Ngamau & another v Republic (Criminal Appeal E115 & E116 of 2023 (Consolidated)) [2025] KECA 1753 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed convictions against a businessman and company for receiving about KShs 180 million in public funds for services never rendered.
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 1st appellant was denied his constitutional right to fair hearing
- 2.Whether errors of law in the judgment were sufficient to render the verdict of guilty unjust
- 3.Whether there were gross errors of fact which led to untenable findings and were sufficient to negate all conclusions formed
Key legal issues
#Whether the charges under section 45(1) ACECA violated the right to a fair trial under Article 50(2)(b) and (c)
No violation. The appellants had legal representation, the law breached and particulars of the acts constituting the offence were clearly stated, and they were accorded the opportunity to cross-examine, present evidence and receive a reasoned judgment.
The court held that assessment of fair-trial rights is based on due process accorded during the trial, not agreement with the outcome. Section 45(1)(a) ACECA criminalises fraudulently or otherwise unlawfully acquiring public property; the particulars specified the amounts received and the fact that no services were rendered. The complaint of defective charges was belated and without merit.
Whether withdrawal of charges against deceased accused persons and the absence of fresh charges affected counts 10 and 11
Withdrawal had no legal significance for the remaining counts. Under section 87(a) CPC the prosecution may withdraw charges at any stage before judgment, and under section 202 only the charges against the deceased abate.
The court found no count in the charge sheet for an offence known as 'services not rendered'; the claim that new charges should have been drawn was without legal basis. The offences were stand-alone and could be proved separately with evidence tendered in respect of each accused. The appellants were accorded full procedural safeguards during the trial.
Whether the learned Judge misapplied the PPDA to sustain a conviction when the appellants were not charged under the PPDA
The ground fails. It was imperative for the courts below to examine the genuineness of the contracts under which public monies were paid, and a party who knowingly benefits from an unlawful procurement process is culpable.
The offences charged were unlawful acquisition of public property, and the monies were acquired under the guise of contracts. There was no paper trail of the procurement process that birthed the contracts. Section 27 of the PPDA 2005 imposed responsibilities on all actors including contractors, suppliers and consultants, and Regulation 6 of the Code of Ethics for Suppliers prohibits fraudulent, collusive or corrupt practices. It takes two to tango.
Whether improper reliance was placed on evidence concerning deceased accused persons
No. The courts below evaluated the evidence in totality and no culpability of the deceased accused persons was transposed to the 1st appellant.
The conviction rested on the document examiner's report confirming the 1st appellant's signature on the falsified contracts, evidence of bank officials and Fund officials disowning the contracts, and the 1st appellant's pursuit of the funds at Chase Bank. The circumstantial evidence satisfied the Abanga test. Reliance on statements of deceased persons would be lawful where corroboration exists.
The effect of the State's concession of appeal on counts 10 and 11
The concession is not binding on the Court; the court independently satisfied itself that the conviction was sound.
Although State Counsel conceded the appeal on counts 10 and 11 on the basis that no witness saw the 1st appellant make the documents, the court held that the evidence was circumstantial and subjected it to the Abanga test. The circumstances established cogently pointed to the 1st appellant's guilt, so the conviction on those counts stood notwithstanding the concession.
Legal principles established
#- On a second appeal, the Court of Appeal's mandate is confined to questions of law and it will not interfere with concurrent findings of fact of the two lower courts unless based on no evidence, perverse, or legally unsound.
- The death of a co-accused causes only the charges against that accused to abate; the remaining accused may still be tried on their individual culpability, provided the charges are otherwise valid and supported by evidence.
- A person who knowingly benefits from an unlawful procurement process is equally culpable under the law; suppliers and consultants must comply with procurement legislation.
- Circumstantial evidence must satisfy the Abanga test: the circumstances must be cogently and firmly established, of a definite tendency unerringly pointing towards guilt, and cumulatively form a chain so complete that there is no escape from the conclusion of guilt.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.It is so ordered
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
- Anti-Corruption and Economic Crimes Appeal No. E018 of 2021
- Jurisdiction invoked
- Second appeal under section 361(1)(a) of the Criminal Procedure Code, confined to questions of law
- Consolidated with
- Criminal Appeal No. E116 of 2024
Relief refused
#Acquittal on counts 2 and 3 (unlawful acquisition of public property) and on counts 10 and 11 (making false documents)
Charges were clear, fair-trial rights were observed, procurement-related liability was properly established, and the circumstantial evidence against the 1st appellant satisfied the Abanga test; the State's concession on counts 10 and 11 was not binding
Redaction and removal of all evidence relating to the deceased accused persons
The courts below did not transpose the culpability of the deceased accused to the 1st appellant; his conviction rested on direct and corroborated evidence of his own actions
Costs
No costs order was made; the judgment closes only with the dismissal of the appeal and the words 'It is so ordered.'
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.
This being a second appeal, our mandate under section 361(1)(a) of the Criminal Procedure Code is confined to questions of law.
Once the co-accused died, only the charges against her abate under section 202 of the Criminal Procedure Code.
a person who knowingly benefits from an unlawful procurement process is equally culpable under the law.
We are cognizant that the courts would have been perfectly in order to place reliance on statements of deceased persons if that were the case (but it is not), and it only becomes unlawful where no corroboration exists.
The appeal is found to lack merit and is hereby dismissed in its entirety. It is so ordered.
Issues in the judgment
#Internal inconsistency in the date of the High Court judgment: paragraph 9 states the judgment was delivered on February 16, 2023, while paragraph 12 refers to February 16, 2024.
Internal inconsistency in the number of the 1st appellant's appeal: paragraph 10 states Criminal Appeal No. E116 of 2024, while paragraph 26 refers to Criminal Appeal No. E116 of 2023.
Contradiction regarding the concession on counts 10 and 11: counsel for the respondent conceded the appeal on those counts, yet the court dismissed the appeal in its entirety without setting aside those convictions.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngamau & another v Republic (Criminal Appeal E115 & E116 of 2023 (Consolidated)) [2025] KECA 1753 (KLR)", Case Analysis (2025). Criminal Appeal Nos E115 of 2023 and E116 of 2024 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1753/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.