Supreme Court rules EACC does not need to notify party before investigating accounts

The Supreme Court of Kenya

It is a win for the Ethics and Anti-Corruption Commission (EACC) after the Supreme Court ruled that it is not mandatory for them to inform a party before investigating their accounts.

While dismissing an appeal by Prof. Tom Ojienda, who claimed that the anti-graft body violated his rights by investigating his bank accounts without informing him, the Supreme Court ruled that the agency was not bound to issue prior notice to him.

In the 35 paged ruling, Deputy Chief Justice Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u and William Ouko added that EACC is not always bound to issue prior notice to those it intends to investigate before commencing an investigation.

This is because the provisions of sections 26, 27 and 28 of ACECA set out very specific circumstances in which the EACC may issue notice.

“The investigative actions of EACC cannot be categorised as administrative action within the context of Article 47 of the Constitution. There is no basis upon which the court can hold that 1st respondent’s rights were violated for failure to observe the requirements of the said article,” the judges ruled.

High Court and Appellate decisions

The Supreme Court decision set aside the High Court and Court of Appeal decisions that ruled that the commission requires to give written notices prior to commencing an investigation in all situations

The judges said that they found it difficult to sustain the declaration by the Court of Appeal to the effect that, EACC is inflexibly bound to issue notice in the conduct of its investigations. 

“Where the agency is acting under its police powers, it is bound by the laws pursuant to which the police conduct their investigations and connected purposes, the five-judge bench ruled. 

According to the judges, where EACC conducts investigations in circumstances where the law requires it to issue a written notice, then it has to issue the notice. 

“At the end of the day, the people expect that the law enforcement agencies established under the Constitution and the law are effective enough to protect them from crime and related dangers. By the same token, the people expect that such agencies will carry out their mandates in accordance with the Constitution and the law,” the judges said.

The EACC moved to the Supreme Court challenging the decision by both the High Court and The Court of Appeal that ruled that the commission should give a written notice informing a party they are investigating them.

It was the Court of Appeal’s finding that the EACC is inflexibly bound to comply with the provisions of Sections 26, 27 and 28 of ACECA.

However, this finding was challenged by the commission on grounds that the omnibus interpretation and application of Article 47 of the Constitution renders the EACC ineffective in the discharge of its constitutional mandate.

Ojienda’s Sh 280 million

In Ojienda’s case, a complaint was lodged before EACC alleging that Sh 280 million had been fictitiously paid into Ojienda’s advocate-client bank account by Mumias Sugar Company Limited. 

Based on the allegation, EACC filed an ex-parte Chief Magistrate Court Miscellaneous Criminal application seeking warrants to investigate and inspect the said bank account. The order was granted on 18th March, 2015.

Aggrieved by the order, Ojienda filed a constitutional petition where he argued that the warrants had been issued ex-parte and had been obtained and enforced secretly without notice. 

Ojienda claimed that EACC’s actions amounted to an infringement of his right to privacy, property, fair administrative action, and fair hearing enshrined in Articles 31, 40, 47 and 50 of the Constitution.  

Ojienda argued that payment of legal fees was privileged communication under Sections 13(1), 134 and 137 of the Evidence Act, which in the absence of voluntary waiver by a client, a public body could not, without justifiable basis, ignore. 

On their part, EACC contended that they did not act contrary to their lawful mandate as the warrants were obtained pursuant to the provisions of the ACECA, Sections 118 of the Criminal Procedure Code (CPC) and 180 of the Evidence Act. They further urged that, in so doing, they did not violate any of his constitutional rights.