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MagistrateStruck OutNot stated in the judgment· [2017] KEMC 121 (KLR)

Republic v Njeru (Anti-Corruption Case 15 of 2017) (Anti-Corruption and Economic Crimes) [2017] KEMC 121 (KLR)

Chief Magistrate's Court (Anti-Corruption)
24 August 2017
LML. N. Mugambi
280 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan anti-corruption court threw out bribery charges because prosecutors used a repealed law instead of the new Bribery Act.

What this practically means

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Executive summary

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This is a first-instance ruling by Chief Magistrate L. N. Mugambi declining to accept charges against an accused person at plea stage. The charges were framed under section 39(3)(a) as read with section 48(1) of the Anti-Corruption and Economic Crimes Act (ACECA) No. 3 of 2003, and the alleged offence was said to have been committed on 5 November 2016. The court observed that the Bribery Act No. 47 of 2016 came into effect on 13 January 2017 and repealed section 39 of ACECA by virtue of section 23 of the new Act. The decisive provision was section 27(2) of the Bribery Act, which provides that any investigation, prosecution or court proceedings instituted before commencement of the new Act, based on an offence under it, shall be treated or continued as if instituted under the new Act. The court held that where an investigation commenced under the old Act but was not complete when section 39 of ACECA was repealed, the new Act takes over, and any charges or report of that investigation can only be expressed under the Bribery Act and not the repealed ACECA provision, as the prosecution had attempted to do. Acting suo moto, the court declined to accept the charges as framed for non-compliance with the law and discharged the accused under section 89(5) of the Criminal Procedure Code. The ruling was delivered on 24 August 2017.

Key legal issues

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01

Effect of repeal of section 39 of ACECA by the Bribery Act on pending investigations and prosecutions

Holding

Charges based on an investigation begun under the repealed provision must be brought under the Bribery Act, not under the repealed ACECA provision

Reasoning

The court noted that section 39 of ACECA was repealed by section 23 of the Bribery Act No. 47 of 2016, which took effect from 13 January 2017. Section 27(2) of the Bribery Act provides that pending investigations or proceedings instituted before commencement shall be treated or continued as if instituted under the new Act. Accordingly, charges expressed under the old provision contravene the law and cannot be accepted.

p. 1

Legal principles established

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  • Where an investigation commenced under ACECA was not completed before section 39 was repealed by the Bribery Act, any resulting charges can only be brought under the new Act

Court orders

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  1. 1.Declined to accept the charges as framed, suo moto, for non-compliance with the law
  2. 2.Discharged the accused under section 89(5) of the Criminal Procedure Code
Jurisdiction invoked
Criminal prosecution under section 39(3)(a) as read with section 48(1) of the Anti-Corruption and Economic Crimes Act No. 3 of 2003; discharge power under section 89(5) of the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Njeru (Anti-Corruption Case 15 of 2017)  (Anti-Corruption and Economic Crimes) [2017] KEMC 121 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/121/eng@2017-08-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.