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MagistratePartially AllowedNot stated in judgment (Anti-Corruption criminal case, four counts under ACECA)· [2019] KEMC 3 (KLR)

Republic v Mutinda & another (Anti-Corruption Case 16 of 2014) (Anti-Corruption and Economic Crimes) [2019] KEMC 3 (KLR)

Magistrates' Court (Anti-Corruption and Economic Crimes)
8 January 2019
8,583 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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A Nairobi anti-corruption court convicted two EACC procurement officers of taking bribes, ruling that using agents to collect money is no defence.

What this practically means

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Executive summary

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This is a first-instance anti-corruption trial judgment delivered by Senior Principal Magistrate Felix Kombo on 8 January 2019 against Felix Nzomo Mutinda (1st Accused) and Frederick Omanya Marembo (2nd Accused), both Supply Chain Management Officers in the EACC Procurement Unit. Count 1 (corrupt solicitation) had earlier been dismissed on 5 October 2018 for no case to answer. The remaining Counts alleged that the 1st Accused corruptly solicited and received Ksh 50,000/- via MPESA from supplier Judith Kashem Omuonyi as an inducement not to cancel an LPO (Counts 2 and 3), and that the 2nd Accused corruptly received Ksh 28,000/- through an agent to avoid her disqualification from EACC pre-qualification (Count 4). Twelve prosecution witnesses testified, including the complainant, the investigator, Safaricom analysts producing MPESA and call-data evidence, and audio recordings with transcripts. The 1st Accused claimed the Ksh 50,000/- was a refund for a failed laptop purchase; the court rejected this as an unsupported afterthought never put in cross-examination and inconsistent with his statement to the investigator. The 2nd Accused denied sending anyone; the court found he procured his friend Odhiambo, who sent Evelyne, to collect the bribe disguised as a parcel, and that receipt by Evelyne as his agent did not break the chain of causation. Evelyne's testimony introducing 'Dennis' was rejected as hearsay and dishonesty. The 2nd Accused's plea that he had no role in pre-qualification failed under section 50 of ACECA. The court convicted the 1st Accused on Counts 2 and 3 and the 2nd Accused on Count 4 under section 215 CPC, with a 14-day period for ruling/appeal indicated.

Key legal issues

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01

Whether the charges of corrupt solicitation and receipt against the 1st Accused (Counts 2 and 3) were proved

Holding

Yes - proved beyond all reasonable doubt; the defence of a laptop-refund was an implausible afterthought contradicted by his own earlier statement and the audio evidence

Reasoning

It was common ground the 1st Accused received Ksh 50,000/- via MPESA on 3/4/2014. His laptop-purchase/refund explanation was never put to the complainant, was unsupported by any document, and contradicted the explanation he gave the investigator (that he occasionally sought financial assistance). Call data corroborated communication with the complainant, and audio evidence corroborated her account that the payment was an inducement relating to the LPOs. The court found solicitation and receipt proved.

p. 16
02

Whether the charge of corruptly receiving a benefit through an agent against the 2nd Accused (Count 4) was proved

Holding

Yes - he procured Odhiambo, who sent Evelyne, to collect the bribe on his behalf; Evelyne and Odhiambo acted as his agents

Reasoning

Audio recordings showed the 2nd Accused actively pursuing the complainant to send money and stating 'let me send someone'. Evelyne admitted in the recorded conversation she was sent by 'Fred'. Her trial testimony introducing 'Dennis' was rejected as untruthful and the hearsay attributed to Dennis given no weight. Odhiambo's account was corroborated by the recordings, call data and EACC officers. The receipt by Evelyne did not break the chain of causation.

p. 15
03

Whether lack of a role in the pre-qualification process was a defence to Count 4

Holding

No - section 50 of ACECA expressly removes impossibility or lack of intention as a defence

Reasoning

The 2nd Accused argued he could not have influenced pre-qualification because it was done by a team. The court held that section 50 of ACECA provides that in a prosecution involving a benefit as an inducement, it is no defence that the act or omission was not within the person's power or that the person did not intend to do it. The procurement was properly a matter relating to the affairs of EACC.

p. 16
04

Whether the discrepancy in the LPO serial number in the particulars of the charge vitiated Counts 2 and 3

Holding

No - it was a mistake that did not vitiate the charge since both LPOs were exhibited in court

Reasoning

The particulars cited LPO No. 1169783 as being for supply of cameras, but the exhibited LPO with that serial was for a Macintosh workstation while the cameras LPO bore serial 1169786. The court held that as both LPOs were before the court, the reference was a mere mistake that did not prejudice the accused or vitiate the charge.

p. 10

Legal principles established

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  • An immaterial error or mistake in the particulars of a charge (such as citing the wrong LPO serial number) does not vitiate the charge where the correct document is before the court.
  • Under section 50 of ACECA it is not a defence that the act or omission induced by a bribe was not within the accused's power or that he did not intend to do it.
  • Receipt of a bribe by an intermediary (agent) does not break the chain of causation to the person on whose behalf and at whose instance the agent acted.
  • Evidence attributed to a person not called as a witness is worthless hearsay.
  • A fact alleged for the first time in an unsworn defence and never put to the prosecution witnesses in cross-examination may be treated as an afterthought.

Court orders

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  1. 1.Conviction of the 1st Accused (Felix Nzomo Mutinda) on Counts 2 and 3 under section 215 of the Criminal Procedure Code
  2. 2.Conviction of the 2nd Accused (Frederick Omanya Marembo) on Count 4 under section 215 of the Criminal Procedure Code
  3. 3.Direction that any Ruling/Appeal be filed within 14 days ('R/A 14 Days')
Jurisdiction invoked
Criminal jurisdiction under the Anti-Corruption and Economic Crimes Act and the Criminal Procedure Code (trial of charges under section 39(3)(a) as read with section 48 of ACECA)

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 Mutinda & another (Anti-Corruption Case 16 of 2014)  (Anti-Corruption and Economic Crimes) [2019] KEMC 3 (KLR)", Case Analysis (2019). Not stated in judgment (Anti-Corruption criminal case, four counts under ACECA). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2019/3/eng@2019-01-08

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