' 1. The Petitioner is a former Regional Procurement Officer at the Kenya Rural Roads Authority (KERRA). However, her career at KERRA came to a premature end when in the year 2012, she was charged before the Magistrate’s Criminal Court at Eldoret, with, inter alia, the offence of abuse of office allegedly committed in the course of execution of her work, in respect to a tender award. She was accordingly suspended from her duties, and later convicted on 5/08/2016. Her appeals to the High Court and later, to the Court of Appeal were also unsuccessful.
2. The Petitioner, citing violation of her constitutional rights at the trial, has now returned to this Court seeking a new trial at the Magistrate’s Court. In her Petition dated 3/06/2024, and filed through Messrs Mwaniki Gachuba Advocates, she seeks orders as follows:
i) A declaration that the Respondents violated the Petitioner’s right to information, fair administrative action and fair trial by withholding and concealing from her and the trial Court, the minutes of the meeting of the Regional Tender Committee held on 25/03/2010.
ii) A declaration that the copy of the minutes of the meeting of the Regional Tender Committee held on 25/03/2010 is new and compelling evidence.
iii) An order that a new trial be conducted against the Petitioner for abuse of office contrary to Section 46 as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act, No. 2003 as charged under Count Seven of the Charge Sheet dated 31st May, 2013.
iv) An order that the Petitioner be admitted to bond and bail on reasonable terms and conditions.
v) An order that the suspension from office under Section 62 of the Anti-Corruption and Economic Crimes Act, 2003 dated 2nd July, 2012 continues to be in force.
vi) An order that the Kshs 300,000.00 be refunded to the Petitioner.
vii) An order that the Petitioner is awarded Kshs 5 million as compensation for violation of her right to freedom from psychological torture, right to access to information held by the Respondents, right to fair administrative action, right to access to justice and right to fair trial.
viii) Costs of the Petition be borne by the Respondent.
3. In her Affidavit in support of her case, the Petitioner has described herself as a Procurement Practitioner and a member of the Kenya Institute of Supplies Management. She deponed that on 17/09/2009, KERRA invited applications for prequalification of contractors for maintenance of roads under the Fuel Levy Constituency Funding FY 2009/2010, and that on 6/10/2009, KERRA changed the closing date for submission of applications for prequalification of contractors.
4. She stated that she joined KERRA as a Regional Procurement Officer and was posted to Uasin Gishu Region, on 6/01/2010, she invited the pre-qualified contractors to submit tenders for “Routine Maintenance and Spot Improvement Works During the 2009/2010 Financial Year” of multifarious roads within Uasin Gishu Region (comprising 3 Parliamentary Constituencies) to be financed under the 2009/2010 twenty per cent Road Maintenance Fuel Levy (RMFL) and the 2009/2010 twelve per cent (later ten per cent) of the RMFL. She deponed that the roads were specifically listed as either funded under twenty per cent of the RMFL or under 12 per cent (now ten per cent) in accordance with Section 6(2)(d)(i)(ii) of the Kenya Roads Board Act, 2000. She deponed further that on 25/01/2010, the Tender Opening Committee opened all the tenders that were submitted in response to the invitation dated 6/01/2010, that the Committee evaluated all the tenders that were opened on 25/01/2010 and made appropriate recommendations in respect to either the Regional Tender Committee or to the Constituency Roads Tender Committee.
5. It was her deposition that the Evaluation Committee’s recommendations in respect of tenders that were financed under the 22 per cent of the Roads Maintenance Fuel Levy were adjudicated and awarded by the Regional Tender Committee, and that as the “Routine Maintenance and Spot Improvement Works of Bayete-Chuiyat-Tulwet Road in Eldoret South Constituency During the 2009/2010 Financial Year” was financed under the 12% of the Roads Maintenance Fuel Levy, that consideration of the Evaluation Committee’s recommendations and award of the tenders thereof was the function of the Regional Tender Committee, and the Evaluation Committee then recommended that Kachur Holdings Limited’s be awarded the tender.
6. She added that on 25/03/2010, she invited the Regional Tender Committee to consider the Evaluation Committee’s evaluation report and recommendations in respect of the Bayete-Tulwet Road, that on the same date, the Regional Tender Committee convened, considered the Evaluation Report and awarded Kachur Holdings Limited the tender. She deponed that the Regional Tender Committee members present were Eng. Laban Shachile (Chairman), Joseph Mwathi (member) and Wilson Lelei (member) and the Petitioner attended in her capacity as the Secretary. She deponed further that on 31/03/2010, she issued a notification of award in accordance with the Regional Tender Committee’s award decision, on 6/04/2010, Kachur Holdings Limited accepted the award, on 21/04/2010, KERRA and Kachur Holdings Limited entered into the contract for execution of the works, and on 26/04/2010, KERRA’s Regional Manager Eng. Laban Shachile ordered Kachur Holdings Limited to commence works. She then stated that Kachur Holdings Limited executed the contract and was paid the contractual sum of Kshs 5,010,040/- upon approval by Eng. Shachile and later by the Regional Manager, Eng. Robert Mule.
7. It was her further deposition that on 9/08/2011, the Kenya Anti-Corruption Commission (KACC) requested KERRA for inter alia, Tender Committee minutes that awarded the tender, on 10/08/2011, Eng. Mule handed to the KACC’s George Ojowi, inter alia, the Minutes of the Regional Tender Committee meeting held on 25/03/2010 that awarded the tender, and that on 14/06/2012, he was arraigned in Eldoret Magistrate’s Court together with Mikoya Laban Sachile, John Khaemba Simiyu, Hon. Peris Simam, Wisdom Kimutai and Enoch Simam, and she was charged for, inter alia, abuse of office contrary to Section 46 as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act, No. 3 of 2003 (ACECA) in case number MCACC/1/2012-Republic v Mikoya Sachile and 5 Others. According to her, the particulars of the charge (Count VII) were that on 31/03/2010, at the KERRA office in Eldoret, she used her office to improperly confer a benefit on Kachur Holdings Limited by issuing the company with a Letter of Award for the Tender before the bids were adjudicated and award made by the Eldoret South Constituency Roads Committee.
8. She contended that whereas the Investigating Officer was seized of the original minutes of the Regional Tender Committee meeting held on 25/03/2010, he deliberately and maliciously concealed and withheld the same from the Petitioner and the trial Court, and upon which the trial Court found her with a case to answer and placed her on her defence. She deponed that while defending herself, she sought and was granted an order of discovery of the said minutes but she could not find a copy thereof and the trial Court ordered the trial to proceed. She added that she was grossly prejudiced as she conducted her defence without the benefit of the said minutes and that the Respondents’ false and malicious narrative prevailed and the trial Court found her guilty as charged, convicted her of all counts and sentenced her to pay a fine of Kshs 300,000/- and in default, to serve a jail sentence of 1 year. She stated that although she paid the fine, aggrieved by the decision, she appealed to the High Court at Nairobi in HCACECA/20/2017, which Court however confirmed the conviction and sentence in Count VII for abuse of office. She deponed that she appealed further to the Court of Appeal at Nairobi in COACRA/100/2019 which Court, too, dismissed the Appeal. According to her, her Advocate advised her that she stood no chance of proceeding to the Supreme Court, and that she should instead find a copy of the said minutes of the meeting of 25/03/2010.
9. She deponed that in view thereof, on 12/03/2024, she requested the 2nd Respondent for a copy of the minutes of the said meeting but which request was not responded to, the Commission on Administrative Justice intervened and directed the 2nd Respondent to provide the minutes which direction the 2nd Responded also did not respond to.
10. She stated that after a tedious and laborious scouring of her documents in her Nairobi and Kakamega homes, on 28/05/2024, she came across a copy of the minutes, that having exhausted her right of appeals and having come across the new and compelling evidence that demonstrates that she issued the letter of award after the Regional Tender Committee’s award, she desires a fresh trial in respect of Count VII (abuse of office). In conclusion, she contended that her Advocate has advised her that this Court has jurisdiction under the provisions of the Constitution cited above, to grant her prayers for a fresh trial.
2nd Respondent’s Replying Affidavit
11. The Petition is opposed by the 2nd Respondent by way of the Replying Affidavit sworn by the said George Ojowi, who described himself as the Deputy Director, Directorate of Investigation at the 2nd Respondent. In the Affidavit, drawn by Esther Githinji Advocate, he contended that the Petitioner is inviting the Court to re-open a trial that has been conclusively determined at the Magistrate’s Court, the High Court and the Court of Appeal. He averred that on 19/08/2020, the Petitioner filed a Notice of Appeal at the Supreme Court but failed to follow with lodging an appeal and consequently, the Notice was deemed withdrawn upon lapse of the stipulated timelines as per an order made by the Supreme Court.
12. He then deponed that the contract No. UG/2-27-09/10-003 which was related to Tender Ref: KeRRA/PRO/VOL. 1:16 became the subject of the 2nd Respondent’s investigation sometime in August 2011 following an anonymous complaint alleging procurement irregularities and conflict of interest. According to him, that contract was illegally awarded to a newly registered company, Kachur Holdings Ltd, owned by former Member of Parliament for Eldoret South Constituency, Hon. Peris Chepchumba Simam and her husband. He stated that the 2nd Respondent initiated an investigation in which he served as the Lead Investigator and which was conducted under the auspices of the 10 per cent Road Maintenance Levy Fund (RMFL) managed by KeRRA for the 2009/2010 financial year. He deponed further that as part of the investigation, on 9/08/2011, the 2nd Respondent issued a request to KeRRA for documents related to the tender award, including minutes for the relevant Tender committee meetings, on 10/08/2011, KeRRA furnished the documents through its Regional Manager, in the presence of the Petitioner, and received by the deponent and another officer at the KeRRA offices in Eldoret, as documented through an inventory listing signed also by the Regional Manager and the Petitioner. He stated that within the inventory were specified the original documents submitted and the minutes pertaining to the allocation of the contract was not original and that furthermore, the minutes supplied related to Eldoret South Constituency Roads Committee meeting held on 1/04/2010, and not the alleged Regional Committee meeting of 25/03/2010 as claimed by the Petitioner.
13. Mr. Ojowi deponed further that the Tender Committee meeting of 1/04/2010 was preceded by invitation letters dated 30/03/2010 authored by the Petitioner in her capacity as the Procurement Officer inviting Tender Committee members, which minutes indicates that the Petitioner was present, a fact also confirmed by witnesses who testified at the trial and who also confirmed that the Petitioner presented the Evaluation Report at the meeting, which was signed by all members, including herself. According to him, it is clear that the Eldoret South Constituency Roads Tender Committee which only had a mandate over 22 per cent RMLF roads deliberated and affirmed the recommendation made by the Evaluation Committee recommending the award of 10 per cent RMLF contract for Bayete-Chuiyat-Bargeiywa road to Kachur Holdings Limited, and that, in fact, the Petitioner, in her statement with the 2nd Respondent confirmed her attendance in the Tender Committee meeting of 1/04/2010, and that the Committee affirmed the recommendation to award to Kachur Holdings Limited.
14. According to him, the impugned minutes of 25/03/2010 were never supplied to the 2nd Respondent during investigation and the Petitioner only introduced the issue of the minutes at defence hearing purporting to have obtained them from KeRRA following a Court order. He urged that the Petitioner, cognizant of the irregularity in the 22% RMLF Constituency Roads Tender Committee deliberations on a 10% RMLF road and her issuance of a Letter of Award on 31/03/2010 before the award, attempted to counter the Prosecution’s evidence and that during her testimony in the trial, she claimed that the Eldoret South Constituency Roads Tender Committee meeting held on 1/04/2010 did not deliberate the subject contract but that it was undertaken by the Regional Committee meeting of 25/03/2010. He deponed further that this attempt failed miserably following the revelation that the Regional Committee minutes for 10% RMLF of 25/03/2010 (impugned minutes) never originated from KeRRA and were thus not genuine, which fact was confirmed by Prosecution witnesses called under Section 212 of the Criminal Procedure Code in rebuttal to the defence as the same was a new issue introduced at the defence stage.
15. He referred to the testimony of PW14 who denied supplying the minutes to the Petitioner and PW11 and PW12 who, though claimed to have attended the said meeting, both denied receiving the invitation alleged by the Petitioner. He contended that he, too, in his testimony, denied receiving the alleged minutes and the Petitioner’s Counsel was allowed to, and did, cross-examine him on this issue. He averred that although the Petitioner appears to have been aware of the alleged new evidence, she never brought it up in her grounds of appeal either before the High Court or Court of Appeal. He also observed that in its Judgment, the Court of Appeal observed that she belaboured in demonstrating that the bids were correctly stamped with the date of 21/01/2010.
16. He contended further that the Petitioner’s allegation that the impugned minutes are new and compelling evidence is preposterous as they have been exhaustively addressed and adjudicated by the Magistrate’s Court, the High Court, and the Court of Appeal, and that throughout the proceedings, it is only the Petitioner who raised concerns about the Regional Tender Committee minutes. According to him therefore, there is no new and compelling evidence, the Petition is filed is contrary to the principles of finality of Court decisions and judicial economy that underlie the judicial and legal system. He therefore refuted the allegation that he had maliciously concealed or withheld the minutes of the meeting of 25/03/2010, and reiterated that the records from KeRRA clearly show that the minutes furnished to him were not original, as confirmed by the letter dated 10/08/2011.
17. He also alleged inconsistencies in the Petitioner’s statements and pointed out that according to the Petitioner, she invited the Committee to consider the Evaluation Committee’s recommendations on 25/03/2010 and the meeting was held on the same day with Kachur Holdings Limited being awarded the tender, but however, the invitation letter dated 27/05/2010 (PM7) exhibited by the Petitioner indicates that the meeting was scheduled for 2.00 pm on 25/03/2010, and that in contrast, the minutes exhibited as PM21 by the Petitioner indicates that the meeting took place from 10.00-1.00 pm on 25/05/2010. According to him therefore, this discrepancy raises fundamental questions on the veracity and legitimacy of the minutes and shows that she is being less than forthright. He also submitted that the Petitioner is not being candid or transparent since her claim contradicts her letter dated 12/03/2024 exhibited as PM19 in which she asserts that the deponent took the original minutes and did not leave a copy at the KeRRA offices. He stated that this raises the question: if the deponent supposedly took the original minutes and did not leave a copy, how is it that the Petitioner now claims to have found a copy at her residences in Nairobi and Kakamega? According to him, this contradiction casts doubt on the Petitioner’s credibility.
18. He contended further that the Petitioner is on a fishing expedition to discredit the 2nd Respondent so as to undermine public trust in the 2nd Respondent’s efforts to combat corruption, that given this context, the minutes the Petitioner claims to have found in her home should be regarded as false and fabricated, and urged the Court to dismiss the purported minutes and view them with the contempt they deserve. Regarding the claim that the 2nd Respondent has breached the Petitioner’s right to information, he termed the same as utterly wrong noting that she never sought any documents from the 2nd Respondent, and the defence proceeded without any request for the minutes, thus confirming that the Petitioner was aware the minutes did not exist.
19. He agreed that the 2nd Respondent received the request for minutes on 14/03/2024 upon which the 2nd Respondent after conducting a thorough review of its records, confirmed that no such minutes were presented in its exhibits or inventory received from KeRRA, and thus the 2nd Respondent was unable to provide what it did not possess. He pointed out that the Petitioner herself acknowledges this fact because she testified that she went to KeRRA offices to get a copy of the minutes with a Court order. According to him therefore, on whether the trial should be heard afresh, the Petition does not meet the threshold for such new trial under Article 50(6) of the Constitution as read with the Supreme Court guidelines outlined in the case of Tom Martins Kibisu v Republic [2014] eKLR. He also pointed out that at the Court of Appeal, the Petitioner submitted against a retrial citing the 6 years had lapsed, the Petitioner was acquitted for most of the counts, there was no guarantee that witnesses were still available, and her co-accused did not prefer appeals to the Court of Appeal. According to the deponent therefore, the Petitioner’s sudden change of mind is made in bad faith as the Petitioner is well aware that a retrial is not feasible nor ideal in the circumstances. He was therefore emphatic that the Petitioner has failed to demonstrate how her constitutional rights have been or are threatened to infringe.
Petitioner’s Further Affidavit
20. The Petitioner then filed the Further Affidavit she swore on 23/09/2024. She pointed out that the 2nd Respondent could not have sworn the Replying Affidavit on behalf of the 1st Respondent, that re-opening the case is her right as guaranteed under Article 50(6) of the Constitution, that she was unable to file a Petition of Appeal at the Supreme Court after the Court of Appeal refused to certify her intended Appeal as being of public interest and thus she reached her dead end. She added that the investigations were unconstitutional by virtue of Article 252(2) of the Constitution which commands that a complainant cannot be anonymous and must be a person who is entitled to institute Court proceedings under Article 22(1)(2), that by hiding behind the anonymous complainant, the 2nd Respondent allowed itself to be misused and gave comfort to busybodies and gossipers actuated by malice. She added that the investigations was an unfair administrative action with the meaning of Article 47(1) of the Constitution and Section 105(1)(d) of the Public Procurement and Disposal Act, 2005. She deponed further that the powers to investigate non-compliance of procurement law is now vested in the Public Procurement Regulatory Authority, and not in the 2nd Respondent. She urged further that the 2nd Respondent did not cite the law that empowered the Constituency Roads Tender Committee that was in charge of 22% RMFL projects. She also contended that the said George Ojowi, recorded her statement through coercion, threats and intimidation, which fact led the trial Court to discard it when the Prosecution tried to produce it in evidence.
21. In a rather strong language, she then deponed that the said George Ojowi, is an incorrigible liar and is unfit to hold to serve in the public service as he destroyed or concealed public documents in the form of the minutes of the meeting of 25/03/2010. She added further that the witnesses who testified at the trial in respect to the said minutes perjured themselves due to coercion, threats and intimidation by the said George Ojowi. She also contended that had George Ojowi not concealed the minutes, he would have had the opportunity to learn during cross-examination as to why and how the meeting was rescheduled from 2.00 pm to 10.00 am on 25/03/2010. She then reiterated that had the said George Ojowi, produced the minutes in Court, the trial Court would most likely have declined to admit the charge.
Hearing of the Petition
22. The Petition was canvassed by way of written Submissions. The Petitioner filed the Submissions dated 24/09/2024, while the 2nd Respondent filed the Submissions dated 18/10/2024. On her part, the 1st Respondent, apart from not filing its own respective Response to the Petition, did not also file any Submissions. With leave of the Court, the Petitioner filed the Supplementary Submissions dated 25/10/2024.
23. I thereafter fixed the matter for Judgment. However, the Court file somehow “disappeared” and after efforts to trace it bore no fruits, upon Application by the Petitioner, I ordered for reconstruction thereof. Thanks to the Judiciary Case Tracking System (CTS) online system, and the parties’ co-operation by supplying the pleadings, the retrieval of the relevant documents for the reconstruction exercise was swiftly concluded. I then invited the Counsels to peruse the Court file and satisfy themselves that all their pleadings were in the Court file. It was therefore only after they confirmed that they had perused the file and ascertained that all pleadings were on record, that I proceeded to fix the matter afresh for Judgment.
Petitioner’s Submissions
24. The Petitioner’s Counsel reiterated that the Petition is premised on Article 50(6) of the Constitution, and that having appealed up to the Court of Appeal and that having declined to certify her intended Appeal to the Supreme Court as being of public interest, she had exhausted her appeal avenue. He cited the case of Philip Mueke Maingi & 2 Others v Republic [2022] eKLR, in which the case of James Mwaniki Kamau vs Republic, Makueni High Court Misc. Application No. 179 of 2014 was also referred to. On the issue of “new and compelling evidence”, he submitted that the Petitioner has produced the impugned minutes, which demonstrates that the tender was considered and awarded by the Regional Tender Committee contrary to the Respondents’ theory that the tender was never awarded by the lawful Tender Committee or at all.
25. He added that both parties are in agreement that the minutes was not available at the time of the trial despite the Petitioner’s exercise of due diligence including obtaining a Court order to search for the same in the KeRRA offices, and that both parties are in agreement that the Petitioner did not find the same and thus it was not availed in Court at the time of trial or appeal. Counsel then cited the case of Maurice Odhiambo Wesonga v Republic [2014] eKLR, the case of Tom Martins v Republic [2014] eKLR, the case of Philip Mueke (supra) in which several other cases were referred to. On the issue of award of costs, he cited Rule 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, and contended that this expensive Petition was necessitated by the repulsive conduct of the Respondents in the discharge of their duties as they connived to deny the Petitioner a fair trial, and she is therefore entitled to reimbursement of costs, and damages that she has incurred in the process. He cited several cases on the issue.
2nd Respondent’s Submissions
26. Counsel for the 2nd Respondent, after reciting the background to the matter, submitted that the Supreme Court being the highest Court in Kenya, the Petitioner, by her own admission, did not exhaust her appellate rights as she failed to lodge an appeal to the Supreme Court and she thus has not meet the threshold under Article 50(6)(a) of the Constitution requiring that an appeal must have been heard and dismissed by the highest Court. According her therefore, the Appeal is procedurally deficient and also pointed out that the Petitioner only informs the Court that the Court of Appeal declined to certify the matter as one of public interest without providing any evidence in the form of a Court order to that effect.
27. She also observed that the Petitioner did not disclose to this Court that she had filed a Notice of Appeal at the Supreme Court and that it was only after the 2nd Respondent brought this to light that the Petitioner shifted her position, now claiming that the Court of Appeal declined certification. She cited Section 15B (2) of the Supreme Court Act, No. 26 of 2022 which delas with the issue of certification of Appeals to the Supreme Court in the first instance, and submitted that Rule 33 of the Supreme Court Rules, 2020 allows an aggrieved party, if the Court of Appeal declines certification, to apply for review thereof within 14 days, a step which he submitted, the Petitioner neglected, thus forfeiting her opportunity to meet the threshold of lodging an appeal to the Supreme Court. On the issue of the alleged concealment of the impugned minutes and the claim that the same violated the Petitioner’s right to fair administrative action under Article 47 of the Constitution, Counsel submitted that this issue ought to have been raised before the Supreme Court, which has jurisdiction under Article 163(4)(a) to hear appeals involving constitutional interpretation and application. According to her therefore, for this further reason, the Petitioner did not exhaust the appeal avenues.
28. Counsel added that the Petitioner cannot approbate and reprobate since she never, in her appeal to the High Court and to the Court of Appeal, raise the issue of the alleged concealed minutes and which thus indicated her acceptance of those decisions, and she cannot now seek to challenge the finality of those Judgments and thus asking this Court to overturn the decision of a superior Court. According to her, this inconsistency not only undermines the principle of finality in litigation but also threatens the integrity of the judicial process. She cited the case of Kenya Hotel Properties Limited v Attorney General & 5 Others (Petition 16 of 2020) [2022] KESC 62 (KLR) (Civ) (7 October 2022) (Judgment). On the issue of “new and compelling evidence”, she cited the case of Ngao v Republic (Petition E017 of 2023) [2024] KEHC 2008 (KLR) (1 March 2024), the case of Peter Manson Okeyo v Republic [2014] eKLR, the United Kingdom case of R v A (2008) EWCA Crim 2908, and also the case of James Macharia Anumbi vs Republic [2017] eKLR, and reiterated that the alleged evidence is neither “new” or “compelling”.
29. She refuted the assertion made in the Petitioner’s Submissions that the 2nd Respondent agrees that the said minutes were not available during the trial and termed it as misleading since yet in the Replying Affidavit, the 2nd Respondent clearly stated that the impugned minutes of 25/03/2010 was introduced during the defence hearing purported to have been obtained from KeRRA, and which the Petitioner attempted to introduce but her attempts failed miserably. She thus averred that the purported evidence is nothing more than old news then reiterated matters already deponed in the Replying Affidavit on the issue, and also that the evidence was already presented and dismissed at the trial, and also found by the High Court and the Court of Appeal as not being genuine and did not originate from KeRRA and thus fabricated.
30. She then submitted that even if the minutes is to be considered, it still does not negate the numerous irregularities and illegalities in the tendering process that led to the Petitioner’s conviction, and that as the Procurement Officer, the Petitioner was responsible for ensuring that the process adhered to legal requirements which responsibility the Petitioner failed to uphold. He cited for instance, the finding that the tender was opened on 21/01/2010, instead of 25/01/2010 as provided in the tender advertisement, the tender was awarded to a company which was not the lowest evaluated bidder affiliated and which as the successful bidder, was affiliated to the Member of Parliament of the same constituency the where the road was situated. According to her therefore, given the myriads of irregularities, the minutes of 25/03/2010 do not tip the scales, and the minutes is not exactly a “smoking gun” to warrant the orders sought.
31. Counsel then commented on the matters deponed in the Further Affidavit and termed the same as introduction of new issues. She nonetheless proceeded to counter the challenges raised against the 2nd Respondent’s mandate or authority to investigate non-compliance with procurement laws and refuted the allegations by citing the provisions of Article 79 and Article 252(1)(a) of the C
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2. The Petitioner, citing violation of her constitutional rights at the trial, has now returned to this Court seeking a new trial at the Magistrate’s Court. In her Petition dated 3/06/2024, and filed through Messrs Mwaniki Gachuba Advocates, she seeks orders as follows:
i) A declaration that the Respondents violated the Petitioner’s right to information, fair administrative action and fair trial by withholding and concealing from her and the trial Court, the minutes of the meeting of the Regional Tender Committee held on 25/03/2010.
ii) A declaration that the copy of the minutes of the meeting of the Regional Tender Committee held on 25/03/2010 is new and compelling evidence.
iii) An order that a new trial be conducted against the Petitioner for abuse of office contrary to Section 46 as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act, No. 2003 as charged under Count Seven of the Charge Sheet dated 31st May, 2013.
iv) An order that the Petitioner be admitted to bond and bail on reasonable terms and conditions.
v) An order that the suspension from office under Section 62 of the Anti-Corruption and Economic Crimes Act, 2003 dated 2nd July, 2012 continues to be in force.
vi) An order that the Kshs 300,000.00 be refunded to the Petitioner.
vii) An order that the Petitioner is awarded Kshs 5 million as compensation for violation of her right to freedom from psychological torture, right to access to information held by the Respondents, right to fair administrative action, right to access to justice and right to fair trial.
viii) Costs of the Petition be borne by the Respondent.
3. In her Affidavit in support of her case, the Petitioner has described herself as a Procurement Practitioner and a member of the Kenya Institute of Supplies Management. She deponed that on 17/09/2009, KERRA invited applications for prequalification of contractors for maintenance of roads under the Fuel Levy Constituency Funding FY 2009/2010, and that on 6/10/2009, KERRA changed the closing date for submission of applications for prequalification of contractors.
4. She stated that she joined KERRA as a Regional Procurement Officer and was posted to Uasin Gishu Region, on 6/01/2010, she invited the pre-qualified contractors to submit tenders for “Routine Maintenance and Spot Improvement Works During the 2009/2010 Financial Year” of multifarious roads within Uasin Gishu Region (comprising 3 Parliamentary Constituencies) to be financed under the 2009/2010 twenty per cent Road Maintenance Fuel Levy (RMFL) and the 2009/2010 twelve per cent (later ten per cent) of the RMFL. She deponed that the roads were specifically listed as either funded under twenty per cent of the RMFL or under 12 per cent (now ten per cent) in accordance with Section 6(2)(d)(i)(ii) of the Kenya Roads Board Act, 2000. She deponed further that on 25/01/2010, the Tender Opening Committee opened all the tenders that were submitted in response to the invitation dated 6/01/2010, that the Committee evaluated all the tenders that were opened on 25/01/2010 and made appropriate recommendations in respect to either the Regional Tender Committee or to the Constituency Roads Tender Committee.
5. It was her deposition that the Evaluation Committee’s recommendations in respect of tenders that were financed under the 22 per cent of the Roads Maintenance Fuel Levy were adjudicated and awarded by the Regional Tender Committee, and that as the “Routine Maintenance and Spot Improvement Works of Bayete-Chuiyat-Tulwet Road in Eldoret South Constituency During the 2009/2010 Financial Year” was financed under the 12% of the Roads Maintenance Fuel Levy, that consideration of the Evaluation Committee’s recommendations and award of the tenders thereof was the function of the Regional Tender Committee, and the Evaluation Committee then recommended that Kachur Holdings Limited’s be awarded the tender.
6. She added that on 25/03/2010, she invited the Regional Tender Committee to consider the Evaluation Committee’s evaluation report and recommendations in respect of the Bayete-Tulwet Road, that on the same date, the Regional Tender Committee convened, considered the Evaluation Report and awarded Kachur Holdings Limited the tender. She deponed that the Regional Tender Committee members present were Eng. Laban Shachile (Chairman), Joseph Mwathi (member) and Wilson Lelei (member) and the Petitioner attended in her capacity as the Secretary. She deponed further that on 31/03/2010, she issued a notification of award in accordance with the Regional Tender Committee’s award decision, on 6/04/2010, Kachur Holdings Limited accepted the award, on 21/04/2010, KERRA and Kachur Holdings Limited entered into the contract for execution of the works, and on 26/04/2010, KERRA’s Regional Manager Eng. Laban Shachile ordered Kachur Holdings Limited to commence works. She then stated that Kachur Holdings Limited executed the contract and was paid the contractual sum of Kshs 5,010,040/- upon approval by Eng. Shachile and later by the Regional Manager, Eng. Robert Mule.
7. It was her further deposition that on 9/08/2011, the Kenya Anti-Corruption Commission (KACC) requested KERRA for inter alia, Tender Committee minutes that awarded the tender, on 10/08/2011, Eng. Mule handed to the KACC’s George Ojowi, inter alia, the Minutes of the Regional Tender Committee meeting held on 25/03/2010 that awarded the tender, and that on 14/06/2012, he was arraigned in Eldoret Magistrate’s Court together with Mikoya Laban Sachile, John Khaemba Simiyu, Hon. Peris Simam, Wisdom Kimutai and Enoch Simam, and she was charged for, inter alia, abuse of office contrary to Section 46 as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act, No. 3 of 2003 (ACECA) in case number MCACC/1/2012-Republic v Mikoya Sachile and 5 Others. According to her, the particulars of the charge (Count VII) were that on 31/03/2010, at the KERRA office in Eldoret, she used her office to improperly confer a benefit on Kachur Holdings Limited by issuing the company with a Letter of Award for the Tender before the bids were adjudicated and award made by the Eldoret South Constituency Roads Committee.
8. She contended that whereas the Investigating Officer was seized of the original minutes of the Regional Tender Committee meeting held on 25/03/2010, he deliberately and maliciously concealed and withheld the same from the Petitioner and the trial Court, and upon which the trial Court found her with a case to answer and placed her on her defence. She deponed that while defending herself, she sought and was granted an order of discovery of the said minutes but she could not find a copy thereof and the trial Court ordered the trial to proceed. She added that she was grossly prejudiced as she conducted her defence without the benefit of the said minutes and that the Respondents’ false and malicious narrative prevailed and the trial Court found her guilty as charged, convicted her of all counts and sentenced her to pay a fine of Kshs 300,000/- and in default, to serve a jail sentence of 1 year. She stated that although she paid the fine, aggrieved by the decision, she appealed to the High Court at Nairobi in HCACECA/20/2017, which Court however confirmed the conviction and sentence in Count VII for abuse of office. She deponed that she appealed further to the Court of Appeal at Nairobi in COACRA/100/2019 which Court, too, dismissed the Appeal. According to her, her Advocate advised her that she stood no chance of proceeding to the Supreme Court, and that she should instead find a copy of the said minutes of the meeting of 25/03/2010.
9. She deponed that in view thereof, on 12/03/2024, she requested the 2nd Respondent for a copy of the minutes of the said meeting but which request was not responded to, the Commission on Administrative Justice intervened and directed the 2nd Respondent to provide the minutes which direction the 2nd Responded also did not respond to.
10. She stated that after a tedious and laborious scouring of her documents in her Nairobi and Kakamega homes, on 28/05/2024, she came across a copy of the minutes, that having exhausted her right of appeals and having come across the new and compelling evidence that demonstrates that she issued the letter of award after the Regional Tender Committee’s award, she desires a fresh trial in respect of Count VII (abuse of office). In conclusion, she contended that her Advocate has advised her that this Court has jurisdiction under the provisions of the Constitution cited above, to grant her prayers for a fresh trial.
2nd Respondent’s Replying Affidavit
11. The Petition is opposed by the 2nd Respondent by way of the Replying Affidavit sworn by the said George Ojowi, who described himself as the Deputy Director, Directorate of Investigation at the 2nd Respondent. In the Affidavit, drawn by Esther Githinji Advocate, he contended that the Petitioner is inviting the Court to re-open a trial that has been conclusively determined at the Magistrate’s Court, the High Court and the Court of Appeal. He averred that on 19/08/2020, the Petitioner filed a Notice of Appeal at the Supreme Court but failed to follow with lodging an appeal and consequently, the Notice was deemed withdrawn upon lapse of the stipulated timelines as per an order made by the Supreme Court.
12. He then deponed that the contract No. UG/2-27-09/10-003 which was related to Tender Ref: KeRRA/PRO/VOL. 1:16 became the subject of the 2nd Respondent’s investigation sometime in August 2011 following an anonymous complaint alleging procurement irregularities and conflict of interest. According to him, that contract was illegally awarded to a newly registered company, Kachur Holdings Ltd, owned by former Member of Parliament for Eldoret South Constituency, Hon. Peris Chepchumba Simam and her husband. He stated that the 2nd Respondent initiated an investigation in which he served as the Lead Investigator and which was conducted under the auspices of the 10 per cent Road Maintenance Levy Fund (RMFL) managed by KeRRA for the 2009/2010 financial year. He deponed further that as part of the investigation, on 9/08/2011, the 2nd Respondent issued a request to KeRRA for documents related to the tender award, including minutes for the relevant Tender committee meetings, on 10/08/2011, KeRRA furnished the documents through its Regional Manager, in the presence of the Petitioner, and received by the deponent and another officer at the KeRRA offices in Eldoret, as documented through an inventory listing signed also by the Regional Manager and the Petitioner. He stated that within the inventory were specified the original documents submitted and the minutes pertaining to the allocation of the contract was not original and that furthermore, the minutes supplied related to Eldoret South Constituency Roads Committee meeting held on 1/04/2010, and not the alleged Regional Committee meeting of 25/03/2010 as claimed by the Petitioner.
13. Mr. Ojowi deponed further that the Tender Committee meeting of 1/04/2010 was preceded by invitation letters dated 30/03/2010 authored by the Petitioner in her capacity as the Procurement Officer inviting Tender Committee members, which minutes indicates that the Petitioner was present, a fact also confirmed by witnesses who testified at the trial and who also confirmed that the Petitioner presented the Evaluation Report at the meeting, which was signed by all members, including herself. According to him, it is clear that the Eldoret South Constituency Roads Tender Committee which only had a mandate over 22 per cent RMLF roads deliberated and affirmed the recommendation made by the Evaluation Committee recommending the award of 10 per cent RMLF contract for Bayete-Chuiyat-Bargeiywa road to Kachur Holdings Limited, and that, in fact, the Petitioner, in her statement with the 2nd Respondent confirmed her attendance in the Tender Committee meeting of 1/04/2010, and that the Committee affirmed the recommendation to award to Kachur Holdings Limited.
14. According to him, the impugned minutes of 25/03/2010 were never supplied to the 2nd Respondent during investigation and the Petitioner only introduced the issue of the minutes at defence hearing purporting to have obtained them from KeRRA following a Court order. He urged that the Petitioner, cognizant of the irregularity in the 22% RMLF Constituency Roads Tender Committee deliberations on a 10% RMLF road and her issuance of a Letter of Award on 31/03/2010 before the award, attempted to counter the Prosecution’s evidence and that during her testimony in the trial, she claimed that the Eldoret South Constituency Roads Tender Committee meeting held on 1/04/2010 did not deliberate the subject contract but that it was undertaken by the Regional Committee meeting of 25/03/2010. He deponed further that this attempt failed miserably following the revelation that the Regional Committee minutes for 10% RMLF of 25/03/2010 (impugned minutes) never originated from KeRRA and were thus not genuine, which fact was confirmed by Prosecution witnesses called under Section 212 of the Criminal Procedure Code in rebuttal to the defence as the same was a new issue introduced at the defence stage.
15. He referred to the testimony of PW14 who denied supplying the minutes to the Petitioner and PW11 and PW12 who, though claimed to have attended the said meeting, both denied receiving the invitation alleged by the Petitioner. He contended that he, too, in his testimony, denied receiving the alleged minutes and the Petitioner’s Counsel was allowed to, and did, cross-examine him on this issue. He averred that although the Petitioner appears to have been aware of the alleged new evidence, she never brought it up in her grounds of appeal either before the High Court or Court of Appeal. He also observed that in its Judgment, the Court of Appeal observed that she belaboured in demonstrating that the bids were correctly stamped with the date of 21/01/2010.
16. He contended further that the Petitioner’s allegation that the impugned minutes are new and compelling evidence is preposterous as they have been exhaustively addressed and adjudicated by the Magistrate’s Court, the High Court, and the Court of Appeal, and that throughout the proceedings, it is only the Petitioner who raised concerns about the Regional Tender Committee minutes. According to him therefore, there is no new and compelling evidence, the Petition is filed is contrary to the principles of finality of Court decisions and judicial economy that underlie the judicial and legal system. He therefore refuted the allegation that he had maliciously concealed or withheld the minutes of the meeting of 25/03/2010, and reiterated that the records from KeRRA clearly show that the minutes furnished to him were not original, as confirmed by the letter dated 10/08/2011.
17. He also alleged inconsistencies in the Petitioner’s statements and pointed out that according to the Petitioner, she invited the Committee to consider the Evaluation Committee’s recommendations on 25/03/2010 and the meeting was held on the same day with Kachur Holdings Limited being awarded the tender, but however, the invitation letter dated 27/05/2010 (PM7) exhibited by the Petitioner indicates that the meeting was scheduled for 2.00 pm on 25/03/2010, and that in contrast, the minutes exhibited as PM21 by the Petitioner indicates that the meeting took place from 10.00-1.00 pm on 25/05/2010. According to him therefore, this discrepancy raises fundamental questions on the veracity and legitimacy of the minutes and shows that she is being less than forthright. He also submitted that the Petitioner is not being candid or transparent since her claim contradicts her letter dated 12/03/2024 exhibited as PM19 in which she asserts that the deponent took the original minutes and did not leave a copy at the KeRRA offices. He stated that this raises the question: if the deponent supposedly took the original minutes and did not leave a copy, how is it that the Petitioner now claims to have found a copy at her residences in Nairobi and Kakamega? According to him, this contradiction casts doubt on the Petitioner’s credibility.
18. He contended further that the Petitioner is on a fishing expedition to discredit the 2nd Respondent so as to undermine public trust in the 2nd Respondent’s efforts to combat corruption, that given this context, the minutes the Petitioner claims to have found in her home should be regarded as false and fabricated, and urged the Court to dismiss the purported minutes and view them with the contempt they deserve. Regarding the claim that the 2nd Respondent has breached the Petitioner’s right to information, he termed the same as utterly wrong noting that she never sought any documents from the 2nd Respondent, and the defence proceeded without any request for the minutes, thus confirming that the Petitioner was aware the minutes did not exist.
19. He agreed that the 2nd Respondent received the request for minutes on 14/03/2024 upon which the 2nd Respondent after conducting a thorough review of its records, confirmed that no such minutes were presented in its exhibits or inventory received from KeRRA, and thus the 2nd Respondent was unable to provide what it did not possess. He pointed out that the Petitioner herself acknowledges this fact because she testified that she went to KeRRA offices to get a copy of the minutes with a Court order. According to him therefore, on whether the trial should be heard afresh, the Petition does not meet the threshold for such new trial under Article 50(6) of the Constitution as read with the Supreme Court guidelines outlined in the case of Tom Martins Kibisu v Republic [2014] eKLR. He also pointed out that at the Court of Appeal, the Petitioner submitted against a retrial citing the 6 years had lapsed, the Petitioner was acquitted for most of the counts, there was no guarantee that witnesses were still available, and her co-accused did not prefer appeals to the Court of Appeal. According to the deponent therefore, the Petitioner’s sudden change of mind is made in bad faith as the Petitioner is well aware that a retrial is not feasible nor ideal in the circumstances. He was therefore emphatic that the Petitioner has failed to demonstrate how her constitutional rights have been or are threatened to infringe.
Petitioner’s Further Affidavit
20. The Petitioner then filed the Further Affidavit she swore on 23/09/2024. She pointed out that the 2nd Respondent could not have sworn the Replying Affidavit on behalf of the 1st Respondent, that re-opening the case is her right as guaranteed under Article 50(6) of the Constitution, that she was unable to file a Petition of Appeal at the Supreme Court after the Court of Appeal refused to certify her intended Appeal as being of public interest and thus she reached her dead end. She added that the investigations were unconstitutional by virtue of Article 252(2) of the Constitution which commands that a complainant cannot be anonymous and must be a person who is entitled to institute Court proceedings under Article 22(1)(2), that by hiding behind the anonymous complainant, the 2nd Respondent allowed itself to be misused and gave comfort to busybodies and gossipers actuated by malice. She added that the investigations was an unfair administrative action with the meaning of Article 47(1) of the Constitution and Section 105(1)(d) of the Public Procurement and Disposal Act, 2005. She deponed further that the powers to investigate non-compliance of procurement law is now vested in the Public Procurement Regulatory Authority, and not in the 2nd Respondent. She urged further that the 2nd Respondent did not cite the law that empowered the Constituency Roads Tender Committee that was in charge of 22% RMFL projects. She also contended that the said George Ojowi, recorded her statement through coercion, threats and intimidation, which fact led the trial Court to discard it when the Prosecution tried to produce it in evidence.
21. In a rather strong language, she then deponed that the said George Ojowi, is an incorrigible liar and is unfit to hold to serve in the public service as he destroyed or concealed public documents in the form of the minutes of the meeting of 25/03/2010. She added further that the witnesses who testified at the trial in respect to the said minutes perjured themselves due to coercion, threats and intimidation by the said George Ojowi. She also contended that had George Ojowi not concealed the minutes, he would have had the opportunity to learn during cross-examination as to why and how the meeting was rescheduled from 2.00 pm to 10.00 am on 25/03/2010. She then reiterated that had the said George Ojowi, produced the minutes in Court, the trial Court would most likely have declined to admit the charge.
Hearing of the Petition
22. The Petition was canvassed by way of written Submissions. The Petitioner filed the Submissions dated 24/09/2024, while the 2nd Respondent filed the Submissions dated 18/10/2024. On her part, the 1st Respondent, apart from not filing its own respective Response to the Petition, did not also file any Submissions. With leave of the Court, the Petitioner filed the Supplementary Submissions dated 25/10/2024.
23. I thereafter fixed the matter for Judgment. However, the Court file somehow “disappeared” and after efforts to trace it bore no fruits, upon Application by the Petitioner, I ordered for reconstruction thereof. Thanks to the Judiciary Case Tracking System (CTS) online system, and the parties’ co-operation by supplying the pleadings, the retrieval of the relevant documents for the reconstruction exercise was swiftly concluded. I then invited the Counsels to peruse the Court file and satisfy themselves that all their pleadings were in the Court file. It was therefore only after they confirmed that they had perused the file and ascertained that all pleadings were on record, that I proceeded to fix the matter afresh for Judgment.
Petitioner’s Submissions
24. The Petitioner’s Counsel reiterated that the Petition is premised on Article 50(6) of the Constitution, and that having appealed up to the Court of Appeal and that having declined to certify her intended Appeal to the Supreme Court as being of public interest, she had exhausted her appeal avenue. He cited the case of Philip Mueke Maingi & 2 Others v Republic [2022] eKLR, in which the case of James Mwaniki Kamau vs Republic, Makueni High Court Misc. Application No. 179 of 2014 was also referred to. On the issue of “new and compelling evidence”, he submitted that the Petitioner has produced the impugned minutes, which demonstrates that the tender was considered and awarded by the Regional Tender Committee contrary to the Respondents’ theory that the tender was never awarded by the lawful Tender Committee or at all.
25. He added that both parties are in agreement that the minutes was not available at the time of the trial despite the Petitioner’s exercise of due diligence including obtaining a Court order to search for the same in the KeRRA offices, and that both parties are in agreement that the Petitioner did not find the same and thus it was not availed in Court at the time of trial or appeal. Counsel then cited the case of Maurice Odhiambo Wesonga v Republic [2014] eKLR, the case of Tom Martins v Republic [2014] eKLR, the case of Philip Mueke (supra) in which several other cases were referred to. On the issue of award of costs, he cited Rule 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, and contended that this expensive Petition was necessitated by the repulsive conduct of the Respondents in the discharge of their duties as they connived to deny the Petitioner a fair trial, and she is therefore entitled to reimbursement of costs, and damages that she has incurred in the process. He cited several cases on the issue.
2nd Respondent’s Submissions
26. Counsel for the 2nd Respondent, after reciting the background to the matter, submitted that the Supreme Court being the highest Court in Kenya, the Petitioner, by her own admission, did not exhaust her appellate rights as she failed to lodge an appeal to the Supreme Court and she thus has not meet the threshold under Article 50(6)(a) of the Constitution requiring that an appeal must have been heard and dismissed by the highest Court. According her therefore, the Appeal is procedurally deficient and also pointed out that the Petitioner only informs the Court that the Court of Appeal declined to certify the matter as one of public interest without providing any evidence in the form of a Court order to that effect.
27. She also observed that the Petitioner did not disclose to this Court that she had filed a Notice of Appeal at the Supreme Court and that it was only after the 2nd Respondent brought this to light that the Petitioner shifted her position, now claiming that the Court of Appeal declined certification. She cited Section 15B (2) of the Supreme Court Act, No. 26 of 2022 which delas with the issue of certification of Appeals to the Supreme Court in the first instance, and submitted that Rule 33 of the Supreme Court Rules, 2020 allows an aggrieved party, if the Court of Appeal declines certification, to apply for review thereof within 14 days, a step which he submitted, the Petitioner neglected, thus forfeiting her opportunity to meet the threshold of lodging an appeal to the Supreme Court. On the issue of the alleged concealment of the impugned minutes and the claim that the same violated the Petitioner’s right to fair administrative action under Article 47 of the Constitution, Counsel submitted that this issue ought to have been raised before the Supreme Court, which has jurisdiction under Article 163(4)(a) to hear appeals involving constitutional interpretation and application. According to her therefore, for this further reason, the Petitioner did not exhaust the appeal avenues.
28. Counsel added that the Petitioner cannot approbate and reprobate since she never, in her appeal to the High Court and to the Court of Appeal, raise the issue of the alleged concealed minutes and which thus indicated her acceptance of those decisions, and she cannot now seek to challenge the finality of those Judgments and thus asking this Court to overturn the decision of a superior Court. According to her, this inconsistency not only undermines the principle of finality in litigation but also threatens the integrity of the judicial process. She cited the case of Kenya Hotel Properties Limited v Attorney General & 5 Others (Petition 16 of 2020) [2022] KESC 62 (KLR) (Civ) (7 October 2022) (Judgment). On the issue of “new and compelling evidence”, she cited the case of Ngao v Republic (Petition E017 of 2023) [2024] KEHC 2008 (KLR) (1 March 2024), the case of Peter Manson Okeyo v Republic [2014] eKLR, the United Kingdom case of R v A (2008) EWCA Crim 2908, and also the case of James Macharia Anumbi vs Republic [2017] eKLR, and reiterated that the alleged evidence is neither “new” or “compelling”.
29. She refuted the assertion made in the Petitioner’s Submissions that the 2nd Respondent agrees that the said minutes were not available during the trial and termed it as misleading since yet in the Replying Affidavit, the 2nd Respondent clearly stated that the impugned minutes of 25/03/2010 was introduced during the defence hearing purported to have been obtained from KeRRA, and which the Petitioner attempted to introduce but her attempts failed miserably. She thus averred that the purported evidence is nothing more than old news then reiterated matters already deponed in the Replying Affidavit on the issue, and also that the evidence was already presented and dismissed at the trial, and also found by the High Court and the Court of Appeal as not being genuine and did not originate from KeRRA and thus fabricated.
30. She then submitted that even if the minutes is to be considered, it still does not negate the numerous irregularities and illegalities in the tendering process that led to the Petitioner’s conviction, and that as the Procurement Officer, the Petitioner was responsible for ensuring that the process adhered to legal requirements which responsibility the Petitioner failed to uphold. He cited for instance, the finding that the tender was opened on 21/01/2010, instead of 25/01/2010 as provided in the tender advertisement, the tender was awarded to a company which was not the lowest evaluated bidder affiliated and which as the successful bidder, was affiliated to the Member of Parliament of the same constituency the where the road was situated. According to her therefore, given the myriads of irregularities, the minutes of 25/03/2010 do not tip the scales, and the minutes is not exactly a “smoking gun” to warrant the orders sought.
31. Counsel then commented on the matters deponed in the Further Affidavit and termed the same as introduction of new issues. She nonetheless proceeded to counter the challenges raised against the 2nd Respondent’s mandate or authority to investigate non-compliance with procurement laws and refuted the allegations by citing the provisions of Article 79 and Article 252(1)(a) of the C
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