Kenya Anti-Corruption Commission v First Mercantile Securities Corporation
The bottom line
#Kenya's Court of Appeal confirmed anti-corruption investigators can request evidence from foreign governments even without a mutual legal assistance law in place.
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 Kenya Anti-Corruption Commission had statutory power under section 12(3) of the Anti-Corruption and Economic Crimes Act to request mutual legal assistance from a foreign government
- 2.Whether the absence of Kenyan mutual legal assistance legislation or reciprocity nullified the power to make the request
- 3.Whether the LMA required the Swiss authorities to act contrary to Kenyan law
- 4.Whether the High Court had jurisdiction to make an order restraining the Swiss Federal Office of Justice and Police
- 5.Whether the request for mutual legal assistance was made for an illegal or collateral purpose, namely to influence the Geneva civil proceedings
Key legal issues
#Scope of section 12(3) power to co-operate with foreign governments
Section 12(3) conferred on the Commission the power to work or act together with, and be assisted by, foreign governments, which necessarily includes the power to request assistance; the High Court erred in holding otherwise.
The court read 'co-operate' according to its ordinary meaning as working or acting together and assisting. If the Commission may be assisted by a foreign government, it must be able to ask for that assistance, whatever the request is called. Requiring reciprocity would confuse the right to request with the requested state's obligation to grant.
Effect of absence of Kenyan MLA legislation
The absence of mutual legal assistance legislation in Kenya did not invalidate the request made under section 12(3); the Gibraltar case was distinguishable because the Commission is specifically covered by its creating statute.
Kenya had no MLA statute; the Mutual Legal Assistance Bill of 2009 remained a Bill. But the Commission's power rests on the specific statutory provision, not on general legislation. The Attorney-General, lacking such a specific provision, might be caught by the Gibraltar reasoning until the Bill is passed.
Whether the LMA required Swiss authorities to breach Kenyan law
The LMA did not ask the Swiss to ignore their own law; execution was a matter for Swiss authorities under Swiss law, so the High Court's ultra vires finding was erroneous.
The request was expressly made pursuant to Swiss law on mutual legal assistance. If Swiss law permitted seizure or freezing without court orders, that was lawful; if it required court orders, the Swiss authorities were bound to obtain them. The Commission could not be required to demand compliance with Kenyan law.
Jurisdiction to restrain the Swiss Federal Office of Justice and Police
The ground complaining of the restraining order lacked merit because quashing the LMA in Kenya would leave nothing on which the Swiss investigations would be based.
The Respondent had sought to quash the LMA issued by the Appellant, a Kenyan statutory body amenable to Kenyan courts. If the LMA were quashed, the basis for the Swiss investigations would fall away; the order was directed at the Commission's act, not at the sovereign Swiss state directly.
Alleged collateral purpose in making the request
The High Court erred in finding an illegal or collateral purpose; the Commission is not a prosecuting authority, was not party to the Geneva suit, and needed evidence for any recovery proceedings.
The Commission cannot institute prosecutions; that is the Attorney-General's role. It was not a party to the Geneva litigation and could not have counterclaimed. Even for civil recovery it would need to gather evidence, and its investigations targeted high-ranking GOK officials as well as the Respondent.
Legal principles established
#- A statutory body with power to work in co-operation with foreign governments has the power to request assistance from them; reciprocity is not a precondition to making such a request.
- Absence of domestic mutual legal assistance legislation does not nullify a specific statutory power to co-operate with foreign governments.
- A request for mutual legal assistance is to be executed under the law of the requested state, not the law of the requesting state.
- The Kenya Anti-Corruption Commission is an investigative, not a prosecuting, authority; prosecution is reserved for the Attorney-General.
Court orders
#- 1.Appeal allowed
- 2.Orders made by the learned Judge set aside
- 3.Substituted therefor an order dismissing the Respondent's notice of motion dated 16th July, 2007 and lodged in the High Court on 17th July, 2007
- 4.Appellant awarded the costs of the motion in the High Court and the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. C.C. No. 695 of 2007
- Jurisdiction invoked
- First appellate jurisdiction over the High Court ruling in judicial review proceedings (Constitution and Court of Appeal jurisdiction; not expressly cited in the judgment)
Relief refused
#Respondent's judicial review challenge to the Letter of Mutual Legal Assistance (certiorari and prohibition)
The Commission had statutory power under section 12(3) to request foreign assistance; the Judge erred on the power, jurisdiction and collateral-purpose findings
Costs
Costs of the motion in the High Court and the costs of the appeal awarded to the Appellant
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.
It must logically follow that if the Appellant wishes to call upon the assistance of a foreign government, it must ask for that assistance.
we do not accept the proposition that the absence of such legislation nullifies the specific provisions of section 12 (3) of the Act under which the Appellant operates.
The LMA was made under section 12 (3) of the Kenyan Act, and if the Swiss Authorities accepted the request, it was for them to determine how to carry it out in accordance with their Law.
the Appellant is not a prosecuting authority; it cannot institute any criminal prosecution in court. That role is reserved for the Attorney-General of Kenya.
We accordingly allow the appeal, set aside the orders made by the learned Judge and substitute therefor an order dismissing the Respondent's notice of motion dated 16th July, 2007 and lodged in the High Court on 17th July, 2007.
We award to the Appellant the costs of the motion in the High Court and the costs of this appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Anti-Corruption Commission v First Mercantile Securities Corporation", Case Analysis (2010). Civil Appeal No. 194 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/500/eng@2010-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.