[2008] KEHC 3902 (KLR)

[2008] KEHC 3902 (KLR)

The court held that section 56 of the Anti-Corruption and Economic Crimes Act is constitutional and consistent with sections 75(1) and 76(1) of the Constitution. The section is justified in a democratic society as it serves the legitimate public interest of investigating and preventing corruption and economic crimes. The court found that the safeguards within section 56, such as the right to challenge preservation orders, time limitations, and judicial discretion, adequately protect property rights and due process. The burden of proof placed on property owners is permissible under section 112 of the Evidence Act, as the facts of acquisition are within their knowledge. The application to...

Citation
[2008] KEHC 3902 (KLR)
Parties
Applicant: Kenya Anti-Corruption Commission; Respondent: Kuria Greens Limited; Respondent: Lands Limited; Respondent: Kimonda Limited; Respondent: Bernadette Muthira Gitari; Respondent: Major General (Rtd) Dedan Njuguna Gichuru; Respondent: Rebecca Njeri Karanja; Respondent: Philip Njuguna Gachuki; Respondent: Renege Project Limited
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
17 October 2008
Case Number
Miscellaneous Civil Application 587 of 2006
Procedural Posture
Miscellaneous Application / Ruling on Application to Discharge or Set Aside Preservation Order
Outcome
application dismissed with costs to the applicant
Legal Topics
Preservation Orders, Constitutional Rights Limitation, Burden of Proof, Public Interest, Property Rights, Anti Corruption Enforcement
Source Language
English
Administrative Law Land and Property Civil Procedure Preservation Orders Constitutional Rights Limitation Burden of Proof Public Interest Property Rights +1 more

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Parties

Kenya Anti-Corruption Commission

Applicant

Kuria Greens Limited

Respondent

Lands Limited

Respondent

Kimonda Limited

Respondent

Bernadette Muthira Gitari

Respondent

Major General (Rtd) Dedan Njuguna Gichuru

Respondent

Rebecca Njeri Karanja

Respondent

Philip Njuguna Gachuki

Respondent

Renege Project Limited

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application to Discharge or Set Aside Preservation Order

Legal Issues

  1. 1 Whether section 56 of the Anti-Corruption and Economic Crimes Act is inconsistent with sections 75(1) and 76(1) of the Constitution of Kenya.
  2. 2 Whether section 56 of ACECA undermines the principles of natural justice and equity.
  3. 3 Whether the preservation order can remain in force in perpetuity and is oppressive.

Ratio Decidendi

The court held that section 56 of the Anti-Corruption and Economic Crimes Act is constitutional and consistent with sections 75(1) and 76(1) of the Constitution. The section is justified in a democratic society as it serves the legitimate public interest of investigating and preventing corruption and economic crimes. The court found that the safeguards within section 56, such as the right to challenge preservation orders, time limitations, and judicial discretion, adequately protect property rights and due process. The burden of proof placed on property owners is permissible under section 112 of the Evidence Act, as the facts of acquisition are within their knowledge. The application to...

Court Disposition

application dismissed with costs to the applicant

Orders

  • The application dated 10th August, 2006 is dismissed with costs to the Kenya Anti-Corruption Commission.
  • The preservation order made on 28th July 2006 remains in force.