Ethics and Anti-Corruption Commission and & another v Prof. Tom Ojienda, SC T/A Prof. Tom Ojienda & Associates Advocates & Others (Unreported)

Case Caption:

In the Supreme Court of Kenya (Coram: Mwilu; DCJ & V-P, Ibrahim, Wanjala, Njoki & Ouko, SCJJ), SC Petition No. 30 of 2019, consolidated with Petition No. 31 of 2019 Ethics and Anti-Corruption Commission and the Director of Public Prosecutions (appellants) and Prof. Tom Ojienda, SC T/A Prof. Tom Ojienda & Associates Advocates, Chief Magistrate, Kibera Law Courts, and Law Society of Kenya (Respondents).

Case URL:

Not available (Unreported)

Summary Significance:

The investigative actions of the Ethics and Anti-Corruption Commission (EACC) do not fall under the definition of "administrative action" as provided for under Article 47 of the Constitution. Further, EACC is not always obligated to give prior notice when commencing an investigation. The need for notice depends on specific circumstances outlined in Sections 26, 27, and 28 of the ACECA.

Applicable laws:

● Article 163 (4) (a) and Article 47 of the Constitution,
● Section 15 (2) of the Supreme Court Act, 2011 and
● Rules 9 (1) and 33 (2) of the Supreme Court Rules, 2012 (repealed)
● Sections, 23, 26, 27 and 28 of the Anti-Corruption and Economic Crimes Act (ACECA)

Brief Facts:

The Appellants filed two Petitions dated 30th July 2019 and 31st July 2019 respectively before the Supreme Court challenging the Judgment and Orders of the Court of Appeal delivered in Civil Appeal No. 109 of 2016, consolidated with Civil Appeal No. 103 of 2016, delivered on 28th June, 2019 Director of Public Prosecutions v Tom Ojienda t/a Prof Tom Ojienda & Associates Advocates & 3 others [2019] eKLR. The Ethics and Anti-Corruption Commission (EACC) received a complaint alleging that Kshs. 280 million was fictitiously paid into the bank account of the 1st respondent by Mumias Sugar Company Limited. The EACC filed an ex-parte application (CMC Misc. Criminal Application No. 168 of 2015) to investigate the bank account, which was granted by the Chief Magistrate's Court on 18th March 2015. The 1st respondent, feeling aggrieved, filed Constitutional Petition No. 122 of 2015, arguing that the warrants were issued secretly and without notice, infringing upon his constitutional rights to privacy, property, fair administrative action, and fair hearing. The High Court identified three main issues for resolution: 1) Whether the warrants violated the respondent's fundamental rights as protected by specific articles of the Constitution, 2) Whether advocate-client privilege applied, and if so, whether the requested prayers were appropriate, and 3) Whether there was an alternative forum for resolving the dispute. In the judgment delivered on 5th February 2016 the Court (Lenaola, J, as he then was), granted several declarations including the following: The warrants issued on 18th March 2015 for investigating the account (in Kibera Chief Magistrate Miscellaneous Criminal Case No. 168 of 2015) were found to have breached the 1st respondent's rights and freedoms under Articles 47(1), 47(2), and 50(1) of the Constitution, and were declared void. (b) A Judicial Review order was granted, quashing the warrants issued on 18th March 2015 for investigating the account (in Kibera Chief Magistrate Miscellaneous Criminal Case No. 168 of 2015 The appellants were dissatisfied with the judgment of the High Court and, as a result, filed Civil Appeals Nos. 103 and 109 of 2016. These appeals were later consolidated on 19th May 2017. The 1st respondent also filed a cross-appeal against a specific portion of the judgment. The Court of Appeal framed four issues for determination; whether the 1st respondent's fundamental rights under Article 27, 31, 40, and 50 of the Constitution were violated; whether the 1st respondent's bank accounts were considered confidential information protected by advocate-client privilege; whether the actions taken by the EACC were administrative, falling under Article 47 of the Constitution; and whether the EACC was required to give prior Notice to the 1st respondent. In a Judgment delivered on 28th June, 2019 the learned Judges upheld the High Court's decision on all these issues and dismissed both the appeal and cross-appeal for lack of merit. The appellants were dissatisfied with the entire judgment and filed the instant appeal.

Issues for Determination:

I. Whether the Court has jurisdiction under Article 163 (4)(a) of the Constitution to entertain the appeal;
II. Whether investigations by the 1st appellant constitute an administrative action, within the meaning of Article 47 of the Constitution, and Section 2 of the Fair Administrative Action Act;
III. Whether the 1st respondent’s fundamental rights and freedoms were violated by the 1st appellant’s investigative actions against him; and
IV. Whether the 1st appellant is inflexibly bound to issue prior notice before commencing its investigations including applying for warrants

Holding:

On the issue of jurisdiction of the Court in hearing the appeal. The 1st respondent challenged the Court's jurisdiction under Article 163 (4) (a) of the Constitution, and argued that the appeal did not raise any issues involving the interpretation or application of the Constitution but rather that the appellant sought the interpretation of statutory provisions. Moreover, the respondent claimed that the appeal was moot as the warrants in question were already issued and effected, hence spent. The Court held that it had jurisdiction to hear and determine the appeal. On the question whether investigations by the 1st appellant constitute an administrative action, within the meaning of Article 47 of the Constitution, and Section 2 of the Fair Administrative Action Act; the court determined that Part IV of the ACECA specifically provides for the 1st appellant’s investigative powers. The powers granted therein include powers, privileges and immunities of a Police Officer under Section 23(3), to search premises under Section 29, to apply for surrender of travel documents under Section 31, to arrest persons under Section 32 amongst others. The court held that strictly speaking, these powers when exercised cannot be described as “administrative action” within the meaning of Article 47. Regarding the violation of the 1st respondent's fundamental rights and freedoms, the court concluded that since it had already determined that the 1st appellant's investigative actions do not fall under the definition of "administrative action" as per Article 47 of the Constitution, there was no basis to find that the 1st respondent's rights were violated due to a failure to adhere to the requirements of Article 47. Therefore, as there was no evidence of any violation of the 1st respondent's other fundamental rights and freedoms guaranteed by the Constitution, the impugned warrants should not have been quashed based on this claim. The court finally addressed the issue of whether the 1st appellant is required to issue prior notice before applying for warrants. It was the Court of Appeal's finding that the 1st appellant must strictly comply with the provisions of Sections 26, 27 and 28 of the ACECA (Anti-Corruption and Economic Crimes Act). However, the appellants challenged this finding and on grounds that a broad interpretation and application of Article 47 of the Constitution renders the 1st appellant ineffective in fulfilling its constitutional mandate. The 2nd appellant argued that the ex-parte application for warrants was in accordance with the principles set out under Article 24 of the Constitution and that the appellate court misinterpreted the provisions of Sections 23(4) vis- à-vis the provisions of Sections 26, 27 and 28 of the ACECA. The court analysed the relevant provisions of the ACECA to determine the requirement for issuing notice. It was concluded that the 1st appellant is not always obligated to give prior notice when commencing an investigation. The need for notice depends on specific circumstances outlined in Sections 26, 27, and 28 of the ACECA. The court overturned the declaration by the Court of Appeal that the 1st Appellant is inflexibly bound to issue notice in all investigations, stating that the Commission should act in accordance with the law and the Constitution. The final orders allowed the appeal and overturned the Court of Appeal's judgment, with each party bearing its own costs.

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