Nairobi — The Supreme Court has overturned an initial decision of the Court of Appeal which required the Ethics and Anti-Corruption Commission (EACC) to give notice to corruption suspects before commencing investigations.
The apex court ruled that EACC is not obligated to notify suspects before launching an investigation.
"Requiring EACC to give notice to suspects before some investigative actions would render EACC ineffective in its work. Notably, such notices would, among other effects, eliminate the essential element of "surprise" in criminal investigations," the court ruled.
And it emphasised that failure to notify a suspect prior to an investigation will not, in any way, violate his or her constitutional right.
The court further ruled that prior notification will highly depend on the circumstances under which the situation lies and the nature of the evidence required by the court of law to sustain a charge or charges.
"It all depends on what is at stake, the nature of the evidence required, and the urgency with which the said evidence must be acquired. In the circumstances, it cannot be said that the Commission must always give prior Notice to those it intends to investigate before commencing an investigation," the judges ruled.
The Constitution states that 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.
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It is on this basis the five-judge bench argued that effecting an arrest or conducting a house search does not infringe the administrative action rights of an individual as stipulated in the constitution provided the written reasons are issued.
"Strictly speaking, these powers when exercised cannot be described as 'administrative action' within the meaning of Article 47. For example, how can 'conducting a house search' or 'effecting an arrest be considered as an administrative action?" the apex court bench posed.
The said ruling reverts back to 2015 where the Chief Magistrate at Kibra Law Courts ordered the EACC to launch an investigation on the alleged Ksh. 280 million paid to Ojienda's advocate-client by Mumias Sugar Company Limited for legal services not rendered.
Ojienda thereafter moved to court for clarification and interpretation of whether a suspect should be investigated before being issued with a notice of the same.
