Republic v Kamau & 2 others (Anti-Corruption Case 7 of 2018) [2019] KEMC 5 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the two anti-corruption cases arise from the same facts and transaction so as to warrant consolidation
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
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.
The effect of the High Court's quashing of count 1 in ACC 7/2018 on the consolidation application
With count 1 quashed, there was nothing left to consolidate between the two cases
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.
Scope of section 135 of the Criminal Procedure Code on joinder of accused persons
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
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.