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Republic v Kiriago (Anti-Corruption Case 15 of 2016) (Anti-Corruption and Economic Crimes) [2018] KEMC 91 (KLR)

Chief Magistrate's Court (Criminal Division)
18 May 2018
6,904 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi City County officer was convicted of soliciting and taking bribes after EACC trap money and recorded conversations proved the corruption beyond reasonable doubt.

What this practically means

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Executive summary

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The accused, Robert Kiriago, an administrative officer with the Nairobi City County Government deployed as deputy in charge of the Anti-Dumping Unit in the Environment Department, faced four counts under the Anti-Corruption and Economic Crimes Act: three of corruptly soliciting a benefit and one of corruptly receiving a benefit, contrary to Section 39(3)(a) as read with Section 48(1) of the Act. After the close of the prosecution case, a ruling of 22nd January 2018 acquitted him on the second and third counts under Section 210 of the Criminal Procedure Code, and he was placed on his defence on counts one and four. Eleven prosecution witnesses testified and twenty-eight exhibits were produced, including recorded conversations, transcripts, photocopied trap money, treated currency of Kshs.90,000 and government analyst reports showing APQ traces on the accused's hand swabs. The court framed two issues: whether the accused corruptly solicited Kshs.140,000 and whether he corruptly received Kshs.90,000 from the complainant, Clifford Mwimi Kimanzi. Relying on the transcript of the recorded meeting at Helena Café on 10th October 2016, the court found the accused solicited Kshs.20,000 to allow excavation to continue without harassment and Kshs.120,000 to facilitate withdrawal of City Court Case No. 12132/2016. The court further found the accused received Kshs.90,000 at his office at City Hall Annex and placed it in his desk drawer, corroborated by the EACC recovery operation, serial number matching and APQ evidence. The accused's unsworn defence, that the desk was communal and the money not meant for him, was rejected as a mere denial, PW5 having confirmed the desk was the accused's. The prosecution's case was held proved beyond reasonable doubt and the accused was convicted on counts one and four. Judgment was delivered on 18th May 2018 by J.O. Magori, SPM.

Key legal issues

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01

Whether the accused corruptly solicited Kshs.140,000 as charged in count one

Holding

The court found that the recorded conversation at Helena Café on 10th October 2016 established that the accused solicited Kshs.140,000 - Kshs.20,000 to allow excavation to continue without harassment and Kshs.120,000 to facilitate withdrawal of the city court case.

Reasoning

The court relied on the transcript of the recorded conversation (exhibit 8) in which the accused discussed the amounts, told the complainant to find Kshs.120,000 for the court people and Kshs.20,000 to supervise completion of the excavation. The court held the accused's responses showed familiarity with the demand and that solicitation was proved. It noted soliciting is not defined in ACECA and adopted dictionary definitions and State v. Wallace.

p. 11
02

Whether the accused corruptly received Kshs.90,000 as charged in count four

Holding

The court found the accused received the treated trap money of Kshs.90,000, placing it in his desk drawer upon instruction to the complainant.

Reasoning

PW1 testified he handed the treated money to the accused who placed it in a drawer, aligned the notes and closed it. EACC officers recovered the money from the drawer and the serial numbers tallied with the photocopy and inventory. The government analyst found APQ traces on the accused's hand swabs, the diary and envelopes, confirming contact with the treated money. The court rejected the defence that the desk was communal, PW5 having confirmed the desk belonged to the accused.

p. 12
03

Whether the accused was an agent within ACECA

Holding

The accused, a Nairobi City County Government employee as deputy in charge of the Anti-Dumping Unit in the Environment Department, was an agent of the County Government, which was the principal.

Reasoning

Section 38(1) of ACECA defines an agent as a person who in any capacity and whether in the public or private sector is employed by or acts for or on behalf of another. The employment of the accused by Nairobi City County Government was confirmed by PW5, his supervisor, PW7 from Human Resource, and by the accused himself in his defence, and was evidenced by the appointment and promotion letters produced.

p. 9
04

Whether the defence raised a reasonable doubt

Holding

The court found the defence to be a mere denial and rejected it.

Reasoning

The accused claimed the money was not recovered from him and that the desk was communal. The court found as a fact that the desk belonged to the accused, based on PW5's testimony that he had gone to the accused's desk when the EACC officers entered and that the money was recovered from its drawer. The accused gave an unsworn statement and called no witnesses, and his version did not displace the prosecution evidence proved beyond reasonable doubt.

p. 12

Legal principles established

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  • The essential ingredients of the offence of soliciting and receiving a bribe are that the accused must be acting in any capacity in the public or private sector, and must have obtained or attempted to obtain a gratification other than legal remuneration as a motive or reward for doing or forbearing to do an official act.
  • To constitute the crime of solicitation of a bribe, it is not necessary that the act be actually consummated or that the defendant profit by it; it is sufficient if a bribe was actually solicited.

Court orders

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  1. 1.The accused is found guilty as charged in counts one and four and is convicted accordingly for the offence of corruptly soliciting for a benefit contrary to Section 39(3)(a) as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act No. 3 of 2003 and for the offence of corruptly receiving a benefit contrary to Section 39(3)(a) as read with Section 48(1) of the Act.
Jurisdiction invoked
Anti-Corruption and Economic Crimes Act No. 3 of 2003, Sections 39(3)(a) as read with Section 48(1); Criminal Procedure Code Section 210

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, "Republic v Kiriago (Anti-Corruption Case 15 of 2016)  (Anti-Corruption and Economic Crimes) [2018] KEMC 91 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/91/eng@2018-05-18

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