Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCriminal Appeal (as per judgment; Anti-Corruption Case No. 3 of 2019 below)· [2019] KECA 37 (KLR)

Moses Kasaine Lenolkulal v Republic

Court of Appeal of Kenya
20 December 2019
6,006 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that restricting a governor's access to his county offices as a bail condition is lawful and does not remove him from office.

What this practically means

#

Executive summary

#
The appellant, the Governor of Samburu County, was charged in Anti-Corruption Case No. 3 of 2019 under four counts of the Anti-Corruption and Economic Crimes Act. The trial court's bail terms barred him from accessing the Samburu County Government offices without prior written authorisation from the CEO of the EACC. He sought revision in the High Court, arguing that as a constitutional office holder removable only under Article 181 and section 33 of the County Government Act, the order amounted to removal from office. Mumbi Ngugi, J. declined to revise, observing that section 62(6) of ACECA was inconsistent with Chapter Six on leadership and integrity but making no formal declaration of unconstitutionality. On appeal, the Court of Appeal framed five issues. It held that the High Court never declared section 62(6) unconstitutional, since no such substantive question was placed before it. It held that section 62(6) concerns removal from office while the impugned order was a bail condition under Article 49(1)(h); limited access did not equate to removal. The bail terms were reasonable, having regard to the nature of the corruption charges and the risk of witness interference and evidence tampering, and the courts below properly applied Article 10 national values and Chapter Six principles. The judge also sufficiently considered the impact on county governance through the deputy governor's deputising role. The appeal was dismissed with costs to the respondent.

Key legal issues

#
01

Whether the High Court declared section 62(6) of ACECA unconstitutional

Holding

No; the judge merely remarked that the provision stands against the leadership and integrity provisions and stopped there; no declaration of unconstitutionality was made.

Reasoning

The Court analysed the impugned passage and found it could not be construed as a declaration of unconstitutionality. No petition or substantive issue of interpretation under Article 165(3)(d)(i) was placed before the High Court, so no such determination was made. A finding of unconstitutionality is not a matter to be taken lightly and requires a definitive process before a court of competent jurisdiction.

p. 12
02

Whether the bail terms barring the governor from accessing county offices amounted to removal from office contrary to Article 181 and section 62(6) of ACECA

Holding

No; section 62(6) concerns removal from office while Article 49(1)(h) concerns bail; the provisions address disparate circumstances, and limited access does not equate to removal.

Reasoning

The Court held that section 62(6), which exempts constitutional office holders from automatic suspension under section 62(1), addresses removal from office, whereas the impugned order was a bail condition under Article 49(1)(h). The governor was not ordered to vacate office; he may access it on conditions imposed by the court. The complaint that the bail terms effected removal was therefore unfounded.

p. 13
03

Whether the bail terms were reasonable and lawful under Article 49(1)(h)

Holding

Yes; the trial court appreciated the nature of the charges and the possibility of witness interference and evidence tampering, and no other reasons were advanced to show the terms were unconstitutional, unreasonable or unattainable.

Reasoning

Guided by established bail criteria from Republic v Pascal Ochieng Lawrence and the Nigerian Supreme Court in Dukubo-Asari, the Court found the trial court properly considered the seriousness of the corruption charges and the risk of interference with witnesses and evidence. Both lower courts also properly took account of Article 10 national values and Chapter Six principles. The bail terms were thus constitutional and lawful.

p. 14
04

Whether the judge introduced new issues (public interest and constitutional imperatives) into the ruling

Holding

No; the public interest factor and constitutional imperatives were applicable criteria, not newly introduced issues.

Reasoning

The Court held that both courts below were bound by Articles 10(1)(b) and 259(1) of the Constitution to apply national values and Chapter Six leadership and integrity principles when deciding on bail terms. Accordingly, the judge's reliance on public interest and constitutional imperatives was not the introduction of new arguments but the application of mandatory constitutional considerations.

p. 15
05

Whether the judge failed to assess the impact of the orders on the County Government of Samburu

Holding

No; the judge sufficiently addressed the impact by pointing to the deputy governor's deputising role under section 32(2) of the County Governments Act.

Reasoning

The High Court had considered the implications of directing that the applicant not access his office, noting that the deputy governor deputises for the governor under section 32(2) of the County Governments Act, so no vacuum would arise. The Court agreed that the judge sufficiently addressed the issue with the relevant constitutionally crafted remedy, and the counties continue to function.

Legal principles established

#
  • Bail conditions limiting a constitutional office holder's access to their office pending trial do not amount to removal from office, and are lawful if reasonable and aimed at preventing witness interference and evidence tampering.
  • An appellate court will not interfere with the exercise of a trial court's discretion absent misdirection resulting in an erroneous decision or misjustice.
  • Courts are duty bound to take into account national values, principles of governance and Chapter Six leadership and integrity principles when applying constitutional provisions.
  • A finding of unconstitutionality of legislation cannot be made casually; it requires a substantive issue placed before the High Court or a court of competent jurisdiction.

Court orders

#
  1. 1.The appeal is dismissed with costs to the respondent
  2. 2.It is so ordered
On appeal from
High Court of Kenya
Not stated (revision in Anti-Corruption Case No. 3 of 2019)
Jurisdiction invoked
First appeal to the Court of Appeal against the High Court's refusal to revise bail terms in a criminal matter under the Criminal Procedure Code (section 362 revision jurisdiction discussed); no constitutional reference made in judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Moses Kasaine Lenolkulal v Republic", Case Analysis (2019). Criminal Appeal (as per judgment; Anti-Corruption Case No. 3 of 2019 below). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/37/eng@2019-12-20

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