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Court of AppealDismissedCriminal Appeal (as filed under the Court of Appeal Rules, Civil Part) against the ruling in High Court Criminal Revision No. 30 of 2019· [2019] KECA 93 (KLR)

Babayao v Republic (Civil Appeal 416 of 2019) [2019] KECA 93 (KLR)

Court of Appeal of Kenya
20 December 2019
DMD.K. MusingaSKS. Gatembu KairuAMA.K. Murgor
5,804 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that bail conditions barring an accused governor from his office are lawful and do not amount to removal from office.

What this practically means

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Executive summary

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This Court of Appeal judgment dismisses an appeal by Ferdinand Ndung'u Waititu Babayao, then Governor of Kiambu County, against a High Court ruling (Ngenye-Macharia, J.) affirming bail terms imposed by the Anti-Corruption Court in Anti-Corruption Case No. 22 of 2019. The trial court had released the appellant on cash bail of Kshs.15,000,000 or bond of Kshs.30,000,000 with one surety of a like amount, and barred him from accessing his office pending trial on charges of conflict of interest and dealing with suspect property under ACECA. On jurisdiction, the Court declined to strike out the appeal notwithstanding that the notice of appeal was filed under the civil appeals rules (rule 75) rather than the criminal appeals rules (rule 59), holding that appeals dealing with constitutional issues may in substance be civil, and that rejection on form would offend Article 159(2)(d). On the merits, the Court held that attaching a bail condition barring the appellant from his office did not amount to removal from or suspension from office under Articles 181 and 182 of the Constitution or section 62(6) of ACECA; the appellant remained Governor and entitled to full pay, and the Court declined to rule on the constitutionality of section 62(6), which was not before it. The condition was justified by the nature of the charges, the appellant's influence over county staff who were prosecution witnesses, and documented incidents of document disappearance where officers retained office access. The bail sums were held appropriate, bail-setting being a trial court discretion interferable with only where plainly wrong. The appeal was dismissed in its entirety with costs to the appellant.

Key legal issues

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01

Jurisdiction of the Court of Appeal over an appeal filed under the civil appeals rules against a ruling in a criminal revision with constitutional content

Holding

The Court declined to strike out the appeal, holding that appeals dealing with constitutional issues may in substance be civil in nature, and that rejection on form rather than substance would offend Article 159(2)(d).

Reasoning

The notice of appeal was filed under rule 75 of the Court of Appeal Rules (Part IV, civil appeals) rather than rule 59 (criminal appeals). The Court noted it did not encourage the practice but adopted the Supreme Court's holding in Deynes Muriithi that constitutional appeals may be civil in substance, and held that striking out on a matter of form would be summary rejection contrary to Article 159(2)(d).

p. 11
02

Whether the bail condition barring the Governor from his office amounted to removal or suspension from office

Holding

It did not. The appellant remained Governor, remained entitled to full pay, and neither the trial court nor the High Court purported to remove or suspend him; accordingly section 62(6) of ACECA had no application and its constitutionality was not in issue.

Reasoning

Article 49(1)(h) permits release on bail on reasonable conditions. The condition was justified by the nature of the charges, the position of influence of the appellant, prosecution witnesses being county staff answerable to him, and documented incidents of disappearance of documents where officers retained office access. The Court declined to opine on the constitutionality of section 62(6) of ACECA as that issue was not before it.

p. 12
03

Whether the cash bail of Kshs.15,000,000 or bond of Kshs.30,000,000 with a like surety was harsh and excessive

Holding

The sums were appropriate. Bail-setting is a discretionary exercise by the trial court; the High Court and this Court could interfere only if the decision was plainly wrong, which was not shown.

Reasoning

The Court endorsed the High Court's reliance on the test in Re J (A Child) that appellate interference is warranted only where the trial decision is so plainly wrong that excessive weight was given to a particular factor. The Court agreed with the learned judge and found no basis for faulting her.

p. 13

Legal principles established

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  • A bail condition barring a sitting Governor from accessing his office pending trial on corruption-related charges does not amount to removal from, or suspension from, that office under Articles 181 and 182 of the Constitution or section 62(6) of ACECA.
  • A court may bar an accused State or public officer facing corruption charges relating to their office from accessing that office as a condition of bail, where witnesses are answerable to the accused and there is risk of interference with evidence.
  • Appellate courts should decline to strike out an appeal merely because it was instituted under the wrong procedural form, in line with the overriding objective of Article 159(2)(d).
  • Setting bail or bond amounts is an exercise of trial-court discretion which an appellate court may interfere with only where the decision is plainly wrong.

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Appellant to bear the costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 49(1)(h)
  • Constitution of Kenya, 2010Article 50(2)(a)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 165(6) and (7)
  • Constitution of Kenya, 2010Articles 181 and 182(1)
  • Constitution of Kenya, 2010Article 180(2)
  • Constitution of Kenya, 2010Articles 1 and 10
  • Anti-Corruption and Economic Crimes Act, No. 3 of 2003section 42(3) as read with section 48
  • Anti-Corruption and Economic Crimes Act, No. 3 of 2003section 47(1) as read with sections 47(2)A and 48
  • Anti-Corruption and Economic Crimes Act, No. 3 of 2003section 62(1)
  • Anti-Corruption and Economic Crimes Act, No. 3 of 2003section 62(6)
  • Criminal Procedure Codesections 123 and 123A
  • Criminal Procedure Codesections 362 and 364(5)
  • County Governments Actsections 30 and 31
  • Court of Appeal Rulesrule 5(2)(a) and 5(2)(b)
  • Court of Appeal Rulesrules 59 and 75
  • Judiciary Bail and Bond Policy Guidelines

Cases cited (9)

  • Thomas Patrick Gilbert Cholmondeley v Republic
    [2008] eKLR
  • Deynes Muriithi & 4 Others v Law Society of Kenya & Another
    [2016] eKLR
  • Peter Ochara Anam & 3 Others v Constituencies Development Fund Board & 4 Others, Constitutional Petition No. 3 of 2010
    [2011] eKLR
  • Joseph Mbalu Mutava v Attorney General & Another
    [2014] eKLR
  • Moses Lenolkulal v DPP, Criminal Revision No. 25 of 2019
  • Muhammed Abdalla Swazuri & 16 Others v Republic
    [2018] eKLR
  • Major General David Tinyefuza v Attorney General
    [2002] UCCA No. 1 of 1997
  • Republic v Zacharia Okoth Obado
    [2018] eKLR
  • Re J (A Child) (Child Returned Abroad: Convention Rights)
    [2006] UKHL 4
On appeal from
High Court of Kenya, Anti-Corruption and Economic Crimes Division, Nairobi
Criminal Revision No. 30 of 2019
Jurisdiction invoked
Article 164 of the Constitution; appeal from High Court supervisory (revisional) jurisdiction under sections 362 and 364 of the Criminal Procedure Code and Article 165(6) and (7) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Babayao v Republic (Civil Appeal 416 of 2019) [2019] KECA 93 (KLR)", Case Analysis (2019). Criminal Appeal (as filed under the Court of Appeal Rules, Civil Part) against the ruling in High Court Criminal Revision No. 30 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/93/eng@2019-12-20

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