Republic v Odaya (Anti-Corruption Case 22 of 2018) [2020] KEMC 12 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether requesting money to induce forbearance from charging constitutes receiving a bribe under section 6(1)(a) of the Bribery Act
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
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.
Whether the accused's lack of mandate to charge or forbear charging under the Anti-Counterfeit Act was a defence
No - section 6(3)(a) of the Bribery Act renders immaterial whether the recipient is performing the function or activity
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.
Whether counts I, II and IV were proved beyond reasonable doubt
No - the accused was acquitted on counts I, II and IV
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.
Legal principles established
#- 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
#- 1.The accused is found guilty and convicted of count III under section 215 of the Criminal Procedure Code
- 2.The accused is acquitted under section 215 of the Criminal Procedure Code on counts I and II
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.