[2022] KEHC 12490 (KLR)

Kinyua & 2 others v Ethics & Anti-Corruption Commission (Anti-corruption and Economic Crimes Miscellaneous E035 of 2021) [2022] KEHC 12490 (KLR) (Anti-Corruption and Economic Crimes) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12490 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Anti-Corruption and Economic Crimes

Anti-corruption and Economic Crimes Miscellaneous E035 of 2021

EN Maina, J

June 9, 2022

Between

Jeremiah Kamau Kinyua

1st Applicant

Theresa Njeri Muriuki

2nd Applicant

Cherya Enterprises Limited

3rd Applicant

and

Ethics & Anti-Corruption Commission

Respondent

Ruling

Introduction 1. By their application dated 30th November 2021, the applicants, Jeremiah Kamau Kinyua, Theresa Njeri Muriuki and Cherya Enterprises Limited are challenging the preservation orders dated 12th November 2021 issued at the behest of the Ethics and Anti-Corruption Commission and which were to persist for a period of six months. The same were issued to enable the Commission to conduct investigations on the 1st applicant’s alleged disproportionate income as compared to his assets. The applicants seek orders as follows:-“iSpentiiThat this Miscellaneous Application be consolidated with HCACEC Misc App No. E029 of 2021iiiThat pending the hearing and determination of this application, the Honourable Court do issue an order directing the respondent to release the assets and documents seized on 9th June 2021 and listed in the inventory but not forming part of the orders issued on 7th October and 12th November 2021 respectively.ivThat the orders issued by this court on 12th November 2021 be set aside, varied and/or quashedvSuch further or other orders the Honourable Court may deem fit in the circumstancesviThat the costs of the application be provided for.”

Applicant’s Case 2. The application is supported by the grounds on its face as well as the supporting affidavit of Jeremiah Kamau Kinyua, the 1st Applicant, sworn on 30th November 2021. The deponent decries the manner in which the impugned orders were obtained and states that the Commission/Respondent misrepresented facts with an intention to derail and defeat the review application filed in HC ACEC Misc App. No E029 of 2021 which was due for ruling on 27th January 2021. He states that it is not true that the applicant’s Originating Motion arises from the discovery of new assets and contends that the application was filed so as to get the orders in question which is an abuse of court process. He avers that had the listed properties been mentioned in ACEC Misc Application No. E029 of 2021 the applicants would have provided sufficient information to explain how they were acquired.

3. The applicant pleads further that the presumption that the only income he has received over the sixteen years in issue could only come from his salary and not other sources is a gross misrepresentation and misinterpretation of facts. He states that during the entire period he was employed at the Kenya Revenue Authority allegations of unexplained wealth were never imputed upon him; that he was cleared to resign and given a clean certificate of service as a sign of propriety and honour, and that the raid conducted at his residence on 9th June 2021 at 5am and disguised as investigations on embezzlement was outrageous and uncalled for.

4. The 1st Applicant assert that the preservation order has deprived him of reasonable living expenses causing undue hardship to himself and his family; that it has prejudiced his business and personal affairs thus subjecting him to financial embarrassment; that his life and business have stalled due to his inability to meet urgent obligations as they fall due and in addition, that the Commission’s Originating Motion does not disclose any allegations of corruption, bribery and abuse of office so as to create a nexus between the items seized and any unlawful conduct on his part.

5. In his submissions filed on 19th April 2022 Learned Counsel for the the applicants cited Article 31 of the Constitution on the right to privacy; Article 40 on the right to own property, Article 47(1) and (2) on expeditious, efficient, lawful, reasonable and procedurally fair administrative action with written reasons in case a person is likely to be adversely affected by the action and Sections 55 and 56(4) and (5) of the Anticorruption and Economic Crimes Act on the right to challenge evidence and the court’s power to discharge and vary orders obtained under Section 56.

6. Counsel faulted the Commission/Respondent for initially indicating that the 1st applicant had accumulated assets worth Kshs. 147 million since his employment in 2005 then raising the figure to Kshs. 192 million in their current application. Counsel took issue with the fact that the 1st Applicant’s Assets and Liabilities declaration (wealth declaration) forms were not annexed to the application. Counsel argued that all assets and documents should be returned to the Applicant’s. Counsel asserted that the cash seized from the residence four months after the 1st applicant’s resignation has not been connected to his period of employment and neither has the Commission demonstrated that it is illegal for the applicants to hold such sums and therefore the same ought to be returned. Counsel relied on the following authorities to buttress his propositions: Republic v Director of Public Prosecutions and Another Ex parte Chamanlal Vrajlal Kamani & 2 Others [2015] eKLR

Republic v Attorney General ex parte Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001

Stanley Munga Githunguri v Republic [1986] eKLR

7. Counsel also cited the cases of Gordon Ngatia Muriuki v Director of Public Prosecutions & 2 Others (2014) eKLR and Samura Engineering Limited & 10 Others vs Kenya Revenue Authority (2012) eKLR to support the submission that the impugned search and seizure and obtaining of the subsequent preservation orders did not adhere to set guidelines.

Respondents’ Case 8. As reflected by the court record, the respondent did not file a response to the present application. On 4th April 2022 Ms. Wambugu, Learned Counsel for the Commission/Respondent informed this court that there would be no need to prosecute the application as it will have been overtaken by events as the impugned preservation orders which were obtained pending investigations were set to lapse on 12th May 2022. On 16th May 2022 Ms Wambugu reiterated to this court that the Commission/Respondent had filed a forfeiture application which subsumes the assets the subject of the present application and stated that this file ought to be closed. However, Mr. Mbichire Learned Counsel for the applicants insisted on a ruling on the application hence this ruling.

Analysis and Determination 9. The issues arising for determination are whether the applicants are entitled to the orders sought namely consolidation of this file with E029 of 2021 and vacation of the preservation orders issued on 12th November 2021.

10. Having considered all the material placed before it by the parties this court notes firstly, that the impugned orders which were to subsist for six months expired on 12th May 2022. Since they were not extended it is correct as submitted by Counsel for the Respondent that they no longer exist. Secondly a forfeiture application being ACEC Civil Suit No. E013 of 2022, Ethics and Anticorruption Corruption vs Jeremiah Kamau Kinyua & 2 Others seeking the forfeiture of the applicants’ assets including the ones named in the present application has since been filed by the Commission hence overtaking the preservation order. Thirdly, the preservation file which the applicants seek to be consolidated with the present one, namely ACEC Misc No. E029 Ethics & Anticorruption Commission v Jeremiah Kamau Kinyua & 2 Others is spent and has been marked as closed and cannot be the subject of consolidation. In any event Originating Motion in the present file was to preserve assets left out in E029 of 2021. In the circumstances, the present file cannot be consolidated with a file that has been marked as closed.

11. Further a consent order discharging some of the properties in the present application was recorded by the parties in Misc. ACEC No. 35 of 2021 and the remaining properties are the subject of the forfeiture application in ACEC Civil Suit No. E013 of 2022 and Misc ACEC No. 35 of 2021 has also been marked as closed. In light of the foregoing it is my finding that the application herein has been overtaken by events and it is therefore dismissed and it is ordered that this file be and is hereby marked as closed.

12. While costs follow the event, I would be reluctant to award costs in this application as the parties are still before this court in the forfeiture suit and it is best that the issue of costs be determined upon conclusion of that suit. I accordingly order that each party shall bear their own costs.

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