Ng’ethe & another v Republic (Criminal Appeal 57 of 2021) [2025] KECA 1549 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that public officials can't hide behind 'good faith' when they knowingly mislead their employer in procurement.
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 first appellate court properly discharged its mandate to re-evaluate the evidence
- 2.Whether there were material contradictions and discrepancies in the prosecution's case, including a defective/varied charge
- 3.Whether the appellant was denied the right to a fair hearing, including consideration of his defence submissions
- 4.Whether the appellant's actions were protected by section 178(1) of the Public Procurement and Asset Disposal Act (good faith)
- 5.Whether the learned Judge shifted the burden of proof to the appellant
- 6.Whether the sentence could be interfered with on second appeal
Key legal issues
#Duty of the first appellate court
The learned Judge properly re-evaluated the evidence and reached his own independent conclusion; no error in the discharge of his mandate.
The Court reviewed the High Court judgment and found the Judge had recalled his duty as a first appellate court, rehashed and analysed the evidence, and reached an independent conclusion, consistent with the principles in Erick Onyango Ondeng' and David Njuguna Wairimu (citing Okeno v R). Accordingly, the ground that the Judge failed to re-evaluate the evidence failed.
Alleged defective charge and contradictions
The variance in dates was not material; the charge sufficiently informed the appellant of the offence; alleged contradictions were not pinpointed and did not vitiate the conviction.
Applying the substantive rather than formalistic test for fatally defective charges, the Court found the particulars informed the appellant of his alleged role as Secretary of the Evaluation Committee in submitting misleading minutes. Counsel failed to identify with precision other alleged contradictions or how they prejudiced the appellant, so the ground failed.
Right to fair hearing and consideration of defence submissions
The trial court considered the defence submissions even though not reproduced verbatim; the appellant was not denied a fair hearing.
The record showed that after the case was placed before a new magistrate in compliance with section 200 of the Criminal Procedure Code, counsel confirmed the appellant would not call evidence, and the trial court referred to the defence submissions. Submissions are a rehash of legal principles, not evidence, and the trial court and Judge both considered them.
Section 178(1) Public Procurement and Asset Disposal Act good-faith immunity
The immunity is not absolute; the appellant did not raise good faith below and, in any event, acted with malicious intention, so the defence fails.
The Court adopted the objective reasonableness test from Harlow v Fitzgerald as adopted by the Supreme Court in Bellevue Development, holding that good faith must be established through evidence and is a question of fact for the trial and first appellate courts. The appellant knowingly presented minutes showing members attended a meeting they did not, and knew there was no valid valuation, so he could not have acted in good faith.
Alleged shifting of the burden of proof
The learned Judge merely summarised the proceedings and properly applied section 111 of the Evidence Act; no burden-shifting occurred.
The passage complained of was a summary at the start of the High Court judgment, before its independent analysis. Under section 111 of the Evidence Act, an accused may bear a burden, on a balance of probabilities, to explain facts peculiarly within his own knowledge; this does not shift the prosecution's burden of proving guilt beyond reasonable doubt.
Sentence on second appeal
Severity of sentence is a matter of fact outside section 361 jurisdiction; the Court would not interfere absent enhancement by the High Court or want of power in the trial court.
Under section 361(1)(b) of the Criminal Procedure Code, sentence appeals are entertained only where the sentence was enhanced by the High Court or the trial court lacked power to impose it. Sentencing is discretionary, and an appellate court must not interfere merely because it would have imposed a different sentence.
Legal principles established
#- On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law; severity of sentence is a matter of fact and outside that mandate.
- A charge sheet is fatally defective only if the defect is substantive and prejudices the accused in understanding and answering the charge.
- The good faith defence under section 178(1) of the Public Procurement and Asset Disposal Act is not absolute; it requires proof of honest belief in lawfulness and objective reasonableness, and ceases to apply where the accused knew or should have known the action violated his oath of office.
- Discrepancies in prosecution evidence warrant acquittal only if they create a genuine doubt as to the accused's guilt; otherwise they may be overlooked.
- While an accused generally bears no legal burden of proving innocence, section 111 of the Evidence Act may place an evidential burden, discharged on a balance of probabilities, regarding facts peculiarly within his knowledge.
Court orders
#- 1.The 1st appellant's (Mary Ngechi Ngethe's) appeal marked as withdrawn pursuant to rule 70 of the Court of Appeal Rules
- 2.The 2nd appellant's appeal dismissed in its entirety
- 3.Judgment of the High Court affirmed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code (second appeal confined to matters of law)
Relief refused
#Quashing of the conviction for knowingly giving a misleading document to a principal
The offence was proved to the required standard; the charge was not fatally defective; the appellant acted with malicious intent, not good faith
Reduction of the three-year sentence
Severity of sentence is a matter of fact outside the second appellate court's mandate under section 361 of the Criminal Procedure Code
Constitutional challenge to the fairness of the trial
Raised for the first time on second appeal, having not been taken before the first appellate court
Immunity under section 178 of the Public Procurement and Asset Disposal Act
Good faith must be established as a matter of fact; the defence was not raised below and the courts found malicious intent
Costs
No costs order is recorded 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.
For the foregoing reasons, we find the entire appeal lacking in merit. We dismiss the appeal in its entirety and affirm the judgment of the High Court.
This being a second appeal, our jurisdiction flows from section 361(1) of the Criminal Procedure Code and is focused on matters of law, and not facts, which have presumably been settled by the two courts below.
There is no gainsaying that the immunity granted to a public officer under section 178(1) of the Public Procurement and Asset Disposal Act is not absolute but is only in respect of actions done or omitted in good faith.
As an agent, he knowingly gave false information to his principal, the City Council of Nairobi.
Any false statement in the minutes was therefore directly attributable to him.
Additionally, the alleged defectiveness of the charge was not raised by the appellant before the High Court, and the issue does not therefore fall for our consideration.
Issues in the judgment
#The case number of the appeal before the Court of Appeal is not stated in the judgment; the proceedings below are identified only as Anti-Corruption Court Case No. 20 of 2020 and the High Court judgment of Onyiengo, J.
Inconsistent spellings of the 1st appellant's name within the judgment (Mary Ngechi Ngethe / Mary Ngenchi Ng'ethe / Mary Ngethe).
Inconsistent land reference numbers in the judgment (L.R. No. 14759 Mavoko vs L.R. 14959).
Chronological inconsistency in paragraph 56: the Court states that by the time the appellant was preparing minutes on 14th October 2008, the site visit of 29th October 2008 'had not been made', which, as phrased, is self-evident and may reflect a drafting slip.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ng’ethe & another v Republic (Criminal Appeal 57 of 2021) [2025] KECA 1549 (KLR)", Case Analysis (2025). Criminal Appeal (to be read with Anti-Corruption Court Case No. 20 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1549/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.