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Case Brief · caselaw.co.ke
MagistratePartially AllowedNot stated in the judgment (four counts of receiving a bribe under the Bribery Act No. 47 of 2016)· [2020] KEMC 12 (KLR)

Republic v Odaya (Anti-Corruption Case 22 of 2018) [2020] KEMC 12 (KLR)

Chief Magistrate's Court
23 October 2020
11,421 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~46 min to read original · ~4 min brief

The bottom line

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A Kenyan court convicted a brand protection agent of receiving a bribe for demanding money to drop counterfeiting charges, showing private-sector agents can be guilty of bribery.

What this practically means

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Executive summary

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The accused, a director of Extra Group Consultants engaged by Tecno Technologies as a brand protection agent, faced four counts of receiving a bribe contrary to section 6(1)(a) as read with section 18 of the Bribery Act No. 47 of 2016. The prosecution alleged that between 14th and 16th February 2017, following a seizure of suspected counterfeit phone accessories belonging to complainant Maston Mwenda Daniel, the accused requested and received money as an inducement to forbear charging the complainant with counterfeiting offences. The prosecution called ten witnesses, including EACC investigators who ran a trap with treated money of Kshs. 50,000/- and recorded the final meeting at Tawi Hotel. The accused's defence was that he was facilitating a lawful alternative dispute resolution at the complainant's request and never solicited cash. The court analysed sections 6 and 7 of the Bribery Act, holding that a 'relevant function' extends to business and agency activities and that lack of mandate to perform the function is no defence under section 6(3)(a). It found the accused had dishonestly arrogated to himself the Executive Director's compounding powers under section 34A of the Anti-Counterfeit Act, unilaterally assessed Kshs. 180,000/- payable, and diverted 83.3% to his principal's account - an improper performance of a relevant function. The accused was convicted on count III but acquitted on counts I and II for want of corroboration and on count IV because cash payment was not part of the agreed arrangement.

Key legal issues

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01

Whether requesting money to induce forbearance from charging constitutes receiving a bribe under section 6(1)(a) of the Bribery Act

Holding

Yes - the accused's request for Kshs. 180,000/- on 16/2/2017 infringed section 6(1)(a) as his intention was to cause improper performance of the relevant function under the ACA Act

Reasoning

The court analysed sections 6 and 7 of the Bribery Act, holding that 'relevant function' includes business and agency activities and 'improper performance' defeats expectations of good faith, impartiality and trust. The accused arrogated to himself the Executive Director's powers under section 34A of the Anti-Counterfeit Act, unilaterally assessed the amount payable, bypassed ACA, and diverted 83.3% of the money to his principal's private benefit - dishonest and fraudulent conduct constituting improper performance.

p. 21
02

Whether the accused's lack of mandate to charge or forbear charging under the Anti-Counterfeit Act was a defence

Holding

No - section 6(3)(a) of the Bribery Act renders immaterial whether the recipient is performing the function or activity

Reasoning

The defence argued the accused was neither an employee nor agent of ACA and could not forbear charging. The court held that section 6(3)(a) excludes culpability excuses based on lack of empowerment to execute the function. What matters is that the financial advantage was sought to cause improper performance of a relevant function. The mandate to charge belonged to ACA, and the accused knew the limits of his role but dishonestly assumed the Executive Director's powers.

p. 16
03

Whether counts I, II and IV were proved beyond reasonable doubt

Holding

No - the accused was acquitted on counts I, II and IV

Reasoning

Counts I and II rested solely on the complainant's uncorroborated oral account, and given the grave consequences of corruption convictions, the accused received the benefit of doubt. On count IV, the transcript showed the agreed Kshs. 180,000/- was to be deposited into two accounts; cash was never discussed, and the accused's recorded reaction ('nini hiyo?') showed he did not anticipate or knowingly receive the Kshs. 50,000/- treated money as part of the agreement.

p. 21

Legal principles established

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  • Lack of capacity or mandate to perform the function to which a bribe relates is no defence to a charge under section 6(1) of the Bribery Act
  • A relevant function under section 7 of the Bribery Act includes any activity connected with business or performed by or on behalf of a body of persons, so private interests are covered
  • Where a third party is involved as agent in a bribery transaction, the principal and the third party are each regarded as the agent of the other
  • Convictions for corruption offences should not rest on uncorroborated evidence given the grave consequences of such convictions
  • The Executive Director of the Anti-Counterfeit Authority alone may compound offences under section 34A of the Anti-Counterfeit Act, not brand owners or their agents

Court orders

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  1. 1.The accused is found guilty and convicted of count III under section 215 of the Criminal Procedure Code
  2. 2.The accused is acquitted under section 215 of the Criminal Procedure Code on counts I and II
  3. 3.The accused is acquitted on count IV
Jurisdiction invoked
Original criminal jurisdiction of the magistrates' court over offences under the Bribery Act No. 47 of 2016

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 Odaya (Anti-Corruption Case 22 of 2018) [2020] KEMC 12 (KLR)", Case Analysis (2020). Not stated in the judgment (four counts of receiving a bribe under the Bribery Act No. 47 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/12/eng@2020-10-23

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