[2008] KEHC 3905 (KLR)

[2008] KEHC 3905 (KLR)

The High Court held that the Ministry of Finance acted ultra vires by engaging PWC to investigate the contract, as the statutory mandate to investigate corruption and economic crimes is vested exclusively in the Kenya Anti Corruption Commission under ACECA. The Attorney General and Government of Kenya are estopped from contradicting the legal opinion previously issued to the petitioners, which validated the contract and assured compliance with domestic legal requirements. The PWC contract was found to be illegal and a violation of the principle of party autonomy, as it undermined the agreed arbitration process and threatened the petitioners' constitutional rights to property and equal...

Citation
[2008] KEHC 3905 (KLR)
Parties
Applicant: Midland Finance & Securities Globetel Inc; Respondent: Attorney General; Respondent: Kenya Anti Corruption Commission
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
10 July 2008
Case Number
? 359 of 2007
Procedural Posture
Miscellaneous Application / Judgment
Outcome
Petition partly allowed; PWC contract quashed to the extent it relates to the agreement; prohibitory orders issued against respondents; other reliefs declined; costs to abide arbitral outcome.
Legal Topics
Arbitration Agreements, Party Autonomy, Public Policy Exception, Estoppel and Waiver, Delegation of Statutory Powers, Interim Relief
Source Language
English
Constitutional Law Commercial and Corporate Alternative Dispute Resolution Arbitration Agreements Party Autonomy Public Policy Exception Estoppel and Waiver Delegation of Statutory Powers +1 more

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Parties

Midland Finance & Securities Globetel Inc

Applicant

Attorney General

Respondent

Kenya Anti Corruption Commission

Respondent

Procedural Posture

Miscellaneous Application / Judgment

Legal Issues

  1. 1 Whether the Ministry of Finance acted ultra vires by engaging PWC to investigate a contract, contrary to the Anti-Corruption and Economic Crimes Act (ACECA).
  2. 2 Whether the Attorney General and Government of Kenya are estopped from contradicting a prior legal opinion validating the contract with the petitioners.
  3. 3 Whether the PWC contract and investigations threaten the petitioners' constitutional rights to property and equal protection of the law under sections 70 and 75 of the Constitution.

Ratio Decidendi

The High Court held that the Ministry of Finance acted ultra vires by engaging PWC to investigate the contract, as the statutory mandate to investigate corruption and economic crimes is vested exclusively in the Kenya Anti Corruption Commission under ACECA. The Attorney General and Government of Kenya are estopped from contradicting the legal opinion previously issued to the petitioners, which validated the contract and assured compliance with domestic legal requirements. The PWC contract was found to be illegal and a violation of the principle of party autonomy, as it undermined the agreed arbitration process and threatened the petitioners' constitutional rights to property and equal...

Court Disposition

Petition partly allowed; PWC contract quashed to the extent it relates to the agreement; prohibitory orders issued against respondents; other reliefs declined; costs to abide arbitral outcome.

Orders

  • The PWC contract dated 17th January 2007 is quashed by an order of certiorari to the extent it refers to the agreement between the petitioners and GOK.
  • An order of prohibition issues against both respondents from acting on the PWC contract in relation to the agreement.