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Court of AppealDismissedCivil Appeal No. 332 of 2017

Mike Gideon Mbuvi Sonko v George Wainaina Njogu & 2 others [2019] KECA 595 (KLR)

Court of Appeal of Kenya
21 June 2019
4,475 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld the quashing of a bribery prosecution, ruling the EACC lacked commissioners and the complainant had improperly influenced the case.

What this practically means

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Executive summary

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The Court of Appeal (Githinji, Nambuye and Makhandia, JJ.A) heard the appeal by Mike Sonko, then Nairobi Senator, against a High Court decision by Onguto, J, which had quashed and prohibited the criminal prosecution of George Wainaina Njogu, former Chief of Staff of the Nairobi County Government, charged with offering a bribe to the appellant. The Judge had found that although the 1st respondent failed to prove violations of his constitutional rights, the appellant's involvement in the investigations went beyond that of a complainant, and that the Ethics & Anti-Corruption Commission, lacking commissioners, was not properly constituted to recommend prosecution, its veil of independence having been pierced. The Court of Appeal held that judicial review orders are discretionary and the appellant bore the onus of showing the Judge exercised discretion wrongly. Relying on Mbogo v Shah, it declined to disturb the trial judge's unchallenged findings of fact that the appellant influenced and directed the investigations and prosecution. It also upheld the finding that the DPP consented to prosecute without the full physical inquiry file, showing a predetermined mind rather than an independent decision, and distinguished Eng. Michael Sistu Kamau and Thuita Mwangi. Both the appeal and the EACC's cross-appeal were dismissed, affirming the High Court judgment, with no order as to costs. The judgment binds lower courts on non-interference with discretionary orders and on the requirement that EACC be properly constituted and the DPP act independently when prosecuting.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge exercised his discretion judicially in allowing the petition and issuing prohibitory and certiorari orders
  2. 2.Whether the appellant played a role beyond that of a complainant in the investigations and prosecution of the 1st respondent
  3. 3.Whether the Ethics & Anti-Corruption Commission, being improperly constituted for want of commissioners, could validly recommend prosecution of the 1st respondent

Key legal issues

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01

Interference with discretionary judicial review orders on appeal

Holding

The Court declined to interfere with the Judge's exercise of discretion granting prohibition and certiorari, since the appellant failed to show the discretion was exercised wrongly.

Reasoning

Judicial review orders are equitable and discretionary; the onus lay on the appellant to prove the Judge exercised his discretion wrongfully. The appellant concentrated on arguing the 1st respondent failed to prove rights violations - a point already conceded by the Judge - instead of challenging the actual reasons the Judge relied on. On Mbogo v Shah, the Court would not disturb the exercise of discretion absent a demonstration that the Judge misdirected himself or reached a plainly wrong conclusion.

p. 5
02

Role of the complainant in the investigative and prosecutorial process

Holding

The unchallenged factual findings that the appellant, though a complainant, influenced and directed the investigations and prosecution stood, and justified the High Court's intervention.

Reasoning

The Judge found the appellant played more than a complainant's role, was involved in the investigations and called the shots, and that the process moved with unusual speed. The appellant did not challenge those findings on appeal, so they remained uncontroverted. Appellate courts respect findings of fact by trial judges, and nothing was shown to warrant interference with them.

p. 5
03

Proper constitution of the EACC and independence of the decision to prosecute

Holding

The EACC was not properly constituted when it recommended prosecution, and the DPP's decision to charge without reviewing the full physical inquiry file showed the prosecution was not independently decided.

Reasoning

It was not disputed the Commission lacked commissioners when it made the recommendation. While Michael Sistu Kamau held the Commission remained existent though disabled from some core functions, the Judge distinguished it, finding the veil of independence was pierced. The DPP's reply, directing prosecution as recommended by EACC before receiving the physical inquiry file, supported the conclusion that the decision to prosecute was predetermined and not independent.

p. 6

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong, based on misdirection, or founded on wrongly considered matters
  • Findings of fact by a trial judge are to be respected and will not be disturbed absent demonstrated error
  • In the absence of commissioners, the EACC could not independently and objectively recommend prosecution, piercing its veil of independence

Court orders

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  1. 1.The appeal and the cross-appeal are dismissed
  2. 2.Each party to bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C. Constitutional Petition No. 17 of 2016
Jurisdiction invoked
First appeal / appellate review of High Court judgment under the Court of Appeal's appellate jurisdiction (no specific constitutional provision invoked in the judgment)

Relief refused

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The appellant's prayer to set aside the High Court's prohibitory and certiorari orders

The appellant failed to challenge the trial judge's findings that he influenced the investigations and prosecution

p. 5

The 3rd respondent's cross-appeal complaint that the Judge wrongly quashed proceedings despite finding no rights violations

The Judge allowed the petition on grounds beyond rights violations, including improper constitution of the EACC

p. 6

Costs

No order as to costs; the appeal and cross-appeal were dismissed with no order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot is that both the cross appeal and this appeal lack merit and are accordingly dismissed with no order as to costs.
p. 6Final orders - dismissal of appeal and cross-appeal
On the authority of Mbogo v Shah (1968) EA 93, it was settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong
p. 5Appellate non-interference with discretion
in the absence of the commissioners, it may not be safely stated that the 2nd Respondent commission independently executed its mandate in investigating and recommending the prosecution of the Petitioner.
p. 6Improper constitution of EACC
The appellant fell short of persuading this Court that he did not influence the investigations and prosecution of the 1st respondent on a balance of probabilities
p. 5Appellant's role beyond complainant

Issues in the judgment

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minor

The judgment refers inconsistently to the respondent numbering in the quoted High Court passages, e.g. referring to the appellant as the '3rd Respondent' in the excerpt quoted from the trial judgment, and alternately as '1st Respondent' and '2nd Respondent' when describing the EACC and DPP

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, "Mike Gideon Mbuvi Sonko v George Wainaina Njogu & 2 others [2019] KECA 595 (KLR)", Case Analysis (2019). Civil Appeal No. 332 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/595/eng@2019-06-21

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