Esther Theuri Waruiru & another v Republic [2011] KECA 27 (KLR)
The bottom line
#Kenya's Court of Appeal quashed bribery convictions because investigators skipped a mandatory step: reporting their findings to the Attorney-General before prosecuting.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether non-compliance with section 35 of the Anti-Corruption and Economic Crimes Act (failure to report investigation results to the Attorney-General) is fatal to a prosecution under the Act
- 2.Whether the second count as framed (receiving a bribe as an inducement not to charge) was supported by the evidence
- 3.Whether gaps in the evidence (non-testimony of the officer who treated the money and who swabbed the appellants, and an unsigned inventory) undermined the conviction
Key legal issues
#Whether failure to report the investigation to the Attorney-General under section 35 of the Anti-Corruption and Economic Crimes Act vitiated the prosecution
Compliance with section 35 is obligatory and non-compliance is fatal to the prosecution.
The Act mandated KACC to investigate but its officers had no prosecutorial powers; section 35(1) required it to report the results of investigations to the Attorney-General, who under the law then in force directed and controlled all prosecutions and whose consent was a matter of policy, not formality. As a creature of statute, KACC could not ignore the prescribed procedure; non-compliance rendered its action ultra vires and null and void. No evidence showed a report was made or what the Attorney-General recommended.
Whether the second count of receiving a bribe as an inducement not to charge was supported by the evidence
There was a fatal variance between the particulars of the charge and the evidence, since the complainant had already been charged and no one intended to charge her.
The charge particulars alleged the bribe was received as an inducement not to charge PW1 with an offence, but the evidence of PW1 and Velji showed summons had already been issued and Kush Furniture had already been charged. There was no intention to charge PW1 or Velji, hence no disclosed reason for receiving anything as a bribe, undermining the count as framed.
Whether missing links in the chain of evidence undermined the conviction
The failure to call the officer who treated the money with APQ powder and the one who swabbed the appellants, and the unsigned inventory of the money, left the chain of events incomplete.
Waihenya, who took the swabs, and Chief Inspector Kidogo, who treated the money with APQ powder, did not testify, and the inventory of the money allegedly given to the appellants was not signed by the complainant. These missing links prevented completion of the chain of events linking the appellants to the money and the reason for receiving it.
Legal principles established
#- Second appeals to the Court of Appeal from subordinate courts lie on matters of law only, and the Court will not disturb concurrent findings of fact unless they are not based on the evidence adduced at trial.
- Non-compliance with section 35 of the Anti-Corruption and Economic Crimes Act, requiring a report of investigation results to the Attorney-General, is fatal to a prosecution under the Act.
- KACC, as a creature of statute, must comply with the statutory procedure governing its investigations; failure renders its action ultra vires and null and void.
Court orders
#- 1.Appeals of both appellants allowed
- 2.Convictions for receiving a bribe contrary to section 39(3)(a) as read with section 48 of the Anti-Corruption and Economic Crimes Act, 2003 quashed
- 3.Fines imposed on the appellants set aside
- 4.Any fines already paid to be refunded to the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Cr. A. No. 590 & 591 of 2006
- Jurisdiction invoked
- Second appeal under section 361(1) of the Criminal Procedure Code, confined to issues of law
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.
We are satisfied that Mr. Monda, quite properly conceded this appeal, with the result that we allow the appellants’ respective appeals, quash their respective convictions for the offence of receiving a bribe contrary to section 39 (3) (a) as read with section 48 of the Anti-Corruption And Economic Crimes Act, 2003, and set aside the fines imposed on them.
Any fines already paid shall be refunded to them. It is so ordered.
This Court may only interfere with the decision of the first appellate court if it is satisfied that the High Court erred in principle or that it acted on no evidence and the error or omission occasioned a failure of justice.
In the case of Nicholas Muriuki Kangangi vs Attorney General Civil Appeal No. 331 of 2010 this Court held that non-compliance with section 35 above is fatal to any prosecution.
As a creature of Statute it must comply with the provisions of its creator. If it fails to do so, it is acting ultra vires and any such action is null and void.
Issues in the judgment
#The judgment states PW1 reported the matter to KACC on 11th October, 2008, but the trap and alleged offence occurred on 12th October, 2005; the year 2008 appears to be a typographical error for 2005.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Theuri Waruiru & another v Republic [2011] KECA 27 (KLR)", Case Analysis (2011). Criminal Appeal No. 48 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/27/eng@2011-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.