Mary Ngechi Ngāethe -vs- The Hon. Attorney General and Another Civil Application No. 157 of 2012 (Unreported)
Case Caption:
Court of Appeal; Civil Application No. 157 of 2012.
Case URL:
Not available (Unreported)
Summary Significance:
The jurisdiction of the Court in granting an order of stay of criminal proceedings and the powers of officers of the EACC in promising a pardon, and whether such a pardon could be relied upon.
Applicable laws:
ā Rule 5 (2) (b) of the Court of Appeal Rules, 2010.
Brief Facts:
This was an application for a stay of execution pending an appeal from a judgment of the High Court. The Applicant herein was, until the events leading to this matter the Director of Legal Affairs of the defunct City Council of Nairobi, being investigated along with others for their alleged involvement in the irregular acquisition of the LR. No. 14759/2 in Mavoko Municipal Council by the Nairobi City Council for the development of a cemetery.
During the course of the investigation, she recorded more than three statements with the investigators and the one of concern herein was the statement recorded on 25th February 2010 at the office of the Former Government Spokesman where she stated that she had additional information regarding the ongoing investigation and that she was willing to provide all relevant documentation as soon as she was able to gather it but that she would require witness protection as the information could expose her to real danger.
The Applicant further stated that she had proceeded to record two statements upon a promise by two officers of the Ethics and Anti-Corruption Commission that they would secure her a pardon under Section 5 of the Anti-Corruption and Economic Crimes Act and therefore she would not be charged but treated as a state witness.
A week after the statements were made, the Director of the EACC made a report on the procurement of the cemetery land and alluded to the likelihood that the Applicant jointly with other suspects would be charged in court in connection to the fraudulent acquisition. The Applicant was subsequently arrested and charged with various offenses under the Anti-Corruption and Economic Crimes Act and the Penal Code. She made an attempt to get the criminal proceedings quashed by seeking an order of certiorari but the same was resisted by the respondents who argued, which position the Court agreed with, that they had no powers to assure the Applicant a pardon and that the admissibility of the contentious statements lay with the trial court and this resulted into this application. The Respondents however argue that the Court lacks jurisdiction to entertain this Application and that the Appeal is not arguable for the reason of absence of honesty, bad faith, or some other exceptional circumstances.
Issues for Determination:
I. Whether the Court has jurisdiction to hear and determine the application herein.
II. Whether the application has merit.
Holding:
The question the Court tasked itself with was whether it could stay criminal proceedings pending before the subordinate court. The Court was quick to note that first, the provision relied upon in the filing of this Application was wrong and second that even upon citing the proper provision of the law being Rule 5(2) (b) of the Court of Appeal Rules 2010 the Court could only issue an order for stay of execution, an injunction or stay of further proceedings in civil matters as opposed to criminal proceedings.
The Court observed that its jurisdiction flows from the Article 164 of the Constitution of Kenya and Section 3 of the Appellate Jurisdiction Act and therefore as a creature of the law it can only exercise the jurisdiction conferred to it under the law and that is in relation to this matter, entertain appeals from the High Court of Kenya.
The Court admitted that it has rendered itself and issued prohibitory orders against Magistratesā Courts from proceeding with a criminal trial where it found that evidence of malice and abuse of power or a derogation of the Appellantās constitutional rights but in all those instances the pronouncements were in response to Appeals from the decisions of the High Court arising from Judicial Review applications and never directly from the magistrateās court and therefore this is enough to dispose of the application.
The court felt it necessary to consider the merit of the application. On this, the Court was alive to the fact that the issues that would arise would be the construction of Section 5(1) of the Anti-Corruption and Economics Crimes Act vis a vis the Applicantās right to a fair hearing on account of the two statements in question; whether the EACC officers or Dr. Mutua had the power to promise a pardon; and whether the Applicant sought a pardon or protection as a witness all of which were arguable points.
The court opined that despite all this it was not convinced that merely because the statements were recorded and may be used as evidence in itself would render the appeal nugatory and that the Applicantās fear of self-incrimination was not founded in law. The Court concluded its ruling by stating that the trial court was best equipped to deal with the admissibility of evidence and therefore the application was without merit and was therefore dismissed.
