The applications herein seek that this court review ruling and orders of the Chief Magistrate’s Court anti-corruption case number 33 of 2018 which found the applicants with a case to answer. The applications are seeking that this court finds that the prosecution’s evidence was not sufficient for them to be put on their defence.
The matters were consolidated on 20-05-2025 with directions that the applicants would be referred to as follows;
The applicant in revision number E001 of 2025 as the 1 st applicant;
The applicant in revision number E002 of 2025 as the 2 nd applicant;
The applicant in revision number E005 0f 2025 as the 3 rd applicant; and
The applicant in revision number E006 0f 2025 as the 4 th applicant.
The applicants and 13 others were charged before the Chief Magistrate’s court on 13-08-2018 with cumulative 19 counts all of which related to acquisition of land for purposes of construction of Standard Gauge Railway. The charges were as follows;
All the applicants
Count 1:
Conspiracy to commit an offence of corruption contrary to section 47A(3) as read together with section 48 of the Anti-Corruption and Economic Crimes Act No. 3 of 2003.
Particulars:
Between 1 st July 1999 and 30 th June 2018 within the Nairobi City County in the Republic of Kenya jointly with others not before court conspired to commit an offence of corruption namely fraud, thereby causing a loss of public funds belonging to Kenya Railways Corporation in the sum of Kenya Shillings 221,375,000/= for compensation for acquisition of L.R Nos. 9084, 9085, 9086, 9087 and 9088 being public land.
1 st and 2 nd applicants
Count 19
Unlawful acquisition of public property contrary to section 45(1)(a) as read with section 48 of the Anti-Corruption and Economic Crimes Act, 2003.
Particulars :
Between January 2009 and December 2016 within Nairobi City County, being persons employed in public service as government surveyors, unlawfully disposed property namely L.R. NO: 9085, 9086, 9087 belonging to Kenya Railways Corporation.
Alternative count
Neglect of official duty by a public officer contrary to section 128 of the Penal Code.
Particulars;
Between 16 th September, 2016 and 22 nd December 2016 within the Nairobi City County, being persons employed in the public service, Kenya Railways Corporation as Land surveyors willfully failed to carry out due diligence in the protection of the said Corporation's reserve land thereby causing loss of public funds amounting to Kshs.221,375,000/=.
The 3 rd applicant
Count 12
Abuse of office contrary to section 46 as read with section 48 of the anti-corruption and economic crimes act, no. 3 of 2003.
Particulars;
On 15 th December, 2016 at the National Lands Commission offices, within Nairobi City County in the Republic of Kenya being the Chief Executive Officer used his offices to improperly confer a benefit by authorizing payment of Kshs. 221,375,000/= to Keibukwo Investment Limited as compensation for parcels of Land, LR. NO. 9085, 9086, 9087 and 9088, whose titles had been revoked by the Review of Grants and Dispositions of Land Committee of the said Commission for being illegally acquired public land.
Alternative charge
Breach of trust contrary to section 127(1) as read with section 127(2) of the penal code.
Particulars;
On 15 th December, 2016 at the National Lands Commission offices, within Nairobi City County in the Republic of Kenya being the Chief Executive Officer and person employed in public service, to wit, National Land Commission and being concerned with management of public land, in the discharge of his duties he breached the trust by unlawfully facilitating payment of Kshs 221,375,000/= as compensation for L. R. NO: 9085, 9086, 9087 and 9088 which were public land, causing loss of public money thereby affecting interests of the public.
The 4 th applicant
Count 2
Abuse of office contrary to Section 46 as read with Section 48 of the Anti-Corruption and Economic Crimes Act, no. 3 of 2003.
Particulars;
On 11 th October, 2016 at the National Lands Commission offices at Ardhi House, within Nairobi City County being the Chairman of the said Commission, used your office to improperly confer a benefit, to wit, facilitating the award of compensation for parcel LR. NO. 9085 in favour of Dasahe Investments Limited whose title had been revoked by the Review of Grants and Dispositions of Land Committee of the National Land Commission for being illegally acquired public land.
Count 3
Abuse of office contrary to Section 46 as read with Section 48 of the Anti-Corruption and Economic Crimes Act, no. 3 of 2003.
Particulars;
On 11 th October, 2016 at the National Lands Commission offices at Ardhi House, within Nairobi City County being the Chairman of the said Commission, used his office to improperly confer a benefit to wit, facilitating the award of compensation for parcel LR. NO. 9086 in favour of Olomotit Estate Limited whose title had been revoked by the Review of Grants and Dispositions of Land Committee of the National Land Commission for being illegally acquired public land.
Count 4
Abuse of office contrary to Section 46 as read with Section 48 of the Anti-Corruption and Economic Crimes Act, no. 3 of 2003.
Particulars
On 11 th October, 2016 at the National Lands Commission offices at Ardhi House, within Nairobi City County being the Chairman of the said Commission, used his office to improperly confer a benefit to wit, facilitating the award of compensation for parcel LR. NO. 9087 in favour of Dasahe Investments Limited whose title had been revoked by the Review of Grants and Dispositions of Land Committee of the National Land Commission for being illegally acquired public land.
Count 5
Abuse of office contrary to Section 46 as read with Section 48 of the Anti-Corruption and Economic Crimes Act, no. 3 of 2003.
Particulars;
On 11 th October, 2016 at the National Lands Commission offices at Ardhi House, within Nairobi City County in the Republic of Kenya, being the Chairman of the said Commission, used his office to improperly confer a benefit to wit facilitating the award of compensation for parcel LR. NO. 9088 in favour of Dasahe Investments Limited whose title had been revoked by the Review of Grants and Dispositions of Land Committee of the National Land Commission for being illegally acquired public land. <><><>><><>><><><>><><>>>><><><>><><>><><><>><><>>>><>><>><>><>><><><>><><>><><><>><><>‘><>><>>> id="_Hlk204580835"> PW2, PW3, PW9, PW10 PW14, PW15 and PW24.
I do not agree with the argument that the 1 st applicant was expressly exonerated from the charges leveled against him. Just to pick as an example, the testimony of PW2 was that the parcels of land in question had been inserted in the original survey plan which showed the land belonged to Kenya Railways Corporation. The 1 st applicant having been a surveyor with Kenya Railways Corporation during the period of interest, has some explanation to make. I will not say much about this so that I do not interfere with the independence of the mind of the trial court. That one point is enough to justify putting the 1 st applicant on his defence.
The 2 nd applicant faced the same count as the 1 st applicant. He was also a surveyor working with the Kenya Railways Corporation. In addition to what I have stated above in respect of the 1 st applicant, a surveyor is always at the core of identifying location, size and authenticity of survey plans and can better explain historical background of a title than any other professional. The prosecution called PW2, PW3 and PW9 among others who laid basis on the culpability of surveyors who may have been involved in the process in question. Again, I leave this point at that and let the issues to be dealt with by the trial court.
The 3 rd applicant was at the time of the alleged offence the Chief Executive Officer of the National Land Commission which facilitated payment of the compensation. The 3 rd applicant submits that he could not be held liable because he was working under directions of the commissioners. It is however notable that he was instrumental to the transfer of funds for payment of the money to those who were allegedly illegally compensated. The fact that he may have been directed by the commissioners to pay does not exonerate him. It can’t be a defence that a public officer was directed by his seniors to commit an offence. Article 232(1)(e) provides accountability in administrative acts as one of the values and principles of public service. In that context a public officer must take personal responsibility for their administrative actions irrespective of directions by their bosses.
The 3 rd applicant claims further that PW8, PW11, PW12, PW13, PW14 and PW24 exonerated him from culpability. I do not think that is the correct position. The evidence of PW8 for instance made reference to a memo to the 3 rd applicant asking him to verify genuineness or legality of the titles in question. Further, PW9 testified how he tried to stop the payments through the 3 rd applicant and the Commissioners in vain.
The 3 rd applicant has also averred that the investigations officer had not recommended prosecution against him. As much as the investigations officer leads the case, it is the prerogative of the Office of Directorate of Public Prosecution (ODPP) to charge those he deems in his discretion answerable for the relevant offences. The decision, opinion or views of the investigations officer is not binding on the ODPP.
The 3 rd applicant having been at the center of the payments cannot be exonerated at this stage. The explanations of the procedures and processes contained in his supporting affidavit and the submissions should form part of his defence for them to be tested in whatever form the trial court may direct.
The 4 th respondent was at the helm of the National Land Commission when the exercise of compensation was carried out. He participated in initiating the process and verification of authenticity of the titles to the contested parcels of land. He was key to the instructions to the management of the Commission to pay the compensation.
There is evidence that he went against some advices and opinion given to the commission which opposed the compensation. He even overruled a decision of Review of Grants and Dispositions of Land Committee of the Commission which had found the titles liable for revocation. He justifies this action by arguing that the land was not public land and did not belong to Kenya Railways Corporation and that the decision by the subcommittee to revoke the title was ultra vires. These are issues we cannot go into at this stage. They belong to the trial court after the applicant adduces evidence on those aspects.
The 4 th applicant has also argued that the withdrawal of charges against some of his co-accused and attempts to withdraw more and acquittal of the 5 th accused by this court leaves the charge of conspiracy with no substance and unsustainable. In my view, the fact that some of the alleged conspirators were either removed or acquitted does not mean that the remaining ones had no case to answer in respect of the charge.
Based on the above, this court finds that the 4 th applicant has an explanation to make and hold that the trial court was justified to put him on his defence.
As I finish, I note that the applicants have made reference to my findings in revision number E010 of 2024. I wish to make it clear that my decision therein was based on the timelines of the applicant’s tour of duty at the Kenya Railways Corporation and his roles which I do not wish to elaborated here noting that I withheld the fully reasoned ruling to safeguard the independence and discretion of the trial court. The bottom line however is that, the roles of the applicants in the current applications were quite different from that of the applicant in revision number E010 of 2024.
The upshot of the above discussion is that the applications are not merited and the same are hereby dismissed
Dated signed and delivered at Nairobi this 31 st day of July 2025.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Ruling delivered in presence of;
Mr. Njoroge for the 1 st applicant;
Mr. Kero holding brief for Mr. Njomo for the 2 nd applicant.
Mr. Ochieng for the 3 rd applicant;
Mr. Mwai Mugo for the 4 th applicant; and
Mr. Nyamache and Miss Pertet for the respondent
The matters were consolidated on 20-05-2025 with directions that the applicants would be referred to as follows;
The applicant in revision number E001 of 2025 as the 1 st applicant;
The applicant in revision number E002 of 2025 as the 2 nd applicant;
The applicant in revision number E005 0f 2025 as the 3 rd applicant; and
The applicant in revision number E006 0f 2025 as the 4 th applicant.
The applicants and 13 others were charged before the Chief Magistrate’s court on 13-08-2018 with cumulative 19 counts all of which related to acquisition of land for purposes of construction of Standard Gauge Railway. The charges were as follows;
All the applicants
Count 1:
Conspiracy to commit an offence of corruption contrary to section 47A(3) as read together with section 48 of the Anti-Corruption and Economic Crimes Act No. 3 of 2003.
Particulars:
Between 1 st July 1999 and 30 th June 2018 within the Nairobi City County in the Republic of Kenya jointly with others not before court conspired to commit an offence of corruption namely fraud, thereby causing a loss of public funds belonging to Kenya Railways Corporation in the sum of Kenya Shillings 221,375,000/= for compensation for acquisition of L.R Nos. 9084, 9085, 9086, 9087 and 9088 being public land.
1 st and 2 nd applicants
Count 19
Unlawful acquisition of public property contrary to section 45(1)(a) as read with section 48 of the Anti-Corruption and Economic Crimes Act, 2003.
Particulars :
Between January 2009 and December 2016 within Nairobi City County, being persons employed in public service as government surveyors, unlawfully disposed property namely L.R. NO: 9085, 9086, 9087 belonging to Kenya Railways Corporation.
Alternative count
Neglect of official duty by a public officer contrary to section 128 of the Penal Code.
Particulars;
Between 16 th September, 2016 and 22 nd December 2016 within the Nairobi City County, being persons employed in the public service, Kenya Railways Corporation as Land surveyors willfully failed to carry out due diligence in the protection of the said Corporation's reserve land thereby causing loss of public funds amounting to Kshs.221,375,000/=.
The 3 rd applicant
Count 12
Abuse of office contrary to section 46 as read with section 48 of the anti-corruption and economic crimes act, no. 3 of 2003.
Particulars;
On 15 th December, 2016 at the National Lands Commission offices, within Nairobi City County in the Republic of Kenya being the Chief Executive Officer used his offices to improperly confer a benefit by authorizing payment of Kshs. 221,375,000/= to Keibukwo Investment Limited as compensation for parcels of Land, LR. NO. 9085, 9086, 9087 and 9088, whose titles had been revoked by the Review of Grants and Dispositions of Land Committee of the said Commission for being illegally acquired public land.
Alternative charge
Breach of trust contrary to section 127(1) as read with section 127(2) of the penal code.
Particulars;
On 15 th December, 2016 at the National Lands Commission offices, within Nairobi City County in the Republic of Kenya being the Chief Executive Officer and person employed in public service, to wit, National Land Commission and being concerned with management of public land, in the discharge of his duties he breached the trust by unlawfully facilitating payment of Kshs 221,375,000/= as compensation for L. R. NO: 9085, 9086, 9087 and 9088 which were public land, causing loss of public money thereby affecting interests of the public.
The 4 th applicant
Count 2
Abuse of office contrary to Section 46 as read with Section 48 of the Anti-Corruption and Economic Crimes Act, no. 3 of 2003.
Particulars;
On 11 th October, 2016 at the National Lands Commission offices at Ardhi House, within Nairobi City County being the Chairman of the said Commission, used your office to improperly confer a benefit, to wit, facilitating the award of compensation for parcel LR. NO. 9085 in favour of Dasahe Investments Limited whose title had been revoked by the Review of Grants and Dispositions of Land Committee of the National Land Commission for being illegally acquired public land.
Count 3
Abuse of office contrary to Section 46 as read with Section 48 of the Anti-Corruption and Economic Crimes Act, no. 3 of 2003.
Particulars;
On 11 th October, 2016 at the National Lands Commission offices at Ardhi House, within Nairobi City County being the Chairman of the said Commission, used his office to improperly confer a benefit to wit, facilitating the award of compensation for parcel LR. NO. 9086 in favour of Olomotit Estate Limited whose title had been revoked by the Review of Grants and Dispositions of Land Committee of the National Land Commission for being illegally acquired public land.
Count 4
Abuse of office contrary to Section 46 as read with Section 48 of the Anti-Corruption and Economic Crimes Act, no. 3 of 2003.
Particulars
On 11 th October, 2016 at the National Lands Commission offices at Ardhi House, within Nairobi City County being the Chairman of the said Commission, used his office to improperly confer a benefit to wit, facilitating the award of compensation for parcel LR. NO. 9087 in favour of Dasahe Investments Limited whose title had been revoked by the Review of Grants and Dispositions of Land Committee of the National Land Commission for being illegally acquired public land.
Count 5
Abuse of office contrary to Section 46 as read with Section 48 of the Anti-Corruption and Economic Crimes Act, no. 3 of 2003.
Particulars;
On 11 th October, 2016 at the National Lands Commission offices at Ardhi House, within Nairobi City County in the Republic of Kenya, being the Chairman of the said Commission, used his office to improperly confer a benefit to wit facilitating the award of compensation for parcel LR. NO. 9088 in favour of Dasahe Investments Limited whose title had been revoked by the Review of Grants and Dispositions of Land Committee of the National Land Commission for being illegally acquired public land. <><><>><><>><><><>><><>>>><><><>><><>><><><>><><>>>><>><>><>><>><><><>><><>><><><>><><>‘><>><>>> id="_Hlk204580835"> PW2, PW3, PW9, PW10 PW14, PW15 and PW24.
I do not agree with the argument that the 1 st applicant was expressly exonerated from the charges leveled against him. Just to pick as an example, the testimony of PW2 was that the parcels of land in question had been inserted in the original survey plan which showed the land belonged to Kenya Railways Corporation. The 1 st applicant having been a surveyor with Kenya Railways Corporation during the period of interest, has some explanation to make. I will not say much about this so that I do not interfere with the independence of the mind of the trial court. That one point is enough to justify putting the 1 st applicant on his defence.
The 2 nd applicant faced the same count as the 1 st applicant. He was also a surveyor working with the Kenya Railways Corporation. In addition to what I have stated above in respect of the 1 st applicant, a surveyor is always at the core of identifying location, size and authenticity of survey plans and can better explain historical background of a title than any other professional. The prosecution called PW2, PW3 and PW9 among others who laid basis on the culpability of surveyors who may have been involved in the process in question. Again, I leave this point at that and let the issues to be dealt with by the trial court.
The 3 rd applicant was at the time of the alleged offence the Chief Executive Officer of the National Land Commission which facilitated payment of the compensation. The 3 rd applicant submits that he could not be held liable because he was working under directions of the commissioners. It is however notable that he was instrumental to the transfer of funds for payment of the money to those who were allegedly illegally compensated. The fact that he may have been directed by the commissioners to pay does not exonerate him. It can’t be a defence that a public officer was directed by his seniors to commit an offence. Article 232(1)(e) provides accountability in administrative acts as one of the values and principles of public service. In that context a public officer must take personal responsibility for their administrative actions irrespective of directions by their bosses.
The 3 rd applicant claims further that PW8, PW11, PW12, PW13, PW14 and PW24 exonerated him from culpability. I do not think that is the correct position. The evidence of PW8 for instance made reference to a memo to the 3 rd applicant asking him to verify genuineness or legality of the titles in question. Further, PW9 testified how he tried to stop the payments through the 3 rd applicant and the Commissioners in vain.
The 3 rd applicant has also averred that the investigations officer had not recommended prosecution against him. As much as the investigations officer leads the case, it is the prerogative of the Office of Directorate of Public Prosecution (ODPP) to charge those he deems in his discretion answerable for the relevant offences. The decision, opinion or views of the investigations officer is not binding on the ODPP.
The 3 rd applicant having been at the center of the payments cannot be exonerated at this stage. The explanations of the procedures and processes contained in his supporting affidavit and the submissions should form part of his defence for them to be tested in whatever form the trial court may direct.
The 4 th respondent was at the helm of the National Land Commission when the exercise of compensation was carried out. He participated in initiating the process and verification of authenticity of the titles to the contested parcels of land. He was key to the instructions to the management of the Commission to pay the compensation.
There is evidence that he went against some advices and opinion given to the commission which opposed the compensation. He even overruled a decision of Review of Grants and Dispositions of Land Committee of the Commission which had found the titles liable for revocation. He justifies this action by arguing that the land was not public land and did not belong to Kenya Railways Corporation and that the decision by the subcommittee to revoke the title was ultra vires. These are issues we cannot go into at this stage. They belong to the trial court after the applicant adduces evidence on those aspects.
The 4 th applicant has also argued that the withdrawal of charges against some of his co-accused and attempts to withdraw more and acquittal of the 5 th accused by this court leaves the charge of conspiracy with no substance and unsustainable. In my view, the fact that some of the alleged conspirators were either removed or acquitted does not mean that the remaining ones had no case to answer in respect of the charge.
Based on the above, this court finds that the 4 th applicant has an explanation to make and hold that the trial court was justified to put him on his defence.
As I finish, I note that the applicants have made reference to my findings in revision number E010 of 2024. I wish to make it clear that my decision therein was based on the timelines of the applicant’s tour of duty at the Kenya Railways Corporation and his roles which I do not wish to elaborated here noting that I withheld the fully reasoned ruling to safeguard the independence and discretion of the trial court. The bottom line however is that, the roles of the applicants in the current applications were quite different from that of the applicant in revision number E010 of 2024.
The upshot of the above discussion is that the applications are not merited and the same are hereby dismissed
Dated signed and delivered at Nairobi this 31 st day of July 2025.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Ruling delivered in presence of;
Mr. Njoroge for the 1 st applicant;
Mr. Kero holding brief for Mr. Njomo for the 2 nd applicant.
Mr. Ochieng for the 3 rd applicant;
Mr. Mwai Mugo for the 4 th applicant; and
Mr. Nyamache and Miss Pertet for the respondent