CRIMINAL APPEAL NO 212 OF 2006 - Abdulahi Jarso Dima vs Republic
Summary: The accused person was charged in court with soliciting and receiving a bribe as an inducement to release the complainant's son from custody, who had been arrested and placed in custody following an incident at his school where he was suspected to have stolen books from the school bookstore. The complainant while following up on her son's case encountered the accused person who allegedly demanded for 5,000/= to release her son. Feeling aggrieved, she reported the matter to KACC where officials facilitated recordings to verify the complaint and prepared treated money to be used in an operation to nab the accused person. The trial court acquitted the accused on count 1 and convicted the accused on count 2. It is this conviction that gave rise to this appeal on grounds inter alia that the court did not evaluate the evidence as required by law and as a result,reached an erroneous conclusion, that the magistrate admitted the tape recording into evidence without warning himself of the dangers thereof, especially considering the contents and voices of the tape were not independently verified, that evidentiary burden had been shifted to him at trial and that he had been sentenced harshly and excessively without being given an opportunity to mitigate. The prosecution did not oppose the appeal. Counsel for the state submitted that he had perused the proceedings and the evidence adduced before the trial court and concluded that the conviction was unsafe. In reviewing the evidence before it, the high court noted that the recording relied upon by prosecution placed several people in the accused person's office when the complainant went to see the appellant. It was also unclear when the complainant met the appellant before that particular meeting that was recorded. It was also clear to the court that the complainant met with a different Police Officer, who had asked the complainant to pay a 5000/= bribe. Inconsistencies in testimonies by prosecution witnesses was also apparent. Court concluded that the complainant had not met the accused person before the day she met him to hand over the money, and that at the time the KACC officers were mounting an operation, the appellant had not made a bribery demand, and therefore, it could not be ruled out that the KACC operation was intended to entrap the accused, and therefore, the magistrate rightly concluded in count 1 that the accussed did not solicit for a bribe. On count 2, the high court stated that the trial court made heavy weather of the fact that the accused person received money, without establishing the intention. The appellant alleged that the money was for cash bail and that he kept it because the officer manning the receipt book was not available. The prosecution did not establish that there was a cash box or a place where the said cash could be temprarily kept before the recipt was issued, and as such, it could not be established without doubt that the appellant's intentions were corrupt. The appeal was allowed, and the trial magistrate's conviction and sentencing were quashed.
First offence date: 06/Jan/2005
Start date: 30/Nov/-0001
Ruling date: 01/Jan/1970
Defendant plea:
Amount involved: KES 0.00
Type of case: Soliciting for a Benefit, Receiving a bribe
Resolution comments:
Charge
Plea
Fine amount
Judgement
Count 1 - Corruptly soliciting for a benefit contrary to Section 39(3)(a) as read with Section 48(1) of the Anti Corruption and Economic Crimes Act.
Not guilty
0.00
Appeal allowed
Count 2 - Corruptly receiving a benefit contrary to Section 39(3)(a) as read with Section 48(1) of the Anti Corruption and Economic Crimes Act
Not guilty
0.00
Appeal allowed