Corruption suspects using tricky loophole to fight accusations

Former Nairobi County Chief Finance Officer Jimmy Kiamba. [Standard]

Corruption suspects have now found a loophole to wriggle out of prosecutors’ hands; arguing that evidence collected from their bank accounts is illegal and cannot be used against them.

This, according to some high profile suspects, is because the evidence was collected without their knowledge.  

The recent Court of Appeal decision declaring that it is illegal to comb through a person’s bank accounts without notifying them created the loophole.

Many have now filed fresh applications to strike out charges against them.

Samburu Governor Moses Kasaine and former Nairobi Governor Evans Kidero are two suspects who have taken advantage of the loophole. Both are being tried for multi-million shillings corruption cases.

Former Nairobi County Chief Finance Officer Jimmy Kiamba who last week was ordered to forfeit Sh318 million to the State, in a long running graft case, has also filed an appeal arguing that investigators raided his accounts without informing him.

Not to be left behind are several accused persons in the Sh468 million National Youth Service (NYS) scandal.

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They are contending that their accounts were illegally raided for evidence, and want the cases quashed.

Appellate Judges Roseline Nambuye, Patrick Kiage and Sankale Ole Kantai on June 28 outlawed secret warrants obtained by investigators to facilitate surprise access to bank accounts.

Notify suspect

The 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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Former Nairobi County Chief Finance Officer Jimmy KiambaNoordin HajiNYSNational Youth ServiceNairobi Governor Evans Kidero