Kenya Judgment

Magistrate's Court · Anti-Corruption Magistrate's Court

Republic v Njeru [2017] KEMC 121 (KLR)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The court found that Section 39 of the Anti-Corruption & Economic Crimes Act was repealed by the Bribery Act, 2016, which came into effect on 13 January 2017. Section 27(2) of the Bribery Act provides that any investigation or prosecution instituted before the commencement of the Act shall be treated as if instituted under the new Act, with necessary modifications. Since the investigation in this case was not completed before the repeal, and the charges were framed under the repealed provision, the court held that the prosecution could not proceed under the old law. The charges must be brought under the new Bribery Act, not the repealed section of ACECA. The court therefore declined to accept the charges as framed and discharged the accused for non-compliance with the law.

Court disposition

charges rejected and accused discharged

Orders

  • The charges as framed are declined for non-compliance with the law.
  • The accused is discharged under section 89(5) of the Criminal Procedure Code.

02

Material facts

Parties

Republic

Applicant

Henry Ngugi Njeru

Defendant

03

Procedural history

  1. Posture

    Anti Corruption Case / Ruling on Plea and Validity of Charge

04

Questions and positions

Legal issues

Party arguments

Applicant
The prosecution sought to proceed with charges against the accused under Section 39(3)(a) as read with Section 48(1) of the Anti-Corruption & Economic Crimes Act No.3 of 2003, for an offence allegedly committed on 5 November 2016. The prosecution did not address the effect of the repeal of Section 39 by the Bribery Act, 2016, nor did it argue for the continued application of the repealed provision to the present charges.
Respondent
The accused did not make formal submissions at this stage, as the court raised the issue of the validity of the charges suo moto. The court considered the legal framework governing the transition between the repealed and new statutes.

05

Court’s reasoning

  1. 01

    Section 27(2) of the Bribery Act No.47 of 2016

    Where a statute is repealed and replaced, pending investigations or prosecutions must proceed under the new law, not the repealed provisions.

  2. 02

    Section 23 and Section 27(2) of the Bribery Act No.47 of 2016

    A court cannot accept charges framed under a repealed statutory provision when the new law expressly governs pending matters.

  3. 03

    Section 89(5) of the Criminal Procedure Code

    Discharge of an accused is warranted where charges are not compliant with the law.

06

Ratio, limits and disposition

Ratio decidendi

The court found that Section 39 of the Anti-Corruption & Economic Crimes Act was repealed by the Bribery Act, 2016, which came into effect on 13 January 2017. Section 27(2) of the Bribery Act provides that any investigation or prosecution instituted before the commencement of the Act shall be treated as if instituted under the new Act, with necessary modifications. Since the investigation in this case was not completed before the repeal, and the charges were framed under the repealed provision, the court held that the prosecution could not proceed under the old law. The charges must be brought under the new Bribery Act, not the repealed section of ACECA. The court therefore declined to accept the charges as framed and discharged the accused for non-compliance with the law.

Obiter and limits

  • The prosecution must ensure that charges reflect the current statutory framework, especially where transitional provisions are explicit.
  • Courts have a duty to raise issues of statutory compliance suo moto where the validity of charges is in question.

Court disposition

charges rejected and accused discharged

  • The charges as framed are declined for non-compliance with the law.
  • The accused is discharged under section 89(5) of the Criminal Procedure Code.

Source and reliance status

Magistrate's Court

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Judgment reading view

Judgment text

The complete available source text.

Source document

Magistrate's Court

Judgment

[2017] KEMC 121 (KLR)

Republic v Njeru (Anti-Corruption Case 15 of 2017) [2017] KEMC 121 (KLR) (Anti-Corruption and Economic Crimes) (24 August 2017) (Ruling)

Republic v Henry Ngugi Njeru [2017] eKLR

Neutral citation: [2017] KEMC 121 (KLR)

Republic of Kenya

In the Anti-Corruption Magistrate's Court

Anti-Corruption and Economic Crimes

Anti-Corruption Case 15 of 2017

LN Mugambi, CM

August 24, 2017

Between

Republic

Prosecutor

and

Henry Ngugi Njeru

Accused

Ruling

1. The charges against the accused for which he is before me for plea are expressed to be brought under section 39 [3] [a] as read with section 48[1] of Anti-Corruption & Economic Crimes Act No.3 of 2003.

2. The offence is alleged to have been committed on 5. 11.

2016. The new bribery Act No.47 of 2016 took effect from 13. 1.2017. It repealed Section 39 of Anti-Corruption & Economic Crime Act by dint of Section 23 of the Act.

3. Of concern to this court however, in reference to the present charges is Section 27 [2] which addresses the issue of pending case, or investigations that were being under taken under Anti-Corruption & Economic Crimes Act, 2033.

4. In particular, Section 27 [2] reads:-“Any investigation or prosecution or court proceedings instituted before the commencement of this Act, based on an offence under this Act shall, with necessary modifications, be treated or continued as if they were instituted under this Act”

5. In essence therefore, it means if an investigation was commenced under the old Act, but by the time Section 39 of ACECA was being repealed, it was not yet completed, then following the commencement of the Bribery Act, the new Act takes over and such charges or report of that investigations can only be expressed to be under the new Act and not the old provision, of ACECA as the prosecution attempts to do in this case.

6. Consequently, I decline to accept the charges as framed suo moto for non compliance with the law as clearly expressed. I discharge the accused under section 89 [5] of the Criminal Procedure Code.

L.N. MUGAMBI [MR]CHIEF MAGISTRATE24. 8.2017

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Anti-Corruption & Economic Crimes Act No.3 of 2003

Legislation

Legislation referenced in the available case record.

Bribery Act No.47 of 2016

Legislation

Legislation referenced in the available case record.

Criminal Procedure Code (Cap 75)

Legislation

Legislation referenced in the available case record.

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