https://new.kenyalaw.org/akn/ke/judgment/keca/2026/947

Oloo v Ethics and Anti- Corruption Commission & another (Civil Appeal 643 of 2019) [2026] KECA 947 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 947 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 643 of 2019 DK Musinga, SG Kairu & P Nyamweya, JJA May 15, 2026 Between George Onyango Oloo Appellant and Ethics and Anti- Corruption Commission 1st Respondent Nairobi Chief Magistrate’s Court 2nd Respondent (Being an appeal against the Ruling of the High Court of Kenya at Nairobi (Mumbi Ngugi, J.) dated 24th September 2019 in HC. ACEC Misc. Cr. App. No. 29 of 2019)) Judgment 1.This appeal arises from a ruling dated 24th September 2019 in which the High Court (Mumbi Ngugi, J.) (as she then was), dismissed an application dated 26th June 2019 by the appellant, George Onyango Oloo (Mr. Oloo). In that application, Mr. Oloo had invoked the supervisory jurisdiction of the High Court over subordinate courts under Article 165(6) and (7) of the Constitution of Kenya, and had sought the revision, setting aside and discharge of an order (search warrant) issued by the Chief Magistrate’s Court (Milimani) on 29th May 2019 in Miscellaneous Criminal Application No. 2272 of 2019. 2.The background to the appeal is that by an ex parte application dated 27th May 2019, the 1st respondent, Ethics and Anti-Corruption Commission (EACC) applied before the Chief Magistrate’s Court at Milimani Nairobi, for a search warrant to issue to enable its investigator to have access and entry into the residential houses of Mr. Oloo situated within and outside Kisumu County. 3.That application was made under Sections 118 to 122 of the Criminal Procedure Code and Section 23 of the Anti- Corruption and Economic Crimes Act (ACECA). The application was supported by an affidavit sworn by Charles Kiptanui, an investigator with EACC. Charles Kiptanui deponed that EACC was investigating allegations of irregular procurement, bribery and inflation of cost regarding Lake Basin Development Authority (LBDA) Mall Complex in Kisumu; that Mr. Oloo, having been a beneficiary of such corrupt activities, EACC believed that he (Mr. Oloo), had in his custody relevant documents that would assist in the conclusion of the investigations and hence the need to search his premises. Mr. Oloo had apparently served as the Chairman of LBDA during the relevant period. 4.Based on that application, the Chief Magistrate’s Court issued a search warrant dated 29th May 2019 in Criminal Application No. 2272 of 2019 addressed to Charles Kiptanui, Forensic Investigator, EACC, authorizing him, with such assistance as shall be required, to enter Mr. Oloo’s premises “within and without Kisumu County” to search and seize documents and electronic gadgets and other things necessary for the conduct of the investigation. 5.On 4th June 2019, officers of EACC and police raided Mr. Oloo’s residences in Mamboleo, Kisumu County and Syokimau, Machakos County, where they carried out searches and seized documents and things captured in inventories that were produced. Mr. Oloo’s parent’s residence in Manyatta, Kisumu City in Kisumu County was also searched but nothing was taken. 6.By his application before the High Court dated 26th June 2019 (to which we have already referred and which culminated in the ruling dated 24th September 2019, the subject of this appeal), Mr. Oloo applied for orders: to have the search warrant issued by the Magistrate’s Court on 29th May 2019 set aside and discharged; to suppress any evidence collected based on the impugned search warrant; and to prohibit the institution of any prosecution against him based on the orders of search and seizure made by the Magistrate’s Court. Also sought was an order requiring EACC to return all documents and things seized from his residences. At the time of filing his said application, Mr. Oloo, an advocate of the High Court of Kenya, was the Speaker of Kisumu County Assembly. He contended that his constitutional rights to privacy, equality and freedom from discrimination and equality before the law, fair hearing had been violated; that the Magistrate’s Court irrationally and unreasonably gave an impermissibly overbroad authorization of search and seizure without limiting the scope of the search; that the warrant did not state the specific offences and crimes EACC was investigating; that EACC had disobeyed orders of the Magistrate’s Court by not returning the warrant with promptitude certifying what it had done under the warrant upon execution; that the search and seizure was a fishing expedition; that in issuing the warrant, the Magistrate’s Court did not comply with prior guidelines given by the High Court for the proper management of the process of issuing ex parte search warrants; that no reasonable case had been presented before the Magistrate’s Court to enable it conclude that there was reasonable evidence of commission of an offence by Mr. Oloo. 7.In his replying affidavit in opposition to the application, Charles Kiptanui reiterated that EACC was engaged in investigating procurement and other irregularities relating to the construction of a mall at LBDA’s land situated in Lower Kanyakwar within Kisumu County; that EACC had received intelligence regarding financial and other inducements involving key persons involved in the project; that the Magistrate’s Court was satisfied that EACC had sufficiently demonstrated grounds raising reasonable suspicion that Mr. Oloo was involved in corrupt conduct; that among the documents seized from Mr. Oloo’s residences were documents relating to LBDA Mall construction; that Mr. Oloo was the Chairperson for LBDA during the relevant period from December 2014 and July 2015; that prior to applying for the search warrant, Mr. Oloo had been invited for an interview in March 2018 at the offices of EACC and had appeared on 12th April 2018; and that EACC did not violate Mr. Oloo’s rights in carrying out the search and seizure. 8.Having heard the application and having considered the rival submissions, the learned Judge of the High Court in her impugned ruling dismissed the application, hence the present appeal. 9.The appeal is grounded on complaints set out in the Memorandum of Appeal, namely, that the Judge erred in: holding that the warrant was not broad; failing to find that the Magistrate’s Court did not limit the scope of the warrant and EACC unnecessarily widened the scope of the warrant; finding that the entry to the applicant’s parent’s house was reasonable; upholding the warrant; and holding that Mr. Oloo had failed to demonstrate violation of his rights. 10.When the appeal was called up for hearing before us on 14th October 2025, learned counsel Mr. Ombija appeared for the appellant, while Ms. Faith Ngethe, learned counsel, appeared for the 1st respondent. Although Mr. Ombija had filed written submissions in support of the appeal, he informed the Court that the criminal proceedings before the Magistrate’s Court from which the proceedings before the High Court stemmed, had since been concluded and the appellant acquitted. He urged that in those circumstances, the appeal should be marked as settled as it is overtaken by events. On her part, Ms. Ngethe for the 1st respondent indicated that in opposition to the appeal she was relying entirely on the 1st respondent’s written submissions dated 13th March 2025 and left the matter at that. 11.Although Mr. Ombija, upon engagement by the Court, stopped short of withdrawing the appeal, opting instead to “leave the matter to the Court”, given his representation that the criminal proceedings have since been concluded and the appellant acquitted, there is merit in his contention that the appeal is indeed overtaken by events and is moot. In the case of Institute for Social Accountability & Aanother vs. National Assembly & 5 Others (Petition 1 of 2018) [2022] KESC 39 (KLR) the Supreme Court of Kenya after reviewing decisions on the principle of mootness stated as follows:“The common thread from the above decisions is that a matter is moot when it has no practical significance or when the decision will not have the effect of resolving the controversy affecting the rights of the parties before it. If a decision of a court will have no such practical effect on the rights of the parties, a court will decline to decide on the case. Accordingly, there has to be a live controversy between the parties at all stages of the case when a court is rendering its decision. If after the commencement of the proceedings, events occur changing the facts or the law which deprive the parties of the pursued outcome or relief then, the matter becomes moot.” 12.We are guided accordingly. There is no live controversy in the present matter. We should pen off at this point. However, for completeness and for what it might be worth, we proceed to briefly consider the arguments raised in the written submissions. 13.The core arguments in the appellant’s written submissions are that that the search warrants and subsequent seizures were illegal and unconstitutional for several reasons: First, that under Sections 26, 27, and 28 of the Anti-Corruption and Economic Crimes Act (ACECA), the EACC was required to provide Mr. Oloo with written notice of its intention to investigate his premises and accounts. It is contended that the failure to provide this notice is fatal to the proceedings. Secondly, that the warrant was overbroad and vague and the search as a "fishing expedition" because the warrant was too wide in scope, failed to specify which items were to be seized, and did not link the evidence sought to a specific crime. 14.It was pointed out that the warrant was obtained without Mr. Oloo being heard, which he argues violated his right to fair administrative action and constitutional protections against unreasonable search and seizure; that his right to privacy under Article 31 and his right to fair administrative action under Article 47, and his right to a fair trial under Article 50 of the Constitution were violated. It was submitted that a valid warrant must be reasonably intelligible, identify the specific offence, and the High Court erred in upholding warrants that were "broad and expansive" and contrary to the law. 15.In opposition to the appeal, it was submitted for EACC that Mr. Oloo has in his submissions before this Court introduced new issues that were neither raised before the High Court nor contained in the memorandum of appeal. The Respondent contends that, in accordance with established law, an appellate court should only consider issues that were before the lower court. 16.As regards the claim that the appellant had no prior notice of the warrant, it was submitted that an ex parte application is envisaged under Section 118 of the Criminal Procedure Code;that the object is to prevent sabotage as giving notice would jeopardize investigations by allowing suspects to destroy, conceal, or move incriminating evidence; and that in modern era, where there is, for example, electronic banking where money moves quickly, ex parte warrants and freezing orders are essential for effective investigation. 17.Regarding the scope of the warrant, it was urged that the same was specific in that it authorized investigators to enter Mr. Oloo’s residential and business premises to seize documents and property relevant to ongoing investigations; that seizure of electronic items like iPads and computers is justified because they contain "documents" and are subject to forensic analysis for evidence of financial crimes; that items not specifically named in a warrant may be seized if they reasonably believe those items were used to commit or conceal a crime. 18.It was submitted further that the search did not violate Mr. Oloo’s constitutional rights; that under Article 24 of the Constitution, rights can be limited to protect the public interest, specifically in the pursuit of combating corruption and ensuring the prudent management of public resources;and that the warrant was lawfully obtained after proof on oath of reasonable suspicion. 19.We have considered the rival arguments. In the exercise of its supervisory jurisdiction under Article 165(6) and (7) of the Constitution, the High Court is clothed with wide judicial discretion to “make any order or give any direction it considers appropriate to ensure the fair administration of justice.” In dismissing Mr. Oloo’s application, the learned Judge was exercising judicial discretion. Therefore, the issue for determination in this appeal is whether a basis has been laid for this Court to interfere with the exercise of judicial discretion by the Judge. In the famous words of Madan, JA. in the case of United India Insurance Company Limited Kenindia Insurance Company Limited & Oriental Fire & General Insurance Company Limited vs. East African Underwriters (Kenya) Limited [1985] eKLR:“The Court of Appeal will not interfere with a discretionary decision of the judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the judge to the various factors in the case.The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.” 20.With those principles in mind, Mr. Oloo’s complaints before the High Court regarding the search warrant, as already noted, were that the Magistrate’s Court gave overly broad authorization of search and seizure; that the search warrant did not limit the scope of the search; that there was disobedience by EACC in failing to return the warrant with promptitude after execution; that the Magistrate’s Court failed to comply with directions set out by the High Court regarding issuance, ex parte, of search warrants; that there was no demonstration before the Magistrate’s Court of reasonable evidence of commission of a crime by Mr. Oloo to justify the warrant; and that Mr. Oloo’s constitution rights were violated. 21.The learned Judge considered all those grievances and framed the issues for determination thus: whether the search and seizure warrant was vague and overbroad in scope; whether the Magistrate’s Court failed to indicate the limits of the search; whether EACC exceeded the scope of the search and seizure as indicated in the warrant; and whether there was a legal or factual foundation for the issuance of the warrant. Upon analysis, the Judge concluded:“…in this case, the investigations in question relate to offences alleged to have been committed at LBDA where, and the period when, the applicant had been Chairman. I am satisfied therefore that there was factual and legal foundation for the warrants…” 22.The Judge also rejected the complaint that the warrant was overbroad in scope observing that:“…it was clear about who was to carry out the search, against whom and at what locations. It was time bound, requiring that such documents as were seized should be brought before the court „forthwith‟ upon execution, which was done on 10th June 2019.” 23.The Judge also found that the High Court’s directions pertaining to ex parte applications for search warrants had been complied with as EACC “returned the warrant, issued on 29th May 2019, together with the inventory, on 10th June 2019” which was within the 14 days indicated in the directions of the High Court in that regard. 24.Whilst noting that the wording of the warrant fell short of clearly specifying the offence alleged and the provision of the law on which it was issued, the Judge stated that given the need to balance the public interest against the applicant’s rights, the technical reasons were not sufficient to nullify the warrant and the search and seizure carried out. The Judge however observed that there is need to issue practice directions and new templates on search warrants as the standard form developed in the past did not quite accord with changing times and the prescriptions in judicial precedents. The Judge held that Mr. Oloo had not demonstrated, and no evidence was placed before the court regarding the alleged violation of his constitutional rights. 25.It is clear to us that the Judge considered all matters placed before her before reaching the impugned decision. Beyond repeating the complaints, no proper basis has been laid by the appellant before this Court to warrant interference with the decision of the learned Judge. It is not shown that the learned Judge either misdirected herself in law or that she misapprehended the facts, or that she took account of considerations of which she should not have taken account, or that she failed to take account of considerations of which she should have taken account, or that her decision is plainly wrong. As the Supreme Court of Kenya stated in the case of Kibira vs. Independent Electoral & Boundaries Commission & 2 Others (Petition 29 of 2018) [2019] KESC 62 (KLR):“…in an appeal from a decision based on an exercise of discretionary powers, an Appellant has to show that the decision was based on a whim, was prejudicial or was capricious.” 26.For those reasons, the appeal fails and is hereby dismissed with costs to the 1st respondent. Dated and delivered at Nairobi this 15th day of May 2026.D. K. MUSINGA, (PRESIDENT)…………………………………….JUDGE OF APPEALS. GATEMBU KAIRU, FCIArb, CArb.……………………………………JUDGE OF APPEALP. NYAMWEYA……………………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR