Abstract Perception Index 2012 Kenya is ranked

The culture of corruption has grown roots in Kenyan society at large and become endemic. Institutions, which were designed for the regulation of the relationships between citizens and the State, are being used instead for the personal enrichment of public officials (politicians and bureaucrats) and other corrupt private agents (individuals, groups, and businesses).
Corruption persists in Kenya primarily because there are people in power who benefit from it and the existing governance institutions lack both the will and capacity to stop them from doing so. This work takes a governance and development perspective to analytically examine the causes and consequences of corruption in Kenya. It identifies the key factors (such as absence of strong and effective democratic institutions, centralized power, lack of public accountability, and impunity) and synthesizes and analyses available data, indicators, and other information in that regard.
Status of corruption in Kenya
Corruption in the post-colonial Kenyan government has a history which spans the era of the Jomo Kenyatta and Daniel Arap Moi KANU governments to Mwai Kibaki’s government. In the Corruption Perception Index 2012 Kenya is ranked 139th out of 176 countries for corruption, tied with Azerbaijan, Nepal, Nigeria, and Pakistan (least corrupt countries are at the top of the list).
Despite the existence of Anti-Corruption Commission –formerly the Kenya Anti-Corruption Commission (KACC) established in 2003 and reframed in 2011 as the Ethics and Anti-Corruption Commission (EACC) and several other measures have been put in place to try to tackle the corruption problem.
Below are some of the decided cases involving corruption;
Case 1
Plaintiff’s Case
The plaintiff, by an amended plaint dated 4th September, 2007 and filed on 10th September, 2007 seeks damages for malicious prosecution, aggravated damages for libel and slander, lost earnings as Director General of the Communications Commission of Kenya for 3 years and 8 months, aggravated damages for loss of prospects of promotion and loss of freedom to gainfully practice law for the 3 years he faced the trial. He also seeks the costs of defending himself in Nairobi CM Anti-corruption case no. 16 of 2003 and Chief Magistrate’s Court Criminal Case No. 2177 of 2005
1st defendant case
While denying the averments in the plaint the 1st defendant pleaded that the plaintiff’s arrest was not malicious or arbitrary but was based on reasonable and probable cause and that the plaintiff voluntarily resigned from his position as the Director General of the Communications Commission of Kenya before his arrest and was paid his entire terminal dues and other benefits.
The 1st defendant called as DW1, Samuel Magati Osero, who at the material time was working with the 1st Defendant’s Anti-Corruption Police Unit and was involved in investigating criminal case no. 2177 of 2005. Having taken over the same from the then Investigating Officer in respect of the allegations that the Corporation had bought a plot belonging to it. According to him the complaint was that the plaintiff was the Corporation’s secretary and was involved in the sale transaction as he was supposed to sanction the sale agreement between the Corporation and the third party.

2nd defendant case
The 2nd defendant while denying the allegations made in the plaint averred that the charges against the plaintiff were undertaken pursuant to a reasonable and probable cause in execution of a statutory duty after a complaint was lodged and a probable criminal offence punishable in law established and that the plaintiff’s acquittal did not entitle the plaintiff to any damages in malicious prosecution.
With respect to the tort of defamation the 2nd defendant pleaded justification.
It was further pleaded that the plaintiff’s cause of action was time barred under the Public Authorities Limitation Act, Cap 39 Laws of Kenya.
The 2nd defendant did not call any evidence since he relied on the witnesses called by the 1st Defendant.
In my view the considerations therein are to be taken in the context of the tort of malicious prosecution and do not necessarily warrant an award of damages for defamation.
The plaintiff having resigned rather than being terminated there is no basis upon which I can find based on the material before me that the resignation of the plaintiff was due to pressure from the Government. Accordingly the claim relating to the plaintiff’s loss of employment fails.
The Court awarded to the plaintiff a sum of Kshs 4,000,000.00 in respect of general and aggravated damages for malicious prosecution on 14th January, 2013.
I am of the view that the plaintiff herein is entitled to a similar award but taking into account the fact that the plaintiff faced two criminal cases, it is my view that an award of Kshs 5,000,000.00 general damages is reasonable compensation in the circumstances.

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Accordingly I award the plaintiff Kshs 5,000,000.00 general damages for malicious prosecution. The plaintiff will also have the costs of this suit. The general damages will accrue interest at Court rates from the date of this judgement till payment in full.

On 12th of July 2008, the Plaintiff acting on information received, wrote to the Defendant informing him that his various assets located in different parts of the country were estimated to be worth millions of shillings and were disproportionate to his salary. Their reasoning was that the defendant in his declaration forms had indicated that salary was his only source of income. The Plaintiff also noted that the Defendant was a long serving civil servant who had worked in various ministries and departments for over 25 years.
The Notice required the Defendant to provide a written statement explaining the enumerated properties that he had acquired between 1992 and 2008 which included landed properties, motor vehicles and cash, cheque deposits and bank account balances.
The Defendant was also asked to offer an explanation relating to cash Kshs. 310,000/= (Three Hundred and Ten thousand shillings), recovered from his office and Kshs. 3,998,000/= (Three million, nine hundred Ninety eight thousand) recovered from his house, standard chartered bank bankers Cheque No. 993604 of Kshs. 4,300,000/= (Four Million Three Hundred Thousand Shillings) and Barclays Bank of Kenya bankers Cheque no. 564369 worth Kshs. 13,000,000/= (Thirteen Million Shillings). He was also required to explain the sources.
Dissatisfied with the Defendant’s reply, the Plaintiff filed the originating Summons dated 19th September, 2008 seeking to have the properties listed below declared as “unexplained assets” pursuant to section 3 of the Anti- Corruption and Economic Crimes Act, 2003 (herein referred to as ACECA) and be forfeited to the government of Kenya
On the advances from friends and family the Defendant testified that he received advances from friends and particularly Kshs. 9,500,000/= from one Samuel Gitonga, Vide an agreement dated 18th January, 2008. This is an averment which however, was not supported by any evidence. The said Samuel Gitonga did not testify, nor did the Defendant provide any documentary evidence to support his allegation.
With regard to professional fees, the Defendant testified that some of the deposits into his bank accounts came from payments made to him for professional accounting services he had rendered. In particular he stated that he earned Kshs. 15.5 million from a Sudanese National. There was however not a shred of evidence to back such an averment. In my view, for the defendant to attract professional fees of the magnitude of Kshs.15.5 million, he would have to have served a very large corporate body for a considerable amount of time or work to earn such an amount.
On the funds from sale of property, he defendant admitted that he received money from Jenifer Evelyn Mwaka and Antony Ng’ang’a Mwaura amounting to Kshs. 10,900,000/=.The Defendant also supplied a sale agreement for Plot number 121/186 Komarock concerning Jennifer Evelyn Mwaka. This document was also not among the documents in the inventory of items recovered from his house or office during the search.

Then there was also the matter of Kshs. 4,308,000/- cash seized from the Defendant’s house. The Defendant told the court that this is the money intended for the building material which was well and good. He did not however tell the court the source of this money.
I am satisfied that the Plaintiff proved on a balance of probability that the property listed below fits into the definition of the term unexplained assets as defined under Section 2 of ACECA and should be forfeited to the State:
1. Kshs. 9,500,000/= said to have been advanced by one Samuel Gitonga,
2. Kshs. 15.5 million said to be professional fees from a Sudanese National
3. Kshs. 10,900,000/=. Said to be instalments paid by Evelyn Mwaka and Antony Ng’ang’a Mwaura for sale of property.
4. Kshs. 1,000,000.00 said to be funds for a community project.
5. Kshs. 4,308,000/- cash seized from the Defendant’s house.
I therefore declare the foregoing sums of monies to be unexplained assets and order that the Defendant do pay the Kenya Government Kshs.41, 208,000/- being the sum total of the monies listed above.

Case 3
Kenya anti-corruption commission (plaintiff) vs Samson Kegengo Ongeri (1st defendant), James Raymond Njenga (2nd defendant)
The plaintiff brought this suit against the defendants on 11th May, 2010 seeking among other reliefs, a declaration that the leasehold title held by the 1st defendant in all that parcel of land known as LR. No. Kisii Municipality Block 3/258 (hereinafter referred to as “the suit property”) is illegal null and void, an order for the rectification of register of the suit property by the cancellation of the registration of the 1st defendant as the proprietor of the leasehold interest in the suit property.
The Plaintiff’s suit against the defendants was brought on the grounds that the suit property was part of land that was reserved for a municipal market within Kisii town and that the same was fraudulently and in breach of the law leased by the 2nd defendant to the 1st defendant after the 2nd defendant had changed the user thereof from a municipal market to shops, offices and flats.
When the application came up for hearing on 4th June, 2013, Mr.Oira appeared for the Plaintiff while Mr. Ondari appeared for the 1st defendant. There was no appearance for the 2nd defendant. Mr. Oira in his submission in support of the application reiterated the contents of the affidavit of Stanley Miriti that was filed in support of the application. Mr.Oira submitted that the main prayer sought in the plaint herein is a declaration that the title to the suit property held by the 1st defendant was acquired unlawfully and as such null and void.
Counsel submitted further that the decision of the government to revoke the 1st defendant’s title should be adopted by the court as a compromise and/or a settlement between the parties herein and judgment entered accordingly since the Plaintiff’s investigations had revealed that the 1st defendant’s title was acquired fraudulently and as such null and void which was the same conclusion that was arrived at by the Government through the District Land Registrar, Kisii when it revoked the 1st defendant’s title over the suit property.
I am not satisfied that this suit has been adjusted wholly or in part through a lawful agreement or compromise between the parties. I am therefore unable to give any direction or order to that effect. In the absence of such agreement or compromise, I am also unable to enter judgment for the Plaintiff as prayed in the Plaint as there is no basis for such judgment which can only be based on a compromise or agreement between the parties. The upshot of the foregoing is that the Plaintiff’s application dated 1st November, 2012 is not for granting. The same is hereby dismissed. The costs of the application shall be in the cause since the defendants did not formally oppose the application.
Boniface Okerosi Misera(1st appellant) ,Cephas Kamande Mwaura(2nd appellant) vs Republic(respondent)
Boniface Okerosi Misera “the 1st appellant” and Cephas Kamande Mwaura “the 2nd appellant” were jointly charged with two others before the Magistrate’s Court Anti-Corruption Court Nairobi with various offences under the Anti-Corruption ; Economic Crimes act “ACECA”. The charges in respect of the appellants were as follows:
Conspiracy to commit an offence of corruption contrary to section 47A (3) as read with section 48 of the Anti-Corruption and Economic Crimes Act, No. 3 of 2003.
The particulars being that the appellants on diverse dates between December, 2008 and April, 2009 in Nairobi within Nairobi Province conspired together to commit an offence of corruption with others before this court by acquiring the sum of Kenya shillings two hundred and eighty three million, two hundred thousand (Kshs.283, 200,000/-) from Ministry of Local Government purporting it to be the purchase price payable by the city Council of Nairobi for L.R. Number 14759/2.
This instruction was complied with as is evidenced by the bank statement from Bank of Africa Kenya Account No. 01019110006 in the name of Osiemo, Onduso ; Mutinda advocates EXB57. The amount of Kshs 9,300,000/- was transferred to the 2nd appellant on 16th Feb 2009. It was part of what the three Law firms had received from N.C.C. The 2nd appellant had all the time (4½) years to prepare for his defence. Had he indeed been a professional land surveyor as he claims there is nothing that prevented him from getting the relevant documents to present to the court. Furthermore he never sought the court’s indulgence to have the documents presented at a later date.
There is no evidence that the 2nd appellant presented any invoice to Mr. Mutinda, Mr. Onduso or even Mr. Osiemo for payment for work allegedly done. It is not clear why these three law firms jointly released Kshs 9,300,000/- out of the Kshs 281,300,000 received from N.C.C to the 2nd appellant. He declined to call Mr. Mutinda as his witness to confirm what he was telling the court about payment for work done.
The 2nd appellant may have presented himself to PW3 and PW22 as a surveyor, but he has nothing to show for that. My finding is that the 2nd appellant is not a professional land surveyor and whatever he allegedly did on PW3’s land in the absence of any documentation was part of the fraudulent scheme in the whole transaction.
? Conviction is upheld.
? Each appellant is fined Kshs one (1) Million in default one (1) year imprisonment.
? The mandatory fines of Kshs 40,000,000/- and 37,200,000/- respectively and in default one year imprisonment are confirmed

Kenya anti-corruption commission(plaintiff) vs Industrial collaborative limited (defendant)
The defendant Industrial Collaborative Limited is the applicant and has taken out the Notice of Motion dated 31st December 2010 which was filed in court on 18th January KENYA ANTI-CORRUPTION COMMISSION v INDUSTRIAL COLLABORATIVE LTD 2011 and heard by this court on 17th January 2012. The applicant prays that there be stay of the execution of the court’s ruling of 9th November, 2010 pending the hearing and determination of the intended appeal on the grounds that if stay of execution is not granted the applicants good and arguable appeal will be rendered nugatory.
The other grounds are that the application was brought without delay and the applicant is ready and willing to abide by any order as may be ordered by the court.
The affidavit in support of the application is sworn by one Simon Ndungu described as director of the defendant/applicant authorized to so swear and he deposed that the defendant applicant has a very strong and arguable appeal with high chances of success. He adds that the applicant would suffer loss and damage if stay is not granted.
The application is opposed and Counsel for the Respondent has sworn a Replying Affidavit describing the application as fatally defective and an abuse of court process and urges the court to dismiss it at the first instance, with costs. He adds that the conditions to be met before stay can be granted have not been met and so the application should be refused.
The court was therefore left in the dark as to what loss- substantial loss- that the applicant would be put to in the consolidation of the suits in question. The result is that the applicant has not satisfied the requirement to prove substantial loss.
There is no basis given as for the granting of the orders sought and hence the court need not consider any orders as to security. I find that the refusal of the orders sought cannot render the appeal nugatory.

Beatrice W.Muita (appellant) vs Republic (respondent)
Beatrice W. Muita hereinafter referred to as the Appellant was charged with the following offences;
Count I: Corruptly soliciting for a benefit contrary to Section 39 (3) (a) as read with Section 48 (1) of the Anti-Corruption and Economic Crimes Act. No. 3 of 2003
The particulars being that on the 19th day of July, 2013 at the Nairobi Area Traffic Headquarters in Nairobi County, corruptly solicited for a benefit of Kshs.500/- from Peter Oduor, as an inducement so as to facilitate the signing of Kenya Revenue Authority Form XVI, by an authorized police officer
Count II: Corruptly soliciting for a benefit contrary to Section 39 (3) (a) as read with Section 48 (1) of the Anti-Corruption and Economic Crimes Act No. 3 of 2003.
The particulars being that on the 19th day of July, 2013 at the Nairobi Area Traffic Headquarters in Nairobi County, corruptly solicited for a benefit of Kshs.500/- from Peter Oduor, as an inducement so as to facilitate the signing of Kenya Revenue Authority Form XVI, by an authorized police officer
Count III: Corruptly receiving a benefit contrary to Section 39 (3) (a) as read with Section 48 (1) of the Anti-Corruption and Economic Crimes Act No. 3 of 2003.
The particulars being that on the 19th day of July, 2013 at the Nairobi Area Traffic Headquarters in Nairobi County, corruptly solicited for a benefit of Kshs.500/- from Peter Oduor, as an inducement so as to facilitate the signing of Kenya Revenue Authority Form XVI, by authorized police officer, a form that was necessary for application of a Public Service Vehicle driver’s licence, a matter relating to the affairs of the said public body.
It is clear that Counts 1 and 2 of the charge sheet are basically the same save for the dates. The Appellant was acquitted on the 1st Count on the ground that there was no independent evidence to support the claims by PW1. The Appellant was also acquitted of Count 3 which count related to the receipt of Kshs.500/=. The reason for the acquittal on this count are given at page 26 – 28 of the Judgment. “The evidence on this was quite fuzzy”, the Court said.
The video (Exhibit 17) recording was listened to by the trial Court and a transcript (Exhibit 10) was produced. The video footage (Exhibit 17) and the transcript corroborate PW1’s oral evidence, that indeed, there was a demand for Kshs.500/= for facilitation in the issuance and signing of the PSV application form.
After analyzing the evidence on record, I am satisfied that the charge of soliciting as contained in Count No. 2 was proved to the required standard. The result is that the appeal has no merit and is dismissed. The conviction and sentence are confirmed.
Ethics and anti-corruption commission (applicant) vs Evanson Thuo Waweru (1st Respondent), Era Two Thousand Enterprises (2nd Respndent), Evanson Thuo Waweru big sale (3rd Resondent)
The Applicant, Commission filed an experte Originating Motion dated 13th September 2017 under certificate of urgency under the Vacation Rules, under Section 56 Anti-Corruption & Economic Crimes Act (ACECA) No. 3 of 2003 and Section 11(j) EACC Act No. 22 of 2011. The Commission sought in the main that:
1. (Spent)
2. The court be pleased to issue an order to prohibit the Respondents jointly and severally, their agent, servants or any other persons from withdrawing, transferring, disposing or in any other way dealing with the funds held in the bank accounts listed below:
i. xxxxx held in Barclays Bank of Kenya Limited, Queensway House branch in the name of Era Two Thousand Enterprises;
ii. xxxxxx held in Barclays Bank of Kenya Limited, Queensway House branch in the name of Big Sale superstore/Big Sale Chemicals;
3. The orders shall subsist for a period of six (6) months.
Upon being served the Respondent filed a response to the application. The matter came up on 28th September 2017 as directed but the Anti-Corruption Division were not sitting, whereupon Ngenye J who extended the interim orders and directed that the matter be heard on 5th October 2017. The matter came up for hearing in the Anti-Corruption Division and was placed before me on the 5th October 2017 Learned counsel Mr. Kimeru appeared for the Respondent while learned State Counsel M/s Ndungu appeared for the Applicant Commission.
Mr. Kimeru urged that the orders granted by Kimaru J on 28th September 2017 are not the orders envisaged under Section 56(1) because the orders under Section 56(1) last for six months. His interpretation of the orders of Kimaru J which were to run for 14 days was that the Judge was not satisfied that there were reasonable grounds to grant the orders sought. He argued that if the Applicant had any points of law to raise it should follow the right procedure. Further that in the spirit of Article 159 of the Constitution the court should go to the substance of the application instead of questioning the manner in which the court had been approached.
I have also considered the Origination Motion together with the supporting affidavit and I am satisfied that the orders of preservation granted by Kimaru J on 14th September 2017 were merited, save that they should have been for six months. To bring them in line with Section 56 therefore, I make orders as follows:
i. Prayer No. 2 of the application dated 13th September 2017 is granted.
ii. The order will remain in place for six months.
iii. Barclays Bank of Kenya Limited, Queensway House branch and the Respondent to be served with this order forthwith.
There are no order as costs.
Case 9
Peter Mung’ara Mwaura (Applicant) vs Republic (Respondent)
Peter Mung’ara Mwaura the Appellant herein was charged with 10 Counts before the Chief Magistrate’s Anti-Corruption Court, Nairobi under the Anti-Corruption and Economic Crimes Act and the Penal Code. The matter proceeded to trial and the Appellant was acquitted of the offences in Count 4, 5, 6, 7, 8, 9 and 10 which were under Section 349 of the Penal Code.
The Appellant was, however, convicted of the offence in Count 1 and Count 2 and sentenced to twelve (12) months imprisonment on each count to run concurrently. The Counts were as follows:
Count 1: Deceiving a principal contrary to Section 41(2) as read with Section 48 of the Anti-Corruption and Economic Crimes Act No. 3 of 2003.
Count 2: False accounting by a public officer contrary to Section 331(2) of the Penal Code.

On the evidence, the Appellant submitted that the prosecution deliberately failed to place evidence before the court to establish one of the most crucial and must prove ingredients of the charges in both Count 1 and 2 on which the Appellant was convicted and sentenced by the lower court, which is the element of “detriment.” The Appellant submitted that the prosecution withheld crucial evidence from the court and which the Appellant could use in his defence.

On the issue of proof of mens rea, the Respondent argued that the appellant was an imprest holder which he was given and was supposed to account for the money that was public property. He failed to do so and falsely accounted for it. The mens rea for committing the offence had therefore been established.
Having considered all the evidence afresh, I find that the grounds of appeal as raised by the Appellant on conviction under Count 1 and sentence have merit. First, for being duplicitous in view of the fact that it is the same set of circumstances for which the Appellant was convicted in Count 2 and secondly, for noncompliance with Section 35 ACECA. I therefore quash the conviction and the sentence under Count 1 and set it aside.
The grounds of appeal as raised on conviction and sentence under Count 2 are found to lack merit. I therefore dismiss the appeal on count 2 and confirm both the Conviction and sentence therein
Ethics and Anti-Corruption Commission (plaintiff) vs Njuguna Macharia (defendant)
The Plaintiff filed an application by way of a Notice of Motion dated 11th March 2014 expressed to be brought under Order 40 Rules 1, 4 and 10 and Order 51 Rule 1 of the Civil Procedure Rules, as well as section 3A of the Civil Procedure Act. The Plaintiff is seeking injunction orders to restrain the Defendant whether by himself, his servants, chargees or assigns from selling, advertising for sale, transferring, charging, further charging, leasing, taking possession, subdividing, wasting or in any manner howsoever from dealing with L.R. No. 209/14712 (hereinafter referred to as the suit property), situated along Waiyaki Way, Nairobi, pending the hearing and determination of this suit. The Plaintiff is also seeking in the alternative, an order for preservation of the suit property pending the hearing and determination of this suit.
1. The Defendant be and is hereby restrained whether by himself, his servants, chargees or assigns from selling, advertising for sale, transferring, further charging, leasing, subdividing, wasting or in any manner howsoever disposing of L.R. No. 209/14712 situated along Waiyaki Way, Nairobi, pending the hearing and determination of this suit or until further orders.
2. The costs of the Plaintiff’s Notice of Motion dated 11th March 2014 shall be in the cause
Legal measures put in place to combat official graft
1. The Ethics and Anti-corruption Commission has been created by the government to fight corruption in Kenya.
2. The government banned activities which were leading to corruption e.g. The NTSA officers who were checking cars on highway.
3. Training of County Governments Officials to enable them carry out their legislative, oversight and administrative roles effectively
4. Development and Dissemination of IEC Materials by the Ethics and Anti-corruption.
5. The conjoining of many ministries to form one where the cabinet secretary will be responsible whenever there is an issue such as corruption cases.
6. Online platform has been created by the government were procurement is done with clarity.
7. The government ensures that the judicial officers are paid well so that they are not bribed easily.
8. Civil servants pass through vetting process after being appointed .It is done with clarity and most of the times broadcasted through the national television.
9. Firing and prosecuting heavily those found guilty of corruption for example the officials in the NYS scandal.
Measures that can be put in place to ensure the business environment is free of corruption
1. There should be fresh vetting on sectors accused of corruption to check on the integrity and validity of the officials in question.
2. There should be lifestyle audit on all civil servants. These should enable us to capture the corrupt officials using state money to enrich themselves.
3. Appointment of public officers should be based on merit and qualification. The individuals should be vetted with integrity check so that they do not misuse public funds.
4. Corrupt individuals should be dealt with immediately and given serve punishment so as to discourage other people from engaging in this vice.
5. The government should have an online platform where citizens can track how their officials are spending their funds allocated to them in various departments and if it is indeed true they did so.
6. The government should create a website where citizens can report corrupt individuals who are preventing our economy from growing.