Misera & another v Republic (Criminal Appeal 89 of 2018) [2021] KECA 840 (KLR)
The bottom line
#Kenya's Court of Appeal upheld convictions for misusing public cemetery funds, confirming that informal agency relationships and unexplained access to public money can prove corruption offences.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in condensing the 1st appellant's grounds of appeal into five thematic issues instead of addressing them seriatim
- 2.Whether evidence established a principal and agent relationship between the 1st appellant and PW14 within the meaning of section 38 of ACECA
- 3.Whether the burden of proof was shifted onto the appellants to prove their innocence
- 4.Whether the appellants' constitutional rights to a fair trial were violated resulting in a mistrial
- 5.Whether the respective charges were proven to the required threshold
- 6.Whether the sentences imposed were inhuman, degrading and unconstitutional
Key legal issues
#Condensation of grounds of appeal
The High Court did not err in condensing the 1st appellant's numerous grounds into five thematic issues.
Section 169(1) CPC requires a judgment to contain the points for determination, the decision and the reasons, but does not fetter the court's discretion to address complaints seriatim or to group them thematically. The learned Judge considered the memorandum and supplementary grounds before condensing them, so the 1st appellant suffered no prejudice.
Principal and agent relationship under section 38 ACECA
An informal mutual agency relationship was established between the 1st appellant and PW14 to the required threshold.
The statutory and dictionary definitions of agent and principal do not require a formal or structured contract. PW14 testified that the 1st appellant requested him to receive payment on his behalf to avoid scrutiny, money was received through PW14's account and disbursed to the 1st appellant, and that evidence was undisputed.
Alleged shifting of the burden of proof
Requiring the appellants to explain matters especially within their knowledge did not shift the burden of proof onto them.
The burden of proving the ingredients of an offence lies entirely on the prosecution, subject to section 111(1) of the Evidence Act. As crystallized by the Supreme Court in Ahmad Abolfathi Mohammed, section 111(1) applies at trial where the prosecution has proved its case beyond reasonable doubt and part of the case rests on facts within the accused's knowledge. The appellants' explanations - the 2nd appellant's claim to be a licensed surveyor and the source of the funds - were matters within their own knowledge and control, justifying an adverse inference for failure to produce supporting documents.
Fair trial rights and mistrial
No violation of fair trial rights occurred; the appeals on conviction and the trial process were properly conducted.
The complaint about recall of witnesses was foreclosed by the unappealed High Court revision order. A written statement adopted on oath and subject to cross-examination is a valid defence under section 211 CPC. The 2nd appellant forfeited the right to silence by electing sworn testimony, and the presumption of innocence was preserved throughout the full trial he participated in.
Sufficiency of proof of fraudulent acquisition of public property
The prosecution proved to the required threshold that the monies received by both appellants were public property traceable to NCC funds released for a public cemetery.
Funds released by the Ministry of Local Government to NCC for purchase of land for a public cemetery were paid into an escrow account opened solely to receive and disburse those funds. Payments to the 1st appellant through PW14 and to the 2nd appellant were traced to that account. Money from a public entity released for a public purpose remains public property; any diversion to other purposes is unauthorized and unlawful, and the escrow account did not launder the funds into private money.
Sentence on second appeal
The Court had no jurisdiction to entertain complaints about the severity or constitutionality of the sentences on a second appeal.
Section 361(1)(a) CPC makes severity of sentence a matter of fact; interference as of right arises only where the sentence is unlawful or imposed without jurisdiction. The learned Judge had already given reasoned basis for interfering with the trial sentences. Challenges framed as constitutional claims about inhuman, degrading or double-jeopardy punishment cannot be raised for the first time on a second appeal under section 361.
Legal principles established
#- A court hearing a criminal appeal has discretion to condense an appellant's complaints into thematic issues and determine the appeal on that basis; section 169(1) CPC does not require seriatim treatment.
- A principal and agent relationship under section 38 of ACECA need not be founded on a formal contract; an informal mutual agency arrangement suffices.
- Where matters are especially within an accused person's knowledge, section 111(1) of the Evidence Act permits the court to require an explanation in the course of the defence at trial, without shifting the burden of proving guilt from the prosecution.
- A written statement adopted on oath and subjected to cross-examination is a valid mode of defence under section 211 of the CPC; the provision does not require defence testimony to be oral.
- An accused who elects to give sworn evidence forfeits the right to remain silent and opens himself to cross-examination.
- On a second appeal the Court will not interfere with concurrent findings of fact of the two courts below unless those findings are based on no evidence.
Court orders
#- 1.The consolidated appeals are dismissed in their entirety
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi, Anti-Corruption and Economic Crimes Division
- Nairobi HC. ACEC No. 5 of 2018 (consolidated with Criminal Appeal No. 6 of 2018)
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code - second appeal confined to points of law
Relief refused
#Setting aside of convictions for fraudulent acquisition of public property
Concurrent findings of fact by the two courts below were not shown to be based on no evidence; the prosecution case was watertight
Challenge to constitutionality and legality of the sentences on second appeal
Section 361 of the CPC confines a second appeal to points of law; complaints of excessive, inhuman or degrading sentence are addressed to the wrong forum
Complaint of denial of right to recall witnesses and self-incrimination in cross-examination
The matter was foreclosed by the unappealed High Court revision order; the record showed no infringement of Article 50(4) rights
Costs
No order as to costs was made in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the above assessment and reasoning is that we find no merit in the consolidated appeals. They are accordingly dismissed.
A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.
the burden of proving the ingredients of the offence are entirely on the prosecution and the accused cannot be called upon to prove his innocence.
where evidence tendered in Court demonstrates clearly that matters on accused alluded to in the course of the criminal trial were specifically within the knowledge of an accused person in a criminal trial, he may be called upon in appropriate circumstances to prove or disprove such set of circumstances.
The moment he elected to give sworn evidence, he forfeited that right and opened himself up for cross-examination. He cannot, therefore, be heard to complain.
It is, therefore, our finding that a Court seized of jurisdiction under the said provision has discretion to address complaints raised by an appellant before it either seriatim or alternatively condense these into thematic issues and address them as such as deemed fit.
We find nothing in those definitions to suggest that in order for a "principal" and "agent" relationship to hold there must be a formal or structured contract between the contracting parties.
Issues in the judgment
#The judgment gives two inconsistent dates for the High Court's reversal of the magistrate's recall order - 3rd July 2014 in one passage and the order of 24th October 2012 set aside in another, and describes the 2nd appellant's acquittal of co-accused ambiguously ('absolved the appellants of the offences laid in counts 1-4')
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic v Masinde (Anti-Corruption and Economic Crimes Case E036 of 2024) (Anti-Corruption and Economic Crimes) [2025] KEMC 203 (KLR)[2025] KEMC 203 (KLR)28 Aug 2025applied
- Republic v Masinde (Anti-Corruption Case E036 of 2024) (Anti-Corruption and Economic Crimes) [2025] KEMC 201 (KLR)[2025] KEMC 201 (KLR)28 Aug 2025applied
Cite this brief
#Cite this brief
Caselaw, "Misera & another v Republic (Criminal Appeal 89 of 2018) [2021] KECA 840 (KLR)", Case Analysis (2021). Criminal Appeal No. 89 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/840/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.