Republic v Githaka & another (Anti-Corruption Case 6 of 2009) (Anti-Corruption and Economic Crimes) [2019] KEMC 6 (KLR)
The bottom line
#A former Kenya Re executive was convicted of fraudulently acquiring Ksh 7.26 million in public property, but acquitted on conspiracy and other counts.
What this practically means
#Executive summary
#Key legal issues
#Effect of nolle prosequi against a co-accused on an un-amended joint charge
Counts 1 was not incurably defective merely because it was un-amended; it was deemed amended by the court order discharging the 1st Accused, but Count 4 (conspiracy) was rendered incurably defective
Joint action is not an ingredient of the offence of fraudulent acquisition; it is a matter of proof. The court was party to the discharge order, so the charge must be read as altered. But conspiracy requires a meeting of minds of two or more persons; with one alleged conspirator removed and the charge un-amended, Count 4 no longer disclosed an offence.
Whether Kenya Re was the institutional Statutory Manager
Yes; the 2nd Accused acted merely as its agent in the statutory management
Pros Exh 49 showed the Ministry of Finance approved Kenya Re as Statutory Manager; the appointment letter was addressed to the 2nd Accused in his official designation at Kenya Re; the sale agreement and transfer bore Kenya Re's seal; and PW3 Mweni described himself as Statutory Manager because his employer Kenya Re held the appointment. The Ang'awa J decision voiding the appointment did not affect prior acts.
Whether the Ksh 7,260,000/- was public property and fraudulently acquired
Count 1 proved beyond reasonable doubt; the sum was under the control of and due to Kenya Re as Statutory Manager and was channelled to the 2nd Accused's personal property purchase
The 2nd Accused instructed payment to 'agents' knowing none existed, then disclosed he was the agent while also being Managing Director of the Statutory Manager and a board member of the purchaser. Funds from the sale deposit were traced into the Loresho property purchase for him and his spouse. Section 45(3) ACECA covers property under a public body's control, not only property owned by it.
Credibility of Advocate Muriu as a possible accomplice witness
He was found credible and his testimony amply corroborated by documents and independent witnesses
The court applied the accomplice-evidence test from Ngethe v Republic, finding corroboration in Ms Omulele's testimony, bank records, the sale agreements, and the chain of documents (Pros Exh 2, 3, 4, 26, 27). The 2nd Accused's claims of forgery were rejected as afterthoughts, particularly his vacillation over Pros Exh 2 which he first admitted writing.
Sufficiency of Counts 2 and 3
Both not proved: Count 2 wrongly characterised the money as public revenue paid for services not rendered; Count 3 was bad on its face and its particulars did not disclose an offence
The funds were proceeds of sale of United Insurance Towers, not public revenue. Count 3's particulars nonsensically described public property as 'the provisions of section 67C (4) and (5) of the Insurance Act' and described failure to manage funds rather than failure to comply with disposal law, such that it could not be understood at plea.
Legal principles established
#- The mere removal of a party to a charge does not per se warrant an amendment or substitution of the charge; the question is whether the remaining charge is rendered defective
- A charge of conspiracy cannot survive where the case against one of the two alleged conspirators is terminated, since conspiracy requires two or more persons
- Money under the control of or due to a public body constitutes public property under Section 45(3) of the ACECA even where ownership has not passed to the public body
- Accomplice evidence is admissible but must be tested for credibility and corroborated by independent evidence
Court orders
#- 1.Acquittal of the 2nd Accused on Counts 2, 3 and 4
- 2.Conviction of the 2nd Accused on Count 1 (fraudulent acquisition of public property) under section 215 CPC
- 3.Right of mitigation/sentencing submissions (R/A) in 14 days
- Jurisdiction invoked
- Original criminal jurisdiction under the Criminal Procedure Code and the Anti-Corruption and Economic Crimes Act No. 3 of 2003, tried by a special magistrate
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Githaka & another (Anti-Corruption Case 6 of 2009) (Anti-Corruption and Economic Crimes) [2019] KEMC 6 (KLR)", Case Analysis (2019). Not stated in judgment (old case first presented on 5/2/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2019/6/eng@2019-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.