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Court of AppealPartially AllowedCivil Application 43 of 2006· [2006] KECA 341 (KLR)

Murungaru v Kenya Anti-Corruption Commission & another

Court of Appeal
24 March 2006
ROR.S.C. OmoloPhilip Kiptoo TunoiP.K. TunoiEOE.O. O'Kubasu
3,828 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal paused an anti-corruption case against Murungaru, ruling that due process and constitutional rights outweigh public pressure to prosecute quickly.

What this practically means

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Executive summary

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The Applicant, Dr Christopher Murungaru, received a notice dated 9 January 2006 from the Director of the Kenya Anti-Corruption Commission requiring him, under section 26 of the Anti-Corruption and Economic Crimes Act, to furnish a written statement of all his property within seven days on pain of a fine or imprisonment. He declined, alleging discrimination contrary to section 82 of the Constitution and that sections 26, 27 and 28 of the Act violated the presumption of innocence and fair-trial guarantees. He filed an Originating Summons in the High Court and a chamber summons seeking a stay of investigatory and prosecutorial proceedings. Nyamu J refused a stay, holding the application should have been made under Rule 11 rather than Rule 10(b) of the Chunga Rules, and that a stay would cause greater hardship to law enforcement agencies. The Applicant applied to the Court of Appeal under Rule 5(2)(b) for a stay and/or injunction pending an intended appeal. Applying the established twin tests of an arguable appeal and nugatory effect, the Court held the appeal was plainly arguable, since substantial questions arose on whether fair-trial protections extend to investigations. It held that matters with penal consequences must be treated differently from civil cases: conviction could mean a Kshs.300,000 fine or three years' imprisonment, which no costs order could remedy. Rejecting the public-interest objection, the Court held the Constitution embodies the supreme public interest and that Kenya has chosen due process over efficiency. The Court stayed the notice and the criminal case founded on it, while preserving the Commission's power to investigate independently and the High Court's power to determine constitutionality. Costs were made costs in the appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court had no doubt the intended appeal was arguable; the High Court had itself accepted the Originating Summons raised non-frivolous constitutional points.

Reasoning

Nyamu J had accepted the Originating Summons raised constitutional points for argument. Substantial questions arose, including whether fair-trial protections under section 77 apply to investigations, given Parliament removed police power to record confessions and the Judges' Rules apply to investigators.

p. 6
02

Whether the appeal would be rendered nugatory without a stay

Holding

Yes, because the Applicant had been charged under section 26(2) and faced a fine of Kshs.300,000 or three years' imprisonment; penal consequences distinguish such cases from purely civil matters.

Reasoning

In purely civil cases a stay of proceedings is hardly granted because costs can cure an abortive hearing. But penal consequences cannot be compensated: imprisonment for even a week would render a successful appeal nugatory. The Applicant risked conviction under section 26(2) if the trial proceeded.

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Public interest in anti-corruption enforcement versus constitutional rights

Holding

The public interest in prosecuting corruption does not override constitutional protections; the Constitution embodies the supreme public interest and due process must be followed.

Reasoning

While the public has a legitimate interest in seeing crime prosecuted, the Constitution reflects the supreme public interest and must be upheld even to the annoyance of the public. Kenya has chosen democracy and the rule of law, which implies due process, over dictatorial efficiency.

p. 7
04

Scope of the stay granted

Holding

The notice of 9 January 2006 and the criminal case founded on it were stayed, but the Commission may continue independent investigations and the High Court may determine the constitutional question.

Reasoning

The stay targets only the section 26 notice and the criminal case instituted pursuant to it. The Commission retains full power to investigate independently and recommend charges based on evidence obtained without the Applicant's participation, and the constitutional reference may proceed.

p. 7
05

Invocation of section 67 of the Constitution and the Chief Justice's role

Holding

Section 67 was unavailable to the Applicant as no subordinate court proceedings existed; the Chief Justice's role is to designate judges, not to give directions at a parties' mention.

Reasoning

Section 67 applies where a constitutional question arises in subordinate court proceedings; none existed. The practice of CJ directions is not constitutionally supported; the CJ merely designates an uneven number of not less than three judges, and parties cannot participate in that selection.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must show an arguable appeal and that the appeal would be rendered nugatory if the stay is not granted.
  • The Commission can only issue a section 26 notice where it is in possession of material giving rise to reasonable suspicion.
  • Matters involving penal consequences must be treated differently from purely civil cases when considering stay of proceedings.
  • The Constitution is a reflection of the supreme public interest and its provisions must be upheld even against public sentiment.

Court orders

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  1. 1.Stay of the implementation and enforcement of the notice dated 9th January 2006 issued by the Director of the Commission to the Applicant
  2. 2.Stay of the hearing of Criminal Case No. ACC 11 of 2006 in the Magistrate's court pending hearing and determination of the appeal or the Applicant's Originating Summons in the High Court, whichever is earlier
  3. 3.Clarification that the stay does not prevent the High Court from hearing the constitutional challenge or the Commission from independently investigating the Applicant
  4. 4.Costs of the motion to be in the appeal already filed

Authorities

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Legislation

  • Anti-Corruption and Economic Crimes Actsection 26
  • Anti-Corruption and Economic Crimes Actsections 6, 7 (Part III)
  • Anti-Corruption and Economic Crimes Actsections 27, 28
  • Constitution of Kenyasections 3, 67, 70(a) and (c), 74, 76, 77, 82, 84(1) and (2)
  • Constitution of Kenya (Protection of Fundamental Rights and Freedom of the Individual) Practice & Procedure Rules, 2001Rules 10(b), 11
  • The Criminal Law (Amendment) Act, 2003
  • Rules of the Court (Court of Appeal Rules)Rule 5(2)(b)

Cases cited (1)

  • Silverstein V. Chesoni
    [2002] KLR 867

    That in purely civil cases the Court hardly grants a stay of proceedings since costs can cure an abortive hearing

On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Civil Appl. No. 54 of 2006 (O.S)
Jurisdiction invoked
Rule 5(2)(b) of the Rules of the Court (application for stay/injunction pending intended appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Murungaru v Kenya Anti-Corruption Commission & another", Case Analysis (2006). Civil Application 43 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/341/eng@2006-03-24

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