Charity Kaluki Ngilu v Ethics & Anti-Corruption Commission & 4 others [2017] KECA 377 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that the EACC cannot investigate or recommend prosecutions without its commissioners, and that presidential directives can compromise its independence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the EACC's secretariat could undertake investigations and make recommendations to prosecute to the DPP in the absence of commissioners
- 2.Whether the President's statement directing the EACC to conclude investigations and forward its report to the DPP within 60 days was unlawful interference with the mandate of an independent commission
- 3.Whether the High Court's conclusions on these matters should be affirmed on the EACC's cross-appeal
Key legal issues
#Whether the EACC secretariat could investigate and recommend prosecution to the DPP in the absence of commissioners
No - the court affirmed the High Court's conclusion on this point through its parallel decision in Civil Appeal No. 102 of 2016
The court explained that its detailed determination was made in the companion appeal heard back-to-back, where the same submissions were deployed. It concluded there that the secretariat could not validly conduct investigations and make recommendations to prosecute in the absence of commissioners, and that the DPP's decision rested on the impugned report. That conclusion disposed of the EACC's cross-appeal, which challenged precisely that finding.
Whether the President's 60-day directive amounted to unconstitutional interference with the EACC
Yes - the directive was inconsistent with the constitutional independence of the EACC
The EACC's cross-appeal attacked the High Court's finding that the President's State of the Nation directive to complete investigations within 60 days was unlawful interference. Applying its reasoning in the companion appeal, the court held the directive inconsistent with the EACC's constitutional independence under Articles 79 and 249(2), and that the DPP's prosecution decision was founded on the tainted report.
Whether the cross-appeal should be allowed notwithstanding the dismissal of the principal appeal
No - the cross-appeal was dismissed because the court's decision in the companion appeal resolved the same issues adversely to the EACC
The principal appeal had been withdrawn by consent on 6th March 2017, leaving only the EACC's cross-appeal. The court noted that the EACC's submissions in support of the cross-appeal and the grounds for affirming were identical to those it made in Civil Appeal No. 102 of 2016, in which the court allowed the appeal, set aside the High Court orders and allowed the petition. The cross-appeal therefore necessarily failed.
Legal principles established
#- The Court of Appeal's decision in Civil Appeal No. 102 of 2016, adopted here, that the EACC secretariat cannot validly conduct investigations and make recommendations to prosecute to the DPP in the absence of commissioners, binds all subordinate courts
- Directives by the President to the EACC as to the timing and completion of investigations are inconsistent with the constitutional independence of the EACC
Court orders
#- 1.The cross-appeal filed by the Ethics & Anti-Corruption Commission is dismissed
- 2.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Constitutional & Human Rights Division, Nairobi
- Const. Pet. No. 230 of 2015
- Jurisdiction invoked
- First appeal against the judgment of the High Court in a constitutional petition (Article 165 High Court jurisdiction; appeal as of right to the Court of Appeal); cross-appeal by the 1st respondent under the Court of Appeal Rules
- Consolidated with
- Const. Pet. Nos. 305, 324 and 203 of 2015 (consolidated in the High Court); appeal heard back-to-back with Civil Appeal No. 102 of 2016, Eng. Michael Sistu Mwaura Kamau v. Ethics & Anti-Corruption Commission & 4 Others
Relief refused
#EACC's cross-appeal challenging the High Court's findings on the secretariat's inability to investigate and recommend prosecution absent commissioners, and on the President's 60-day directive
The court's conclusions in Civil Appeal No. 102 of 2016, which allowed that appeal and set aside the High Court orders, left no basis for allowing the cross-appeal
Costs
Each party to bear its own costs (no order as to costs in the cross-appeal)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We have also allowed Civil Appeal No. 102 of 2016, set aside the orders of the High Court dated 9th March 2016 dismissing the petition, and substituted therefor an order allowing the petition. In these circumstances, we have no choice but to dismiss the cross-appeal in this appeal.
As in Civil Appeal No. 102 of 2016, because of the public interest issues raised in the cross-appeal, we direct each party to bear its own costs. It is so ordered.
We have concluded, as regards that other appeal, that the secretariat of the EACC could not validly conduct investigations and make recommendations to prosecute to the DPP in the absence of commissioners
that the President's directive to the EACC was inconsistent with the constitutional independence of the EACC and that the DPP based his decision to prosecute the appellants on the impugned report and recommendations of the EACC.
Issues in the judgment
#The coram heading spells the appellant's name without diacritics in some places and the second respondent is printed as 'THE DIRECTOR OF PUBLIC PRODRCUTIONS', an apparent typographical error in the judgment copy
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charity Kaluki Ngilu v Ethics & Anti-Corruption Commission & 4 others [2017] KECA 377 (KLR)", Case Analysis (2017). Civil Appeal No. 90 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/377/eng@2017-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.