Nairobi Governor Mike Sonko, his predecessor Evans Kidero and former Kiambu Governor Ferdinand Waititu are casualties of yesterday’s Supreme Court verdict, suspending orders on secret investigations.
The three had moved to court separately, seeking to terminate their criminal trials on strength of a Court of Appeal order that evidence obtained secretly cannot be used in trials.
While dashing their hopes of getting off the graft dragnet, Supreme Court yesterday gave life to 1,036 graft cases on the verge of collapsing, by suspending a judgement which outlawed such investigations.
In a ruling, which is a major win for Director of Public Prosecution Noordin Haji, and Ethics and Anti-Corruption Commission (EACC) chief Twalib Mbarak, the Supreme Court declared that the Appeals Court judgement, which required sleuths to issue notices to suspects before investigating them, should not be implemented or relied upon before any court.
EACC through its lawyer Fred Ngatia and Mr Haji, argued that the orders which had been issued in favour of senior lawyer Tom Ojienda were detrimental to all the cases presented to the court for trial as they stem from surprise access to bank accounts and searches in suspects’ premises.
A five judge bench composed of Chief Justice David Maraga, Justices Mohamed Ibrahim, Jackton Ojwang, Smokin Wanjala and Njoki Ndung’u unanimously agreed with the EACC and DPP, saying that fight against graft was an issue of public interest.
“Neither party to this appeal, or any other person shall use, apply or in any way rely upon the High Court and or the Court of Appeal decision in this matter until the said appeal is heard and determined,” the court ruled.
Among the casualties of the Supreme Court order are Nairobi Governor Mike Sonko, his counterpart from Samburu County Moses Lenolkulal, former City hall finance officer Jimmy Kiamba and former governor Evans Kidero who had filed separate cases seeking to end their criminal cases, claiming they were victims of secret warrants.
According to Mr Ngatia and Mr Haji, efforts to tame runaway graft and crime now faces uncertainty as they now face a massive loss of cases.
“The country will be plunged into a legal conundrum that will see thousands of public litigation cases and investigations being lost. Several applications have since been filed in different courts seeking release of documents that were collected pursuant to search warrants obtained by investigators from EACC, and in some cases seeking orders to declare suits as null on the basis of the impugned decision,” argued Ngatia.
According to EACC and DPP, at least 820 cases were investigated through secret search warrants. An additional 151 cases which went through the same process are in anti-corruption court.
Meanwhile, the court heard that the State lodged 14 cases to recover assets after obtaining evidence from secret searches.
At the same time, DPP said he was holding 51 high profile cases which will be still births if the Supreme Court did not intervene as they were done secretly.
Appeal Court judges Roselyn Nambuye and Sankale ole Kantai in a case between lawyer Tom Ojienda and the anti-graft watchdog decreed that in the event an investigative body wants to probe a person, it must first issue summons and give him or her a chance to furnish them with the required information before deciding whether to press charges or not.
According to the judges, it is only when the person defies the summons or fails to provide pertinent information that investigative bodies can seek the courts’ intervention.
Out of the judgement, at least five cases have already been filed faulting the investigations process.
While faulting the appeals court judges, EACC and DPP argue that it is impossible to investigate and prosecute a suspect while he or she is knowing that they are under probe.
Both the EACC and the DPP argue that investigations are different from administrative action in which a body is required to give a person a fair chance to reply to allegations.
“Criminal investigation methods feature, with wider scope and greater frequency, the use of coercive powers of the state such as summons, warrants and even arrest,” the court heard.
Nevertheless, Prof Ojienda in his reply claims the Supreme Court has no powers to hear the appeal.
According to the lawyer, the case does not raise issues of public interest.