• EACC says orders of the appellate court will nullify investigations and cases founded on evidence obtained through searches warranting further consideration by the court.
• It says that unless the decision is suspended, the fight against corruption and economic crimes will be hampered.
More than 1,000 cases risk being ruined if the Supreme Court fails to suspend a court decision of that stopped the use of evidence obtained through ‘impugned search warrants’.
The Ethics and Anti-Corruption Commission says it is handling 1,036 cases of corruption and economic crimes. In June, Appeal Judges Roselyn Nambuye, Peter Kiage and Sanakale ole Kantai delivered a judgment requiring the commission to issue a mandatory notice or production notice to suspects of corruption and economic crimes.
The court made the decision in respect of a case filed by lawyer Tom Ojienda over the Mumias Sugar case. But in documents filed in court, it says the effect of the Court of Appeal judgment is already being felt as parties in some of the cases have sought orders of release of evidentiary material obtained through searches of premises and warrants to investigate accounts. It wants the Supreme Court to suspend it.
“Several applications have since been filed in different courts seeking the release of documents that were collected pursuant to search warrants obtained by investigators from the EACC, and in some cases seeking orders to declare suits as null and void on the basis of the impugned decision,” the documents read.
Of the 1,036 cases under probe, warrants have been issued and executed in 820. Criminal cases pending in the anti-corruption courts stand at 151, 14 asset recovery cases are pending in the anti-corruption courts and 51 under consideration by Office of the Director of Public Prosecutions.
The decision of the court meant investigators will be required to first notify a suspect about the information needed and give them time to comply. They will only resort to search warrants if the suspect does not cooperate. The judges decreed that in the event an investigative agency wants to probe a person, it must first issue a summons and give him or her a chance to furnish them with the required information before deciding whether to press charges.
In an affidavit, however, the EACC, through lawyer David Ruto, says the decision has the effect of halting probes into graft and economic crimes. He argues that it undermines hundreds of cases pending before the civil and criminal courts whose evidence was initially obtained through the impugned process.
“The judgment impedes future investigations where there is reasonable suspicion that evidence is domiciled in certain premises or bank accounts, as the issuance of a notice will forewarn the suspect leading to concealment, destruction or wasting of evidence,” it says.
Unless the decision is suspended, the EACC is apprehensive that it will not only hamper the fight against corruption and economic crimes but also adversely and irreversibly affect pending and decided cases, which will be prohibited, terminated permanently or declared mistrials.
Ruto claims implementation of the impugned judgment and orders of the appellate court will nullify all investigations and cases founded on evidence obtained through searches warranting further consideration by the court.
In a separate affidavit, Michael Kasilon, a forensic investigator with the EACC, says it received an intelligence report sometimes in February 2015 that Mumias Sugar had made fraudulent payments in legal fees to advocates, including Prof Tom Ojienda. He says they established large deposits in Ojienda’s account with MSC. The commission applied to the chief magistrate’s court for warrants to investigate Ojienda’s accounts, as well as that of MSC.
Ojienda challenged the decision to obtain the warrants and he won at the Appeal Court.
But Kalison says obtaining the warrants is a conventional criminal investigative practice aimed at securing critical evidence from destruction, wastage, transfer or disposal of the same in the course of investigations, thus barring it defeats efforts to combat crime.
"Our practice is informed by the fact that the element of surprise is critical where it is reasonably suspected that anything necessary for the conduct of an investigation of corruption and economic crimes is held in any place, building, ship, vehicle, box or receptacle," he says.
(Edited by F'Orieny)