• EACC obtained warrant to investigate Ojienda's accounts without notifying him
• Persons of interest must be given chance to comply before action is taken against him
Persons investigated for corruption have a right of notice of the action intended against them, appeal judges have ruled.
In a decision seen to uphold the Bill of Rights, a three-judge bench of Roselyne Nambuye, Patrick Kiage and Sankale Ole Kantai held that the Ethics and Anti-Corruption Commission has no right to deny persons of interest the right of notice before investigations are carried into their bank accounts.
Their judgment was given on June 28.
The three upheld a decision of the High Court which invalidated a warrant to investigate Tom Ojienda's bank account over Sh280 million which was allegedly paid by Mumias Sugar company for services allegedly not rendered.
They dismissed an appeal by EACC, saying the agency failed to issue notice to the lawyer and opted to just get a warrant to investigate his accounts.
The three judges noted that a person of interest ought to be made aware of the intended action by the EACC against him.
The law, the judges said, requires that a person of interest be first given a chance to voluntarily comply with notice before any action is taken against him.
“This was not done by EACC who chose the easier general path of seeking warrants ex parte instead of paying due regard to the preliminary steps required under its constitutive and operative statute. In so doing, it infringed on Ojienda’s fundamental rights and affected his interests, hence the learned judge's invalidating action which we have no difficulty endorsing," the appeal judges ruled.
Trouble began when On March 18, 2015 the chief magistrate's court in Kibera issued warrants to the EACC to investigate Ojienda’s bank accounts.
The warrant was issued after the EACC moved to court, saying it wanted to investigate Sh280 million paid into the lawyer's account by Mumias Sugar.
Ojienda filed an application saying the EACC had secretly and without giving him notice obtained warrants to look into his bank account.
He said what the EACC did was not only abuse of power but also amounted to violation of his rights to privacy and fair hearing.