Ethics and Anti-Corruption Commission v James Makura M’abira [2020] KECA 500 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that EACC can prosecute corruption cases without the Attorney General's written consent, and struck out an unsupported damages award.
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 learned Judge erred in holding that under Section 35 of ACECA it was mandatory to obtain the written consent of the AG before laying charges against the respondent
- 2.Whether the learned Judge exercised his discretion wrongly in awarding the respondent general damages of Ksh. 100,000
- 3.Whether the procedural misstep of not forwarding the investigation report to the AG before charging amounted to a violation of the respondent's right to equal protection of the law
- 4.Whether the Court should depart from its decision in Nicholas Muriuki Kangangi v AG on the ground that it was made per incuriam
Key legal issues
#Whether written consent of the AG/DPP is required before prosecution under ACECA
Section 35 of ACECA does not import the written-consent requirement of the repealed Section 12 of the PCA; it merely requires a report of investigations to the AG/DPP for accountability purposes
The Court compared the repealed Section 12 of the PCA, which expressly required written consent, with Sections 35, 36 and 37 of ACECA, which are silent on consent. Had Parliament intended a written-consent requirement it would have said so expressly when repealing the PCA. The provisions on reports and recommendations serve accountability, ensuring blame can be located between EACC and the DPP. Further, the DPP now holds constitutional prosecutorial power under Article 157 and cannot consent to himself.
Whether the Kangangi decision was made per incuriam and should be departed from
The Kangangi decision was not per incuriam and remains good law, though statements suggesting charges are null and void absent written consent were obiter; the ratio was that KACC must submit the investigation report to the AG
The Court found no equivocal statement in Kangangi importing the written-consent requirement of the repealed PCA into ACECA. The ratio of Kangangi was that the procedure of reporting investigations to the AG was mandatory and must be followed, and that failure to follow the procedure did not bar re-charging upon compliance. The invitation to depart from the decision was declined.
Whether the failure to submit the investigation report before charging violated the respondent's right to equal treatment before the law
No violation was established; the respondent adduced no evidence of differential treatment, and the prosecution continued after the report was submitted and consent given
The AG/DPP did not decline to charge the respondent; the report was subsequently submitted, charges withdrawn, consent given, and the respondent charged afresh with the same offences. There were no allegations of bias, malice or irrelevance, and no evidence demonstrating unequal treatment or resulting injury. The learned Judge made no findings of unfair treatment.
Whether the award of general damages of Ksh. 100,000 was justified
The award was erroneous as it was unsupported by evidence and made without hearing parties on quantum
The learned Judge acknowledged that no party addressed him on quantum, indicating the award was arbitrarily made. No evidence demonstrated differential or unequal treatment or the loss suffered. The award was premised on the erroneous interpretation of Section 35 requiring written consent.
Legal principles established
#- Section 35 of ACECA, read with Sections 36 and 37, does not require the written consent of the AG/DPP before institution of prosecution; the requirement to present investigation reports and recommendations is for public accountability
- A procedural error in pre-trial criminal proceedings cannot by itself guarantee acquittal, discharge, or nullification of a charge predicated on a valid complaint
- An enlarged (five-judge) bench is warranted where the Court is asked to depart from its own previous decision or to resolve conflicting opinions
- Damages for breach of constitutional rights must be supported by evidence of the violation and of the loss or injury suffered, and parties should be heard on quantum
Court orders
#- 1.The appeal is allowed
- 2.The cross-appeal is dismissed
- 3.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyeri
- Const. Pet. No. 3 of 2012
- Jurisdiction invoked
- First appellate jurisdiction under Article 164 of the Constitution (appeal by way of rehearing); appeal from a constitutional petition in the High Court
Relief refused
#Respondent's cross-appeal prayer to quash the criminal proceedings in Embu Chief Magistrate's Court
A procedural misstep at pre-trial cannot vitiate a charge predicated on a valid complaint; the merits of the charges were never before the High Court
Respondent's prayer for enhancement of damages beyond Ksh. 100,000
The award of general damages was not supported by any evidence of differential treatment or loss
Appellant's invitation to depart from the Kangangi decision
The Kangangi decision was not made per incuriam and remains good law
Costs
We make no orders as to costs bearing in mind that the respondent was finally acquitted of the said charges.
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.
The upshot of the foregoing is that we find merit in the appeal, which we allow, and dismiss the cross-appeal. We make no orders as to costs bearing in mind that the respondent was finally acquitted of the said charges.
That the decision in Kangangi's case as far as Section 35 of ACECA was concerned was not made per incurriam. Accordingly, it is still good law.
we therefore, agree with the submissions by the appellant that the requirement under the said sections of ACECA did not require 'written consent' because in any case, the AG was the prosecutor and did not require to give himself consent; that the requirement to present the investigative reports and to make recommendations was meant for public accountability.
a procedural misstep during pretrial in criminal cases has no bearing on the culpability of the suspect and cannot be taken to vitiate a charge which is predicated on a valid or lawful complaint before the case is tried and concluded in court.
We find that the award of general damages of Ksh 100,000 was not supported by any evidence to demonstrate that the respondent was subjected to differential or unequal treatment before the law and how he suffered damages.
Issues in the judgment
#The judgment inconsistently renders the Kangangi case name, including 'Kangangi case', 'Kangangi's case' and 'Muriuki Kangangi'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission v James Makura M’abira [2020] KECA 500 (KLR)", Case Analysis (2020). Civil Appeal No. 27 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/500/eng@2020-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.