Republic v. Harun Karisa & 8 Others: Anti-Corruption Case No. 25 of 2018
Chief Magistrate’s Anti-Corruption Court at Milimani, Nairobi
Presiding Magistrate: C.N. Ondieki
Background
The matter concerned alleged irregularities in the pre-qualification of Labour & Transport (L&T) contractors for Kenya Power and Lighting Company Limited (KPLC) under Tender No. KP1/9AA-2/OT/58/PJT/16-17. Several Senior KPLC officials, including two of our Clients, were charged under the Anti-Corruption and Economic Crimes Act, 2003 (ACECA) and the Public Procurement and Asset Disposal Act, 2015 (PPADA), with multiple charges relating to conspiracy, non-compliance with procurement law, and abuse of office that resulted in allegedly fraudulent payment of KES. 159,195,364.41 to improperly prequalified entities. All charges were dismissed.
Our anchoring submission on whether the impugned process constituted a “tender” or a “pre-qualification” under the PPADA resulted in a win in favour of the then-accused.
Issues for determination
The court summarised the questions for determination as follows:
- Whether the impugned process constituted a “tender” or a “pre-qualification” under the PPADA.
- Whether the accused conspired to commit an economic crime resulting in the loss of public funds.
- Whether failure to comply with procurement procedures (including quorum and evaluation criteria) amounted to criminal liability.
- Whether the 2nd and 5th Accused abused their offices to confer an improper benefit.
Holding & Reasoning
- Whether the impugned process constituted a “tender” or a “pre-qualification” under the PPADA
A central issue was whether the process constituted a “tender” or a “pre-qualification.” The Court held that, under Section 2 of the PPADA, pre-qualification is a preliminary process aimed at identifying eligible bidders, distinct from a tender, which involves price offers.
The Court found that the prosecution fundamentally mischaracterised the process, leading to the misapplication of statutory provisions governing tenders. Notably, the Court adopted our submissions on this distinction, which proved decisive in dismantling the foundation of the charges.
- Whether the accused conspired to commit an economic crime resulting in the loss of public funds.
The Court found no evidence of collusion or agreement among the accused. Crucially, prosecution witnesses confirmed that all payments were made for services rendered and that KPLC received full value for money.
The absence of financial loss and the exculpatory nature of the prosecution’s own evidence rendered the charge unsustainable. The Court agreed with our arguments that the charge lacked a factual substratum and failed to establish the essential elements of conspiracy.
- Whether failure to comply with procurement procedures (including quorum and evaluation criteria) amounted to criminal liability.
The Court agreed with our submissions that Section 78 of the PPADA applies strictly to tenders and not to pre-qualification processes. It further found that Sections 93–95 governing pre-qualification do not prescribe quorum requirements or a formal opening procedure.
Relying on this interpretation, the Court declared the charge fatally defective for being grounded on an inapplicable statutory provision.
- Whether the 2nd and 5th Accused abused their offices to confer an improper benefit.
The prosecution relied on an internal audit report alleging that certain companies were improperly prequalified due to non-compliant documentation. The Court found that the applicable tender document expressly prohibited reliance on extrinsic evidence. Evaluators were only required to assess documents as submitted. The audit findings were based on retrospective third-party verification, which evaluators were not mandated and indeed were prohibited from undertaking.
The Court accepted the defence position that the evaluation committee acted within the prescribed criteria and in good faith. It further held that administrative or systemic errors, including those arising from the e-procurement system, do not amount to criminal conduct absent proof of mens rea.
Significance of the outcome
This judgment underscores the need for strict statutory interpretation, emphasising that criminal charges must align precisely with the applicable legal framework and that misclassification of procurement processes is fatal to the prosecution’s case. It further clarifies the limits of the evaluation mandate, holding that evaluation committees are bound strictly by the tender document and cannot be faulted for failing to undertake extrinsic verification unless expressly required.
The Court also reaffirmed that economic crimes must be grounded in demonstrable financial loss, and that procedural irregularities alone are insufficient to sustain criminal liability. In addition, it highlighted the protection afforded to public officers acting in good faith within the scope of their duties, confirming that the absence of mens rea negates criminal culpability. Finally, the decision reinforces the principle of personal criminal liability, making clear that senior officials cannot be held liable solely by virtue of their positions without proof of active participation or direct authorisation.