Chepkoit v Ethics and Anti-Corruption Commission & another (Petition E084 of 2022) [2024] KEHC 10389 (KLR) (Constitutional and Human Rights) (26 August 2024) (Judgment)
Neutral citation:
[2024] KEHC 10389 (KLR)
Republic of Kenya
Petition E084 of 2022
LN Mugambi, J
August 26, 2024
Between
Chris Chepkoit
Petitioner
and
Ethics and Anti-Corruption Commission
1st Respondent
Director of Public Prosecutions
2nd Respondent
Judgment
Introduction
1.The petition dated 28th February 2022 is supported by the petitioner’s affidavit in support of similar date and a further affidavit dated 27th March 2023. The petitioner seeks the following relief against the respondents:a.A declaration that the 1st respondent's unexplained delay of over six (6)years to conclude investigations and make a definitive determination whether to charge or not to charge the petitioner in regard to the allegations of irregular importation of 10,000 MT of sugar as the Finance Director at Mumias Sugar Company Limited, constitutes inordinate delay.b.A declaration that the 1st respondent has violated the petitioner's rights as enshrined under Article 47(1), (2) and 50 of the Constitution and his legitimate expectation.c.An order of judicial review in the nature of prohibition against the 1st and 2nd respondents prohibiting them, their officers, agents and anyone under their authority from instituting criminal proceedings under the Penal Code Cap. 63 and proceedings under Section 55 of the Anti-Corruption & Economic Crimes Act No. 3 of 2003 as against the petitioner with regard to Mumias Sugar Company Limited.d.An order for compensation in the form of general, exemplary and aggravated damages under Article 23(3)(e) of the Constitution in the total sum of Kshs. 10 million, for the unconstitutional, unfair and callous conduct of the 1st respondent.e.Any other orders and directions as this Court may consider appropriate in these circumstances.f.Costs of this petition.g.Interest on (d) and (f) above.
Petitioner’s Case
2.The petitioner, a former employee and Finance Director at Mumias Sugar Company Limited until 1st July 2013, avers that his name appeared in a ‘list of shame’ in 2015.This was because of allegedly based on alleged implication in the fraudulent importation of 10,000 MT of sugar while at Mumias Sugar working as the Finance Director of the Company. This list was published by the then President, His Excellency Uhuru Kenyatta in a report dated 20th March 2015 following the 1st respondent’s submission.
3.The petitioner as a result stepped aside from his position as the Chief Finance Officer at National Bank of Kenya to pave way for the 1st respondent’s investigations. The Central Bank of Kenya moreover vide a letter dated 16th June 2015, directed the National Bank’s Managing Director, that the petitioner should not resume to work until the investigations are completed. Unfortunately, the petitioner’s employment was soon after on 13th April 2016 terminated while the investigations were still on course.
4.The petitioner asserts that the 2nd respondent proceeded to charge him in Nairobi Chief Magistrate Criminal Anti-Corruption Case No.935 of 2017 for offences committed as the Chief Finance Officer at National Bank of Kenya.
5.On 1st February 2016, the petitioner through his advocates sought direction from the 1st respondent on the status of the investigation which the 1st respondent responded to on 12th February 2016. The 1st respondent informed that the investigations were ongoing and that he would be notified once they are concluded. His advocates made a further follow up on 18th January and 22nd February 2021.These correspondences were not responded to.
6.The petitioner is aggrieved that the investigation that commenced in 2015 is yet to be concluded. He contends that the inordinate delay has been without any explanation from the 1st respondent. According to him, this unfair, illegal and prejudicial to his right to fair hearing.
7.He as well takes issue with the perpetual state of abeyance which has caused his personal and professional ridicule and odium. He says this state of affairs is against constitutional principles and a violation to his constitutional right to a fair administrative action under Article 47(2), right to a fair hearing under Article 50 of the Constitution and legitimate expectation.
1st Respondent’s Case
8.In response, the 1st respondent filed an undated replying affidavit by Abdulhamid Low, its Investigating Officer. He disclosed that the Mumias Sugar Company case involved an irregular award of a tender for importation of 30,000 MT of sugar to M/s Dantes Peak at Ksh.2.6 billion in 2013.
9.Opposing the petitioner’s allegation of inordinate delay, he deponed that the investigations into this matter commenced on 6th March 2015. Following the resignation of the 1st respondent’s Chairman and its two Commissioners between 31st March 2015 and 12th May 2015, the Court in Michael Sistu Mwaura Kamau and 12 others vs Ethics and Anti – Corruption Commission and 4 others (2016)eKLR and later affirmed by the Court of Appeal, held that the 1st respondent was not properly constituted.
10.As a consequence, the 1st respondent’s functions at that time could not be executed without a properly constituted Commission. This as a result nullified all the actions undertaken by the 1st respondent between 31st March 2015 and 18th January 2016. The 1st respondent’s actions were however granted a new lease of life following the Court of Appeal’s decision.
11.Furthermore, the 1st respondent had to consult the Attorney General on whether Mumias Sugar Company is a public body within the meaning of Sections 2(e) of the Anti-Corruption and Economic Crimes Act. This issue was later on referred to the National Treasury for further consultation and guidance.
12.Equally, the investigation was also challenged by the fact that Dubai Bank Kenya Limited, which housed the bank account that received the impugned funds on behalf of Mumias Sugar Company, was faced with financial problems and its operations suspended. This in essence frustrated the 1st respondent’s efforts to obtain information relating to the disputed transaction.
13.He as well asserts that due to the involvement of international persons in the impugned transaction, the 1st respondent also ran into challenges while procuring evidence from Kenana Sugar which is based in Khartoum, Sudan. He for these reasons asserts that the occasioned delay was beyond the 1st respondent’s control.
14.He moreover contends that criminal investigations are not administrative functions within the meaning of Article 47 of the Constitution. These investigations are said to be regulated under the dictates of Criminal Law and the Anti-Corruption and Economic Crimes Act not the Fair Administrative Actions Act, 2015.
15.In the same breath, he notes that grant of prohibition orders against the 1st respondent will hinder exercise of its constitutional mandate. Further that exercise of the 1st respondent’s mandate cannot be deemed to be in violation of a person’s fundamental rights. Accordingly, he urges the court to balance the petitioner’s right and with the public interest in charging offenders on merit.
2nd Respondent’s Case
16.The 2nd respondent’s response dated 26th May 2022 is not in the Court file or CTS.
Petitioner’s Submissions
17.In the submissions dated 29th March 2023, Tebino and Associates Advocates, highlighted the issues for discussion as whether there has been an inordinate delay and its effect; whether Article 47 of the Constitution applies to the respondents and whether entitled to the reliefs sought.
18.On the first issue, Counsel submitted that there has been inordinate delay of over 7 years in prosecution of the petitioner’s case. This delay has not been explained or justified by the respondents. This is despite the petitioner’s numerous follow ups to ascertain the status of the investigations and whether he was going to be charged. The 1st respondent despite the petitioner’s consistent enquiry failed to respond to his correspondence. Counsel further stressed that the challenges highlighted by the 1st respondent in their affidavit was a clear indication that the petitioner’s case would continue suffering more delay.
19.To buttress this point reliance was placed in Jirongo vs Soy Developers Ltd & 9 others (Petition 38 of 2019) (2021/ KESC 32 (KLR) (16 July 2021) where the Supreme Court held that:
20.Further reliance was also placed on Stanley Munga Githunguri-vs-R (1986) eKLR, Republic-vs-Attorney General & Anor ex-parte Ngeny (2001) KLR 612and George Joshua Okungu & anotherv Chief Magistrate's Court Anti-Corruption Court At Nairobi & another (2014) eKLR.
21.Counsel further argued that the investigations commenced by the 1st respondent were devoid of any factual foundation and mainly geared towards appeasing the members of the public of the government's apparent mission to combat corruption at the time. Reliance was placed in Republic-vs-Attorney General & Anor ex-parte Ngeny (supra) where it was held that:
22.Similar reliance was also placed in Republic vs Director of Public Prosecution & another Ex Parte Chamanal Vrailal Kamani & 2 Others (2015) eKLR, Jared Benson Kangwana & 2 others v Director of Public Prosecutions & 3 others and Monarch Insurance Company Ltd & 2 others (Interested Parties) (2022)eKLR.
23.On the second issue, Counsel asserted that the continuing inordinate delay of 7 years and counting by the 1st respondent, will adversely affect the petitioner's right to a fair trial. Reliance was placed in George Joshua Okungu another-vs-Chief Magistrate Anti-Corruption Court at Nairobi & Anor (2014) eKLR where it was held that:
24.Further dependence was placed in Erick Kibiwott Tar us & 2 others vs Director of Public Prosecutions & 7 others (2014) eKLR.
25.On the third issue, Counsel submitted that while the 1st respondent opposed the applicability of Article 47 of the Constitution in criminal investigations the Court of Appeal in Judicial Service Commission vs Mbalu Mutava Musyimi(2015) eKLR determined that:
26.Similar dependence was also placed on Republic vs Retirement Benefits Appeals Tribunal & 5 others Ex-parte Kenya Airports Authority Staff Superannuation Scheme (2015) eKLR.
27.Counsel for this reason submitted that failure to uphold this provision violated the petitioner’s legitimate expectation in how the matter was conducted and secondly violated his right to a fair hearing. Reliance was placed in Keroche Industries Limited v Kenya Revenue Authority & 5 Others, HCMA No. 743 of 2006, (2007) KLR 240 where it was observed that
28.More reliance was also placed on Royal Media Services Limited vs Attorney general & 8 Others, Nairobi CA No. 4 of 2014, (2014) eKLR, Republic vs Energy & Petroleum Regulatory Authority & 2 others Ex parte Talib Zein Salimin & another and Daniel Gichuhi & 3 others (Interested Parties) (2021) eKLR.
29.To this end, Counsel submitted that the respondents had violated and continue to violate the petitioner’s constitutional rights and as such is as entitled to the reliefs sought. In support reliance was placed in Miguna Miguna vs Fred Matiangi, Cabinet Secretary, Ministry of Interior & Coordination of National Government & 6 others, Const. Petition No. 51 of 2018 where it was held that:
30.The case of Republic vs. Kenya National Examinations Council ex parte Gathenii & Others Civil Appeal No. 266 of 1996 was also cited in support of the Petitioner’s submissions.
1st Respondent’s Submissions
31.In support of its case, the 1st respondent filed submissions through its Counsel Jackie Kibogy dated 28th April 2023.
32.The 1st Respondent identified the issues for discussion as being whether there has been inordinate delay in the investigation against the petitioner; whether the Commission has infringed on the petitioner's rights under Articles 47(1), (2) and 50 of the Constitution and legitimate expectation; whether this Court can prohibit the respondents from ever instituting a criminal case against the petitioner in relation to Mumias Sugar Limited and; whether the petitioner is entitled to the reliefs sought.
33.On the first issue, the 1st Respondent stressed that there is no set rule as to what constitutes inordinate delay. Whether or not a party is guilty of inordinate delay depends on the circumstances of the case as held in Cecilia Wanja Waweru vs Jackson Wainaina Muiruri & another (2014) eKLR. According to the 1st Respondent the delay in this case is attributed to factors beyond the 1st respondent’s control. Nonetheless, it also noted that there is no law that sets a timeline or limit within which investigations are to be concluded.
34.The 1st Respondent submitted that investigations involving economic and corruption crimes are complex and, in this case, added international aspect involved where mutual legal understanding was also sought. The 1st Respondent thus submitted that it would be unreasonable to limit the 1st respondent to specific timelines in carrying this type of investigation. The case of Thuita Mwangi & 2 others vs Ethics & AntiCorruption Commission & 3 others (2013)eKLR was cited in support where the Court observed that:
35.Also relied on was the case of Rose Owira & 23 others vs Attorney-General & another; Kenya National Commission on Human Rights & 4 others (Interested Parties) (2020) eKLR.
36.On the second issue, the Respondent cited the Supreme Court in Ethics and Anti-Corruption Commission & another vs Tom Ojienda, SC t/a Prof. Tom Ojienda & Associates Advocates & 2 others Petition 30 & 31 of 2019 (Consolidated) [2022] KESC 59 (KLR) to illuminate on whether investigations by the 1st respondent constitute an administrative action. In that case it was held as follows:
37.Guided by this opine, Counsel stressed that the 1st respondent’s investigations in this matter cannot be deemed as administrative in nature as advanced by the petitioner but one that falls within the dictates of the criminal justice system.Further that due to the very nature of crime being secretive, collusive and a threat to peace and order in the general public, procedural fairness in a criminal investigation is bound to be different from procedural fairness in an administrative action.
38.Further on the claim of legitimate expectation, Counsel submitted that for legitimate expectation to arise, there must be a promise, representation or past practice that arouses the expectation and secondly, the representation must be competent and lawful for such a body to make. In this matter Counsel observed that the claim is not feasible as there was no promise made to the petitioner in order to create a legitimate expectation. Reliance was placed in Jane Kiongo & 15 others vs Laikipia University & 6 Others Petition No. 596 of 2017 (2019)eKLR where it was held that:
39.Speaking to the prohibition order sought by the petitioner, Counsel submitted that the 1st respondent is within its constitutional and statutory mandate to carry out investigations. Further that the petitioner has in no way shown that the 1st respondent is carrying out the investigations acted in excess of its mandate or that the Commission has no mandate to investigate the said complaint or that there is breach of the rules of natural justice or abuse of power.
40.In support Counsel for the 1st Respondent cited that case of Republic vs Director of Public Prosecutions & another; John Ngugi Kabogo (Interested Party) Ex parte Harrison Wangoro Mwangi & another (2020) eKLR where the Court observed that:
41.Counsel submitted that damages are only awarded where it is found that there is an infringement of a fundamental right. Correspondingly that the damage suffered must first be established by the petitioner who bears the onus of proof. Reliance was placed in Charles Muturi Macharia vs Standard Group & 4 others (2017)eKLR where it was held that:
42.Equal dependence was placed in Kenya Human Rights Commission vs Non-Governmental Organizations Co-Ordination Board Petition No. 495 of 2015 (2016) eKLR and Irene Wangari Gacheru & 6 others vs Attorney General Constitutional Petition No. 376 of 2014 (2017) eKLR.
43.Counsel submitted that the 1st respondent in light of this arguments had not violated the petitioner’s rights and hence the petitioner was not entitled to the reliefs sought.
2nd Respondent’s Submissions
44.On 17th October 2023, Counsel Kinuthia Njenga on behalf of the 2nd respondent filed submissions in opposition to the petition. Counsel sought to deliberate on two issues, first whether the 2nd respondent has violated the petitioner's rights and whether the 1st and 2nd respondent's actions within the prescribed legal provisions and lastly whether this Court can issue an order of prohibition as sought by the petitioner.
45.On the first issue, Counsel relying in Anarita Karimi Njeru vs. the republic (1976-1980) KLR 1272 submitted that the petitioner had not specifically demonstrated how his rights under Article 47 and 50 had been violated by the respondents.
46.Counsel further submitted that, Article 24(1) of the Constitution is clear that a fundamental right can be limited through law and to the extent that the limitation is reasonable and justifiable in an open and democratic society. In this regard, he made known that the Constitution under Article 157(6) empowers the 2nd respondent to institute, undertake and takeover prosecutions for all criminal suits. This is mandate does not require the consent of any person. These powers can only be subjected to review where, as held in Matalulu versus DPP (2003) 4 LRC 712:i.In excess of the DPP's Constitutional or statutory powers.ii.Contrary to the provisions of Constitution, the DPP could be shown to have acted under the direction or control of another person or authority and failed to exercise his or her own independent discretion.iii.In bad faithiv.In abuse of the process of the court in which it was institutedv.Where the DPP has fettered his discretion by a rigid policy.
47.According to Counsel the petitioner has not established any of these elements. In fact, he makes known that the investigations and prosecution were commenced following the lodged complaint and evidence gathered.
48.On the third issue, Counsel submitted that an order of prohibition is only tenable where a public body or official has acted in excess of their power and discretionary on the part of the Court. Counsel noted that abuse of process was defined in High Court Petition No. 537 of 2017 Stephen Oyugi Okero - vs - Milimani Chief Magistrate's Court & DCI as something so unfair and wrong with the prosecution that the court should not allow a prosecutor to proceed with what is, in all other respects, a perfectly unsupportable case.
49.In Counsel’s view, the petitioner has not adduced any evidence of misuse of power or contravention of the rules of natural justice on the part of the respondents to entitle grant of the sought orders. In fact the 2nd respondent reviewed and analyzed the evidence contained in the 1st respondent’s investigations file before making the decision to charge the petitioner thus acted upon the sufficiency of the evidence on record and in public interest.
Analysis and Determination
50.It is my considered view that the issues that arise for determination in this matter are:i.Whether there has been inordinate delay on the part of the respondents in investigating the petitioner’s case and if so, the implication thereof.ii.Whether the respondents in carrying out their mandate breached the petitioner’s rights under Article 47 and 50 of the Constitution and his legitimate expectation.iii.Whether the petitioner is entitled to the reliefs sought.Whether there has been inordinate delay on the part of the respondents in investigating the petitioner’s case and if so, the implication thereof.
51.The phrase ‘inordinate delay’ is also alternately referred to as ‘unreasonable or undue delay’. The phrase describes the unacceptableness of the period of time spent waiting without completing a particular task or chore. It is a relative term which applies depending on context where many factors have to be taken into consideration.
52.The Court of Appeal in Cecilia Wanja Waweru (supra) explained the meaning of ‘inordinate delay’ as follows:
53.In the instant case, the petitioner is alleging that there is inordinate delay by the 1st Respondent to conclude the investigation into an economic crime. He claims that the investigation commenced in 2015 following the publication of his name in the infamous ‘list of shame’ that the 1st Respondent had submitted to the President. He has been writing letters seeking to know the progress of that investigation. He wrote on 1st Feb. 2016. On 12/2/2016 the 1st Respondent informed him that he would be notified once the investigations are completed. He further wrote on 18/1/2021 and 22/2/2021 but these letters did not elicit any other response from the 1st Respondent. He contends that it has been six years since his name was published in the list of shame that was submitted to the President by the 1st Respondent showing the names of people that were under investigation for economic crimes. He stated that he had to step aside from his job to pave way for these investigations. He was subsequently terminated from his employment. That he has undergone isolation from people and has experienced agony which still persists as the investigations are yet to be completed to date.
54.The 1st Respondent in explaining the reasons for the delay referred to various setbacks it has faced since commencing this investigation. One was a legal challenge on its constitutionality arising from a vacancy in the composition of the Commission that caused all the work it had done in connection with the instant and other investigations to be declared a nullity and had to start afresh. Secondly, it stated that this particular investigation has an international dimension since the alleged criminality involved external contacts beyond Kenya and thus required mutual legal assistance. Further, time was taken in establishing if the organization against which the offence was perpetrated was a public entity. The 1st Respondent stated that all these factors took time and were beyond its control.
55.As a starting point, there is no constitutional or statutory limit that defines the time a criminal investigation should take. The common law doctrine of nullum tempus occurit regi (no time runs against the King) may thus be said to apply in regard to investigative powers for criminal offences.
56.Judicial precents that have considered the effect of delay mainly focus from the time the formal charge is laid before the Court and consider it on the basis of a fair trial under Article 50. A case in point is Jirongo vs Soy Developers Ltd & 9 others (supra) where the Supreme Court stated:
57.The Supreme Court went on to hold thus:
58.The Court assesses the effect of unreasonable delay from the point of securing a fair trial of the accused and this can only come after the charge is formally laid. It would be speculative in my view to stop an investigation because not every investigation will yield a charge before the Court. The Court cannot purport to monitor the timelines of an investigation such as this with multi-dimensional aspects.
59.This Court also notes that this investigation involves a serious economic crime which is attracting a colossal amount of money and the facts are complex extending to other jurisdictions. The Court opines that it would not be in public interest to terminate this kind of investigation prematurely and should thus be allowed to proceed to its ultimate end.
60.The Petitioner stated that as a result of this investigation he lost his job. There was no proof provided that the reason for termination was because of this particular investigation. In any case, Section 62 of the Anti-Corruption and Economic Crimes Act only requires a public or state officer to be suspended with effect from the date he is charged for an offence under the Act, not from the date of the commencement of an investigation.
61.I do not find any merit in the Petitioner’s claim that the investigation against him should thus be terminated on the basis of delay in concluding the same.
62.The 1st Respondent, Ethics and Anti- Corruption Commission (EACC) derives its mandate from Article 79 and 252 of the Constitution. Furthermore, its functions and powers are provided for under the Ethics and Anti-Corruption Commission Act. Being and Independent Commission, EACC may under Article 252 (1) (a) conduct investigations on its own initiative or on a complaint made by a member of the public.
63.Under Section 11 (d) of the Ethics and Anti-Corruption Commission Act, part of the functions of the Commission is to investigate and recommend to the Director of public Prosecution of any acts of corruption, bribery or economic crimes or violation of codes of ethics or other matter prescribed under this Act or any other law enacted pursuant to Chapter Six of the Constitution.
64.The Court of Appeal in Alfred N. Mutua vs Ethics & Anti-Corruption Commission (EACC) & 4 others (2016) eKLR as cited in Philomena Mbete Mwilu vs Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) (2019) eKLR acknowledged the 1st respondent’s mandate as follows:
65.As for the Director of Public Prosecutions his powers are derived from Article 157 of the Constitution. Article 157 (6), (10) and (11) of the Constitution provides as follows:(6)The Director of Public Prosecutions shall exercise State powers of prosecution and may;a.institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;b.take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; andc.subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).(10)The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.(11)In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
66.This Article is operationalized by The Office of the Director of Public Prosecutions, 2013. Act. Section 5 (1) of the Act states as follows:Pursuant to Article 157 of the Constitution the Director shall;a.have power to direct the Inspector-General to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction; andb.exercise State powers of prosecution.
67.For the Office of the Director of Public Prosecutions to perform his functions, he enjoys independence where in Section 6 of the Act provides as follows:Pursuant to Article 157(10) of the Constitution, the Director shall:a.not require the consent of any person or authority for the commencement of criminal proceedings;b.not be under the direction or control of any person or authority in the exercise of his or her powers or functions under the Constitution, this Act or any other written law; andc.be subject only to the Constitution and the law.
68.Nevertheless, the Petitioner must not only plead the provisions of the Constitution he claims were violated but must further demonstrate of how these provisions were violated by the respondents by way of evidence to support his claim. In this matter, the petitioner alleged that rights have been violated under Article 47 and 50 were violated in the manner the 1st and 2nd Respondents exercised their mandate.
69.Article 47 of the Constitution deals with the right to a fair administrative action. It provides as follows:1.Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.2.If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
70.In addition to this Constitutional safeguard, Parliament also enacted the Fair Administrative Actions Act which expounds the provisions of Article 47 of the Constitution.
71.The prominence of fair administrative action as a constitutional right was appreciated in the South African case of President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1 where it was held as follows:
72.This right essentially entrenches the principle of natural justice.The Halsbury’s Laws of England, 5th Edition Vol. 61 at page 539 Paragraph 639 espouses on the rule of natural justice as follows:
73.Did the Respondents thus violate the rights of the Petitioner under Article 47 and Article 50 of the Constitution as alleged?
74.Starting with the 2nd Respondent-the DPP has not yet made any decision yet as the 1st Respondent has not forwarded any report of investigations to the DPP as per section 35 of the Anti-Corruption and Economic Crimes Act. On what basis then does the Petitioner fault the 2nd Respondent for violating his rights? The claim against the DPP (2nd Respondent) is absolutely groundless. The Petitioner did not demonstrate how the 2nd Respondent has violated his rights under Article 47 and 50 of the Constitution.
75.In regard to the 1st Respondent, the Petitioner claims that his rights under Article 47 and 50 of the Constitution have been infringed by reason of the investigation; I am guided by the Supreme Court decision in Ethics and Anti-Corruption Commission & Anor v Tom Ojienda, Sc T/A Prof. Tom Ojienda and Associates Advocates and 2 Others Petition 30 & 31 of 2019 (Consolidated) [2022] KESC 59 (KLR) which held that criminal investigation do not fall within the realm of ‘administrative actions’ and are thus not covered by Article 47 of the Constitution or the Fair Administrative Action Act. They fall under special legal regime designed for that particular purpose.
76.As guided by the Supreme Court in the above decision, the claim that the conduct of investigations is in violation Article 47 of the Constitution is legally unsustainable. The procedures governing investigations are those contained in Statutes that specifically apply to and regulate criminal law. I concur with the 1st Respondent contention due to the nature of crime itself that is normally characterized by concealment, collusion and threat to peace generally, there are distinct procedural safeguards for criminal investigations as opposed to other administrative actions. That is why we have Acts such as Rights of the Persons Arrested and Detained Act, the Criminal Procedure Act that regulates searches arrests and so on.
77.I find no merit in this Petition which is hereby dismissed. I make no orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26//TH DAY OF AUGUST, 2024.…………………………………….L N MUGAMBIJUDGEConstitutional Petition No. E084 of 2022 – Judgment Page 11 of 11