Republic v Opondo & another (Anti-Corruption Case 10 of 2019) [2020] KEMC 6 (KLR)
The bottom line
#Two Kenyan anti-corruption officers were cleared of bribery but convicted of abuse of office for running secret, unauthorized investigations — procedure matters as much as the allegation itself.
What this practically means
#Executive summary
#Key legal issues
#Whether the accused had powers to conduct investigations
Both accused, being holders of appointment letters as investigators, had the requisite powers to conduct investigations for EACC.
The court found that both accused had letters appointing them as investigators for the Ethics and Anti-Corruption Commission. This disposed of the first issue in the accused persons' favour as to capacity, but capacity alone did not end the matter because the manner in which the powers were exercised remained in question under the abuse-of-office counts.
Whether there was a report to warrant the investigation
No report had been lodged when the meeting with the complainant's lawyer took place; the 1st accused lodged the complaint only on 2/5/17, after the 27/4/17 meeting, which the court found was a cover up.
The defence itself corroborated prosecution evidence that the complaint was lodged on 2/5/17, days after the accused had met PW5 and PW10 on 27/4/17 and claimed an investigation was ongoing. This showed the investigation commenced outside the laid structures and undermined the defence that they were on normal duty.
Whether a demand for a bribe of Kshs 15 million was proved
The bribe demand was not proved; the key witness PW10 did not state a bribe was demanded and retracted that the payment was to KRA, so the accused got the benefit of doubt on Counts 1 and 2.
The alleged demand was made only to PW10, making all other evidence on it hearsay. On cross-examination PW10 stated the money was to be paid to KRA to regularize tax status, absolving the accused. No money was shown to have been paid to either accused, so the evidence did not support Counts 1 and 2.
Whether the accused abused their office
Both accused were convicted of abuse of office for commencing secret, out-of-system investigations without authority, notification or knowledge of their superiors, in furtherance of personal interest.
Although authorized investigators, the accused bypassed the mandatory complaint-assessment-assignment procedure. They held an investigative meeting days before any complaint was lodged, excluded PW9 from the assignment, gave inconsistent accounts of the investigation, and offered no valid explanation for the secrecy. The 1st accused's belated complaint was a pure cover up.
Legal principles established
#- For an offence under section 46 of ACECA (abuse of office) to be established, the prosecution must show that the accused is a state officer and that he used his office.
- Evidence of a bribe demand made only to one witness, relayed by others, is hearsay; the key witness's own testimony is determinative.
- Public officers who commence investigations outside the laid-down reporting structures, in secret and without notification of their superiors, may be guilty of abuse of office even if no bribe is proved.
Court orders
#- 1.Both accused found not guilty and acquitted under section 215 Criminal Procedure Code on Count 1 (receiving a bribe)
- 2.Both accused found not guilty and acquitted under section 215 Criminal Procedure Code on Count 2 (conspiracy to commit a corruption offence)
- 3.1st accused found guilty and convicted as charged on Count 3 (abuse of office)
- 4.2nd accused found guilty and convicted as charged on Count 4 (abuse of office)
- 5.1st accused fined Kshs 1,000,000 in default 10 years' imprisonment on Count 3
- 6.2nd accused fined Kshs 1,000,000 in default 10 years' imprisonment on Count 4
- 7.Defence to be supplied with certified copies of the proceedings and judgment at their cost
- 8.Cash bail of Kshs 500,000 deposited by the 1st accused to be treated as part of the fine upon surrender of the original receipt
- 9.14 days' right of appeal explained
- Jurisdiction invoked
- Criminal jurisdiction under the Anti-Corruption and Economic Crimes Act No. 3 of 2003 and the Bribery Act, 2016; acquittals entered under section 215 of the Criminal Procedure Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Opondo & another (Anti-Corruption Case 10 of 2019) [2020] KEMC 6 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/6/eng@2020-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.