Sunday, March 29, 2009



Reported By Monica Achode - Advocate
February 2009

Republic v The Kenya Anti Corruption Commission (KACC) and 2 Others [2009] ] eKLR (www.kenyalaw.org)
Court of Appeal at Nairobi
P. K. Tunoi E. M. Githinji P. N. Waki (JJA)
February 27th 2009

The Court of Appeal has allowed an order stopping criminal proceedings instituted by the Kenya Anti-Corruption Commission against a Civil Servant charged with the office of abuse of office. The Kibera Senior Principal Magistrate’s court and The Attorney General were ordered to halt the proceedings pending the hearing and determination of an appeal in which the accused is challenging an order of the High Court refusing to stop the proceedings.

The order was made in an application filed under rule 5(2) of the Court of Appeal Rules seeking an order for a stay of proceedings in a criminal prosecution against the applicant, one George Wambua, in the Senior Magistrate’s Court at Kibera, Nairobi pending the hearing and determination of the appeal from the judgment of the High Court. The High Court had dismissed a judicial review application by Mr. Wambua for orders of certiorari, seeking to remove into the court and quash the decision of the respondents purporting to charge him with the offence of abuse of office contrary to section 46 of the Anti Corruption and Economic Crimes Act. Mr. Wambua also sought an order prohibiting the Resident Magistrate’s court at Kibera from hearing the criminal case against him and from taking evidence or in any other manner conducting proceedings on the matters of that criminal case.

Prior to the proceedings, Mr. Wambua had been an employee of the Public Service Commission but had been posted to serve as City Treasurer, Nairobi in 2003. Towards the end of that year, a group of Councilors and Officers of the Council intended to travel to Italy on a fact finding tour in relation to a proposed waste management project. Apparently, Mr. Wambua authorized payment of per diem allowances to them without first seeking and obtaining the approval of the Permanente Secretary, Minister of Local Government. It was alleged that as a result of this, Mr. Wambua was sent on compulsory leave and in late 2004 he was summoned by the KACC to record a statement over the said payments.

In August 2006, Mr. Wambua was arraigned before the Chief Magistrate in Kibera on a charge of abuse of office. In the charges it was alleged that, while in his capacity as the City Treasurer, together with the Deputy Town Clerk of the Council of Nairobi, being persons employed in the Public Service respectively, jointly used their said offices to improperly confer benefit to officers and councilors of the City Council of Nairobi by irregularly authorizing payment of full per diem instead of quarter per diem to cover expenses of the aforementioned officers while traveling to Italy and Egypt on official duties. It was apparent that the charges were framed on the basis that the allowances paid contravened the Local Government Act and the applicable Government financial regulations.

Mr. Wambua filed an application for judicial review seeking for orders of prohibition and certiorari for which he had sough leave and been had been allowed to apply. However, on 7th March 2008, Justice Nyamu dismissed that application stating in part that the offence Mr. Wambua had been charged with was an offence defined by law. The judge further stated that whether the applicant was immune from criminal proceedings in the light of the provisions of Section 87 of the Local Government Act was a matter for determination by the trial Court and not the superior Court. It was his opinion that there was no public policy or interest being contravened or threatened in the prosecution of Mr. Wambua, and that there had been no evidence of oppression or malice in the undertaking of the prosecution of the applicant. Finally, he stated that threatened or actual contravention of the applicant’s guaranteed constitutional right had not been shown. It was that decision that prompted the appeal.

Mr. Wambua’s advocate, in his submission before the Appellate Court argued that the appeal was arguable, mainly, first, on the ground that the decision to charge the applicant with the offence of abuse of office under the Anti-Corruption and Economic Crimes Act violated the personal immunity guaranteed to him under the Local Government Act. He claimed that the decision to prosecute his client had been actuated by malice and that it had been oppressive and unreasonable in the circumstances. He submitted further that the learned Judge had failed to pronounce a decision on these issues and on others that were canvassed before him. The advocate further stressed that if the Appellate Court failed to intervene before the appeal was heard and determined the trial in the magistrate’s court would commence and that the applicant might be convicted in which case he would start serving a jail term and thereby be deprived of his liberty. Thus, the success of his appeal would be rendered nugatory. The respondents through their advocates, opposed the application stating that the applicant had not demonstrated that his appeal was arguable.

The Appellate Court in weighing its decision looked to the settled principles in applications brought pursuant to rule 5(2) (b) of the Rules. They stated that the Court had unfettered discretion which was to be exercised judicially. The applicant had to satisfy the Court, first, that his appeal, or intended appeal was not frivolous. Second, the Court was also to be persuaded that were it to dismiss the application for stay and later the appeal or intended appeal succeeded, the results or the success would be rendered nugatory. In order that the applicant may succeed, he further had to demonstrate both limbs and demonstrating only one limb would not avail him the order sought if he failed to demonstrate the other limb. In supporting this decision it cited the cases of Reliance Bank Ltd vs Norlake Investments Ltd. (2002) IEA 227 and Githunguri vs Jimba Credit Corporation Ltd. & Others (No.2) [1988] KLR 838.

Bearing the above in mind Justice Tunoi and Justice Waki assented to the application stating that the intended appeal was indeed arguable and further that if the order for stay was not granted and the appeal were to succeed the applicant would have undergone an expensive trial which could result in his being sent to prison and thus denying him his liberty. Justice Githinji, on the other hand, did not think that there was merit in the application and he dissented from the decisions of his fellow judges.. In his view, the nugatory test was not appropriate in the circumstances of this case where the applicant in effect sought a stay of prosecution. He noted that it would be against public policy or public interest to halt or paralyze the prosecution of a person suspected to have committed a crime unless there were good reasons for doing so.

He further observed that the Attorney General had a duty to prosecute people suspected of having committed crimes speedily in the public interest. Further the suspect had the protection of law in the event of such a prosecution as enshrined in section 77 of the Constitution to ensure that he got a fair trial.

Justice Githinji felt that the appropriate consideration was whether the applicant would suffer injustice unless an order of stay of prosecution or proceedings was granted. It was his view that were the trial to proceed the applicant would be afforded an opportunity of advancing the matters he intended to raise in the appeal. Lastly, he found that there was no certainty that if the criminal trial proceeded the applicant would be convicted. If however, he was ultimately convicted he could resort to appeal mechanism to ensure that justice was done.
In those circumstances Justice Githinji felt that it would be a blot in criminal justice system to stay the criminal proceedings in the Magistrate’s court. Ultimately, however, the final decision was that of the majority of the court comprising of Justice Tunoi and Justice Waki who were of the opinion that the application had merit and that it should be allowed.

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