Alfred Mochama Nyabena & another v Republic
High Court, at Nairobi May 8, 2001
Criminal Appeals Nos 189 & 281 of 2001 (Consolidated)
(From Original Conviction and Sentence in Criminal Case
No 1365 of 2000 of the Senior Resident Magistrate’s
Court at Nairobi, C Githua (Mrs))
Constitutional Law – Attorney General – powers of the Attorney General to institute, take over and discontinue criminal proceedings – decision of a constitutional court declaring a prosecutorial body, the Kenya Anti-
Corruption Commission (KACA), unconstitutional – whether the decision meant that pending criminal prosecutions instituted by the body were to be terminated and accused persons acquitted – whether the Attorney General had the residual power to take over the proceedings and proceed with them as he deemed fit in the exercise of his powers – whether it was proper for State Counsel to take the place of KACA’s representative in such proceedings – Constitution of Kenya section 26
The appellants had been in the Nairobi Chief Magistrate’s Court with various offences under the Prevention of Corruption Act (Cap. 65) in a prosecution mounted by the Kenya Anti-Corruption Authority (KACA).
They brought an ex parte application before the trial court arguing that because a Constitutional Court had delivered a ruling in a separate case in which it declared KACA unconstitutional, then their prosecution should be terminated as KACA was no longer capable of further prosecuting them. Further, they asked the court to order for the release of certain exhibits which had been taken from them by KACA officers at the time of their arrest.
In her ruling on the application, the Senior Resident Magistrate (Mrs. C.Githua) considered the fact that the decision of the Constitutional Court had not emanated from a reference of the trial court and secondly, that the decision did not direct that all pending cases which were being prosecuted by KACA were to be terminated and the accused persons acquitted. The appellant’s application was therefore dismissed, thus prompting this appeal.
1. Even though KACA was declared by the Constitutional Court to have been unconstitutionally established, the powers conferred on the Attorney General under sections 26(3) of the Constitution to institute, take over and discontinue criminal proceedings were not challenged and they could not be successfully challenged before any court.
2. The proper respondent in every criminal appeal is the Republic, represented by the Attorney General or someone instructed by him. The appeals in this case having been filed against the Republic, the Attorney General was therefore entitled to representation and Senior Principal State Counsel was properly before the Court in the appeals even though the prosecution in the court below was commenced by KACA with the consent of the Attorney General.
3. The trial magistrate had correctly followed and interpreted the decision of the Constitutional Court. The decision did not state that cases where
KACA was the prosecuting body were to be terminated and accused persons acquitted. The Constitutional Court left room for the Attorney General to take whatever steps he deemed necessary with regard to the pending cases in the exercise of his powers under section 26 of the Constitution.
Riddlesbarger v Robson  EA 841
1. Prevention of Corruption Act (cap 65) section 3(1), 3(3)(a)(i)
2. Constitution of Kenya sections 67(1), 84(5)
Mr Nyandieka for the 1st Appellant.
Mr Avedi for the 2nd Appellant.
Mr Okumu for the Respondent.