1.By the Notice of Motion dated November 29, 2022, which was first filed in the Criminal Division on November 30, 2022, the Applicant sought revision of the order issued on November 23, 2022 in Milimani CMCR Misc Application No E3753 of 2022; Ethics and Anti-Corruption Commission versus Equity Bank Kenya.
2.The gist of the Application is that the warrants arising from the impugned order are illegal for being issued in disregard of or in breach of the directions of the High Court in the case of Hassan Mohammed v Ethics and Anti-Corruption Commission & Another  eKLR. More specifically that the order did not have a time frame; that the Learned Magistrate froze the Applicant’s account for 21 days instead of 14 days as directed by the High Court in the case of Hassan Mohammed v Ethics & Anti-Corruption Commission & Another (supra); that no return to court date was stated in the order and further that the order was not served upon the applicant and he only learnt of the order from his bank.
3.The Applicant also avers that the order is incorrect and improper because neither the application nor the supporting affidavit from which it derives, stated specifically and articulately any reasonable suspicion as to why the order ought to issue; that the application did not state the public officer who was being investigated and the positon he held; that no evidence was proferred to show there were ongoing investigations or that the accounts in issue were linked to the said investigations; that the order issued by the court included investigations into the offence of conflict of interest yet the offences that were being investigated were embezzlement of public funds, corruption and economic crimes, bribery, abuse of office and illegal acquisition of wealth and it is in the interest of justice and fairness therefore, that the proceedings before the lower court be set aside.
4.The application is vehemently opposed by the 1st Respondent through the Grounds of Opposition filed herein on December 19, 2022. The Respondent states that:-
5.The application was canvassed by way of written submissions which this court has considered carefully alongside all the other material placed before it.
Analysis and Determination
6.In an application for revision the court is concerned with correctness, legality propriety and regularity of the finding, sentence or order and the propriety of the proceedings of the trial court but not the merits.
7.The gravamen of this application is that firstly the order/warrant issued by the trial court was for a period greater than that set by this court (14 days) in the case of Hassan Mohammed v Ethics and Anti-Corruption Commission & Another (supra), that the order lacked a return date and further that the order was not served upon the respondent. It is also contended that there were no reasonable grounds demonstrated to warrant granting of the order and further that the order issue was in respect to investigations into the commission of an offence for which the 1st Respondent was not investigating.
8.The application that gave rise to the impugned order was expressed to be made under Sections 180 and 106B of the Evidence Act, Section 118 and 121 (1) of the Criminal Procedure Code and Section 23 of the Anti-Corruption and Economic Crimes Act. The application sought in the first instance a warrant to investigate, inspect and lift copies of account opening documents, statements, cheques, deposit slips, bankers books, payment vouchers or any other relevant information in respect of Account Numbers; 0020xxxxxxxxx, 0020xxxxxxxxx, 0020xxxxxxxxx, 1290xxxxxxxxx, 1290xxxxxxxxx, 1290xxxxxxxxx, 1290xxxxxxxx, 1290xxxxxxxxx, 0020xxxxxxxxx, 0020xxxxxxxxx, 1250xxxxxxxxx domiciled at Equity Bank Of Kenya for the period between January 1, 2016 to October 31, 2022. The application also sought an order to freeze funds in the said account pending conclusion of the investigations that were being undertaken by the Ethics and Anti-Corruption Commission in regard to suspicious activities of the owner of those accounts.
9.There is now a long line of cases to the effect that subordinate courts are seized with jurisdiction to grant orders for the inspection of bank records and to freeze the accounts. In the case of Samuel Watatua & Anor v Republic Court of Appeal, Criminal Appeal No 2 of 2013 (unreported) the Court of Appeal stated:
11.The above sections do not make specific reference to Special Magistrates appointed under the Anti-Corruption and Economic Crimes Act. Indeed, Section 118A of the Criminal Procedure Code provides that an application for a search warrant shall be made exparte to a magistrate. The magistrate who granted the order was competent and had the authority to do so under the law. The fact therefore, that the warrant/order herein was obtained from a court other than one presided over by a special magistrate does not render it invalid.
12.As to the order being illegal or being granted for a period greater than that recommended by this court in the case of Hassan Mohammed v Ethics & Anti-Corruption Commission (supra). My finding is that whereas the High Court did direct that such orders should be granted only for 14 days and that the same should have a return date that directive was intended to bring fair play in the proceedings, but was not in my view intended as a hard and fast rule that tie the hands of the magistrate who grant those orders. Indeed, in the case of Samuel Watatua & Another v Republic (supra) the words used by the Court of Appeal were that exparte orders may be granted but only for “a short period”. It is my finding that in any event an order that goes beyond 14 days is not illegal; that the omission to give a time frame for the order would only render the order irregular but not illegal. In my view the irregularity would, as in the case of an appeal, be curable under Section 382 of the Criminal Procedure Code and a party would then have to demonstrate that it suffered prejudice for such a warrant order to be set aside. In this case no prejudice was demonstrated as would warrant this court to set the warrants aside. That is not to say however that the directions given in the case of Hassan Mohammed v Ethics and Anti-Corruption Commission & Anor (supra) ought to be ignored. The courts and the police must endeavor to strictly comply with the same as the same facilitate the right to fair hearing of the persons affected by their orders.
15.I would therefore also decline to nullify and set aside the warrant/order merely for reason that it did not follow the directives issued in the Hassan Mohamed case.
16.As for the allegation that the warrant was not served upon the Applicant it is my finding that that too cannot of itself be a ground to nullify the same. The Applicant did after all get to learn of the order from his bank and no prejudice was occasioned to him. That however is not to say that the position of this court is that orders once obtained should never be served. To make it clear my position is that no prejudice was demonstrated for the omission to serve the order and the omission was not in itself therefore, a good reason to vitiate the order.
17.The Applicant also alleged that the order was issued in respect of a matter which the Ethics and Anti-Corruption Commission was not investigating. This probably because the Magistrate who issued the order made mention of the offence of conflict of interest whereas that offence was not among those referred to in ground 1 of the grounds for the application. Be that as it may, my reading of the order reveals that the same was clear on the bank accounts that were in issue and the bank records that were to be inspected which is what was relevant and material. I am not therefore persuaded that the order was used other than for the purpose it was issued.
18.In the upshot it is my finding that this application has no merit and it is dismissed. But, this being a criminal matter there shall be no order for costs.