[2022] KEHC 11946 (KLR)

Karumi v Director of Public Prosecution & another (Anti-Corruption and Economic Crime Petition E008 of 2021) [2022] KEHC 11946 (KLR) (Anti-Corruption and Economic Crimes) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11946 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crime Petition E008 of 2021

EN Maina, J

May 19, 2022

Between

Elias Maina Karumi

Petitioner

and

Director of Public Prosecution

1st Respondent

Ethics & Anti-Corruption Commission

2nd Respondent

Judgment

1. On or about April 6, 2016 the petitioner together with five others were arrested and arraigned in Nairobi Chief Magistrate’s Anti-Corruption Court and subsequently charged in with several corruption related offences in Anti-Corruption Case No 22 of 2015. The exact charge facing the petitioner was abuse of office contrary to section 46 as read with section 48 of the Anti-Corruption and Economic Crimes Act. The particulars of the offence were that;“On February 18, 2014 at the Kenya Pipeline company offices in Industrial area within Nairobi City County, being the chief manager –technical of the Kenya Pipeline Company used your office to improperly confer a benefit to Redline Limited, by authorizing payment of Euros 8, 695,65 in respect of tender reference SU/QT/3097F/13 for supply, installation and commissioning of Line 2 Station Autotransformer (3 No) without the installation, testing and commissioning of the auto-transformers.”

2. In the meantime, the 2nd respondent filed civil recovery proceedings in HCACEC Civil Suit No 2 of 2017 which suit was subsequently compromised by an agreement between Redline Limited and its Directors one Ngatia Ndung’u and Judy Wamaitha Thuo to refund the sums of money the subject matter of the suit and the criminal prosecution. According to the documents availed by the petitioner the suit was compromised on March 2, 2018 following a settlement between Redline Limited and the 1st respondent.

3. On October 24, 2017 the criminal charges against the petitioner and all his co-accused persons were withdrawn under section 87 (a) of the Criminal Procedure Code upon the application of the 1st respondent for reason that the commission was not properly constituted when it carried out the investigations that gave rise to the charges.

4. Subsequently on or about July 16, 2020 the petitioner and only two of his co-accused were arrested and arraigned in CMACC Case No 17 of 2020 on what he claims were essentially the same charges as those in the CMACC Case No 22 of 2015 which had been withdrawn. Redline Limited and its two directors were excluded from the charges.

5. Being aggrieved with the 1st respondent’s decision to charge him while not charging Redline Limited ant its two directors who like the company were also accused persons in ACC No 22 of 2015 the petitioner filed this petition seeking orders that:-“i. A declaration that the charges and criminal proceedings in Nairobi Anti-Corruption Chief Magistrate’s Court Case No 17 of 2020 against the petitioner violate his right to equality, protection and equal benefit of the law and freedom from discrimination and the right to fair administrative action and are to that extent null and void.ii.A declaration that the charges and criminal proceedings in Nairobi Anti-Corruption Chief Magistrate’s Court Case No 17 of 2020 against the petitioners is not a bona fide exercise of the 1st respondent’s powers under article 157 of the Constitution and amounts to an abuse of legal process.iii.An order of certiorari to remove to this court for purposes of quashing the proceedings and charges contained I the charge sheet in Nairobi Anti-Corruption Chief Magistrate’s Court Case No 17 of 2020 or any other related charges.iv.An order of prohibition directed at the respondents prohibiting them from preferring any further criminal charges against the petitioner arising from the civil claim settled in ACECA Civil Suit No 2 of 2017 or any other mater arising from the subject matter of the said civil claim.v.General and exemplary damages for violation of constitutional rights and freedoms.v.An order that the costs of this petition be borne by the respondents.”

6. In the supporting affidavit sworn on August 16, 2021 the petitioner deposes that he established that as per letter produced as annexture EMK the settlement in HCACEC No 2 of 2017 was conditional to the 2nd respondent fully and finally settling all claims and civil proceedings including intended prosecution of all the defendants in the suit. He deposes therefore that the respondents are abusing the court process by charging him even after the civil recovery claim that was the basis of the criminal charges was settled.

7. The petitioner contends that the respondents have discriminated against him by selectively preferring criminal charges against him while leaving out other parties simply because they settled the civil suit.

8. He further contends that the respondents have violated his right to equality, equal protection and benefit of the law and freedom from discrimination guaranteed under article 27 of the Constitution.

9. He asserts that the prosecution is unreasonable and unfair in contravention of articles 47 and 50 of the Constitution.

10. In the petition he contends that by instituting criminal proceedings against him even after settlement of the civil claim which served as restitution and after an undertaking by the 2nd respondent not to pursue any further proceedings on the matter the respondents abused the court process contrary to its mandate under article 157 (11) of the Constitution. He averred that the discriminatory and selective institution of criminal proceedings against him is not bonafide and is suspect for ulterior motives. He averred that the actions of the respondents are in fragrant disregard of his rights and fundamental freedoms guaranteed under the Constitution. Further that the respondents conduct is grossly incompatible with the aspirations of kenyans for a nation based on constitutionalism, the rule of law, fairness and equality.

11. In his further affidavit sworn on November 5, 2021 the petitioner avers that his right to fair administrative action was violated because he was not given a hearing when fresh investigations were conducted against him before institution of the fresh charges. He also avers that the settlement in the civil suit was intended to affect the criminal cases.

The 1st Respondent’s Case 12. The 1st respondent opposed the petition based on grounds of opposition dated October 21, 2021 filed herein on November 8, 2021 which invoke article 157 (6) and (10) of the Constitution which provide that the power to institute and undertake criminal prosecutions is the preserve of the office of the 1st respondent and that the 1st respondent does not require the consent of any person or authority to commence such proceedings. It is contended that the decision to prefer criminal charges is based on sufficiency of evidence and that the charges against the petitioner was based on the sufficiency of evidence with a realistic prospect of conviction. It is also contended that the decision was made after independently reviewing the evidence; that the prosecution was instituted with reasonable and probable cause and that it was not actuated by any malice. It is also contended that the prosecution of the petitioner was motivated by the 1st respondent’s obligation to ensure that public interest is served and that in making the decision the 1st respondent has not abrogated, breached infringed or violated any provision of the Constitution or any right or fundamental freedom of the petitioner. It is further contended that only the trial court can test the accuracy and correctness of the evidence and that the issues raised herein amount to a defence which should be raised in the trial court.

13. The 1st respondent further accuses the petitioner of material non-disclosure stating that the petitioner had previously filed a similar petition which was dismissed. It is contended that the presumption of innocence and the protection of the petitioner’s fundamental rights and freedoms are jealously guarded by the Constitution and they do not vanish by his prosecution before a competent court of law and therefore his rights are not curtailed in any way.

14. The 1st respondent contends that this petition is frivolous, vexatious and a gross abuse of the court process as it is devoid of any legal or factual merit, is based on contrived facts and falsehood and is unsupported by the facts claimed to be relied on. The petition is described as a legal misadventure intended to delay the prosecution of the petitioner and this court is urged to dismiss it with costs to the 1st respondent.

The 2nd Respondent’s Case 15. The 2nd respondent opposed the petition through a replying affidavit sworn by Andrew Lekamparish a Forensic Investigator with the commission. In the affidavit Andrew Lekamparish deposed that he was part of a team that conducted investigations into the allegations of misappropriation of public funds by senior officers of Kenya Pipeline Company in relation to a Tender No SU/QT/3097F/13 awarded to Redline Limited for the supply, installation, testing and commissioning of auto-transformers; He deposed that investigations established inter alia that although the transformers were supplied they were never installed, tested and commissioned and neither were the special tools supplied as required in the tender award and that consequently the payment of the sum of Euro 16, 365. 07 (Kshs 1,832,887. 84) made to Redline Limited for the testing and commissioning, the supply of special tools and other charges incidental to the installation of the auto-transformer was illegal as that service was not rendered to Kenya Pipeline Company.

16. The deponent avers that investigations further established that the petitioner who was the Chief Manager - Technical - occasioned loss of public funds by illegally and fraudulently authorizing the payment of Euro 8,695. 65 yet no installation, testing and commissioning of the auto-transformers had taken place and that he used his office to improperly confer a benefit to Redline Limited.

17. He deposed that after the investigations, a report containing the findings and recommendations of the team was forwarded to the 2nd respondent as provided in section 35 of the Anti-Corruption and Economic Crimes Act.

18. Andrew Lekamparish averred that the charges preferred against the petitioner in CMACC 22 of 2015 were withdrawn for reason that the commission was not properly constituted when the investigations took place and because the Court of Appeal rendered a decision in the case of Engineer Michael Sistu Mwaura Kamau vs EACC & others [2017] eKLR which prohibited prosecutions based on investigations conducted by the improperly constituted commission. He averred that the court nevertheless held that the commission and the 1st respondent were at liberty to execute their mandates on the basis of a properly constituted commission. He averred that the charges were in any event withdrawn under section 87 (a) of the Criminal Procedure Code which is not a bar to institution of fresh charges on account of the same facts.

19. The deponent avers that the institution of fresh charges against the petitioner occurred after the commission was properly constituted.

20. In regard to HCACEC No 2 of 2017 the deponent states that the same was instituted for the recovery of the funds paid to Redline Limited without rendering service to Kenya Pipeline Company pursuant to the 1st respondents mandate under section 11(1) of the Ethics and Anti-Corruption Commission Act. He contends that the negotiations that culminated in the refund of the funds by Redline Limited and the subsequent withdrawal of the suit took place between the 1st respondent and Judy Wamaitha Thuo but it did not include the petitioner and it did not affect the institution of criminal cases. He avers that the commission did not enter into a deed of settlement but withdrew the civil suit against all the defendants considering that the lost funds had been fully refunded. The 1st respondent denies that it has violated the petitioners constitutional rights and contends that the petitioner was charged with offences known in law; that the petitioner has not demonstrated that the commission acted illegally, unprocedurally, unreasonably or in excess of its mandate to warrant a review of its decision by this court.

21. The petition was canvassed by way of written submissions.

Submissions of the Petitioner. 22. Learned counsel for the petitioner after highlighting the facts giving rise to this petition reiterated that by settling the civil action in HCACEC No 2 of 2017 Redline Limited and its director effectively admitted to fraudulently receiving public property and that the settlement was for dropping criminal charges against the company and its directors. Counsel referred to the letters annexed to the 2nd respondent’s replying affidavit as proof. Counsel submitted that the respondents discriminated against the petitioner by selectively preferring criminal charges against him while leaving out the culpable parties simply because they settled the civil suit. He wondered how Redline and its directors could be left to go scot free yet they had admitted culpability. Counsel submitted that although the consent in HCACEC No 2 of 2017 did not make any mention of the criminal charges its effect was to drop the charges. Counsel asserted that public interest, transparency and fairness demands that the 1st respondent must justify the reason for dropping charges against a suspect(s) facing similar allegations without appearing to discriminate the one charged. To buttress this submission counsel cited the case of Republic v Director Public Prosecutions and another Ex parte Justus Ongera [2019] eKLR where the court stated:-“It is common knowledge that the Director of Public Prosecutions can drop charges against a suspect or an accused person or an accomplice and treat such person as a witness against the person charged although an accomplice. It matters not whether the one treated as a witness is culpable like the one charged. However, The DPP must justify the reasons for dropping charges against some suspect or suspects facing similar allegations without appearing to discriminate the one charged.”

23. Counsel submitted that the only rationale for discriminating against the petitioner was because he did not admit to the civil claim and that the rationale is not justifiable thereby making the discrimination unfair and unlawful. For this proposition counsel placed reliance on the case of Sammy Musembi Mbugua & 4 others v Attorney General another [2019] eKLR. Counsel wondered whether the charges against the petitioner would have been sustained had he offered to settle the civil suit as Redline and its directors had done. Counsel pointed out that the 1st respondent had no conceivable reason or valid basis for sustaining a criminal charge of “improperly conferring a benefit” against one person while dropping charges for “acquiring or receiving” the same benefit in favour of a person who has implicitly admitted receipt of the benefit. Counsel argued that the decision not to charge Redline and its directors cannot be justified or defended on the ground that the director of public prosecutions had absolute discretion to institute criminal proceedings. Counsel pointed out that the 1st respondent has not sought to explain his decision. Counsel contended that the decision was arbitrary and not in the public interest and cited the case of George Joshua Okungu & Another v Chief Magistrate Court ACC Nairobi &another[2014] eKLR where the court stated:-“Where therefore the prosecution has been commenced or is being conducted in an arbitrary discriminatory and selective manner which cannot be justified that conduct would amount to an abuse of the legal process......”

24. Counsel also cited the holding of the court in the George Joshua Okungu case (supra) that:-“Accordingly, it is my view that where such opinion is given by persons who ae legally authorized to give the same and acted upon by persons under their authority, it would amount to selective application of the law to charge the persons to whom the opinion or advise was given while treating the persons who gave that opinion as prosecution witness.”

25. Counsel also relied on the case of Bitange Ndemo v Director of Public Prosecutions & 4 others [2016] eKLR, the case of Ronald Leposo Musengi v Director of Public Prosecutions & 3 others [2015] eKLR

26. Counsel further submitted that the petitioner’s right to fair administrative action was violated as he was not given a hearing during to the reinvestigation of the matter. Counsel submitted that any act or omission in contravention of the constitution is invalid, null and void ab initio. For this he relied on the case of O’reilly v Mackman [1982] 3 ALL 1129 where it was held: -“Wherever any person or body of persons has authority conferred by legislation to make decisions of the kind I have described, it is amenable to the remedy of an order to quash its decision either for error of law in reaching it or for failure to act fairly toward the person who will be adversely affected by the decision by failing to observe either one or other of the two fundamental rights accorded to him by the rules of natural justice or fairness, viz to have afforded to him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it, and to the absence of personal bias against him on the part of the person by whom the decision falls to be made.”

27. Counsel urged this court to find that the “re-investigation” undertaken by the 2nd respondent leading to the fresh criminal charges were null and void ab initio for violating his right to fair administrative action and to hold that the criminal charges must inevitably collapse. Counsel concluded by urging this court to allow the petition as prayed.

Submissions of The 1st Respondent 28. On February 10, 2022 counsel for the 1st respondent indicated in court that the submissions of the 1st respondent had been filed. However, this court could not trace those submissions on the e-filing platform and it is presumed that none were filed.

Submissions of The 2nd Respondent 29. The 2nd respondent’s submissions and list of authorities were filed on January 28, 2022. In summary counsel for the 2nd respondent submitted that the petitioner was a public officer, a Chief Manager Technical at Kenya Pipeline Company; that he was implicated by investigations carried out by the 2nd respondent and was subsequently charged with 5 other persons two of whom were also public officers; that investigations established that the petitioner perpetrated illegalities that facilitated a payment to Redline Limited for services not rendered hence occasioning loss of public funds. That however the prosecution against them was terminated after the Court of Appeal rendered a decision in the case of Eng Michael Sistu Mwaura Kamau v EACC & others (supra) that rendered investigations carried out by the improperly constituted commission void. Counsel submitted that because the respondents were however set at liberty to execute their mandate once the commission was properly constituted, the commission reinvestigated the allegations and resubmitted its report to the 1st respondent and the petitioner was charged afresh while Redline and its directors were not. Counsel stated that the 1st respondent took into consideration the commission’s findings including the fact that Redline Limited returned the money. Counsel contended that the settlement which resulted in the consent between itself and Redline Limited in HCACEC Civil Case No 2 of 2017 did not comprise a settlement for the petitioner and it did not serve to discharge any of the accused persons from criminal prosecution. She submitted that in addition to taking into account that Redline Limited returned the money the 1st respondent applied the public interest test explained in the general prosecution guidelines on the decision to charge and also the diversion policy and decided not to prefer charges against the company. Counsel refuted that the decision not to charge Redline and its directors amounted to unfair discrimination and contended that nothing precludes the petitioner from initiating plea negotiations with the 1st respondent as provided in section 137a of the Criminal Procedure Code and the plea bargain guidelines developed by the 1st respondent.

30. Counsel distinguished the case of George Joshua Okungu & another v Chief Magistrates Anti-Corruption Court &another [2014] eKLR arguing that in that case the petitioners were being prosecuted for acts that had been sanctioned and directed by a person senior to them yet that person had been turned into a witness. Counsel argued that in this case Redline Limited was not the decision maker and neither was it involved in the preparation and approval of the documents that resulted to the payment of the money it unlawfully received. Counsel also distinguished the case of Ronald Leposo Musengi v Director of Public Prosecutions and 3 others(supra) in that there the petitioner had been given an assurance that he would not be charged which is not the case in this petition.

31. Counsel also negated the petitioner’s submissions that his right to fair administrative action was violated. Counsel stated that the petitioner was afforded an opportunity to record a statement in the course of re-investigation.

32. On the prayer for general and exemplary damages counsel submitted that the same does not lie and cited several cases to support that submission. She contended that the respondents discharged their mandate within the law while having regard to the public interest and the interest of the administration of justice and they cannot be deemed to have violated the rights of the petitioner. She asserted that the 1st respondent cannot be punished for exercising its mandate; that investigations conducted within the law cannot be deemed to be oppressive, arbitrary or unconstitutional, and that the decision not to charge Redline Limited was an exercise of discretion of the 1st respondent which was exercised lawfully and consequently the petitioner is not entitled to exemplary damages. She urged this court to dismiss the petition with costs to the respondents.

Analysis and Determination 33. From the petitioner’s pleadings and submissions, it is apparent that the gravamen of his case against the respondents is the conduct of the 1st respondent to re-open criminal proceedings against him while leaving out his co-accused Redline limited and its directors. It is his case that the decision to charge him is arbitrary since no justification or explanation has been proffered as to why Redline Limited and its directors were not charged and further that it violates his right to non-discrimination and equality before the law and also his right to fair administrative action as he was not given a hearing when investigations were re-opened after the 2nd respondent commission became properly constituted.

34. It has now long been settled that while the 1st respondent has the sole mandate of instituting and undertaking criminal proceedings and does not require the direction or authority of any person to do so the power vested in that office is not absolute. The 1st respondent is enjoined to have regard to public interest, interests of the administration of justice and the need to prevent and avoid abuse of legal process and where the exercise of the power vested in that office falls afoul of the aforementioned principles then the decision to charge is subject to review by this court.

35. I have carefully considered and evaluated the evidence placed before this court, the affidavits filed, the grounds of opposition, the rival submissions the cases cited by learned counsel for the parties and the law and I find that the issues that arise for determination are as follows: -a.what were the terms and effect of the consent recorded in HC ACEC Civil Suit No 2 of 2017. b.Whether the 2nd respondent violated the petitioner’s right to fair administrative action when it instituted fresh investigations against him once the commission was properly constituted.c.Whether by preferring fresh charges against the petitioner while not charging Redline limited and its directors the 1st respondent unfairly discriminated against the petitioner hence abusing the power vested in it under article 157(1) of the Constitution.d.Whether the petitioner is entitled to the reliefs sought.

Issue (A): What Were The Terms And Effect of The Consent Recorded In HC ACEC Civil Suit No 2 of 2017. 36. It is not disputed that the petitioner together with Redline Limited, its two directors and two other persons were accused persons in Milimani CMACC 22 of 2015. It is also not disputed that the criminal case was withdrawn on October 24, 2017 upon the application of the 1st respondent. This was following the decision of the Court of Appeal in the case of Eng Michael Sistu Mwaura Kamau v DPP and 4 others (supra) where the court found that the Ethics and Anti-Corruption Commission was not properly constituted when it forwarded its investigations in respect to the case to the director of public prosecutions and the investigations were therefore void. The petitioner herein faced a charge of abuse of office contrary to section 46 as read with section 48 of the Anti-Corruption and Economic Crimes Act. The withdrawal of the charges under section 87 (a) of the Criminal Procedure Codeculminated in the petitioner and his co-accused being discharged. It is also not disputed that sometimes after the charges were withdrawn a settlement was recorded in HCACEC No2 of 2017 between Redline Limited and its directors on the one hand and the respondents herein on the other hand. The 2nd respondent had filed HCACEC No 2 of 2017 against all the accused persons in CMACC 22 of 2015 for recovery of the funds lost in the transaction that culminated in the prosecution. The petitioner was the 3rd defendant in the suit. The 1st and 2nd defendant in the suit were his co-senior officers at Kenya Pipeline Company with who he was accused of fraudulently causing irregular payment to Redline Limited. The terms of the settlement order were as follows: -“1. That the suit has been compromised and is hereby marked as settled with no orders as to costs.2. That for the purposes of clarity the suit against the 1st, 2nd and 3rd defendants is withdrawn with no orders as to costs.”

37. It is trite that a discharge under section 87 (a) of the Criminal Procedure Code is not a bar to further prosecution on the same charges. The 1st respondent could therefore bring fresh charges against the accused persons in CMACC No 2 of 2015 based on the same evidence as the withdrawn charges. The petitioner seems to be well aware of this because he does not contest the fresh charges per se but does so on the ground that the settlement compromised the criminal prosecution and that charging him while leaving out Redline Limited and its directors amounted to discrimination.

38. I have considered the consent that was recorded by the parties in HCACEC No2 of 2017 and I am unable to agree with the petitioner’s submission that it compromised the criminal charges that had been preferred against them. In my considered view the settlement was restricted to the civil suit. Indeed once Redline Limited refunded the public funds it was alleged to have irregularly obtained from Kenya Pipeline Company it made no sense to continue with the recovery proceedings either against it and its directors or even the other defendants. It is my finding that to state that the settlement absolved the defendants in the suit from criminal culpability would be to mislead and misinterpret the orders of the court. If the settlement was intended to cushion the defendants from future prosecution in criminal proceedings relating to that transaction nothing would have been easier than for the court to state so. It is also my finding that the law allows the 1st and the 2nd respondent to enter into such agreements and that there was nothing sinister about that settlement. It is instructive that while the letter dated December 13, 2017 upon which the petitioner hinges his argument referred to a deed of settlement no such deed was drawn. It is also instructive that the letter was written on a “without prejudice basis” and as such it would not be admissible in evidence – (see Halsbury’s Laws of England 4th Edition Vol 17).

39. It is also evident from the letter dated February 19, 2018 that the settlement was to affect HCACEC No 2 of 2017 only. I say so because the 2nd respondent could otherwise have acted under section 56 B (3) and (4) of the Anti-Corruption and Economic Crimes Act which states:-“56B.(3) The commission may tender an undertaking in writing not to institute criminal proceedings against a person who—(a)has given a full and true disclosure of all material facts relating to past corrupt conduct and economic crime by himself or others; and(b)has voluntarily paid, deposited or refunded all property he acquired through corruption or economic crime; and(c)has paid for all loses occasioned by his corruption conduct to public property.(4)A settlement or undertaking under this section shall be registered in court.”The petitioner has not demonstrated that he complied with section 56B (3) and neither has he exhibited a settlement or undertaking in writing not to institute criminal proceedings against him. My finding in regard to this issue therefore is that the settlement in HCACEC No 2 of 2017 did not constitute a bar to the prosecution of the petitioner.

Issue (B) Whether The 2Nd Respondent Violated The Petitioner’s Right To Fair Administrative Action When It Instituted Fresh Investigations Against Him Once The Commission Was Properly Constituted. 40. The petitioner averred that the 2nd respondent violated his right to fair administrative action for re-investigating and preferring fresh charges against him without affording him a right to be heard. The right to fair administrative action is enshrined in article 47 of the Constitution which states:-“47. (1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—(a)provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and(b)promote efficient administration.”

41. This article is given effect by the Fair Administrative Action Act and more especially section 4 of the Act which states:-“4. Administrative action to be taken expeditiously, efficiently, lawfully etc(1)Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.(2)Every person has the right to be given written reasons for any administrative action that is taken against him.(3)Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision–(a)prior and adequate notice of the nature and reasons for the proposed administrative action;(b)an opportunity to be heard and to make representations in that regard;(c)notice of a right to a review or internal appeal against an administrative decision, where applicable;(d)a statement of reasons pursuant to section 6;(e)notice of the right to legal representation, where applicable;(f)notice of the right to cross-examine or where applicable; or (g) information, materials and evidence to be relied upon in making the decision or taking the administrative action.(4)The administrator shall accord the person against whom administrative action is taken an opportunity to–(a)attend proceedings, in person or in the company of an expert of his choice;(b)be heard;(c)cross-examine persons who give adverse evidence against him; and(d)request for an adjournment of the proceedings, where necessary to ensure a fair hearing.(5)Nothing in this section, shall have the effect of limiting the right of any person to appear or be represented by a legal representative in judicial or quasi-judicial proceedings.(6)Where the administrator is empowered by any written law to follow a procedure which conforms to the principles set out in article 47 of the Constitution, the administrator may act in accordance with that different procedure.”In the case of Republic v Attorney General & 4 others Ex parte Diamond Lalji and Ahmed Hasham Lalji [2014] eKLR Odunga J, and I wholly agree with him, stated:-“Where a decision had been made to close an inquiry file, it is my view that before re-opening the investigations resulting from discovery of new evidence, the people sought to be charged ought to be given an opportunity to comment on the fresh evidence.”

42. The petitioner is therefore within his right to state that once the 2nd respondent was properly constituted and it decided to re-investigate him he was entitled to be given an opportunity to respond to those allegations. His complaint does not however hold water because there is evidence that on November 21, 2017 which was after the criminal case had been terminated he recorded a statement in which he gave his side of the story. The statement is marked as exhibit AL4 and is annexed to the replying affidavit of Andrew Lekamparish sworn on December 15, 2021. That ground does not therefore have any basis.

Issue No (C) Whether By Preferring Fresh Charges Against The Petitioner While Not Charging Redline Limited And Its Directors The 1St Respondent Unfairly Discriminated Against The Petitioner Hence Abusing The Power Vested In It Under Article 157(ii) Of The Constitution. 43. The petitioner is aggrieved by the omission of the respondents to charge Redline Limited and its directors in CMACC No 17 of 2020. He contends that because no explanation was proferred by the 1st respondent for charging him and not Redline Limited and its directors the decision is arbitrary and selective hence an abuse of power and it amounts to unfair discrimination. Learned counsel for the petitioner relied on the case of Republic v Director Public Prosecution and Another Ex parte Justus Ongera [2019] eKLR and the case of Sammy Musembi Mbugua & 4 others v Attorney General & Another [2019] eKLR. My finding however is that those decisions apart from being distinguishable from this case they fortify the decision of the 1st respondent. In the case of Justus Ongera (supra) for instance the court’s finding was that it was a fallacy for the ex parte applicant to claim that absolving some suspects from prosecution and recommending his prosecution and another’s was discriminatory and that such a decision would be discriminatory only if there was no justification. In this case the respondents have given an explanation for not charging Redline Limited which is that Redline Limited entered into negotiations with the 1st respondent which agreed to refund and subsequently refunded the public funds which had been unlawfully paid to it by Kenya Pipeline Company. This is permitted, in the case of the 1st respondent under the Criminal Procedure Code as well as the Diversion Policy 2019 and the General Prosecution Guidelines on the Decision to Charge, 2019. In the case of the 2nd respondent it is permissible under section 56 B (2) of the Anti-corruption and Economic Crimes Act. As submitted by counsel for the 2nd respondent the settlement herein was between it and Redline and its director not the other defendants who included the petitioner. I am therefore not persuaded that the decision to exclude the company and its directors from the fresh charges amounted to unfair discrimination. Neither can it be said that the decision was arbitrary the same having been advised by the law and the two documents which guide the 1st respondent in the exercise of its decision to charge.

44. Further as submitted by counsel for the 2nd respondent the case of George Joshua Okungu &another v Chief Magistrate’s Anti-Corruption Court at Nairobi & another (supra) is distinguishable from this case in that there the prosecution was in regard to acts that had been sanctioned by an officer in authority over the petitioners yet that officer was being treated as a witness and such prosecution was therefore unfair and an abuse of the decision to charge. In this case the petitioner was a senior officer in Kenya Pipeline Company and he was not acting under the direction or authority of Redline Limited and its directors. He cannot therefore rely on that case to assert that there was unfair discrimination.

45. The case of Ronald Leposo Musengi v Director of Public Prosecutions & 3 others (supra) is also distinguishable because in that case an assurance had been made that the petitioner would not be charged which is not the case here. The petitioner cannot therefore rely on this case to prove that he was unfairly discriminated.

Issue (D) Whether He is Entitled To The Reliefs Sought. 46. Having come to the conclusion that the 1st and 2nd respondents exercised their mandates properly and that the petitioner’s rights were not violated it is also my finding that he is not entitled to the prayers sought and accordingly the petition is dismissed with costs to the respondents. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF MAY, 2022. E N MAINAJUDGEIn the presence of:-Mr. Orenge for Nganga for the PetitionerMr. Momanyi & Ms Wangia for the 1st RespondentMs Kibogy for EACC/2nd RespondentPotishoi – Court Assistant