Omare v Republic (Criminal Appeal 107 of 2022) [2023] KECA 708 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a Kshs 600,000 fine for soliciting a bribe, ruling the prosecution was validly brought by the ODPP.
What this practically means
#Executive summary
#Key legal issues
#Whether prosecution under ACECA requires the DPP's consent under section 35, and whether its absence vitiated the conviction
Consent of the DPP is required where the Commission prosecutes, but in this case the prosecution was conducted by the ODPP itself, as evidenced by the ODPP stamp on the charge sheet, so the complaint failed; the issue was also raised for the first time on second appeal.
The Court surveyed its prior decisions (Kangangi, Waruiru, Mbogo Nganga) establishing that compliance with section 35 is obligatory and the statutory procedure cannot be circumvented. However, on the facts, the charge sheet bore the ODPP stamp and was signed by the ODPP, showing the prosecution was instituted by the DPP, not the Commission. The Court also noted the complaint was never raised before the trial court or in the grounds of appeal before the High Court.
Whether the conviction was unsafe for want of a voice recognition certificate and alleged evidentiary inconsistencies
The conviction was not dependent on voice identification; the concurrent findings were grounded in the testimony of PW1, PW3, PW4 and PW6 and the recovery of the treated money, and the defence version was disbelieved.
The Court reiterated that on a second appeal it defers to concurrent findings of fact unless based on no evidence or a perversion of the evidence. It was uncontested that the parties met at Treasury Square and the treated money was handed over and recovered from the co-accused. The appellant's claim that the money was a reimbursement of surety money was found incredible by the High Court. Voice recognition evidence was therefore not essential to the conviction.
Whether the sentence should be disturbed
The fine of Kshs 600,000.00 was lawful under section 48 of ACECA; the additional mandatory fine had already been set aside by the High Court and no basis existed to interfere further.
Section 48 of ACECA prescribes a fine not exceeding one million shillings, imprisonment not exceeding ten years, or both, with an additional mandatory fine only where the offender received a quantifiable benefit or another person suffered a quantifiable loss. Since no benefit was received, the High Court properly set aside the additional Kshs 40,000 fine; the principal fine was within the statutory range.
Legal principles established
#- Under section 35 of ACECA, the Anti-Corruption Commission requires the consent of the DPP to prosecute under the Act; the statutory procedure cannot be circumvented.
- A second appeal is confined to points of law and the Court will not interfere with concurrent findings of fact unless based on no evidence.
- A court of second appeal must pay homage to concurrent findings of fact made by the two courts below unless they are based on no evidence, a perversion of the evidence, or no reasonable tribunal would reach them.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The conviction and sentence of Kshs 600,000.00 as upheld by the High Court (which had set aside the additional fine of Kshs 40,000.00) stand
- On appeal from
- High Court of Kenya at Mombasa
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal limited to matters of law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omare v Republic (Criminal Appeal 107 of 2022) [2023] KECA 708 (KLR)", Case Analysis (2023). Criminal Appeal (not separately numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/708/eng@2023-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.