High Court at Nairobi (Milimani Law Courts)
Busia County Government v Ethics and Anti-Corruption Commission
Busia County Government v Ethics and Anti-Corruption Commission  eKLR
The Right to Fair Administrative Action Extends to Juristic Persons
Busia County Government v Ethics and Anti-Corruption Commission
Petition 382 of 2015
High Court at Nairobi
J L Onguto, J
September 7, 2016
Reported by Nelson Tunoi & Silas Kandie
Constitutional Law - constitutional commissions - establishment of a Commission and the manner in which a Commission would cease to exist - effect of resignation by Commissioners at the Ethics and Anti-Corruption Commission – whether the EACC was lawfully and constitutionally constituted not to render any action by the EACC void where the EACC had obtained the search warrants and subsequently raided the Petitioner’s premises - whether the EACC exceeded its investigatory powers and fettered the functions and operations of the Petitioner - Constitution of Kenya 2010, articles 79, 249, 250 & 255; Ethics and Anti-Corruption Commission Act, No 22 of 2011, section 4.
Constitutional Law - fundamental rights and freedoms - enforcement of fundamental rights and freedoms – right to fair administrative action– whether the EACC violated the Petitioner’s rights enshrined under article 47 of the Constitution – where the EACC moved the court ex parte without notice to obtain warrants - Constitution of Kenya 2010, article 47
On September 4, 2015, officers of the Ethics and Anti-Corruption Commission (EACC) in the company of security personnel raided the offices of the Petitioner (County Government of Busia) and without explaining the purpose proceeded to cart away documents and equipment. The EACC was executing search warrants earlier obtained by the EACC before the Chief Magistrates Court at Busia. The raid allegedly led to a dysfunction of the Petitioner as most of its operations were halted with the seizure and detention of crucial documents and equipment including computers.
The warrants had been obtained without notice on September 3, 2015 after the EACC received intelligence reports that the Governor of the Petitioner, one Sospeter O. Odeke, had allegedly colluded with senior officials of the Petitioner to defraud the Petitioner. He had been named as the Respondent in the proceedings before the Chief Magistrate. He was however never served with the court process either before or even after the warrants were issued. The warrants were however directed at the Governor and were to be executed at his office, residence or business premises. The Petitioner’s premises happen to also house the official offices of the Governor in his capacity as the governor of the county.
i. Whether the EACC at the time it obtained the search warrants and subsequently raided the Petitioner’s premises was lawfully and constitutionally constituted not to render any action by the EACC void.
ii. Whether the EACC violated the Petitioner’s rights enshrined under article 47 of the Constitution of Kenya.
iii. Whether the EACC exceeded its investigatory powers and fettered the functions and operations of the Petitioner.
1. Upon establishment by an Act of Parliament the EACC acquired the status of an independent commission settled to protect the sovereignty of the people. Further, the secretary to the commission as well as the investigators were all appointed and were not members of the commission. They were appointed like all other staff by the commissioners under section 18 of the EACC Act. The secretariat (secretary and staff) could only act effectively and perform the commissioners’ functions when the commissioners were in office. In the absence of the commissioners, the secretariat on its own motion could not purport to execute and perform the core functions of the EACC. It was contrary to law. Such core functions included investigating and recommending the prosecution of offenders.
2. It could not be argued that in the circumstances, there was a lacuna in the fight against corruption. The Director of Public Prosecutions (DPP) was properly enjoined under article 157(4) of the Constitution to direct the investigation of any criminal conduct and crimes under the Anti-Corruption and Economic Crimes Act (ACECA) or EACC Act or under any other law enacted pursuant to Chapter 6 of the Constitution. Nothing stopped the DPP from investigating and pursuing such suspects or offenders.
3. Section 5(2) of the Office of the Director of Public Prosecutions Act, No. 2 of 2014, empowered the DPP to direct investigations to be conducted by an investigative agency or assign his officers to assist in the investigation. Nothing under the law restrained the Director of Public Prosecutions from directing or assisting the EACC in undertaking its investigatory role in the absence of commissioners of the EACC. Additionally, article 157 of the Constitution did not make any distinction as to the crimes the Director of Public Prosecutions could urge or direct the national police service to investigate. The essence was to ensure that the independence of the EACC survived past the vacation of office by commissioners or in the absence of any commissioners, just the same way the EACC survived as an entity under article 253(a) of the Constitution.
4. While the absence of the commissioners did not render the EACC extinct by virtue of its juristic corporate features, in so far as its core functions of investigating economic crimes and recommending the prosecution of offenders was concerned, it had to be dormant until properly reconstituted or assisted through the Director of Public Prosecutions. The EACC in the circumstances of the case had no powers in the absence of the commissioners to initiate investigations of its own motion or any other person’s motion, save any directions by the Director of Public Prosecutions.
5. Regarding whether the EACC had exceeded its investigatory powers in the absence of commissioners, from the record it was evident that the powers were not exceeded. The EACC was enjoined under section 11(1)(d) of the Ethics and Anti-Corruption Act to conduct investigations and make appropriate recommendations to the Director of Public Prosecutions for consideration. The EACC could, by applying the provisions of both the ACECA and the Criminal Procedure Code, push further any investigations it had started by seeking the court’s help. The EACC could move the court through the use of legislation, which clearly defined the power to search and seize with a view to achieving the compelling public objective of ensuring that crime was investigated. Pursuant to section 29 ACECA as read together with section 23(4) of the ACECA, the EACC prompted the court under section 118 of the Criminal Procedure Code for a search and seizure warrants.
6. The interference with the privacy and property of the Petitioner was authorized by an independent party in the Chief Magistrates’ court that approved and granted the warrants. The court considered it right that the rights of the individual governor and the Petitioner had to give way to those of the EACC as an investigating arm. As the courts deemed it that there were reasonable grounds to allow the search and seizure for purposes of preparatory investigations, it authorized it and granted the search and seizure warrants. The Petitioner did not fault the issuance of the warrants, hence the warrants were deemed to have stood in good stead.
7. The extent of the warrants was clearly defined. The warrants authorized the search of the governor’s office and residential premises, which were housed within the Petitioner’s premises. Additionally, the warrants conferred authority upon the EACC officers to seize documents and items. The EACC could not be faulted for executing the warrants the way it did.
8. The EACC was exercising a statutory mandate. It moved the court under section 118 of the Criminal Procedure Code. An investigator could move the court without notice under section 118 of the Criminal Procedure Code so long as the investigator had solid and reasonable grounds to stand on. The investigator moved the court ex parte.
9. Article 47 of the Constitution was not absolute. The statutory framework of the Criminal Procedure Code limited the provisions of article 47 and justifiably so with clear criteria that the court must be satisfied on oath that there were reasonable and solid grounds for the warrants to be issued. The preparatory investigations being undertaken in the circumstances of the case were not judicial or quasi-judicial in nature to warrant the application of article 47 of the Constitution. Thus, the Petitioners rights under article 47 of the Constitution were violated.
10. Investigations occasionally inconvenience the party being investigated. It did not however mean that an investigation must be faulted and vacated on that basis unless it was shown to the court that the investigators were simply unreasonable especially where they had to seize items or documents. Public policy would favour inconvenience being occasioned if it was with a view to fighting off crime. However, the circumstances of each case ought to be viewed sui generis. In the instant case, the investigators were neither unreasonable to deserve condemnation nor the actions of the EACC fettered the Petitioner’s operations.
11. The EACC was properly constituted when the instant judgment was rendered. Nothing would stop the EACC from commencing the investigation a fresh. The previous investigations could not however bind the Director of Public Prosecutions. All the items seized and demanded back had already been returned. There would consequently be no need for any mandatory restorative orders.
Petition allowed with costs to the petitioner; a declaration issued that the seizure of the information, documents and equipment from the Petitioner’s offices on or about September 2, 2015 was unconstitutional and illegal in so far as the same was undertaken by a body then lacking the constitutional capacity to undertake such investigation.