[2022] KEHC 633 (KLR)

Barasa v Ethics & Anti-Corruption Commission & another (Anti-Corruption and Economic Crimes Case 9 of 2021) [2022] KEHC 633 (KLR) (Anti-Corruption and Economic Crimes) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 633 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Case 9 of 2021

EN Maina, J

June 9, 2022

Between

Hon. Didmus Wekesa Barasa

Applicant

and

Ethics & Anti-Corruption Commission

1st Respondent

Attorney General

2nd Respondent

Judgment

1. Before this Court for determination is a petition by Hon. Didmus Wekesa Barasa dated 4th October 2021. The petition which is expressed to be brought under Articles 23(f), 27(1) and (4), 29(d), (f), 31(c) and 73(2)(b) of the Constitution seeks the following reliefs: -“i.A conservatory order be issued staying further implementation of the 1st Respondent’s letter dated 23rd September 2021 addressed to the petitioner referenced EACC.7/10/1 VOL XLVI(243)ii.A declaration be and is hereby issued that the 1st Respondent do cease any further investigation against the petitioner over the subject matter contained in the 1st respondent’s letter dated 23rd September 2021 addressed to the petitioner referenced EACC.7/10/1 VOL XLVI(243)iii.An order of certiorari for the purposes of (sic) to bring into this Court to quash that the 1st Respondent’s letter dated 23rd September 2021 addressed to the petitioner referenced EACC.7/10/1 VOL XLVI (243) and any other subsequent act pursuant to the letter.iv.A declaration that by its acts and omissions the 1st Respondent has violated the Petitioner’s rights and fundamental freedoms.v.A declaration that the Petitioner is entitled to damages for emotional and psychological distress caused to Petitioner by the actions of the 1st and 4th Respondents.”

2. In opposition to the petition the 1st Respondent filed a Replying Affidavit sworn on 30th November 2021 by Pius Ndiwa, an investigator with the Commission.

Petitioner’s Case 3. The Petitioner who is the current Member of The National Assembly for Kimilili constituency deposes that he learnt from a letter dated 15th September 2021 written by the Clerk of the National Assembly and copied to him that the Ethics and Anti-Corruption Commission had sought private information concerning him and that the information was forwarded to the commission through that letter. He asserted that prior to the letter, he was never informed by the 1st Respondent and the Clerk of the National Assembly that information about him was being sought nor had he been called by the 1st respondent to appear before it to respond to the allegations made against him.

4. The petitioner submits that he is entitled to a conservatory order against the implementation of the 1st Respondent’s letter. That he has sought court redress challenging the unlawful investigation against him which he deems to be in violation of his fundamental rights and freedoms specifically with respect to fair administration guaranteed under Article 47 (1) of the Constitution and Section 12(1) of the Ethics and Anti-Corruption Commission Act. He states therefore that he seeks conservatory orders to prevent any further infringement of his rights and fundamental freedoms. He contends that this court is clothed with jurisdiction to uphold and enforce the Bill of Rights and to grant relief by way of judicial review as provided in Article 23 as read with Article 23(3)(f) of the constitution. To support his arguments Learned Counsel for the Petitioner cited the cases of Board of Management of Uhuru Secondary School v City County Director of Education & 2 others[2015] eKLR and the case of Centre of Human Rights Education and Awareness (CREAW) and 7 others v Attorney General[2011] eKLR in which the principles for grant of conservatory orders were stipulated.

5. On the question of whether his rights were violated learned Counsel for the petitioner submitted that the 1st respondent acted in contravention of Article 47(1) of the Constitution and Section 4(3) of the Fair Administrative Action Act 2015 by following unlawful procedures in its investigations. That in accordance with Section 4(4)(b) and (c) of the Fair Administrative Action Act and Section 12(c) of the Ethics and Anti-Corruption Acthe ought to have been afforded an opportunity to be heard and to challenge evidence against him so as to ensure a fair hearing. Counsel also cited the cases of Judicial Service Commission v Mbalu Mutava &another[2015] eKLR and Geothermal Development Company Limited v the Attorney General & 3others [2013] eKLR on the import of Article 47 and its importance in development of administrative justice and stated that Article 47 enshrines the rights of every person to fair administrative action which promotes good governance, integrity, transparency and accountability on the part of State organs.

6. Citing the case of Ridge vs Baldwin [1964] AC 40, Counsel for petitioner submitted that no person is to be condemned unless he has been given prior notice of the allegations against him and a fair opportunity to be heard which is a rule of natural justice. Counsel stated that even in the absence of any charge, the severity of the impact of an administrative body’s decision on an individual’s interests suffice in attracting a duty of compliance with the rule of natural justice and that in the petitioner’s case he was not afforded the three main requirements for natural justice namely adequate notice, fair hearing and no bias. Counsel stated that due to the 1st respondent’s non-adherence to Section 12(c) of theEthics and Anticorruption Acton natural justice, the petitioner is entitled an order of Certiorari under Article 23 (3) (f) of the Constitution to prevent the matter from being included in the 1st Respondent’s integrity profile. Further, that the 1st Respondent should be barred from carrying out any future action based on the unlawful investigations.

7. Counsel for the petitioner also submitted that the petitioner is entitled to damages owing to the emotional and psychological stress he has experienced due to the impugned investigations and because the matter has been included in the Commission’s integrity profile. Counsel asserted that the investigations have harmed the petitioner’s personal and political character; that it has ramifications of ruining his career and his chances of re-election and that he risks losing the respect of his constituents. Counsel placed reliance on the cases of Commissioner of Police of the Metropolis v Shaw [2012] IRLR 291 EAT and John v MG Ltd[1996] 1 All ER35 to buttress his claim to aggravated damages which are ordered against a defendant who acts out of improper motive and which bear an aspect of compensation for injury to one’s feelings.

The 1st Respondent’s case 8. The 1st Respondent faulted the affidavit in verification of the petition for failing to adhere to the requirements of Section 5 of the Oaths and Statutory Declaration Act for not being commissioned by magistrate or a Commissioner of Oaths and submitted that the petition is therefore incompetent and ought to be struck out.

9. On the merits of the Petition the 1st Respondent averred that it received several complaints that the Petitioner was using the title of Captain (Rtd) in his official transactions yet he never acquired nor attained such a title while serving in the Kenya Defence Forces; That pursuant to its statutory mandate, the Commission commenced its investigations into the complaints and obtained certified copies of the Petitioner’s bio-data from the Clerk of the National Assembly which the petitioner had furnished to the Clerk and in which he indicated that he holds the title “Captain (Rtd) Eng.” The 1st Respondent contended that it established from the Kenya Defence Forces that the Petitioner only served the Kenya Defence Forces for a period of one year and sixty days and was dismissed from service on disciplinary grounds and that as at the time of his dismissal, the Petitioner had only attained the rank of Private which is several ranks below that of Captain. It avers that on the basis of its findings and as an interim measure it issued a warning to the Petitioner asking him to cease and desist from using the title of Captain (Rtd) to protect the public from misleading information pending the outcome of ongoing investigations on other allegations made against him. It further averred that it was therefore premature for the Commission to inform the Petitioner of any outcome or even to summon him to record a statement. It contended that the caution was merely a warning and could not be termed as administrative action.

10. Learned Counsel for the 1st Respondent cited the case of Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR where it was held that an affidavit must clearly state the place and date where it was made and it must be sworn before a magistrate or Commissioner for Oaths and submitted that owing to contravention of Sections 5 and 8 of the Oaths and Statutory Declarations Act, the verifying affidavit and the petition itself are fatally defective.

11. Counsel for the 1st Respondent further submitted that the Petitioner seeks a conservatory order staying further implementation of the Commission’s letter dated 23rd September 2021 addressed to the Petitioner referenced EACC.7/10/1VOLXLVI(243) (hereinafter the “subject letter”) the contents of which are a caution to the petitioner to desist from further misleading the public yet the caution was based on factual information and cannot be deemed to be a violation of the Petitioner’s rights guaranteed under Article 47 of the Constitution. Counsel stated that to the contrary, if the misrepresentation is allowed to persist, it will amount to a continuous violation of Chapter 6 of the Constitution.

12. Learned Counsel cited the case of Centre for Rights Education & Awareness (CREAW) & another v Speaker of the National Assembly & 2 others[2017] eKLR to buttress the Commission’s position that the petitioner’s rights are not under threat of violation. Counsel argued that the database being referred to in the subject letter is an internal case tracking system with data accessible by the Commission only and hence the warning letter does not mean that the petitioner will not be cleared for elections. Counsel argued that in any event, Section 13(2) of the Leadership and Integrity Act 2011 requires persons desiring of being elected to public office to submit a self-declaration form to the Independent Electoral and Boundaries Commission and not the 1st respondent.

13. It is the 1st respondent’s case that the granting of orders sought will amount to interference with its investigative mandate which would be detrimental to public interest and this court ought not to interfere since no impropriety has been demonstrated.

Analysis and Determination 14. From a reading of the parties’ pleadings, submissions and the applicable law the following are the issues arising for determination:“i.Whether the petition is fatally defective for contravening the provisions of the Oaths and the Statutory Declarations Act;ii.Whether the Petitioner’s constitutional rights as enumerated have been violated by the existence, effect and import of the impugned letter of the 1st respondent;iii.Whether the petitioner is entitled to the orders sought.”Issue. No. 1: Whether the petition is fatally defective for contravening the provisions of the Oaths and the Statutory Declarations Act

15. With respect to the first issue, I have confirmed from the court record that the Verifying Affidavit thereat is duly commissioned, dated and signed. For that reason, the petition as filed is validly before the court and is proper in substance and in form.Issue No. 2: Whether the Petitioner’s constitutional rights as enumerated have been violated by the existence, effect and import of the impugned letter of the 1st respondent

16. The 1st Respondent’s mandate is spelt out in Article 252 of the Constitution which states:-“252. (1)Each commission, and each holder of an independent office—(a)may conduct investigations on its own initiative or on a complaint made by a member of the public;(b)has the powers necessary for conciliation, mediation and negotiation;(c)shall recruit its own staff; and(d)may perform any functions and exercise any powers prescribed by legislation, in addition to the functions and powers conferred by this Constitution.(2)A complaint to a commission or the holder of an independent office may be made by any person entitled to institute court proceedings under Article 22 (1) and (2).”

17. Under Section 11(1) of the Ethics & Anti-Corruption Act the 1st Respondent also has power, inter alia, to receive complaints on the breach of the code of ethics by public officers; recommend appropriate action to be taken against state officers or public officers, alleged to have engaged in unethical conduct; oversee the enforcement of codes of ethics prescribed for public officers; and to advise, on its own initiative any person on any matter within its functions.

18. Under Section 13(2) ( c ) of the Act the 1st Respondent also has power to conduct investigations on its own initiative or on a complaint made by any person.

19. It is clear from the aforegoing Article of the Constitution and provisions of the Ethics and Anti-Corruption Commission Act that the 1st Respondent did not breach any law in conducting an investigation into the complaint against the Petitioner that he was holding himself out as a retired Captain of the Kenya Defence Forces whereas he was not.

20. As to the manner of conducting the investigation Section 13(1) of the Ethics and Anti-Corruption Commission Act states:-“The Commission shall have all powers generally necessary for the execution of its functions under the Constitution, this Act, and any other written law”.

21. Section 28 of the Act then goes on to state that as provided in the Constitution and the Act, the Commission shall in the performance of its functions, not be subject to the direction or control of any person or authority. This provision therefore asserts the independence of the Commission.

22. It is however trite that in appropriate cases the actions and conduct of the 1st Respondent are subject to review by this court - See the case of The Commissioner of Police and the Director of Criminal Investigation Department and another v Kenya Commercial Bank Limited and 4 others [2013] eKLR where the court stated:-“It has further been held that an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the DPP) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The court has inherent power to interfere with such investigation or prosecution process. (See Ndarua v Republic{2000} 1EA 205. See also Kuria and 3 others v Attorney General [2002]2 KL 69. ”

23. Indeed and as correctly submitted by Learned Counsel for the Petitioner Article 23 (1) of the Constitution cloths this court with jurisdiction to hear and determine applications for redress of a denial, violation or infringement of or threat to, a right or fundamental freedom in the Bill of Rights. To succeed however the petitioner must plead with specificity the right or fundamental freedoms that have been breached or threatened with violation and also prove the manner of infringement and the extent of that infringement and the injury suffered if any. (See the case of Anarita Karimi Njeru v Republic[1979] 1 KLR 154. )

24. The Petitioner has cited violation of his rights under Article 47, Article 27, Article 28, Article 29, Article 31, Article 38 and Article 73. It is his contention that the letter dated 23rd September, 2021 disapproving his conduct and warning him to desist against giving false and misleading information to the public and advising him to desist from using the title of RTD Captain and also informing him that the violation had been entered into the Commission’s data base is likely to affect his political career and his re-election in the forthcoming general elections. It is also his contention that as he was not informed of the investigation and was not given an opportunity to defend himself then his right to fair administrative action guaranteed under Article 47 of the Constitution was violated. He has therefore urged this court to restrain the 1st Respondent from carrying out further investigations against him over the said subject matter and to quash that letter and any other subsequent act pursuant to the letter.

25. I have carefully considered the issues raised by the parties and all the material placed before me including the rival submissions and the cases cited therein. As I have already stated the 1st Respondent is vested with power to carry out investigations as it did in the case of the petitioner. That power flows from Article 252 of the Constitution and also Sections 11 (1) and 13 (1) and (2) of the Ethics and Anti-Corruption Commission Act. The 1st Respondent acted upon a complaint that the Petitioner was holding himself out as a retired Captain of the Kenya Defence Forces. Acting upon that complaint it carried out investigations first at the National Assembly and confirmed that the Petitioner had in fact signed himself off as a KDF retired Captain. It then also established from the Kenya Defence Forces that although the Petitioner had worked in the Army he had not retained that rank. That was the genesis of that letter. As was held in the case of The Commissioner of Police and the Director of Criminal Investigation Department and another versus Kenya Commercial Bank Limited and 4 others (supra) a court is bound to interfere where the investigation is oppressive or vexatious as such an investigation would be contrary to public policy. The decision to investigate will also be reviewed if it is unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score – settling or vilification. Other than stating that the warning and entry of the same into the integrity data base is likely to affect his political career and re-election in the forthcoming election the petition has not placed anything before this court to show that the investigations were for a purpose other than the public interest. He has not therefore demonstrated that the investigation is contrary to public policy; that it is in bad faith or intended to achieve an ulterior motive. He has also not demonstrated that the allegation that he passed himself off as a retired Captain is false. Article 259 (1) of the Constitution enjoins this court to interpret the Constitution in a manner that, inter alia:“a)Promotes its purposes, values and principles;b.Advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;c.Permits the development of the law; andd.Contributes to good governance.”

26. The National values and principals of governance include good governance, integrity, transparency and accountability; and as provided in Article 10 (1) of the Constitution the same bind all state organs such as this court and state officers such as the petitioner. It is my finding that it would be antithetical to the Constitution for this court to grant the prayers sought in this petition given that by passing himself off as what he is not the petitioner has himself violated the very constitution under which he seeks shelter.

27. In my view the petition is nothing more than an abuse of the court process. If indeed the petitioner is a retired Army Captain nothing stops him from clarifying that position to the 1st Respondent and to this court. In my considered view to grant the prayers sought would be tantamount to advancing a violation of the national values and principals of governance and it would not be contributing to good governance or advancement of the rule of law as required of this court by the Constitution. Accordingly, the petition is dismissed with costs to the 1st Respondent as it is noted that the 2nd Respondent did not participate in the proceedings.

SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 9TH}} DAY OF JUNE, 2022. E. N MAINAJUDGE