[2022] KEHC 10573 (KLR)

Mwangi v Director of Public Prosecutions & another (Anti-Corruption and Economic Crime Petition E005 of 2021) [2022] KEHC 10573 (KLR) (Anti-Corruption and Economic Crimes) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10573 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crime Petition E005 of 2021

EN Maina, J

June 9, 2022

Between

Annete Mwangi

Petitioner

and

Director of Public Prosecutions

1st Respondent

Ethics & Anti-Corruption Commission

2nd Respondent

Judgment

1. The Petitioner, Annette Mwangi, filed the Petition dated 17th June 2021 which is supported by an affidavit sworn on even date, for orders to stop her prosecution in Nairobi Chief Magistrates Anti-Corruption Case No. 28 of 2019 Republic v Stephen Ndungu Kinuthia and others (“ACC No. 28 of 2019”). She asserts that the proceedings against her are in breach of her constitutional rights and fundamental freedoms and asks the court to allow the Petition and to grant the following orders:“i)A declaration that the investigations by the 2nd Respondent were in breach of the Petitioner’s rights to fair administrative action and right to natural justice.ii)A declaration that the decision by the Respondents to prefer charges against the Petitioner was in breach of Article 157 (11) of the Constitution.iii)A conservatory order to permanently stop the trial of the Petitioner herein in the aforementioned offences.iv)An order of Judicial Review by way of certiorari to remove into this court the decision of the Respondents in Nairobi Chief Magistrates (Anti-Corruption) Court Cr. Case No. ACC 28/2019 to prefer charges against the Petitioner for the purposes of quashing on account of the circumstances and constitutional violations in the manner of treatment and decision so far to prefer the said charges.v)An order of Judicial Review by way of prohibition to prohibit further trial of the Petitioner by the Respondent before the Chief Magistrates Court in Nairobi Criminal Case No. ACC 28/2019 and or such further and or other proceedings that may be instituted in respect thereof.vi)General damages for the breach of the Petitioner’s Constitutional rights to freedom from discrimination (Article 27), fair administrative action (Article 47) and fair hearing (Article 50).vii)Costs of the Petitionviii)Interests on (6) above at court rates from the date of filing of the Petition until payment in full.ix)Any other orders that this Honourable court deems fit and just to grant in the circumstances.”

2. The 1st and 2nd Respondents opposed the petition through Grounds of Opposition dated July 12, 2021 and a Replying Affidavit sworn by Mulki Abdi Umar on August 23, 2021 respectively. In rejoinder to their responses, the petitioner filed a further affidavit sworn by herself on September 15, 2021. Thereafter parties filed written submissions in support of their respective positions.

The Parties 3. The Petitioner describes herself as a female adult compos mentis, a Kenyan citizen resident in Nairobi, and a career public servant serving under the Office of the Auditor General.

4. The 1st Respondent is the Director of Public Prosecutions (“DPP”), a State Office established under Article 157 of the Constitution vested with the powers of prosecution and governed by the Office of the Director of Public Prosecutions Act No.2 of 2013.

5. The 2nd Respondent is the Ethics and Anti-Corruption Commission (“EACC”) a body established under the Ethics and Anti-Corruption Commission Act and mandated to combat and prevent corruption, economic crimes and unethical conduct through law enforcement, prevention, public education, promotion of standards and practices of integrity, ethics and anti-corruption.

The Petitioner’s case 6. The Petitioner states that she was charged in ACC No. 28 of 2019 with two offences under the Anti-Corruption and Economic Crimes Act, 2003 whose particulars are as follows:“1)Count 1: Conspiracy to commit an offence of corruption contrary to section 47A (3) as read with sections 48 of the Anti-Corruption and Economic Crimes Act, 2003. Particulars: That between 4th July, 2012 and 17th August 2014, within the Republic of Kenya, being the Deputy Auditor General Corporate Services, Manager Information Technology Audit, she together with the Directors OSI Kenya Limited, Sales Executive Oracle systems Kenya Limited and Directors of Mars Technology respectively, jointly conspired to commit an economic crime to wit fraudulent acquisition of public property namely a sum of Kshs. 100,675,680. 70 in regard to the Tender for supply and implementation of an audit vault software in the office of the Auditor General; and2. Count 2: Deceiving a principal contrary to section 4 (2) as read with section 48 of the Anti-Corruption and Economic Crimes Act, 2003. Particulars: That on 18th June 2013, at the offices of the Auditor General within Nairobi City in the Republic of Kenya, being the Manager Information Technology Audit, to the detriment of your principal, knowingly gave a misleading document to the auditor general to wit a memo dated 18th June 2013, indicating that OSI Kenya Limited were the only accredited Oracle providers of an Audit Vault Solution, an act that led to the irregular award of the contract for the supply, delivery, and implementation of the Audit Vault Software in the office of the Auditor General to OSI Kenya Limited.”

7. The Petitioner avers that the basis of the charges against her is a memo dated June 18, 2013 jointly signed by herself and a colleague one Justus Ongera, requesting for the purchase of the Oracle Audit Vault as a tool to audit the IFMIS, the government’s accounting system for electronic procurement. She avers that before signing the memo Justus Ongera conducted due diligence and that she merely relied on his affirmation in signing it. She stated she was neither the author of the memo nor was she the person who conducted due diligence with respect to the issue.

8. The Petitioner contends that the decision by the 1st Respondent to charge her and leave out Justus Ongera who not only co-signed the impugned memo but also conducted due diligence and endorsed the contents of the memo was irrational, discriminatory and premised on mala fides. She argues that the DPP applied its prosecutorial mandate discriminatively, by unreasonably and deleteriously selecting to charge the Petitioner and without reason leave out and absolve Justus Ongera; that the selective prosecution is only intended to vex, embarrass and demean her and it amounts to discrimination based on her gender. She contends that the exclusion of her male colleague was in violation of her right to equality before the law guaranteed under Article 27 of the Constitution.

9. The Petitioner contends further that the Respondents violated her right to fair hearing under Article 50 (1) (a), (b), (c) and (j) by failing to disclose the acts that constitute deceiving a principal; That Article 236 protects public officers from victimization for having performed their functions in accordance with the law and that her signing of the memo was in accordance with the law and the internal audit procurement processes of the Office of Auditor General.

10. The Petitioner contends that the charges instituted against her are irrational, misconceived and doomed to fail; That she cannot be said to have deceived the Auditor General when in actual fact the Auditor General already had actual knowledge of the facts prior to the memo through a letter from Oracle dated June 17, 2013 and acted upon it through the Account Manger one Charles Githinji Gichobi. Further that the Respondents ought to have assessed her involvement and culpability, if any, in the entire corrupt scheme, conspiracy, fraud and/or purported deception. She avers that she was not a party or beneficiary to the corrupt scheme of the procurement of the Audit Vault software; that she executed the impugned memo under undue influence and intimidation from the Deputy Auditor General – Director Corporate Services one Stephen Kinuthia, who summoned her into the executive boardroom, handed her the memo and instructed her to sign it; that she signed it was due to coercion from her superior and the Respondents ought to have taken into account the Petitioner’s dilemma and plight. She also averred that the said Deputy Auditor General played a central role in the conspiracy.

11. The Petitioner contends further that there were conflicting investigation reports by the 2nd Respondent. She asserts that the initial investigation by one Taabu Lwanga absolved the Petitioner on the basis that she lacked capacity under Section 29 of the Public Procurement and Disposal of Assets Act to authorize the Auditor General and or the Tender Committee to approve single sourcing of the Audit Vault software; that to the contrary, the responsibility lay with the Tender Committee and that the said Taabu Lwanga recommended that charges be preferred against the members of the Tender Committee including Edward Ouko, Agnes Mita, Alex Rugera and John Kagondu.

12. She avers that the second investigator one Mulki Omar arrived at different findings which absolved the Tender Committee and found that the Petitioner together with Justus Ongera deceived the Auditor General. The Petitioner contends that Mulki Umar did not give reasons or explanations on why she contradicted the initial investigation report by Taabu Lwanga. The petitioner contends that Mulki Omar did not have the authority to recommend charges as she was attached to the asset tracing department and not the economic crimes department of the 2nd Respondent; that on the whole her findings were speculative, unauthorized and unjust and ought not to have overruled the initial investigation report. The Petitioner contends that the report by Mulka Omar ought to have made findings on the following questions: whether the user department can in law and fact authorize the Auditor General and/ or the Tender Committee to approve a user tool request; why the investigator absolved the members of the Tender Committee from any blame and did in fact drop the names of the executive committee members Edward Ouko, Agnes Mita, Alex Rugera and John Kagondu; and what roles if any did the executive committee, tender committee and/or the petitioner herein play in the corrupt scheme?

13. Finally, the Petitioner contends that in the circumstances, it is unjust, irrational, prejudicial, malicious unconstitutional, irresponsible, an abuse of court process and immoral for the Respondents to continue persecuting her whereas their own investigations revealed that she did not play any role in the procurement of the Audit Vault software except for signing of the user request, done under the deception of her co-signatory and who was intriguingly not charged.

1st Respondent’s case 14. The 1st Respondent herein opposed the Petition vide its grounds of opposition dated July 12, 2021. The same raise 9 broad grounds summarized as follows: that the Petitioner seeks to direct the 1st Respondent’s exercise of its powers and functions without proper legal basis; that the decision to charge the Petitioner is not dependent on whether or not another person is charged, but is based on the existence of sufficient evidence with a real prospect of conviction; that the decision to charge the Petitioner is not a bar to future charges against any other person who may be culpable as there is no limitation of time to the institution of criminal charges; that the issues raised by the Petitioner are matters of evidence and should best be canvassed at the trial court; that the prayers if granted would deny the Respondents their statutory and constitutional mandate to investigate and prosecute corruption offences; that the Petition is frivolous, vexatious and an abuse of the legal process; that the Petition does not demonstrate a prima facie arguable case on breach of any constitutional provision and the same should be dismissed.

The 2nd Respondent’s case 15. The 2nd Respondent herein opposed the Petition through the Replying Affidavit sworn on August 23, 2021 by its investigator Mulki Umar where she deposed that the Commission/2nd Respondent received a letter dated April 8, 2014 from the PS Treasury which raised several allegations of corruption at the Office of the Auditor General (OAG), including that the OAG had irregularly purchased an Audit Vault Software at a cost of Kshs. 100 million against an estimated cost of Kshs. 18 million; that the said purchase was done through direct procurement and that the supplier was paid without adequate documentation. She deposed that the Commission/2nd Respondent conducted investigations which revealed, inter alia that: the Petitioner being the Manager Information Technology Audit, knowingly made a false statement to her Principal (OAG) that OSI Kenya was the only Oracle accredited provider of the Audit Vault Solution, through the impugned memo dated 18th June 2013, a statement she had reason to believe was misleading and which led to the award of Tender in favour of OSI Kenya Limited to the exclusion of other accredited partners. She deposed that at the material time besides OSI Kenya, there were other accredited Oracle partners including Indra Ltd, Seven Seas Technology Ltd, Next technologies Ltd, Verve KO Company Ltd, Netronics Communications Ltd, eMomentum Interactive Systems Ltd, TechNet Limited, Satyam Computers Services Limited, Digital Linkage (A) Limited, JJ People (K) Limited, KPMG Kenya, Africa Neurotech Systems Limited and OSI Kenya Ltd. That contrary to the memo therefore, there were indeed other accredited partners and that open tender method ought to have been used so as to embrace the spirit of competition under Section 2 of the Public Procurement and Disposal of Assets Act 2005 (repealed).

16. She stated that the contract price was highly inflated and was contrary to the law paid to Osi Kenya Ltd on November 18, 2013 several months before the delivery was done on January 15, 2014. She avers that investigations further revealed that Stephen Ndungu Kinuthia, Deputy Auditor General received kickbacks of Kshs. 36,899,099/- from OSI Kenya Ltd, Charles Gichobi a sales executive at Oracle Systems Kenya received kickbacks of Kshs. 500,000 from Stephen Kinuthia and Kshs. 10,000,000 from Osi Kenya Ltd through his company Valueteq.

17. The Commission avers further that the impugned memo by the Petitioner and Justus Ongera formed the basis for initiating fraudulent procurement and a suit has been filed being ACEC Civil Suit No.5 of 2018 to recover the lost public funds approximating to Kshs. 46,089,966 that was occasioned by the procurement. She contends that the allegation of coercion or undue influence is not supported by evidence and besides is an issue to be canvassed by the trial court.

18. On the allegation of discrimination, Mulka Umar avers that this is without basis and that no investigator absolved the Petitioner from culpability. She depones that the Commission’s/1st Respondent’s recommendations are not binding on the 2nd Respondent and to the contrary that the 1st Respondent’s decision to charge the Petitioner was made independently pursuant to its mandate under Article 157 of the Constitution.

19. It is the 1st Respondent’s position that the Petitioner is using this Petition to subvert the criminal process; that she has raised issues of fact which ought to be determined by the trial court; that the issues raised do not constitute grounds for halting the prosecution and that the petitioner has not demonstrated that the Respondents acted illegally, unprocedurally, unreasonably or in excess of their mandate to carry out investigations and to prosecute. The deponent states that to the contrary, the 1st Respondent duly observed the rights of the Petitioner during the investigations and that her right to fair trial is guaranteed by the constitution. It is also the 2nd Respondent’s case that granting the orders sought would be tantamount to fettering the powers of the Commission/1st Respondent; that the Petition is an abuse of the court process and is frivolous and vexatious and granting the orders sought would lead to a miscarriage of justice and it should be dismissed.

20. In her further affidavit sworn on August 23, 2021 the petitioner reiterated that the decision to charge her are discriminatory; that the 2nd Respondent’s replying affidavit revealed that the corrupt scheme revolved around over-invoicing of the audit vault software tool which excess proceeds was traced to the then Deputy Auditor General – Corporate Services one Stephen Kinuthia and others; that it is apparent that the corrupt scheme was perpetrated by others way before the disreputable memo dated June 18, 2013 which memo is a user request and does not confer an procurement role or responsibility and that she has demonstrated that she only signed the user memo which her colleague Justus Ongera also signed having conducted due diligence and confirmed OSI-K were only implementers of the tool.

21. She contends that it is instructive that the 2nd Respondent’s initial investigator Mr. Taabu Lwanga dismissed the capacity of the said memo to determine the procurement method. She contends that of note is that the officer made a determination that the responsibility of determining the procurement method under Section 29 of the Public Procurement and Disposal of Assets Act and Regulations 10(2)(h) was of the Tender Committee and as such it cannot be said that a user request or the impugned memo determined the procurement method. She avers that moreover the memo only recommended to the Auditor General the single sourcing of the audit vault software tool from OSI-K. She avers that the 2nd Respondent’s latter report absolved the tender committee from performing its statutory mandate and that in her many letters to the Respondents she has reiterated her unwavering support for the prosecution of the persons who benefitted from the fraudulent scheme and is willing to become a state witness. She then states that the issues she has raised in the petition touch on violation of her constitutional rights which are not triable issues before a criminal court.

Submissions of the Petitioner 22. The Petitioner filed written submissions dated 29th November, 2021. Learned Counsel for the Petitioner framed three issues:- Whether the Petitioner’s constitutional rights were violated; whether the evidence against the Petitioner is capable of sustaining a conviction and whether the actions of the Respondent’s amount to an abuse of process and powers.

23. Counsel submitted that the decision by the 1st Respondent to charge the Petitioner and to exclude Justus Ongera a co-signee of the memo is discriminatory and contrary to Article 27 of the Constitution. That it amounts to selective prosecution and is downright unfair, unjust and discriminatory of the Petitioner. Counsel placed reliance on the case of Joshua Okungu & another V Chief Magistrates Court ACC & another [2014] eKLR.

24. Counsel further submitted that at the material time, the petitioner was a public officer working as an IT Auditor in the Office of the Auditor General; that the petitioner signed the impugned memo as a request for the user department (IT Audit) in good faith and is therefore protected under Article 236 of the Constitution. Counsel contends that the petitioner ought to enjoy immunity against victimization or discrimination for performing the functions of her office in accordance with the Constitution or any other law. Further that that notwithstanding that a requisition memo is not binding and is subject to approval by the executive and tender committee and cannot therefore confer any procurement roles or responsibilities on the Petitioner.

25. Counsel stated that the contradictory investigation reports by the 2nd Respondent and the subsequent prosecution of the Petitioner amounts to abuse of power; that the 2nd Respondent made its initial Investigative Report on October 12, 2015 through Tabu Lwanga who cleared the Petitioner from all wrongdoing as she was merely a representative of the user department and recommended that members of the Tender and executive committees respectively be charged as they had the statutory mandate to approve the procurement and award the tender. However on June 11, 2018, Mulki Umar prepared another report on behalf of the 2nd Respondent where she absolved members of the tender committee and also dropped the names of some of the members of the executive committee and recommended that the Petitioner be charged with the 2 counts without reason or justification which was discriminatory. Counsel cited the case of Ronald Leposo Musengi v Director of Public Prosecution & 3 others [2015] eKLR to support her submissions.

26. On the second issue, Learned Counsel submitted that the evidence against the Petitioner is the impugned memo dated June 18, 2013, which does not meet the threshold of a conspiracy to commit an offence of corruption as envisaged by the Anti-Corruption and Economic Crimes Act, 2003; That the memo cannot be said to have deceived the principal as it is well within the knowledge of the 1st and 2nd Respondent that the Auditor General, Edward Ouko received a letter from Oracle dated June 17, 2013 indicating OSI (K) was their local audit Vault implementation partner in Kenya.

27. On the third issue of whether the Respondents’ actions amount to abuse of power, Counsel stated that the initial investigations conducted by the 2nd Respondent absolved the Petitioner of any fault and recommended that the members of the tender and executive committee be charged. That the Arbitrary actions of the 1st and 2nd Respondent have infringed on the Petitioner's right to security of the person, equal protection and benefit of the law and also freedom from discrimination and that the sudden u-turn by the Respondents is prejudicial to the Petitioner. To support her submissions Counsel relied on the case of Ronald Leposo Musengi v Director of Public Prosecutions & 3 others [2015] eKLR.

28. Counsel asserted that the powers conferred upon the Respondents by the Constitution are not absolute and should be exercised reasonably, justly and not oppressively; that the Petitioner has suffered immense emotional, mental, and financial distress as a result of the charges against her in ACC No. 28 of 2019; that the Petitioner, her co-signee Justus Ongera were arrested on October 18, 2019 but it is only the Petitioner who was faulted for signing the memo and consequently charged on 22nd October 2019; that she has since been suspended from employment pending the hearing and determination of the case while her male counterpart continues to work, enjoy his freedom and full employment benefits despite signing the same “damning” memo. In conclusion, Counsel states that the Petitioner’s constitutional rights have been violated and she seeks the intervention of this court to protect her and to prevent further abuse of power by the respondents.

Submissions of the 1st Respondent 29. The 1st Respondent did not file written submissions.

Submissions of the 2nd Respondent 30. On their part, Counsel for the 2nd Respondent submitted that under Section 11(1) (d), Ethics and Anti-Corruption Commission Act the Commission/2nd Respondent has the authority to investigate and recommend to the Director of Public Prosecutions the prosecution of any acts of corruption, bribery or economic crimes or violation of codes of ethics or other matters prescribed under the Ethics and Anti-Corruption Commission Act, the Anti-Corruption and Economic Crimes Act or any other law enacted pursuant to Chapter Six of the Constitution and that Section 13(2) (c), Ethics and Anti-Corruption Commission Act provides that the Commission/2nd Respondent shall have the power to conduct investigations on its own initiative or on a complaint made by any person.

31. Counsel asserted that following its investigation in the matter, the Commission/2nd Respondent forwarded the results of the investigation to the 1st Respondent as provided in Section 35 of Anti-Corruption and Economic Crimes Act which said report included its recommendation on persons to be prosecuted for corruption related offences.

32. Counsel stated that the 1st Respondent’s decision to charge the Petitioner was made independently pursuant to its powers under Article 157 of the Constitution. That upon an independent review of the investigation report by the Commission; the 1st Respondent found there was sufficient evidence to sustain charges against the Petitioner. In support of those submissions Counsel cited the case of Director of Public Prosecutions & another v Crossley Holdings Limited & another [2016] eKLR where the court stated:-“The current Constitution therefore governs the case at hand. Article 157(6) & (11) of the Constitution authorizes the 1st appellant, guided by "public interests of the administration of justice and the need to prevent and avoid abuse of the legal process," to prosecute criminal offences in all courts except the court martial. In doing so, the 1st appellant does not require the consent nor is he under the direction or control of any person or authority Under Article 157(4) of the Constitution, the 1st appellant has also authority to suo moto direct the police to carry out investigations upon which he can institute a prosecution. The 1st appellant did not therefore require any report from the 2nd appellant or the parties to HCCC No. 225 of 1993 to institute the prosecution in this case. Under these provisions, we find that the Attorney General (now the 1st appellant) had a legal basis to mount the prosecution in this case."

33. Counsel submitted that it is not discrimination for investigative agencies to carry out investigations into acts or omissions of an individual and for this counsel cited the case of Rose Esther Muthoni Wamuiya v Governor County Government of Nyandarua & another; Ethics & Anti-Corruption Commission (Interested Party) [2020] eKLR where it was held: -“The petitioner alleges violation of her right to non-discrimination as a result of the investigations. The position, however, is that it is not discrimination for investigative agencies to carry out investigations into the acts or omissions of an individual, even within a body such as the CEC of the 2nd respondent. The EACC has indicated that its preliminary investigations showed that the Department in which the petitioner was the member in charge carried out certain acts that may have been short of the provisions of the law. The investigations also suggested that the petitioner signed certain documents that also did not conform with the law, and that public funds were paid out to suppliers in contravention of the law. It is not a violation of the right to non-discrimination or equality before the law for the EACC to investigate the petitioner with respect to allegations that offences may have been committed in the Department that she was in charge of at the 2nd respondent.”

34. Counsel submitted that the investigations were carried out in accordance to the law and procedure, having duly observed the Petitioner's constitutional rights; that the Petitioner was accorded reasonable opportunity to state her case which she did and recorded her statements and that once investigations establish reasonable suspicion that a person committed a crime he ought to be charged in a court of law and the rest is left to the courts of law. Counsel relied on the case of Hamisi Bweni Dzila v Director of Public Prosecution, Officer Commanding Kwale Police Station & 2 others [2021] eKLR, where the court held: -“In the current case no evidence has been adduced by the Petitioner to the effect that either the police and of the 1st Respondent acted unreasonably. The Petitioner has instead given a long and winding story about his disputes with the County Assembly of Kwale; his disputes with the 4th Respondent and his dispute with the investigating agencies. These are legitimate issues but not for determination by this Court. If every suspect were to run to the High Court to stop their impending prosecutions, no criminal prosecutions can take place. The constitutional court is not an investigative court. It does not listen to criminal evidence so as to decide who should, and who should not be prosecuted. The constitutional court only comes in to stop or to check intended or ongoing prosecutions which establish blatant abuse of constitutional rights. That abuse must be apparent on the face of proceedings. In this petition, there is no notable constitutional abuse which this Court can stop. Further, there is evidence that the Petitioner at one time asked the Court to adjourn the proceedings so that he could explore a settlement of out of court. Whatever it is, this Court does not deem it fit to interfere with the mandate of the DPP to institute prosecutions upon completion of investigations. It may as well be that the prosecution's case is weak, but let that be dealt with in the criminal trial. At the end of the day every criminal trial amounts, at some level, to a violation of individual rights, but they cannot be stopped because the truth must be established. But ultimately unfounded criminal prosecutions are vindicated through trial. In this petition there is no compelling constitutional rights abuse to warrant interference with the prosecutorial powers of the DPP by this Court."

35. She also relied on the case of Benson Muteti Masila & 5 others v Chief Magistrate Milimani Law Courts & 4 others[2020] eKLR, where it was held that: -“The Constitution has guaranteed to its citizens the rights set out in Chapter Four of the Constitution. It has given the court the jurisdiction to intervene where a violation of these rights has been demonstrated. However, the same Constitution has given other constitutional bodies certain mandates, among them the investigation and prosecution of offences. It is in the public interest that these bodies are allowed to carry out their mandates without interference, and there must be very clear and cogent reasons for the court to interfere with the exercise of their powers. Granting the prayers sought by the Petitioner will prevent the Respondents from exercising their constitutional and statutory mandate and the same would prejudice the established law and be against public interest.

36. On whether the petitioner should be granted the prerogative orders sought, Counsel for the 2nd Respondent submitted that in essence, the prayers sought by the Petitioner if granted will halt the trial in NBI ACC No. 28 of 2019 and such orders shall operate to stop the Respondent from executing their statutory and constitutional legal mandate. Counsel stated that the Petitioner has failed to demonstrate that she is unlikely to receive a fair trial before the criminal court or that the criminal proceedings before the said trial court will be conducted otherwise than in accordance with the law. Counsel cited the case of Republic v Kenya Anti-Corruption Commission & 2 others Ex-Parte Wildlife Lodges Limited [2014] eKLR where the court held:“It is trite that the Court ought not to usurp the Constitutional mandate of the 1st Respondent to investigate any matter that, in the commission's opinion, raises suspicion of the occurrence or imminent occurrence of conduct constituting corruption or economic crime under section 7 of the Act. Just like in cases of prosecution, the mere fact that the allegations made are likely to be found worthless, is not a ground for halting investigations into the complaints made or brought to the attention of the 1st Respondent since the purpose of a criminal investigations conducted bona fide is to consider both incriminating and exculpatory material and not just to collect evidence on the basis of which a criminal charge may be laid. It must always be noted that judicial review proceedings are not concerned with the merits but with the decision making process. That an applicant has a good defence to the complaint is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is open to the applicant to bring to the attention of the investigators in the course of the conduct of the investigations."

37. Counsel submitted that an order of certiorari cannot issue against an action or decision which has been taken or made in execution and discharge of a constitutional or legal mandate by Respondents as they are public bodies mandated under the Constitution of Kenya and statute to implement Chapter Six and Article 157 of the Constitution. Counsel contended that no material was placed before this court to demonstrate the illegality or otherwise of the conduct of the Commission during investigation of the Petitioner or that prosecution was actuated by ulterior motive, or malice, or is otherwise an abuse of the court process.

38. On the prohibition orders, Counsel stated that an order of prohibition is powerless against a decision which has already been made as it can only serve to prohibit that which is ongoing not that which has already been done. That prohibition looks to the future and is powerless to stop that which has happened. For this Counsel relied on the case of Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR.

39. Counsel further stated that there is no suggestion by the Petitioner that the 2nd Respondent had no authority in law to undertake the investigations; that the only thing that the Petitioner raises is that there were contradictory investigatory reports by the Commission. Counsel submitted that what the Petitioner calls Investigatory Reports are indeed statements by the Commission's investigators. Counsel contended that the statements are not contradictory as purported by the Petitioner but rather complementary of each other. Counsel stated that its recommendation to the 1st Respondent was not final. She contended that the decision to charge pursuant to its Constitutional and Statutory mandate. The 1st Respondent's decision to charge the Petitioner was independently made pursuant to the 1st Respondent’s powers under Article 157 of the Constitution. That the decision was made upon an independent review of the investigation report.

40. Counsel submitted that the Petitioner's criminal culpability, if any, can only be determined by the trial court; that the criminal court has the competence to handle all the issues being raised by the Petitioner. Counsel stated that during the trial, the Petitioner shall be afforded the opportunity to defend herself. Counsel relied on the case of Ezekiel A. Omollo v Director of Public Prosecution & 2 others [2021] eKLR where the court stated:“I am also guided by the finding by Lenaola J (as he then was) in Daniel Ndungu vs. Director of Public Prosecutions & Another (2013) eKLR: "In conclusion, the Petitioner ought to face his accusers, prove his innocence or otherwise and submit to the consequences of the Law should he be found culpable"

41. Counsel stated that the petitioner will have ample opportunity to defend herself in the trial court and that should the prayers sought be granted, the domino effect would be a circumnavigation and obstruction of the operations and execution of mandate of the Commission to investigate the conduct of any person or body whose conduct constitutes corruption and economic crimes.

42. In her reply (Petitioner’s highlighted submissions) dated 25th February, 2022 Counsel reiterated the Articles of the Constitution which were allegedly violated by the Respondents and contended that the prosecution of the petitioner was selective hence downright unfair, unjust and discriminatory. She contended that Article 236 affords protection to public officers who have acted in good faith and reiterated that the immunity against victimization or discrimination as she was merely performing the functions of her office. She reiterated that the memo was just a requisition on behalf of the user department and it was not binding as it was subject to approval by the executive and tender committee and as such it could not confer any procurement roles or responsibilities.

43. Counsel also cited the reports of the two investigators which she submitted were contradictory. She contends that the second investigator Mulki Umar dropped the names of some of the members of the executive committee while making recommendation for her to be charged. Replying on the case of Ronald Leposo Musengi v Director of Public Prosecution and 3 others [2015] eKLR counsel stated that this amounted to discrimination. Counsel further stated that the evidence of the 2nd respond highlighted that the petitioner did not take part in the actual procurement and did not benefit from the corruption. She contended that the evidence which is based on what she described as the “infamous memo” does not meet the threshold of a conspiracy to commit an offence of corruption as envisaged by the Anti-Corruption and Economic Crimes Act. Further that the said memo cannot be said to have deceived the principal as it was well within the knowledge of the Auditor General Edward Ouko and hence this petition ought to be allowed. Counsel pointed out that this court has the duty to protect citizens against harsh and unfair treatment.

Issues for Determination 44. The following issues arise for determination:ii.Whether the investigation, decision to charge and prosecution of the Petitioner in Nairobi Chief Magistrates Anti-Corruption Case No. 28 of 2019 is a violation of the Petitioner’s constitutional rights; andiii.Whether the Petitioner is entitled to the relief sought

Analysis and Determination Issue (i) Whether the investigation, decision to charge and prosecution of the Petitioner in Nairobi Chief Magistrates Anti-Corruption Case No. 28 of 2019 is in violation of the Petitioner’s constitutional rights 45. The Petitioner’s main contention is that the decision to charge her but not her male counterpart amounts to violation of her rights under Article 27, Article 50 and Article 236 of the Constitution. It is her contention that the decision to charge her arose from her signing the memo dated 18th June 2013 which was also signed by her male colleague one Justus Ongera who was not charged. She contends therefore that: firstly the decision to charge her amounted to unfair discrimination and secondly that her right to fair trial was violated and hence this petition.

46. It is trite that in a Petition of this nature, the Petitioner is enjoined to demonstrate, with a reasonable degree of precision how their rights were threatened, infringed upon or violated. See the case of Karimi Njeru v Republic (No 1) [1976-80] 1 KLR where the court stated: -“Constitutional violations must be pleaded with a reasonable degree of precision.”This principle was reiterated in the more recent case of David Thuo v Attorney General & another[2021] eKLR where the court stated:-“24. It is now a well-developed principle that in constitutional litigation, a party that alleges violation of his or her rights must plead with reasonable precision in regard to the manner in which there has been such alleged violation .........

25. The Articles of the Constitution which entitles rights to the petitioner must be precisely enumerated and the claim pleaded to demonstrate such violation with the violations being particularized in a precise manner. Furthermore, the manner in which the alleged violations were committed and to what extent must be shown by way of evidence based on the pleadings.”(See also the Court of Appeal decision in the case of Mumo Matemu vs Trusted Society of human Rights Alliance & 5 others [2013] eKLR.)

47. I am satisfied from the pleadings that the petitioner has complied with the principles set out in the cases cited above. Not only has she pleaded the provisions of the constitution that she alleges were violated but she has also framed the issues with reasonable precision. What remains to be seen is whether she has demonstrated by way of evidence the manner in which those rights have been violated.

48. I shall start with the issue of discrimination. TheBlack’s Law Dictionary 11thEdition defines discrimination as follows: -“Discrimination” ............... Unfair treatment or denial of normal privileges to persons because of their race, age, sex, nationality or religion. A failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.”The 10thEdition Black’s Law Dictionary also defines the terms as:-“Differential treatment; esp., a failure to treat all persons equally when o reasonable distinction can be found between those favoured and those not favoured.”

49. Article 27 of the Constitution guarantees the right to equality and freedom from discrimination to all persons. The Article states: -“Article 27: Equality before the lawii.Every person is equal before the law and has the right to equal protection and equal benefit of the law.iii.Equality includes the full and equal enjoyment of all rights and fundamental freedoms.iv.Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.v.The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.vi.A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).vii.To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.viii.Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.ix.In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.”

50. The Petitioner has argued strongly that she has been discriminated upon for reason that her male counterpart one Justus Ongera with who she signed the impugned memo was not charged in ACC No. 28 of 2019 as she was. It is my finding however that the mere fact that the petitioner’s male counterpart was not charged would not warrant this court to arrive to a conclusion that there was discrimination. It was demonstrated by Counsel for the Respondent that the decision to charge the petitioner arose from the fact that she signed the memo dated June 18, 2013 a fact which she has readily admitted. My finding therefore is that her culpability was tied to this memo and whether or not her male colleague was charged is immaterial. It is also my finding that the petitioner has not placed evidence before this court that she is facing charges merely on account of being a female whereas her colleague was let off on account of being a male. This ground does not therefore suffice to halt the prosecution.

Fair Administrative Action 51. On the right to fair administrative action, the Petitioner has failed to satisfy this court that there are reasonable grounds to believe that the proceedings against her are a vehicle for a purpose other than a true pursuit of criminal justice. In the case of Philomena Kavinya Nzuki & 3 others v Director of Public Prosecutions & another; Ethics & Anti-Corruption Commission (Interested Party) [2020] eKLR the court stated: -“The position in law, then, is that the court has the jurisdiction to inquire into the decision of the DPP to prosecute. Its inquiry, however, must be undertaken sparingly, in exceptional circumstances and in the clearest of cases. In order for the court to enter into such an inquiry, the petitioner must first satisfy itself that there are reasonable grounds to believe that the proceedings the subject of challenge before the court are a vehicle for a purpose other than a true pursuit of criminal justice."

52. Article 47 of the Constitution provides as follows in this respect:“Article 47: Fair Administrative action1. Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.2. If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.3. Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall--1. provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and2. promote efficient administration.”The petitioner has not demonstrated that she was not given an opportunity to be heard and to make representation during the investigations by the 2nd Respondent and has therefore not proved a breach of Section 4 of the Fair Administrative Action Act as to warrant a finding of a violation of her right.

Fair Hearing 53. The Petitioner claims that her right to fair hearing has been violated as the charges facing her do not disclose the acts that constitute deceiving a principal and they are therefore doomed to fail. She also contends that she is protected from prosecution by Article 236 of the Constitution. My finding is that whereas it is correct that Article 50 guarantees an accused person the right to fair hearing and I must add that that right is not derogable it is misleading to state as has the petitioner that the right to fair trial has been violated merely on the ground that charges have been preferred against her which are doomed to fail. The right to fair hearing is guaranteed to all accused persons and the petitioner is yet to go through the trial so as to determine or assert that her rights will be violated. It is my finding that this ground of her petition is based on fear or misapprehension. Whether the prosecution shall succeed or fail is a matter for the trial court not this court and this court cannot therefore halt the prosecution on that ground.

54. In regard to her contention that her action of signing the impugned memo is protected under Article 236 of the Constitution. That Article states: -“Article 236: Protection of public officersA public officer shall not be--(a)victimized or discriminated against for having performed the functions of office in accordance with this Constitution or any other law; or(b)dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of law.”

55. The Article is clear that the protection alluded to only pertains to performance of functions of office in accordance with the constitution or any other law. This court is not privy to the evidence that the prosecution will rely on at the trial and it cannot therefore with certainty come to the conclusion that the actions of the petitioner are protected by Article 236 (1) of the Constitution. In my view that is also a matter for the trial court and the petitioner would be best advised to raise the issues she has raised in regard to the memo in this petition at the trial.

56. In my view, it is also premature for this court to delve into the merits of the evidence including that of the alleged conflicting investigation reports by the officers of the Respondents. I opine that the accuracy and correctness of the evidence or facts gathered in the investigation can only be assessed and tested by the trial court which is best equipped to deal with the quality and sufficiency of the evidence adduced in support of the charges. As stated earlier the issues raised by the petitioner in this matter amount to a defence which the petitioner shall be accorded an opportunity to present at the trial. She has not demonstrated that the trial court will not afford her a fair hearing and indeed that is not her contention. (See the case of Senator Johnstone Muthama v Director of Public Prosecutions & 2 others; Japhet Muriira Muroko (Interested Party) [2020] eKLR, where the court held:-“Our reading of the above provisions is that the Petitioner is attempting to argue his defence to the criminal trial in this constitutional Petition. It is a fundamental principle of law that it is not for this court to determine the veracity or to weigh the strength of the prosecution's evidence or accused person's defence. That is a function for the trial court hearing the criminal trial. In any event, Article 50 of the Constitution contains iron clad safeguards that protect the rights of accused persons during trial. It follows that the Petitioner cannot be heard to lament that Article 50 of the Constitution does protect his rights to a fair trial. The Petitioner's argument on the issue under consideration lacks merits and therefore it fails."Accordingly, this ground cannot also stand and must fail.

57. Further, it is trite that once the Director of Public Prosecutions (DPP) has in exercise of its constitutional mandate made a decision to charge, the prosecution ought not to be interrupted unless the Director of Public Prosecutions has abused his powers. In the case of Republic v Attorney General & 4 others Ex-Parte Kenneth Kariuki Githii (supra) the court stated:-“Similarly, it is not for this Court to stop the DPP in his tracks simply because the Court believes that the DPP ought to have done better. The constitutional discretion given to the DPP ought not to be lightly interfered with especially if on the evidence in his possession if true may well sustain a prosecution. Trial courts are better placed to consider the evidence and decide whether or not to place an accused on their defence and even after placing the accused on his defence, the Court may well proceed to acquit the accused. Our criminal process also provides for a process of an appeal where the accused is aggrieved by the decision in question. Apart from that there is also an avenue for compensation by way of a claim for malicious prosecution. In other words I am not satisfied based on the material before me that the applicant will not receive a fair trial before the trial court more so as no allegations are made against the 5th respondent towards that direction. Therefore, the mere insufficiency of evidence does not in my considered view justify the halting of a criminal trial."

58. See also the case of Republic v Director Public Prosecutions & another Exparte Justus Ongera [2019] eKLR, where the court stated: -“There is no doubt that for the court to interfere with decisions made by the Director of Public Prosecution, one must demonstrate sufficiently that the Director of Public Prosecutions has exceeded his mandate or acted in contravention of the law."The petitioner has not demonstrated that the 1st respondent’s decision to charge her has exceeded its mandate. She has not demonstrated that there is an ulterior motive other than that of public interest and accordingly the petition cannot succeed.

(ii)Whether the petitioner is entitled to the relief sought 59. Having come to the conclusion that the petitioner has fallen short of proving the violation of her rights it is my finding that she is not entitled to any of the reliefs sought.

60. The petition is dismissed with costs to the respondents.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 9TH DAY OF JUNE 2022. E N MAINAJUDGE