Lucy Wangui Kamau V Republic [2021] EKLR | ||
Anti Corruption and Economic Crimes Appeal 23 of 2019 | 27 Jan 2021 |
Mumbi Ngugi
High Court at Nairobi (Milimani Law Courts)
Lucy Wangui Kamau v Republic
Lucy Wangui Kamau v Republic [2021] eKLR
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Lucy Wangui Kamau V Republic [2021] EKLR | ||
Anti Corruption and Economic Crimes Appeal 23 of 2019 | 27 Jan 2021 |
Mumbi Ngugi
High Court at Nairobi (Milimani Law Courts)
Lucy Wangui Kamau v Republic
Lucy Wangui Kamau v Republic [2021] eKLR
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Peter Odhiambo Agoro V Ann Kananu Mwenda & Another; County Assembly Of Nairobi & Another (Interested Parties) [2020] EKLR | ||
Anti Corruption and Economic Crimes Petition 1 of 2020 | 10 Dec 2020 |
Mumbi Ngugi
High Court at Nairobi (Milimani Law Courts)
Peter Odhiambo Agoro v Ann Kananu Mwenda & Mike Mbuvi Sonko; County Assembly of Nairobi & Director of Public Prosecutions (Interested Parties)
Peter Odhiambo Agoro v Ann Kananu Mwenda & another; County Assembly of Nairobi & another (Interested Parties) [2020] eKLR
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Giche Ltd & 2 Others V Director Of Public Prosecution & 2 Others [2020] EKLR | ||
Petition 20 of 2020 | 06 Nov 2020 |
Mumbi Ngugi
High Court at Nairobi (Milimani Law Courts)
Giche Ltd, Joseph Chege Gikonyo & Lucy Kangai Stephen v Director of Public Prosecution, Ethics & Anti Corruption Commission & Chief Magistrates Court Milimani Law Courts
Giche Ltd & 2 others v Director of Public Prosecution & 2 others [2020] eKLR
The Tax Procedures Act is intended to regulate procedures for tax collection and it’s not intended to apply where a tax payer deliberately fails to meet his tax obligation
Giche Ltd & 2 others v Director of Public Prosecution & 2 others [2020] eKLR
ACEC Petition No. 20 of 2020
High Court at Nairobi
Anti Corruption and Economic Crimes Division
M Ngugi, J
November 6, 2020
Reported by Kakai Toili
Statutes – interpretation of statutes – interpretation of section 80 of the Tax Procedures Act – where section 80(1) prohibited prosecution whenever penalties were imposed on a taxpayer under any tax law - whether section 80 of the Tax Procedures Act overrode the provisions of the Anti-Corruption and Economic Crimes Act(ACECA) which dealt with fraudulent failure to pay taxes - whether the charging of a tax payer under the ACECA for fraudulent failure to pay taxes violated section 80(1) of the Tax Procedures Act - Tax Procedures Act No 29 of 2015, section 80; Anti-Corruption and Economic Crimes Act No. 3 of 2003, sections 1(g)(i) and 45.
Criminal law – malicious prosecution – ingredients of malicious prosecution – claim that prosecution for fraudulent failure to pay taxes and a claim for unexplained assets under the Anti-Corruption and Economic Crimes Act amounted to malicious prosecution – where section 80(1) of the Tax Procedures Act prohibited prosecution whenever penalties were imposed on a taxpayer under any tax law - Whether the prosecution for fraudulent failure to pay taxes and a claim for unexplained assets amounted to malicious prosecution - Constitution of Kenya, 2010, article 157(1) and (11); Tax Procedures Act No 29 of 2015, section 80(1); Anti-Corruption and Economic Crimes Act No. 3 of 2003, sections 1(g)(i) and 45.
Brief facts
The 2nd and 3rd petitioners were the directors of the 1st petitioner and had been jointly charged with the offence of fraudulent failure to pay taxes payable to Kenya Revenue Authority (KRA) contrary to section 45(1)(d) as read with section 48 of the Anti-Corruption and Economic Crimes Act No. 3 of 2003 (ACECA). The 2nd respondent, Ethics and Anti-Corruption Commission (EACC) had launched investigations into allegations that the 2nd petitioner, a manager at KRA, through the 1st petitioner, and found that the 2nd petitioner had accumulated assets disproportionate to his known sources of income through corrupt conduct. The petitioners claimed that the 2nd petitioner had legitimate sources of income as an employee of KRA for over 30 years.
EACC also established, from an assessment by KRA, that the 1st petitioner had not paid taxes amounting to Kshs 38,692,694. The tax assessment from KRA showed that the 1st petitioner had accumulated tax and penalties amounting to Kshs. 38,692,694. The petitioners had agreed to pay the amount, and had indeed been paying the money due.
The petitioners sought among others, the termination of the prosecution against them and damages for alleged breach of their constitutional rights They contended that their arrest and prosecution was unlawful given the provisions of section 80(1) of the Tax Procedures Act (TPA), which they argued expressly prohibited their prosecution as a penalty had been imposed on them, and they had paid part of it.
Issues
Relevant provisions of the law
Constitution of Kenya, 2010
Article 157
(10)The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.
(11) In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
Anti-Corruption and Economic Crimes Act No. 3 of 2003
Section 45
(d) fails to pay any taxes or any fees, levies or charges payable to any public body or effects or obtains any exemption, remission, reduction or abatement from payment of any such taxes, fees, levies or charges.
Tax Procedures Act No 29 of 2015
Section 2
Section 80 - General provisions relating to administrative penalties and offences
Held
Petition dismissed with no order as to costs.
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Assets Recovery Agency V Charity Wangui Gethi & Another [2020] EKLR | ||
Miscellaneous Application 78 of 2017 | 28 Oct 2020 |
Mumbi Ngugi
High Court at Nairobi (Milimani Law Courts)
Assets Recovery Agency v Charity Wangui Gethi & Samuel Mdanyi Wachenje alias Sam Mwadime
Assets Recovery Agency v Charity Wangui Gethi & another [2020] eKLR
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Davy Kiprotich Koech V Ethics And Anti-Corruption Commission & Another [2020] EKLR | ||
Anti Corruption & Economic Crimes Petition 5 of 2020 | 28 Oct 2020 |
Mumbi Ngugi
High Court at Nairobi (Milimani Law Courts)
Davy Kiprotich Koech v Ethics and Anti-Corruption Commission & Director of Public Prosecutions
Davy Kiprotich Koech v Ethics and Anti-Corruption Commission & another [2020] eKLR
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Assets Recovery Agency V Samuel Wachenje & 6 Others; Grace Akinyi (Aggrieved Party) [2020] EKLR | ||
Miscellaneous Application 13 of 2016 | 21 Oct 2020 |
Mumbi Ngugi
High Court at Nairobi (Milimani Law Courts)
Assets Recovery Agency v Samuel Wachenje alias Sam Mwandime, Susan Mkiwa Mndanyi, Vandame John, Anthony Kihara Gethi, Ndung’u John, Gachoka Paul & James Kisingo; Grace Akinyi (Aggrieved Party)
Assets Recovery Agency v Samuel Wachenje & 6 others; Grace Akinyi (Aggrieved Party) [2020] eKLR
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Fredrick Ochieng Otieno V Director Of Criminal Investigations & Another; Kenya Commercial Bank (Interested Party) [2020] EKLR | ||
Miscellaneous Criminal Application E202 of 2020 | 21 Oct 2020 |
Mumbi Ngugi
High Court at Nairobi (Milimani Law Courts)
Fredrick Ochieng Otieno v Director of Criminal Investigations & Director of Public Prosecution; Kenya Commercial Bank (Interested Party)
Fredrick Ochieng Otieno v Director of Criminal Investigations & another; Kenya Commercial Bank (Interested Party) [2020] eKLR
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Wycliff Marege Mitema V Republic [2020]e KLR | ||
ACEC Appeal 31 of 2019 | 15 Oct 2020 |
Mumbi Ngugi
High Court at Nairobi (Milimani Law Courts)
Wycliff Marege Mitema v Republic
Wycliff Marege Mitema v Republic [2020]e KLR
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William Ashael Osoro V Republic [2020] EKLR | ||
Anti-Corruption Appeal 32 of 2019 | 14 Oct 2020 |
Mumbi Ngugi
High Court at Nairobi (Milimani Law Courts)
William Ashael Osoro v Republic
William Ashael Osoro v Republic [2020] eKLR
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Anthony Juma Opondo & Another V Republic [2020] EKLR | ||
Anti-Corruption and Economic Crimes Appeal 5 of 2020 | 07 Oct 2020 |
Mumbi Ngugi
High Court at Nairobi (Milimani Law Courts)
Anthony Juma Opondo & Paul Martin Sao v Republic
Anthony Juma Opondo & another v Republic [2020] eKLR
Whether section 46 of the Anti-Corruption and Economic Crimes Act which criminalized improper conferment of benefit also criminalized the intent to confer a benefit
Anthony Juma Opondo & another v Republic [2020] eKLR
ACEC Appeal No. 5 of 2020
High Court at Nairobi
M Ngugi, J
October 7, 2020
Reported by Chelimo Eunice
Interpretation of Statutes – interpretation of statutory provisions – Anti-Corruption and Economic Crimes Act - interpretation of section 46 of the Anti-Corruption and Economic Crimes Act – whether section 46 of the Anti-Corruption and Economic Crimes Act which criminalized improper conferment of benefit also criminalized the intent to confer a benefit – where the appellants flouted the Ethics and Anti- Corruption Commission’s internal processes regarding investigations with intent to confer a benefit to themselves – where such conduct brought some degree of disrepute to EACC – whether flouting of internal processes and bringing the Ethics and Anti- Corruption Commission to disrepute amounted to the offence of abuse of office as contemplated under Anti-Corruption and Economic Crimes Act - Anti-Corruption and Economic Crimes Act (Act No. 3 of 2003), sections 46 and 47.
Criminal Law – anti corruption and economic crimes – crime of improper conferment of benefit – crime of intent to confer benefit – whether section 46 of the Anti corruption and Economic Crimes Act criminalized both improper conferment of benefit and also criminalized the intent to confer a benefit Anti-Corruption and Economic Crimes Act (Act No. 3 of 2003), sections 46.
Brief facts
The appellants were charged in the Chief Magistrate’s Anti- Corruption Court (the trial court) with offences under the Bribery Act and the Anti-Corruption and Economic Crimes Act (ACECA). It was argued that the appellants, being persons employed by the Ethics and Anti- Corruption Commission (EACC), requested for a financial advantage amounting to Kshs 15 million from a director of Mwananchi Credit Limited (the complainant) through his lawyer, with intent that, in consequence, they would compromise a purported tax evasion investigation involving the said Mwananchi Credit Ltd.
At count I, they were charged with the offence of receiving a bribe contrary to section 6(1) (a) of the Bribery Act as read with section 18(1) and (2) thereof. At count II, they were charged with the offence of conspiracy to commit a corruption offence contrary to section 47A (3) as read with section 48(1) of ACECA. They were separately charged at count III and IV with the offence of abuse of office contrary to section 46 as read with section 48(1) of ACECA.
They pleaded not guilty to the offences and after a full trial, they were acquitted of the charges in count I and II. However, they were convicted on the charge of abuse of office as charged in count III and IV respectively. They were each sentenced to a fine of Kshs 1 million and in default, to a term of imprisonment for 10 years. Dissatisfied with both the conviction and sentence, the appellants preferred the instant appeal seeking to quash their conviction and sentence. They argued, among others, that the charge sheet was fatally defective as a consequence of duplicity of the charges and that the trial court misdirected itself in relying on internal procedural breach as opposed to the specific breach of the law hence arrived at a wrong decision.
Issues
Held
Appeal allowed.
Orders
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