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MagistrateOtherNot stated in judgment (Traffic Case related: TC No 4628 of 2017, Makadara)

Republic v Mburu (Anti-Corruption Case 25 of 2017) (Anti-Corruption and Economic Crimes) [2018] KEMC 94 (KLR)

Chief Magistrate's Court at Nairobi
1 August 2018
3,421 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan traffic policeman was convicted of bribery after cash found on him was presumed corrupt because he couldn't explain where it came from.

What this practically means

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Executive summary

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The accused, a police corporal attached to the Makongeni Traffic Base, faced two counts under the Anti-Corruption and Economic Crimes Act: dealing with suspect property contrary to section 47(2)(a) and abuse of office contrary to section 46, both read with section 48(1). The prosecution alleged that on 9 November 2017 at Muthurwa he concealed Kshs 5,250 believed to be acquired through corrupt conduct and improperly conferred that benefit on himself from matatu drivers. The EACC received anonymous complaints about bribery on Jogoo Road and Muthurwa, mounted surveillance between 27 September and 9 November 2017, and filmed the accused boarding matatus without inspecting them, at times receiving what appeared to be money. He was arrested and a search recovered Kshs 5,250 in denominations of 50, 100 and 200 shillings. Six prosecution witnesses testified. The accused denied the charges, raised an alibi, claimed the money was proceeds of chicken sales, and alleged persecution by an EACC officer connected with a vehicle he had detained in Traffic Case No. 4628 of 2017 at Makadara. The court found the identification in the video clips clear, noted that officers are never deployed alone, and held that reasonable suspicion triggered a rebuttable presumption under section 111 of the Evidence Act. The chicken-sales explanation was dismissed as an afterthought and the alibi did not displace the prosecution case. Both counts were proved beyond reasonable doubt and the accused was convicted on both counts under section 215 of the CPC.

Key legal issues

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01

Dealing with suspect property under section 47(2)(a) ACECA

Holding

Recovery of Kshs 5,250 in denominations of 50, 100 and 200 soon after arrest fell within 'dealing' with suspect property

Reasoning

EACC surveillance over several weeks captured the accused boarding matatus without inspecting them, receiving something from a person in uniform, and being arrested with cash in the complained-of denominations. The court found the prosecution established reasonable suspicion that the money resulted from corrupt conduct, satisfying section 47(2)(a).

p. 5
02

Abuse of office under section 46 ACECA

Holding

Accused improperly conferred on himself a benefit of Kshs 5,250 by virtue of his office

Reasoning

The accused worked alone contrary to deployment practice, entered matatus without performing any traffic duty, was seen receiving something and exchanging it between hands, and was arrested with cash matching the reported bribes. The court found he used his office to improperly benefit himself.

p. 5
03

Rebuttal of presumption and evidential burden

Holding

Accused failed to rebut the presumption that the money was from corrupt conduct

Reasoning

Once the prosecution established reasonable suspicion, the evidential burden shifted to the accused under section 111 of the Evidence Act. His chicken-sales account, raised late and contradicted by evidence that he never left the scene, did not discharge that burden.

p. 5

Legal principles established

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  • Reasonable suspicion grounded in evidence raises a rebuttable presumption that money found with a public officer was obtained through corrupt conduct, shifting the evidential burden to the accused under section 111 of the Evidence Act
  • A defence raised for the first time after close of the prosecution case may be dismissed as an afterthought

Court orders

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  1. 1.Accused convicted under section 215 of the CPC for dealing with suspect property contrary to section 47(2)(a) as read with section 48(1) of ACECA
  2. 2.Accused convicted under section 215 of the CPC for abuse of office contrary to section 46 as read with section 48(1) of ACECA
Jurisdiction invoked
Anti-Corruption and Economic Crimes Act No. 3 of 2003, sections 46, 47(2)(a) and 48(1); Criminal Procedure Code Cap 75

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 Mburu (Anti-Corruption Case 25 of 2017)  (Anti-Corruption and Economic Crimes) [2018] KEMC 94 (KLR)", Case Analysis (2018). Not stated in judgment (Traffic Case related: TC No 4628 of 2017, Makadara). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/94/eng@2018-08-01

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