Francis Mulu Mamwaka v Republic

d). That the Trial Magistrate grossly erred both in law and fact by convicting and sentencing the Appellant whereas the charge before the Honourable Court was defective, incompetent and bad in law in that the evidence adduced in terms of the Certificate of Title before the Honourable Court was distinctively different from the one on the charge sheet and the one referenced and produced before the Trial count i.e LR 4953/4233 and now the question that besets this proceedings, which is the correct or real title for the purposes of this proceedings? e). That the Learned Trial Magistrate grossly erred in law and fact and in violation of the principles and tenets of law on the burden placed upon the prosecution to prove their case beyond any shadow of doubts proceeded to convict and sentenced the accused person when it clearly came out in the evidence before the Honourable Court that there were circumstances, factors and occurrences that raised serious doubt on the credibility, sincerity, honesty, genuineness on the part of principal and co-complainant in the proceedings before the Honourable Court. f). That the Learned Trial Magistrate erred both in law and fact by failing to appreciate that the whole investigative process and proceedings were interfered with and doctored at the instance and on the influence of the PW1 Catherine Njeri Ng'ang'a alias Maranga when the completed and recommended prosecution of PW1 and PW2 decision had already been made by the office of the Director of Public Prosecution and instead schemed and caused to be manipulated the investigators proceedings and diary were manipulated and key investigative documents were removed from the file with a view of distorting and altering the facts such as the original documents examiners report by I.P. Chania Geoffrey from the Directorate of Criminal Investigation and replacing it with a doctored and adulterated document and examiners report. g). That the Learned Trial Magistrate erred both in law and fact by failing to look at the fraud, illegalities and irregularities on the document produced by the prosecution in support of the prosecution case which is not only an affront to the truth, tenets of good criminal law principles and the law generally but blatant abuse of the constitution of Kenya and the principles of Criminal Justice System and altered in particular; (i) using of fraudulent, forged documents in the form of letter of allotment reference number 23136/XLIII dated 9th July 1998. (ii) relying on invalid, incompetent and bad in law documents issued in favour of a minor person who as 9th July 1998 was only 17 years. iii). the title produced as an exhibit by the prosecution was a clear case of forgery and fraud having been founded on photo copies of deed plans and which were premised on false affidavit. iv). relying on evidence which was false and therefore amounting to perjury before the Honourable Court and yet the Court relied on those documents to convict and sentence the Appellant. v) failing to address its mind to other serious issues such as the forgery, distorted and misrepresented facts which highly influenced the final judgment of the Trial Magistrate. (vi) failing to address the issue of the purported establishment contractual obligation with a minor which made any document or such contract null and void. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 2

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(vii) Failing to notice the discrepancies in the two allotment letters respecting the subject land parcel. (viii) Failing to seek specific and express evidence from any of the witnesses whether the Appellant had the capacity and mandate to sign letters of allotment and to what extent or whether he had any limitation. (ix) Failing to appreciate that the Deceased Accused 2 was the owner of parcel number Reference LR. 4953/4223 and that he had valid letter of allotment, informal transfer signed and accepted by the Commissioner of Lands, he had not only issued a cheque in the year 2008 which was stolen by PW1 the Principal Complainant but that he replaced the cheque and was accepted and paid to the Commissioner of Lands. (x) Failing to appreciate that the file was opened in favor of the Appellant and which was transferred to the Deceased 2nd Accused person who took possession of the land and developed it as per the exhibits produced in Court. (xi) That there is a deed plan issued and is still in possession of the Deceased 2nd Accused person (as he was then) and now with his family, what is of great importance and great significance is deed plan respective subject land matter. xii) The evidence of interference of records at lands office and in particular the intention and deliberate removal of documents from file number 208924. (xiii) Condoning corrupt practices to overlooking the truth and justifiably cause and giving credit to illegality, unlawful as practiced at lands office. h). That the Trial Magistrate erred in law and fact by failing to give due consideration and the exact weight the defence evidence consisting of the oral and documentary accounts and records presented before it, which if otherwise was thoroughly examined and evaluated and considered would have given different results. i). That the Trial Magistrate erred both in law and facts by failing to give due consideration to what entails the process of allocation and process of Government land and who can be allocated Government land or in other terms who was the rightful allottee of land parcel LR. 4953/4223 formerly un-surveyed Plot No. C Thika Municipality. J). That the Trial Magistrate erred both in law and fact by failing to appreciate the evidence tendered by the defence team in opposition to the charges preferred against the accused person of abuse of office. Issues For Determination 2. The grounds of appeal basically raise the following issues for determination;a). whether the prosecution proved its case against the appellant beyond a reasonable doubt. b). whether the findings by the learned honorable magistrate could be supported by the evidence on record. c). whether the defense by the appellant was considered by the trial court https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 3

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Appellant’ Case 3. The appellant submitted that the central issue presented for determination in the appeal is whether, upon a proper re-evaluation of the record, the Appellant is entitled to the reliefs sought in the said Petition of Appeal. 4. The Appellant submitted that this Court, sitting as a first appellate court, is clothed with a wide and unfettered mandate to re-evaluate, analyze and reassess the entirety of the evidence on record and arrive at its own independent conclusions. In support of this position, he placed reliance on Mwangi v Republic (Criminal Appeal E009 of 2023) [2024] KEHC 4728 (KLR) (2 May 2024), wherein the High Court reaffirmed the long-standing principles set out in Okeno v Republic [1972] EA 32, Pandya v R [1957] EA 336, Shantilal M. Ruwala v R [1957] EA 570 and Peters v Sunday Post [1958] EA 424, that a first appellate court must subject the entire evidence to a fresh and exhaustive examination and is not limited to merely determining whether there was some evidence to support the trial court’s findings. Similar affirmation of this duty is found in Kiilu & Another v Republic [2005] 1 KLR 174. 5. Further, he also relied on JKM v Republic (Criminal Appeal E024 of 2023) [2024] KEHC 6335 (KLR) (3 June 2024), where the Court reiterated that, while re-evaluating evidence, the appellate court must bear in mind that the trial court had the advantage of seeing and hearing witnesses. 6. The Appellant urged this Court to undertake a similar wholesome re-evaluation of the evidence and arrive at a conclusion different from that of the trial court. 7. On the burden and standard of proof, the Appellant submitted that the prosecution bore the burden throughout the trial and that the same never shifted to the Appellant. Reliance was again placed on Mwangi v Republic (supra), wherein the Court emphasized that the standard of proof in criminal cases is proof beyond reasonable doubt and that any reasonable doubt must be resolved in favor of an accused person. The Appellant further cited the definition of “standard of proof” as set out in Black’s Law Dictionary, 11th Edition (2019) at page 1694. 8. The Appellant also relied on Republic v Ismail Hussein Ibrahim [2018] eKLR, where Nyakundi J traced the doctrine of proof beyond reasonable doubt to the seminal authorities of Woolmington v DPP [1935] AC 462 and Miller v Minister of Pensions [1942] AC, including Lord Denning’s exposition that proof beyond reasonable doubt requires a high degree of probability rather than absolute certainty. 9. The appellant urged the court to allow the appeal should there be any material doubt in the case of the prosecution as was held by Mativo J (as he then was) in JMN v Republic (Criminal Appeal E017 of 2021) [2022] KEHC 279 (KLR) (7 April 2022), that even a single material doubt is sufficient to entitle an accused to an acquittal as a matter of right. 10. The appellant further urged the court to consider that he enjoyed the presumption of innocence under the law as enshrined under Article 50 (2) (k) of the Constitution and that any doubt in the case must be resolved in his favor. 11. Turning to the offence itself, the Appellant submitted on the ingredients of the offence of abuse of office, particularly the mens rea and actus reus and argued this court to find that the prosecution had failed to establish either of the two key ingredients. 12. The appellant cited the decision of the Court of Appeal decision in John Simiyu Khaemba & another v Republic [2020] KECA 470 (KLR), where the Court held that abuse of office entails the improper use of public office, constituting mens rea, and the conferment of a benefit to oneself or another https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 4

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person, constituting actus reus. The Court further clarified that improper use includes conscious violation or non-adherence to prescribed procedures and regulations. The appellant contended that the prosecution had not established that he had improperly used his office to confer a benefit on himself or some other person. 13. He submitted that the trial court failed to properly analyse the charge, the prosecution evidence and the Appellant’s defence, and thereby arrived at an erroneous conclusion. He further submitted that the charge sheet was fatally defective, noting that the land registration numbers cited differed, namely LR No. 4953/4233 and LR No. 4953/4223, and that the title produced in court was unsupported by documents from the land registry file. 14. The Appellant contended that the trial court failed to address this defect, rendering the conviction untenable. 15. In addition, the appellant submitted that the ownership of the property known as LR No. 4953/4223 was contested, with two parallel land files and titles in existence, and that there were ongoing proceedings before the Environment and Land Court. 16. He further contended that there was overwhelming evidence before the trial court that demonstrated that the complainant’s title was procured through fraud, forgery and illegal manipulation of land records, yet the trial court nonetheless founded a conviction on such contested ownership. 17. On mens rea, the Appellant submitted that the prosecution failed to call a single witness to demonstrate that the process of allocation of the subject property violated any prescribed procedures within the Ministry of Lands. On the contrary, the Appellant’s witnesses, including DW5, a former Ministry of Lands officer, testified that public officers were entitled to apply for unsurveyed land and that, at the material time, the Appellant was duly authorised to sign letters of allotment on behalf of the Commissioner of Lands. 18. The Appellant maintained that he and two others lawfully applied for unsurveyed vacant land and that the same was approved by the Commissioner of Lands. 19. The Appellant submitted that his act of signing the letters of allotment, including one in which he was an allottee, was lawful, proper and consistent with the prevailing practice at the time, as confirmed by multiple witnesses. He contends that no prescribed procedure was violated and that the prosecution failed to demonstrate that he acted outside the scope of his authority, thereby failing to prove mens rea. 20. The Appellant further submitted that abuse of office is an offence against the State and ought to be investigated by the Ethics and Anti-Corruption Commission (EACC). 21. He contended that the complainants in the trial court were private individuals with vested interests in the property and that no officer from the EACC testified or conducted investigations. The Appellant argued that the prosecution was instigated by interested private persons rather than the State, rendering the charge and conviction untenable. 22. On investigations, the Appellant submitted that he was initially a complainant in a trespass matter but was later turned into a suspect and accused through manipulation of investigations by the complainants led by Catherine Njeri Nganga. 23. The appellant contended that the investigation file was transferred from Thika to DCI Headquarters through manipulation. 24. He further submitted that the land records were stolen and manipulated, leading to parallel files, and that the trial court erred in relying on evidence from such complainants. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 5

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25. In conclusion, the appellant submitted that the Investigation Diary was not produced in court, a fundamental omission which, in his view, points to the fact that the investigation file was doctored and manipulated. He contends that the trial court failed to appreciate this fatal flaw. 26. According to the appellant the trial court failed to properly evaluate the charge sheet, the evidence on record and the applicable law, and consequently arrived at an erroneous decision. He urged this Honourable Court to disturb the conviction and grant the reliefs sought in the Petition of Appeal dated 2nd March 2023. Respondents Case 27. The Respondent opposed the Appeal and submitted that the Appeal is wholly without merit and ought to be dismissed. 28. The Appellant was charged with two offences, namely: conspiracy to defraud contrary to section 317 of the Penal Code, and abuse of office contrary to section 101 as read with section 102A of the Penal Code. 29. At the conclusion of the trial, the Honorable Magistrate acquitted the Appellant on the first count, owing to the death of a co-accused, which rendered the conspiracy charge incapable of proceeding, but found the Appellant guilty of the second count of abuse of office, convicting him to one year’s imprisonment or payment of a fine of Kshs. 100,000/=. 30. According to the Respondent the issues for determination in this appeal are whether the ingredients of the offence of abuse of office were proved and whether the charge sheet was fatally defective. 31. In regard to the first issue, the Respondent submitted that the prosecution discharged its burden by establishing the ingredients of abuse of office under section 101 of the Penal Code, which requires that a public officer must have used his office to arbitrarily confer a benefit prejudicial to the rights of another, with section 102A providing the corresponding penalty. 32. The Respondent relied on the Court of Appeal decision in Chitavi v Republic (Criminal Appeal 11 of 2014) [2023] KECA 1564 (KLR), which set out the elements of abuse of office as: i. the person is a public officer; ii. the public office is used to improperly confer a benefit; iii. the benefit must be in the nature of a gain; and iv. the arbitrary act is prejudicial to the rights of another. 33. In the present case, the respondent submitted that the evidence from PW4 (recorded as PW3) John Waiganjo established that the Appellant was a public officer, having been deployed to the Ministry of Lands and Physical Planning on 8th August 1988 and served there until his resignation on 11th November 2007. 34. The Respondent contends that the Appellant abused his position by improperly issuing a letter of allotment to himself of an un-surveyed plot within Thika Municipality, reference No. 23136/XLIII, as exhibited in court (Exhibit 6). Evidence from DW2 and DW5 detailed the procedure for allocation of land, including identification, application, acceptance, payment of legal fees, and formal approval by the Commissioner of Lands and subsequent notification to the Director of Survey. 35. The Respondent asserts that the Appellant did not follow these procedures; he neither paid for the allotment nor obtained the requisite formal acceptance but purported to transfer the parcel informally https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 6

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to one John Ngacha Nganga. Evidence confirmed that payment was never made, including a cancelled banker’s cheque (PW6), and therefore the Appellant’s actions constituted improper conferment of a benefit to himself and the said John Ngacha Nganga satisfying the second and third ingredients of the offence. 36. Furthermore, the Respondent submits that the arbitrary act prejudiced the rights of another. 37. The property in question rightfully belonged to Kennedy Nganga, who had complied with the legal requirements of acceptance and payment. 38. PW8 confirmed the allocation of land to a minor PW5, verified the issuance of a title to the complainant and PW9, a document examiner confirmed the Appellant’s signature on the allotment letter. 39. The Respondent challenges the credibility of the Appellant’s expert witness DW1 arguing that he failed to establish his qualifications, did not provide scientific criteria for assessing signatures, and was biased due to remuneration from the Appellant rendering his report unreliable. By contrast, the prosecution’s expert report stands unchallenged and is reliable evidence. 40. On the second issue regarding the charge sheet, the Respondent contends that it was not fatally defective. The Appellant’s assertion that the charge sheet and certificate differed in land parcel numbers (LR 4953/4233 versus LR 4953/4223) is misplaced. Count II of the charge sheet specified that on 9th July 1998, at the Land Registry in the Ministry of Lands and Settlement, Ardhi House, Nairobi, the Appellant, employed as a Land Officer, arbitrarily issued a letter of allotment of an unsurveyed residential plot within Thika Municipality, reference No. 23136/XLIII, abusing his office. The Respondent submits that the charge sheet correctly captured the particulars of the offence and was therefore not defective as alleged. 41. In conclusion, the Respondent prays that this Honourable Court dismiss the Appellant’s submissions, uphold the findings of the trial court, and affirm the conviction and sentence imposed on the Appellant for abuse of office. Summary Of The Prosecution’s Case 42. PW1, Catherine Njeri Ng’ang’a, testified to the court that in 1997, while still in business, she engaged Mr. Njau, a physical planner, concerning a parcel of land situated in Thika, which she understood to be government land. At the time, the Commissioner of Lands was Mr. Gacanja. PW1 further stated that she consulted James Chege Gitunga, a survey officer, who informed her that 10 acres could only be allocated to three people, namely herself, Francis Kimani Ngugi, and James Chege. 43. PW1 testified that James Chege wrote a letter to the Commissioner of Lands seeking allocation. The original 10 acres, initially referred to as Plot C, was subsequently subdivided into Plots A, B, and C. The survey was carried out by Wilson Kamau, and new numbers were issued as follows: Plot A – 4221, Plot B – L.R. No. 4953/4222, and Plot C – L.R. No. 4953/4223. PW1 stated that her portion was Plot C. After subdivision, the process was handled through James Chege Gitonga. 44. PW1 told the court that an allotment letter dated 19th July 1998, marked MH-1, was issued in the name of Kennedy Marenga, her first-born son, for Plot C (MH-1). She explained that she opted to have the allotment registered in her son’s name. She paid money to facilitate and retain the allocation of the plot. 45. In or about 2009, PW1 visited the Lands Office and met Hassan, who was in charge of records. She stated that the file was found under a table, associated with Kanwa, and that the deed plan was missing. PW1 testified that she knew Francis Mwanawaka (Manwaka) and subsequently consulted a https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 7

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Senior Land Officer, Mr. Kimiti, who advised her to see Mr. Kosgey. She stated that there was another complainant raising similar issues. 46. PW1 sought legal assistance from Mr. Ondiek, Advocate, who wrote to the survey department. As a result, a deed plan was issued, which she identified as MH-2, being a copy of the deed plan No. 40607. She produced this document in court. She testified that she took the deed plan for purposes of registration of title. PW1 stated that in 2012, she called her son Kennedy Ng’ang’a Maranga to come and collect the title. She paid Kshs. 161,000/= for the title and was issued with receipts from the Ministry of Lands. She produced a copy of a banking slip for Kshs. 161,100/= dated 24th January 2012, marked MH-3, and stated that she took a banker’s cheque for Kshs. 161,000/=, issued on 24th January 2012 from Mama Ngina Branch, marked MH-4, cheque number 093759. She further produced a receipt dated 3rd February 2012, marked MH-5, from the Ministry of Lands, relating to File No. 208924, in the name of Kennedy Ng’ang’a Maranga. 47. PW1 testified that the Memorandum of Registration, attached and marked MFI-1, showed I.R. No. 141554/1, registered on 15th November 2012, by the Government Registrar, in favour of Kennedy Ng’ang’a, with presentation recorded on 23rd November 2012. She further stated that she was required to pay annual rent of Kshs. 27,000/= and that she provided her identification documents for purposes of searches. 48. PW1 testified that in 2013, payment demands and receipts were issued, marked MFI-5(a) and MFI-5(b), and that she had a handwritten receipt. She further stated that on 28th October 2013, she paid amounts of Kshs. 20,000/= and Kshs. 10,000/=. She narrated that upon visiting the land, a smallstatured lady showed her an envelope and claimed to be an employee, having reported in 2008 to Mr. Kosgey. PW1 stated that she proceeded to process the title through Thika District Survey Office. 49. PW1 testified that survey work was conducted from 7.00 a.m. to 6.00 p.m., but no one appeared on site. Beacons were placed following existing markings, but later found uprooted. She reported the matter to the police and stated that despite having earlier reported the issue, she and her son were arrested for trespass. No statements were recorded, and they were released. She refused to write a statement at that time and later went to CID Headquarters. She testified that she later went to Thika DCIO’s office, where Officer Burugu advised them to return the following day. She produced documents to CID and recorded a statement. She referred to file numbers 202984 and 1456/422746, and a letter dated 11th September 2012, indicating that the title was issued on 26th November 2012, marked MH-7, relating to File No. 202480. She also produced MH-9, being a certificate for land. 50. PW1 further testified that the survey was conducted by Millicent Kamau on 27th February 2002, and produced MH-2 in that regard. She referred to a release letter from the Director of Pan Survey of Kenya dated 13th February 2013, referencing L.R. Nos. 4953/2201 and 4953/212. She also produced MH-11, being title details and receipt copies for Kshs. 135,000/=, reflecting a 99-year lease at Kshs. 27,000/= per annum, dated 14th September 2012. She produced MH-12, being an annual rent receipt, and referred to a release dated 15th February 2002 for 4953/4. 51. PW1 went on to state that all documents were contained in the file and referred to a letter dated 26th May 2016, issued in April, marked MH-14, and an approval dated 11th June 2012, attached to MH-15, being a clearance certificate. She stated that investigations concerning land fraud led her to Nyeri, where she obtained the file.She testified that she later learnt that John Ngocho Ng’ang’a claimed to have bought the land from Francis Mwanawaka, a land officer at Ardhi House. She stated that she acquired the land in 2012 through a legal process and produced MH-16, being an allotment for Plot C, and MH-17, being an allotment in favour of John Ngeno. She testified that she was surprised that another allotment existed, yet the land was initially for only three persons. She stated that a civil case https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 8

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had been lodged over the land, that the complainants had constructed structures and taken over her land, and identified Francis Mwanawaka as Accused 1 and Mr. Ngacha as Accused 2, residing along Kiambu Road. 52. Upon Cross-Examination by Mr. Muriuki (for Accused 1 and Accused 2) PW1 confirmed that the land in question is L.R. No. 4953/4223, registered in her son’s name, measuring slightly less than 3 acres, and containing three stone houses. She testified that she first saw the initial house around 2010– 2011, and later observed additional structures. She identified John Ngacha Ng’ang’a as the owner of the first house and stated that in 2008, she discovered a small office selling plots and informed the seller that the land did not belong to them. 53. PW1 further testified that in 2010, she found documents missing from the Lands Office file, except for the file cover and allotment letter, and was advised to obtain a deed plan. She confirmed that the deed plan was later reissued as MH-2 (certified copy) after the original disappeared. She stated that the first deed plan was issued in 2002, but she did not know who signed it. She reported trespass in 2013, but could not recall the OB number, and stated that she later escalated the matter to CID Headquarters due to frustration with Thika Lands Office. 54. PW1 referred to DMFI-1, being a card marked DMH-1 No. 2089/42, and DFI-2, being a letter from Kennedy Maranga accepting the offer and making second payments. She testified that documents were lost in 2008, and that she later learnt investigations revealed that allotment letters had been signed by Accused 1. She denied allegations that her son’s deed plan was collected by John Ngacha, disputing DMH-3. She acknowledged the existence of a pending civil suit between John Ngacha and herself and her son, with an order stopping further development. 55. PW1 referred to MH-5(b), a bundle of rate demands dated 31st January 2013, and denied paying the rates. She acknowledged a Daily Nation advertisement dated 16th November 2016, listing John Ngacha Ng’ang’a as a defaulter for Plot No. 4953/4223, with arrears of Kshs. 1.14 million and Kshs. 791,000/=. She denied knowledge of whether officers inspected the land prior to allocation. 56. PW2 Kennedy Ng’ang’a Maranga testified that he is a farmer and businessman based in Nairobi. He stated that in 1998, an allotment was issued in his name, and that his mother, PW1, had applied on his behalf. He identified the letter of allotment dated 9th July 1998, marked MH-1, requiring payment of Kshs. 161,000/=. He stated that he first saw the letter in 1998. 57. PW2 testified that in January 2013, he and PW1 went to Thika Survey Office to subdivide the land. Beacons were placed but later removed. Upon inquiry, they were informed that Jane Wanjiru appeared in demand notes at the Municipal Council. He testified that the DCIO Thika informed them the land belonged to someone else. He later reported to DCI Headquarters, Kiambu Road, where investigations were conducted. 58. PW2 identified several documents, including MFI-2 (Deed Plan), MFI-3 (Receipt for Kshs. 161,020/ =), MFI-4 (Banker’s Cheque dated 24th January 2012), MFI-5(a), 5(b), 5(c) relating to registration and clearance certificates, MFI-7 (Point Clearance Certificate), MFI-8 (Payments and Stamp Duty), MFI-9 (Surveyor’s Fees), MFI-10 (Survey 2001), MFI-11 (Title Details), MFI-12 (Annual Rent), MFI-13 (Land Rent dated 29th January 2013), MFI-14 (Instructions for New Lease), MFI-15 (Special Conditions), MFI-16 (Allotment for Farmers Nkuli), MFI-17 (Allotment for John Ngacha Ng’ang’a), MFI-20 (Acceptance Letter dated 30th January 2012), MFI-21 (Survey dated 15th February 2002), MFI-22 (Green Card showing cancellation to Francis Mulu), and MFI-27 (Clearance Certificate dated 11th September 2012 for Plot No. 4953/4223). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 9

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59. PW2 testified that he had never sold the land, that it belonged to him, and that PW1 acted as his trustee. He confirmed the existence of ELC High Court Civil Case No. 503 of 2015, which was still pending. 60. On being cross-Examined PW2 testified that he was 17 years old in 1998, having been born on 18th October 1980, and that he did not personally sign the original application. He confirmed writing an acceptance letter in 2001, marked MFI-20, and stated that payments were made in 2011–2012, including replacement of a stale cheque. He denied preparing the stale cheque and stated that his mother collected the banker’s cheque on 30th January 2012. 61. PW2 referred to DMFI-4 (Letter dated 14th March 2013), DMFI-6 (File references 208924 and 227459), DMFI-7, DMFI-8 (Statutory Brief), DMFI-10 (Document Examiner’s Report dated 19th June 2016 by Macharia Ndege), DMFI-11 (Letter to ODPP dated 9th December 2013 recommending cancellation of Kennedy’s file), and DMFI-12 (Bundle of 18 photographs) depicting developments on the land. PW2 maintained that his documents were genuine and that he was unaware of any lawful claim by other persons. 62. Upon re-examination, PW2 reiterated that DMFI-4 indicated the existence of two files, No. 208924 and No. 227459, and that the matter required investigation. He stated that his mother processed the title and that he lodged complaints with both the Lands Office and the police between 2012 and 2013. 63. PW3 John Waiganjo stated that he is a Principal Human Resource Management Officer at the Ministry of Lands and Physical Planning. He testified that on 23rd June 2015, the Directorate of Criminal Investigations (DCI) wrote to the Ministry seeking information concerning Francis Mulu Mbulu Mamwaka, a former employee of the Ministry. The request sought particulars including the department in which he was deployed, his designation, and the specific duties assigned to him during his employment. The letter from DCI dated 23/6/2015 was marked MFI 24. 64. PW3 stated that the Ministry responded through a letter dated 9th July 2015, which he authored. According to the response, Francis Mulu Mamwaka was appointed and deployed to the Ministry on 8th June 1988 in the Department of Lands as a Land Officer Grade III, Job Group H. He rose through the ranks and was promoted to Chief Land Administration Officer, Job Group M, an appointment made on 25th May 2005. He held that position until 11th November 2007, when he resigned from service. 65. PW3 testified that Francis Mulu Mamwaka served in several stations across the country, namely Nairobi (1988–1991), Kirinyaga (1991–1994), Garissa (1994–1996), Nairobi (1996–2002), and Kitui (2002–2007). In 2007, he was transferred to Nyandarua, whereupon he resigned. His duties included handling land administration matters within his jurisdiction, subdivision of land, processing of allotment letters, processing building plans, land leases, and change of user in consultation with relevant authorities. PW3 stated that in 1998, the employee had been recalled to headquarters, though the letter did not indicate the position he held at that time. His last promotion was in 2005. 66. PW3 testified that by the time he joined the Ministry, Francis Mulu Mamwaka had already left service and was not personally known to him. He confirmed that the information he provided was obtained from the human resource records system and the employee’s personal file. He stated that the file contained no complaints regarding performance, abuse of office, unethical conduct, incompetence, or criminal intent. The record showed that Francis Mulu Mamwaka had been promoted through the ranks, which required meeting minimum qualifications under the scheme of service and recommendations from supervisors. PW3 stated that the resignation was voluntary, and although there was a later attempt to revoke it, this was rejected due to the lapse of many years. He produced the Ministry’s response letter dated 9/7/2015 as Exhibit 25. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 10

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67. PW4 Joseph Wang’ombe Kamuyu stated that he is a Land Registrar at the Ministry of Lands, Ardhi House, Nairobi. He testified that on 26th May 2015, the Office of the Chief Land Registrar received a letter from the DCI dated 25/5/2015, requesting confirmation regarding a property known as L.R. No. 4953/4223. The letter was marked to him for action. Upon checking the records, he confirmed that a title deed had been issued in the name of Kennedy Ng’ang’a Maranga, bearing Title Number IR 141554. 68. PW4 further testified that he personally registered the said title on 23rd November 2012 and confirmed this fact to the investigating officer. He certified a true copy of the title deed and handed it to the investigator, and he recorded a brief statement. The certified copy of the title deed was produced as Exhibit 26. He stated that Francis Mulu Mamwaka was not known to him. 69. During cross-examination, PW4 stated that a property has only one original deed plan, and where it is lost, a certified copy is issued. He testified that he signed the relevant documents in 2013 and that the Ministry retains photocopies while the owner retains originals. He explained that under the Registration of Titles Act (Cap 281), deed files contain photocopies of deed plans. He stated that the deed plan dated 13/3/2002 related to L.R. No. 4953/4223, and that a certified copy of the deed plan was issued on 18/11/2010, which he believed he assessed when issuing the title deed. 70. PW4 further testified that replacement of a lost deed plan requires an affidavit, a letter from the surveyor, and a police abstract, which are ordinarily kept in the correspondence file. He stated that these documents were not found in the deed file. He referred to MFI 20, a letter written by Kennedy Maranga, and letters appearing to originate from the National Land Commission, including correspondence addressed to DCI Thika, recommending cancellation of the title on grounds of misrepresentation. He referred to MFI 19 and MFI 21, relating to file numbers 227459 and 208924, and testified that the card opening file No. 208924 processed the title deed but bore the name Francis Mulu Mamwaka, with Kennedy Maranga’s name not appearing. He also referred to DMFI 13, a copy of the deed plan, and DMFI 14, a letter by Kiogora Mburugu addressed to DCIO Thika. Upon reexamination, PW4 stated that he looked at correspondence file No. 208924 and used a certified true copy of the deed plan to process the title. 71. PW5 Lijando Kihima stated that he is a Senior Legal Officer at Equity Bank, based at the head office. He testified that on 21st May 2015, the bank was served with a warrant requiring confirmation regarding banker’s cheque No. 093759 dated 29/1/2012, statements of account from which the cheque originated, whether payment was made, and any relationship between banker’s cheque No. 047110 dated 9/9/2008 and No. 093759 dated 24/1/2012. 72. PW5 testified that the bank issued an image of banker’s cheque No. 093759, which had been presented and paid. A cheque requisition form dated 24/1/2012 showed that Catherine Njeri requested and was issued with banker’s cheque No. 093759 for Kshs. 161,000. He further testified that banker’s cheque No. 047110 was issued from the account of Jane Margaret Wanjiku Ngacha, Account No. 009019031631, on 9/9/2008 for Kshs. 161,990, but was cancelled on 23/9/2011, with the funds credited back to the account. He referred to MFI 27, MFI 28 (statement of account), and MFI 29 (returned banker’s cheque image), and produced MFI 3, MFI 28, and MFI 29 as exhibits, which were admitted without objection. 73. PW6 No. 83745 CPL Irene Wambui Njuguna stated that she was formerly attached to the Land Fraud Investigation Unit at CID Headquarters. She testified that she took over investigations in this matter in May 2015 from Cpl. Wilson Njogu. She stated that John Ngacha Ng’ang’a had complained at CID Thika that persons had invaded his land, L.R. No. 4953/4223, in Thika. Due to allegations of bias at Thika, the matter was transferred to CID Headquarters. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 11

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74. PW6 testified that John Ngacha Ng’ang’a stated he had bought the land from Francis Mulu Mamwaka, supported by a sale agreement dated 13/10/2006, and that he possessed allotment letters issued in the names of Francis Mulu Mamwaka and himself. She investigated allegations that cheque No. 047110 had been stolen and confirmed through Equity Bank that it had been cancelled and refunded to Jane Margaret Wanjiku Ngacha. She sought certified copies of allotment letters for John Ngacha Ng’ang’a, Francis Mulu Mamwaka, and Kennedy Maranga, forwarded them to a document examiner, and obtained specimen signatures of Accused 1. 75. PW6 testified that from file No. 208924, relating to L.R. 4953/4223, documents showed allocation to Kennedy N. Maranga, including allotment letter MFI 1, banker’s cheque No. 093759 (MFI 4), rent clearance certificate (MFI 7), stamp duty certificate (MFI 8), registration process documents (MFI 11, 12, and 15), and file opening card (MFI 21). She also referred to MFI 30, a letter dated 8/2/2013, and a memorandum of registration IR No. 141554. From file No. 227459, she recovered banker’s cheques No. 071962 and 047110, and a file opening card. She produced numerous exhibits including MFI 18, 5a–c, 6, 1, 20, 4, 7, 8, 11, 12, 15, 21, 27, 19, cheque No. 071962 (Exhibit 31), cheque No. 047110 (Exhibit 32), file cover No. 227459 (Exhibit 33), land rates voucher dated 29/1/2013 for Kshs. 27,000 (Exhibit 34), sale agreement dated 13/10/2006 (Exhibit 35), MFI 24 (Exhibit 24), MFI 16 and 17 (Exhibits 16 and 17), MFI 36, specimen signatures MFI 37 a, b, c, Exhibit memo (Exhibit 38), ODPP letter dated 25/11/2016 (Exhibit 39), and the investigation diary (Exhibit 40). 76. PW6 further testified that Accused 1 was charged with abuse of office, and Accused 2 with conspiracy to defraud, based on inconsistencies between the 1998 allotment letter and the 2006 sale agreement, and the fact that Accused 1, as a lands officer, could not allocate land to himself. 77. PW6 No. 83745 CPL Irene Wambui Njuguna was further cross-examined by Muriuki for Accused 1 and Accused 2. She testified that she had been asked whether she had seen the investigation diary upon taking over the matter. She stated that she did not see the initial handing-over report from the original investigating officer when she took over the file, as it was not contained in the file at that time. 78. PW6 testified that there existed a handing-over report for the original file at DCI Thika dated 6th June 2013, which she stated bore signatures. According to her testimony, the report was signed by Sgt. Geoffrey Mburugu and CPL Wilson Njogu. She stated that Sgt. Geoffrey Mburugu was the initial investigating officer, and that CPL Wilson Njogu later took over investigations from him. 79. She further testified that there existed a typed investigation diary, but that it was not produced in court. She stated that the handing-over report indicated the existence of a document examiner’s report, but when the file was handed over to her, that document examiner’s report was not in the file. She further stated that CPL Wilson Njogu did not inform her that the documents in question had previously been sent to the forensic document examination laboratory for analysis. 80. PW6 stated that only part of the investigation diary was in the file when she took over, and that the complete investigation diary was missing. She identified the handing-over report dated 6th June 2013 as DMFI 19. She further stated that DMFI 18 was an exhibit memo form from DCI Thika, prepared by Sgt. Geoffrey Mburugu, relating to signatures attributed to Francis Mulu Mamwaka (Accused 2). 81. PW6 further told the court that there existed a document examiner’s report dated 22nd May 2013, prepared by Inspector Geoffrey Chania, but she reiterated that there was no document examiner’s report in the file at the time she took over the matter. She further testified that she later received an ODPP letter dated 21st January 2015, which gave directions that she conduct investigations relating to a stale banker’s cheque, obtain an expert opinion to determine the authenticity of the allotment letters, and establish whether there had been forgery. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 12

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82. PW6 testified that the DCI Thika file was not forwarded to the Office of the Director of Public Prosecutions, but remained at the DCI. She stated that pursuant to the ODPP directions, she went to Equity Bank to follow up on the stale banker’s cheque and confirmed that the money had been reversed to the account of the person who had purchased the cheque. She further testified that John Ngacha had alleged that his cheque had been stolen by Catherine Ng’ang’a. 83. During further re-examination, PW6 testified that in respect of DMFI 19, she was not the officer taking over the file, and therefore she knew nothing about the contents of that handing-over report beyond what was presented. With regard to DMFI 18, she reiterated that she never saw that exhibit memo form when she took over the file. 84. PW7 Gordon Ochieng stated that he is a Senior Assistant Director of Land Administration at the Ministry of Lands and Physical Planning. He testified that he authored a letter dated 16th June 2015, addressed to the DCI, in response to a letter dated 1/6/2015, concerning L.R. No. 4953/4223. He stated that it is permissible to allocate government land to a minor, provided the word “minor” is inserted, and trustees are indicated where necessary. He produced the letter dated 16/6/2015 as Exhibit 41. 85. During cross-examination, PW7 referred to DMFI 4, a letter dated 14/3/2013 by Kiogora Mburugu of the National Land Commission, which stated that parcel No. 4953/4223 had two files, Nos. 208924 and 227459, and recommended cancellation of the title issued to Kennedy Maranga on grounds of misrepresentation and fraud. PW7 also referred to DMFI 16a, DMFI 16b, and DMFI 17, being file opening cards and file covers showing inconsistencies in names and file references. He testified that land must be vacant and uncommitted before allocation. 86. Upon re-examination, PW7 reiterated that his response to the DCI was limited to explaining the practice and procedure regarding allocation of land to minors. 87. PW8 No. 230060 Superintendent Michira Ndege stated that he is a Forensic Document Examiner attached to DCI Headquarters, with 13 years’ experience in document examination. He testified that on 17th June 2015, No. 83745 CPL Irene Wambui Njuguna of the Land Fraud Investigations Unit presented several documents to the forensic laboratory for examination. The documents were accompanied by an exhibit memo form. 88. PW8 testified that the exhibits received and examined were marked as follows: A1, being an allotment letter issued to Francis Mulu, a questioned document; A2, being an allotment letter issued to John Ngacha, a questioned document; A3, being an allotment letter issued to Kenneth (Kennedy) Maranga; B1, a letter containing known signatures of Francis Mulu; B2, being an allotment letter bearing a known signature of Francis Mulu Mamwaka; and C1, C2 and C3, being specimen signatures of Francis Mulu Mamwaka. 89. He stated that he was required to ascertain whether the signatures indicated with red arrows on documents A1, A2 and A3 were made by the same author when compared with the known signatures indicated with blue arrows on documents B1 and B2, and also the specimen signatures C1 to C3. PW8 testified that he conducted the examination and comparison on 18th June 2015, after which he formed the opinion that the questioned signatures and the known signatures were made by the same author. 90. PW8 explained that in carrying out the examination, he subjected the signatures to image enhancement and magnification using specialized equipment to improve visibility and identification of individual characteristics. He stated that he considered several factors, including character initialization and terminal strokes, character construction and arrangement, natural pen lifts, ink distribution and writing quality, pen movement from start to end, character spacing, baseline alignment, and general https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 13

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resemblance. He testified that he prepared and signed his Document Examiner’s Report dated 18th June 2015, which he produced in court as Exhibit 42. 91. During cross-examination by Muriuki for Accused 1 and Accused 2, PW8 stated that he has vast experience in document examination and that he is the Deputy Officer in Charge of the Document Examination Department, the officer in charge being Mr. Kimani John Muinde, SSP. He testified that the department keeps receiving registers, dispatch registers, and copies of reports. He stated that exhibits are not stored digitally and that when documents pass through the laboratory and are examined, they are stamped. He testified that reports are filed physically and are not kept in a computer system. 92. PW8 was shown an exhibit memo form purportedly generated from DCI Thika, which he confirmed bore the official stamp of the document examination section. He stated that the memo form had been prepared by CI Geoffrey Chania, his junior officer and a trained document examiner. He was referred to a Document Examiner’s Report dated 22nd May 2013, which he stated pre-dated his report by about two years. According to PW8, the opinion in that earlier report was that the signatures on documents marked B and C were made by the same author, while the signature on document A was made by a different author. PW8 stated that he could not comment on a report that he did not prepare and which did not relate to the same set of documents he examined. He clarified that his examination involved A1 to A3, B1 to B2, and C1 to C3. The earlier report dated 22/5/2012 was marked DMFI 18. He further stated that when he joined the department, his supervisor was Emmanuel Karisa Kenga. 93. Upon re-examination, PW8 stated that he did not handle anything relating to DMFI 1. 94. PW9 Wilson Ndirangu Kamau, a male adult sworn and testifying in English, stated that he is a licensed Land Surveyor No. 168, practicing under the firm Geodata Lands Surveyors and Consultants, and that he has been a surveyor for 30 years. He testified that his firm carried out the survey which resulted in the release of new deed plans to the Commissioner of Lands on 13th March 2002, arising from a new client survey for L.R. Nos. 4953/4221, 4953/4222 and 4953/4223. 95. PW9 testified that he received instructions to survey the land from James Gitonga, who had been allocated one of the plots. He stated that James Gitonga presented to him a letter of allotment and an attached Part Development Plan (PDP), which he described as the authority allowing a surveyor to enter land, conduct a survey, and prepare deed plans for purposes of title registration. He stated that the PDP and letter of allotment were not in court. 96. PW9 further stated that after carrying out the survey, he prepared deed plans following approval of the survey documents by the Director of Surveys, vide a letter dated 15th February 2002, marked MFI 13. He stated that this approval indicated that the documents presented to the Director of Surveys had been accepted. 97. He further testified that his firm submitted deed plans to the Director of Surveys through a letter dated 27th February 2002, marked MFI 9. He also referred to a letter dated 13th March 2002 from the Director of Surveys, marked MFI 10, which forwarded all deed plans to the Commissioner of Lands pursuant to Indent No. 208665/4 dated 28th February 2002, for purposes of registration in the title preparation process. 98. PW9 stated that all documents were forwarded to the Director of Surveys, who then submitted them to the Commissioner of Lands through the indent system. 99. He testified that when surveying land, the letter of allotment clearly indicates the owner of the land and that the allottee is deemed to be the owner. He produced MFI 9, MFI 10 and MFI 13 as exhibits. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 14

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There was no objection, and the court admitted them as exhibits. PW9 stated that he did not know any of the accused persons. 100. During cross-examination by Muriuki for the Accused Persons, PW9 testified that the land he surveyed was in a block, and that where there are three or four adjacent plots, a single PDP is prepared. 101. He reiterated that he received instructions from James Gitonga, whom he understood to be one of the owners of the parcels. He stated that he did not know where James Gitonga worked and that he met him at his office. He testified that he is in private practice and may not know all officers at the Ministry of Survey. 102. PW9 stated that he personally took the documents to the registry at the Department of Survey, where they were received by a clerk whose identity he did not know. He stated that the survey plans prepared bore his name as a licensed surveyor, but that deed plans do not bear the surveyor’s name, and that it was only after 2005 that the Director of Surveys required surveyors’ names to be indicated. He testified that after deed plans were prepared, they were sent directly by the Director of Surveys to the Commissioner of Lands. 103. PW9 referred to the letter dated 27th February 2002, which indicated that deed plans were to be released to Francis K. Ngugi, as typed in the letter. He stated that there was a cancellation noted, indicating release to the Commissioner of Lands upon indent. He testified that he could not recall who Francis K. Ngugi was and was not aware whether he was an officer at the Department of Survey. He further stated that he did not know who prepared the indent and that the cancellation on the letter was not initiated by him. 104. Upon re-examination, PW9 stated that he could not tell who made the cancellation appearing on the letter dated 27th February 2002. Summary Of The Defence Case 105. The appellant who was the first accused in the lower court elected to give a sworn defense and called witnesses. The case against the 2nd accused abated since he died in the course of trial. 106. DW1 Emmanuel Karisa Kenga stated that he is a forensic document examiner with over 30 years’ experience. He testified that he retired from the National Police Service in 2015, having served as the Officer in Charge of the Document Examination Section and that he is currently engaged in private forensic examination of disputed documents. 107. He testified that on 25th March 2019, he received a letter of instructions from Gitonga Muriuki & Co. Advocates, forwarding documents for forensic analysis. The documents received were marked as follows: A1, being a questioned document, namely an allotment letter (Exhibit 16); B1, being specimen signatures of the Land Registrar, Francis Mamwaka; and C1 to C3, being known signatures of Francis Mamwaka. 108. DW1 testified that he examined and compared the signature on A1 with the signatures on B1 and C1 to C3, using a microscope and magnifying glass to enlarge and study the signatures. He stated that he identified individual characteristics in the handwriting and formed the opinion that the questioned signature was written by a different author. He prepared a comparison chart, attached it to his report, and prepared and signed a Document Examiner’s Report dated 26th March 2019, which he produced as DExhibit 1. 109. DW1 further testified that he had been a document examiner for over 30 years and had headed the section for more than 10 years prior to retirement, supervising eight officers. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 15

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110. He stated that IP Geoffrey Chania and SP Michira Ndege were his students. He referred to a Document Examiner’s Report dated 22nd May 2013 by IP Geoffrey Chania, and testified that the charge sheet related to Parcel No. LR 4953/4223 IR 141554. According to him, IP Chania’s opinion was that the signature on the allotment letter was made by a different author. He contrasted this with Exhibit 42, the report by SP Michira Ndege, whose opinion was that the signatures were made by the same author. DW1 stated that if examinations are conducted on the same documents, the findings ought to be the same. 111. During cross-examination by the Prosecutor, DW1 confirmed that the reports related to Francis Mamwaka, and that the findings by SP Michira Ndege differed despite being in respect of the same documents. 112. DW2, James Chege Gitonga, a male adult sworn and testifying in English, stated that he resides in Umoja Estate, Eastlands, and is a farmer. He testified that he was previously employed in the Ministry of Lands as a cartographer, working from 1967 to 2000, when he retired. He stated that he worked at Survey Department Ruaraka, later transferring to Ardhi House, and that he was familiar with land acquisition and allocation processes. 113. He testified that in 1997, as a government employee, he applied for allocation of public land, a right he stated was available to government employees. He outlined the process of allocation, including identification of land, application to the Commissioner of Lands, planning by the physical planner, issuance of a letter of allotment, and payment. He testified that he worked at SPRO – Survey Plans Records Office, which handled planning and records of government land. 114. DW2 testified that he applied for land together with Francis Ngugi, Francis Mamwaka, and identified Francis Mamwaka as the accused seated in the dock. 115. He stated that they applied for land in Thika, which was unsurveyed at the time. He testified that the land was later surveyed by Joseph Kamata Kihara, his relative, under the supervision of Wilson Ndirangu Kamau, a licensed surveyor. The survey resulted in three parcels: LR Nos. 4953/4221, 4953/4222, and 4953/4223. He testified that LR 4953/4221 was allocated to him, LR 4953/4222 to Francis Ngugi, and LR 4953/4223 to the accused. 116. DW2 produced the following documents: his original Identity Card No. 343640 (DMFI 12); a letter of allotment for Plot A, unsurveyed, Thika Municipality, signed by Francis Mulu Mamwaka (DMFI 13); a payment receipt of Kshs. 161,990 dated 24th December 2002, Receipt No. 258911 (DMFI 14); Cheque No. 00413 dated 23rd December 2002, File No. 208665 (DMFI 15); a copy of deed plan (DMFI 16); a receipt for land rates of Kshs. 11,550, Receipt No. BY348283 (DMFI 17); a Title Deed for LR 4953/4221 IR 189058 signed by C.K. Ngetich, Registrar of Titles (DMFI 18); and a Survey Plan FR 408/122 (DMFI 19). He testified that he retained the original title deed at home. 117. DW2 further testified that he experienced delays in obtaining his title deed due to loss of his file at Ardhi House, involvement of DCI officers and intervention by Commissioner Mabea, eventually receiving his title in 2017. He testified regarding his interaction with Catherine Njeri, he stated she was introduced to him by Francis Ngugi who was to assist in fast-tracking his title. He identified Catherine Njeri as being present in court. 118. During cross-examination, DW2 testified that the accused was a Lands Officer at Ardhi House, that Francis Ngugi still worked at Survey of Kenya, and that a lands officer could apply for and even sign his own allotment letter once allocation had been approved by the Commissioner of Lands. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 16

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119. DW3, Charles Muturi Ndegwa stated that he is a bishop and pastor at Neno Church, Thika, and has served there for 15 years. He testified that he lives in Landless Area, Thika, in a house he built and completed around 2012, and that he holds a share certificate for the property. 120. He testified that his drawing plans dated July 2007 were approved by the Thika Municipal Council Town Planning Committee. He described the house as a one-storey building with four bedrooms. He stated that the house sits on a 40 x 80 plot, identified as LR 4953/4223, Plot No. 15, and shown on page 51(c). He testified that no one had ever claimed ownership of the land. 121. DW3 stated that he received the share certificate from Mr. and Mrs. Ngacha as a gift, and that he used the share certificate and a copy of the deed plan to obtain approval of his building plans. He produced his drawing plans as DExhibit 10 and photographs of surrounding developments as DExhibit 11, which were admitted without objection. 122. During cross-examination, DW3 stated that he had never seen the title deed or an allotment letter for the plot and that John Ngacha had informed him they were in the process of obtaining a title deed. 123. DW4 Francis Mamwaka Mulu stated that he is a retired Land Administration Officer, having worked from 1988 to 2007 at various stations including Ardhi House, Kerugoya, Garissa, Kitui, and Nyandarua. He testified that his duties included land allocations, subdivisions, change of user, and approvals of building plans, all under the authority of the Commissioner of Lands. 124. He testified that Exhibit 16 was his letter of allotment, and Exhibit 17 was a letter of allotment issued to John Ngacha Nganga following an informal transfer (DMFI 13) of his allotment before issuance of a title deed. He testified that the land, LR 4953/4223, Thika Municipality, had been allocated on 9th July 1998, and that the informal transfer was approved by the Commissioner of Lands on 15th November 2006. 125. DW4 testified that he did not pay the sums indicated in the allotment letter, that John Ngacha was to pay Kshs. 161,990, and that Ngacha issued Cheque No. 047110 dated 9th September 2008, evidenced by DMFI 17, supported by a bank statement (DMFI 18) and a forwarding letter to the Commissioner of Lands dated 11th September 2008 (DMFI 19). 126. He went on to state that file No. 208924 was the original file opened after allocation, and that the land later had two files, 208924 and 227459, which he stated was improper. He identified an allotment letter for Kennedy N. Murunga as a forgery (Exhibit 5) and stated that a letter of allotment cannot lawfully be issued to a minor. 127. DW4 sought to produce DMFI 12 to 22 as exhibits. The court directed that several documents be certified before admission following objections by the prosecution. 128. During cross-examination by the Prosecutor, DW4, Francis Mamwaka Mulu, reiterated that at the material time he was a Land Administrator and not the Commissioner of Lands. He stated that although he was the allottee of the land in question, he did not allot the land to himself, maintaining that the allocation was done by the Commissioner of Lands. He confirmed that the letter of allotment was signed by himself explaining that he did so on the instructions and authority of the Commissioner of Lands, although he did not produce before the court any written instructions from the Commissioner authorizing him to sign that particular letter. 129. DW4 further told the court that he had been granted powers to sign allotment letters and that the Commissioner of Lands did not personally sign such letters as they were signed on his behalf by authorized officers. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 17

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130. He admitted that he did not provide the court with an acceptance letter in compliance with the conditions of the allotment, stating that acceptance is usually demonstrated through payment. He further admitted that he never personally paid for acceptance of the allotment, never paid any taxes during the transfer process, and did not produce any document to show that he made such payments. He stated that he never obtained a title deed in his own name, as he transferred the allotment to a third party. 131. DW4 stated that it was possible to transfer government land without a title deed, asserting that even a letter of allotment constitutes proof of ownership. He acknowledged that three letters of allotment had been presented in the case, and expressly stated that the letter of allotment issued in the name of Kennedy Marunga was a forgery, and that he did not issue it. 132. He testified that he received money from John Ngacha, who agreed to pay all monies due to the government and that it was part of their agreement that the transferee would settle all government dues as consideration for the transfer. He referred to DExhibit 3 pointing out the special conditions on the reverse side which provide that if payment is not made within 30 days, the allotment letter would lapse. 133. DW4 explained that it was not possible to make payment immediately upon allotment because there was a government embargo at the time, although he conceded that he had no documentary proof of the said embargo. He testified that he transferred the allotment to John Ngacha approximately eight years after allocation. He further stated that at the material time, there was no other Land Administrator in his region who could have signed the allotment letter, and that other Land Administrators were assigned to different sections and regions. 134. Upon re-examination DW4 stated that he served as a Land Administrator for 19 years. He emphasized that an allotment letter is not a title, and that the allotment issued to him had not resulted in the issuance of any title deed to date. He testified that no person had been deprived of land as a result of his allotment, and that no title deed, including that of John Ngacha, was processed on the strength of his allotment. 135. DW4 reiterated that he signed the allotment letter on behalf of the Commissioner of Lands and not in his personal capacity. He stated that the Commissioner of Lands, the Ministry, the Department, and even the Permanent Secretary had never raised any complaint against him regarding the allotment. 136. He referred to DExhibit 11 at page 128, being a letter addressed to the DCI, which mentions his name but contains no complaint describing it merely as a recommendation and stating that he did not know who the complainant was. 137. He testified that the 30-day period stipulated in the allotment letter was the time allowed to accept the offer and acknowledged that he did not comply strictly with that requirement which would ordinarily render the offer lapsed. He stated that John Ngacha never lodged any complaint against him. 138. He concluded by stating that he retired in 2007 and that 16 years had since elapsed and that he could not trace land files at the Lands Office as they were not within his control. 139. DW5, Silas Kiogora Mburugu stated that he works with the National Land Commission, having previously worked in the Ministry of Lands from 1989 to 2014, retiring as a Principal Lands Officer. He testified extensively on the process of allocation of public land. 140. He testified that DMFI 15, a PDP for Plots A, B, and C in Thika, was approved on 4th March 1998, and that DMFI 16, a deed plan dated 13th March 2002, was original and bore a seal of the Director of Surveys. He testified that DMFI 20, a letter authored by him on behalf of the Commissioner of Lands, indicated that LR 4953/4223 had two files, which suggested fraud or misrepresentation. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 18

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141. DW5 testified that file No. 208924 was opened in the name of Francis Mulu, while file No. 227459 related to an Athi River plot, and that documents relating to Thika had been improperly inserted into the Athi River file. He recommended investigation of Catherine Marunga and Kennedy Murunga for fraud. 142. He produced DMFI 20, DMFI 24, and DMFI 25 as exhibits, which were admitted without objection. During cross-examination, he acknowledged his friendship with the accused, stated that a lands officer cannot approve allocation to himself, and testified that alterations were visible on DMFI 15, which was a photocopy. Analysis And Determination 143. The appellant in this matter was initially charged with two counts one being the offence of conspiracy which collapsed with the demise of his co accused. The trial court convicted the appellant for the offence of Abuse of office contrary to Section 101 as read with 102A of the Penal Code. 144. The appellant appealed to this court challenging his conviction and sentence. 145. This being a first appeal the appellant is entitled to a fresh and exhausitive analysis of the evidence tendered before the lower court and for this court to draw its own conclusions on the evidence not forgetting that unlike the trial court this court did not have the advantage of seeing and hearing witnesses testify thus due allowance for that has to be made. See Okeno vs Rep (Criminal Appeal 26 of 2021) {2024} KEHC 2894 (KLR) The offence of abuse of office has several ingredients namely; a). the accused at the time of the commission of the offence must have held a public office b). the accused must be shown to have improperly used that office to confer upon himself or some other person a benefit c). the benefit must be disclosed. 146. The appellant in this case argues that the prosecution was not able to discharge the burden of proof thus he contends that he was wrongly convicted. 147. In Charles Kizito Wanjala Masinde v Republic (supra) 2019 eKLR the Hon Lady Justice Ong’undi (as she then was) stated: “32 For an offence to be established under section 46 ACECA it must be shown that:(i) The person accused was a state officer occupying a public office within the meaning of Article 260 at the time of commission of the offence. (ii) The person accused must have used his/her office to confer a benefit and that the nature of the benefit must be disclosed. 148. The prosecution in this matter was therefore under duty to establish the ingredients of the offence as stated above if they were to succeed in discharging the legal and evidential burden placed upon them by Sections 107 and 108 of the Evidence Act. 149. The prosecution led evidence that established that the appellant was an officer with the Ministry of Lands at the time of the commission of the alleged offence. 150. The appellant did not dispute that fact thus the first ingredient of the offence of abuse of office was not disputed and the prosecution did not require much effort in establishing it. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 19

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151. The contested issue was whether the appellant improperly used his office to confer a benefit upon himself or upon any other person. 152. I have carefully analyzed the evidence and it is clear to me that the transaction giving rise to the case was one involving land that was acquired by the appellant through allotment. The appellant did not meet the conditions of the allotment within 30 days thus in law the allotment would be deemed to have had lapsed. 153. The manner in which the allotment was acquired was in this court’s view irregular. The evidence shows that the appellant and some of his colleagues went and got themselves allocated public land. The allotment letter for the appellant was signed by himself even though he claims to have done so with the authority of the commissioner of lands. There is also evidence that he actually sold the plot later and received the proceeds thereof. 154. The appellant tried to persuade the trial court that the procedure adopted by them in acquiring the land was regular. I do not think so. It would be the height of impunity to allow public officials working with the Ministry of lands a free hand to roam around the country, identify un-surveyed land and subdivide the same amongst themselves and issue unto themselves allotment letters. 155. The mere fact that there was no complaint from the Ministry or anyone known to the appellant cannot be a ground to vitiate the conviction. 156. T he state in an abuse of office Charge is strictly speaking the complainant because all public offices are positions of trust and those that hold them do so under the delegated authority of the people under Article 1(2) of the Constitution. 157. The officers charged with the administration of land in the Country cannot simply allocate unto themselves or their associates land and claim that they had the power to do so therefore there was no wrong committed on their part. 158. The trial court found as a matter of fact that the whole transaction leading to the allotment was flawed as per the evidence of the prosecution witnesses and in particular PW8. 159. Having independently reviewed the evidence on record, I have no doubt in my mind that the appellant abused his position in the lands Ministry and by his actions conferred a benefit to PW1 who did not even bother to pay any money to government if anything to try and sanitize the process. He also acquired for himself a parcel and failed to meet the conditions of the grant. The litany of actions by the appellant amounted to abuse of office thus the learned honorable magistrate was correct in reaching the finding he did. 160. Accordingly, I find and hold that the case of abuse of office against the appellant was adequately proved and there is absolutely no basis to interfere with the decision of the learned Honorable magistrate. 161. The appeal has no merit and is hereby dismissed on both conviction and sentence. 162. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF FEBRUARY, 2026. A. M. MUTETI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 20

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In the presence of: Habiba: Court Assistant Gitonga for Appellant Mogere for Respondents https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11741/eng@2026-02-19 21

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