Criminal Division v Rebecca Mueni Musau-------------------------------1st Respondent & 1 other

4. The prosecution aggrieved by the decision of the learned Hon Senior Principal Magistrate R. K.Ondieki in MCCR No 703 of 2019 filed the instant appeal raising the following grounds;a) The Learned Magistrate erred in law and facts by acquitting the Respondents against the weight of overwhelming evidence, eventually acquitting them under section 210 of the Criminal Procedure Code. b) The Learned Magistrate erred in law and in fact by disregarding the evidence of the complainant and other witnesses which was devoid of any contradictions thus acquitting the Respondent. c) The learned Magistrate erred in law and in fact by failing to appreciate all the ingredient of the offences charged was proved by cogent evidence. d) The Learned Magistrate gravely erred in law and in fact by not appreciating that the evidence on e) record squarely placed all the Respondents at the scene of crime at the alleged theft occurred. f) The Learned Magistrate erred in Law and fact by failing to appreciate that both the Respondent were found in recent possession of the stolen goods. g) The Learned Magistrate gravely erred in law by failing to evaluate to the entire Prosecution evidence, thereby misdirecting himself in several matters of law and facts. 5. The parties to this appeal agreed to have the appeal disposed of by way of written submissions which they filed and have been duly considered by this court in determining this appeal. NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 2

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ISSUES FOR DETERMINATION 6. The following issues arise from the grounds of appeal raised by the appellant;- a) Whether there was sufficient evidence to warrant placing the two accused persons on their defense. b) Whether the ingredients of the offence of stealing had been established to warrant placing the respondents on their defense. APPELLANT’S CASE 7. The Appellant’s case was that the two respondents together with other persons not before the court committed the offence of stealing in Dubai and fled to Kenya where they were arrested and charged. 8. The prosecution called Pw1 a police officer from Dubai who testified that following a report made on 4th March 2018, he had reviewed a CCTV footage which revealed that one Charles stole the money and handed it over to a lady who was dressed in an Islamic dress and it was all black and had covered herself and one could not see the eyes. 9. According to the witness the lady took the bag with the money and fled the scene using a taxi. 10. He later identified the lady as the 1st respondent, who departed with the cash in a taxi. 11. The witness went on to state the upon arrest, Charles implicated both respondents, stating that he gave 3,000,000 Dirhams to the 1st respondent and 1,800,000 Dirhams to the 2nd respondentt. The respondents subsequently travelled to Kenya where they were traced and arrested through a multi-agency operation. NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 3

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12. It is important to highlight at this stage that the alleged confession by Charles was not produced in court thus the evidence of the witness to that extent remained hearsay evidence. 13. The prosecution submitted further that there was evidence that further disclosed that the 1st respondent was apprehended while attempting to cross into Tanzania and was found in possession of Kshs. 89,000/=. Upon further investigation, she led officers to a house under construction where Kshs. 13,130,000/= was recovered. A search conducted at the 2nd respondent’s residence yielded Kshs. 240,000/=. 14. These sums were produced as exhibits. Although there was an intention to produce CCTV footage, the prosecution case was closed before the same was availed. At the close of the prosecution’s case, the Respondents were acquitted under Section 210 of the Criminal Procedure Code. 15. The Appellant submitted that this Court, as a first appellate court, is under a duty to re-evaluate the evidence on record and arrive at its own independent conclusion, as was held in Okeno Vs. Republic [1972] EA 32 and Pandya -vs- Republic [1957] EA 336. 16. Further reliance was placed on Migwa v Republic (Criminal Appeal E046 of 2023) [2024] KEHC 2713 (KLR), which cited Mbogo and Another vs. Shah [1968] EA 93, to emphasize that an appellate court is entitled to interfere where the trial court misdirected itself or failed to consider material factors. 17. The appellant contended that the trial court failed to consider the doctrine of recent possession despite evidence that the Appellants were found with NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 4

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substantial sums of money shortly after the theft, thereby warranting appellate intervention. 18. On the question whether a prima facie case was established, the Appellant submitted that the prosecution discharged the requisite standard of proof. Reliance is placed on Republic v Abdi Ibrahim Owi [2013] eKLR and Ramanlal Trambaklal Bhatt V. R [1957] E.A 332, which defined a prima facie case as one upon which a reasonable tribunal, properly directing itself on the law and evidence, could convict if no explanation is offered. 19. Further the prosecution relied on the case of Koyabe v Republic (Criminal Appeal E223 of 2023) [2024] KEHC 11187 (KLR), which affirmed that proof beyond reasonable doubt is not required at the close of the prosecution’s case. The Appellant maintains that there was direct and circumstantial evidence linking the Respondents to the stolen money, including their possession of large sums traced to the theft, thus establishing a sufficient basis to place them on their defence. 20. With respect to the doctrine of recent possession, the Appellant submitted that the same was fully established but was erroneously disregarded by the trial court. The appellant relied on Athuman Salim Athuman vs. Republic [2016] eKLR, which sets out the elements necessary for the doctrine to apply, as well as ISAAC NG'ANG'A KAHIGA ALIAS PETER NG'ANG'A KAHIGA V. REPUBLIC, CR. APP. NO. 272 of 2005, which requires proof that the property was found with the accused, that it belonged to the complainant, that it was stolen, and that it was recently stolen. NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 5

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21. The prosecution further relied on Additional Bogere Moses & Another vs. Uganda, Cr. App. No. 1 of 1997 and Republic v Kowkyk [1988] 2 SCR 59, which emphasized that unexplained possession of recently stolen property raises a strong inference of guilt. 22. The Appellant contended that these elements were satisfied, as the stolen funds were traced to the respoindents, converted from Dirhams to Kenya Shillings, and recovered within a relatively proximate period following the theft. According to the prosecution the timeline of travel from Dubai to Kenya and the subsequent recovery of the funds further reinforced the nexus between the theft and the possession. 23. The appellant further submitted that, pursuant to Section 111 of the Evidence Act, once possession of recently stolen property once established, the evidential burden shifted to the accused to provide a reasonable explanation. In this regard, reliance was placed on Mwangale v Republic (Criminal Appeal E003 of 2022) [2024] KECA 311 and Paul Mwita Robi V Republic [2010] eKLR, which affirmed that such burden is evidential in nature and requires only a plausible explanation. 24. It was therefore the Appellant’s position that the trial court erred in acquitting the Respondents prematurely without invoking the doctrine of recent possession and without affording them an opportunity to explain their possession of the substantial sums recovered. The Appellant submitted that the evidence on record established a strong connection between the Respondents and the proceeds, thereby necessitating that they be placed on their defence. NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 6

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25. In conclusion, the Appellant urged this Honourable Court to find that the appeal has merit, to set aside the acquittal, and to order that the Respondents be placed on their defence. RESPONDENTS CASE 26. The respondents opposed the appeal and submitted that the appellants had not established a prima facie case to warrant them being put on their defence. 27. The respondents contended that the prosecution had failed to produce the CCTV footage which the prosecution through PW1 had said showed the images of those who stole the money including the 1st respondent. 28. The omission to do so according to the respondents rendered the evidence of PW1 worthless for it amounted to pure conjecture. The CCTV footage would otherwise have corroborated the same and placed the respondents at the scene thus the absence of that evidence dealt a fatal blow to the prosecution’s case. 29. The respondents further took issue with failure by the prosecution to avail the exhibits at the hearing of the appeal. The respondents took the position that in the absence of the exhibit, this court cannot order the matter to go back to the trial court for further proceedings as that would deny the respondents a fair trial in accordance with Article 50 of the Constitution. 30. The respondents relied on a decision by Mbogholi Msagha J in Raymont Romanus Fidler vs Rep. Criminal Appeal No. 1184 of 1998 where the learned Honorable Judge failed to order a retrial because the exhibits that would have been relied on in the case had been destroyed. NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 7

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31. The respondents therefore urged the court to find that there was no sufficient evidence that would meet the threshold of a prima facie case under Section 210 of the Criminal Procedure Code to warrant placing the respondents on their defence. 32. The money allegedly recovered from the respondents was not proved to be the money stolen from Dubai thus according to the respondents their acquittal was within the law. 33. The respondents urged this court to dismiss the appeal in its entirety. ANALYSIS AND DETERMINATION DUTY OF THE FIRST APPELLATE COURT 34. The duty of this court as a first appellate court is well established in law. It is to analyse, examine and re-evaluate the evidence afresh to satisfy itself that indeed there was evidence to convict. In the case of Okeno vs. Republic [1972] EA 32, as follows: “An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 8

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the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424.” 35. This court in a bid to satisfy itself as to whether the appeal has merit, has undertaken an analysis of the evidence tendered by the prosecution. The prosecution called a total of five witnesses three of whom were police officers. Pw1 was an officer from Dubai Police whereas PW2 and 5 were officers from the National Police Service. PW3 was an immigration official and Pw4 was the landlord to the 1st respondent. 36. The prosecution did not call anyone from Transguard Company who were named as the owners of the money allegedly stolen by the respondents. WHETHER THERE WAS SUFFICIENT EVIDENCE TO ESTABLISH A PRIMA FACIE CASE 37. The acquittal of the appellants happened at the stage of determining whether there was a prima facie case to warrant the placing of the respondents to their defense. 38. The respondents were charged with the offence of Stealing Contrary to Section268 as read with 275 of the Penal Code with an alternative count in respect of each one of them of Having Suspected Stolen Goods Contrary to Section 323 of the Penal Code. 39. The offence of stealing has the following key ingredients;a). the taking of one’s property without their consent or authority, b). the intention to deprive the owner of the property permanently c). the taking of the property is without any color of right to the property. NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 9

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40. The Court in Robert Onchwari Orina & another vs Republic (2021) eKLR, stated the following; “…………. For an accused person to be convicted of the offence under Section 268 of the Penal Code, its incumbent upon the prosecution to proof that he or she dealt with the property of the complainant fraudulently without any claim of right or converts it into his or her own use, other than the general or special owner thereof. That intention is executed in a manner to deprive the rightful owner of the property permanently. In R v Jones (1976) KLR 1 the Court observed that: “On a charge of theft, it was necessary to prove a fraudulent taking or conversion without claim of right, and a person was deemed to have taken or converted money fraudulently if he did so without a claim of right and with intent to use it at his will, even if he intended to repay the money to the owner.” 41. The prosecution therefore has the evidential burden to prove one that the thing alleged to have been stolen was capable of being stolen and that the person who allegedly stole it had no claim or right over the property. 42. The prosecution in this matter required to lead evidence to show that there was indeed money lost from Transguard Company and that the money did not belong to the respondents if at all they were the ones who stole the money. 43. The first gap in the evidence tendered before the trial court is that there was no one from the company called to tender evidence as to the existence of the money that was allegedly stolen. NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 10

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44. The omission by the prosecution left the court only with the testimony of Pw1 who said a report was made to them that money had been stolen. 45. The omission meant that the fact of the money being there and having been lost in the circumstances narrated by Pw1 was not conclusively established leaving out one of the key ingredients of the offence of stealing. 46. The failure to produce the CCTV footage which would have corroborated the evidence of PW1 was fatal to the prosecution’s case, the CCTV footage would have confirmed if at all the 1st respondent was at the scene as alleged by Pw1 considering that PW1 said that the lady who left with the bag that allegedly contained the cash was dressed in an Islamic dress and one could not see the eyes. 47. The prosecution did not lay any basis for their failure to call that evidence even after indulgence by the court. The mere recovery of money amounting to Ksh 13 million from the premises of the 1st respondent could not be the evidence that one would rely on to say that the amount was linked to the theft in Dubai. The appellant submitted that they were relying on the doctrine of recent possession purely on account of the recovery. 48. The submission by the appellant is perilously near suggesting that whenever one is found in possession of large sums of money, there is an irrebuttable presumption that the money must have been stolen or proceeds of crime. The suggestion is dangerous considering that ours is largely a cash economy thus many businessmen are likely to hold colossal sums of money in their premises purely for commercial purposes. NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 11

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49. The prosecution needed to establish that the money was illegally obtained by the respondents and connect it through evidence, direct or circumstantial to the money allegedly stolen in Dubai. They failed to do so. 50. PW2, Police Constable David Warari of DCI Namanga, testified that on 3rd July 2018, he acted on instructions from his superior following information received from immigration authorities regarding the arrest of the 1st accused at the Namanga border while attempting to cross into Tanzania. He re-arrested her and escorted her to Namanga Police Station. At the time of arrest, she was found in possession of Kshs. 89,000/= and her Kenyan passport, both of which were produced in court. He clarified that his role was limited to effecting the arrest and facilitating the handover of the accused to officers from DCI Headquarters, and that he had no prior knowledge of the offence. 51. The evidence by this witness did not assist much other than raise suspicion that the 1st respondent may have been fleeing from Kenya. The amount of money recovered from her at the point of arrest was not in Dhirams which was the currency allegedly stolen from Dubai. The figure was within a conservative limit that any traveler would carry on a journey. 52. PW3, Samwel Olilo, testified as an Immigration Officer who at the material time was stationed at Namanga. He stated that on the relevant date, the 1st accused presented herself for clearance to travel to Tanzania using Passport No. A2578170. During the routine biometric processing, the system generated a “hit” indicating that the 1st accused was a wanted person by law enforcement agencies. Consequently, he detained her and handed her over, together with her passport, to his supervisor, one Kenneth Goga. He identified the 1st accused in court and produced the passport as NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 12

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an exhibit. In cross-examination, he clarified that his role was limited to the arrest triggered by the biometric alert and that he had no knowledge of the purpose of her intended travel to Tanzania. 53. The witness was only able to corroborate the evidence of arrest by Pw2 and nothing more. 54. PW4 Peter Mukoma, a businessman engaged in real estate and a director of Ideal Property Developers Ltd, testified that in May 2018 he was approached by prospective tenants seeking to rent a five-bedroom maisonette along Kamulu Road at a monthly rent of Kshs. 40,000/=. He stated that he met three individuals—two and a gentleman—and an agreement was reached, following which a deposit of Kshs. 40,000/= was paid to him by the 1st accused. Although a formal lease agreement had been contemplated, the same was never executed. 55. He further testified that the tenants took possession of the premises but in July 2018, he became aware through social media reports that certain individuals had been arrested in connection with allegations that the house had been acquired or used with proceeds of crime. He was subsequently summoned by investigative authorities and informed that the premises constituted a scene of crime, prompting him to record a statement. 56. He confirmed ownership of the property, producing relevant documents including the company registration (MFI 9), certificate of title for Nairobi/Block/118/197 (MFI 10), CR12 (MFI 11), and a letter from his advocates asserting ownership and seeking release of the premises (MFI 12). He also produced photographs of the house (MFI 13). NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 13

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57. The evidence of that witness was not relevant to the charge of stealing as well. It only assisted in informing the court that the 1 st respondent was her tenant and nothing more. 58. PW5, Sergeant Emmanuel Ngetich of DCI Machakos, testified that investigations into the matter were initiated following communication through the Ministry of Foreign Affairs and authorities in the United Arab Emirates concerning the theft of 5 million Dirhams. He stated that the accused persons had been identified as recipients of the stolen funds and had travelled back to Kenya. Upon receiving intelligence that the 1st accused had been arrested at Namanga, he proceeded there with fellow officers and subsequently escorted her to her residence in Kangundo. Acting on information provided by the 1st accused, they searched a house under construction and recovered a total of Kshs. 13,130,000/= concealed within the premises. The recovered money was later verified as genuine. 59. The witness recovered the money from the House that was the alleged residence of the 1st respondent. The money was in Kenya Shillings yet the money allegedly stolen in Dubai was in the Dhiram currency. 60. The prosecution did not lead evidence to show that there was conversion of the Dhirams by any of the respondents which would have been a critical nexus to the sum allegedly stolen. 61. It is important to highlight that mere possession of such large sums of money raises suspicion about the possible involvement in crime by the respondents but the law is that suspicion however strong can never be the basis of a prosecution and conviction. See Sawe vs Republic {2003}eKLR. NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 14

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62. It was incumbent upon the prosecution to prove that the money recovered was not the respondents lawfully earned cash. 63. PW5 further testified that investigations led to the arrest of the 2nd accused in Githurai on 6th April 2018, where a search of his residence yielded Kshs. 240,000/= and documents relating to ownership and transfer of land, suspected to have been acquired using proceeds of crime. An inventory of recovered items was prepared and signed accordingly. 64. Pw5 also produced international arrest warrants obtained through Interpol and travel records confirming the movements of the accused persons from Dubai to Kenya. 65. Additionally, PW5 stated that he travelled to Dubai alongside other officers, where they were briefed on the circumstances of the theft and confirmed that the principal offender, Charles Karanja Kimani, had already been charged and imprisoned. 66. According to Pw5 Investigations in Dubai corroborated that the stolen money had been handed over to the 1st accused, who subsequently met the 2nd accused and facilitated the transfer of part of the funds. It was further established that the 1st accused departed Dubai on the same day as the theft, while the 2nd accused travelled days later, consistent with the prosecution’s theory of events. 67. The evidence of Pw5 was not backed by any Mutual Legal assistance evidence to show that Kenyan investigators had travelled to Dubai and obtained evidence linking the two respondents to the case. NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 15

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68. Indeed, even the proceedings in the Dubai Case where one Charles Karanja Kimani is said to have been prosecuted were not produced thus the existence of such a record in Dubai remained pure conjecture. The Mutual Legal Aid Assistance Act under Section 33 makes a clear provision on the manner in which records from foreign jurisdictions may be requested for and utilized by the appellant in local proceedings. It is not clear why the state did not choose to pursue the path of Mutual Legal Assistance to obtain Evidence from Dubai for use in the proceedings giving rise to this appeal. 69. The intriguing thing about this appeal is that though the prosecution insists that there was prima facie case against the respondents, the issues that this court has raised about the evidence and obvious lapses by the prosecution were not addressed. 70. The exhibits produced in the court below even after this court inquired about them were not availed raising the question, whether indeed there was will to prosecute the matter to a logical conclusion in the first place. 71. The failure to call the crucial witnesses and the unavailability of the exhibits including the CCTV cannot escape the attention of this court. 72. The Court of Appeal in the case of Bukenya vs Uganda [1972] EA 549 (Lutta Ag. Vice President) held: “The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent. 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 the instant case, the prosecution called NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 16

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sufficient evidence on record, even without the evidence of Wairimu and the boda-boda riders.” 73. The authority above makes it clear that were the evidence tendered is barely adequate an adverse inference is to be drawn against the prosecution. The court is minded to find and hold that there was absolutely no effort made to have all the key witnesses testify and as such the only conclusion that the court draws from this, is that had the witnesses been called to testify, their evidence would most likely have been adverse to the prosecution. The omission to tender the CCTV footage in evidence further indicates that the prosecution was not undertaken with the seriousness that was required thus the trial was doomed to fail. 74. It is interesting to note that in this era of technological advancement, the prosecution could not avail its witnesses through video link to testify and produce the necessary evidence. Section 22 of the Mutual Legal Assistance Act permits the use of Video conferencing technology to transmit evidence thus the prosecution had the necessary legal tools at their disposal to deal with this matter conclusively. The omission to adopt video conferencing denied the court the opportunity to receive the evidence of the complainant as well at the CCTV footage evidence which would have gone along way in establishing the case against the respondents. 75. In order to be able to establish the charges the prosecution needed to show that the respondents took the money or converted it to their own use or the use of another person. They too needed to show that the action was done fraudulently and or without Claim of Right. The taking must also be shown not to have been based on a sincere, honest belief that they had a legal right to the money. NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 17

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76. The prosecution did not succeed in establishing these crucial ingredients of the offence. Although Pw1 claimed that the 1 st respondent received the money in Dubai from one Charles who was not called as a witness, the evidence of Pw1 required the support of the CCTV footage which was not tendered. The omission dealt a fatal blow to the prosecution case. 77. Lastly, the intention to permanently deprive the owner of the money ought to have been proved. In this case the owner of the money never testified thus the court had no evidence of ownership of the money or the existence of it in the first place to act on. The prosecution appears to have proceeded with the matter on the basis of a false assumption that since there were recoveries of huge sums of money, that would be sufficient to prove the case against the respondents. 78. The doctrine of recent possession would only apply where there is evidence of ownership of the thing stolen. As earlier on stated, the money recovered from the respondents was in Kenya shillings thus there was need to prove that this was the money stolen from Dubai in Dhirams and converted into Kenya Shillings. There was no such evidence. 79. So then, having examined the entire record, the court is bound to ask, is this a fit case to reverse the ruling of the Hon Magistrate? The unequivocal answer is no. The evidence tendered fell far below the threshold of a prima facie case thus the learned Honorable Magistrate properly directed himself. 80. The only thing I would say is that the respondents could have been successfully prosecuted in Kenya by virtue of the provisions of Section 6 of the Penal code since the arrest of the respondents happened in Kenya. Further, the respondents being Kenyans could be competently prosecuted NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 18

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in Kenya on the basis of the Nationality principle for acts committed outside Kenya which constitute a crime under Kenyan law. Thus, contrary to what the learned Honorable Magistrate stated in his Ruling Kenya had the necessary jurisdiction to try the accused persons. 81. Under the doctrine of aut dedere aut judicare the accused persons having been arrested in Kenya were liable to be tried in Kenya or extradited to face trial in Dubai to face the charges that they were charged with in Kenya or Money Laundering related charges which bear an international character. The charges preferred in the lower court were therefore in order and had there been adequate evidence to support them this court would not hesitate in setting aside the trial court’s decision. 82. The appellant having decided to charge them in the country was under duty to request for Mutual Legal Assistance from the UAE to repatriate evidence into the country for purposes of conducting a successful trial. 83. The matters this court has highlighted in the judgment pointing to glaring strategic fatal mistakes committed by the appellant, militate against an order quashing the decision of the trial court acquitting the accused persons. 84. The gaps noted in the prosecution of the matter do not even allow the consideration of a retrial as an option. The mistakes were those of the prosecution for which the respondents and the court cannot be blamed. 85. In Muiruri v Republic [2003], KLR, 552 and Mwangi v Republic [1983] KLR 522 and Fatehali Maji v Republic [1966] EA, 343 the view expressed by the court was that: - NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 19

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“Although some factors may be considered, such as illegalities or defects in the original trial, the length of time elapsed since the arrest and arraignment of the appellant; whether mistakes leading to the quashing of the conviction were entirely the prosecution’s making or not; whether on a proper consideration of the admissible or potentially admissible evidence a conviction might result from a retrial; at the end of the day, each case must depend on its own particular facts and circumstances and an order for a retrial should only be made where the interests of justice requires it.” 86. The circumstances of this case are such that even the option of declaring the trial in the lower court as being a mistrial does not arise. The acquittal of the respondents was done within the law thus this court would have no basis of interfering with the same. 87. An order for a retrial should never be made where it appears to the court such as in this case that to do so would unjustly prejudice the accused persons. 88. In the case of Issa Abdi Mohammed v Republic [2006] eKLR the court opined that: “An order for retrial would have been most appropriate in the circumstances of this case. To do so however, in the circumstances of this case would cause irreparable prejudice to the appellant since the prosecution may have become wiser and would wish to plug the loopholes already alluded to in this judgment. In the result there is only one channel left to this court and that is to allow the appeal, quash the conviction and set aside the sentence. The appellant may be set at liberty forthwith unless otherwise held on a lawful warrant.” 89. The upshot of the above is that the appeal by the state is found to have no merit and the same is hereby dismissed. NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 20

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90. It is so ordered. DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 15th day of APRIL, 2026. A. M. MUTETI JUDGE In the presence of: Habiba: Court Assistant Mogere for the Appellant Kabaka for the Respondent Nyaribo/Ms Okinda for Respondent 1st Respondent - Present 2nd Respondent - Present NAIROBI HC CR APPEAL E 148 OF 2024 – Judgment, Republic –vs- Rebecca Mueni Musau & Ano. 21

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