Samuel Elikana Ondari Bosire, Emmanuel Okello O'Kubasu, Erastus Mwaniki Githinji
Esther Theuri Waruiru & Mary Mbaisi Indusa v Republic
Esther Theuri Waruiru & another v Republic  eKLR
Reported by Njeri Githang’a
The Appellants had been charged before the Chief Magistrate’s Court, at Nairobi, with two counts, the first one of soliciting a bribe contrary to section 39(3)(a) as read together with section 48(1) of the Anti Corruption and Economic Crimes Act No 3 of 2003, and the second of receiving a bribe contrary to the same provisions. After trial, they were both acquitted of the first count but were convicted of the second. Their respective first appeals were dismissed by the High Court resulting to their second and probably, their last appeals.
The main complaint against the Appellants’ respective convictions was that section 39(3)(a) of the Anti-Corruption and Economic Crimes Act, did not create the second count as framed. The state counsel conceded to the Appeal.
(i) Whether KACC had the power to prosecute criminal cases.
(ii) Whether section 39(3)(a) of the Anti-Corruption and Economic Crimes Act created the offence of receiving a bribe.
Criminal Practice and Procedure – powers to prosecute – power to prosecute anti-corruption cases – where the Kenya Anti-corruption Commission(KACC) had prosecuted a criminal case through the Police –appellants having been convicted with the offence receiving a bribe- claim by the Appellant that KACC had no power to prosecute and that such power was only vested with the Attorney General –how KACC was expected to handle complaints made to it or investigations carried out by them of alleged acts of bribery or economic crimes- whether or not KACC had the power to prosecute criminal cases- effect of non-compliance with section 35 of the Anti-Corruption and Economic Crimes Act on the Appellants’ conviction- Anti-Corruption and Economic Crimes Act (Act No 3 of 2003), section 35.
1.The Court could only interfere with the decision of the first appellate court if it was satisfied that the High Court erred in principle or that it acted on no evidence and the error or omission occasioned a failure of justice.
2.The Anti-Corruption and Economic Crimes Act (Act No 3 of 2003) mandated KACC to investigate the commission of crimes under the Act. Its officers did not have any prosecutorial powers, and therefore, by section 35 (1) of the Act it was required to report to the Attorney- General on the results of its investigations.
3. No evidence had been adduced at the trial to show that a report was made to the Attorney- General, and if so, what recommendations were made to him. The Court also did not have on record the action which the Attorney-General may have recommended be taken against the Appellants.
4.Under section 12 of the Prevention of Corruption Act, (cap 65) of the Laws of Kenya, since repealed, a written consent of the Attorney-General was required for all prosecutions under the Act. The only exception was where the amounts involved or the value of the gift etc did not exceed Kshs10,000 when the power could be delegated to officers under the Attorney-General. The consent was not cosmetic; nor was it as a matter of course. It was a matter of policy.
5. The Appellants had been acquitted of the charge of soliciting a bribe but were convicted of receiving a bribe. If indeed there was a receipt of a bribe, it was probably received with a demand. And if it had been offered without being demanded, the Appellants could not be charged alone without the person or persons who offered it. There hence were certain matters about the Appellants’ prosecution which needed to be looked at by the Attorney-General’s office before the prosecution was undertaken.
1. Kangangi, Nicholas Muriuki v Attorney General Civil Appeal No 331 of 2010 – (Explained)
2. Murimi v Republic  E A 542 – (Explained)
1. Anti Corruption and Economic Crime Act, 2003 (Act No 3 of 2003) sections 35(1); 39 (3)(a);
48(1) – (Interpreted)
2. Criminal Procedure Code (cap 75) section 361(1) – (Interpreted)
3. Public Health Act (cap 242) sections 115, 118, 119, 120, 121 - (Interpreted)
4. Prevention of Corruption (Repealed) Act, 2003 (Act No A3 of 2003) sections 12, 35, 37(4) –