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MagistratePartially AllowedNot stated in judgment· [2019] KEMC 11 (KLR)

Republic v Oywer & another (Criminal Case 11 of 2016) (Anti-Corruption and Economic Crimes) [2019] KEMC 11 (KLR)

Magistrates' Court (criminal jurisdiction) - exact court not stated in judgment
2 October 2019
FKFELIX KOMBO
733 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court acquitted an accused of failing to obey an EACC records notice because investigators skipped the required court application process.

What this practically means

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Executive summary

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In this ruling at the close of the prosecution case, Senior Principal Magistrate Felix Kombo considered the evidence of 23 prosecution witnesses and submissions by State counsel in a corruption-related criminal trial against two accused persons facing four counts. The court found that a prima facie case was sufficiently made out against both accused in Count 1, against the 1st Accused in Count 2, and against the 2nd Accused in Count 3, and accordingly placed them on their defences on those counts. However, on Count 4 - a charge under section 28(9) of the Anti-Corruption and Economic Crimes Act alleging the 2nd Accused's failure to comply with a 'Notice to Produce Information and Documents' served on him by EACC investigators - the court held the charge wholly misconceived. The notice demanded specified accounting records, a requirement falling under section 28(1)(a) and/or (b) of ACECA, which may only be effected through an application to court with prior notice to affected parties. Since the investigators served the notice directly without a court order, non-compliance could not found the offence. Count 4 was dismissed and the 2nd Accused acquitted thereunder under section 210 of the Criminal Procedure Code. The ruling was delivered in open court on 2 October 2019. The names of the accused, case number and station do not appear in the judgment as provided.

Key legal issues

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01

Whether the 2nd Accused could be charged under section 28(9) ACECA for failing to comply with a notice served directly on him by EACC investigators rather than pursuant to a court order

Holding

The charge was misconceived; a notice under section 28(1)(a)/(b) requires a court application with prior notice to affected parties, so a directly served notice cannot trigger the offence under section 28(9).

Reasoning

The court examined the notice served (Pros Exh 52), which demanded specified accounting records. Such a demand falls under section 28(1)(a) and/or (b) of ACECA, which expressly requires an application to the court with notice to affected parties. Since no such court application was made, there was no lawful basis to serve a direct notice on the 2nd Accused, and non-compliance with it could not constitute the offence created by section 28(9).

p. 3
02

Whether a prima facie case existed against each accused on Counts 1, 2 and 3

Holding

A sufficiently made out case was found against both accused in Count 1, the 1st Accused in Count 2, and the 2nd Accused in Count 3, warranting defence.

Reasoning

After considering the evidence of 23 prosecution witnesses and counsel's submissions, the court found the evidence sufficient to place the accused persons on their defence on the respective counts, per the standard for a case to answer.

p. 1

Legal principles established

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  • A requirement under section 28(1) ACECA to produce records or provide explanations can only be obtained by application to court with notice to affected parties; a direct notice served on a suspect cannot found a charge under section 28(9).

Court orders

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  1. 1.Count 4 against the 2nd Accused dismissed and the 2nd Accused acquitted thereof under section 210 of the Criminal Procedure Code
  2. 2.1st and 2nd Accused called to their defence in Count 1
  3. 3.1st Accused called to her defence in Count 2
  4. 4.2nd Accused called to his defence in Counts 3 and 4
Jurisdiction invoked
Criminal jurisdiction under the Criminal Procedure Code and the Anti-Corruption and Economic Crimes Act (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 Oywer & another (Criminal Case 11 of 2016)  (Anti-Corruption and Economic Crimes) [2019] KEMC 11 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2019/11/eng@2019-10-02

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