Director of Public Prosecutions v Tom Ojienda t/a Prof Tom Ojienda & Associates Advocates & 3 others [2019] eKLR

Case Caption:

In the Court of Appeal at Nairobi (Coram: Nambuye, Kiage, Kantai, J.J.A); Civil Appeal No. 109 of 2016; Director of Public Prosecutions (Appellant) v Tom Ojienda t/a Prof Tom Ojienda & Associates Advocates, The Ethics and Anti-Corruption Commission, Chief Magistrates Kibera Law Courts & Law Society of Kenya (1st – 4th Respondents respectively)

Case URL:

http://kenyalaw.org/caselaw/cases/view/177071/

Summary Significance:

Investigative actions carried out by the Ethics and Anti-Corruption Commission (EACC) are administrative actions and are therefore governed by Article 47 of the Constitution of Kenya. Additionally, the EACC should issue notice before applying for warrants to investigate the suspects.

Applicable laws:

●Articles 27, 31, 40, 47, 50 & 79 of the Constitution of Kenya, 2010
●Sections 23, 26, 27, & 28 of the Anti-Corruption and Economic Crimes Act (ACECA)

Brief Facts:

The 1st Respondent (Professor Tom Ojienda) filed a petition in the High Court challenging a search warrant granted to EACC detectives, allowing them to access his bank account as part of an investigation into the alleged fraudulent payment of Kshs. 280,000,000 into his account by Mumias Sugar for work not done. The Respondent argued that the search warrant was issued contrary to the law and in breach of his rights to property, privacy, fair administrative action and fair hearing. He also argued that the search would result in a breach of advocate-client confidentiality as payment of legal fees was protected under Sections 134 and 137 of the Evidence Act. Additionally, he argued that the issuance of the warrant breached Section 28 of the ACECA as he was not notified of the EACC’s (2nd Respondent) intention to apply for a search warrant to investigate his bank account. Finally, he argued that the 2nd Respondent lacked locus to investigate the alleged irregular payment as the matter fell within the purview of the Advocates Disciplinary Tribunal under section 60A of the Advocates Act or the Advocates Complaints Commission. He therefore sought: an order that the warrants to investigate his accounts be quashed and an order of prohibition restraining the respondents from further investigating his accounts be issued. The High Court held that the warrants were required to aid in the investigations and that he could not rely on advocate-client privilege as his client had waived it and because the warrants related to his personal account as opposed to the client account. However, the court partially allowed the appeal and granted orders that the warrants were void due to the breach of the 1st Respondent’s constitutional rights. The court also granted orders of certiorari quashing the warrants. The Appellant was aggrieved and filed the present appeal.

Issues for Determination:

I.Whether the 1st Respondent’s fundamental rights under Articles 27, 31, 40 and 50 were violated
II.Whether the bank accounts amounted to confidential information under advocate-client privilege
III.Whether the 2nd Respondent’s actions were administrative
IV.Whether the 2nd Respondent should have issued a written notice to the 1st Respondent before applying for warrants

Holding:

On the issue of the violation of the 1st Respondent’s rights, the court held that he had failed to demonstrate that he was treated differently in any way, hence amounting to a breach of his right to non-discrimination under Article 27. The court also held that in this case, it seemed that it was the client’s privacy that had been violated, hence the client was the right party to complain about a breach of privacy under Article 31. Additionally, the court held that the 1st Respondent had not demonstrated how his right to property under Article 40 had been violated as he was still possessed of the bank account. Finally, on his right to advocate-client privilege, the court held that the right belonged to the client hence the 1st Respondent could not claim protection under it. It had also not been violated as the 1st Respondent had waived such privilege by volunteering information and there were allegations of criminal acts. On whether the 2nd Respondent’s actions were administrative, the court held in the affirmative based on the EACC being a creation of Article 79 of the Constitution of Kenya. It was therefore governed by Article 47 on the right to fair administrative action. On the issue of notice, the court held that Sections 26, 27 and 28 of the ACECA imposed an obligation on the EACC to issue a notice. Therefore, their failure to issue a notice in this case was unlawful. In light of this, both appeals were dismissed for lack of merit.

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