Ethics & Anti-corruption Commission v National Cereals & Produce Board & 1 other
The bottom line
#Kenya's Court of Appeal allowed the anti-corruption watchdog to join a KSh millions arbitration appeal involving a state corporation's public funds.
What this practically means
#Executive summary
#Key legal issues
#Whether the EACC, which did not participate in the arbitral or High Court proceedings, is a person directly affected by the appeal and may be joined as an interested party
Yes. The Commission's constitutionally underpinned anti-corruption mandate, and the fact that the appeal concerns public funds, gave it sufficient interest; the information it received from South Africa made it a party directly affected by the appeal.
The Commission is established under the Ethics & Anti-Corruption Commission Act, itself enacted pursuant to Article 79 of the Constitution, and is mandated to protect public property and combat corruption. One of the parties to the appeal is a state corporation funded by public money, and Article 201 requires prudent use of public funds. Interpreting the Constitution in line with Articles 10 and 259, the Court held that affording the Commission a hearing best gives effect to the constitutional values of integrity, transparency and accountability.
Whether the delay and non-participation below disqualifies the Commission from joinder under rule 77(1)
No. Rule 77(1) covers all persons directly affected, not only former parties; at the time of filing the notice of appeal the Commission would not have qualified, but the information received from South Africa changed that.
The Court relied on Onjula Enterprises Ltd v Summaria, Ahn v Openda and Ruithibo v Nyingi to hold that persons directly affected by an appeal include non-parties, and that the Court's inherent power under rule 1(3) allows an interested party who learned of the appeal otherwise than by service an opportunity to be heard. The property in issue was public property which the Commission is legally obliged to protect.
Legal principles established
#- A party who took no part in proceedings below may nonetheless be a person 'directly affected by an appeal' under rule 77(1) of the Court of Appeal Rules, and persons directly affected need not be only those who were parties to the proceedings.
- Under its inherent power, the Court may afford an interested party who became aware of an appeal otherwise than by service of notice of appeal an opportunity to be heard.
- The Ethics & Anti-Corruption Commission's anti-corruption mandate is constitutionally underpinned and suffices to give it standing to be joined in an appeal concerning public funds.
Court orders
#- 1.The applicant, the Ethics & Anti-Corruption Commission, is allowed to join Civil Appeal No. 9 of 2012
- 2.Costs of the application shall be in the appeal
- On appeal from
- High Court of Kenya
- Misc. C. App. No. 639 of 2009
- Jurisdiction invoked
- Section 3A of the Appellate Jurisdiction Act and rules 29, 31 and 42 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics & Anti-corruption Commission v National Cereals & Produce Board & 1 other", Case Analysis (2014). Civil Appeal (Application) No. 9 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/144/eng@2014-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.