Ethics & Anti-Corruption Commission v Ibrahim Haji Issak [2020] eKLR

1.Whether the Defendant withdrew 11.5 million from the KMC’s account No. [...] held at First Community Bank without authorization. There being no law or provision cited to show that the mandate to withdraw cash required approval or authority from KMC’s board, the Court agreed with the Defendant that his co-signatories and himself being the topmost managers of the KMC, did not require approval from a board which did not even exist at the time, to run its day-to-day activities. The Court therefore relied on the principle that he who alleges the existence of a fact bears the burden to prove the same as was held in the case Vivo Energy Kenya Ltd (initial party Kenya Shell) v George Karunji (2014) eKLR and provided under section 107 of the Evidence Act. The court found that the Plaintiff had not tendered evidence to prove the allegation that the Defendant and his co-signatories required authorization before withdrawing the said sum. 2.Whether the Defendant did properly account for the said amount of money and if not so whether the said amount is directly recoverable from the Defendant with interest at commercial rates (Court considered issues 2 and 3 together) The Court determined that it is trite that the evidential burden of proof on any allegation or fact remains with the Plaintiff which upon proof shifts to the Defendant. In this case, the Court held that the Plaintiff had proved that the Defendant did withdraw 11.5 million and that there was no evidence produced on how the money was spent. To that extent, the burden of proof automatically shifted to the Defendant to justify lawful expenditure of the money in question. The Court relied on the Court of Appeal finding in Anti-Corruption Commission v Stanley Mombo Amuti where it held; “The Act provides that the burden of proof remained with EACC and it was the court to determine that it was discharged on a balance of probability. It is at that stage the burden would shift to the respondent if the court so orders.” In view of the evidence adduced by the Plaintiff, the Court was convinced that the Plaintiff had, on a balance of probability discharged its burden, and it was upon the Defendant to prove the contrary. The Court further determined that the Defendant did not prove his expenditure with the supporting documents, and he cannot run away from his duty of discharging the said burden of proof that he lawfully spent the money he received. Finally, it was the holding of the Court that the Defendant dishonestly spent the subject funds without proper accountability hence an act of fraud and breach of public duty. Failure to account for the public funds he withdrew, the Defendant was duty bound to refund KMC through the Plaintiff with interest at court rates.