[2022] KEHC 14099 (KLR)

Omollo v Republic (Anti-Corruption and Economic Crimes Revision E001 of 2022) [2022] KEHC 14099 (KLR) (Anti-Corruption and Economic Crimes) (19 October 2022) (Revision)

Neutral citation: [2022] KEHC 14099 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Revision E001 of 2022

EN Maina, J

October 19, 2022

Between

Lillian Mbogo Omollo

Applicant

and

Republic

Respondent

Revision

1. The Applicant is a former Principal Secretary for the State Department of Public Service and Youth Affairs. On or about May 29, 2018, she was charged with various counts of corruption-related offences in 10 criminal cases which were subsequently consolidated into 3 cases, namely Milimani Chief Magistrates Court Anti-Corruption Criminal Case No 8 of 2018, Milimani Chief Magistrates Court Anti-Corruption Criminal Case No 10 of 2018 and Milimani Chief Magistrates Court Anti-Corruption Criminal Case No 11 of 2018. She contends that the trial courts do not have jurisdiction to hear and determine the charges against her on account of alleged absolute immunity from civil and criminal action and due to limitation of time to hear and determine criminal charges against public officers under Section 62(1) of the Anti-Corruption and Economic Crimes Act. The three cases are currently pending before the trial courts, Hon LO Onyina, Hon EK Nyutu and Hon P Ooko respectively.

2. The Applicant has filed a Notice of Motion Application under a Certificate of Urgency dated March 4, 2022 supported by an affidavit sworn by the Applicant on the same date. The Application is stated to have been brought under Sections 362, 364 and 367 of the Criminal Procedure Code, Article 165 (6) and 165(7) of theConstitution, paragraphs 5 (c) ,13 and 14 of the High Court Anti-Corruption and Economic Crimes Division Practice Directions 2016 and seeks the following orders:a.That this Application be certified urgent and the interim orders sought herein be granted ex parte in the first instance.b.That the Honorable Court be pleased to hear and determine the Application herein within the timelines stipulated in paragraph 14 of the Practice Directions for the Anti-Corruption and Economic Crimes Division of the High Court, 2016. c.That in exercise of the powers under paragraph 13(b) of the Practice Directions for the Anti-Corruption and Economic Crimes Division of the High Court 2016, interim orders be and are hereby granted to stay the criminal proceedings in Milimani Magistrate's Court Anti-Corruption Criminal Case No 8 of 2018; Anti-Corruption Criminal Case No 10 of 2018 and Anti-Corruption Criminal Case No 11 of 2018 pending hearing and determination of the revision application herein.d.That the court file and all records of proceedings in the Milimani Magistrate's Court Anti-Corruption Criminal Case No 8 of 2018 be forthwith transmitted to this Honourable Court.e.That the court file and all records of proceedings in the Milimani Magistrate's Court Anti-Corruption Criminal Case No 10 of 2018 be forthwith transmitted to this Honorable Court.f.That the court file and all records of proceedings in the Milimani Magistrate's Court Anti-Corruption Criminal Case No 11 of 2018 be forthwith transmitted to this Honourable Court.g.That revisionary orders be and are hereby issued to quash and set aside the Ruling and orders of Hon LO Onyina CM made on January 11, 2022 in Milimani Magistrate's Court Anti-Corruption Criminal Case No 8 of 2018. h.That revisionary orders be and are hereby issued to quash and set aside the Ruling and orders of Hon E Nyutu SPM made on January 11, 2022 in Milimani Magistrate's Court Anti-Corruption Criminal Case No 10 of 2018. i.That revisionary orders be and are hereby issued to quash and set aside the Ruling and orders of Hon PO Ooko SPM made on February 1, 2022j.Milimani Magistrate's Court Anti-Corruption Criminal Case No 11 of 2018. k.That revisionary orders be and are hereby issued declaring that the jurisdiction of the Magistrate's Anti-Corruption Court to hear and determine the criminal charges against the Applicant in Milimani Magistrate's Court Anti-Corruption Criminal Case No 8 of 2018, Milimani, Magistrate's Court Anti-Corruption Criminal Case No 10 of 2018 and Milimani Magistrate's Court Anti-Corruption Criminal Case No 11 of 2018 has lapsed by effluxion of statutory timelines under section 62(1) of the Anti-Corruption and Economic Crimes Act.l.That revisionary orders be and are hereby issued to quash the charges and criminal proceedings against the Applicant herein in Milimani Magistrate's Court Anti-Corruption Criminal Case No 8 of 2018, Milimani Magistrate's Court Anti-Corruption Criminal Case No 10 of 2018 and Milimani Magistrate's Court Anti-Corruption Criminal Case No 11 of 2018.

3. The Application is made on the grounds stated on the face of it and the supporting and supplementary affidavits of the Applicant reproduced as follows:i.The charges before the trial courts arose from an exercise of verification of pending bills which were initiated by the Applicant following her designation as an Accounting Officer by the Cabinet Secretary to the National Treasury.ii.The Applicant was charged and continues to be prosecuted before the trial courts despite the absolute and/or qualified immunity afforded to her by the express provisions of section 206 of the Public Finance Management Act.iii.The Applicant avers that the absolute and/or qualified immunity under section 206 of PFMA is an immunity from civil or criminal action rather than a mere defence to liability in the criminal actions pending before the trial courts.iv.The Applicant avers that the trial courts did not have jurisdiction in the first instance to take cognizance of, hear and determine the charges against the Applicant and ought to have taken account of and given effect to the absolute and/or qualified immunity afforded to the Applicant by section 206 of PFMA.v.Without prejudice to the foregoing, section 62(1) of ACECA is instructive that criminal charges under CECA against public officers ought to be concluded by the trial courts within twenty-four months from the date of indictment.vi.The trial courts' time-bound jurisdiction to hear and determine the criminal charges against the Applicant, being a public officer, lapsed on Friday, May 29, 2020. vii.The trial courts have ceased to have the requisite jurisdiction to take cognizance of, hear and determine the criminal charges as against the Applicant following effluxion of statutory timelines for hearing and determination of the charges against the said Applicant as a public officer.viii.Despite lacking jurisdiction as a result of effluxion of statutory timelines, the trial courts have continued to hear the Anti-corruption criminal case no 8 of 2018; Anti-corruption criminal case no 10 of 2018 and Anti-corruption criminal case no 11 of 2018 as against the Applicant and have fixed hearing dates for such purposes which is a nullity in law as the trial courts no longer have jurisdiction to hear the charges against the Applicant herein upon lapse of the time-bound jurisdiction under section 62(1) of ACECA.ix.The trial Courts have arrogated to themselves jurisdiction which they ceased to have upon effluxion of statutory timelines for trial of the Applicant by purporting to find and hold that section 62(1) of ACECA does not stipulate the timelines for hearing and determination of criminal charges under ACECA against public officers.x.The criminal proceedings as against the Applicant which are still being conducted by the trial courts even after effluxion of the statutory timelines for hearing and determination of the said charges are therefore unlawful, irregular and null and void in law.xi.Pursuant to the Honorable Court's jurisdiction conferred by Article 165(6) and (7) of theConstitution and section 362 of the Criminal Procedure Code, the Honorable Court therefore ought to forthwith call for and examine the record of the criminal proceedings in Anti-corruption criminal case no 8 of 2018; Anti-corruption criminal case no 10 of 2018 and Anti-corruption criminal case no 11 of 2018 in order to avert the manifest illegality and irregularity being perpetrated by the trial courts.xii.The criminal proceedings against the Applicant died in the eyes of the law on or about May 29, 2020 when the time-bound jurisdiction of the trial courts lapsed by operation of law.xiii.The criminal proceedings against the Applicant which are still being conducted even after effluxion of the statutory timelines for conclusion of the said proceedings are therefore unlawful, irregular and null and void in law.xiv.The trial courts have failed to give effect to the intention of Parliament as expressed in the plain words of the section 62(1) of ACECA and failed to take account of the Hansard Records availed to the trial courts when interpreting section 62(1) of ACECA.xv.The trial courts failed to adopt a purposive approach to interpretation of section 62(1) of ACECA as expressed by the Supreme Court of Kenya in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014) eKLR.xvi.The trial courts have failed to uphold the principle of stare decisis on the issue of time bound jurisdiction under Section 62(1) of the ACECA as found in Moses Kasaine Lenolkulal v Republic [2019] eKLRxvii.The criminal proceedings are manifestly irregular, illegal which ought to be quashed.

4. The Application is opposed by the Respondent who has filed a Replying affidavit sworn by Hellen Mutellah Senior Prosecution Counsel on April 12, 2022.

5. The Respondent contends that the Applicant together with other accused persons were charged with various offences in respect to defrauding the National Youth Service under the Anti-Corruption and Economic Crimes Act, including conspiracy to commit an offence of corruption, abuse of office and failure to comply with applicable procedures relating to management of public funds in relation to the National Youth Service under the State Department of Public Service and Youth Affairs.

6. The Respondent contends that the decision to charge the Applicant was in line with Article 157 of theConstitution and Section 5 of the ODPP Act. Further that the decision to charge was made upon analysis and review of the evidence which revealed culpability on the part of the Applicant and her co accused which includes among others that:-i.In the years 2016 and 2017 the Applicant conspired with her Co - accused to defraud the National Youth Service under the State Department of Public Service and Youth Affairs of:a.Kshs 167, 715, 700 ( ACC 8 of 2018)a.Kshs 226, 945, 258 (ACC 10 of 2018)b.Kshs 60, 598, 800 ( ACC I I of 2018)ii.The Applicant in abuse of her office improperly conferred a benefit to various companies named in the charge sheet for goods not supplied.iii.The Applicant being the Accounting Officer in the State Department of Public Service and Youth Affairs willfully failed to comply with applicable procedures and guidelines relating to management of public funds which led to the loss of massive public funds as captured in the charge sheet.

7. The Respondent avers that the three cases, that is ACC 8, 10 and 11 of 2018 are currently pending before the Chief Magistrates Court at Milimani Anti - Corruption Courts in which witnesses have commenced testifying in regard to the matters. That indeed the Applicant admits to being the Principal Secretary and Accounting Officer in the State Department of Public Service and Youth Affairs and therefore accountable in respect of the use of resources.

8. They contend that the Applicant is not immune from the proceedings and has not been absolved from guilt by anybody and that it is only the trial court that can establish her guilt or otherwise.

9. Further, that it is trite law that the statutory provisions of Section 62 of the Anti-Corruption and Economic Crimes Act, 2003 relate to suspension of public officers who have been charged with corruption and economic crimes by dint of theConstitution, Employment laws as well as ACECA. That the legal interpretation of the said section is that any public officer who is charged with corruption or economic crimes is to be suspended at half pay from the date of the charge until the conclusion of the case so long as the case is determined within twenty-four months.

10. They contend that the disclaimer on subsection (1) has nothing to do with time limitation for determination of charges against accused persons and thus the interpretation of the said section by the Applicants is misconceived, misleading and bad in law. The Court is not constitutionally or statutorily barred from hearing and determining the charges against the accused persons in ACC 8,10 and 11 of 2018, Republic versus Lilian Mbogo Omollo and Others.

11. The Respondent contends further, that though Article 50(2) (e) of theConstitution gives right to an accused person to be tried without unreasonable delay, that the time taken to prosecute the accused persons herein is not inordinate in the circumstances. That the lapse of time in conclusion of the criminal charges was neither occasioned by the Prosecution nor the Court but by force majeure, being the unforeseen effects of the Covid-19 pandemic that led to closure of courts and limitation of movement. They urged the Court to take judicial Notice of the effects of Covid- 19 pandemic under Section 60(1) (m) & (o) of the Evidence Act that resulted to inevitable delays of court processes as well as all other sectors both public and private.

12. They contend that the prayer for an order for stay is meant to derail the proceedings and is not premised on the legal threshold which requires a party to demonstrate prima facie case, prejudice and irreparable damage should the orders be denied. That the Applicant has also not met the threshold for revision; she has not demonstrated the incorrectness, illegality and/or impropriety of the Rulings and orders of the trial courts regarding the interpretation of Section 62 of the Anti-Corruption and Economic Crimes Act and Section 74 and 206 of the Public Finance and Management Act. That Section 62 of the Anti-Corruption and Economic Crimes Act applies to the suspension from office and not the pendency of the criminal proceedings.

13. Lastly, that this court should take judicial notice of HC ACEC Civil Application No 58 of 2018 Assets Recovery Agency v Lilian Wanja Muthoni t/a Sahara Consultants and 5 others and find that the Applicant has not approached the court with clean hands as she was found to have been a beneficiary of proceeds of crime.

14. The Application was canvased by both written submissions and oral arguments made in court on June 29, 2022.

Issues for determination 15. The following issues arise for determination:i.Whether the findings of the trial courts in the subject Rulings delivered in ACC 8 of 2018, ACC 10 of 2018 and ACC 11 of 2018 are illegal and improper for reason that firstly, the time limited under Section 62 (1) of the ACECA has expired and secondly given that the Applicant being a public servant enjoys immunity from civil and criminal process under the law.ii.Whether the Applicant has met the threshold for revision of the subject Rulings delivered in ACC 8 of 2018, ACC 10 of 2018 and ACC 11 of 2018

Analysis and determination 16. The Applicant has invoked this court’s revisionary jurisdiction under Section 362 of the Criminal Procedure Code.

17. Section 362 of the Criminal Procedure Code vests the High Court with jurisdiction to call for and revise orders of subordinate courts. The section states as follows:'The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.'

18. Under Section 364, the Criminal Procedure Code sets out the powers of the High Court on revision in the following terms:'364(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—(a)In the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;(b)In the case of any other order other than an order of acquittal, alter or reverse the order.'

19. The trial courts in their Rulings of January 11, 2022 and February 1, 2022 dismissed the Applicant’s Preliminary Objection on the courts’ jurisdiction and directed that the cases proceed to hearing. The Applicant is aggrieved by the findings of the three trial courts in the impugned Rulings and seeks revision on three issues: the legality and impropriety of the findings of the trial courts with regard to immunity of public officers; statutory timelines under Section 62(1) of the Anti-Corruption and Economic Crimes Act and the pendency of the proceedings against the Applicant in view of Section 62 (1) of the Anti-Corruption and Economic Crimes Act.

Immunity of public officers 20. On the first issue on the immunity of public officers against civil and criminal action, the Applicant contends that she enjoys immunity under Section 178 (1) of the Public Procurement and Asset Disposal Act, Section 206 of the Public Finance and Management Act and Section 50 of the Leadership and Integrity Act. These laws provide as follows:

21. Section 178(1) of the Public Procurement and AssetDisposal Act 2015 which provides that:'A person shall not in his personal capacity be held liable in civil or criminal proceedings in respect of any act or omission done in good faith in performance of his duties in this Act.

22. Section 206 of the Public Finance Management Act 2012provides:'Nothing done by any authorized person/ public officer working under the instructions of National Treasury or County Treasury, if done in good faith, for the purposes of executing the powers, functions, duties of National Treasury or County Treasury under theConstitution or this Act renders that person or pubic officer personally liable for any action, claim or demand.'

23. Lastly, Section 50 of the Leadership and Integrity Act No 19 of 2012 provides:No civil or criminal liability shall attach to an officer of the Commission or public entity acting on the instructions of the chief executive officer of a public entity, for anything done in good faith by that officer in the performance of the duties under this Act.'

24. A literal interpretation of the above laws collectively show that Immunity granted to a public officer under Section 206 of PFMA and Section 178(1) of Public Procurement and Assets Disposal Act do not confer absolute immunity, they are only in respect to actions done or omitted in good faith.

25. I agree with the trial court’s findings in dismissing the Preliminary Objection; that the question as to whether the applicant and her co-accused acted in good faith is one of fact and requires ascertainment as it is disputed by the Respondent. This determination of fact can only be ascertained by the trial court upon the presentation of evidence in a full trial. Moreover, it is my finding that the issue of immunity would be best tested in an appeal upon conclusion of the trial as decided by the Supreme Court in the case ofJoseph Lendrix Waswa v Republic [2020] eKLR. The issue in my view is not one suitable for trial by way of revision as the same goes to the merit of the charges against the Applicant.

26. It is trite that there is no prescription of time within which criminal trials must be completed. However, the adage that justice delayed is justice denied applied equally to criminal cases as it does to civil disputes. Indeed, one of the guiding principle of the courts and tribunals as exercise judicial authority is that justice must not be delayed. (See Article 159(2) (b) of theConstitution. Article 50(2)(e) of theConstitution also guarantees an accused person the right to have the trial begin and conclude without unreasonable delay.

27. What is unreasonable delay is however not defined in the law. It is Learned Counsel for the Applicant’s contention that the trial of the applicant is illegal for exceeding the 24 months’ period provided for in the proviso in Section 62(1) of the Anti-Corruption and Economic Crimes Act. The Respondent however contends that the time prescribed in the proviso is only in regard to the suspension from office but not the time for the trial. Section 62(1) of the Anti-Corruption and Economic Crimes Act states:-'62. Suspension, if charged with corruption or economic crime(1)A public officer or state officer who is charged with corruption or economic crime shall be suspended, at half pay, with effect from the date of the charge until the conclusion of the case:Provided that the case shall be determined within twenty-four months.

28. A similar issue in regard to time was considered by the Court of Appeal in the case of Kazungu Kasiwa Mkunzo & another v Republic [2006] eKLR. The issue before the Court of Appeal was the constitutionality of the time limit for trials of children under the Childrens Act. The court found that the time was prescribed in the rules but not the Act itself but that even had the Act itself prescribed such time it would have been unconstitutional as theConstitution did not define what a reasonable time was. The court came to the conclusion that the time limit was unconstitutional and held as follows:-'Section 77(1) of the Constitution merely provides that:-‘If a person is charge with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent court established by law.’TheConstitution, wisely does not set out what is a 'reasonable time' because in determining that issue, the court would have to take into account a whole lot of factors such as the diary of the Court, the number of judicial officers available to hear such cases and such like factors.'Likewise, the current constitution does not define what is a reasonable time in regard to criminal trials. It only guarantees the right to hearing within a reasonable time.

29. Counsel for the Applicant also based his argument on the Hansard Record of the National Assembly during the debate that gave rise to the Anti-Corruption and Economic Crimes Act, more especially the contributions of the members on August 13, 2014. He has attached an extract of the Hansard report. In my view, it may very well have been the intention of the Members of the National Assembly to limit hearing of corruption cases against public officers to two years (24 months) but the drafter of the law limited the timeline to suspension but not to the time of trial. Such an intention would not in any event have been in the public interest and it would also have been unconstitutional – see the Court of Appeal decision in the case of Kazungu Kasiwa Mkunzo & another v Republic (supra).

30. There is no doubt in my mind therefore that the timeline in Section 62(1) of the Anti-Corruption and Economic Crimes Act refers exclusively to the issue of suspension of a public officer but is not a prescription of the time within which the trial should be completed.

31. Counsel for the Applicant also cited the case of Arprim Consultants v Parliamentary Service Commission & Another, Public Procurement Administrative Review Board Nairobi Civil Appeal No E039 of 2021 where the court was emphatic that any decision made outside the time limited by Section 175 (3) of the Public Procurement and Assets Disposal Act is a nullity. It is instructive however that Section 175(3) of the Public Procurement and Assets Disposal Act is express and leaves no doubt that judicial review applications must be determined within 45 days. That is not the same case in regard to Section 62(1) of the Anti-corruption and Economic Crimes Act which as I have stated is concerned with the suspension from office of public officers. Moreover, the proceedings under Section 175(3) of the Public Procurement and Assets Disposal Act are of a civil nature. It is not unusual for the law to limit the time within which civil cases should be completed. An example would be Order 40 Rule 6 of the Civil Procedure Rules.

32. It is also instructive that the issues raised here would be more properly considered if the reasons for the delay were revealed to this court. No proceedings however were brought to this court. It is trite that a party ought not to benefit from their own wrong doing so that should the delay have been occasioned on the part of the Applicant, then she cannot rely on Section 62(1) to get off the hook.

33. For the Respondents, the explanation for the delay in the cases is that they were affected by the Covid 19 Pandemic. The Court is alive to the fact that the business of the courts was affected by the pandemic and it takes judicial notice of that under Section 60(1) of the Evidence Act. This court is also alive to the fact that delay may also be occasioned by other factors such as the number witnesses, documents, Counsel appearing for accused persons such that it takes long to cross examine witnesses, the complexity of the case, pre-trial processes, interlocutory applications et al.

34. The jurisdiction of this court on revision is confined to considering the legality, correctness and/or propriety of the proceedings or order of the trial court but not its merit. I find that no error, illegality or impropriety in the impugned rulings has been demonstrated to warrant this court to interfere with the same. Accordingly, the application for revision is dismissed for want of merit.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF OCTOBER, 2022E N MAINAJUDGE