Evidence Obtained Through Entrapment By State Agents Is Illegal And Thus Inadmissible In A Criminal Case
October 28, 2011
By Christian Bernard Ateka, Advocate
“…entrapment is a complete defence and it does not matter that the evidence against the person is overwhelming or that his guilt was undisputed. The court must refuse to convict an entrapped person not because his conduct falls outside the proscription of the statute but because even if his guilt is admitted, the methods and manner employed on behalf of the State to bring about the evidence cannot be countenanced.”
Mohamed Koriow Nur v The Attorney General  eKLR (www.kenyalaw.org)
Petition No. 181 of 2010
High Court, at Nairobi
September 30, 2011
The High Court has ruled that evidence sought to be relied upon by the State and obtained through the process of entrapment is inadmissible. In making this ruling, Justice Warsame observed that the criminal justice system would be compromised should the State be allowed to prosecute and punish someone for committing a crime which he only committed because he had been instigated into committing it by a State agent.
The facts of this petition are 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 LR. NO. 209/16441 by Mr. Mohamed Koriow Nur, who is the petitioner herein. Mr. Buchianga proceeded to arrange a meeting with Mr. Nur on 14th March, 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 Mr. Nur asked Mr. Buchianga to make a favourable 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 Mr. Nur 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 15th March, 2007 together with five other officers, Mr. Buchianga proceeded to an agreed venue with a view to arrest Mr. Nur if he bribed him as he had promised the previous day. Mr. Nur arrived at the scene and allegedly gave a brown A4 size 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 is against these criminal charges that Mr. Nur 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 is 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.
Mr. Macharia, the 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. This contention was based on the fact that at the time of engaging in the conversation, Mr. Nur 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 Mr. Nur 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 Mr. Nur where such intention did not exist before.
On the other hand, Mr. Mule, the State counsel, contented that Mr. Nur 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.
In determining the petition, the court first sought to address the legality and admissibility of evidence obtained through entrapment in a Criminal Case.
Justice Warsame observed that in law, entrapment is viewed as a type of lawlessness by law enforcement officers and is a tactic which is rationalized under the theory that the end justifies the employment of the illegal means. In essence, entrapment is a State created crime which is unacceptable and improper. The court clearly stated that judicial response to entrapment is based on the need to uphold the rule of law and therefore, it is not sufficient to do justice by obtaining a proper result where such a result acquired through irregular and improper means. The judge noted that essentially, entrapment is a complete defence and it does not matter that the evidence against the person is overwhelming or that his guilt was undisputed. He further stated that the court must refuse to convict an entrapped person not because his conduct falls outside the proscription of the statute but because even if his guilt is admitted, the methods and manner employed on behalf of the State to bring about the evidence cannot be countenanced.
The court re-emphasized that it is 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, the learned judge observed that it is 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.
Having scrutinized the recorded conversation between the petitioner and Mr. Buchianga in detail in order to understand and determine the issue in dispute, Justice Warsame concluded that Mr. Buchianga had actually lured Mr. Nur into committing an act of bribery for which the State was now seeking to prosecute him. The court further concluded that the actions and conduct of Mr. Buchianga went beyond those of an undercover agent because he instigated the offence and there was nothing to suggest that without his intervention and participation, the offence would have nevertheless been committed. For this reason, the learned judge ruled that the evidence so obtained through entrapment by the state agent was illegal and unlawful and thus inadmissible in a Criminal Case against the petitioner.