Apex Finance International Limited & Another V Kenya Anti-Corruption Commission [2012] eKLR

Case Caption:

In the High Court of Kenya at Nakuru; Judicial Review 64 of 2011 Apex Finance International Limited and Anglo-Leasing and Finance International Limited versus Kenya Anti-Corruption Commission.

Case URL:

http://kenyalaw.org/caselaw/cases/view/82894

Summary Significance:

Extension of time, the court’s jurisdiction to enlarge time, and the granting of leave ex-parte and the capacity of juristic persons to institute legal proceedings.

Applicable laws:

●Order 50 rule 5 of the Civil Procedure Rules
●Section 9(2) of the Law Reform Act
●Sections 58 and 59 of the Interpretation and General Provisions Act.
●Section 42 of the Limitation of Actions Act
●Section 7(1) (now repealed), the Anti-Corruption and Economic Crimes Act, 2003

Brief Facts:

Vide a Chamber Summons application the court granted the Applicants herein orders enlarging time for applying for the orders of certiorari and granted them leave to do so within 14 days. The Applicants proceeded to file a substantive Notice of Motion dated 7th June, 2011 for Order of certiorari to quash, the five (5) requests for Mutual Legal Assistance issued by the Respondent to the Federal Office of Justice and Police Section of Mutual Assistance in Criminal Matters of Switzerland and prohibitory order prohibiting the Respondents from soliciting, inquiring, demanding and/or seeking information about the Applicants from the Federal Office of Justice and Police Section of Mutual Assistance in Criminal Matters of Switzerland pursuant to its request to Mutual Legal Assistance dated 6th May, 2008. The Respondent filed a Notice of Motion seeking a determination of several issues; including whether, the ex-parte Applicants are legal persons and therefore proper Applicants in this suit; the order granting extension of time should be set aside and consequently the Notice of Motion of 7th June, 2012 be struck out for being fatally defective.

Issues for Determination:

I.Whether the court had jurisdiction to extend time.
II.Whether there were proper juristic persons before the court.
III.Whether the request for Mutual Legal Assistance by the Respondent was legal.

Holding:

The court noted that it has the jurisdiction to enlarge time whenever the time prescribed for doing any act or taking proceedings has expired and the interests of justice demand it. Such enlargement may be ordered although the application for the same was not made until after the lapse of the time appointed or allowed in civil litigation. However, in Judicial review proceedings, the situation is different. The court held that it could not deny itself the power to act in order not to perpetrate an injustice by not extending the time to act. Enlargement of time was in this matter within the courts’ discretion, primarily due to the alleged illegality. Regarding the question of who a juristic person was, the court noted that the Respondent had raised concerns about the Applicants' juristic status, but the Applicants did not provide any evidence at all to refute these claims. Juristic persons according to the judge were creatures of the law. Thus, the burden of proving the legal existence of the Applicants rested with the Applicants themselves. The court determined that there were no proper Applicants before the court. Finally, on the legality of the respondents’ request for Mutual Legal Assistance, the court noted that Section 11(3)(a) of the Prevention of Corruption Act (Cap. 65, Laws of Kenya) granted the Respondent’s predecessor (the Kenya Anti-Corruption Authority) the authority to take necessary measures for preventing corruption in the public, parastatal, and private sectors even before the Mutual Legal Assistance Act 2011 (No. 36 of 2011) was passed. Similarly, Section 7(1) of the Anti-Corruption and Economic Crimes Act, 2003, empowers the EACC to investigate acts of corruption or economic crimes which provisions are wide in their meaning and confer power to the EACC in the course of their investigation to request for and obtain assistance from any source without and within Kenya. The Vienna Convention of 1963 on consular relations codified in Kenya Privileges and Immunities Act allows for the country to seek mutual legal assistance. The provisions that were in effect when the Requests for Mutual Legal Assistance were made should not be interpreted restrictively to apply only to investigations within Kenya. Rather, the provisions should be broadly construed to empower the Respondent and its predecessors to seek and receive assistance from any source, both inside and outside Kenya, during the course of their investigations.

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