[2025] KEHC 2464 (KLR)

Ethics & Anti-Corruption Commission v Maitai & 13 others (Anti-Corruption and Economic Crimes Case 8 of 2020) [2025] KEHC 2464 (KLR) (Anti-Corruption and Economic Crimes) (6 February 2025) (Ruling)

Neutral citation: [2025] KEHC 2464 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Case 8 of 2020

LM Njuguna, J

February 6, 2025

Between

Ethics & Anti-Corruption Commission

Plaintiff

and

Charles Nderitu Maitai

1st Defendant

Charles Tanui

2nd Defendant

Charles Ouko

3rd Defendant

Fredrick Ogenga

4th Defendant

Emilio Mwai Nderitu

5th Defendant

Samson Odoyo Mikwa

6th Defendant

Nicholas Gitobu

7th Defendant

Philip Kimelu

8th Defendant

Bramwel Wanyalika

9th Defendant

Francis Githaiga Muraya

10th Defendant

Peter Machua

11th Defendant

Jane Nakodony

12th Defendant

Allied Inspection & Testing Inc

13th Defendant

Aero Dispenser Valves Limited

14th Defendant

Ruling

1. This ruling is in respect of the 9th Defendant’s application dated the 9th day of September 2024, supported by the affidavit sworn by the 9th defendant on even date. The same is brought under Article 23, 25, 47, 48, 50 and 159 of the Constitution, Order 2 Rule 15(1), Order 40 and 51 of the Civil Procedure Rules and it seeks the following orders:-a.“This Honourable Court be pleased to strike out the suit against the 9th Defendant, Bramwel Wanyalika in its entirety for being an abuse of the court process.”b.That costs of the application be provided for.

2. The application is premised on the grounds set out on the body of the same and on the supporting affidavit.

3. In response to the application the Plaintiff/Respondent filed grounds of opposition dated the 7th October 2024.

4. It is the Applicant’s case that he was an accused person in Milimani Chief Magistrate’s Court Anti-Corruption Case No. 50 of 2018 wherein the present suit originates from, and in which, he was charged with the offence of conspiracy to defraud contrary to Section 317 of the Penal Code. That he underwent a litigious trial before the criminal court and he was acquitted vide the court’s ruling delivered on the 7th day of June 2024.

5. He contends that his acquittal meant that the prosecution was unable to prove its case against him, and that the prosecution was unable to discharge its burden of proof as required in criminal cases. That this civil suit and the criminal case are intricately intertwined and any decision on the criminal case would have a direct effect on this suit, and it is therefore in the public interest that the suit against him is struck out as continuance of a civil suit where an acquittal in a criminal matter has been obtained by a party, is akin to using a double-edged sword and it is prejudicial to such a party and smacks of harassment.

6. The Applicant relied on Section 48 of the Anti-Corruption and Economic Crimes Act regarding the punishment in the event of a conviction and averred that it defeats justice to have civil suit which would lead to same punishment/penalty where an acquittal has been obtained by the criminal court.

7. The 9th Defendant’s further contention was that the suit against him maliciously elevates unproved facts and assertions by the Plaintiff/Respondent as it is relying on the same documents and witnesses in Milimani Chief Magistrate’s Court Anti-Corruption Case No. 50 of 2018. Further, that having not been found guilty of “Corruption” or “Economic crime” by a court of law, any such assertion and the resultant liability either by himself or with others is vexatious at the best, and an attempt to collectively attribute baseless monetary liability. As such, the suit is in contravention of Section 6 of the Civil Procedure Act; it discloses no cause of action against him and that it compromises his right to a fair trial as it amounts to double jeopardy.

8. The Plaintiff/Respondent has opposed the application among other grounds that:- the same is bad in law, misconceived, vexatious and an abuse of the court process; the civil court is not bound by the findings of the criminal court; the civil forfeiture recovery proceedings herein are non-conviction-based and are independent of any conviction or absence thereof; the standard of proof required herein is on a balance of probability which is different from the standard of proof required in criminal cases of beyond reasonable doubt.

9. The Respondent has relied on the provisions of Section 51, 52 and 53 of the Anti-Corruption and Economic Crimes Act (herein referred to as ACECA) to the effect that compensation recovery proceedings can be instituted independent of a conviction and on Section 193A of the Criminal Procedure Code which provides for concurrent existence of criminal and civil proceedings in recognition of the two processes as being separate, distinct and independent.

10. The application was canvassed by way of written submissions which both parties duly filed.

Submissions 11. Learned Counsel for the 9th Defendant/Applicant distilled two issues for determination by this Honourable court as follows: -i.Whether civil forfeiture proceedings must stop upon finding of no case to answer in criminal proceedings that run concurrently as per Section 11 (j) of ACECA.ii.Whether the proceedings herein amount to concurrent proceedings.

12. On the 1st issue, it was submitted that civil proceedings on forfeiture are based on “belief” that an individual acquired certain assets through corruption or corruption related activities and upon the court considering the facts and evidence and making a finding that such facts and evidence does not exist, the belief is dispelled and such is the case for the Applicant herein. Further that, the court having made such a finding, it cannot have a suit anchored on such a foundation continue to stand.

13. That as a consequence, proceedings flowing from the same premises whether running jointly or concurrently should therefore come to a halt, as is the case, with the Applicant herein. The Applicant submitted that though Section 193A of the Criminal Procedure Act contemplates that proceedings in criminal and civil cases can run concurrently, the said section does not contemplate that the proceedings relying on the same facts will arrive at different conclusion of facts and consequences of the facts. He based his contention on the argument that, the court relying on the same facts leading to similar cause of action must at all costs avoid a situation of embarrassment in arriving at contradictory conclusion.

14. On whether the proceedings herein amount to concurrent proceedings, the Applicant submitted that the Chief Magistrate’s Court Anti-Corruption case having been dismissed against him with no subsisting appeal, it therefore follows that there are no concurrent proceedings. That the facts relied on in this case being similar in the already concluded criminal case and the facts having been disapproved contrary to the initial belief during the institution of this suit, must therefore also seal the fate of the facts in the case herein as demands of justice under the principle against subjection to double jeopardy, terming this case as further proceedings as opposed to concurrent proceedings.

15. On its part, the Plaintiff/Respondent distilled the following three issues: -a.Whether the civil forfeiture proceedings herein are non-conviction based.b.Whether civil forfeiture and criminal proceedings can run concurrently.c.Whether acquittal in criminal proceedings extinguishes civil proceedings based on the same facts.

16. On the 1st issue, the Respondent submitted that the civil recovery proceedings herein are non-conviction based and are independent of any conviction, citing the case of Ethics & Anti-Corruption Commission Vs Evans Kidero & 13 others (2021) eKLR. On the 2nd issue, it was submitted that civil forfeiture and criminal proceedings can run concurrently and relied on Section 193A of the Criminal Procedure Code and on the case of Ethics and Anti-Corruption Commission Vs Judith Marilyn Okungu & Dakane Abdullahi Ali (Civil Appeal 183 of 2014) [2017] KECA 413 (KLR) (Civ) (21 July 2017) and that of Ethics & Anti-Corruption Commission Vs Kidero (supra). That the Applicant has not demonstrated real danger of prejudice that he would suffer if the application is not allowed.

17. On the 3rd issue, it was submitted that the acquittal of the Applicant in the criminal proceedings does not extinguish the civil proceedings herein basing its argument on the standard of proof in criminal and civil cases, and that civil proceedings are independent of criminal proceedings and are non-conviction based. Reliance was placed on the case of ACEC Suit No. E027 of 2023 EACC Vs Mzalendo Kibunja & 2 Others and that of Ethics & Anti-Corruption Commission Vs Evans Kidero (supra).

Issues for determination 18. From the application and grounds thereof, grounds of opposition and the rival submissions, the following are the issues for determination: -a.Whether acquittal in criminal proceedings extinguishes civil proceedings based on the same facts.b.Whether civil forfeiture and criminal proceedings can run concurrently

Analysis and Determination 19. The 9th Defendant has moved this court with an application to have the Plaintiff’s suit against him struck out. The jurisdiction to strike out a suit is provided for in Order 1 Rule 10 of the Civil Procedure Rules.

20. Under the said provision, the court may either on its own motion or on application of any party, order the striking out of a party which is improperly joined to the proceedings. However, before deciding to strike out a suit or not, the court must consider all the facts of the case to determine whether a cause of action has been disclosed against such a party. The court must, however, be careful not to delve into the merits of the case so as not to prejudice a fair trial of the suit. See the case of DT Dobie and Company (K) Limited vs Joseph Mbaria Muchina & Anor (1982) KLR.

21. The Court of Appeal in Civil Appeal No. 35 of 2000 Yaya Towers Limited vs Trade Bank Limited (in liquidation) (2000) eKLR had this to say about striking out of a party from a suit.“Unless the defendant can demonstrate shortly and conclusively that the Plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial......”

22. Without delving into the merits of the case, the Plaintiff’s claim against the 9th Defendant is that at all times material to the suit, he was the Chief Manager Electrical, at Kenya Pipeline Company when he and the other defendants perpetrated a fraudulent scheme to acquire public funds through direct procurement of Hydrant Pit Valves complete with isolation valves and two years’ operating spares by KPC, at a grossly exaggerated contract price of US 86,409,491. 89 being 77% more than the price of acquiring the said items from the original parts manufacturer.

23. That the evidence gathered by the plaintiff established that the 1st – 12th Defendants being employees of KPC working in consonance with the 13th – 14th defendants, as private suppliers, devised and executed a fraudulent scheme whereby an award for the procurement of the said equipment was made to the 14th Defendant at a grossly inflated value to the detriment of KPC, a public body resulting to loss of public funds. The Plaintiff has set out the particulars of fraud and breach of trust against the 1st – 12th Defendants, and it has sought for remedies against them jointly and severally.

24. From the pleadings, there is no doubt that the 9th Defendant held a senior position at the KPC at the material time when the alleged fraud was perpetrated. The Plaintiff pleaded particulars of fraud and breach of trust against him.

25. The 9th Defendant contends that by dint of his acquittal in the criminal trial, he is free of blame and therefore, the proceedings herein should be terminated.

26. Section 193A of the Criminal Procedure Code provides for concurrent existence of criminal and civil proceedings as the two processes are different.

27. Further, the Anti-Corruption and Economic Crimes Act, recognizes both criminal and civil proceedings in Section 50, 51 and 54. In Ethics and Anti-Corruption Commission Vs Judith Marilyn Okungu & Dakane Abdullahi Ali (Civil Appeal 183 of 2014) (2017) KECA 413 (KLR) the Court of Appeal held:-“....... the matters forming the basis of the litigation traversed both the civil and criminal terrain. There is no law stating that the two types of proceedings cannot be carried out concurrently. It is spelt out expressly in Section 193A of the Criminal Procedure Code that existence of one should not lead to a stay of the other.”

28. In ACEC Suit No. E027 of 2023 (EACC v Mzalendo Kibunja & 2 Others), the Court held as follows: -“In Anti-Corruption litigation by EACC, the Criminal process and the civil process are parallel processes that can be undertaken simultaneously or consequentially. One of the subtle distinctions of the two processes is the standard of proof while in criminal prosecution the standard of proof is that of beyond reasonable doubt, the standard of proof in civil recovery proceedings, is that of a balance of probability.”

29. From the aforegoing, it is my finding that even where a prosecution results in an acquittal, this does not absolve the person acquitted of civil liability. The acquittal does not render this suit one that does not disclose a reasonable cause of action, and it is only fair and just that the Plaintiff be given an opportunity to proof its case against the 9th Defendant at full trial.

30. In the end, I find that the 9th Defendant’s application dated the 9th September 2024 has no merit and it is hereby dismissed.

31. Costs shall be in the cause.

It is so ordered.

SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 6TH DAY OF FEBRUARY 2025. ...........................L. M. NJUGUNAJUDGEIn the presence of:-Mr. Kisaka for the PlaintiffMr. Waudo for the 2nd DefendantMr. Osiemo for the 4th and 6th DefendantsMr. Ochieng holding brief for Miss Misiati appearing with Mr. Okubasu for the 14th DefendantMiss Nira holding brief for Mr. Ogutu for the 3rd and 5th DefendantsMr. Alaso for the 7th DefendantMiss Wandebu for the 1st defendantMiss Machuki for the 11th defendantMr. Ondieki and Prof Migai Aketch for the 12th defendantMr. Odera for the 9th defendant and for 14th defendant alongside Dr. Okubasu for the 14th DefendantMr. Oonge for the 8th DefendantNo appearance for the 10th and 13th defendantsCourt Assistant - Adan