Republic v Nyanamba & 8 others (Anti-Corruption Case 11 of 2019) [2020] KEMC 10 (KLR)
The bottom line
#A Kenyan court convicted seven officials over an irregular direct procurement, holding that manufactured urgency and knowing breaches of procurement law are not excused.
What this practically means
#Executive summary
#Key legal issues
#Duty to notify bidders of termination of procurement proceedings (section 36(2) PPDA)
The 1st accused, as head of the procuring unit, had the duty under section 36(2) PPDA to give prompt notice of termination, but the prosecution failed to prove that ALL tenderers in both attempts went unnotified
The court traced the four procurement attempts for the renovation of the ASK show stand, holding that the subject matter remained constant and the tender numbering changed only to distinguish attempts. However, while PW15 proved non-notification in the first attempt, no witness represented the tenderers in the second attempt, so the charge was not proved to the required standard against the 1st accused, who was also out of the country at the material time.
Duty to report direct procurement exceeding Kshs 500,000 to PPOA within 14 days (regulation 62(3) PPDR)
The reporting duty lay with the procurement unit headed by the 1st accused, not the accounting officer; reporting on 21st January 2015 was far outside the 14-day window, and the 1st accused wilfully failed to report
Regulation 8(3)(s) PPDR places the function of preparing and submitting reports to the Authority on the procurement unit, headed by the 1st accused. The direct procurement was awarded on 22nd September 2014, so the 14 days expired on 6th October 2014, by which date the 1st accused had resumed duty after her trip to London. The quarterly report of 21st January 2015 was over three months late and covered the wrong quarter, and no explanation for the delay was offered.
Compliance with the conditions for direct procurement under section 74(2) and (3) PPDA by the tender committee
The 255th Tender Committee wilfully failed to comply: SCANAD was not the only supplier, reasonable alternatives existed among prequalified suppliers, and the urgency was foreseeable and caused by the procuring entity's dilatory conduct; the committee also retrospectively approved an award already communicated to SCANAD
The court reviewed the procurement stages and found that the requisition was made in May 2014 with ample time to procure, and that the crisis arose from the unilateral withdrawal of the 253rd TC paper, the termination of the tender on an anonymous letter, and the rejected imprest proposal. SCANAD did not appear in the prequalified list for renovation works and had already been told to treat the works as awarded before the 255th TC sat, which the committee then rubber-stamped.
Whether the secretary (8th accused) and secretariat (9th accused) were liable as tender committee members
The secretary and the secretariat are not members of the tender committee for purposes of decision-making; the charge against them failed
Prosecution witnesses who were TC members testified that it was the practice that the secretary did not participate in decision-making, and the 8th accused was even asked to step out during deliberations. The 9th accused was listed in the minutes as attending in the capacity of secretariat, performing logistical functions, and the prosecution adduced no evidence of appointment as a member or of substantive participation.
The defence of necessity and the section 138 PPDA good-faith protection
Necessity was not made out because the harm allegedly avoided did not outweigh the danger of the prohibited conduct and the committee had a lawful alternative to reject the recommendation; section 138 does not protect those who knowingly breach procurement law
The court set out the elements of necessity from common law and Commonwealth authority, including Dudley & Stephens and Perka v The Queen, and found the defence inapplicable: CAK could have distributed the branded materials regardless of the stand's state, SCANAD's existing branding contract could have sufficed, and participation in the show was not a matter of life and death. The accused knowingly adopted extraneous reasons not authorised by procurement law, forfeiting the statutory protection.
Legal principles established
#- A procuring entity may use direct procurement under section 74(3) of the PPDA only where the circumstances giving rise to urgency were unforeseeable and not the result of dilatory conduct by the procuring entity
- The good-faith protection in section 138 of the PPDA does not avail persons who knowingly fail to apply the express provisions of the procurement law
- A tender committee may not receive and act on anonymous complaints, that role belonging to the statutory review mechanisms
- An accused who elects to remain silent is not to be prejudiced; the burden of proof remains on the prosecution throughout
- Perpetuating an illegality to mitigate the consequences of a former illegality does not fall within the defence of necessity
Court orders
#- 1.1st accused acquitted on count 1 under section 215 of the Criminal Procedure Code
- 2.1st accused convicted on count 2 under section 215 of the Criminal Procedure Code
- 3.2nd, 3rd, 4th, 5th, 6th and 7th accused convicted on count 3 under section 215 of the Criminal Procedure Code
- 4.8th and 9th accused acquitted on count 3
- 5.Each convicted accused to pay a fine of Kshs. 500,000 in default 12 months imprisonment
- 6.Right of appeal within 14 days
- 7.Cash bail in respect of the 8th and 9th accused to be released to depositors
- 8.Cash bail in respect of the 1st to 7th accused to be converted to fine upon presentation of original receipts (1st accused's cash bail converted to fine on affidavit on 3rd September 2020)
- Jurisdiction invoked
- Criminal jurisdiction of the magistrates' court over charges of wilful failure to comply with the law relating to procurement contrary to section 45(2)(b) as read with section 48 of the Anti-Corruption and Economic Crimes Act, No. 3 of 2003
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic v Rono & 2 others (Criminal Case E2050 of 2023) [2026] KEMC 350 (KLR)[2026] KEMC 350 (KLR)23 Jul 2026not followed
Cite this brief
#Cite this brief
Caselaw, "Republic v Nyanamba & 8 others (Anti-Corruption Case 11 of 2019) [2020] KEMC 10 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/10/eng@2020-09-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.