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Reported By Njeri Githang’a

The facts of the Petition were that around mid March 2007, one Jeremiah Kaluma Buchianga, an investigator at the Kenya Anti-Corruption Commission (KACC) and therefore a state agent, had been assigned to investigate an alleged grabbing of a piece of land by the Petitioner. Mr Buchianga proceeded to arrange a meeting with the Petitioner on 14/3/2007 and he equipped himself with a tape recorder to assist him in his investigation.

In the course of the meeting, it was alleged that the Petitioner asked Mr Buchianga to make a favorable investigation report about the acquisition of the land in question so that the land could not be repossessed from him. In return for such a report he promised to do anything that he would be asked for. Through a concealed recording, the KACC agent engaged the Petitioner in a mock bribe-bargaining that led them to settle on a bribe of 1 million shillings payable in two installments of Kshs 500,000 each. It was further agreed that the first installment would be paid the following day.

On 15/3/2007 together with five other officers, Mr Buchianga proceeded to an agreed venue with a view to arrest the Petitioner if he bribed him as he had promised the previous day. The Petitioner arrived at the scene and allegedly gave a brown envelope which contained Kshs 500,000. He was promptly arrested and charged with three offences relating to the contravention of the Anti-Corruption and Economic Crimes Act, No 3 of 2003.

It was against these criminal charges that the Petitioner petitioned the High Court to declare, among others, that the evidence sought to be relied upon by the Attorney General in the Criminal

Case was obtained by or through the process of entrapment and was therefore inadmissible. It was contended by the Petitioner that the said KACC agent, having informed him that he was carrying out an investigation with respect to the land in question, he had insisted that the Petitioner must meet him, otherwise he would write an investigation report in such a manner as to implicate the Petitioner in the alleged fraud and in acquisition of the land. As a result, the Petitioner met with Mr Buchianga who turned the conversation in the direction of ‘performance and reward’ by asking the Petitioner what he was willing to do for him should he write a favourable report. Advocate for the Petitioner submitted that the conduct of Mr Buchianga as set out in the recorded conversation was clearly unjustified, illegal and amounted to a clear case of entrapment. That contention was based on the fact that at the time of engaging in the conversation, the Petitioner was not under any investigation by KACC with regard to the offence of corruption or any other offence and therefore had no reason to bribe or offer any inducement to anyone. Further, Mr Macharia submitted that from the conversation, the KACC agent repeatedly invited the Petitioner to do something he did not intend to do by commencing the request for a bribe and as a result, he planted an intention to commit a crime in the mind of the Petitioner where such intention did not exist before.

On the other hand the State counsel contented that the Petitioner had indeed bribed Mr Buchianga and therefore, he had been properly charged upon the sufficiency of the evidence obtained by the KACC agent. Further, he contended that there was no entrapment of the Petitioner by Mr Buchianga and the Petition was a mere attempt to delay the trial of the criminal case.

Issue

i. Whether evidence obtained by a state agent through the process of entrapment was admissible

Criminal Practice and Procedure - defence-entrapment as a defence- the Petitioner having been charged with Corruption and Economic offences-claim by the Petitioner that the evidence sought to be relied upon by the Attorney General in the Criminal Case was obtained by a state agent through the process of entrapment and was therefore inadmissible – legality and admissibility of such evidence in a Criminal Case- whether the state agent had actually lured the Petitioner into committing an act of bribery

Criminal Practice and Procedure - entrapment- where a State agent induces a person to commit an offence in order that an offence may be detected by the same agent-how to determine whether entrapment occurred- Judicial response to entrapment

Held:

1. In law, entrapment was viewed as a type of lawlessness by law enforcement officers and was a tactic which was rationalized under the theory that the end justified the employment of the illegal means. In essence, entrapment was a State created crime which was unacceptable and improper.

2. Judicial response to entrapment was based on the need to uphold the rule of law and therefore, it was not sufficient to do justice by obtaining a proper result where such a result was acquired through irregular and improper means.

3. Entrapment was a complete defence and it did not matter that the evidence against the person was overwhelming or that his guilt was undisputed.

4. The court had to refuse to convict an entrapped person not because his conduct falls outside the proscription of the statute but because even if his guilt was admitted, the methods and manner employed on behalf of the State to bring about the evidence could not be countenanced.

5. It was wholly wrong for a State agent to induce a person to commit an offence in order that an offence may be detected by the same agent. In determining whether entrapment occurred, it was important to analyze and scrutinize how much and what manner of persuasion, pressure and cajoling was brought to bear by the law enforcement agent to induce persons to commit a crime.

6. A scrutiny of the recorded conversation between the Petitioner and Mr Buchianga revealed that Mr Buchianga had actually lured the Petitioner into committing an act of bribery for which the State was now seeking to prosecute him.

7. The actions and conduct of Mr Buchianga went beyond those of an undercover agent as he instigated the offence and there was nothing to suggest that without his intervention and participation, the offence would have nevertheless been committed. Hence, the evidence so obtained through entrapment by the state agent was illegal and unlawful and thus inadmissible in a Criminal Case against the Petitioner.

Petition allowed

Cases

India;

1. Amato v The Queen (1982) 69 CCC – (Explained)

2. Branna v Peek [1947] 2ALL ER 572 – (Explained)

3. Nandini Satlpathy v PL Dani & another Civil Appeal No 315 of 1978 – (Explained)

4. Nottingham City Council v Amin [2000] 2 All ER – (Explained)

5. Regina v Dianna Rose Moon [2004] EWCA Crim 2872 – (Explained)

6. Republic v Loosely [2001] UKHL 53 – (Explained)

7. Republic v Mack [1988] 2 SCR 903 – (Explained)

8. Republic v Shahzad [1966] 1 All ER – (Mentioned)

9. Ridgeway v The Queen (1995) 184 CLR 19, 92 – (Explained)

10.Teixeira De Castro v Portugal [1998] ECHR 52

United States;

1. Blackburn v Alabama, 4 L Ed 2d 242 – (Explained)

2. Chambers v Florida, 309 US 227; (84 L Ed 716) – (Explained)

3. Couch v United States, 409 US 322, 336 (1972) – (Explained)

4. Keith Jacobson v United States 1992 US LEXIS 2117; 60 US LW 4307 – (Explained)

5. Miranda v Arizona 384 US 7 436 (1966) – (Explained)

6. People of the State of New York v Edward D Isaacson, 44 NY 2D 511 (1978) – (Explained)

7. State of Ohio v Doran 5 Ohio St 30 187 (1983) – (Explained)

Statutes

East Africa;

1. Anticorruption and Economic Crimes Act, 2003 (Act No 3 of 2003) sections 7(1)(d)(g); 39(3((b); 48(1) – (Interpreted)

2. Constitution of Kenya (Repealed) sections 77(2); 78, 79, 80, 84 – (Interpreted)

3. Constitution of Kenya, 2010 articles 20(3); 161(2) – (Interpreted)

4. Criminal Procedure Code (cap 75) section 160(1); 161(1)(2) – (Interpreted)

5. Penal Code (cap 63) section 179(1) – (Interpreted)

India;

6. Indian Evidence Act, 1872 section 26 – (Interpreted)

Advocates

None mentioned

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