Ndung’u v Ethics & Anti-Corruption Commission (EACC) & 3 others (Civil Appeal 333 of 2014) (20 December 2018) (Judgment) (with dissent - HM Okwengu, JA) [2018] KECA 47 (KLR)
The bottom line
#Kenya's Court of Appeal blocked the prosecution of former CBK Governor Njuguna Ndung'u, ruling the corruption charges lacked any legal or factual foundation.
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 High Court erred in dismissing the appellant's petition seeking declaratory orders that the intended prosecution disclosed no criminal offence and violated his constitutional rights
- 2.Whether the DPP's discretion to prosecute was properly exercised in accordance with Article 157(11) of the Constitution, or was abused and oppressive
- 3.Whether the three pillars of the intended prosecution (failure to communicate the termination to the Review Board; wilfully ignoring legal advice to appeal; conferring a benefit on Horsebridge) had any legal or factual foundation
- 4.Whether compliance with the decision of the Public Procurement Administrative Review Board could constitute a corruption offence
- 5.Whether the appellant's rights under Articles 27, 28 and 29 of the Constitution were violated by the intended prosecution and media publicity
Key legal issues
#Scope of judicial review of the DPP's prosecutorial discretion
The DPP's discretion under Article 157 must be exercised having regard to public interest, the interests of the administration of justice and the need to prevent abuse of legal process; courts may interfere where the discretion is abused or violates fundamental rights, applying the high threshold in Diamond Hasham Lalji.
The Court restated Article 157(6), (10) and (11), section 4 of the ODPP Act and the National Prosecution Policy, including the evidential test of a realistic prospect of conviction. Relying on Diamond's case, it held the burden lies on the person alleging unconstitutional exercise of prosecutorial power, shifting to the DPP on proof of a breach. The Court found the High Court failed to make any objective finding on the legality of the charges, wrongly deferring everything to the trial court.
Whether failure to communicate the tender termination to the Review Board constituted an offence
It was prima facie unreasonable for EACC to attribute the failure to inform the Review Board of the termination solely to the Governor, where CBK's Tender Committee, Legal Department and Procuring Unit bore the statutory duty of communication, and where the Review Board had found the termination minutes manufactured.
CBK had dedicated statutory organs under the 2005 Act responsible for compliance and communication. The Review Board, a quasi-judicial body, had found the minutes of the 26th September 2012 meeting were manufactured to oust its jurisdiction, making it speculative that earlier disclosure would have changed the outcome of Review No. 51 of 2012. The appellant's own letter asking why the minutes were withheld underscored institutional rather than personal responsibility.
Whether ignoring legal advice to appeal the Review Board's decision was criminal
The decision not to appeal was a discretionary administrative decision based partly on policy considerations, taken by a chief executive answerable to the Board of Directors; there was no statutory or legal duty to appeal, and the reasons given were rational and in the Bank's best interest.
The appellant's letter of 5th March 2013 disclosed careful analysis of the Review Board decisions, the cost of litigation, the Bank's image, the fact that the lowest bidder was awarded and that losing bidders had not appealed. The Board of Directors raised no contrary view. In the absence of a legal duty to appeal, criminalising the exercise of this discretion had no legal or factual foundation.
Whether directing compliance with the Review Board's decision conferred an unlawful benefit
The benefit enjoyed by Horsebridge was conferred by the public procurement process, which the Review Board affirmed as lawful; the award was validated by two Review Board decisions and later by an order of mandamus, so compliance with the ruling could not constitute a corruption offence.
The Review Board made a specific finding that the entire tender process was carried out in accordance with the 2005 Act and awarded the tender to the lowest evaluated bidder. The High Court in JR Misc. Application No. 87 of 2014 issued mandamus compelling execution, and EACC's appeal against that order (Civil Appeal No. 69 of 2015) was dismissed. The appellant was thus merely implementing legally binding decisions.
Legal principles established
#- The standard of review of the DPP's discretion to prosecute is high and courts will interfere sparingly; the burden of proving an unconstitutional exercise of prosecutorial power rests on the person alleging it, shifting to the DPP once sufficient evidence of a breach is adduced.
- Before leaving matters to the trial court, a court seized of a petition to halt a prosecution must scrutinise the charges and relevant documents and reach a conclusive and objective decision on whether the charges have a legal or factual foundation and a realistic prospect of conviction.
- A decision by a chief executive of a public body, made on rational policy grounds and subject to board oversight, not to appeal an adverse tribunal decision, absent a statutory duty to appeal, cannot found an abuse-of-office charge.
Court orders
#- 1.The appeal is allowed with costs both in the appeal and in the High Court against the 1st and 2nd respondents, jointly and severally
- 2.The judgment of the High Court dismissing the petition with costs is set aside and substituted with a judgment allowing the petition as against the 1st and 2nd respondents; the petition is dismissed against the 3rd and 4th respondents
- 3.Declaratory orders sought in paragraph 19 of the Petition are granted against the 1st and 2nd respondents
- 4.A judicial review order of prohibition is granted prohibiting the 1st and 2nd respondents from charging and prosecuting the appellant on the charges framed
- 5.The appeal against the 3rd and 4th respondents is dismissed with no order as to costs
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the leading judgment allowing the appeal. Held that the charges against the former CBK Governor had no legal or factual foundation and no realistic prospect of conviction; that attributing the failure to communicate the termination of the tender solely to the Governor was prima facie unreasonable; that the decision not to appeal the Review Board's decision was a rational discretionary administrative decision; and that the benefit to Horsebridge was conferred by a procurement process validated by the Review Board and the High Court. Would allow the appeal and prohibit the prosecution.
For reasons stated in paras. 20, 21 and 22 above, I am satisfied that the charges had no legal or factual foundation and thus there was no realistic prospect of conviction.p. 14
Wrote the judgment
Dissented. Agreed with the High Court's cautious approach to the DPP's constitutional discretion under Article 157; held that the procurement of the ISMS tender raised questions of public interest; that as Chief Executive and accounting officer the appellant was responsible for compliance with the procurement law; that the appellant, in moving to court before charges were brought, jumped the gun; and would have dismissed the appeal entirely with costs to EACC and the DPP.
I come to the conclusion that the learned judge of the High Court came to the right decision in finding that the appellant's petition had no merit. Accordingly, I find no substance in this appeal and would have dismissed it in its entirety, and awarded costs of the appeal to the EACC and the DPP.p. 23
- On appeal from
- High Court of Kenya, Constitutional and Human Rights Division
- Not stated in the judgment (Constitutional petition; related JR Misc. Civil Application No. 87 of 2014)
- Jurisdiction invoked
- Not expressly stated in the judgment; appeal from the High Court to the Court of Appeal under Article 164 of the Constitution
Relief refused
#Relief against the 3rd and 4th respondents (Inspector General of Police and Attorney General)
They did not appear at the hearing and had no role in the prosecution; they were wrongly joined in the petition
Costs
Costs of the appeal and in the High Court awarded to the appellant against the 1st and 2nd respondents jointly and severally; appeal against the 3rd and 4th respondents dismissed with no order as to costs.
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.
(i) The appeal is allowed with costs both in the appeal and in the High court against the 1st and 2nd respondents, jointly and severally.
(iv) A judicial review order of prohibition is granted prohibiting the 1st and 2nd respondents from charging and prosecuting the appellant on the charges framed.
I am satisfied that the charges had no legal or factual foundation and thus there was no realistic prospect of conviction.
The jurisprudence show that the standard of review of the discretion of DPP to prosecute or not to prosecute is high and courts will interfere with the exercise of discretion sparingly.
I am further satisfied that intended prosecution is oppressive and violates the appellant's constitutional rights as pleaded particularly the right to a fair administrative decision that is lawful, reasonable and procedurally fair.
In considering the evidential test, the court should only be satisfied that the evidence collected by the investigative agency upon which the DPP's decision is made establishes a prima facie case necessitating prosecution.
Issues in the judgment
#The judgment records that 'J. Mohammed, JA agrees' with the majority judgment, but the delivery block at the end of the judgment lists only two judges (Githinji JA and Okwengu JA) as signing; J. Mohammed JA does not appear in the signature block.
The judgment states that 'Article 23 (1) of the Constitution establishes the Central Bank of Kenya', whereas elsewhere in the same judgment CBK's constitutional establishment is tied to Article 231; the Article 23 reference appears internally inconsistent with the Constitution.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ongera v Director of Public Prosecutions & another (Civil Appeal 282 of 2019) [2025] KECA 1980 (KLR)[2025] KECA 1980 (KLR)21 Nov 2025
Cite this brief
#Cite this brief
Caselaw, "Ndung’u v Ethics & Anti-Corruption Commission (EACC) & 3 others (Civil Appeal 333 of 2014) (20 December 2018) (Judgment) (with dissent - HM Okwengu, JA) [2018] KECA 47 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/47/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.