Republic v Chege (Anti-Corruption Case 5 of 2013) (Anti-Corruption and Economic Crimes) [2020] KEMC 4 (KLR)
The bottom line
#A Kenyan court convicted a former MP of soliciting and receiving a bribe, ruling that corruption cases cannot be dropped just because the person who reported them changes their mind.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the accused was an 'agent' within section 38 of ACECA and whether the subject matter (CDF payment) related to the affairs of his principal
- 2.Whether the charges, particularly counts 1 and 2, were duplex/multiplicitous and bad in law
- 3.Whether the withdrawal of the complaint by the complainant, and his earlier affidavit, barred the prosecution or meant the DPP could not sustain the case
- 4.Whether prosecution required exhibition of a report/consent under section 35 of ACECA
- 5.Whether solicitation of Kshs. 100,000 (counts 1 and 2) was proved beyond reasonable doubt
- 6.Whether receipt of the Kshs. 100,000 (count 3) was proved beyond reasonable doubt
- 7.Whether the tape-recorded conversations and transcript were reliable evidence
- 8.Whether the defence of entrapment succeeded
Key legal issues
#Whether the accused was an 'agent' and whether the CDF payment related to his principal's affairs
Yes. As MP the accused was an employee of the Parliamentary Service Commission and thus an agent of Parliament; the CDF was a public fund appropriated by Parliament and the MP was an ex-officio member of the CDF Committee, so the payment was a matter relating to his principal's affairs. In any event, section 38(2) deems such a person an agent of the Government where the principal is unclear.
The court took judicial notice that an MP is employed by the Parliamentary Service Commission. It analysed the CDF Act No. 30 of 2013, noting Parliament's oversight role and the MP's ex-officio membership of the CDF Committee under section 24(2)(f). Since CDF was a matter the National Assembly was directly concerned with, the issue was one of law, not fact requiring proof, contrary to the defence submission. Section 38(2) of ACECA provided a fallback deeming provision even had there been doubt.
Whether the charges were duplex/multiplicitous and bad in law
The defence raised multiplicity, not duplicity; charging the same offence in multiple counts exposes an accused to multiple punishment. The court avoided that mischief by treating the 2/7/2013 event as a continuation of the 25/6/2013 solicitation, convicting on count 1 and acquitting on count 2.
Adopting the definition in Cherere s/o Gukuli, the court held duplicity means joining two distinct offences in one count, which was not what the defence complained of. The real complaint was that the same transaction was repeated in two counts, risking double punishment. The court accepted that concern and elected not to treat the 2/7/2013 affirmation of the earlier agreement as an independent transaction, convicting only on count 1 for solicitation.
Whether the complainant's withdrawal of the complaint, and his assertion that he was the complainant, defeated the prosecution
No. The DPP, representing the public, is also a complainant; the withdrawal decision in this case had already been set aside by the High Court, and a corruption charge once investigated and brought before court is no longer a private matter and can only be withdrawn on public interest grounds.
The court relied on Lenaola J's decision in Petition No. 21 of 2015 and the Barawa judicial review ruling, and added that corruption offences harm society collectively rather than the individual reporter. Re-opening the complainant issue would offend stare decisis. The court also found that PW 6 never said he was forced to testify - he testified voluntarily at the DPP's request - and at no point recanted the events.
Whether failure to exhibit a section 35 ACECA report or DPP consent was fatal
No. Section 35 concerns reports to the DPP on investigations and does not require consent to prosecute; the Esther Theuri line of authority requiring consent under the repealed Prevention of Corruption Act is distinguishable and doubtful, and the investigation report is not part of the evidence under Article 50(2)(j).
The prosecution distinguished Esther Theuri Waruiru, which arose under the repealed Prevention of Corruption Act's express written-consent requirement. The court noted the Court of Appeal itself declined to re-affirm Esther Theuri in Susan Mbogo Ng'ang'a and Stephen Mburu Ndiba, and High Court authority holds the DPP cannot give itself consent. The specific issue of the undisclosed email had already been disposed of by the High Court in Revision No. 15 of 2018.
Whether the tape recordings and transcript were reliable
Yes. Although some portions were faint, the court listened to the recordings played in court and found the inaudible portions negligible; the recordings corroborated PW 6's oral evidence, and the accused never disputed the voice.
The court observed that the recordings were played during the testimony of several witnesses and that it could follow the Swahili conversation extensively. Key passages - 'Si mimi nilikua nafikiria ni mali umeniletea' and 'Tuliaganaaaa, mia moja' - showed a continuing discussion about money previously agreed, corroborating PW 6's account of the 25/6/2013 solicitation and confirming the amount of Kshs. 100,000.
Whether the entrapment defence succeeded and whether the receipt (count 3) was proved
Entrapment failed because the solicitation originated with the accused before EACC's involvement and PW 6 was not a state agent. Receipt was proved by PW 6's testimony, the recorded conversation in which the accused counted the Kshs. 100,000, and the presence of the APQ chemical on his hands and coat pocket.
The court set out the entrapment doctrine, including its US jurisprudence, holding that the defence requires inducement by state officers or agents. The defence's claim that EACC officers planted the money on the accused was an afterthought never raised in cross-examination of the EACC officers. Immediately after receiving the money, the accused called the CDF Manager to instruct processing, demonstrating corrupt intent and influence despite lacking formal signing authority.
Legal principles established
#- For a charge under section 39(3)(a) of ACECA the prosecution must prove: (1) that the accused was an agent; (2) solicitation of a benefit; (3) in receiving counts, receipt of the benefit; and (4) corrupt intention that the benefit would influence the agent's conduct in matters relating to his principal's affairs.
- In corruption offences, the victim is society, not the individual who reports the incident; the withdrawal of a corruption charge cannot be left to the wishes of the reporting person but must be determined by public interest.
- Non-exhibition of an investigation report under section 35 of ACECA is not fatal to a prosecution; that section deals with reports to the DPP and does not require any separate consent to prosecute.
- Entrapment is available only where the inducement is attributable to the State or its agents; a private citizen who reports a crime and thereafter assists in detecting it is not a state agent, and where the accused already formed the intention to commit the offence before law enforcement became involved, the defence cannot succeed.
- It is not a defence to an ACECA bribery offence that the act solicited was outside the accused's actual power or that he did not intend to perform it, where he held himself out as able to perform it (section 50).
Court orders
#- 1.Conviction of the accused on count 1 (corrupt solicitation of 25/6/2013) and count 3 (corrupt receipt of 3/7/2013) under section 215 of the Criminal Procedure Code
- 2.Acquittal of the accused on count 2 under section 215 of the Criminal Procedure Code
- 3.Count 1: fine of Kshs. 650,000 in default one (1) year imprisonment
- 4.Second count on which convicted: fine of Kshs. six hundred and fifty thousand in default one (1) year imprisonment; in default of payment of fine, sentences to be consecutive
- 5.Right of appeal within 14 days
- 6.Typed copies of proceedings and judgment to be supplied to defence counsel on payment of court fees
- 7.Kshs. 400,000 deposited as cash bail (original receipt No. 0388682 dated 4/10/16) to be applied towards the fine
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya (Constitutional Petition No. 21 of 2015 ordered retrial)
- Constitutional Petition Number 21 of 2015
- Jurisdiction invoked
- Original criminal jurisdiction over charges under section 39(3)(a) as read with section 48(1) of the Anti-Corruption and Economic Crimes Act, No. 3 of 2003, tried on retrial pursuant to the High Court's orders in Constitutional Petition No. 21 of 2015 and section 200(3) of the Criminal Procedure Code
Relief refused
#Acquittal on all counts / dismissal of the charges as sought by the defence
Solicitation (count 1) and receipt (count 3) were proved beyond reasonable doubt by oral evidence of PW 6, the tape recordings, transcript, call data and APQ chemical evidence; the entrapment defence and objections on multiplicity, section 35 consent and complainant standing all failed.
Acquittal on count 2
Although solicitation on 2/7/2013 was established, the court held it was not an independent transaction but a continuation of the 25/6/2013 solicitation; treating both as separate counts would render them multiplicitous.
Defence of entrapment
The solicitation originated from the accused before EACC came into the picture; the reporting complainant was not a state agent and the investigating officer merely provided an opportunity to commit a crime already intended.
Costs
No costs order made - criminal trial
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I thus find count 1 and 3 proved beyond reasonable doubt by the Prosecution and convict the accused accordinglly under section 215 of the Criminal Procedure Code. He is only acquitted in count 2 under section 215 of the Criminal Procedure Code for reasons already stated.
Count 1: Accused to pay a fine of kshs 650,000/= (six hundred and fifty thousand) in default one (1) year imprisonment.
Further, the application to apply kshs. 400,000/= four hundred thousand deposited as cash bail in court via original receipt No. 0388682 dated 4/10/16 is allowed
The decision of whether to drop such charges or not can only be made in public interest and not, at the convenience of an individual.
Merely reporting a complaint and assisting in detection of the ofience does not make one an agent of the State.
The fact that the report under section 35 of ACECA was not exhibited in Court is not fatal.
Where two or more ofiences are charged to the alternative in one count, the count is bad for duplicity contravening section 135(2) of the Criminal Procedure Code.
Issues in the judgment
#The sentencing orders are internally inconsistent with the conviction: the court convicted on counts 1 and 3 and acquitted on count 2, but the second sentence order is headed 'Count 11' (count 2) even though count 2 resulted in acquittal.
The judgment contains duplicated paragraph numbering (two paragraphs numbered 108) and inconsistent spelling of the trial magistrate's name in the High Court orders ('Hon P.M. Ndwiga' versus 'Hon. Peter Ndigwa').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Chege (Anti-Corruption Case 5 of 2013) (Anti-Corruption and Economic Crimes) [2020] KEMC 4 (KLR)", Case Analysis (2020). Chief Magistrate Anti-Corruption Case No. 5 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/4/eng@2020-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.