenya Defence Forces. PW1 in his testimony stated that the appellant had a letter of the state which was not to be given for free and one was required to pay Kshs. 300,000/=. That the letter was to join military. He testified that he attended the recruitment on December 4 / 2019 but did not manage to get the letter. The appellant called him to say there was a person with state letters. That before he went for recruitment the appellant had not asked him for money nor had he deposited money in his account. PW1 admitted during cross-examination that he reasons for depositing the Kshs. 300,000/= was for state jobs and the money was not on account of recruitment. PW1 he admitted that he did not deposit any money in the account of the appellant nor does his name appear on the deposit slip. 74. PW2 on his part stated that PW1 attended recruitment interviews but he did not succeed. That the appellant said there are slots that are given later and demanded Kshs. 300,000/= which he deposited in his account. That the money was to enable his son to get a job with the defence forces. It is trite law that for a charge to be proved, the charge and the particulars must be proved beyond any reasonable doubts. In this case he prosecution had stated that the money which was given was for letters for state jobs. The charge was not proved as the evidence tendered did not support the charge. Furthermore, the recruitment had been carried out an money could not have been demanded for an event that had already taken place. 75. Section 312 of the Penal Code defines False pretence as follows: “ A false representation made by words writing or conduct of a matter of fact either past or present, which representation is false, in that and which the person making it knows to be false or does not believe to be rue is a false pretence. Thus, a false pretence must refer to an existing or a present fact but not a future fact or event.” 76. Section 313 of the Penal Code provides that: “ Any person who by any false pretence and with intent to defraud obtain from any other person anything capable of being stolen, or induces any other person anything capable of being stolen, is guilty of a misdemeanor and is liable to imprisonment for three years.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 17

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77. The Court of Appeal in the case of Francis Mwangi & Another -vs- Republic (2015) eKL stated that the ingredients of the offence of obtaining by false pretence were stated as follows: “ From the definition the basic ingredients of the offence can be summarized as follows: 1. The act of obtaining something capable of being stolen. 2. Obtaining the thing by false pretence. 3. Obtaining the thing with intent to defraud. The definition of false pretence on the other hand is given under Section 312 of the Penal Code (supra). The operative word under the Section is representation which is applicable in the following circumstances: 1. A representation by words, writing or conduct. 2. A representation in either past or present. 3. A representation that is false. 4. A representation knowing it to be false or believed not to be true.” 78. A false pretence should therefore refer to a past or present events. Although the appellants state that the money was for state letters and not for recruitment which contradicts the charge sheet, the alleged letters were for a future event but not past or present. PW1 in his testimony stated that the appellant told him that he had a letter of state, the recruitment had already taken place. There is no dispute that at the time the money was deposited in appellants account, the recruitment exercise was over. The pretence was for a future event and dies not amount to a present or past event. The prosecution’s evidence was contradictory as some witnesses said it was for recruitment, other for state jobs and other state vacancies. 79. The prosecution failed to proof how the PW1 & 2 came to know the bank account number of the appellant as they both said they received it on whatsup and the messages were not produced. The prosecution had the burden to proof that the money was received for a past or present event. The evidence was contradictory. This is not helped by the fact that the charge was duplex by including PW1 & 2 as complainants on the same charge and PW1 categorically stated that no money was obtained from him. The evidence adduced was at variance with the charge. The ingredients of false pretence were not established. 80. The appellant has urged the court to find that crucial witnesses were not called. The rule of calling witnesses in criminal trial is that the prosecution bears the sole discretion to determine who to call as witnesses. Section 143 of the Evidence Act (Cap 80 law of Kenya) provides as follows: “ No particular number of witnesses hall in the absence of any provision of law to the contrary, be required for the proof of any fact.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 18

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81. 82. However, adverse inference may be made where the prosecution fails to call crucial witnesses with ulterior motives. In the case of Bukenya & Others -vs- Uganda (1972) EA 549 which was cited with approval in TMK -vs- Republic Cr. Appeal 17/2019 the Eastern Court of Appeal held that: “ (1) The prosecution must make available all witnesses necessary to establish the truth even though their evidence may be inconsistent. 2. The court has the right, and the duty to call any person who appears necessary or essential to the just decision of the case. 3. Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.” In Festus Mukati Mulwa -vs- Republic (2013) eKLR the court held that: “ Secondly the investigating officer who would have tied loose ends of the evidence together was not called to testify. No reason was given for such failure to call him to testify. He was indeed a crucial witness who should have been called to testify. Failure to call crucial witnesses who are known without explanation of that failure, trits the case in favour of an accused person in a criminal case, see Bukenya -v-s Uganda. The appellant contends that in count No 1 the prosecution failed to call Joseph Wachira Migwi as a witness to shed light on the allegations against the appellant as hews the first contact between the appellant and Pw2 with respect to 3rd count Shukri Mohamed Kulow who allegedly sent money through Nelson Mandela Kabwere (PW3) and was the one to benefit therefrom was not called as a witness. He was the main witness in the charge and was interviewed by PW8. That Stephene Kitonga who was the link between PW3 and Shukri Mohamed Kulow and the appellant was not called it submitted that there was no justification given for the failure to call a key witness Joseph Wachira Migwi. 83. In court No. 2 Mohamed Shukri Kulow is mentioned as the one who was to be recruited and the same in the 3rd charge and the alternative charge. This were crucial witnesses. Failure to call Mohamed Shukri Kulow left gaps in prosecution’s case because firstly the particulars of the charge in count 2 & 3 were not proved as the evidence advanced was insufficient to prove the charge and the particulars. 84. Secondly, the court was left in the darkness as to whether Mohamed Shukri was a person who was qualified to be recruited in the Defence Forces. The reason given was that he was sick. No medical evidence was produced to prove the allegation. Stephene Kitonga was also a crucial witness who was not called. As held in Bukenya -vs- Uganda (supra) failure to call the witnesses tilts the case in favour of the appellant. The evidence of Nelson Mandela Kabwere (PW3) was shaky. Failure to call Kitonga left the testimony of PW3 uncorroborated and insufficient. In cross-examination his report to the police was that Adan and not Shukri was to be recruited in the army. He admitted that the OB which reported was erroneous. 85. PW3 testified that the money was given for state jobs but not for recruitment in the army. This contradicts the particulars of the charge in charge No. 2 & No. 3. PW3 admitted during crossexamination that it was Kitonga who was controlling the same thing. I find that failure to call the witnesses who were mentioned was adverse to the prosecution case. It must be inferred that had the witnesses been called they would have given adverse evidence against the prosecution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 19

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86. Finally, the appellant raised the ground that the learned Judge Advocate misdirected himself by convicting in admissible on electronic evidence. The law on electronic evidence is anchored at Section 106B (4) of the Evidence Act (cap 80 Laws of Kenya) which provides as follows: “ (4) 87. In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following— (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any matters to which conditions mentioned in subsection (2) relate; and (d) purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate), shall be evidence of any matter stated in the certificate and for the purpose of this subsection it shall be sufficient for a matter to be stated to be the best of the knowledge of the person stating it.” The court of Appeal in the case of Peter Waihiga Kabiru & 2 Others -vs- Republic held as follows while dealing with the issue of compliance with Section 106B of the Evidence Act (Supra): “ In a recent decision by this court sitting at Kisumu County Assembly of Kisumu & 2 Others -vs- Kisumu County Assembly Service Board & 6 Others (2015) eKLR it was held that: “The provisions of Section 106B of the said Act were mandatory in nature and that a court should not admit in evidence or rely on manipulated electronic evidence or record… In the matter before the trial court, Ruteere did not testify that he had control over the computer, he did not testify how the computer operated during that period and did not give any certificate as required by Evidence Act, we agree with Mr. Wahome Counsel for the 2nd appellant that it was wrong for the trial court to rely on the electronic evidence when the evidence had not been properly before the trial court. It was wrong for the High Court to rely on the same on first appeal.” 88. In the case i.e County Assembly of Kisumu & 2 Others -vs- Kisumu County Assembly Service Board & 6 Others it was held: “ In relation to this case the relevant conditions in that Section are (a) if the computer output was recorded by a person having control over the computer used; (b) if the output was recorded in the ordinary course of that person’s activities using a computer or some other electronic device and fed into a computer that was properly operating throughout the material period and (c) if that person gives a certificate that to the best of his knowledge, the output is an electronic record of the information that it contains and describes the manner in which it was produced.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 20

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89. Thus, electronic evidence of a computer recording is admissible in evidence as an original document provided that he conditions laid down under Section 106B of the Evidence Act (Supra) are shown to have been fully complied with. As held the provisions of Section 106B are couched in mandatory terms are strict compliance with the Section should be proved before the evidence is admitted. Nothing short of strict compliance will allow the production in evidence of the electronic evidence. The appellant contended that there were gaps which raised doubts in the prosecution evidence as regards the alleged expert witnesses called. That PW5, PW6 and {W7 called as experts in their alleged association with Safaricom, Equity Bank and co-operative Bank. That the prosecution made no effort to allay the doubts as to their employment, their qualifications nor the authenticity of the documents they relied on looking at the evidence of these witness, PW5 Joseph Leerak stated that he Mpesa statant in respect of 0724xxx allegedly held by the appellant and 0718xxx held by Nelson Mandela were data printed by KDF on 27/08/2020 taken to Safaricom for stamping with a purported explanation that purpose of the stamp is to show that the statement come from Safaricom and was issued by Safaricom. 90. He said he is a fraud investigator. He told the court that the Data was printed by KDF and taken to him. He confirmed hat he is not he one who printed the data, it was done by KDF. Though he contradicted himself that he did print the Data. PW5 had no evidence in court to show he works for Safaricom as a risk manager. He had no document to confirm he is an expert. In the evidence in chief it was his testimony that he was not able to get the call records. I find that it is clear from the evidence of the witness that he is not the one who printed the computer printout. It is only when the deference counsel put it to him that he was lying that he changed the story. 91. I find that PW6 did not strictly comply with the mandatory conditions for production of electronic evidence. The certificate was just a formality having admitted that the Safaricom did not print the statement or it can also be a fabricated document as PW5 said, he is a liaison officer then said he, fraud investigator and the name on the job card and the identity card differed do not match. I find that there were glaring doubts as to whether the statements were produced in compliance with Section 106B of the Evidence Act. 92. With regard to PW6 he had no letter from Equity Bank to confirm that he is an employee. The signature on the statement differed from that of PW6. He did not confirm that he had control over the computer nor did he produce a certificate as required under Section 106B of the Evidence Act. There was no compliance with mandatory requirements under Section 106B of the Evidence Act and therefore the evidence of PW6 was a hoax and inadmissible. The appellant contended that he sentence was harsh as he was not given an option of a fine and yet he was a first offender. 93. I have considered the submission. It is trite law that an appellate court will not interfere with the sentence of the trial court as sentencing is an exercise of discretion. The appellate court will only interfere if it is shown that the sentence is manifestly harsh as to constitute an error in principle or that the sentence imposed is unlawful. The appellant was a first offender. The trial court imposed a none custodial sentence of two years for obtaining by false pretence under the Section 313 of the Penal Code. The sentence was lawful. It was not manifestly harsh in view of the nature of the offence. I would have had no reason to interfere with the sentence. Conclusion 94. For the reasons stated I find that the Appeal has merits, the Appeal is allowed and Order as follows: 1. The conviction is quashed. 2. The sentence is set aside. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 21

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3. The accused be set at liberty unless otherwise lawfully held. DATED, SIGNED AND DELIVERED AT KITUI THIS 10 TH DAY OF FEBRUARY, 2026 . HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4231/eng@2026-02-10 22

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