Republic v Odaya (Anti-Corruption Case 22 of 2018) [2020] KEMC 12 (KLR)
The bottom line
#A Kenyan court convicted a brand protection agent of receiving a bribe for demanding money to drop counterfeiting charges, showing private-sector agents can be guilty of bribery.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What constitutes the offence of receiving a bribe under section 6(1) of the Bribery Act, including 'relevant function' and 'improper performance' under section 7
- 2.Whether the accused, an agent of Tecno Technologies and a registered agent under the ACA Act, could lawfully request money to settle the complainant's suspected counterfeiting matter
- 3.Whether the accused's conduct in requesting Kshs. 180,000/- on 16/2/2017 amounted to improper performance of a relevant function contrary to section 6(1)(a) of the Bribery Act
- 4.Whether counts I, II and IV were proved beyond reasonable doubt
Key legal issues
#Whether requesting money to induce forbearance from charging constitutes receiving a bribe under section 6(1)(a) of the Bribery Act
Yes - the accused's request for Kshs. 180,000/- on 16/2/2017 infringed section 6(1)(a) as his intention was to cause improper performance of the relevant function under the ACA Act
The court analysed sections 6 and 7 of the Bribery Act, holding that 'relevant function' includes business and agency activities and 'improper performance' defeats expectations of good faith, impartiality and trust. The accused arrogated to himself the Executive Director's powers under section 34A of the Anti-Counterfeit Act, unilaterally assessed the amount payable, bypassed ACA, and diverted 83.3% of the money to his principal's private benefit - dishonest and fraudulent conduct constituting improper performance.
Whether the accused's lack of mandate to charge or forbear charging under the Anti-Counterfeit Act was a defence
No - section 6(3)(a) of the Bribery Act renders immaterial whether the recipient is performing the function or activity
The defence argued the accused was neither an employee nor agent of ACA and could not forbear charging. The court held that section 6(3)(a) excludes culpability excuses based on lack of empowerment to execute the function. What matters is that the financial advantage was sought to cause improper performance of a relevant function. The mandate to charge belonged to ACA, and the accused knew the limits of his role but dishonestly assumed the Executive Director's powers.
Whether counts I, II and IV were proved beyond reasonable doubt
No - the accused was acquitted on counts I, II and IV
Counts I and II rested solely on the complainant's uncorroborated oral account, and given the grave consequences of corruption convictions, the accused received the benefit of doubt. On count IV, the transcript showed the agreed Kshs. 180,000/- was to be deposited into two accounts; cash was never discussed, and the accused's recorded reaction ('nini hiyo?') showed he did not anticipate or knowingly receive the Kshs. 50,000/- treated money as part of the agreement.
Legal principles established
#- Lack of capacity or mandate to perform the function to which a bribe relates is no defence to a charge under section 6(1) of the Bribery Act
- A relevant function under section 7 of the Bribery Act includes any activity connected with business or performed by or on behalf of a body of persons, so private interests are covered
- Where a third party is involved as agent in a bribery transaction, the principal and the third party are each regarded as the agent of the other
- Convictions for corruption offences should not rest on uncorroborated evidence given the grave consequences of such convictions
- The Executive Director of the Anti-Counterfeit Authority alone may compound offences under section 34A of the Anti-Counterfeit Act, not brand owners or their agents
Court orders
#- 1.The accused is found guilty and convicted of count III under section 215 of the Criminal Procedure Code
- 2.The accused is acquitted under section 215 of the Criminal Procedure Code on counts I and II
- 3.The accused is acquitted on count IV
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original criminal jurisdiction of the magistrates' court over offences under the Bribery Act No. 47 of 2016
Relief refused
#Conviction on counts I and II (requests of Kshs. 395,000/- and Kshs. 180,000/- on 14th and 15th February 2017)
Only the complainant's uncorroborated oral account supported those counts; corruption offences attract grave consequences so uncorroborated evidence should not found a conviction
Conviction on count IV (receipt of Kshs. 50,000/- treated money)
The agreed Kshs. 180,000/- was to be deposited into accounts; cash payment was not part of the discussion and the accused's reaction showed he did not knowingly receive cash under the agreement
Costs
No costs order recorded in the judgment.
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 find him guilty of count III and convict him accordingly.
In the two counts therefore, I will give the accused a benefit of doubt and acquit him under section 215 of the Criminal Procedure Code.
I acquit him of count IV as well.
the overriding object behind the actions of the accused in explicitly disregarding the clear provisions of the law was to manipulate the complainant in order to gratify a private interest of his principal by ensuring that the complainant deposited the money into his principal's account
The fact that such a person that made the request for a bribe has no capacity execute the particular activity or function to which the bribe relates is immaterial.
Relevant function is also not restricted to functions of public nature only; the list is extensive.
Issues in the judgment
#The judgment cites the Bribery Act inconsistently, referring to it as 'Bribery Act No. 47 of 2016' in the charge sheet but as 'Bribery Act, No. 7 of 2016' in the analysis
Paragraph numbering in the judgment is irregular, jumping from paragraph 111 to paragraph 122
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Odaya (Anti-Corruption Case 22 of 2018) [2020] KEMC 12 (KLR)", Case Analysis (2020). Not stated in the judgment (four counts of receiving a bribe under the Bribery Act No. 47 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/12/eng@2020-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.