[2022] KEHC 10767 (KLR)

Mutuma v Ethics & Anti-Corruption Commission & another (Anti-Corruption and Economic Crime Petition 12 of 2021) [2022] KEHC 10767 (KLR) (Anti-Corruption and Economic Crimes) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10767 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crime Petition 12 of 2021

EN Maina, J

June 9, 2022

Between

Thuranira Salesio Mutuma

Applicant

and

Ethics & Anti-Corruption Commission

1st Respondent

Chairman B.O.D Prof Romanus Odhiambo

2nd Respondent

Judgment

1. On October 15, 2020, the petitioner, who describes himself as whistle blower and public-spirited activist, made a request to the 1st respondent to investigate several alleged corruption related activities involving and/or allegedly perpetrated by the 2nd respondent in the cause of his employment as the vice chancellor of Meru University of Science and Technology.

2. The conduct alleged is said to have involved among others flouting of procurement laws leading to colossal loss of public funds and unethical behavior. It’s the petitioner’s case that the 2nd respondent personally ensured that tenders were awarded to non-competitive bidders who were not the lowest; that tenders were to bidders with very high margins of millions of shillings and that he unfairly, unjustly and un-lawfully discriminated upon some local bidders, who previously were suppliers of the university, in favour of bidders in whom he had an interest.

3. The petitioner also contends that the 2nd respondent highly politicized his positon and spent a lot of time campaigning for his wife who had an interest in the Governorship of Migori County; that sometimes in February 2020 the 2nd respondent drew allowances of about Kes 40 million from the University while on sick leave without transparency and accountability and further that the 2nd respondent was accused of paying members of the University Council allowances over non-existent meetings to influence their decisions.

4. The petitioner also alleges that the 2nd respondent breached recruitment procedures by discriminating against competent and long serving employees of the University and has un-procedurally employed his close associates without interviews, advertisement and shortlisting.

5. The petitioner contends that the above complaints against the 2nd respondent to the 1st respondent raises serious issues that require urgent investigations such as queries in the procurement department, conflict of interest, vested interest, unethical labour practices against employees, poor staff medical cover, refusal to promote deserving staff, misappropriation of research and Covid – 19 funds among others. The petitioner contends that the failure of the 1st respondent to investigate his complaint and to take necessary action to establish any corruption related activities is a breach of his constitutional rights. In the petition he cites Articles 22, 258, 165 (2), 10, 20, 21, 27, 46, 232 and 236 of the Constitution and urging that the public will continue to suffer loses of money seeks reliefs as follows:-“a)A declaration compelling the 1st respondent to forthwith perform its constitutional mandate and obligations and forthwith investigate the complaint lodged to it by the petitioner and take the necessary action to establish any corruption related activities involving and or perpetrated by the 2nd respondent in the course of his employment.b.An order that if the investigations by the 1st respondent establishes any corruption related activities involving and or perpetrated by the 2nd respondent in the course of his employment, the 2nd respondent shall be barred from performing his duties as the vice-chancellor of Meru University of Science and Technology.c.An order that the respondents to ensure that seamless transition in leadership in public agencies be a norm rather than an exception and that the same should form what is envisaged under the rule of law and safe guarding public interest.d.That this honourable court do issue any other reliefs as it may deem fit to meet the ends of justice.e.Costs of the petition.”

6. In opposition the 1st respondent filed a replying affidavit sworn by Everline Odipo its investigator. She deposes that on October 15, 2020 the 1st respondent indeed received a complaint from the petitioner. She concedes that the complaint revolved around the issues pleaded by the petitioner, but contends that those issues are so broad in scope that they require a lot of time to investigate. She contends that the petitioner filed his petition barely fifteen days after lodging the complaint with the commission even though the 1st respondent had embarked on investigations. She has annexed as proof a letter dated November 25, 2020 sent to the subject University by the 1st respondent asking for documents relevant to the investigation and a response thereto by the University dated December 3, 2020. She deposes that after receiving the documents the 1st respondent embarked on collection of evidence and that the investigations were on-going and once they are complete the 1st respondent shall compile a report and send it to the Director of Public Prosecutions as provided in section 35 of the Anti-Corruption and Economic Crimes Act.

7. The deponent undertakes that the commission shall conduct thorough and objective investigations within the confines of its mandate and afford an opportunity to the petitioner and the 2nd respondent to comment on the allegations before making its final decision. She urges this court not to grant the orders sought.

8. She states that under section 28 of the Ethics and Anti-Corruption Commission Act the 1st respondent is not subject to the direction or control of any person or authority in the exercise of its mandate.

9. She also deposes that the petitioner has not demonstrated how any of his fundamental rights have been violated.

10. In his replying affidavit sworn on December 2, 2021 the 2nd respondent deposed, inter alia, that the petitioner did not exhaust the available mechanisms regarding complaints pertaining to procurement by public entities; that such complaints ought to be made to the Public Procurement Administrative Review Board as provided in section 27 of the Public Procurement and Disposal of Assets Act; that the claims made against him by the petitioner are vexatious, frivolous and unverified as they are based on allegations by third parties and further that this court cannot adjudicate on unsubstantiated claims.

11. The 2nd respondent deposes that his right to fair hearing guaranteed under article 50 of the Constitution to adduce and challenge evidence is likely to be infringed since the petition is premised on generalised claims which had no particulars or documentary evidence.

12. He also deposes that the 1st respondent is an independent Constitutional office under article 79 of the Constitution which should not be directed on how to discharge its constitutional and statutory mandate and that its independences is spelt out in section 28 of the Ethics & Anti-Corruption Commission Act.

13. Relying on the case of Towett Geoffrey and another v Thomas Kimeli Cheruiyot and 5 others; Public Service Commission and 2 others (Interested parties) [2020] eKLRthe 2nd respondent avers that the 1st respondent is not subject to the directions of any person or even this court in the manner of carrying out investigations. He contends that this petition is unconstitutional for being an affront to the independence of the 1st respondent and it ought to be struck out with costs.

14. At paragraph 24 of the affidavit the 2nd respondent confirms that the 1st respondent wrote to his office on November 25, 2020 and requested for documents and information relating to various issues and that he provided the same vide a letter dated December 5, 2020.

Submissions 15. The petition was canvassed through written submissions with those of the petitioner being filed on March 1, 2022 and those of the 1st and 2nd respondent on March 1, 2022 and 17th of February 2022 respectively.

16. In brief learned counsel for the petitioner reiterated that the petitioner being concerned with the goings on at Meru University of Science and Technology which is a public university lodged a complaint with the 1st respondent but the 1st respondent ignored the complaint and did not take action and hence the petitioner lost faith in it and resorted to this court. Citing several articles in the Constitution and sections of the Public Officers Ethics Act, counsel submitted that it is unfortunate that 2nd respondent has been allowed to go scot free despite knowingly and intentionally contravening the said provisions. Counsel submitted that it is only just that this court intervenes. Counsel submitted that this court has jurisdiction to determine the petition. He relied on the case of East African Railway Corporation v Anthony Sefu [1973] EA and articles 159 and 165 (3) of the Constitution. Counsel argued that this court has power to grant orders where the 1st respondent refuses to carry out its statutory obligations hence contravening the Constitution and the Bill of rights. Counsel submitted that the power of the court to do so flows from article 23 (3) of the Constitution. As to whether the 2nd respondent has contravened the Constitution and other relevant provisions of the law Counsel pointed out the several areas in which the 2nd respondent has allegedly abused his office as :-“a)He has not carried out his duties in accordance with the law and in so doing violated the right and freedoms of his staff, students and must community. He has thus violated the provisions of section 10 of the Public Officer Ethics Act and section 7 of the Leadership and integrity Act of 2012. b.He has betrayed the public trust bestowed upon him contrary to the provisions of section 8 of the Leadership and Integrity Act of 2012 which states that:“ A state office is a positon of public trust and the authority and responsibility vested in a State Officer shall be exercised by the State officer in the best interest of the people of Kenya”.c.He has used his office improperly to enrich himself and his close family members and friends by awarding tenders to friends, misappropriating University and public funds all for his own benefit thus contravening section 11 of the Public Officer Ethics Act and section 12 and 15 of the Leadership and Integrity Act of 2012. d.He has in participating in tenders unlawfully and through corrupt actions contravened the provisions of section 17 of the Leadership and Integrity Act of 2012 which states that:“A State officer or a public officer shall not participate in a tender for the supply of goods or services to a public entity in which he or she is serving or is otherwise similarly associated, but the holding of shares by a State officer or a public officer in a company shall not be construed as participating in the tender of a public entity unless the State officer or public officer has a controlling shareholding in the company”.e.He has allowed his personal interests to conflict with his official duties thus affecting his performance as a state officer contrary to the provisions of section 12 of the Public Officer Ethics Act and section 16 of the Leadership and Integrity Act of 2012. f.He has allowed himself in the performance of his official duties to engage in political activities and to support his wife who is an election candidate thereby contravening section 16 of the Public Officer Ethics Act and section 23 of the Leadership and Integrity Act of 2012. g.He has in his actions in recruiting staff members portrayed favouritism, impartiality and discrimination by appointing his close and unqualified friends and denying the qualified personnel the opportunities contrary to section 17 of the Public Officer Ethics Act and section of the Leadership and Integrity Act of 2012. h.He has in conducting his private affairs, acted in a way that undermines the confidence and integrity of his office contrary to section 20 of the Public Officer Ethics Ac and section 32 of the Leadership and Integrity Act of 2012. i.He has through his selfish acts of mismanaging and misappropriating university and research funds denied the students their fundamental right to education contravening Articles 43, 55 and 56 of the Constitution.j.He has by denying the must staff members their rightful medical cover, violated, infringed and denied them and their families their right to health care services thus contravening Articles 43 and 53 of the Constitution.k.He has through his actions breached the code as provided for in section 41 of the Leadership and Integrity Act of 2012 which states that:-“(1) Subject to sub section (2) a breach of the Code amounts to misconduct for which the State officer may be subjected to disciplinary proceedings.(2)Where an allegation of breach of the Code has been made against a State officer in respect of whom the Constitution or any other law provides the procedure for removal or dismissal, the question of removal or dismissal shall be determined in accordance with the Constitution or that other law”.Counsel argued that unless the prayers sought in the petition are granted the 2nd respondent will continue violating and contravening the Constitution and the law hence occasioning the University community untold losses and suffering. Counsel urged this court to uphold the policy of the law as held in the case of Standard Charted Bank v Pakistan National Shipping Corporation [No. 2] [2000] where the court stated:-“The policy of the law is to protect the public from deceit and maintain standards of commercial morality”.

17. Learned Counsel for the 1st respondent submitted that the order sought by the petitioner is in the nature of mandamus. She submitted that the order can only be issued where a person or entity has failed, neglected or refused to perform a public duty to the detriment of a person who has a legal right to expect performance of that duty. For this counsel relied on the ratio in the case of Kenya National Examination Council v Republic ex-parte Geoffrey Gathenji Njoroge and 9 others [1977] eKLR that:-“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual”.

18. Counsel maintained that the 1st respondent had not neglected, refused and/or failed to carry out its mandate to investigate the petitioner’s allegations contained in the letter dated October 15, 2020. Counsel submitted that the Commission had exhibited proof of its efforts to investigate the matter. Counsel stated that the petitioner had an ulterior motive when he filed this petition only 15 days after lodging his complaint. Counsel submitted that an order of mandamus cannot issue as the 1st respondent has not declined to undertake investigations. For this Counsel relied on the case of Kenya National Examinations Council v Republic ex-parte Geffrey Gathnji Njoroge and 9 others (supra).

19. Counsel further contended that moreover granting the order in the absence of any impropriety on the part of the 1st respondent will be tantamount to fettering the 1st respondent’s mandate contrary to section 28 of the Ethics and Anti-Corruption Commission Act which provides for the independence of the 1st respondent. Counsel contended that in the past courts have been slow to interfere with the mandate of investigative agencies unless it is proved that the said powers are being abused and are exercised in bad faith and cited the case of Republic v Anti-Counterfeit Agency and 2 others exparte Surghipharm {2015}eKLR and the case of Republic v Commissioner of Police and anotherexparteMonani and another [2012] eKLR.Counsel asserted that the 1st respondent cannot be directed in the manner in which it should perform its constitutional and statutory mandate in the absence of impropriety on its part.

20. On whether an order barring the 2nd respondent as prayed in the petition should issue counsel submitted that action can only be taken against the 2nd respondent once investigations against him are concluded. Counsel contended that some of the petitioners allegations are so broad in scope that they require a lot of time to exhaustively investigate and the 1st respondent ought therefore to be allowed to complete the investigations and this prayer is therefore premature.

21. As to whether the 1st respondent should be compelled to ensure that seamless transition in leadership in public agencies is the norm rather than the exception as prayed in the petition Counsel submitted that there is no legal duty imposed upon the 1st respondent to do so and as such that prayer cannot issue. For this counsel placed reliance on the case of Republic vthe Commissioner of Lands and another ex parte Kithinji Murugu M’agerre, Nairobi H.C Misc. Application no. 395 of 2021. Counsel prayed that the petition be dismissed with costs to the respondents.

22. Learned Counsel for the 2nd respondent reiterated the 2nd respondents averment in the replying affidavit that this court has no jurisdiction to hear this matter. Counsel submitted that this court can only hear the matter on appeal and that further the petition should be struck out for offending the doctrine of exhaustion. Counsel placed reliance on the case of Kenya Pipeline Company Limited v Hyosung Ebara Company Limited and 2 others [2012] eKLR cited in the case of Republic v Public Procurement Administrative Review Board and 2 others exparte Rongo University {2018}eKLR where the court held:-“The Review Board is a specialized statutory established to deal with all complaints of breach of duty by the procuring entity. By Reg. 89, it has power to engage an expert to assist in the proceedings in which it feels that it lacks the necessary experience. Section 98 of the Act confers very wide powers on the Review Board including annulling, anything done by the procurement entity and substituting its decision for that of the procuring entity that the administrative review envisaged by the Act is indeed an appeal. From its nature the Review Board is obviously better equipped than the High Court to handle disputes relating to breach of duty by procurement entity. It follows that its decision in matters within its jurisdiction should not be lightly interfered with”.

Issues for determination 23. The issues for determination are;-

1. Whether this court has jurisdiction to hear and determine this petition.2. Whether this court ought to compel the 1st respondent to investigate the complaint lodged by the petitioner on October 15, 2020. 3.Whether this court should issue an order barring the 2nd respondent from performing his duties as the Vice Chancellor of Meru University of Science and Technology if investigations by the 1st respondent establish that he has perpetrated corruption in the course of his investigations.4. Whether an order should issue to compel the respondents to ensure that seamless transition in leadership in public agencies be a norm rather than an exception and that the same should form what is envisaged under the rule of law and safeguarding public interest.5. Who should bear the costs of this application.

Issue No 1 - Whether this court has jurisdiction to her and determine this petition. 24. As was stated in the case of Owners of the Motor Vessel “Lilian” S. v Caltex Oil (Kenya) Ltd [1989] eKLR jurisdiction is everything and without it the court has no power to make one more step and it must down its tools. It is equally true as was held in the case of Samuel Kamau Macharia &another v Commercial Bank Limited and 2 others [2012] that:-“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus a court of law can only exercise jurisdiction as conferred by constitution or other written law…”

25. The letter dated October 15, 2020 which the petitioner wrote to the 1st respondent and which is the central issue in the petition levelled several allegations against the 2nd respondent namely:-1. Violation of procurement procedure/processes.2. Conflict of interest3. Irregular recruitment of staff4. Unethical labour practices5. Staff medical cover6. Promotions7. Unaccounted for Research funds8. Unwarranted travel allowances9. Covid 19

26. I would agree with Counsel for the respondent that in regard to procurement the petitioner’s first port of call should have been the Public Procurement Administrative Review Board established under section 27 of the Public Procurement and Disposal of Assets Act. Section 35 of the Public Procurement and Disposal of Assets Act clothes the Review Board with power to carry out investigations with respect to procurement or disposal of assets with respect to a state organ or public entity for the purpose of determining whether there has been a breach of the Act or Regulations made thereunder. Sub-Section 2 of the Section provides that the investigation may be initiated by the authority or on request in writing by a public institution or any other person so that even a person like the petitioner can made a complaint. Section 38 of the Act sets out the powers of the Director General upon receipt of the report part of which entails preparing and submitting a summary of the investigator’s findings and recommendations to the relevant authorities for action and Section 38(2) gives the affected persons a right of hearing. The phrase “relevant authorities” is not defined in the Act but I hold the view that such an authority would include the police or the Ethics and Anti-Corruption Commission. There is now a long line of cases which require that parties must first exhaust the alternative mechanisms of dispute resolution stipulated in the law before approaching the court (see the case of Kenya Pipeline Company Limited v Hyosung E bara Company limited and 2 others [2012] eKLR cited in Republic v Public Procurement Administrative Review Board and 2 othersexparte Rongo University [2018] eKLR. The petitioner therefore ought to have lodged his complaint for investigation to the Review Board for investigations before going to the 1st respondent.

27. Be that as it may section 25 of the Anti-Corruption and Economic Crimes Act envisages that a complaint concerning corrupt conduct on the part of any person may also be made to the Commission, indeed the section requires the Commission to inform the person if it declines to investigate or if it discontinues the investigations. The commission is required to do so in writing. Section 11 (1) (d) of the Ethics and Anti-corruption Commission Act enjoins the 1st respondent to investigate and recommend to the Director of Public Prosecution the prosecution of acts of corruption under the Anti-Corruption and Economic Crimes Act of which breaches of the provisions of the Public Procurement and Disposal of Assets Act and the other conduct alleged by the petitioner would fall.

28. Having lodged his complaint to the 1st respondent the petitioner therefore had a legitimate expectation that it would be acted upon and to seek enforcement of his rights if the same were violated and in effect therefore this court has the requisite jurisdiction to hear and determine this petition which seeks enforcement of the petitioners rights under the Bill of Rights.

Issue No. 2: Whether this court ought to compel the 1st respondent to investigate his complaint 29. It is clear from the record that the petitioner filed this petition only 25 days after lodging the complaint with the 1st respondent. It is my finding that the 1st respondent has demonstrated that it had in fact embarked on the investigations when it was slapped with this suit. It is my finding that the petitioner did not afford the 1st respondent reasonable time to investigate his complaint and must do so. In my view the period of 25 days was not a reasonable time within which such far reaching allegations could be investigated. Moreover as submitted by Counsel for the 1st respondent it is trite that this court can only review the decisions of public bodies and Independent Offices such as the 1st respondent only where it is demonstrated that there was impropriety on their part (see the case of Republic v Anti-Counterfeit Agency & 2 othersexparte Surgipharm [2015] eKLR) where the court stated:-“The courts ought not usurp the statutory mandate of investigating and prosecuting authorities and undertake prosecution in the exercise of discretion conferred upon those authorities. The mere fact that the intended or ongoing investigations or prosecutions are in all likelihood bound to fail is not a ground for halting those proceedings by way of Judicial Review since Judicial Review proceedings are not concerned with merits but with the decision making process.”

30. It is my finding that the petitioner did not only fail to give the 1st respondent reasonable time to investigate the allegations in the letter dated October 15, 2020 but that he has also not demonstrated any impropriety on the part of the 1st respondent to warrant this court to grant him the orders sought. I find no merit in his prayer and it is dismissed.

Issue No 3 – Whether this court should issue an order barring the 2nd respondent from performing his duties as the Vice Chancellor of Meru University of Science and Technology if investigations by the 1st respondent establish that he has perpetrated corruption in the course of his investigations. 31. Investigations are yet to be carried out and hence no culpability has been established against the 2nd respondent and so this prayer cannot issue. It would also be a travesty of justice to condemn a person before giving him a right to be heard.Issue No. 4 - Whether an order should issue to compel the respondents to ensure that seamless transition in leadership in public agencies be a norm rather than an exception and that the same should form what is envisaged under the rule of law and safeguarding public interest.

32. In my view this prayer is speculative and a court of law will not issue orders based on speculation. The answer to this issue is therefore in the negative.

Issue No 5 Who should bear the costs of this application. 33. Costs follow the course but are in the discretion of the court. It has however been the practice for courts not to award costs in cases involving public litigation. However, while the petitioner herein describes himself as a whistle blower and public spirited activist it is my finding that he acted unreasonably by dragging the respondents to court without affording the 1st respondent sufficient time to investigate the allegations made against the 2nd respondent and accordingly he must bear the costs of the petition.

34. In the upshot the petition is found to be without merit and it is dismissed with costs to the respondents.

SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 9THDAY OF JUNE, 2022. E. N MAINAJUDGE