[2022] KEHC 10025 (KLR)

Mberia v Republic (Anti-Corruption and Economic Crimes Appeal E005 of 2021) [2022] KEHC 10025 (KLR) (Anti-Corruption and Economic Crimes) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10025 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Appeal E005 of 2021

EN Maina, J

July 14, 2022

Between

David Njilithia Mberia

Appellant

and

Republic

Respondent

(Being an appeal from the conviction and sentence against the judgment of Hon. T. Nzyoki in CM ACC No. 7 of 2019 delivered on 25th February 2021)

Judgment

Introduction 1. The appellant herein, David Njilithia Mberia, being aggrieved by the conviction and sentences imposed against him by the trial court preferred this appeal. The appellant calls upon this court to set aside the conviction and sentences and to substitute it with an order of acquittal. The petition of appeal dated 1st March 2021 lists the following grounds:1The learned trial magistrate erred in law and fact by failing to note that there was unexplained contradictory evidence by the prosecution witness PW1 and P.Ex 17. 2.The learned trial magistrate erred in law and fact by failing to properly evaluate and analyze the entire evidence on record as duty bound more so on the inconsistencies of the evidence of PW1, PW6 and Exhibit 17 which makes reference to the Appellant.3. The trial Magistrate erred in fact and law in failing to observe that the evidence adduced did not support the particulars in the charge sheet as PW1, PW11 and exhibit 8 gave contradictory evidence.4. The trial Magistrate erred in fact and law in solely relying on the evidence of PW1 and Exhibit 8 on the alleged demanding of a bribe without any corroborative evidence.5. The trial magistrate erred in fact and law by substituting the sheng wordings in Exhibit 8 with his own interpretation of the offence yet no universal meaning of Sheng language was produced by the prosecution.6. The trial magistrate erred in fact and law in failing to make a finding on the evidence of PW1 that he had not gone to hand over the treated money to the Appellant but to a third party on the day the Appellant was arrested.7. The trial magistrate erred in law and fact in failing to interrogate the circumstances under which the appellant was found with treated money in light of PW1 and PW11 and the appellant’s evidence.8. The trial magistrate erred in law and in fact in failing to find that the Kshs. 200,000 treated money found with the Appellant constituted entrapment which is illegal and inadmissible yet evidence adduced by PW1 and PW11 and the appellant’s evidence all supported the Appellant’s assertion that he never asked for a bribe of Kshs. 200,000. 9.The learned trial magistrate erred in law and fact in failing to evaluate, analyze and find that the giving of the treated Kshs.200,000 to the Appellant by PW1 amounted to interpret (sic) as he never asked for the same.10. That the learned Magistrate erred in law and fact in finding the accused guilty as charged on counts II, III and IV on the basis of contradictory evidence which was not free from error.11. That the learned trial magistrate erred in law and fact in failing to make a finding that the evidence adduced by the prosecution was contradictory and inconsistent and thus not safe to convict.12. The learned trial magistrate erred in law and fact in failing to interrogate the whole of the subject discussion as contained in exhibit 8 but only selectively relied on 3 sentences isolated to convict the Appellant.13. The learned trial magistrate erred in law and fact in passing a sentence against the appellant which is in violation of Constitution, Anti-corruption and Economic Crimes Act and Bribery Acts and also against the Court of Appeal judgment in Criminal Appeal No.416 of 2019 – Ferdinand Ndungu Waititu Babayao vs. Republic (2019)eKLR and Moses Kasaine Lenolkulal vs. Republic Criminal Appeal No. 109 of 2019 – Nairobi cases where the court held that an elected state officer cannot be removed from office other than as per the Constitution.14. The learned trial magistrate erred in law erred in law and in fact in passing a sentence barring the appellant from serving as a sitting Member of County Assembly yet Article 194 of the Constitution provides for grounds of vacation of office by Member of County Assembly.15. The learned trial magistrate erred in law and fact in sentencing the Appellant under section 18(8) of the Bribery Act by barring him from holding office as a Member of County Assembly yet the Anti-corruption and Economic Crimes Act clearly outlaws the application of Section 18(8) of the Bribery Act to state officers subject to Article 194 of the Constitution, that the removal from office does not apply where the constitution provides for vacation methods.16. The learned trial magistrate erred in law and fact in passing a sentence on the appellant barring him from serving as an elected Member of County Assembly in breach of the Law and Article 194 of constitution and Section 63(4) of the Anti-Corruption and Economic Crimes Act.”

2. The Appellant was, together with two others who are not party to this appeal, charged with four counts of corruption related offences namely:- COUNT I: Conspiracy to commit an offence of corruption contrary to Section 47(a) (3) as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act 2003.

Particulars of the offence: 1. David Njilithia Mberia 2. Jared Okoth Okode 3. Abraham Mwangi Njihia: Between the 8th April 2019 and 25th April 2019, within Nairobi City County, being state officers elected as Members of the County Assembly for Langata/Karen, Mathare North and Woodley/Kenyatta Wards in Nairobi City County respectively, jointly conspired to commit an offence of corruption namely receiving a bribe of Kshs.1,000,000/= from Samuel Maina Kiragu.

COUNT II: Receiving a bribe contrary to Section 6(1) (a) as read with Section 18 of the Bribery Act No. 47 of 2016

Particulars: David Njilithia Mberia: On the 25th day of April, 2019 at City Hall lounge, within Nairobi City County, being a state officer elected in Nairobi City County as a member of County Assembly for Langata/Karen Ward, requested for a financial advantage of KShs.1,000,000/- from Samuel Maina Kiragu with intent that, in consequence, you would influence the outcome of inquiry that was carried out by the Culture and Social Services Committee of the Nairobi County Assembly, in regard to the ownership of land which Kiragu Waichahi Schools is constructed on.

COUNT III: Receiving a bribe contrary to Section 6(1) (a) as read with Section 18 of the Bribery Act No. 47 of 2016.

Particulars: David Njilithia Mberia: On the 25th day of April, 2019 at City Hall lounge, within Nairobi City County, being a state officer elected in Nairobi City County as a member of County Assembly for Langata/Karen ward, requested for a financial advantage of Kshs.500,000/- from Samuel Maina Kiragu with intent that, in consequence, you would influence the outcome of inquiry that was carried out by the Culture and Community Service Committee of the Nairobi County Assembly, in regard to the ownership of land which Kiragu Waichahi Schools is constructed on.

Count IV: Receiving a bribe contrary to Section 6(1) (a) as read with Section 18 of the Bribery Act No. 47 of 2016.

Particulars: David Njilithia Mberia: On the 26th day of April, 2019 at Oil Libya Petrol Station along Mombasa road, within Nairobi City County, being a state officer elected in Nairobi City County as a member of County Assembly for Langata/Karen Ward, received for a financial advantage of Kshs.200,000/- from Samuel Maina Kiragu with intent that, in consequence, you would influence the outcome of inquiry that was carried out by the Culture and Community Services Committee of Nairobi County Assembly, in regard to the ownership of land which Kiragu Waichahi Schools is constructed on.

3. After hearing and considering the evidence by both sides the learned trial magistrate, found the appellant guilty on the three counts, II, III and IV of Receiving a Bribe Contrary to Section 6(1) (a) as read with Section 18 of the Bribery Act and fined him Kshs.700,000 in default to serve 12 months’ imprisonment on each count. The magistrate then invoked the provisions of Section 18(b) (sic) of the Bribery Act in ordering that the appellant be forthwith barred from holding public office as a Member of County Assembly in accordance with the law and directed that a certified copy of the judgment and the sentence be served upon the Speaker of National Assembly for his compliance and record. The Appellant was however acquitted on the charge of conspiracy to commit an offence (count 1)

4. The appeal was canvassed by way of written submissions which were highlighted on 9th May 2022.

Appellant’s Case 5. Learned Counsel for the Appellant, Mr. Kurauka submitted that the appeal emanates from a judgment of the trial court which he deems to be erroneous. That the trial court misapprehended the facts and failed to uphold the law when convicting the appellant. Counsel was emphatic that the Appellant’s conviction was based on entrapment which has been held by the superior courts to be illegal as it involves tricking someone to commit a crime so as to secure a conviction. To support this submission Counsel relied on the cases of Lydia Luganga vs Inspector General of Police Pet. No. 12 of 2013 and Mohamed Koriow Nur vs The Attorney General Petition No. 181 of 2010.

6. Counsel stated that the charges levelled against the appellant were also based on hearsay; that the trial magistrate erred in failing to evaluate PW1’s evidence that he had not gone to hand over the treated money to the Appellant but to a third party; that the lower court acted in a discriminatory manner in convicting the Appellant while acquitting the other accused persons and that having found that the other accused had no case to answer the trial court ought to have held the same for the Appellant.

7. Counsel further submitted that the evidence adduced before the trial court did not meet the threshold for conviction; that it was shaky; that there was no confirmation of any request for a bribe by the Appellant and that the purported evidence corroborating the same was inadmissible. Counsel submitted that the standard of proof cannot be lowered. Counsel asserted that any doubt arising must be resolved in favour of the Appellant; that the Appellant’s phone was subjected to a digital forensic examination by Augustine Mwaniki (PW6) whose resultant report P.Ex 17 revealed that no evidence of communication between the Appellant and the complainant was found. Counsel contended that this piece of evidence discredited the evidence of PW1 that the Appellant called him back to the lounge or restaurant on 25th April 2019 which in effect indicates there was no evidence that the Appellant demanded money from PW1 to perform a particular action.

8. Counsel submitted further that the evidence of the demand of Kshs. 1,000,000 by the Appellant which was only adduced by PW1 and PW11 and P.Ex 8 was unsubstantiated. That the trial court interpreted utterances in an unclear language (sheng) to denote that a crime occurred. Counsel opined that since there was no implied or express request by the Appellant for the Kshs. 1,000,000 the trial court grossly erred in finding that the offences were proved beyond reasonable doubt. Counsel stated that the purported interpretation of the slang by the prosecutor is not supported by the contents of the entire discussion between the parties as there was no mention of money. Counsel submitted that moreover, the court cannot make a decision solely on the opinion of a person as the court follows the law and facts before it but not the opinion of witnesses. Counsel further contended that the evidence was inconsistent.

9. Counsel also took issue with the trial court’s order that would in effect have removed the Appellant as the Member of County Assembly for the Karen Ward consequently creating a vacancy in the said public office. Counsel submitted that the order was in violation of the manner of removal of a Member of County Assembly provided in Article 194 of the Constitution, Section 63(4) of the Anti-Corruption and Economic Crimes Act and the electoral laws and procedures. Counsel stated that the trial magistrate construed Section 18(8) of the Bribery Act in isolation yet the same is subject to the provisions of the Constitution and the Anti-Corruption and Economic Crimes Act.

10. Counsel asserted that the office of a Member of County Assembly is a Constitutional State office established pursuant to Article 177 of the Constitution and that Article 193(2)(f) disqualified a person from running for the office only if serving a prison sentence of at least six months. Counsel stated that Article 194(1) (g) also sets out the grounds for removal from office. Counsel also emphasized that by dint of Article 193(3) of the Constitution, a vacancy in the office of a Member of County Assembly or Member of Parliament cannot be triggered on the grounds set out in Article 193(2) (f) unless all possibility of appeal or review of the relevant sentence or decision had been exhausted and as the Appellant exercised his right of appeal through the present appeal, the aforementioned provision applied to him. In support of his submission Counsel cited the following cases: Patrick Muguro Mwangi & Another vs Zakary Eliud Gichohi & 2 Others [2013] eKLR to the effect that Article 193(2)(f) can only trigger a vacancy in the event of actual imprisonment as opposed to payment of a fine.

Ferdinand Ndungu Waititu Baba yao vs Republic [2019] eKLR where, citing the Ugandan Case of Major General David Tinyefuza vs the Attorney General (UCCA) No. 1 of 1997, the court observed that constitutional provisions ought to be interpreted broadly and liberally in favour of those whose rights have been conferred by the Constitution; that the Constitution ought to be read as an integral whole, with each provision sustaining the other; and that the Constitution prevails over all unwritten conventions, precedents and practices.

11. Counsel urged this court find this appeal meritorious, allow it and order that any fine paid be refunded to the Appellant.

Respondent’s Submissions 12. Miss Ndombi, Learned Prosecution Counsel appearing for the Respondent, relied on the Respondent’s submissions dated 1st November 2021 and the authorities thereto. Counsel submitted that the prosecution discharged the burden of proof against the Appellant on all the three counts of bribery. Counsel disputed that the Appellant was entrapped and submitted that the Ethics and Anti-Corruption Commission simply carried out investigations upon receiving a complaint. Relying on the case of Lydia Lubanga v IG of Police & 4 others [supra] Counsel averred that the conviction was based on evidence but not based on hearsay; that the trial court relied on the law in finding that the Appellant received the treated money and that there was evidence that the Appellant requested for money and received the same hence the conviction was not based on speculation.

13. With regard to the inconsistencies alluded to by the Appellant Counsel submitted that minor inconsistencies were a normal occurrence. For this Counsel placed reliance on the case of Philip Nzaka Watu vs Republic [2016] eKLR where the Court of Appeal observed that human recollection is not entirely identical and accurate to two witnesses on the same issue to the minutest detail.

14. With regard to issue of Section 18(8) of the Act, Counsel urged this court to be guided by the decision of the Supreme Court in the case of Ferdinand Waititu Baba Yao v Republic (supra) where she submitted the circumstances were similar to the present case. Counsel stated that the trial magistrate did not err in invoking the provisions of Section 18(8) of the Bribery Act which provides for additional penalties upon conviction. Counsel asserted that Section 18(8) complements Article 10 of the Constitution which sets out the national values and principles binding all public officers and Article 73(2) on the guiding principles of Leadership and Integrity. She urged this court to dismiss the appeal.

Analysis and determination 15. This being the first appellate court, it behoves it to reconsider and evaluate the evidence before the trial court so as to arrive at its own independent decision while keeping in mind that unlike the trial magistrate it has not had the opportunity to hear or see the witnesses who gave evidence ( See Okeno v Republic [1972] EA 772).

16. The Appellant was charged and convicted on three counts of the offence of receiving a bribe contrary to Section 6(1) (a) as read with Section 18 of the Bribery Act. Section 6(1)(a) of the Bribery Act states:-“6. Receiving a bribe(1)A person commits the offence of receiving a bribe if —a)the person requests, agrees to receive or receives a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly whether by that person receiving the bribe or by another person.”

17. The offence of bribery is therefore completed when one either requests (solicits), agrees to receive or receives a financial advantage intending that a relevant function or activity should be performed improperly whether by the person receiving the bribe or by another person.

18. In this case evidence was led that the Appellant was the elected Member of County Assembly for Karen Ward and a member of the Nairobi County Assembly Sectorial Committee on Culture and Community Services which was chaired by the 3rd accused in the case. The Committee had been allegedly detailed to investigate the alleged illegal acquisition of public land by the proprietor of Kiragu Waichahi Schools situated in Kiambu and Eastleigh Section 3. The court heard that the Appellant and his co-accused visited the school on 10th April, 2019 and finding the caretaker Anthony Waweru Wachira (PW3) demanded to inspect the documents of title and approval plans for the school. The school was closed for the holiday so PW2 called Samuel Maina Kiragu (PW1), the proprietor’s son and Property Manager of the school. It was PW3’s evidence that he even gave the phone to the 3rd accused to speak with PW1. Thereafter on 18th April, 2019 the caretaker received a letter purportedly from the clerk of Nairobi County Assembly. The letter was requesting for the school’s title deed and approval plans for some construction that was on-going. It had also detailed the proprietor of the school to attend a meeting in Committee Room 5 at City Hall Buildings on Wednesday 24th April 2019 at 11. 00 a.m. The court heard that PW1 instructed a lawyer to respond to the letter but on 24th April he (PW1) received a call from the 3rd accused inquiring why he had involved a lawyer in the matter yet it could be resolved amicably. The court heard that the 3rd accused then made a request for Kshs.1,000,000 to facilitate the withdrawal of the letter from the speaker’s desk and ultimately the business of the Sectorial Committee on Culture and Community Services. The court heard that the 3rd accused also asked to meet with PW1 the next day. PW1 testified that on 25th April 2019 at about 10. 00 a.m. accompanied by his brother Anthony Waichahi Kiragu (PW4) he went and lodged a formal complaint with the Ethics & Anti-Corruption Commission at Integrity Center and the case was assigned to James Ikua Wachira (PW11) to investigate. The court heard that it was following this report that Amos Yankoso (PW10) fitted PW1 with a recording devise before he (PW1) and his brother (PW4) proceeded to the meeting with the accused.

19. The court heard that once at the meeting PW1 had a discussion with the Appellant and his co-accused which was recorded through the device (Exb P 7). PW1 testified that during the meeting the Appellant and his co-accused threatened to return the letter to the speaker’s desk for discussion if no agreement was arrived at. That the 3rd accused then left ostensibly to go and withdraw the letter leaving PW1 and PW4 with the Appellant and the 2nd accused. Then the 1st and 2nd accused were called to go into the Assembly but as they (PW1 and PW4) were walking out of the lounge the Appellant called them back and requested they meet at the restaurant inside the County Assembly. It was there that the Appellant using slang repeated the request for a sum of Kshs.1,000,000 which he alleged would be shared amongst the 19 members of the committee. The Appellant is alleged to have demanded an instalment of Kshs.500,000 which was negotiated to Kshs.300,000/- and which was to be paid on the following Monday. After that meeting PW1 and PW4 went back to the EACC’s offices at Integrity Center and handed over the recording device (ExbP. 7). Thereafter PW1 got a call from the 3rd accused asking him for the Kshs.300,000/- to facilitate an outing to Mombasa. PW1 stated that he undertook to pay the same on Friday 26th April, 2019. PW1 reported this to the Investigating Officer PW11 and on 26th April, 2019 he received treated notes and again in the company of PW4 and the Commissions officers PW5, PW9, PW10 and PW11 he proceeded to Oilibya Petrol Station to meet the Appellant and his co-accused. PW1 testified that when he handed the money to the 3rd accused he declined to take it and told him to hand the money to the Appellant and immediately he did so the Ethics and Anti-Corruption Commission officers closed in and arrested the Appellant and the 2nd accused but the 3rd accused escaped.

20. In his defence the Appellant denied visiting Kiragu Waichahi School on 10th April, 2019 but conceded that on 25th April, 2019 he joined his colleagues at a table where PW1 and PW4 were. He also denied that he took part in their conversation but admitted that he called PW1 and PW4 back as they were leaving the lounge. The Appellant stated that he was not aware that he was being recorded. He conceded that “mita” was slang. He further testified that in regard to the arrest although he was present at Oilibya when PW1 went there with the money it was the 3rd accused who told PW1 to give him the money to count. He insisted that his intention was not to receive the money but only to count it. The appellant claimed he was trapped and urged the trial magistrate to find so and acquit him.

21. I have evaluated the evidence adduced at the trial court carefully. I have also carefully considered the grounds of appeal and the rival submissions of Learned Counsel for the parties both here and in the lower court. From the definitions in Section 6 and 7 of the Bribery Act there is no doubt that the functions that were being performed by appellant at the material time constituted a relevant public function within the meaning of Section 7 of the Bribery Act. The office of Member of County Assembly is a Constitutional office and a state office for that matter. Indeed, Members of the County Assembly are state officers – See Article 260 of the Constitution which also defines “public officer” as meaning “(a) any State officer”. It is my finding that the duty that had been placed upon the committee of which the Appellant and his co-accused were members of was therefore a relevant function as envisaged in Section 6(1)(a) of the Bribery Act. As to whether the Appellant committed the offences with which he was charged it is my finding, having carefully considered the evidence of the prosecution witnesses and his own testimony, that there is overwhelming evidence that he committed the offences and that the charges were proved beyond reasonable doubt. He was positively identified by PW3 as having been present at the school when it is alleged that he and his co-accused visited for the first time. There was also evidence that he was present at the meeting which PW1 and his brother had with his co-accused at City Hall on 26th April, 2019. He himself admitted that he was present. Although he disputed that he took part in the conversation between them he conceded that he indeed called PW1 and PW4 back as they stepped out to leave the venue. In my view this evidence and the fact that he was also present at the meeting where the money was to change hands and the fact that he even admits that he took the money to count it proves to me that the prosecution witnesses, more so PW1 and PW4, were witnesses of truth. It is my finding that their evidence is credible and trustworthy and as it was corroborated by the recordings and the oral testimonies of the EACC officers it is reliable. The Appellant not only requested for the bribe but he also received it. This he did so as to improperly perform a relevant function which was to investigate the allegation of public land grabbing. I find therefore that there was proof beyond reasonable doubt that he received a bribe contrary to Section 6(1) (a) as read with Section 18 of the Bribery Act.

22. It is also my finding that the defence of entrapment does not apply to his case the reason being that he was not trapped into committing the offence as together with his colleagues he had already hatched a plan to solicit money from the proprietors of the school on the pretext that they were investigating them for grabbing public property even before the State agents got into the picture. They were not tricked into asking for the money. They indeed threatened to place the “letter” concerning the school before the speaker for discussion unless they received the money. They even negotiated the first installment of the bribe to Kshs. 300,000/= down from Kshs.500,000/=. The Ethics and Anti-Corruption Commission officers only came into the picture after the solicitation had taken place. From the evidence of PW1, PW3 and PW4 none of them expected the Appellant and his co-accused would go to the school and thereafter make a demand as they did. The Ethics and Anti-Corruption Commission officers did not certainly induce the commission of the offence. Their involvement came after the offence had been committed.

23. I am in agreement with the Warsame J, as he then was, in the case of Mohammed Korio Nur vs Republic (supra) that in considering whether entrapment occurred, the Court ought to address its mind to the following:“(1)Whether the conduct of the State agent induced the offence.(2)Whether the State agent had reasonable grounds for suspecting the accused was likely to commit the particular offence or a similar offence and that the agent was acting in the course of a bona fide investigations.(3)Whether before the inducement the accused had the intention of committing the offence or a similar offence if an opportunity arose in the absence of the State agent.(4)Whether the offence was induced as a result of persistent opportunity, threats, deceit, offers of reward or other inducement that would not ordinarily associate with the commission of the offence.” (emphasis mine)It is my finding that the sting operation leading to the arrest of the Appellant when weighed against the above considerations does not amount to entrapment. In this case there is evidence that the appellant solicited for the bribe without the State’s involvement. In essence, he would still have requested and received the bribe from PW1 even had he not reported the matter to the officers of the Commission.

24. On the issue of sentencing, this court notes that the appellant has not challenged the fine imposed which in any case he has already paid. His main contention is in regard to the additional penalty imposed by the trial court under Section 18(8) of the Bribery Act. The section states as follows:“18. Penalties…..(8)If the convicted person is a State officer or a public officer, such person shall be barred from holding public office in accordance with the provisions of the Constitution, the Anti-Corruption and Economic Crimes Act, 2003 (No. 3 of 2003), the Public Officer Ethics Act, 2003 (No. 4 of 2003), and the Leadership and Integrity Act, 2012 (No. 19 of 2012).”

25. The order of the trial court pursuant to the above section was as follows:“In view of the Provisions of section 18(b) (sic) of the Bribery Act No. 47 of 2016, the 1st accused shall forthwith be barred from holding public office as a Member of County Assembly in accordance with the law and therefore a certified copy of the judgment herein and this sentence shall be forthwith served upon the speaker of the Nairobi City County Assembly for his compliance and record” (underlining mine).

26. In my finding, the trial court misdirected itself in making the above pronouncement whose effect was to remove the Appellant from office forthwith yet the Constitution provides for the manner in which the office of a Member of County Assembly can be vacated at Article 194(1) of the Constitution which states: -“194. (1)The office of a member of a county assembly becomes vacant—(a)if the member dies;(b)if the member is absent from eight sittings of the assembly without permission, in writing, of the speaker of the assembly, and is unable to offer satisfactory explanation for the absence;(c)if the member is removed from office under this Constitution or legislation enacted under Article 80;(d)if the member resigns in writing addressed to the speaker of the assembly;(e)if, having been elected to the assembly––(i)as a member of a political party, the member resigns from the party, or is deemed to have resigned from the party as determined in accordance with the legislation contemplated in clause (2); or(ii)as an independent candidate, the member joins a politi­cal party;(f)at the end of the term of the assembly; or(g)if the member becomes disqualified for election on grounds specified in Article 193 (2).

27. Section 18(8) of the Bribery Act must be read together with Section 63 and more especially Section 63(4) of the Anti-Corruption and Economic Crimes Act. Section 63 of the Anti- Corruption and Economic Crimes Act states:-“63. Suspension, etc., if convicted of corruption or economic crime1. A public officer who is convicted of corruption or economic crime shall be suspended without pay with effect from the date of the conviction pending the outcome of any appeals.2. The public officer ceases to be suspended if the conviction is overturned on appeal.3. The public officer shall be dismissed if—(a)the time period for appealing against the conviction expires without the conviction being appealed; or(b)the conviction is upheld on appeal.4)This section does not apply with respect to an office if the Constitution limits or provides for the grounds upon which a holder of the office may be removed or the circumstances in which the office must be vacated.”Therefore in this case, the provisions of Section 18(8) of the Bribery Act could not apply to the Appellant as though a state officer the Constitution provides for the manner of his removal. To my mind, whereas the conviction provided a good ground for the Appellant’s removal the court could not itself remove him by adverting to Section 18(8). A purposive interpretation of Section 18(8) of the Bribery Act as read together with Section 63(4) of the Anticorruption and Economic Crimes Act leads to the conclusion that the intention of the drafters thereof was to exclude a section of state officers from removal otherwise than as is provided in the Constitution. To my mind it is akin to the removal of a judge from office which is expressly provided for in Article 168 of the Constitution so that even were a judge to be found guilty of bribery the conviction would be a ground for their removal as provided in Article 168 of the Constitution but the Judge would certainly not be removed by the trial court through Section 18(8) of the Bribery Act. Section 63(4) of the Anti-Corruption and Economic Crimes Act the section would not apply given that the Constitution provides for the manner of removal of a judge. Similarly the constitution provides for the manner for removal of a Member of County Assembly, as was the Appellant, and clearly Section 18(8) did not apply. In the case of Ferdinand Waititu Baba Yao v Republic (Pet. No. 2 of 2020) [2021] eKLR KESC 11 (KLR) the Supreme Court was concerned with Section 62(6) of the Anti-corruption and Economic Crimes Act, which is similar to Section 63(4), in regard to a bail application and it made it clear that the court was not removing the Governor from office. That decision, with due respect, to Learned Counsel for the Respondent, can only be interpreted in favour of the Appellant but not against him. To my mind this section was placed here so as to avoid conflict or inconsistency with the constitution in so far as removal of certain state officers is concerned.

28. Moreover, Section 18(8) of the Bribery Act was also subject to Article 193(3) of the Constitution which allows the Appellant to exhaust all avenues of appeal or review before he can be barred from holding office. Accordingly, whereas the Commission of the offences clearly is a contravention of Chapter Six of the Constitution, the order under Section 18(8) of the Bribery Act could not therefore have taken effect immediately.

Conclusion 29. In the upshot the Appellant’s conviction is upheld and the sentence is affirmed save that the order under Section 18(8) of the Bribery Act in so far as it purported to, at the time, remove or bar the Appellant from office forthwith was irregular and it is set aside. However, for avoidance of doubt that is not to say that the conviction is not a ground for such a bar as evidently it is one of the grounds for removal/barring from running for such office as set out in Article 193(2)(g) and also Article 194(1)(c) of the Constitution. This court’s pronouncement with regard to “Order 4” of the trial court is confined to the appellant’s current term which was to be affected by the said order, and not to any future attempt to contest for such public office. The conviction for the offences is safe and is upheld and the sentences are affirmed as they are legal and were neither harsh nor excessive.

SIGNED, DATED AND DELIVERED VIRTUALLY IN NAIROBI ON THIS 14THDAY OF JULY, 2022. E N MAINAJUDGE