https://new.kenyalaw.org/akn/ke/judgment/keca/2026/979

Ngethe v Ethics and Anti-Corruption Commission & another (Civil Appeal E006 of 2020) [2026] KECA 979 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 979 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E006 of 2020 W Karanja, LA Achode & WK Korir, JJA May 15, 2026 Between Mary Ngechi Ngethe Appellant and Ethics and Anti-Corruption Commission 1st Respondent Director of Public Prosecutions 2nd Respondent (Appeal from the Judgment of the High Court of Kenya at Nairobi (J. N. Onyiego, J.) dated on 9th August 2019 in ACECA Pet. No. 30 of 2018) Judgment 1.This is an appeal against the judgment of the High Court (Onyiego, J.) delivered on 9th August 2019. In Anti-Corruption and Economic Crimes Court Petition No. 30 of 2018, the appellant, Mary Ngechi Ngethe, moved the High Court seeking to stop her ongoing trial in Nairobi Chief Magistrate Anti-Corruption Case (ACC) No. 19 of 2010 on the ground that the trial was unconstitutional and illegal as she had already been tried, convicted and sentenced for offences arising from the same set of facts in Nairobi Chief Magistrate Anti-Corruption Case (ACC) No. 20 of 2010. According to the appellant, the impugned criminal trial violated her constitutional rights, including the right to a fair trial, protection against double jeopardy, and freedom from abuse of the criminal justice process. 2.The appellant’s primary contention was that she had already been tried, convicted, and fined Kshs. 52 million in the parallel case, which arose from the same set of facts and circumstances, and relied on the same witnesses in respect of the procurement of cemetery land by the defunct City Council of Nairobi. She further argued that the prosecution was commenced in bad faith and without a sufficient evidentiary basis, and that her continued prosecution violated her fundamental right to a fair trial under Article 50(2)(o) of the Constitution, which protects an accused person from being tried for an act or omission for which they have previously been convicted or acquitted, namely the principle of double jeopardy. 3.The genesis of this matter involved the procurement of land (L.R. No. 14759/2) for use as a cemetery by the defunct City Council of Nairobi. The appellant was the Chairperson of the Technical Evaluation Committee that was tasked with evaluating the bids in respect of the procurement of the land. Investigations by the 1st respondent, the Ethics and Anti-Corruption Commission, led to the appellant being charged by the 2nd respondent, the Director of Public Prosecutions, in two separate criminal cases on the same day in April 2010. In ACC No. 19 of 2010, she was charged with two counts namely conspiracy to commit an offence of corruption contrary to section 47A(3) as read with section 48 of the Anti-Corruption and Economic Crimes Act, No. 3 of 2003 (ACECA) and fraudulent acquisition of public property contrary to section 45(1)(a) as read with section 48 of ACECA, while in ACC No. 20 of 2010, she was also charged with two counts namely knowingly giving a misleading document to a principal contrary to section 41(2) as read with section 48 of ACECA and knowingly giving a false document to a principal contrary to section 41(2) as read with section 48 of ACECA. 4.ACC No. 20 of 2010 was heard and determined first. The appellant was found guilty, convicted, and sentenced to three years' imprisonment and a mandatory fine of Kshs. 52 million. The High Court and trial records confirm that in sentencing her, the trial magistrate explicitly considered the acquisition of Kshs. 13 million by the appellant, the same sum that forms the basis of the charges in ACC No. 19 of 2010. 5.In the petition, the High Court identified the principal issues for determination as whether the respondents acted within their constitutional and statutory mandate; whether the appellant’s rights under Articles 27, 47, 49, and 50 of the Constitution had been violated; and whether the criminal proceedings in ACC No. 19 of 2010 amounted to double jeopardy, warranting the court’s intervention. 6.In his analysis, the learned Judge reaffirmed the constitutional independence of the Director of Public Prosecutions (DPP) under Article 157 of the Constitution, emphasizing that the decision to institute criminal proceedings lies within the prosecutorial discretion of the DPP and is insulated from judicial interference unless it is shown to have been exercised unlawfully, unreasonably, or in bad faith. The trial court held that it is not the function of a constitutional court to evaluate the sufficiency or weight of evidence at the pre-trial stage, as that mandate properly lies with the court tasked with trying the criminal case. 7.On the allegation of double jeopardy, the learned Judge found that the appellant had not demonstrated that she had previously been tried and acquitted or convicted on the same facts and charges, as required under Article 50(2)(o) of the Constitution. The trial court further held that the existence of parallel civil or administrative proceedings does not, of itself, bar criminal prosecution and proceeded to find that, while both cases stemmed from the same transaction, the charges in ACC No. 19 of 2010 (conspiracy and fraudulent acquisition) were separate and distinct from those in ACC No. 20 of 2010 (knowingly giving misleading documents and false documents). In reaching this finding, the trial court held that since the ingredients of the offences were different, the rule of double jeopardy did not strictly apply. 8.The learned Judge also rejected claims of violation of fair administrative action and fair trial rights, finding no evidence that the appellant had been denied procedural safeguards guaranteed under the Constitution. He concluded that the appellant would have an adequate opportunity to raise her defence and challenge the prosecution’s case before the trial court. The learned Judge also noted that both parties remained silent regarding the parallel trials for eight years, from 2010 when the charges were instituted to 2018 when the petition was filed. According to the learned Judge, the petition was, therefore, an afterthought filed only after ACC No. 20 of 2010 resulted in a conviction. Ultimately, the High Court held that the appellant had failed to meet the threshold for constitutional intervention and that the petition sought to terminate lawful criminal proceedings prematurely. The petition was accordingly dismissed. 9.Aggrieved by the judgment of the High Court, the appellant lodged the present appeal, challenging both the reasoning and conclusions of the learned Judge. In the memorandum of appeal, the appellant contends that the learned Judge erred in law and in fact by failing to properly appreciate and apply the constitutional protection against double jeopardy under Article 50(2)(o) of the Constitution. The appellant argues that the High Court failed to adequately interrogate the factual and legal overlap between ACC No. 19 of 2010 and ACC No. 20 of 2010, thereby erroneously concluding that the offences were distinct despite arising from the same transaction and involving substantially similar facts. 10.The appellant further faults the learned Judge for declining to exercise constitutional jurisdiction to prevent an abuse of the criminal justice process. It is contended that the trial court unduly deferred to the prosecutorial discretion of the DPP without sufficiently examining whether the continuation of the impugned prosecution was oppressive, unfair, or contrary to the principles of justice enshrined in the Constitution. Additionally, the appellant asserts that the High Court erred by holding that the issues raised could only be addressed before the trial court, notwithstanding the constitutional nature of the violations alleged. According to the appellant, the learned Judge failed to appreciate that constitutional violations, once demonstrated, warrant immediate judicial intervention regardless of the stage of the criminal proceedings. The appellant also challenges the finding that no violation of her rights to a fair trial and fair administrative action had been established, arguing that the cumulative effect of the prosecution amounted to discrimination, procedural unfairness, and an infringement of her constitutional guarantees. 11.On the basis of these grounds, the appellant urges this Court to set aside the judgment of the High Court and to grant the reliefs originally sought in the petition, including orders halting the criminal proceedings in ACC No. 19 of 2010. 12.When the appeal came up for hearing, learned Senior Counsel (SC), Mr. Paul Muite, appeared for the appellant alongside learned counsel, Mr. Macharia Mwangi. Learned Senior Assistant Director of Public Prosecutions, Mr. O. J. Omondi, was in attendance for the 2nd respondent. There was no representation of the 1st respondent despite service of the hearing notice. Notwithstanding that the appellant’s and the 1st respondent’s submissions were on record, Mr. Muite, SC opted to make oral highlights. Mr. O.J. Omondi, SADPP, having not filed any submission, orally presented the 2nd respondent’s case in plenary. 13.In his submissions, Mr. Muite, SC, argued that the High Court erred in failing to recognize that the ongoing prosecution in ACC No. 19 of 2010 constituted double jeopardy following the appellant’s conviction and sentencing in ACC No. 20 of 2010. Counsel submitted that both cases were anchored on the same Act of Parliament, shared the same police file (No. 141/316/2010), involved the same witnesses, and arose from the same transaction. He contended that subjecting the appellant to replicated criminal processes is a flagrant miscarriage of justice. Counsel emphasized that the appellant had already served four years in prison and was ordered to pay a mandatory fine of Kshs. 52 million in ACC No. 202 of 2010. Specifically, he argued that the fraudulent acquisition of Kshs. 13 million, mentioned in ACC No. 19 of 2010, was already addressed by the magistrate during the sentencing phase of ACC No. 20 of 2010. 14.According to counsel, the subsequent trial infringed on the appellant’s right to a fair trial under Article 50(2) of the Constitution, which protects against being tried for an act or omission for which one has already been convicted or acquitted. Counsel argued that the failure to consolidate the two cases at the outset should not result in the appellant being condemned twice for the same conduct. He characterized the continued prosecution as an abuse of the legal process by the 2nd respondent, which causes the appellant mental anguish and great agony. According to counsel, the learned Judge, having found that the two cases ought to have been consolidated as they arose from the same transaction, should have quashed the charges altogether and allowed the petition. Counsel urged us to adopt the rationale by the Court in Nicholas Kipsigei Ngetich & 6 Others vs. Republic [2022] eKLR and allow the appeal. 15.Opposing the appeal, learned counsel Ms. Grace Maina, through undated submissions, argued that the appeal lacks merit since the charges in the two cases are legally distinct, even if they arise from the same event. Relying on the decision of the United States Supreme Court in Blockburger vs. United States of America 284 U.S. 299 (1932), that a single act can violate two different statutes and an acquittal or conviction under either statute does not exempt the accused from prosecution and punishment under the other. Counsel submitted that the rule against double jeopardy does not apply in the circumstances of this case since the offences charged in the two matters have distinct ingredients and require proof of different facts. Counsel termed the appellant’s constitutional petition an afterthought arising from the conviction in ACC No. 20 of 2010, asserting that the appellant ought to have raised any objection at the trial court between 2010 and 2018 or exhausted available remedies in the trial court, which was best equipped to handle evidence sufficiency. 16.Ms. Maina maintained that the appellant has tabled no evidence that the respondents acted with extraordinary impropriety, malice, or bad faith. She asserted that the respondents were simply fulfilling their constitutional and statutory mandates. Additionally, counsel contended that the appellant’s petition was based on the apprehension that if convicted in the second case, she would face mandatory sentencing, which apprehension did not constitute a legal ground for stopping the trial. 17.For the 2nd respondent, Mr. O.J. Omondi, SADPP opposed the appeal, urging that the principle of double jeopardy did not apply. Counsel argued that the learned Judge properly invoked the distinction test and found that the charges arose from different transactions and concerned different parties and should be tried separately. Counsel submitted that in Nicolas Kipsigei Ngetich & 6 Others vs. Republic (supra) the Court actually opined that where offences are distinct then they can be tried separately. Counsel pointed out that in this matter, the cases were different and were preferred against different accused persons, the only common factor being the appellant. Counsel also relied on the case of Meixner & Another vs. Attorney General [2005] KECA 292 (KLR) to urge the Court to uphold the independence of the 2nd respondent to prefer charges. Counsel faulted the appellant for waiting for eight years before filing the petition and failing to seek consolidation of the charges. Counsel consequently urged us to dismiss the appeal. 18.This being a first appeal, our duty as enshrined under rule 31(1)(a) of the Court of Appeal Rules, 2022 is as was explained in Abok James Odera T/A A. J. Odera & Associates vs. John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re- evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 19.We have carefully considered the record of appeal, submissions by counsel, the authorities cited, and the law. Our view is that this appeal turns on a single question: whether the continued prosecution of the appellant in ACC No. 19 of 2010 offends the constitutional protection against double jeopardy, thus requiring the termination of the criminal proceedings in affirmation of the appellant’s plea of autrefois convict. 20.Article 50(2)(o) of the Constitution guarantees every accused person the right:“not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted.” 21.This provision constitutionalizes the pleas of autrefois acquit and autrefois convict, codified in section 138 of the Criminal Procedure Code, and elevates them to substantive constitutional components of the right to a fair trial. In Director of Public Prosecutions vs. Justus Mwendwa Kathenge & 2 Others [2016] KECA 98 (KLR), the Court underscored the limits on prosecutorial power, holding that:“In the exercise of the enormous powers under Article 157, the Constitution commands that the D.P.P. shall be free from interference or direction of any person or authority, having regard only to;“……….the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.”This independence is similarly restated in section 7 of the Office of the Director of Public Prosecutions Act, which adds that the D.P.P is only subject to the Constitution and the law. He is protected from personal liability if he acts in good faith in the execution of the functions, powers and duties of that office.From the days of Githunguri (supra), the prosecutorial powers, then exercised by the Attorney General, was held to have limits; that it must never be abused, never exercised oppressively, maliciously or against the public interest. The Court in that decision emphasized that, where it was clear that the power to prosecute was being misused, the court, under its inherent jurisdiction would stop such prosecution as it would amount to an abuse of the process of the court. This holding has since been consistently followed. See also Mohammed Gulam Hussein Fazal & Another vs. The Chief Magistrate Court, Nairobi & Another H.C. Misc Application No 367 of 2005, and Peter George Antony D’costa vs. A.G & Another, Petition No. 83 of 2010.” 22.The principle of double jeopardy has been discussed by the Court before. In Okwiri vs. Republic [2025] KECA 1773 (KLR) the Court explained the applicability of the principle thus:“Our understanding of the application of the doctrine of double jeopardy, is that the accused must have been an accused person in two cases, earlier and present. He must have been charged, tried, convicted and sentenced or acquitted in the earlier case and both cases must have arisen from the same set of facts and the earlier court was competent to entertain the case. See Republic vs. Mohamed Abdow Mohamed [2013] eKLR.In the case of Republic vs. Danson Mgunya [2016] KECA 59 KLR, the essence of double jeopardy or autrofois acquit or autrefois convict for that matter was explained thus “…First, the plea of autrefois acquit is grounded on the universal maxim of common law of England that no man is to be brought into jeopardy of his life, more than once, for the same offence. And hence he is allowed as a consequence, that when a man is once found fairly not guilty upon indictment or other prosecution, before any court having jurisdiction of the offence, he may plead such acquittal in a bar of any subsequent accusation for the same crime...”.” 23.Similarly, in Africa Centre For Open Governance & Peter Gastrow vs. John Harun Mwau, Attorney General & Director of Public Prosecutions [2020] KECA 98 (KLR), the Court reiterated that:“Double jeopardy is a principle of criminal trials that prohibits prosecution of a person on the same acts or omissions after a previous acquittal or conviction. (See Article 50(2) (n), Constitution of Kenya).” 24.Earlier, in Richard Mbaabu Ithalie vs. Republic [2017] KECA 247 (KLR), the Court had reinforced the foregoing position as follows:“There are clear provisions in section 138 of the CPC that a person who has been once tried by a court of competent jurisdiction for an offence and convicted or acquitted of that offence shall, while the conviction or acquittal has not been reversed or set aside, not be liable to be tried again on the same facts or for the same offence. The principle in French is ‘autrefois convict’ or ‘autrefois acquit’ which literally means ‘previously convicted or acquitted’. It is a rule against double jeopardy…” 25.It therefore follows that for the principle of double jeopardy to be called into action, the appellant needed to establish that she was an accused person in both cases, that the offences charged arose from the same set of facts, and that she had been either convicted or acquitted in the case that had been determined. 26.Before we address the facts of this appeal based on the foregoing factors, we must reiterate that even though there are divergent views on whether the key factor is the ingredients of the offence and not merely similar facts, it is not in all cases that the ingredients will be key. For instance, in Nicolas Kipsigei Ngetich & 6 Others vs. Republic (supra) cited to us by both sides, the Court noted that even though the elements in the offence of murder are different from those of attempted murder, where the prosecution has not demonstrated the availability of new evidence, a subsequent trial premised on the same set of facts against the same accused person was untenable. In that regard, the Court held that:“Of utmost importance is the fact that in this case the murder and attempted murder charges are predicated on the same facts. It was the same incident, same witnesses and even more importantly, the complainant in the attempted murder charge testified as a witness in the murder charges. The ODPP nonetheless insisted that regardless of that fact, the charges were different and it mattered not that the witnesses were the same in both cases, which arose from the same incident. We do agree that the offence of murder is essentially different from that of attempted murder and this may technically lock out the appellants from invoking the autrefois acquit and autrefois convict doctrine because the appellants were tried and acquitted of the charges of murder where the complainants were different from the attempted murder case.In our view, however, in this case, the prosecution had laid on the table all the evidence they had in respect of the incident giving rise to the offences in question, which included the evidence of the complainant in the attempted murder charge. The appellants also presented all their evidence before the court. The High Court considered the said evidence in its entirety and arrived at the conclusion that the evidence fell short of the required threshold to sustain a conviction. There is no other evidence in the custody of the respondent herein which it expects to unleash at the attempted robbery hearing that they held back during the murder trial.25.This therefore means that if the appellants are to be tried for the attempted murder, they will be expected to face the same evidence they faced before the High Court, which the court found deficient.” 27.In Connelly vs. DPP [1964] AC 1254, the House of Lords (Lord Morris), while discussing the principle of double jeopardy, held that:“… if a man is acquitted generally on an indictment of murder, autrefois acquit would be a good plea to an indictment of manslaughter of the same person. It would be the same death, the fact would be the same. The charges of murder and manslaughter only differ in degree.The principle seems clearly to have been that recognized that if someone had been either convicted or acquitted of an offence he could not later be charged with the same offence or with what was in effect the same offence. In determining whether or not he was being so charged the Court was not confined to an examination of the record. The reality of the matter was to be ascertained. That, however, did not mean that if two separate offences were committed at the same time a conviction or acquittal in respect of one would be any bar to a subsequent prosecution in respect of the other. It was the offence or offences that had to be considered. Was there in substance one offence-or had someone committed two or more offences?” 28.Lord Morris went on to add that:“My lords, the law of England was, therefore, clearly stated. It matters not that incidents and occasions being examined on the trial of the second indictment are precisely the same as those which were examined on the trial of the first. The court is concerned with charges of offences or crimes. The test is, therefore, whether such proof as is necessary to convict of the second offence would establish guilt of the first offence or of an offence for which on the first charge there could be a conviction. Applying to the present case the law as laid down, the question is whether proof that there was robbery with aggravation would support a charge of murder or manslaughter. It seems to me quite clear that it would not. The crimes are distinct. There can be robbery without killing. There can be killing without robbery. Evidence of robbery does not prove murder or manslaughter… That the facts in the two trials have much in common is not a true test of the availability of the plea of autrefois acquit. Nor is it of itself relevant that the two separate crimes were committed at the same time so that in recounting the one there may be mention of the other.” 29.Back to the appeal before us, it is discernible from the record that both prosecutions arose from the same transaction involving the procurement of cemetery land for the defunct Nairobi City Council. It is also clear that the prosecutions were founded on the same investigation file, witnesses, and evidentiary matrix. Additionally, the alleged fraudulent acquisition of Kshs. 13 million forms the factual foundation of both cases, and critically, that the acquisition of the said money was expressly considered by the trial court in convicting and sentencing the appellant in ACC No. 20 of 2010. The learned Judge of the High Court found as much when in paragraphs 41 and 42 of the judgment he rendered himself as follows:“In the instant case, no objection was ever raised until 2018 after the conclusion of 20/19. After having perused the two charge sheets, it is clear that the offences are wholly related in that they all arose out of the same transaction. At its best, the court should have on its own motion or invitation of either party consolidated the two cases. Nonetheless, both parties kept quiet until one case was completed.It is admitted that the charges on the face of it are related although distinct in terms of statement of the offence. The petitioner is not challenging the manner and style in which the offences in ACC 19/2010 were presented…” 30.Adopting the already established threshold, it is clear, as even appreciated by the learned Judge, that though the statements of the offence were crafted differently, the offences arose from the same set of facts. In our view, the proof of the offences in ACC No. 20 of 2010 would as well establish the guilt of the appellant in ACC 19 of 2010. It is immaterial in our view that the co-accused persons in the two charge sheets were different. What concerns the Court is the appellant herein, who was an accused person in both files originating from the same set of facts. Additionally, it is also evidently clear that at the time the petition was filed, the appellant had been convicted and sentenced in one of the cases. Therefore, the fact that the appellant did not raise the issue earlier cannot defeat her constitutional right to a fair trial. After all, the plea of autrefois acquit or autrefois convict can only be made after the conclusion of the first trial. With utmost respect to counsel for the respondents, we do not think double jeopardy is curable by delay, acquiescence, or silence. 31.We reiterate that the constitutional guarantee of a fair trial under Article 50 of the Constitution must be read holistically. Subjecting an accused person to a series of prosecutions, after conviction and punishment, for substantially the same conduct undermines public confidence in the administration of justice. Even though no evidence was adduced to demonstrate that the decision to prosecute was actuated by malice, ulterior motive, or improper purpose, the key element remains that the charges in the two criminal cases, though distinct, arose from the same set of facts and were against the same person. Perhaps, as suggested by the trial Judge, the best alternative was for the 2nd respondent to consolidate the charges. We hold this view, being cognizant of the fact that whereas the 2nd respondent enjoys the support of the government and all the investigative agencies, an accused person, on the other hand, depends solely on himself or herself to mount a defence. Therefore, permitting the State to institute separate trials against an accused person based on offences arising out of the same set of facts must be discouraged. Of course, there are exceptions to this rule, like when the accused person is facing so many counts that call for separate trials, but we do not discern any exception in the matter before us. 32.Article 50(2)(o) of the Constitution demands a substantive rather than formalistic inquiry. The inquiry does not end with a mechanical comparison of statutory ingredients. The decisive question is not whether the offences are textually distinct, but whether the accused is being punished or exposed to double jeopardy for the same criminal conduct. Technical approaches that hollow out constitutional rights must be rejected by the courts. 33.While the DPP’s prosecutorial discretion under Article 157 of the Constitution is broad, it does not extend to sanctioning repeated prosecutions that result in double punishment. To permit otherwise would elevate form over substance and mute the right protected by Article 50(2)(o) of the Constitution. Prosecutorial independence does not extend to sustaining proceedings that infringe on constitutional rights. Where such infringement is demonstrated, judicial intervention is not only permissible but obligatory. See Meixner & Another vs. Attorney General (supra) and Director of Public Prosecutions vs. Justus Mwendwa Kathenge & 2 Others (supra). 34.In the circumstances, we are satisfied that to permit the continued prosecution of the appellant in ACC No. 19 of 2010 would expose her to double jeopardy, the risk of further mandatory penalties, and renewed deprivation of liberty, notwithstanding that the conduct in question has already been adjudicated upon and punished. Such an outcome would offend both the letter and spirit of Article 50(2)(o) of the Constitution and undermine the finality that criminal adjudication is intended to achieve as stipulated in section 138 of the Criminal Procedure Code. 35.In the result, we find the appeal merited and allow it. Consequently, the judgment of the High Court delivered on 9th August 2019 is set aside. We substitute, therefor, a declaration that the prosecution of the appellant in the Chief Magistrate Court ACC No. 19 of 2010 is unconstitutional; and the criminal proceedings are hereby terminated. For avoidance of doubt, a permanent stay is hereby issued prohibiting the prosecution of the appellant in respect of any offences arising from the conduct which is the subject of her petition. 36.Although this appeal is in relation to constitutional matters, we find no reason for denying the successful appellant the costs of the appeal. She will, therefore, have both the costs of the proceedings before the High Court and the appeal from the respondents. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY 2026.W. KARANJA.....................................JUDGE OF APPEALL. ACHODE.....................................JUDGE OF APPEALW. KORIR.....................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDeputy Registrar