Corruption suspects using tricky loophole to fight accusations
Notify suspectThe judges ruled that investigators are required to first notify a suspect about the information they are looking for and ask him to give the access to it. Only after the suspect has failed to cooperate can the police result to the search warrants. The ruling was made when lawyer Tom Ojienda challenged the manner in which Ethics and Anti-Corruption Commission (EACC) investigators obtained permission from a magistrate to search his bank accounts for evidence in a case involving questionable transactions with Mumias Sugar Company. Director of Public Prosecution Noordin Haji, Director of Criminal Investigations George Kinoti and the EACC have already moved to the Supreme Court to challenge the Appellate Court’s decision. They claim that such a ruling will cripple their investigative work and make it impossible to nail graft suspects. As is the tradition in legal practice, a decision of a higher court is binding on lower courts which mean that the magistrates trying graft suspects will have no choice, but to acquit them if it is proved the evidence were unlawfully obtained. Lawyers representing some of the suspects said they will fight any attempt to challenge the Court of Appeal’s ruling. Mr Kasaine, through lawyer Paul Nyamodi, made an application to the High Court to take into account the Court of Appeal decision when handling his Sh84 million graft case. Kasaine is accused of paying himself Sh84,695,996 from the county government coffers, using a proxy company - Oryx Services Station - that supplied fuel to the county. Dr Kidero on Wednesday also made an application before anti-corruption court chief magistrate Douglas Ogoti to stop a witness from producing copies of bank statements arguing that the documents were illegally obtained. The former governor alongside eight others is facing a total of 35 corruption charges in relation to alleged loss of Sh213 million at Nairobi County. His lawyers James Orengo and Tom Ojienda told the magistrate the decision by the Court of Appeal declared that evidence obtained from an individual’s accounts without notifying them cannot be presented. Mr Kiamba, the former Nairobi County CFO, in his appeal argued that the Court of Appeal decision has a monumental effect on his corruption case and had it come earlier the High Court would have not ordered him to return the Sh318 million. Lady Justice Hedwig Ong’udi on Wednesday last week found out that Kiamba could not explain how he acquired his massive wealth and ordered that he forfeits to the government Sh318 million or have his palatial home in Runda repossessed. Some lawyers have lauded the ruling saying it upholds the mantra that a suspect is innocent till proven guilty.
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