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MagistrateDismissedNotice of Motion dated 30th October 2018 (Milimani Chief Magistrate's Court, Anti-Corruption)· [2019] KEMC 5 (KLR)

Republic v Kamau & 2 others (Anti-Corruption Case 7 of 2018) [2019] KEMC 5 (KLR)

Chief Magistrate's Court, Anti-Corruption Division
10 May 2019
2,190 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to merge two anti-corruption cases, ruling that charges can only be consolidated when the accused, the law, and the evidence are the same.

What this practically means

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Executive summary

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The Director of Public Prosecutions moved the Anti-Corruption Chief Magistrate's Court at Milimani under Article 157 of the Constitution and sections 135 and 136 of the Criminal Procedure Code seeking consolidation of Milimani ACC Case No. 7 of 2018 and ACC Case No. 44 of 2018, both arising from the redesigning of the Kamukuywa-Kaptama-Kapsokwony-Sirisia road. The prosecution argued that the offences arose from the same transaction, shared witnesses and documentary evidence, and that consolidation would save judicial time and prejudice no one since neither trial had commenced. Respondents opposed, arguing the accused differed between the cases, the charges were brought under different statutory provisions and particulars, joinder under section 135 was impermissible for divergent offences, and consolidation would embarrass the court and prejudice fair trial rights. The court identified a single issue: whether the application met the threshold for consolidation. It held that consolidation requires the same parties, the same applicable law and the same evidence. The accused in ACC 7/2018 were not named in ACC 44/2018; ACECA and the Penal Code create distinct individual offences; the dates differed; and crucially, the High Court had quashed count 1 of ACC 7/2018 in Petition No. 22 of 2018, leaving nothing to consolidate. Section 6 of the Evidence Act on same-transaction facts could not be stretched to cover offences merely committed during the pendency of one road project. The Notice of Motion was dismissed in its entirety.

Key legal issues

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01

Whether the two anti-corruption cases arise from the same facts and transaction so as to warrant consolidation

Holding

The application failed; the accused differ between the cases, the charges are brought under different statutory provisions with different particulars, and count 1 of ACC 7/2018 had been quashed, leaving nothing to consolidate

Reasoning

The court held that the threshold for consolidation requires the same parties, same applicable law and same evidence. The accused in ACC 7/2018 were not named in ACC 44/2018; the charges invoked different sections of ACECA and the Penal Code; the dates differed; and the High Court had quashed count 1 of ACC 7/2018. Section 6 of the Evidence Act on facts forming part of the same transaction was inapplicable because a road project cannot be treated as a single transaction encompassing all offences.

p. 4
02

The effect of the High Court's quashing of count 1 in ACC 7/2018 on the consolidation application

Holding

With count 1 quashed, there was nothing left to consolidate between the two cases

Reasoning

The court noted the High Court in Petition No. 22 of 2018 had issued certiorari quashing count 1 of ACC 7/2018 only. That count was the charge against the 8th respondent under ACECA which most closely aligned with ACC 44/2018. Once quashed, the remaining counts in ACC 7/2018 involved different accused under different statutory provisions, so no common matter remained for consolidation.

p. 4
03

Scope of section 135 of the Criminal Procedure Code on joinder of accused persons

Holding

Section 135 requires that persons to be jointly charged be the same or of the same group, of the same character and proximate in time and space; the offences here did not meet that standard

Reasoning

Counsel for the respondents argued that joinder under section 135 requires the same persons, offences of the same character, and proximity in time and space, and that the accused must have acted in concert. The court found the dates and places differed and the offences were not founded on the same facts, so the section did not permit joinder of the divergent offences.

p. 3

Legal principles established

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  • Consolidation requires that the parties must be the same, the law applicable must be the same, and the evidence must be the same
  • Consolidation will not follow where different sections of the law are violated even where the penal section may be the same
  • Offences committed during the pendency of a road project do not automatically form part of the same transaction under section 6 of the Evidence Act

Court orders

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  1. 1.The prosecution's Notice of Motion dated 30th October 2018 is dismissed in its entirety, the court finding it failed to meet the threshold for consolidation
Jurisdiction invoked
Article 157 of the Constitution of Kenya, 2010 and sections 135 and 136 of the 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 Kamau & 2 others (Anti-Corruption Case 7 of 2018) [2019] KEMC 5 (KLR)", Case Analysis (2019). Notice of Motion dated 30th October 2018 (Milimani Chief Magistrate's Court, Anti-Corruption). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2019/5/eng@2019-05-10

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