Judge allows secret search warrants in tackling graft

Justice Mumbi Ngugi during an interview for court of appeal Judges on June 17, 2019. [David Gichuru]

The war on corruption got a boost after a High Court judge ruled that investigators had a right to conduct secret searches at homes and offices of graft suspects without prior notification.

Lady Justice Mumbi Ngugi’s ruling came as a relief to Ethics and Anti-Corruption Commission (EACC), Director of Public Prosecution (DPP) and Director of Criminal Investigations (DCI), who have been battling to save more than 1,000 cases from collapsing after the Court of Appeal outlawed secret search warrants.

Her decision was in sharp contrast with the Court of Appeal’s finding, including allowing the use of force to obtain evidence in instances where investigators have sufficient reasons to believe an individual has committed a crime.

“In the absence of evidence of abuse of power or a gross violation of the rights of a person to be searched, a court would be slow to stop a search warrant. There is nothing wrong with search warrants if there is reasonable suspicion of commission of an offence,” ruled Ngugi.

In July, appellate Judges Roselyne Nambuye, Patrick Kiage and Sankale ole Kantai ruled that investigators must first notify a person of their intention to search him /her, and it is only if the person fails to comply that they should seek for a search warrant.

But Justice Ngugi said the Judges’ decision was based on provisions of the Anti-Corruption and Economic Crimes Act (ACECA) and not the Criminal Procedure Code (CPC), which allows investigators to obtain secret search warrants without notifying the person when gathering evidence.

“In my view, the Appellate decision was limited to provisions of ACECA and cannot extend to provisions of CPC. To hold otherwise would be to deal a death blow to investigations of any offence, not just economic crimes,” she said.

Justice Ngugi made the decision in two cases where ousted Kisumu County Speaker Onyango Oloo and Bobasi MP Innocent Momanyi Obiri challenged the manner in which investigators collected evidence to prosecute them in the Sh4.1 billion Lake Basin Development Authority Mall scandal.

Mr Oloo, in his application, argued that EACC investigators raided his homes in Kisumu and Machakos and carted away several documents without first summoning him to explain.

Mr Momanyi had accused investigators of relying on vague search warrant from court, which had nothing to show he was being investigated over the LBDA scam.

But Justice Ngugi ruled that in the case of Momanyi, EACC had genuine apprehension after money was illegally deposited in his account from the contractor as the quantity surveyor for the LBDA project. “There was reasonable suspicion of commission of an offence of bribery and procurement irregularities. This was on the he was a quantity surveyor who was a consultant for LBDA and suspected to be a beneficiary of the corruption,” ruled Ngugi.

She added that there was nothing wrong with investigators applying force where necessary to obtain evidence since Section 120 of the CPC allows it.

In the case of Oloo, Justice Ngugi stated that he had a role to play in the unlawful inflation of the contract cost from Sh2.4 billion to Sh4.1 billion as the chairman of the LBDA board, and that there was nothing wrong in obtaining the warrants to search his homes.

She ruled that the search warrants were not ambiguous as complained by the ousted speaker since they had the name of officer conducting the search and the specific homes in which he was allowed to collect evidence.

Justice Ngugi added that since many suspected are rushing to court to challenge the manner in which evidence was obtained against them, there should be new laws to guide investigators in their work.

“I bear in mind that the form of obtaining evidence has been challenged in many cases. There may be need to issue practice directions and new templates on search warrants given the changing times and the prescriptions in judicial precedents,” ruled Ngugi.

Oloo had also complained about seizure of his documents not related to the case but the judge directed that he can make the application before the magistrate’s court who is handling the matter.

Oloo and Momanyi were among 26 suspects charged with conspiracy to steal public funds by inflating the cost of constructing the LBDA Mall from Sh2.4 billion to Sh4.1 billion.