Abstract strong and effective democratic institutions, centralized

AbstractThe culture of corruption has grown roots in Kenyan society at large and become endemic. Institutions, which were designed for the regulation of the relationships between citizens and the State, are being used instead for the personal enrichment of public officials (politicians and bureaucrats) and other corrupt private agents (individuals, groups, and businesses). Corruption persists in Kenya primarily because there are people in power who benefit from it and the existing governance institutions lack both the will and capacity to stop them from doing so.

This work takes a governance and development perspective to analytically examine the causes and consequences of corruption in Kenya. It identifies the key factors (such as absence of strong and effective democratic institutions, centralized power, lack of public accountability, and impunity) and synthesizes and analyses available data, indicators, and other information in that regard. Status of corruption in KenyaCorruption in the post-colonial Kenyan government has a history which spans the era of the Jomo Kenyatta and Daniel Arap Moi KANU governments to Mwai Kibaki’s government. In the Corruption Perception Index 2012 Kenya is ranked 139th out of 176 countries for corruption, tied with Azerbaijan, Nepal, Nigeria, and Pakistan (least corrupt countries are at the top of the list).Despite the existence of Anti-Corruption Commission –formerly the Kenya Anti-Corruption Commission(KACC) established in 2003 and reframed in 2011 as the Ethics and Anti-Corruption Commission(EACC) and several other measures have been put in place to try to tackle the corruption problem.

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Below are some of the decided cases involving corruption ;Case 1SAMUEL KIPRONO CHEPKONGA (Plaintiff) vs THE KENYA ANTI-CORRUPTION COMMSSION(1st defendant), HON ATTORNEY GENERAL(2nd defendant)Plaintiff’s CaseThe plaintiff, by an amended plaint dated 4th September, 2007 and filed on 10th September, 2007 seeks damages for malicious prosecution, aggravated damages for libel and slander, lost earnings as Director General of the Communications Commission of Kenya for 3 years and 8 months, aggravated damages for loss of prospects of promotion and loss of freedom to gainfully practice law for the 3 years he faced the trial. He also seeks the costs of defending himself in Nairobi CM Anti-corruption case no. 16 of 2003 and Chief Magistrate’s Court Criminal Case No. 2177 of 20051st defendant caseWhile denying the averments in the plaint the 1st defendant pleaded that the plaintiff’s arrest was not malicious or arbitrary but was based on reasonable and probable cause and that the plaintiff voluntarily resigned from his position as the Director General of the Communications Commission of Kenya before his arrest and was paid his entire terminal dues and other benefits.The 1st defendant called as DW1, Samuel Magati Osero, who at the material time was working with the 1st Defendant’s Anti-Corruption Police Unit and was involved in investigating criminal case no.

2177 of 2005. Having taken over the same from the then Investigating Officer in respect of the allegations that the Corporation had bought a plot belonging to it. According to him the complaint was that the plaintiff was the Corporation’s secretary and was involved in the sale transaction as he was supposed to sanction the sale agreement between the Corporation and the third party.2nd defendant caseThe 2nd defendant while denying the allegations made in the plaint averred that the charges against the plaintiff were undertaken pursuant to a reasonable and probable cause in execution of a statutory duty after a complaint was lodged and a probable criminal offence punishable in law established and that the plaintiff’s acquittal did not entitle the plaintiff to any damages in malicious prosecution.With respect to the tort of defamation the 2nd defendant pleaded justification.It was further pleaded that the plaintiff’s cause of action was time barred under the Public Authorities Limitation Act, Cap 39 Laws of Kenya.The 2nd defendant did not call any evidence since he relied on the witnesses called by the 1st Defendant.DeterminationIn my view the considerations therein are to be taken in the context of the tort of malicious prosecution and do not necessarily warrant an award of damages for defamation.

The plaintiff having resigned rather than being terminated there is no basis upon which I can find based on the material before me that the resignation of the plaintiff was due to pressure from the Government. Accordingly the claim relating to the plaintiff’s loss of employment fails.The Court awarded to the plaintiff a sum of Kshs 4,000,000.00 in respect of general and aggravated damages for malicious prosecution on 14th January, 2013.I am of the view that the plaintiff herein is entitled to a similar award but taking into account the fact that the plaintiff faced two criminal cases, it is my view that an award of Kshs 5,000,000.00 general damages is reasonable compensation in the circumstances.OrderAccordingly I award the plaintiff Kshs 5,000,000.00 general damages for malicious prosecution.

The plaintiff will also have the costs of this suit. The general damages will accrue interest at Court rates from the date of this judgement till payment in full.


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