Wafula v Director of Public Prosecutions; Ethics and Anti-Corruption Commission & 2 others (Interested Parties) (Petition E045 of 2024) [2025] KESC 46 (KLR) (Civ) (11 July 2025) (Judgment)

Background

The appeal dated 20th December 2024 was filed on 23rd December 2024 at the Supreme Court pursuant to Article 163(4)(a) of the Constitution. The appeal challenged the Court of Appeal's decision, which affirmed the High Court's decision. More particularly, the appellant challenges the respondent’s decision to transpose him from a prosecution witness to an accused person in Anti-Corruption Case No. 1 of 2017, Republic v Godfrey Sifuna Wanyonyi & 7 others before the Chief Magistrates’ Court in Bungoma.

  The appellant  an advocate of the High Court and was at all material times, the Company Secretary of Nzoia Sugar Company Limited (the company) and also one of the company’s Integrity Assurance Officers (IAO) for the Ethics and Anti- Corruption Commission, (the 1st interested party), since 2005. On 23rd April 2010, the appellant, in his capacity as the Company Secretary, was nominated to be one of the joint category “C” bank signatories to the company’s bank accounts, limited for cheques of amounts below Kenya Shillings one million (Kshs. 1,000,000/-), and related to replenishing the company’s petty cash, which facilitated company operations. Following complaints of misappropriation of funds by some of its employees, the 1st interested party undertook investigations into the alleged fraudulent use of the company’s funds, amounting to Kshs. 11,212,711/-. The appellant recorded a statement with the 1st interested party on 15th June 2016, and initial investigations revealed that Godfrey Sifuna Wanyoni, together with John Wanyonyi Simiyu, Kenneth Onyango Amwango, Ben Sitati Wakhungu, Robert Vincent Juma, Kenneth Wafula Wanjala, and Juliet Nuna Nganga were suspects in the alleged fraud and would therefore be charged with various offences under the Anti- Corruption and Economic Crimes Act (Cap. 65, Laws of Kenya) (ACECA). The 1st interested party thereafter forwarded its investigation file with recommendations to the DPP, who proceeded to charge the seven with various offences in Bungoma Chief Magistrate’s Anti-Corruption Case No. 1 of 2017, Republic v Godfrey Sifuna Wanyonyi & 6 Others. The appellant was at the time listed as a prosecution witness, his statement was shared with the accused persons at the time, and he was bonded severally to attend court. However, on 10th January 2018, while in his office, the appellant was arrested by officers attached to the 1st interested party. He was subsequently arraigned in court on 17th January 2018 in Bungoma Chief Magistrate’s Anti-Corruption Case No. 1 of 2017, Republic v Godfrey Sifuna Wanyonyi & 6 Others where he was charged with the offence of wilful failure to comply with the law relating to management of public funds contrary to Section 48(1) of ACECA. The particulars of the offence were that, on diverse dates between 4th June 2014 and 26th March 2015, in Nzoia Sugar Company Limited, and being a person concerned with the management of public property, he wilfully failed to comply with the applicable law relating to management of public funds to wit Section 79(2)(b) of the Public Finance Management Act, (Cap 412A, Laws of Kenya) (PFM Act) by authorizing payments for fictitious claims from bank account number 01001054695600 in the name of Nzoia Sugar Company Limited held at National Bank of Kenya, Bungoma Branch thereby leading to a loss of public funds totalling a sum of Kshs. 7,793,366/-. Arising from the said charges, the appellant was suspended from his employment for 24 months pending the conclusion of the criminal trial culminating in the present appeal.

 

Issues for determination

From the pleadings and the submissions of the parties, the following issues crystallized for court determination were as follows

  1. whether the Supreme  Court had jurisdiction to hear and determine the appeal ?
  2. whether the 1st respondent (Office of Director of Public Prosecution -ODPP)had  the mandate to review its decision, and in particular to transpose a prosecution witness to an accused person.?
  3. whether the appellant’s rights were violated.?
  4. whether the appellant is entitled to the relief sought.?

Held

  1. The High Court expressly considered the proceedings as a constitutional petition. Both the High Court and the Court of Appeal examined the scope and exercise of the respondent’s mandate under Article 157 of the Constitution. In addition, the issues raised by the appellant implicate fundamental rights under Articles 25 and 50 of the Constitution. These constitutional provisions were actively canvassed and adjudicated upon by the superior courts. Accordingly, the appeal raised substantive questions involving the interpretation and application of the Constitution, and therefore falled within the ambit of Article 163(4)(a) of the Constitution.
  2. The powers granted to the DPP  were not limitless and must be exercised within the boundaries set by Article 157 (11) of the Constitution which states that:
    1. “In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.”
  3. section 32 (2) of the Office of the Director of Public Prosecution Act Cap. 6B also granted the DPP the power to require further information in relation to an investigation or prosecution of an offence. The Section states:
    1. “(1)  Without prejudice to the provisions of any other law, the Director may, in accordance with subsection issue a directive in writing to any officer for purposes of obtaining information relevant to an investigation or prosecution of an offence.
    2. (2)  Where the Director has instituted or taken over, or is considering whether to bring or take over, a prosecution or appeal, revision or any other proceedings in relation to an offence or suspected offence, a directive may be made for—
    3.  
    4. a) any specified information, document or material or a specified kind of information, document or material, or for all relevant information, documents and material, to be furnished to the Director; or
    5. b) the provision of assistance, including the carrying out of an investigation or further investigation of a matter, in relation to the offence or suspected offence
    6.  
    7. (3)  An officer to whom a directive is made under this section shall comply with it and keep the Director informed of the progress made in complying with the directive ”
  4. The Guidelines on the Decision to Charge, 2019, stated that the standard required in deciding to charge is whether there is a reasonable prospect of conviction. The prosecutor must consider key evidence and certain minimum requirements of a file, which would apply depending on which test (the Two Stage Test or the Threshold Test) was  applied.
  5. The Two Stage Test comprises an ‘evidential test’ (is there sufficient evidence to provide a realistic prospect of conviction?) followed by a ‘public interest test (is it in the public interest to proceed with the prosecution?). The threshold test, on the other hand, was based on prima facie evidence of an offence and whether there is a reasonable prospect of additional evidence being available. The Guidelines also provided that, under the threshold test, there are instances where the prosecutor will overturn a decision not to prosecute or deal with a case by way of an out-of- court disposal. This is triggered by further evidence or information that comes to light. (See 4.6.3 The Guidelines on the decision to Charge, 2019).
  6. In a criminal case, a witness could potentially become an accused person through various circumstances, such as when their testimony reveals their own involvement in the crime or when evidence indicates their complicity. This can occur through different means, including a witness's own testimony, new evidence emerging during the trial, or a shift in the focus of the investigation. As per clause 6.3 of the Guidelines on the Decision to Charge, 2019, the decision to review any charges is based on the progress of investigations and when additional information comes to light. The review would however, be grounded in credible, admissible evidence and conducted in good faith. While this practice is permissible, it must adhere to constitutional and procedural standards, including the right to a fair hearing.
  7. From  the court appreciation of the Director of Public Prosecution Act 2013 and the Guidelines on the decision to charge, it  was court finding that, while the ODPP had lawful discretion to convert a witness into an accused person, such discretion must be exercised in good faith; it must be based on credible and admissible evidence; and the same must comply with the guidelines on the decision to charge, particularly the two-stage and threshold tests; and, the decision was subject to judicial review considerations under Article 47 of the Constitution. Any decision that derogates from these standards risks being declared unlawful, irrational or procedurally unfair.
  8. The court was therefore satisfied that the 1st interested party was entitled to conduct the additional investigations that would inform the ODPP’s decision in relation to any pending criminal proceedings. The appellant had not adduced any evidence to suggest that the renewed investigative efforts were driven by malice. Court  rejected the assertion that the initial decision to treat the appellant as a prosecution witness closed the possibility of a subsequent reassessment. The additional evidence demonstrated a new angle of interpretation of the case consistent with the prosecutorial guidelines on the decision to charge.
  9. Flowing from what stated above,  the court in the submissions by the ODPP, the appellant at the trial court was occupying the position of an accused person, not a prosecution witness. He was therefore had sufficient opportunity to prepare his defence and to present his case, and the assertion that he was confused as to his exact role is therefore unsubstantiated. As to whether any prior statements he made while under consideration as a witness might prejudice his trial, at the outset we do not find any procedural unfairness, malice or arbitrariness on the part of the ODPP whilst making the reclassification, and the timing is also not prejudicial to the appellant’s case since the main trial is yet to commence. We also agree with the findings of the superior courts below: that this is a matter best evaluated and determined by the trial court and flowing our guidance and caution above, it is best placed to assess the evidentiary and procedural implications arising from the appellant’s reclassification.
  10. As to whether the charges the appellant is facing are defective for being based on non-existent laws, court  agreed with the determination of the High Court, affirmed by the Court of Appeal, that there are well-settled provisions in the Criminal Procedure Code which deal with the issue of defective charge sheets. Court was also persuaded by the decision in Thuita Mwangi & 2 Others v Ethics and Anti- Corruption Commission & 3 Others [2013] eKLR that the issues of competency of charge sheets are perfectly within the jurisdiction of a trial court. Further, in Peter Ngoge v Francis Ole Kaparo & 5 Others, Sup. Ct. Petition No. 2 of 2012 [2012] eKLR regarding this Court’s jurisdictional limits, we settled the guiding principle that the chain of courts in the constitutional set-up, running up to the Court of Appeal, do indeed have the competence to resolve all matters turning on the technical complexities of the law, and that only cardinal issues of law, or of jurisprudential moment, deserve the further input of the Supreme Court.
  11. Having concluded that the respondent and 1st interested party acted well within their respective mandates in the transposition of the appellant from a witness to an accused person, and that his rights were not violated by such actions,  court found that the appellant was not deserving of the orders sought in his Petition of Appeal.

Orders of the Court

  1. The Petition of Appeal dated 20th December 2024 and filed on 23rd December 2024 dismissed.
  2. Each party shall bear their costs of the appeal.
  3. Court directed that the security for costs deposited in the appeal be refunded to the appellant.