Ria v Ethics and Anti-Corruption Commission (Civil Appeal E107 of 2022) [2026] KECA 1488 (KLR) (24 July 2026) (Judgment)

**IN THE COURT OF APPEAL AT MOMBASA** **(CORAM: MURGOR, LAIBUTA & NGENYE, JJ.A.) CIVIL APPEAL NO. E107 OF 2022** **BETWEEN** **JOEL JOHN RIA APPELLANT** **AND THE ETHICS AND ANTI-CORRUPTION** **COMMISSION RESPONDENT** *(Being an appeal against the Judgment of the High Court of Kenya at Mombasa (Mativo, J.) (as he then was) delivered on his behalf by (Olga Sewe, J.) on 28th July 2022* *in* ***Constitutional Petition No. E013 of 2020)*** **\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\* JUDGMENT OF THE COURT** 1. In this appeal, ***Joel John Ria (the appellant),*** has challenged the Judgment of the High Court at Mombasa ***(Mativo, J.)*** *(as he then was)****)*** dated 27th July 2022 but delivered by ***Olga Sewe, J.*** on 28th July 2022 in Constitutional Petition No. E013 of 2020. 2. As a background, by way of a constitutional petition dated 20th November 2020 brought under Articles ***2,3,19,20,21,22,23,25,27,28,29,30,33,35,38,39,40,43, 46,60,61*** and ***64*** of the ***Constitution***, the appellant sued ***The Ethics and Anti-Corruption Commission (the respondent)*** alleging that it breached his constitutional rights. The appellant contested that, on 28th July 2010, the respondent, without a search warrant, entered his rented apartment in Nyali, Mombasa and seized various personal documents, land ownership documents and other properties, which were particularised as follows: **File Cabinet on 1st Floor** * 1. **Documents from File Marked ‘Assets’** 1. *Certificate of Insurance Declaration dated 14th February 2006 for MF 290 - 2 Tractor Reg No. 1976P41079 (copy).* 2. *NBK Deposit Slip No. F619106 (Original).* 3. *NBK Deposit Slip No. F619105 (Original).* 4. *NBK Deposit Slip No. C100875 (Original).* 5. *Copy of NBK Bankers Cheque No. 816490 dated 16/07/2008.* 6. *Original Sale Agreement between Yonas K. Moges on behalf of Abdulhamid Dor Mohamed and Ibabo Enterprises Limited.* 7. *Original letter from Maina Njaga & Co. Advocates to Mr. Joel John Ria & Harriet Harry Kapite dated 29/3/10.* 2. **Documents from file marked PAYE, NSSF,** **INSURANCE, INCOME TAX & WEALTH** 1. *Wealth Declaration Form from Ria Joel John signed on 21st December 2007 (copy).* 2. *Red Box File marked ‘FINANCE’ Folio 1 –* *209.* 1. *Green Box File marked ‘LAND’ 1 – 229.* 1. **From Mr. John Bob Ria’s room on ground floor** 1. *Scanned copy of Certificate of Incorporation No. C 140142 for Ibabo Enterprises Ltd.* 2. *Original KPLC Electricity Bills.* *c) A/c No. 2561143 – 01.* *d) A/c No. 0450261 – 03.* *e) A/c No. 2635377 – 01.* *f) A/c No. 2511605 – 01.* * 1. **From the 1st floor bedroom (study room)** 1. *Grey folder lying on top of the bed..* 2. *Original Title Deed No. Mombasa/Mwembelegeza/300* 3. *Original Title Deed No. Mombasa/ Mwembelegeza/301.* 4. *Original Title Deed No. Mombasa/ Mwembelegeza/1472.* 5. *Original Title Deed No. Mombasa/ Mwembelegeza/ 1473.* 6. *Original Title Deed No. Kilifi/ Nyalani/115.* 7. *Original Title Deed No. Kilifi/ Nyalani/766.* 8. *Original Title Deed No. Kilifi/ Nyalani/1192.* 9. *Original Title Deed No. Kilifi/ Nyalani/ 1245.* 10. *Original Memorandum and Articles of Association for Ibabo Enterprise Limited dated 5th June 2007.* 11. *Original VAT Certificate of Registration for Ibabo Enterprise Limited.* 12. *Original Certificate of Incorporation No. C140142 for Ibabo Enterprise Limited.* 13. *Original letter dated 15th January 2007 for KFS to PS Ministry of Transport.* 14. *Recurrent Expenditure Summary 2008/2009 dated 18th June 2008* 15. *Recurrent Expenditure Estimates 2008/2009 dated 18th June 2008.* 16. *Copy of letter dated 22nd January 2009 from SYWD to MD KFS.* 17. *Copy of letter dated 22nd September 2008 from Llyods Register to Schiffs – Vnd yachtwerft Desdan Gmph.* 18. *Copy of memo of appraisal document (Llyods Register) dated 22nd September 2008.* 19. *Copy of letter from Llyods Register dated 17th September 2008 to Schiff – Vnd.* 20. *Copy of Llyod Register letter dated* *22/09/2008 titled ‘Appendix’;* * + 1. *Copy of letter ref MD/ENG/2 dated 17th October 2008 from MD, KFS to the PS, Ministry of Transport.* 2. *Original letter from NBK to MD, KFS dated 9/10/2008 replying letter of credit Ref: PWLC 40/001 for Euro 3,783,470.* 3. *Copy of letter dated 19/09/2007 from SYWD to MD, KFS.* 4. *Copy of letter dated 08/01/2008 from MD, KFS to NBK.* 5. *Copy of letter dated 13/02/2007 from Tangermunde MBH & Co. KG to MD, KFS;* 6. *Original pay slip to John Joel Ria for February 2008.* *aa) Assorted documents folios 1 – 86;* *bb) Copy of Cheque No. 000190 dated 5th July 2007 payable to DT Dobie.* *cc)Original NBK Deposit Slips.* *i. E922997* *ii. H544501* *iii. H544500* *iv. H544502 v. C125746* *vi. H827193* 1. *174115* 2. *E410313 plus manual cheque deposit slip* 3. *No. 070347 dated 28th May 2007* 4. *No. 113829 dated 24th December 2007* 5. *No. 076146 dated 20th July 2007* *dd) Original Cash Deposit Slip for Co – Op Bank dated 21/09/2007.* *ee) Original Title Deed No.* *Kilifi/Nyalani/780.* *ff) Black Folder containing documents (Folio 1 -12;* *gg) Various documents folios (1 - 43).* *hh) Laptop: Toshiba Serial No. 38062144 Q without Extension Cable.* * 1. **Black Briefcase ‘MAKS’ containing** 1. *Red document wallet;* 2. *Grey KFS file ‘PROC OF FERRIES & RELATED DCS Folio’;* 3. *Envelope titled GOK CIRCULARS;* 4. *Bound copy of KFS Approved Budget for 2003/04;* 5. *Bound copy of KFS Approved Budget for 2005/06;* 6. *Bound copy of KFS Approved Budget for 2008/09 dated 24/2/2008;* 7. *Original contract agreement between KFS and M/s Schifflau - und Entwicklungsgeseldschaft;* 8. *Bound of copy of KFS report on funds for procurement of ferries and infrastructure improvements.* 1. After the seizure, the respondent filed a Notice of Motion dated 30th July 2010 seeking *ex-parte* preservation orders, to prevent the appellant from selling, leasing, charging, mortgaging, developing, subdividing, wasting, transferring or disposing of, or making other dealings with the seized properties. By an Order dated 30th July 2020, ***M. Ibrahim, J.*** *(as he then was),* granted the respondent *ex-parte* preservation orders, which were to last for six (6) months. 2. In opposition, the appellant, through an application dated 18th August 2010, prayed that the preservation orders be discharged. 3. The application was canvassed by way of written submissions and, by a ruling dated and delivered on 17th July 2012, Ibrahim, J. *(as he then was)* held that the preservation orders ceased to exist on 1st February 2011. 1. The appellant pleaded that he visited the respondent’s offices in Mombasa and Nairobi asking for the release of title documents of the seized properties to no avail. As at the time when the appellant filed the constitutional petition, he contended that 10 years had lapsed since the alleged unlawful, illegal and/or un-procedural seizure. 2. The appellant pleaded that, as a result thereof, he had suffered mental anguish and/or torture; that he had been rendered destitute as a result of withholding of his items, properties and/or documents; and that he had been deprived of employment opportunities due to unavailability of his original academic certificates. He further stated that the caution, caveat and/or restrictions registered on the properties had made it impossible for him to use them for his benefit and that of his family. 1. The appellant particularised the alleged violations and/or infringement of his rights and freedoms by the respondent summarily as follows: 2. *withholding his items and/or properties, documents, including his original academic and birth certificates for the last 10 years, thereby preventing him from securing any form of employment contrary to Articles 19, 20 and 21;* 3. *withholding his items and/or properties and documents, including title deeds for the parcels of land by lodging caution and/or caveat and/or restriction which has prevented him from dealing with the lands and freezing his bank accounts rendering his family destitute contrary to Articles 19, 20 and 21 of the Constitution;* 4. *causing mental torture and anguish contrary to Articles 25, 29 and 30 of the Constitution, which forbids torture, cruel, inhumane and/or degrading treatment as a result of withholding his academic certificates and title deeds;* 5. *discriminating him on ethnic background as a Jibana from the Mijikenda Tribe by withholding his academic certificates and title deeds contrary to Article 27 of the Constitution;* 6. *violating Article 28 of the Constitution by lowering his dignity as its actions caused him to stay without employment for 10 years;* 7. *subjecting him to slavery by unlawfully and/or illegally withholding his items, properties, original documents thereby rendering him hopeless in the society contrary to Article 20 of the Constitution;* 8. *preventing him from freedom of expression, including artistic creativity and/or freedom of scientific research by the inability to access his academic certificates to support his artistic creativity and/or scientific research on matters relating to his profession due to the unlawful and/or illegal withholding of his items and academic original certificates contrary to Article 33 of the Constitution;* 9. *failing to provide access to information by refusing to reveal information relating to his seized items, properties and/or documents contrary to Article 35 of the Constitution;* 10. *preventing him from his right to hold public office contrary to Article 38 of the Constitution;* 11. *preventing his right to movement and inability to start any form of investment due to unlawful withholding of his academic, birth and share certificates, log books and title deeds contrary to Article 39 of the Constitution;* 12. *preventing him from the right to ownership and/or acquisition of properties by unlawfully and/or illegally withholding his academic, birth and share certificates, log books and title deeds contrary to Article 40 of the Constitution;* 13. *preventing him from enjoying highest attainable healthcare, housing, sanitation, clean and safe water, social security and/or further education due to the unlawful withholding of his academic, birth and share certificates, log books and title deeds contrary to Article 43 of the Constitution.* 14. *infringing his consumer rights under Article 46 of the Constitution;* 15. *failing to provide written reasons for withholding his academic, birth and share certificates, log books and title deeds and freezing his bank accounts contrary to Article 47 of the Constitution; and* 16. *preventing him from using his land by placing caution, caveat and/or restriction contrary to Articles 60, 61 and 64 of the Constitution.* 17. In view of the above alleged violations, the appellant prayed for the following reliefs: *“ i. A declaration that the appellant’s right and freedoms as envisaged and/or as provided under the Constitution and in particular the* *aforementioned Articles have been violated and/or infringed by the respondent.* * 1. *A declaration that the appellant’s rights and freedoms have been violated and/or infringed by the respondent by the unlawful and/or illegal seizure and withholding and/or continued withholding of the appellant’s items and/or properties and/or documents including original academic certificates and original title deeds as contained in the inventories and consequently an order be made for immediate rerun of the said properties and/or items and/or documents including academic certificates, birth certificate, share certificates, log books and title deeds seized from the appellant on 28th July 2010 as per the said inventories;* 2. *An order (s) for compensation in form of punitive and/or exemplary and/or general damages be made for the mental torture and/or anguish and/or psychological injury and/or health and sexual issues or conditions suffered by the appellant as a result of the respondent’s actions herein which have gone on for 10 years.* 3. *Costs of the petition.* 4. *Any other relief and/or remedy the court may deem fit and just to grant in the circumstances.”* 1. Opposing the petition, the respondent, through its investigating officers, ***Ignatius Wekesa*** and ***Abdulhamid Low,*** filed replying affidavits sworn on 18th December 2020. The contents of the replying affidavits are similar and, in no particular order of preference, we shall consider the one deposed by Mr. Wekesa. He deposed that, pursuant to the respondent’s mandate under ***Article 252(1) (a) (d)*** of the ***Constitution*** as read with ***Section 11*** of the **Anti- Corruption and Economic Crimes Act, Cap. 65 *(‘the ACECA’)*** to undertake investigations into allegations of corruption and economic crimes and seize properties where appropriate, it undertook to investigate allegations of corruption and economic crimes touching on procurement of two ferries by ***Kenya Ferry Services (‘KFS’)*** in respect of Tender No. KFS/FV/068/2004. 1. Mr. Wekesa deposed that six bidders submitted their bid documents for the acquisition of two new ferries at a cost of Kshs.644,000,000 (Euro 5,904,964) each; that the tender was awarded to *M/s. Sciffbau - Und Entwincklungs Gesellschaft Tangernude* of the Republic of Germany ***(the contracted company),*** and a contract between the contracted company and KFS was signed in February 2007; and that the contracted company was expected to build and deliver the two ferries within 13 months from the date of the contract. 2. He went on to state that the contracted company in turn sub- contracted *M/s Schiffs Und Yachtwerft DD GmBH* of Dresden, Germany ***(the second contracted party)*** to deliver the said two ferries; that the said sub-contract was entered into without approval of the relevant Kenyan Government entities; that the dimensions of one of the ferries was unilaterally changed from the length of 48 meters to 60 meters and width of 13 meters to 16.25 meters, leading to an increase in costs; and that the Ministry of Transport remitted to KFS a sum of Kshs.1,805,120,000 in respect of the procurement of the two ferries and, in turn, KFS made a payment of Kshs.1,288,000,000 to the second contracted party despite there being no contract between it and KFS, and contrary to the provisions of the ***Public Procurement and Asset Disposal Act, Cap. 412C.*** 3. Mr. Wekesa further deposed that the appellant was the Accounting Officer at KFS, and that he facilitated the irregular payment; that Kshs.500,000,000 could not be accounted for; and that the appellant owned several properties which he could not account for as to their acquisition. Mr. Wekesa lamented that the appellant refused to record a statement and had been uncooperative with the respondent’s investigating team; that the resignation of the then respondent’s Chairperson, Mumo Matemu, on 12th May 2015 and Commissioners Jane Onsongo and Irene Keino on 31st March 2015 and 30th April 2015 respectively, resulted in the respondent not being properly constituted so as to enable it carry out its investigative mandate from the period between 31st March 2015 and 17th January 2016. 1. The respondent stated that the appellant, in his petition, did not disclose in details how his constitutional rights under the provisions of ***Articles 19, 20, 21, 25, 27, 28, 29, 30, 33, 35, 38, 40, 43, 46, 47, 60, 61*** and ***64*** of the ***Constitution*** were violated; that the respondent seized the appellant’s documents pursuant to a search warrant dated 27th July 2010; and that, therefore, no cause of action had been disclosed against the respondent as a result of freezing of the appellant’s bank accounts and withholding of his original birth and academic certificates. In view thereof, the respondent contended that the orders sought were legally untenable and, accordingly, urged that the petition be dismissed for being an abuse of the court process. 2. In rejoinder, the appellant filed a supplementary affidavit sworn on 20th October 2021 disputing the respondent’s response. According to the appellant, it was malicious of the respondent to allude that its investigations began in the year 1996 when he joined KFS while at the same time it claimed that the investigations were centred around alleged corrupt activities which took place in the year 2007. The appellant faulted the respondent for not providing documentary evidence of its claims against him. 1. In a further affidavit sworn on 15th November 2021, the appellant insisted that his original birth, share and academic certificates and logbooks were in the respondent’s possession. 2. On the other hand, the respondent, through Abdulhamid Low, also filed further affidavits dated 4th November 2021 and 25th November 2021 respectively denying that it seized the appellant’s original birth, share and academic certificates and logbooks. 3. The petition was canvassed by way of written submissions filed by both parties. The learned Judge ***(Mativo, J.)(****as he then was)*) conceded that the preservation orders lapsed since they were not extended, and that a competent court affirmed this position. As to the complaint by the appellant that the respondent took too long to conduct and complete investigations against him, and to which the learned Judge agreed, the court nonetheless observed that the complaint was dislodged by the fact that the law still required him to explain the source of his wealth as had been requested of him; and that this observation was anchored on the fact that a person should explain the source of wealth that is not commensurate with his/her known legitimate source of income; that ***Section 55*** of the ***ACECA*** allows commencement of proceedings against a person who cannot explain his assets satisfactorily; that the appellant should have tabled evidence to prove ownership of the properties in issue; that the appellant was the author of his own misfortunes by not availing himself for 10 years to record a statement; and that the petition was intended to shield him from offering an explanation as to the source of his wealth as required by law. The learned Judge cautioned himself that, should he grant the orders sought, it would undermine implementation of the objectives of ***ACECA.*** 1. On the alleged violations, the learned Judge held that it was not enough to cite the provisions of the Constitution and claim their violation without proof; that, inasmuch as ***Article 40(6)*** of the ***Constitution*** provides for the right to property, it does not extend to property found to be unlawfully acquired; and that the burden to demonstrate that the seized properties were legally acquired lay with the appellant, and that it is only after discharging this burden that the appellant could mount a claim for alleged violations and, even then, establish that the respondent acted outside the law and abused its powers. The learned Judge found that the appellant’s petition dated 20th November 2020 was unmeritorious and dismissed it with an order that each party bears their own costs. 2. That decision aggrieved the appellant whereupon he commenced this appeal which is anchored on eight (8) grounds by which he contends that the learned Judge erred in law and in fact by: 1. ***ignoring a decision made by Mohamed Ibrahim,*** ***J. (as he then was) on 17th July 2012 to the effect that the continued seizure and/or withholding of his (the appellant) documents and/or properties was illegal as it was beyond the permissible 6 months, and that the absence and/or non- existence of extended preservation orders did not require the setting aside of orders issued on 30th July 2010 which had a lifespan of 6 months;*** 1. ***ignoring the fact that no evidence was tendered to prove investigations were being undertaken and therefore the applicability of Sections 55 and 56 of the ACECA was irrelevant in the matter;*** 2. ***failing to apply Section 26 of the ACECA which requires a notice be issued and in the absence thereof, it was erroneous for the Judge to accept the narrative by the respondent that investigations were ongoing;*** 3. ***failing to appreciate that he was supposed to offer an explanation regarding his wealth upon formal demand from the respondent within 6 months of the preservation orders in line with Section 28 as read with Section 56 of the ACECA and failure by the respondent to produce evidence on the matters in question as per Sections 35 and 36 of the ACECA confirms the non-existence of on-going investigations against the appellant;*** 4. ***dismissing the petition on the basis that he (the appellant) failed to record his statement for 10 years as no evidence was tendered that a statement was sought by the respondent from him and he refused to offer such a statement;*** 5. ***failing to appreciate that the respondent was mandatorily required under Section 2 as read with Section 45 of the ACECA to balance its role*** ***on investigations and in its exercise of its powers, it does not violate his rights and fundamental freedoms; and*** 1. ***dismissing his petition on the basis of unproved allegations of on-going investigations.*** 2. The appellant thus prays that the appeal be allowed by setting aside the Judgement of the High Court and substituting therefor an order allowing the appellant’s petition with costs; and that the respondent bears the costs of the appeal. 3. We heard this appeal on 10th December 2025. Learned counsel ***Mr. Kenga*** appeared for the appellant. There was no representation for, and by, the respondent despite being duly served with a hearing notice. The respondent did also file any written submissions. 4. Mr. Kenga orally highlighted the appellant’s written submissions dated 27th May 2025. Counsel submitted that, in the impugned judgement, while the learned Judge appreciated that the investigations took an inordinately too long a period, he faulted the appellant for either refusing and/or failing to record a statement with the respondent in line with ***Section 55(2)*** as read with ***Section 26(1)*** of the ***ACECA***. According to counsel, the burden of commencing the investigations lay with the respondent, and the same could not be shifted to the appellant; and that, therefore, it was an error on the part of the learned Judge to blame the appellant for not going to record a statement, yet the burden of proving that he refused to record a statement lay with the respondent. 5. It was also submitted that the preservation orders obtained by the respondent on 30th July 2010 lapsed on 30th January 2011 and were not extended; that, the orders having lapsed, it was obvious that no investigations could have been ongoing against the appellant; that, in his ruling delivered in 2012, Ibrahim, J. *(as he then was)* castigated the respondent for violating the appellant’s fundamental rights not to be deprived of any interest in his property by the delayed investigations; that, even after writing letters to the respondent to release the properties, the respondent did not respond to the said letters, or even ask the appellant to record a statement; that there was ill motive and/or malice on the part of the respondent to seize some of the appellant’s properties which were acquired before the subject investigations commenced; and that some of the properties had even moved to third parties who, unfortunately, were not being investigated. Reliance was placed on the Supreme Court decision in ***Communication Commission of Kenya & 5 others vs Royal Media Services & others (2014) eKLR***; and High Court decisions in ***Kenya Anti-Corruption Commission vs. John Joel Ria & 17 others 212 KEHC 2451(KLR)*** and ***Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (Interested Party); Kenya Human Rights Commission & another (Amicus Curiae) [2012] KEHC 2480 (KLR)*** for the proposition that, where conservatory order, limited to 6 months under Section 56 of the ACECA is issued without any extension, cannot be relied upon to continue withholding a person’s properties and/or items or freezing his bank accounts or embargoing land title deeds or certificates. 1. Finally, the appellant urged us to uphold the rule of law and the Bill of Rights by finding that it was unjust and a breach of the Constitution that the investigations had taken 15 years to be completed, thereby denying him access to academic certificates, banking services, employment and access to his property. In this regard, the decision of the High Court in ***Republic vs. Attorney General & another, ex-parte Kamlesh Pattni (2015) eKLR*** was cited where the court condemned a delay in investigations of 11 years to amount to being oppressive and in violation of a person’s fundamental rights. 2. We have considered the record of appeal, the oral and written submissions by the appellant, the authorities relied upon and the law. This being a first appeal, our mandate is prescribed by ***Rule 31*** of this ***Court’s Rules, 2022***, being to re-appraise and re-evaluate the evidence that was adduced before the trial court and to draw inference of fact. Taking to mind this mandate, and having reconsidered the record, we have isolated the sole issue that falls for determination to be, *whether the delayed investigations against the appellant by the respondent was justified and, depending on our finding on this question, what the consequences thereof are in terms of the order(s) that commend themselves for us to issue.* 3. We must first observe that, in performing its investigative mandate for economic crimes related matters, the respondent is guided by the provisions of ***Section 11*** of the ***Ethics and*** ***Anti-Corruption Commission Act (the EACC Act), Cap. 7H,*** which states as follows: ***11. Additional functions of the Commission*** 1. ***In addition to the functions of the Commission under Article 252 and Chapter Six of the Constitution, the Commission shall-*** 1. ***in relation to State officers; —*** 1. ***develop and promote standards and best practices in integrity and anti-corruption;*** 2. ***develop a code of ethics;*** 2. ***work with other State and public offices in the development and promotion of standards and best practices in integrity and anti- corruption;*** 3. ***receive complaints on the breach of the code of ethics by public officers;*** 4. ***investigate and recommend to the Director of Public Prosecutions the prosecution of any acts of corruption, bribery or economic crimes or violation of codes of ethics or other matter prescribed under this Act or any other law enacted pursuant to Chapter Six of the Constitution;*** 5. ***recommend appropriate action to be taken against State officers or public officers alleged to have engaged in unethical conduct;*** 6. ***oversee the enforcement of codes of ethics prescribed for public officers; (g)advise, on its own initiative, any person on any matter within its functions;*** 2. ***raise public awareness on ethical issues and educate the public on the*** ***dangers of corruption and enlist and foster public support in combating corruption but with due regard to the requirements of the Anti-Corruption and Economic Crimes (***[***Cap. 65***](https://new.kenyalaw.org/akn/ke/act/2003/3)***) as to confidentiality;*** 1. ***subject to Article 31 of the Constitution, monitor the practices and procedures of public bodies to detect corrupt practices and to secure the revision of methods of work or procedures that may be conducive to corrupt practices;*** 2. ***institute and conduct proceedings in court for purposes of the recovery or protection of public property, or for the freeze or confiscation of proceeds of corruption or related to corruption, or the payment of compensation, or other punitive and disciplinary measures including proceedings for the recovery of property or proceeds of corruption located outside Kenya; and*** 3. ***perform any other functions and exercise any other powers conferred by an Act of Parliament.*** 4. The respondent is empowered to receive complaints on breach of conduct by State Officers, investigate and recommend to the Director of Public Prosecutions to commence prosecution proceedings on any act of corruption, bribery, economic crimes or violation of the Code of Ethics. 5. The appellant was employed by Kenya Ferry Services ***(KFS),*** which is now part of the Kenya Port Authority, as a Managing Director. KFS being a public entity, meant that the appellant was a State Officer, and therefore subject to investigations pursuant to ***Section 11*** of the ***EACC Act***. 1. The fact that the appellant’s personal properties were seized is not in dispute. We have perused the record of appeal and are satisfied that, prior to the search in his home, the respondent filed an application before the Chief Magistrate’s Court at Mombasa, being ***Mombasa Misc. Criminal Case No. 71 of 2010,*** and obtained a search warrant dated 27th July 2010. The validity of the search warrant is not in contest. On 28th July 2010, two officers from the defunct Kenya Anti-Corruption Commission, namely Njeri Mburu and Abdulhamid Low, collected various documents from the appellant’s home and prepared an inventory thereof. 1. Guided by the provisions of ***Section 56(1)*** of the ***ACECA,*** which provides that: ‘*On an ex parte application by the Commission, the High Court may make an order prohibiting the transfer or disposal of or other dealing with property on evidence that the property was acquired as a result of corrupt conduct’,* the respondent filed ***Mombasa High Court Misc. Application No. 314 of 2010*** dated 30th July 2010 seeking *ex-parte* preservation orders of the seized properties. 2. ***Section 56(3)*** of the ***ACECA*** provides that the order shall have effect for six months, and may be extended by the court on the respondent’s application. The preservation orders granted on 30th July 2010 were to subsist for a period of 6 months, and lapsed on 1st February 2011, there having being no extension thereof. Under ***Section 56(4)*** of the ***ACECA,*** a person aggrieved by the preservation orders is allowed to file an application within 15 days to have them discharged. 1. The appellant, *vide* an application dated 18th August 2010 sought discharge of the preservation orders, specifically for the assets, vehicles, accounts and/or chattels acquired before February 2007, which was not a period under investigation. The properties in issue were listed as follows: ***i. MN/I/10400;*** * 1. ***Mtwapa LR No. 1;*** 2. ***House on Mtwapa LR No. 1;*** 3. ***Kilifi/Nyalani/1192;*** 4. ***Kilifi/Nyalani/1245;*** 5. ***Kilifi/Nyalani/766;*** 6. ***Kilifi/Nyalani/115;*** 7. ***Kilifi/Nyalani/780;*** 8. ***Mombasa/Mwembelegeza/1473;*** 9. ***Mombasa/Mwembelegeza/1472;*** 10. ***Mombasa/Mwembelegeza/301;*** 11. ***Mombasa/Mwembelegeza/300;*** 12. ***KAW 301N – Toyota Saloon;*** 13. ***KAY 4951 – Toyota VX;*** 14. ***KAU 553L – Nissan D/Cab, Pick Up;*** 15. ***KAR 247Y, Land Rover.*** 1. The learned Judge, Ibrahim, J. *(as he then was),* considered it irrelevant to go into the merits of the application since the preservation orders, without any further extension, lapsed on 1st February 2011. It was his considered view that the lapse of time was sufficient for the respondent to have concluded its investigations against the appellant. The court also opined that the appellant’s fundamental rights must be balanced so that he was not deprived of any interest in his property. The record confirms that the appellant, through his counsel, by letters dated 24th September 2012, 21st April 2013, 9th July 2014 and 23rd July 2014 addressed to the respondent, asked for release of the seized properties as documented in the inventory of 28th July 2010. 1. The respondent is empowered under ***Section 13(2) (c)*** of the ***EACC Act*** to conduct investigations on its own initiative or following a complaint made by a person. An investigator under ***Section 23(4)*** of the ***ACECA*** is empowered to conduct investigations as a police officer would in investigation of offences relating to corruption and economic crimes as follows: ***The provisions of the Criminal Procedure Code (Cap. 75), the Evidence Act (Cap. 80), the National Police Service Act (Cap. 84) and any other law conferring on the police the powers, privileges and immunities necessary for the detection, prevention and investigation of offences relating to corruption and economic crime shall, so far as they are not inconsistent with the provisions of this Act or any other law, apply to the Secretary and an investigator as if reference in those provisions to a police officer included reference to the Secretary or an investigator.*** 1. Investigations into economic crimes acts are criminal in nature. One of the important tenets in dispensation of justice under the criminal justice system is the legitimate expectation that investigations will be conducted in a speedy manner so as to avert prejudice to the person under investigation. ***Article 47(1)*** and ***(2)*** of the Constitution provides: 2. ***Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.*** 3. ***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.*** 4. Reading through the provisions of the ***EACC Act*** and the ***ACECA,*** we find that they are silent on timelines within which investigations are required to be concluded against individuals under investigations. However, the Supreme Court in ***Ethics and Anti-Corruption Commission &*** ***another*** ***vs.*** ***Ojienda*** ***&*** ***2*** ***Others*** ***(2022)*** ***KESC 59 (KLR)*** settled this vexed issue by finding that the respondent’s powers to investigate cannot be limited and described within the provisions of ***Article 47*** of the ***Constitution***. It was held that the respondent possesses special powers within a specific legal regime and, as such, it is not restricted in terms of timelines the particular period within which the investigations should be completed. The Court went on to find that, if timelines for completing investigations were set, it would be tantamount to interference with the respondent’s independence, and thereby affect its overall mandate in conducting investigations. 1. A brief synopsis of facts in the ***Ethics and Anti-Corruption Commission & another vs. Ojienda & 2 Others*** case *(supra)* is that, Prof. Ojienda urged that the actions by the respondent of obtaining orders to investigate his bank account without informing him prior to the intended investigations, amounted to infringement of his rights to privacy, property, fair administrative action and fair hearing under the Constitution. The Court, in addressing the issue as to whether investigations by the respondent constituted an administrative action within the meaning of ***Article 47*** of the ***Constitution,*** held at paragraph 58 of the judgement: ***“Does the 1st appellant’s investigative powers fall within the corners of this definition? Part IV of the ACECA specifically provides for the 1st appellant’s investigative powers. The powers granted therein include powers, privileges and immunities of a Police Officer under section 23(3), to search premises under section 29, to apply for surrender of travel documents under section 31, to arrest persons under section 32 amongst others. 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 exercising administrative action? On the contrary, these are special powers conferred by a specific legal regime, to be exercised for a special purpose.”*** 1. The Supreme Court has thus authoritatively clarified that the respondent’s investigative powers cannot be described as administrative action within the meaning of ***Article 47*** of the ***Constitution***. This being the position, we think that the basic canons of fair administrative action, which are lawfulness, procedural fairness, reasonableness, expedition and efficiency, can be applicable in certain aspects without necessarily making investigative powers an administrative action within the meaning of ***Article 47***. We opine that these principles apply on a case to case basis. In this case, the respondent’s reasons for the delay in concluding investigations against the appellant were alluded to be: that at the time the Commission was not properly constituted so as to be able to undertake its operations; there was some information which the respondent was awaiting from Germany; and that the appellant had failed to avail himself for purposes of recording of a statement. The question that then begs is: *did these reasons amount to excusable delay or to intended, deliberate and inordinate delay?* 1. The Supreme Court in ***Jirongo vs. Soy Developers Ltd & 9 others (2021) KESC 32 (KLR)*** had an occasion to determine whether inordinate delay infringed on the appellant’s right to fair trial as follows: ***“The question of delay with respect to the lodging of criminal prosecutions has been addressed by our courts in several matters. The leading persuasive decisions on the subject are the High Court cases of Githunguri vs Republic (1986) KLR 1 and Republic vs Attorney General & another ex parte Ng’eny (2001) KLR 612, which both Superior Courts relied on.*** ***In*** [***Githunguri vs Republic***](https://new.kenyalaw.org/akn/ke/judgment/kehc/1986/44) ***(supra), the court stated as follows:*** ***‘In this instance the delay is said to have been nine years, six years and four years. The court has not been told why these offences have been unearthed after they remained buried for so long. What caused turning up the soil! It is too long, too much of delay. The Attorney-General is not bound to tell the court the reason but it would have made us knowledgeable if told.*** ***We are of the opinion that to charge the applicant four years after it was decided by the Attorney-General of the day not to prosecute, and thereafter also by neither of the two successors in office, it not being claimed that any fresh evidence has become available thereafter, it can in no way be said that the hearing of the case by the court will be within a reasonable time as required by section 77(1). The delay is so inordinate as to make the non-action for four years inexcusable in particular because this was not a case of no significance, and the file of the case must always have been available in the Chambers of the Attorney-General. It was a case which had received notable publicity, and the matter was considered important enough to be raised in the National Assembly. We are of the opinion that two indefeasible reasons make it imperative that this application must succeed. First as a consequence of what has transpired and also being led to believe that there would be no prosecution the applicant may well have destroyed or lost the evidence in his favour. Secondly, in the absence of any fresh evidence, the right to change the decision to prosecute has been lost in this case, the applicant having been publicly informed that he will not be prosecuted and property restored to him. It is for these reasons that the applicant will not receive a square deal as explained and envisaged in section 77(1) of the*** [***Constitution***](https://kenyalaw.org/kl/fileadmin/pdfdownloads/TheConstitutionOfKenya.pdf)***. This prosecution will therefore be an abuse of the process of the Court, oppressive and vexatious.’*** ***It is in the above regard trite that there is no limitation of time to institute and prosecute criminal offences but as stated in*** [***Githunguri,***](https://new.kenyalaw.org/akn/ke/judgment/kehc/1986/44) ***where the delay has the effect of denying a suspect the legal tools to mount a credible defence, then the High Court is properly mandated by the Constitution to step in and stop the intended prosecution. The court assesses the effect of unreasonable delay from the point of securing a fair trial of the accused and this can only come after the charge is formally laid. It would be speculative in my view to stop an investigation because not every investigation will yield a charge before the court. The court cannot purport to monitor the timelines of an investigation such as this with multi-dimensional aspects.*** ***59.This court also notes that this investigation involves a serious economic crime which is attracting a colossal amount of money and the facts are complex extending to other jurisdictions. The court opines that it would not be in public interest to terminate this kind of investigation prematurely and should thus be allowed to proceed to its ultimate end.”*** (Emphasis ours). 1. In adding its voice to this discourse, this Court in ***Ethics and Anti-Corruption Commission vs. County Government of Kitui (2025) KECA 311 (KLR),*** discussed the consequences of delayed investigation by the respondent as follows: ***“A person alleging that an investigation is slow bears the onus of showing that, given the nature of the particular investigation, the investigating body could have been more expeditious and speedy in commencing and concluding an investigation. Sometimes the delay can be so extensive that the length of*** ***delay itself is overt and sufficient proof of inordinate delay. There is then a second requirement informed by the public policy objective that it is in the interest of the public that crime is investigated and perpetrators of crime brought to book. This rings true in crimes involving corruption and other economic crimes in a country such as ours where corruption is perverse and endemic. This second limb is that a person who seeks to halt a criminal investigation on account of delay must, in addition, demonstrate that the speed of the investigations is prejudicial to him or her. The two facets strike a balance so that public interest does not overawe the private rights of the suspect and vice versa.*** ***Prejudice could be in many forms. It could be that the delay in closing an investigation compromises the ability of the suspect to mount a defence when eventually charged or the psychological stress and harm that a long- drawn investigation may cause to a suspect or the reputational cost that may result from a long unresolved investigation or the disruption of the life of a suspect who is forced to endure, attend and pay attention to an unending investigation. One can think of other forms of prejudice.”*** 1. Keeping those principles in mind, and as we have observed herein above, an investigator under ***Section 23(4)*** of the ***ACECA*** is empowered to conduct investigations as a police officer would in the investigation of offences relating to corruption and economic crimes. With certainty, a police officer will be expected in the course of his investigations to summon the person he considers to be under investigation together with such other witness(es) to record statements or, if such person or persons are elusive, seek a warrant of arrest against them. 1. The reasons given by the respondent for the delay in completing investigations against the appellant, in our view, falters in the face of the facts before us. A careful perusal of the record of appeal reveals that there is nothing on record to show that the investigators sought after the appellant to record statements, or undertook or have undertaken this far separate investigations on the alleged fraudulent acquisition of the ferries; and that the appellant still remains to be a person of interest. 2. It is factual and in the public domain that the then respondent’s Chairperson, Mr Mumo Matemo, resigned on 12th May 2015 and two Commissioners left office on 31st March 2015 and 30th April 2015 respectively. The respondent commenced the investigations by seizure of the appellant’s assets on 12th July 2010. At this time, the respondent was still fully constituted and operational, and there was a five- year gap already for it to conduct its investigations. Even thereafter, the respondent has always been fully operational. 3. We make a further observation that the respondent’s claim that they were awaiting some information from Germany is unsupported by evidence. However, there is no correspondences in existence between the respondent and the responsible authorities from Germany to prove that some information was being sought. In truth, the respondent has not exhibited agility in the progress of conducting its investigations in this matter. It has merely slept on its job. There is entirely no justification by the respondent of holding the appellant’s seized properties, 16 years down the line without a justifiable explanation. 1. As an institution, the Judiciary holds the responsibility of maintaining and upholding the rule of law and, at the same time, must not countenance behaviour that threatens a violation of human fundamental rights and the rule of law. The magnitude of corruption in public offices is incompatible with the legitimate expectation of the dire service delivery to members of the public to the required standards. We associate with, and fully adopt, the findings of the Supreme Court of India in ***Civil Appeal No. 1193 of 2012 - Dr. Subramanian Swamy vs. Dr. Manmohan Singh & Another, AIR 2012 SC 1185*** that: ***“It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.”*** 1. While recognising that corruption is a societal and institutional vice world over, we cannot fail to also take cognizance of the fact that corruption poses grave danger in our country and to the rule of law. And, it is for this reason, we shall do our best to balance the private interests of the appellant of upholding his right to property against the public interest of the respondent in tackling corruption cases. For the fact that the respondent has never summoned the appellant to record a statement, consequent to which it would have commenced investigations against him close to two decades down the line, we think that there can be no justification for continued withholding of his documents or freezing of his accounts, or even embargoing his titles. However, purely on account that this is also a matter of public interest in that investigations related to a public entity (KFS), we are inclined to accord the respondent the opportunity to take the necessary action if it is so minded, to bring its investigations to a logical conclusion without further delay. 1. Doing the best we can in the circumstances, we find and hold that the appeal partially succeeds, and we issue the following orders: 2. ***The respondent be and is hereby granted 90 days within which to complete investigations against the appellant, if it so wishes.*** 3. ***That failing to comply with (a) above,*** 1. ***the appellant’s frozen bank account shall be forthwith unfrozen.*** 2. ***the restrictions registered against the titles to his properties or properties related to the subject investigation shall be forthwith lifted.*** 3. ***all title deeds and personal documents seized from the appellant and held by the*** ***respondent shall be forthwith released to him.*** 1. In view of the nature of this appeal, and the same having partially succeeded, we order that each party do bear their own costs. **Dated and delivered at Mombasa this 24th day of July, 2026.** **A. K. MURGOR** **…………………............…..** **JUDGE OF APPEAL** **DR. K. I. LAIBUTA CArb, FCIArb.** **…………………............…..** **JUDGE OF APPEAL** **G. W. NGENYE-MACHARIA** **…………………............…..** **JUDGE OF APPEAL** *I certify that this is the true copy of the original* *signed* ***DEPUTY REGISTRAR***