Republic v Mutinda & another (Anti-Corruption Case 16 of 2014) (Anti-Corruption and Economic Crimes) [2019] KEMC 3 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the charges of corrupt solicitation and receipt against the 1st Accused (Counts 2 and 3) were proved
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
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.
Whether the charge of corruptly receiving a benefit through an agent against the 2nd Accused (Count 4) was proved
Yes - he procured Odhiambo, who sent Evelyne, to collect the bribe on his behalf; Evelyne and Odhiambo acted as his agents
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.
Whether lack of a role in the pre-qualification process was a defence to Count 4
No - section 50 of ACECA expressly removes impossibility or lack of intention as a defence
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.
Whether the discrepancy in the LPO serial number in the particulars of the charge vitiated Counts 2 and 3
No - it was a mistake that did not vitiate the charge since both LPOs were exhibited in court
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.
Legal principles established
#- 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
#- 1.Conviction of the 1st Accused (Felix Nzomo Mutinda) on Counts 2 and 3 under section 215 of the Criminal Procedure Code
- 2.Conviction of the 2nd Accused (Frederick Omanya Marembo) on Count 4 under section 215 of the Criminal Procedure Code
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.