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Court of AppealPartially AllowedCivil Application No. NAI 31 of 2016 (UR 22 of 2016)· [2016] KECA 511 (KLR)

Alfred N. Mutua v Ethics & Anti-Corruption Commission (EACC) & 3 others [2016] KECA 511 (KLR)

Court of Appeal of Kenya
22 April 2016
EGE. M. GithinjiGKG. B. M. KariukiJOJ. O-Odek
4,350 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped Dr. Alfred Mutua's prosecution until it ruled on his case, reaffirming that State agencies cannot act to make pending court decisions meaningless.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Githinji, G.B.M. Kariuki and O-Odek, JJ.A.) on Dr. Alfred Mutua's notice of motion dated 7th April 2016 seeking conservatory orders pending the Court's ruling, scheduled for 6th May 2016, on his application dated 10th February 2016 to restrain his prosecution. The intended appeal lay from a ruling of Lenaola, J of the High Court delivered on 5th February 2016 in Petition No. 320 of 2016 declining conservatory orders against prosecution arising from an EACC inquiry into the procurement of motor vehicles. Before the reserved ruling, EACC officers on 7th April 2016 read a charge to the applicant, took his fingerprints, admitted him to bail and set an arraignment for 13th April 2016, prompting the present application. Counsel for the applicant argued that arraigning him would destroy the substratum of the pending application and render the Court's ruling nugatory, citing Nigerian authorities and Kenyan decisions including Berkeley North Market and G.P. Munya. The respondents contended the application was an abuse of process and that the Court had become functus officio on the same prayers. The Court rejected that argument, held that all State organs are bound by Article 10 national values and the rule of law, and that parties cannot act to render pending rulings futile. Allowing the application, it ordered that the applicant not be arraigned in any court on charges based on that inquiry before delivery of the reserved ruling, with each party bearing its own costs.

Key legal issues

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01

Whether conservatory orders could issue to restrain arraignment of an applicant while the Court's ruling on his application to stop his prosecution was pending

Holding

The Court granted conservatory orders restraining arraignment, holding that arraigning the applicant before the reserved ruling would destroy the substratum of the pending application and render the Court's decision futile, contrary to the rule of law.

Reasoning

The Court found that the 1st and 2nd respondents, aware of the pending ruling, had already read a charge to the applicant and admitted him to bail. It held that such action, taken while parties had submitted to the Court's equitable jurisdiction, would foist on the Court a situation of helplessness and render its ruling nugatory. Relying on Article 10 national values, the right to fair hearing under Articles 50(1) and 25(c), and its inherent jurisdiction, the Court held it was in the public interest to grant conservatory orders preserving the status quo until the reserved ruling.

p. 5
02

Whether the exercise of prosecutorial powers is subject to the Constitution's national values and principles

Holding

The Court held that the DPP's exercise of prosecutorial power under the Constitution must accord with the Constitution, including the Article 10 national values and the right to a fair trial.

Reasoning

The Court reasoned that all parties before it, being State organs, State officers or public officers, are bound by Article 10 of the Constitution, which enjoins adherence to national values and principles including the rule of law. It therefore follows that the exercise of prosecutorial discretion is not free-floating but constitutionally constrained by those values and by the right to a fair trial embedded in Article 50(1) and non-derogable under Article 25(c).

p. 6

Legal principles established

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  • Parties to court proceedings, especially State organs bound by Article 10 national values, cannot take steps that render pending court rulings futile or nugatory, as that is an affront to the rule of law.
  • The Court of Appeal has jurisdiction under rule 5(2)(b) and inherent power under rule 1(2) to make conservatory orders in public-interest cases to prevent the destruction of the substratum of a pending application or appeal.

Court orders

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  1. 1.The applicant shall not be arraigned in any court to answer criminal charges based on the procurement of motor vehicles that are the subject of the 1st respondent's inquiry No. EACC/R/INQ/51/2014 before the delivery of the ruling on the applicant's notice of motion dated 10th February 2016
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 25(c)
  • Constitution of Kenya, 2010Article 159(2)(d) & (e)
  • Anti-Corruption and Economic Crimes Act, No. 3 of 2003Section 46
  • Anti-Corruption and Economic Crimes Act, No. 3 of 2003Section 45(2)(b) as read with Section 48(1)
  • Court of Appeal Rules, 2010Rule 5(2)(b)
  • Court of Appeal Rules, 2010Rule 1(2)

Cases cited (6)

  • Olusi & Another versus Abanobi & Others
    Suit No. CA/B/309/2008
  • United Cement Company of Nigeria versus Dangote Industries Ltd & Minister of Solid Mineral Development
    CA/A/165/2005
  • Econet Wireless Limited versus Econet Wireless Nigeria Ltd and Another
    FHC/KD/CS/39/2008
  • Berkeley North Market & 2 Others versus Attorney General and 3 Others
    Civil Application No. Nai 4 of 2005
  • Gatirau Peter Munya versus Githinji and The Independent Electoral and Boundaries Commission (IEBC) and Another
    Supreme Court Application No. 5 of 2014
  • Hassan Nyanje Charo v Khalib versus Mwashetani & 3 Others
    Supreme Court Civil Application No. 14 of 2014
On appeal from
High Court of Kenya, Nairobi
Petition No. 320 of 2016
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2010 read with the Court's inherent power under rule 1(2)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Alfred N. Mutua v Ethics & Anti-Corruption Commission (EACC) & 3 others [2016] KECA 511 (KLR)", Case Analysis (2016). Civil Application No. NAI 31 of 2016 (UR 22 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/511/eng@2016-04-22

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