Pending Criminal and Civil cases are not a bar to appointment to Public Office: An analysis of the High Court’s decision in Ndegwa v Attorney General & 3 others; Public Procurement Regulatory Authority (Interested Party) (Constitutional Petition E001 of 2025)

Public debate about leadership and the integrity of public officers often appears straightforward: if someone has a pending criminal or civil forfeiture case, they shouldn't serve, as this suggests a lack of integrity. However, the law is more nuanced. In the case of Ndegwa v Attorney General & 3 others, in which Mbugua Ng’ang’a & Co. Advocates successfully represented Hon. Mwangi Wa Iria, the 4th Respondent, the Court confronted the challenge of appointing a former governor as Chairperson of the Public Procurement Regulatory Authority while he was facing active criminal prosecution in relation to alleged corruption offenses.

What happened in brief

The Petitioner sought to quash the appointment of the 4th Respondent as chairperson of the Public Procurement Regulatory Authority on the grounds that: -

i. He had previously been impeached; 

ii. There were findings by the Senate that he had violated the law; 

iii. He had a pending criminal case for offences related to procurement; 

iv. He was facing civil forfeiture proceedings in the same court; and 

v. There were reports from the EACC that adversely mentioned him.

The 4th Respondent in the case opposed the Petition, insisting that he was never removed from office as Governor and that the Senate had acquitted him during the impeachment proceedings. He also insisted that although he was facing criminal charges, he had not been convicted and he has a right to be presumed innocent until proven guilty, as enshrined under Article 50 of the Constitution. He also maintained that the civil forfeiture proceedings were still pending and as such, could not be used as a basis for barring him from holding public office.

What the Court said in substance

1. A pending criminal case is not a ground for debarment. 

The Court reaffirmed the principle that every person has the right to be presumed innocent until the contrary is proved. The Court noted that pendency of a criminal case is not a bar to appointment to public office and that even after conviction, there could be circumstances which may not necessarily bar someone from appointment to a public office unless the relevant law clearly states the same.

2. Pending civil and forfeiture proceedings do not extinguish eligibility.

The court noted that it would be improper and prejudicial to the 4th Respondent to discuss the merits of the forfeiture proceedings as they were pending before it. It therefore declined to treat such proceedings as a bar to appointment to public office.

3. Appointment of the 4th Respondent was lawful.

The Court discussed the procedure of appointment of a chairperson of the Public Procurement Regulatory Authority as provided under Section 11(1) of the Public Procurement and Asset Disposal Act and confirmed that the appointment of the 4th Respondent to the said position did not violate any provision of the Constitution or statute. The Court also confirmed that the 4th Respondent had met the requirements stipulated under the Act.

4. Integrity assessments must come from EACC and reports alone are not enough.

The Court made it clear that questions of integrity under Chapter Six must be grounded in formal findings by the Ethics and Anti-Corruption Commission (EACC). While the Petitioner relied on past Senate proceedings and EACC reports that had mentioned the 4th Respondent adversely, the Court emphasized that investigative reports, advisories, or impeachment attempts that fall below the required threshold do not amount to a legal determination of misconduct. 

In this case, the Senate had explicitly found that the alleged violations did not meet the standard of “gross violation”, and EACC had never issued a formal determination that the appointee was unfit for office. Because EACC is the constitutionally mandated body under Article 79 to assess compliance with Chapter Six of the Constitution and Section 11 of the Ethics and Anti-Corruption Commission Act, courts cannot substitute themselves as integrity vetting bodies, nor can adverse mentions serve as grounds to disqualify an individual from public office.

5. Courts will not re-write integrity or eligibility rules

The Court noted that several prayers in the Petition invited the Court to expand the meaning of Sections 62, 63, and 64 of Anti-Corruption and Economic Crimes Act to include individuals under investigation. It declined to grant the said prayers, noting that it is not the role of courts to amend laws or add meaning beyond the spirit of the law. That mandate belongs to the legislature. The court reiterated that the role of courts is limited to interpretation and enforcement of the laws, and if there would be any need to amend the law, courts can only make observations or recommendations.

6. Balance between individual rights and the rights of Kenyans

The Court further noted that even as we promote the tenets of the Constitution, it should be remembered that there will always be competing interests between public and individual rights. The court noted thus: - “where collective rights of Kenyans are at the center of a matter or conflict, there is always private and individual rights which would be affected by the outcome of the push for the Kenya we want as a society. That is to say that we must strike a balance between the rights of Kenyans as a society and that of individuals so that we do not trample on the rights of a person in the name of promoting the larger public good.”

Closing reflection

The Court affirmed that pending criminal charges and civil cases do not strip away a person’s constitutional right to be presumed innocent till proven guilty. It acts as a reminder that there is a need to balance between the rights of Kenyans as a society and individual rights. The court declined the invitation to weaponize investigations and use of allegations to disqualify candidates. Such disqualification should be based on convictions. The Court rightly noted: -

“If we were to go the way proposed by the petitioner, all that would be required to disqualify candidates will be filing of an allegation with the 2nd respondent whether merited or not. We live in a society where political and other administrative competitions are at their own levels and one can only imagine how it would be easy to get competitors out of the way by making an allegation against them. This court is not ready to cause such confusions by making a declaration that expands the meaning of what the law intended.”

Additionally, while the Court dismissed most of the Petitioner’s prayers, it only granted one prayer that; a declaration is issued that the President or any other public officer or body except a court of law have no powers to overturn the decision of the Ethics and Anti-Corruption Commission. This essentially confirms the autonomy of the EACC as an independent commission subject to no control or direction from anyone, other than the Constitution and the law.

As a firm (Mbugua Ng’ang’a & Co. Advocates) we were happy to represent the former Governor Muranga County whose removal from office as chair of Public Procurement Regulatory Authority was being sought and which Orders the High Court declined.

A copy of the judgment can be accessed at: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17410/eng@2025-11-28 

Article by George Ng’ang’a Mbugua & Wendy Moraa