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The anti-graft agency secured a major victory yesterday following a court decision that allows it to search and seize property under investigation for alleged corruption.

In the ruling arising from the case of former Nairobi Governor Evans Kidero in which Ethics and Anti- Corruption Commission (EACC) was a party, the court also declared that searches on the premises of suspects can be conducted even if they are not notified as long as they meet the criteria set out in the law.

The High Court has also ruled that search and seizure warrants do not in any way violate the constitutional rights to privacy, fair administrative action or to fair hearing.

The decision was delivered on June 4 in a case in which  Kidero and other petitioners applied to court to stop the commission from investigating them.

They claimed that the search and seizure warrants obtained in 2016 violated and infringed upon their rights and fundamental freedoms under the Constitution.

They also contended that the powers bestowed upon anti-graft agency 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.

However, a three-judge High Court 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.

Legal interpretations

The court also ruled that a notice to a party against whom a search warrant is sought is not required as it would defeat the entire purpose of investigations.

This implies that the 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.

EACC chief executive officer Twalib Mbarak yesterday lauded the ruling which he termed as a major development that brings clarity on some of the legal interpretations that have slowed down the pace of anti-corruption war.

“There have been numerous instances where actions of the EACC have been challenged through Constitutional Petitions and Judicial Review proceedings,” Mbarak said.

The EACC had launched investigations against  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.

Kidero and his associates had also sought interpretation on legal status of Mumias Company in relation to the exercise of investigative powers of EACC.

The court however ruled that nothing in law restricted such investigations only to public officers.

The judge said the warrant authorised EACC to investigate unexplained assets owned by Kidero and such investigation must require assessment of the value of the properties in questions.

 The anti-graft agency reckons that his worth is Sh9 billion, arguing that they were built when Kidero served as CEO of Mumias Sugar Company and Nairobi governor.

Justice Ngugi dismissed Kidero’s defence that EACC had no role investigating the affairs of Mumias Sugar Company, a private entity, saying the legal status of the sugar miller does bar EACC’s investigative powers.