A police officer has lost his appeal against his conviction on three counts of receiving a bribe after allegedly demanding Sh3,000 to facilitate the release of an impounded motorcycle.
Justine Arati, a police officer attached to Kalamba Police Post, was convicted in December 2024 on three counts of receiving a bribe contrary to Section 6(1) of the Bribery Act.
He was sentenced to pay a fine of Sh20,000 on each count.
The charges related to incidents in June 2020 in which Arati was alleged to have demanded money from Nelson Mbingu to secure the release of his motorcycle.
The motorcycle had allegedly been impounded during curfew enforcement amid the Covid-19 pandemic.
“The motorcycle had been intercepted on May 31, 2020 wherein the appellant demanded a bribe of Sh1,000 else the motorcycle will be confiscated,” the court heard.
“He did not yield to the demand and the motorcycle was impounded and taken to Kalamba police post.”
The complainant subsequently reported the matter to the Ethics and Anti-Corruption Commission (EACC).
Following the report, PW10, an EACC investigator, took up the matter and advised the complainant on how to use a digital recorder.
The complainant then recorded conversations in which Arati was allegedly heard demanding Sh3,000 as a bribe.
A translator engaged by the EACC to translate the audio recordings from Kiswahili and Kikamba into English produced both the original transcripts and translated versions as exhibits, as well as a certificate of translation.
Arati was arrested in a sting operation after he allegedly accepted the money.
During the trial, however, the complainant was declared a hostile witness after swearing an affidavit withdrawing his complaint and denying making the initial report.
He also denied being issued with any recording device or participating in the recordings. When he appeared in court, he declined to testify.
In his defence, Arati argued that the trial court erred in convicting him without credible, corroborated or consistent testimony from the complainant, who had withdrawn his complaint.
“The appellant further submitted that nothing was produced in court to show that the alleged motorcycle was ever lawfully or unlawfully impounded.
“It is submitted that there was no Occurrence Book entry, inventory of seizure or any other records or evidence to show that the motorcycle was impounded and detained at the police post.”
He further contended that the electronic evidence, comprising audio recordings and transcripts, was not properly authenticated. He also argued that the motorcycle had already been released before the alleged bribery, thereby negating the element of inducement.
Arati also argued that he had been entrapped.
"The learned magistrate erred in law by failing to properly consider the defence of entrapment, despite the accused being lured into accepting money from unknown individuals under circumstances orchestrated by EACC officers."
The respondent and the prosecution submitted that all the charges had been proved to the required legal standard using forthright, corroborated and credible evidence.
“Further the respondent submitted that the recantation and unwillingness of the complainant to take part in the proceedings does not negate the fact that he made a complaint which sparked the investigation,” the court heard.
“It is argued that the complainant took part in the investigations by recording a statement which was corroborated by the other evidence adduced by the prosecution witnesses.”
On the challenge to the electronic evidence, the respondent submitted that it met the legal threshold for admissibility under Section 106B(4) of the Evidence Act, noting that "certificates of the same were produced without objection from the defence."
Regarding the defence of entrapment, the respondent argued that "no pressure was put on the appellant to receive the bribe from the complainant. He freely requested for it."
The High Court in Makueni ruled that under Sections 6(2) and 6(3) of the Bribery Act, the offence of bribery is complete as soon as a public officer requests, agrees to receive or receives a bribe.
On the electronic evidence, the judge found that the recordings and transcripts were properly admitted despite the complainant disowning the recordings.
“It is clear that a report was made to the EACC that the appellant was asking for a bribe to release a motorcycle which had been impounded.
“Investigations were conducted by the EACC officers leading to the arrest of the appellant who was allegedly requesting for the bribe,” Justice Francis Kyambia said.
The judge emphasised that under the Bribery Act, the offence is complete the moment a person in an official capacity asks for or obtains an illegal benefit, "even if no money changes hands or the intended favour is never performed".
Addressing the complainant’s hostile testimony, the judge said that despite the recantation, the complainant had admitted under cross-examination that his motorcycle was impounded and that he was given money by EACC officers to take to the appellant.
"The totality of the evidence adduced before the trial court which I have evaluated clearly shows that after the complainant's motorcycle was impounded, the appellant asked for bribe to release the same.
“This is what triggered the operation by the EACC officers and the arrest of the appellant. There was no entrapment as argued by the appellant," Justice Kyambia ruled.
He dismissed the appeal, upholding both the conviction and sentence.
