Christopher Ndarathi Murungaru v Kenya Anti-Corruption Commission & Another [2006] eKLR

The Court held that all fundamental rights, whether described as inherent, inalienable, universal, fundamental, legal and Constitutional, including the right to be presumed innocent or to life itself, are subject to limitations. These limitations are designed to ensure that the enjoyment of those rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest. The Court of Appeal then proceeded to address the concerns of the Constitution pertinent to the case. It opined that, with regards to Section 77(2) (a), the right to be presumed innocent and Section 77 (7), the right not to incriminate or bear testimony against self, the language of the Constitution is clear and unambiguous. It admits only one meaning; that the right to be presumed innocent and not to bear witness against self, arises only upon being charged with a criminal offence, and not before. Regarding the ACECA, the Court held that Sections 26 (1), 27 and 28 of the Act are not inconsistent with the provisions of Section 70 (a), 70 (c) 77(2) (a), 76 (1), 77(7) or 82 of the Constitution of Kenya. They are investigatory provisions and do not change or reverse the burden of proof, in criminal cases. The burden of proof rests on the prosecution at all times and not on the shoulders of the investigators. The Court further held that an investigation by the Director of the Kenya Anti-Corruption or his Commission under Sections 26, 27 and 28 of the Act is constitutionally permissible. Any such intrusion of the privacy of home and the property in the interest of the rights and freedoms of others and the public interest are constitutionally justifiable in respect of a person reasonably suspected of corruption and economic crime. It was the Court’s opinion that the 1st Respondent’s statutory requirement that the Applicant do furnish a list of all the Applicant’s property and mode of acquisition is neither inhumane, demeaning nor degrading treatment nor in contravention of Section 74 (1) of the Constitution which provisions prohibit torture degrading or inhuman treatment. On the question whether the pre-trial leads to adverse publicity of the Applicant, whether orchestrated by the 1st Respondent and/or with its connivance both in the electronic and print media was likely to affect a fair trial and hearing as guaranteed under section 77 (1) & 77 (9) of the Constitution, the Court found that this was purely speculative. This is because the Applicant had not been charged with any anti-corruption offence or economic crime. The charges against the Applicant under Section 26 (2) of the Act were as a result of the failure by the Applicant to comply with the notice under Section 26 (1) of the Act. The Court insisted that the Applicant had not been discriminated in any manner under Section 82 (1) and (2) of the 1963 Constitution of Kenya and that the limitations in law cannot be unconstitutional or be regarded to be contrary to the rule of law, the public interest or public policy or decency. The Court was clear that the presumption of a corrupt act under Section 58 of the ACECA is not a shift of the burden of proof. The presumption of a corrupt act is reached upon proof, by the prosecution and again, that presumption applies at the trial, not the investigation. Therefore, the said section does not offend either Section 77 (2) (a), or Section 77 (7) of the 1963 Constitution. Lastly, the Applicant’s Originating Summons dated and filed on 1st February 2006 was dismissed with costs to the Respondents, and the Court directed that the law should take its course.