• A five-judge bench at the Court of Appeal held that James M’abira did not give any evidence showing how he suffered damages as a result of his prosecution.
• The appeal arose from a ruling by Justice James Wakiaga delivered on October 25, 2012.
A former state counsel has lost an attempt to compel the anti-graft agency to compensate him for an 'illegal' prosecution.
The appeals court dismissed an earlier Sh100,000 awarded to him in 2012.
A five-judge bench at the Court of Appeal held that James Makura M’abira did not give any evidence showing how he suffered damages as a result of his prosecution.
The judges – William Ouko, Martha Koome, Milton Makhandia, Agnes Murgor and Jamila Mohammed – allowed the application by the Ethics and Anti-Corruption Commission (EACC) to contest the award by the High Court.
“We find that the award of general damages of Sh100,000 was not supported by any evidence to demonstrate that the respondent was subjected to differential or unequal treatment before the law and how he suffered damages.”
The judges in their July 24 decision added, “The award of general damages of Sh100,000 was erroneous as it was not based on any evidence.”
The appeal arose from a ruling by Justice James Wakiaga delivered on October 25, 2012.
In his petition before Wakiaga, M’abira sought to stop criminal charges he was facing at Embu chief magistrate's court.
M’abira had said the charges were unconstitutional and sought judicial review orders to quash them and finally order compensation for breaching his constitutional right to a fair trial and equal treatment before the law.
M’abira had on June 22, 2011, been arrested and charged with three counts of soliciting for a benefit.
He was then charged with three counts of corruption. However, he was acquitted of the charges.
On the first count, M’abira was charged with corruptly soliciting Sh50,000 from Peter Chaina Magere as an inducement to recommend prosecution in a case that was referred to him by the Criminal Investigation Department for perusal and advice.
The second and third counts stated that he corruptly received Sh25,000 from Magere as an inducement to recommend prosecution in the case.
He was charged before the Nyeri chief magistrate’s court but the matter was later transferred to Embu chief magistrate’s court.
M’abira then filed a petition before the High Court in Nyeri challenging the charges.
The charges were withdrawn and he was charged afresh before the same court after a recommendation was made by the Director of Public Prosecutions a year later.
Prior to his prosecution M’abira was employed at the state law office in Nyeri as a senior state counsel.
M’abira says he was arrested by the Kenya Anti-Corruption Commission (KACC). He accuses the defunct commission of usurping the mandate of the Attorney General's office, which previously was in charge of public prosecutions. Hence, he says his prosecution should be declared null and void.
He further complained that the KACC arraigned him on June 29, 2011, without making a recommendation to the AG as was required by law.
The court was told he was not supplied with relevant materials such as visual and audio tape recordings to enable him to prepare for the hearing, which was a breach of his right to a fair trial.
Judge Wakiaga after hearing the matter, awarded him Sh100,000 for breach of constitutional rights, saying he was not given equal treatment before the law.
Aggrieved, the EACC appealed the High Court's decision.
The anti-graft agency argued that the judge erred in holding that the written consent of the DPP is required as a matter of law prior to the institution of any criminal charges.
It also said that judge Wakiaga erred in failing to find that the case had been instituted by a competent public prosecutor acting under the delegated authority of the AG.
Further, it argued that the judge was wrong in awarding M’abira for alleged violations in the absence of any evidence to show any loss suffered.
M’abira opposed the appeal, saying the award money was inordinately low.
But the appeal judges dismissed his cross-appeal.
Edited by A.N