Emerging Jurisprudence on Unexplained Wealth

Press Release

The Ethics and Anti-Corruption Commission (EACC) lauds the emerging jurisprudence from the Kenyan Courts on application of various provisions of anti-corruption statutes. This is informed by numerous instances where actions of the EACC have been challenged through Constitutional Petitions and Judicial Review proceedings.

Upon interpretation of the Constitution and the impugned statutory provisions, Courts have made diverse rulings and judgements some of which have significant implications in the fight against corruption.

In a recent decision by the High Court delivered on 4th June 2020 in favour of EACC, Petition No. 25 of 2018; Dr. Evans Kidero & 9 others Vs. EACC & 6 others (Kidero case), the Court further advanced the jurisprudence on unexplained wealth.

Background of the Dr. Kidero Case

The Petition emanated from investigations commenced by EACC against Dr. Evans Kidero and his associates for suspected unexplained wealth, allegedly acquired during his tenure as the Managing Director of Mumias Sugar Company (MSC) and Governor of Nairobi City County. Dr. Kidero and other Petitioners applied to Court to stop EACC from investigating them, on grounds that the search and seizure warrants obtained in 2016 violated and infringed upon their rights and fundamental freedoms under the Constitution. The Petitioners also contended that the powers bestowed upon EACC to conduct Criminal Investigations under the Anti-Corruption and Economic Crimes Act No. 3 of 2003 and the Ethics and Anti-Corruption Commission Act No. 22 of 2011, were unconstitutional.

In determining the constitutionality of the powers of EACC to undertake criminal investigations, the High Court dismissed the Petitioners’ claim as res judicata citing the case of Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2018] Eklr. The Court ruled that a three – judge bench had affirmed the criminal investigation powers of EACC to include the functions prescribed under Chapter 6 of the Constitution and any other legislation enacted pursuant to Article 252(1)(d) of the Constitution, such as, EACC Act, ACECA and the Leadership and Integrity Act.

Having upheld the powers of EACC to conduct criminal investigations, the Court proceeded to consider the substantive grounds in the Petition under the following four (4) areas:

1. The legality of the search and seizure warrants executed by EACC;
2. Whether entry into Petitioners premises infringed their Constitutional rights;
3. Validity of the notices and restrictions placed on the properties; and
4. Whether Mumias Sugar Company is a public body as defined by Section 2 of ACECA.Determination of the Court

Upon hearing the matter, the Court concurred with the EACC’s case and ruled as follows:

• Search and seizure warrants are critical in facilitating corruption investigations so long as they meet the criteria set out in law.

• A notice to a party against whom a search warrant is sought is not required as it would defeat the entire purpose of investigations.

• Search and seizure warrants do not in any way violate the Constitutional rights to privacy, fair administrative action or to fair hearing.

• A search warrant by EACC to carry out investigations in respect of unexplained assets under Section 55 of ACECA applies to any person, whether a public officer or a private individual working in the private sector.

• The legal status of Mumias Sugar Company in relation to the exercise of investigative powers by EACC was irrelevant since there is nothing in law that restricts such investigations only to public officers.

• It is lawful for EACC to register caveats and restrictions on property that is subject of investigations.

• The question as to whether a notice should be served on a party before restriction to property is registered, is a matter at the discretion of the Registrar.

Implication of the Judgment in the fight against corruption

The requirement that suspects be notified before searches are conducted in their premises would have been a serious blow in the fight against corruption, as it negates the very objective of conducting the investigations. The decision on the Dr. Kidero Case, comes in the wake of other recent noteworthy judicial determinations which have bolstered the fight against corruption in our Country. Some of which include:

• The Supreme Court decision in the Stanley Amuti case, which affirmed provisions on forfeiture of unexplained wealth under Anti- Corruption and Economic Crimes Act, 2003 (ACECA). The gist of the provisions is to provide for a presumption of corruption where a public official is found to be in possession of assets that they cannot account for and which are disproportional to their legitimately known sources of income. The law requires that such assets be forfeited to the State.

• The Supreme Court decision in the Prof. Tom Ojienda case, which stayed the Court of Appeal judgement that had made it mandatory for EACC to give notice of information to a suspect before seeking a search warrant from Court; and

• The High Court ruling in the Moses Lenolkulal case that paved way for vacation from office by Governors facing corruption charges.

• The above decisions are therefore a major development as they bring clarity on some of the legal interpretations that have slowed down the pace of the anti-corruption war.

• EACC welcomes the above sound jurisprudence which augments other progressive interventions in the fight against corruption.

• EACC will continue to intensify execution of its Constitutional and Statutory mandate and looks forward to enhanced synergy from all stakeholders.