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Court of AppealAllowedCriminal Appeal No. E111 of 2023 (lead appeal, consolidated)

Mangiti & 21 others v Republic (Criminal Appeal E111, E162, E056, E055, E054 & E053 of 2023 & E006 of 2024 & E021 of 2022 (Consolidated)) [2025] KECA 735 (KLR)

Court of Appeal
2 May 2025
7,616 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal reinstated acquittals of 23 former officials in the NYS procurement case, confirming the prosecution bears the burden of proof throughout.

What this practically means

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Executive summary

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The Court of Appeal (Jamila Mohammed, F. Tuiyott and P. Nyamweya, JJA) consolidated seven appeals (Criminal Appeals E053, E054, E055, E056, E111, E162 of 2023, together with E021 of 2022 and E006 of 2024) against the High Court's judgment of 28th July 2022 (E. Maina J.) in ACEC Appeal No. 4 of 2020, which had allowed the DPP's appeal and directed the appellants - former officials and suppliers at the Ministry of Devolution and the National Youth Service - to enter their defences on seven counts arising from the Kshs 47,600,000 procurement of training materials by Blue Star Enterprises. Hearing a second appeal restricted to matters of law under section 361(1) of the Criminal Procedure Code, the Court upheld the High Court's finding that the composite petition of appeal was competent under section 350 of the Code, holding that no prejudice arose from challenging a single ruling affecting 23 accused persons in one petition. The Court, however, set aside the High Court's judgment in its entirety. It found that the first appellate court had failed in its duty to re-evaluate the totality of the evidence against each accused on each count, relying on selected evidence and the prosecution's submissions while ignoring exonerating testimony, including that of the EACC investigator who had not recommended charging several appellants. It further held that the High Court misapplied section 111 of the Evidence Act to shift the burden of proof at the case-to-answer stage, contrary to the Ramanlal Bhatt principle that the burden rests wholly on the prosecution and gaps must be construed in the accused's favour. The acquittals by the Milimani Chief Magistrate's Court of 9th March 2018 were reinstated. Notably, the DPP's own counsel conceded that the evidence was insufficient.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the petition of appeal filed in the High Court was incompetent
  2. 2.Whether the learned Judge of the High Court properly evaluated the evidence adduced in the trial Court in reaching the conclusion that a prima facie case had been made out by the prosecution
  3. 3.Whether the learned Judge properly applied the legal principles on the establishment of a prima facie case, including the burden and standard of proof

Key legal issues

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01

Competence of a composite petition of appeal against the acquittal of multiple accused persons

Holding

The appeal in the High Court was competent. Section 350 of the Criminal Procedure Code does not distinguish between appeals against single and multiple accused; a petition challenging the acquittal on all counts is valid, and missing exhibits are not fatal where the trial record is available to the High Court.

Reasoning

The court examined sections 350, 353 and 362 of the Criminal Procedure Code and found that the petition challenged the whole decision of the trial court on all counts; separate appeals would logically have been consolidated in any event, and no prejudice was demonstrated by the appellants. Furnishing proceedings and grounds is the High Court's duty under section 353, not the appellant's.

p. 9
02

Whether the High Court properly evaluated the evidence as the first appellate court

Holding

The High Court failed in its duty to re-evaluate the totality of the evidence against each accused on each count. It relied on selected evidence, ignored exonerating evidence, and in several counts based findings on the prosecution's submissions rather than evidence.

Reasoning

Relying on Okeno v R and K Anbazhagan, the court held the first appellate court must scrutinize the entire evidence and weigh conflicting evidence. The High Court made no reference to evidence against individual appellants on counts 1, 4, 5 and 7, disregarded testimony of PW1, PW3, PW4, PW5, PW8, PW11, PW12 and PW14 that the procurement followed the law, and PW16's testimony that he did not recommend charging several appellants.

p. 12
03

Burden of proof and shifting of burden in establishing a prima facie case

Holding

The High Court misapplied section 111 of the Evidence Act at the case-to-answer stage, effectively shifting the burden to the accused. The legal burden rests on the prosecution throughout, and a prima facie case is one on which a reasonable tribunal could convict if no explanation is offered.

Reasoning

Applying Ramanlal Bhatt v Republic and Woolmington v DPP, the court held that a prima facie case cannot rest on evidence which merely 'might possibly' sustain a conviction, nor may gaps in the prosecution case be filled by the defence. Section 111 of the Evidence Act, per the Supreme Court in Republic v Mohammed & another, applies only when the prosecution has proved the offence and a fact is within the accused's exclusive knowledge.

p. 8
04

Whether the appellants should have been put on their defence

Holding

No. There was insufficient evidence linking the appellants to the charges and there was exonerating evidence on record which the learned Judge did not evaluate.

Reasoning

The court concluded that the threshold of a prima facie case was not met on the evidence as analysed, and that the trial court had properly analysed the entire evidence against each accused on each count, so there was no justification for overturning the acquittals under section 210 of the Criminal Procedure Code.

p. 13

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and will not disturb concurrent findings of fact unless based on no evidence or plainly wrong.
  • The first appellate court must evaluate the evidence with reference to each accused person and the specific charges against them; it may not treat accused persons facing individual charges as a composite.
  • At the close of the prosecution case, the legal burden remains wholly on the prosecution; gaps in the evidence must be construed in the accused's favour, and section 111 of the Evidence Act is not applicable at the case-to-answer stage.
  • Section 111 of the Evidence Act only comes into play during the defence case in the course of the trial when the prosecution has proved the offence beyond reasonable doubt and part of the case is within the accused's knowledge; it cannot be invoked at the case-to-answer stage.
  • A petition of appeal challenging a section 210 acquittal on all counts need not make reference to each accused or each count individually; a composite appeal against multiple accused persons arising from the same ruling is competent where no prejudice is shown.

Court orders

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  1. 1.The consolidated appeals are allowed
  2. 2.The judgment of the High Court delivered on 28th July 2022 in ACEC Appeal No. 4 of 2020 is set aside in its entirety
  3. 3.The ruling by the Milimani Chief Magistrate's Court delivered on 9th March 2018 in Anti-Corruption Case No 26 of 2016 acquitting all the appellants in the consolidated appeals is reinstated

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
On appeal from
High Court
ACEC Appeal No. 4 of 2020
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal restricted to matters of law)
Consolidated with
Criminal Appeal No. E053 of 2023, Criminal Appeal No. E054 of 2023, Criminal Appeal No. E055 of 2023, Criminal Appeal No. E056 of 2023, Criminal Appeal No. E162 of 2023, Criminal Appeal No. E021 of 2022, Criminal Appeal No. E006 of 2024

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We accordingly allow the consolidated appeals herein, and hereby set aside the judgment of the High Court delivered on 28th July 2022 in ACEC Appeal No. 4 of 2020, in its entirety.
p. 13Disposition - setting aside the High Court judgment
The result is that the ruling by the Milimani Chief Magistrate’s Court delivered on 9th March 2018 in Anti- Corruption Case No 26 of 2016 acquitting all the appellants in the consolidated appeals is hereby reinstated.
p. 13Final orders - reinstatement of acquittals
It must be emphasized that at this stage the burden and standard of proof wholly rests on the prosecution
p. 13Burden of proof at case-to-answer stage
A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence
p. 12Standard for a prima facie case (Ramanlal Bhatt principle)
The evaluation of the evidence must therefore be with reference to each accused person, and it is at this point that the High Court erred in treating the appellants as a composite
p. 10Duty of first appellate court to evaluate evidence per accused

Issues in the judgment

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minor

The appellants' numbering is internally inconsistent: the 16th and 17th appellants are stated to be Betty Njoki Muriithi and Jennifier Muthoni Kinoti, but later passages refer to the 17th and 18th appellants as the Blue Star directors and to Betty Muriithi as the 16th appellant filing Criminal Appeal No. E021 of 2022.

minor

The judgment records the counsel's position on Ramanlal Bhatt as the court's own holding without clearly separating submission from finding.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mangiti & 21 others v Republic (Criminal Appeal E111, E162, E056, E055, E054 & E053 of 2023 & E006 of 2024 & E021 of 2022 (Consolidated)) [2025] KECA 735 (KLR)", Case Analysis (2025). Criminal Appeal No. E111 of 2023 (lead appeal, consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/735/eng@2025-05-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.