John Simiyu Khaemba & another v Republic [2020] KECA 470 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that public officers can be convicted of abuse of office for breaching procurement rules, even where no public money was actually lost.
What this practically means
#Executive summary
#Key legal issues
#Scope of second appeal
The Court's jurisdiction in a second appeal is limited to issues of law; findings of fact by the two courts below are conclusive absent perversity or absence of evidence.
The Court adopted the statement in M'Riungu v. Republic that an appellate court confined to questions of law must accept findings of fact of lower courts and resist treating findings of fact as holdings of law, interfering only where no reasonable tribunal could have reached the conclusion. The appellants were in substance inviting a re-evaluation of evidence, which is not the function of a second appellate court.
Abuse of office and procurement irregularities
Conscious breach of procurement procedures and regulations, aimed at conferring a benefit, constitutes improper conferment of a benefit under section 46 of the Anti-Corruption and Economic Crimes Act.
Section 46 contains both the mens rea (improper use of public office) and the actus reus (conferment of a benefit) and is not overly broad. The two courts below did not treat breach of regulations per se as criminal, but found on the evidence that in the circumstances the breaches amounted to improper conferment of a benefit on Kachur Holdings Ltd, which was otherwise not entitled to it.
Compliance with section 200(3) of the Criminal Procedure Code
There was no non-compliance: the effect of section 200(3) was explained and the appellants, through advocates, twice elected to continue the trial before the succeeding magistrate.
The trial had run two years; the entire prosecution and substantially all defence evidence had been heard, so a trial de novo was not in the interests of justice. The Court applied the principles in Ndegwa, Abdi Adan Mohammed and James Gichuki Njoroge that section 200 be invoked sparingly, considering convenience, progress of trial, witness availability and prejudice.
Duplicity of charges
The conspiracy and abuse of office charges were distinct offences charged in distinct counts; the charge was not duplex.
The rule against duplex charges prohibits charging two or more offences in a single charge, ensuring the accused knows with clarity the offence alleged so as to prepare a defence and focus the trial. Here count 1 charged conspiracy under section 47A(3) while count 8 charged abuse of office under section 46, each with distinct particulars, so there was no duplicity.
Accomplice evidence and prosecutorial discretion
Conviction based on evidence of colleagues used as witnesses was lawful: there was independent corroborative evidence, and the DPP's choice of whom to charge is insulated by Article 157(10).
Under section 141 of the Evidence Act an accomplice is a competent witness and conviction is not illegal merely because it rests on uncorroborated accomplice evidence, though corroboration is a firm rule of practice. The Court held that directing the DPP on whom to charge or use as a witness would be unjustified interference with his constitutional mandate, absent apparent abuse.
Legal principles established
#- In a second appeal, the Court of Appeal's jurisdiction is confined to matters of law and it will not interfere with concurrent findings of fact unless they are based on no evidence, are perverse, or no reasonable tribunal could have reached them.
- Section 46 of the Anti-Corruption and Economic Crimes Act is not overly broad; improper use of public office includes conscious violation of prescribed procedures and regulations with the aim of conferring a benefit.
- Section 200(3) of the Criminal Procedure Code is to be invoked sparingly, and an accused represented by counsel who elects to proceed before a succeeding magistrate cannot later claim non-compliance.
- Courts will not interfere with the DPP's prosecutorial decisions on whom to charge or use as a witness where no abuse is apparent.
- The rule against duplex charges prohibits charging two or more offences in a single charge; distinct offences charged in distinct counts are not duplicitous.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The judgment of the High Court allowing the appeal in part (quashing convictions for conspiracy to commit an economic crime and wilful failure to comply with tendering laws) and upholding the convictions and sentences for abuse of office is left undisturbed
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.A. No. 20 of 2018
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Criminal Procedure Code, limited to matters of law only
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Simiyu Khaemba & another v Republic [2020] KECA 470 (KLR)", Case Analysis (2020). Criminal Appeal No. 100 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/470/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.