[2017] KEHC 9739 (KLR)

REPUBLIC OF KENYA

IN THE HIGHCOURT OF KENYA AT NAIROBI

ANTI-CORRUPTION AND ECONOMIC CRIMES DIVISION

MISCELLANEOUS CIVIL APPL NO.19 OF 2017

REPUBLIC………………………………………………….. APPLICANT

VERSUS

THE ETHICS & ANTI–CORRUPTION COMMISSION……1ST RESPONDENT

THE CHIEF MAGISTRATES COURT

(ANTI CORRUPTION COURT MILIMANI)..……..………2ND REPONDENT

THE CATHOLIC UNIVERSITY OF EAST AFRICA……… 3RD RESPONDENT

DIRECTOR OF PUBLIC PROSECUTION…….…...…… 4TH RESPONDENT

JACINTA MUGURE KIGURU….…1ST EX-PARTE APPLICANT/APPLICANT

JOAN KARIUKI WANJIRU….…..2ND EX-PARTE APPLICANT/APPLICANT

RULING

1. The applicants were the exparte applicants in Judicial Review No. 19 of 2017 in which they sought several orders from the Court. After being heard the Court delivered its judgment on 14th June, 2017 in which several orders were granted while others were declined. The applicants are therefore before this court to seek a review of the judgment and ask the court to grant the remaining orders.

Through a Notice of Motion dated 7th September 2017 they seek the following orders:

1) That this Application be certified urgent and be heard exparte and service thereof be dispensed with in the first instance.

2) That a conservatory order do issue prohibiting and/or staying the proceedings before the 2nd Respondent herein in Nairobi ACC No.20 of 2016 pending the hearing and determination of this Application interpartes.

3) That a conservatory order do issue prohibiting and/or staying the proceedings before the 2nd Respondent herein in Nairobi ACC No.20 of 2016 pending the hearing and determination of this suit.

4) That this honourable court do review and/or set aside its judgment and consequential order on 14th june,2017 and in its place grant:

a) Judicial review order of CERTIORARI to remove into this honourable Court and quash the charge sheet before the 2nd Respondent in Nairobi ACC No.20 of 2016 and charges thereof instituted by the 1st Respondent against the Applicant herein.

b) Judicial Review order of PROHIBITION to remove into this Honourable Court and prohibit the ongoing proceedings before the 2nd Respondent herein in Nairobi ACC No 20 of 2016.

c) Judicial Review order of PROHIBITION to remove into this Honourable Court and Prohibit the 1st Respondent from instituting any other or further criminal proceedings against the Applicants herein in respect of bribery allegations that form the subject matter of this Application.

5) The costs of this Application be provided for

6) Any other or further relief which this honourable court deems fit and just to grant.

THE APPLICANTS’ CASE

2. The application is supported by the grounds on its face thereof and the joint supporting affidavit of Jacinta Mugure Kiguru and Joan Kariuki Wanjiru dated 7th September, 2017. They stated their case as follows; that on the 27th October they were arrested by the 1st respondent’s officers on the allegation of attempting to bribe Caleb Wafula Opwora the registrar of academics of the 3rd respondent and on the motion of the 3rd respondent.

3. It is their case that the officers’ role was limited to assisting the 3rd respondent to prove the allegations by way of recording and transcribing the conversation that occurred amongst them. Through a letter dated 9th November 2016 the 3rd respondent sought to withdraw the case against them from the 1st respondent as it was being dealt with internally.

4. They proceeded to state the history of their case and relationship, how they were arrested, charged and what was pleaded both in their defence and the sections under which they were prosecuted. They reiterated that their constitutional rights were violated in the process, more so as they were not brought to court promptly. They averred that the 4th respondent by way of correspondence sought to inquire about views with regards to the withdrawal of the case against them, but that the 1st respondent in blatant disregard of the request continued to push forward with the criminal proceedings, insisting that the same was in violation of the double jeopardy principle relying on Article 50 (2) (0) of the Constitution. They contended thus this further offends the principle of legality as the alleged act they were charged with, was not an offence at the time.

5. They reiterated that the Section 39 of the Anti-Corruption and Economic Crimes Act (ACECA) under which they were charged, had been repealed by Section 23 of the bribery act No 47 of 2016. Further that the Act was not in operation at the time they were charged with the offence.

6. It is their case, that despite the 3rd respondent withdrawing the case against them, the 1st respondent not only threatened and harassed them but compelled the deputy registrar academic affairs to give evidence against them in the criminal case. This was in violation of Article 54 of the Constitution.

7. They averred that on the 14th June, 2017 this Court delivered its judgment in which their notice of motion was partially successful with exception of prayers 2, 4 and 6 of the application. They reiterated that the charges offended the legality principle contrary to Article 50 (2) (n) of the Constitution. They therefore prayed for review of the judgment delivered by this Court as there is an error apparent on the face of the record and there is sufficient reason for such review. They relied on their case as adumbrated above.

8. It is their contention that the Court misapprehended what was in contention, as it was not whether Section 39 (3) (b) of the Anti-corruption and Economic Crimes Act was operational but rather whether a charge under Section 39 (3) (b) of the Act offended the principle of legality in violation of Article 50 of the Constitution. They opined that what the court was to determine was whether the same could stand the certainty principle as laid out in Aids Law Project –vs- Attorney General and 3 Others2015 eKLR.

9. They further contended that these matters are purely constitutional, case law and statutory interpretations which fall under the exclusive jurisdiction of the High Court. They reiterated that the court made an error in framing its issues and consequently reached a wrong conclusion which can be corrected through review.

10. They argued their second ground of review based on the case of Michael Sistu Mwaura Kamau –vs- Ethics and Anti-Corruption Commission and 4 Others 2017 eKLR whose judgment was delivered on 14th July, 2017 by the Court of Appeal. In its judgment the Court of Appeal held that the Ethics & Anti-Corruption Commission was improperly constituted at the time it completed its investigations, forwarded its report and recommendations to the 4th respondent. The Court of Appeal further found that the prosecution was tainted with illegalities and the court ought to have issued a declaration to that effect.

11. The applicants therefore contended that they were arrested on the 27th October 2016 by the 1st respondent and the investigations undertaken, a report compiled and recommendations made to the 4th respondent. They stated that the said recommendations were solely relied on and they were subsequently charged on 14th November, 2017 in Nairobi ACC No. 20 of 2016, which case is currently ongoing before the 2nd respondent.

12. They argued that by the time the investigations on them were being conducted, recommendations and investigations done by the 1st respondent, the EACC was not properly constituted. That their prosecution was tainted with illegalities and should be prohibited based on the Court of Appeal finding.

THE 1ST RESPONDENT’S CASE

13. The 1st respondent opposed the application through the replying affidavit of Lenjo Kililo dated 18th September 2017 an investigator with the EACC. He stated that they received a complaint on the 27th October 2016 indicating that the Applicants offered a bribe to the complainant Caleb Wafula Opwora of Catholic University.

14. He stated that he proceeded to fit surveillance equipment in the deputy vice chancellor’s office where the alleged bribe was to take place. From the equipment it was established that the applicants corruptly offered a benefit of Kenya shillings ten thousand as deposit leaving a balance of two hundred and ninety thousand to be paid in the day to follow. The purpose of the bribe was to induce the complainant to include their names in the graduation list.

15. He stated on the 3rd November, 2016 the 4th respondent gave the commission consent to proceed and charge the applicants. They were charged with the offences of corruptly offering a benefit and arraigned in Court on 14th November, 2017.

16. He further stated that the commission was properly constituted when it received the report on 27th October, 2016 and in November 2016 investigated the case and forwarded the report to the 4th respondent and the Applicants charged. According to him the appointment of the chairperson and members of the Commission was done by the President on 17th December, 2015 for a six year period through the Kenya gazette of 24th December, 2015.

17. He contended that during the period of investigations there was an acting chairperson who executed the mandate of the chairperson. That fact notwithstanding the minimum number of members required by law was met by the commission by virtue of 4 members being in office appointed on 17th December 2015.

18. He concluded by averring that the court would only exercise its jurisdiction for review if there is discovery of new evidence hitherto unavailable to the applicants. That the applicants have failed to establish that new evidence not available when decree was passed or the order was made has been discovered.

19. In its submissions filed before Court the 1st Respondent opined that judicial review is governed by Section 8 and 9 of the law Reform Act and Section 53 of the Civil Procedure Rules, it being special jurisdiction that is neither civil nor criminal. Therefore the civil procedure rules do not apply to them. For this proposition they relied on the case of Republic –vs- National Transport and Safety Authority and 10 Others Ex-Parte James Maina Mugo 2015 eKLRwhere the case ofCommissioner of Lands –vs- Hotel Kunste Ltd Civil Appeal No 234 of 1995was relied on.

20. Mrs. Odipo for the 1st respondent therefore submitted that the remedy of review is not available to the applicants and the only available option was for them to appeal to the Court of Appeal as provided for in Section 8 (5) of the law Reform Act. She stated that in any case the applicants have already filed a Notice of Appeal which is an Intended Appeal and an Appeal pursuant to Rule 2 of the Court of Appeal Rules. She stated that the issue of discovery of new and important evidence should be raised in the appeal.

THE 4TH RESPONDENT’S CASE

21. The 4th respondent also opposed the application through the affidavit of Laura Spira sworn on the 10th October, 2017. She put her case as follows; that the EACC prepared a report made on 27th October, 2016 raising bribery allegations concerning Catholic University students who had offered Ksh.500,000/= to enable them graduate. They conducted the investigations which led them to the conclusion that Jacinta Mugure and Joan Kariuki Wanjiru indeed offered to bribe the 3rd respondent’s employee.

22. She averred that this conclusion prompted the deputy registrar to call for a meeting where it was unanimously agreed that the matter be reported to the EACC. The applicants went and withdrew Kshs.10,000/= as commitment with an agreement to clear the balance. She stated that having completed her investigations the 1st respondent forwarded the inquiry file to the 4th respondent for directions as provided under Section 35 of the ACECA.

23. The 4th respondent examined the file and based on the evidence therein he was satisfied that there was sufficient evidence for charges to be preferred and subsequently the applicants were charged on 14th November, 2016. She averred that while the criminal process was ongoing, the applicants filed judicial review proceedings seeking among others orders to quash the charge sheet and prohibit their prosecution.

24. It is her case that after the application was heard the court declined to grant prayers 2, 4, and 6 which had sought to quash the charge sheet and prohibit further prosecution. She contended that the issues raised by the applicants were raised in the judicial review proceedings and the court dealt with them.

25. She further argued that the applicants have not presented any legal and or justification to warrant for a review of the court decision and reiterated that the court satisfactorily dealt with all the issues raised and there was no error apparent on the face of the record. The only avenue therefore open for the applicant was an appeal to the Court of Appeal.

26. She refuted that what the court was to determine was whether the charge would stand the legality principle or that it was purely constitutional case law and statutory interpretations which fell under the exclusive jurisdiction of the high court. She further denied that the court made an error in framing its issues for determination.

27. She asserted that it was clear that the reporting, investigation and forwarding of the file was done between 27th October, 2016 and 3rd November, 2016 by which time the EACC was properly constituted as at that time the President had appointed Commissioners on 17th December, 2015 through the Kenya Gazzete Notice No. 94443. Further that there was an acting chairperson of the Commission and Commissioners in place. In closing she stated that the Application is without legal basis and had been brought in bad faith.

28. M/s Kahoro for the 4th respondent submitted that there is no error apparent on the face of the record to warrant a review of the judgment that was delivered by this Court. She submitted that the issue of the application of Section 39 (3) (b) was adequately argued and the Court rightly ruled on it among other issues. She argued that the applicants are contesting an interpretation of the law as they have not identified any error apparent on the face of the record. She relied on the Court of appeal case of Pancras T Swai –vs- Kenya Breweries Limited Civil Appeal No. 275 of 2010to support her argument. Finally, she submitted that the applicants seek to benefit from the case of Michael Sistu Mwaura Kamau –vs- Ethics and Anti-Corruption Commission eKLR but the circumstances therein are so different from the present case.

29. She stated that the period covered by the Court of Appeal judgment is between May 2015 to January 2016 when the Chairperson and the Commission resigned and ceased to hold office. The matter herein was reported to the EACC on 27th October, 2016 during which period commissioners were in place. That the Court of Appeal ruling was specific as it applied to one party.

DETERMINATION

30 I have considered the application, affidavits, submissions and authorities cited. I find the main issue for determination to be whether the superior Court in this case sitting as a Judicial Review Court can review its decision that was delivered on the 14th June, 2017.

31. The respondents argue that the remedy of review is not available to the applicants as it is a civil remedy which does not apply to judicial review jurisdiction which is suigeneris. Secondly, they submit that there is no apparent error on the face of the record.

32. The Court of Appeal in the case of Nakumatt Holdings Limited –vs- Commissioner of Value AddedTax 2011 eKLRin addressing this issue, observed as follows;

‘’The decision of this Court in the case of Judicial Commission of Inquiry into the Goldenberg Affair & 3 Others –vs- Kilach [2003] KLR 249, which Mr. Ontweka cited, does not, with due respect to learned counsel, hold that review is not available under order 53 of the Civil Procedure Rules. It would be oppressive and an affront to common sense in a case like the one before us where the court precipitated a situation for the same court to turn around and say it lacks jurisdiction to correct what is obviously a wrong decision, more so where, as here, the court was not addressed on the merits or otherwise of the Application for leave. The court, suo motu, raised the jurisdictional issue without asking the Applicant’s counsel to address it on the matter.

There has been debate as to whether or not order 44 of the Civil Procedure Rules applies to proceedings under order 53. Whether or not order 44, above, applies is a matter which should await another occasion. What is important is that the superior court in the matter before us had the residual power to correct its own mistake. It may be that the appellant cited a wrong provision of the law in its Application for review. That per se would not deprive the court the power of correcting its own mistake which that court itself acknowledged it made.’’

33. Further in the case of National Bank of Kenya Ltd. –vs- Ndungu Njau [1997] eKLR the Court of Appeal held that:

“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached any erroneous conclusion of law misconstruing a statute or other provision of law cannot be a ground for review.

In the instant case, the matters in dispute had been fully canvassed before the learned judge. He made a conscious decision on the matters in controversy and exercised his discretion in favour of the Respondent. If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review. Otherwise, we agree that the learned Judge would be sitting in appeal on his own judgment which is not permissible in law. An issue which has been hotly contested as in this case cannot be reviewed by the same court which had adjudicated upon it.”

34. Still in the case of Nakumatt Holdings Ltd. –vs- Commissioner of Value Added Tax(supra) the Court of Appeal observed:

“Mr. Ontweka, for the Respondents in his submissions to us seemed to suggest that where a law is silent on whether review is permissible, then courts must decline jurisdiction where a review is sought. While we agree with him that judicial review is a special jurisdiction, we do not agree that in clear cases, courts should nonetheless fold their arms and decline jurisdiction. The process of review is intended to obviate hardships and injustice to a party who is, otherwise, not to blame for the circumstances he finds himself in. This court in the case we earlier cited of Agakhan Edition Services Kenya –vs- Republic through Ali Seif Benson & Others Civil Appeal No. 257 of 2003 expressed the view, that review jurisdiction in cases as the present one, should be exercised sparingly and in very clear-cut cases.”

From the foregoing, it is quite clear that review is only available in very clear cut and limited circumstances. The Court of Appeal in the above cases sets the parameters and the extent to which a court can go in review of its orders/decrees.

35. The applicants have sought to rely on the Court of Appeal case of Michael Sistu Mwaura Kamau –vs- Ethics and Anti –Corruption Commission and 4 Others2017 eKLrto aid them. I have had the privilege of reading the case and indeed it is true as contended that the court came to the conclusion that the EACC was improperly constituted when the appellants in that case were charged in Court.

36. I have also gone through the pleadings, proceedings and submissions with regard to the judicial review filed herein, and have failed to find any argument raised on the issue of an improperly constituted EACC. This Court heard the matter and concluded it and delivered its Judgment on the 14th June, 2017. The Court of Appeal Judgment was delivered on 14th July, 2017 a month after determination of the High Court matter. Since the composition of the EACC was not an issue in the judicial review, the Applicants cannot rely on the Michael M. Kamau case (supra) to make it an issue by way of judicial review. If this Court erred by not listing it as one of the issues for determination then the only place to raise that is the Court of Appeal.

37. The applicants have also raised the issues of double jeopardy and that the Court misapprehended Sections of the ACECA. I do agree with the 4th respondent that all the issues raised by the applicants in this application were dealt with by the Court and well captured in the judgment that was delivered. The applicants have not pointed out any error or mistake on the face of the record which would warrant a review or the exercise of this Courts residual power. What the application reeks of, is dissatisfaction with the outcome of the judgment and this Court cannot sit down to redo that judgment through this application of review. The only recourse for the applicants is to launch an appeal which is very much within their rights.

38. In the foregoing, this Court finds no merit in the application which is hereby dismissed with costs.

Dated,signedand delivered on 9thday of November, 2017 in Nairobi.

………………………………………………

HEDWIG I. ONG’UDI

HIGH COURT JUDGE