The Ethics and Anti Corruption Commission v Tioko Logorion & 8 others
The bottom line
#Kenya's Court of Appeal allowed the EACC to continue investigating and prosecuting Turkana County officials, ruling courts shouldn't block corruption investigations without proof of improper process.
What this practically means
#Executive summary
#Key legal issues
#Prohibition of prosecution
The order of prohibition against the respondents' prosecution was unjustified because no complaint or evidence of impropriety in the investigation or the decision to prosecute was established
Judicial review is concerned with the decision-making process, not the merits. The respondents did not allege that the investigation process adopted or the decision to prosecute was improper, unprocedural, irrational or unreasonable. Since no illegality or unprocedurality was established, there was no basis for prohibiting the intended prosecution. Prohibition lies only where a tribunal acts in excess of jurisdiction or in contravention of the law.
Quashing of the letter of 11th March 2016
The impugned letter concerned other investigations into different contracts and was addressed to the County Secretary; there was nothing irrational or unreasonable in it, so certiorari was wrongly granted
The letter was addressed to the County Secretary, not the individual respondents, sought interviews with only some respondents and with third-party contractors not involved in the Lodwar-Napeikar-Moreuse Road contract. It therefore concerned other investigations the appellant was entitled to undertake under Article 252 of the Constitution and sections 11(d) and 13(c) of the EACC Act. The allegation that the demanded documents had already been carried away was unparticularised and unproved.
Burden of proof on allegations of document confiscation
The respondents failed to prove that the documents demanded in the letter were the same documents already carried away by the appellant
Beyond asserting that documents were taken away, the respondents provided no particulars of when documents were requisitioned or whether they pertained to the same contract. No inventory or movement register was produced. Applying sections 107 and 109 of the Evidence Act, the allegation remained unfounded and could not support the blanket orders stopping all further investigations and prosecutions.
Effect of the High Court orders
The High Court orders effectively granted the respondents immunity from investigations and prosecutions, unjustifiably curtailing the statutory mandates of the EACC and the DPP
By quashing the letter, the trial court stopped further investigations into other construction contracts and prohibited prosecution for the offences already recommended, without justification. This went beyond correcting any process irregularity and amounted to curbing the constitutionally and statutorily donated mandates of the investigative and prosecutorial bodies.
Legal principles established
#- An appellate court will not interfere with a trial judge's exercise of discretion unless the judge misdirected himself or the decision is clearly wrong resulting in misjustice
- A party alleging that demanded documents were already in the investigator's possession bears the burden of proving that allegation; unproven allegations cannot ground judicial review orders
- The EACC is empowered to undertake investigations on its own initiative or on a complaint, and completing one investigation does not bar further investigations into other contracts
Court orders
#- 1.The appeal is allowed
- 2.The ruling and order of the High Court of 29th March 2017 is set aside
- 3.Costs of the appeal and of the High Court proceedings awarded to the appellant
- On appeal from
- High Court of Kenya at Lodwar
- HC. JR Misc Civil Application No. 2 of 2016
- Jurisdiction invoked
- First appeal from a judicial review ruling of the High Court, exercising appellate jurisdiction over that decision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Ethics and Anti Corruption Commission v Tioko Logorion & 8 others", Case Analysis (2021). Civil Appeal No. 69 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1045/eng@2021-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.