[2017] KEHC 1729 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA, AT NAIROBI

ANTI-CORRUPTION & ECONOMICS CRIME DIVISION

PETITION NO. 19 OF 2017

IN THE MATTER OF:ARTICLES 2, 10, 20, 21, 22, 23, 28, 31, 40, 47, 48, & 259 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF: FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015

AND

IN THE MATTER OF:ETHICS AND ANTI- CORRUPTION COMMISSION ACT, NO. 22 OF 2011

BETWEEN

SOSTENAH OGERO TARACHA…………..……….………….PETITIONER

AND

ETHICS & ANTI-CORRUPTION COMMISSION…........…1ST RESPONDENT

THE HON. ATTORNEY GENERAL……….…………….......2ND RESPONDENT

JUDGMENT

1. Sostener Ogeto Taracha the petitioner herein filed a petition dated 3rd August, 2017 in which he sought the following prayers;

1) A declaration that the 1st respondent’s act of seizing and withholding the petitioner’s Kshs.17,940,000/- is an infringement of his rights under article 31, 40 and 47 0f the constitution,

2) That the 1st respondent be compelled by an order of mandatory injunction to unconditionally release, with one (1) day, of being served with order, the sum of Kenya Shillings 17, 940,000/- to the petitioner being the amount of money that was seized form his house on 4th May, 2017.

3) In the alternative to prayer 2, an order of mandamus compelling the 1st respondent to release the petitioner’s funds held by the 1st respondent.

4) The 1st respondent be ordered to pay to the petitioner interest on the sum of Kshs.17,490,00/-

5) General damages for wrongful and unlawful seizure and retention of the sum of Kshs.17,940,000/- belonging to the petitioner6An order against the 1st respondent for aggravated damages compensating the petitioner for the wrongful seizure and withholding of his funds and subjecting him to manifest hardship despite his demands for release of the amount.

6) A mandatory injunction restraining the respondents, their servants and/ or agents from interfering with the said funds in any other manner, harassing, arresting, interrogating or questioning the petitioner on account of the said funds.

7) Costs of this petition

8) Any other orders and directions this honorable court deems fit to grant.

2. The petitioner in his supporting affidavit avers that the 1st respondent’s officers visited his residence at Harambee estate house no. HB 24 on the 4th May, 2017 5. 30 am and informed him that they had obtained a Court Order to search his house. He informed them that he had money in his bedroom which was meant for his businesses. The 1st respondent’s officers then retrieved a suitcase in which the money was kept, took inventory of the same, continued with their search in the other rooms and that after failing to get anything else, they took inventory of the retrieved money which was in the following denominations;

i. One thousand (1,000) notes of Kenya shillings one thousand

ii. One thousand six hundred and eighty nine(1,689) notes of one hundred united states dollars(USD100)

iii. Two notes of fifty United States dollars (USD 50) each.

3. The petitioner further states he had borrowed the money from a micro- finance institution, relatives and friends. He states that the 1st respondent took long to contact him concerning the money seized and that his business has suffered. He therefore instructed counsel to make a demand for the release of his money. Upon receipt of the demand, the 1st respondent contacted the petitioner who visited their offices on 29th June, 2017 and recorded a statement. He averred that since then, no criminal charges have been preferred against him and that the 1st respondent continues to hold his money. He contends that the continued withholding of the money has caused great suffering to both his person and businesses which are at the verge of insolvency. He states that he had borrowed the money in anticipation of processing of a loan facility with the Co-operative Bank of Kenya which ultimately came through and that he is servicing the loan facility laden with hefty interests yet his sole source of income is affected by the continued withholding of his said money.

4. The petitioner alleges that the 1st respondent have infringed his constitutional rights particularly the right to equality and freedom from discrimination, right to privacy and not to have his person, home or property searched or his possessions seized, the right to associate with others, own property, right to fair administrative action that expeditious, efficient, lawful, reasonable and procedurally fair. He faulted the 1st respondent for not issuing him with a notice for their intended search. He deponed that as a result of the 1st respondents continued withholding of his funds, he continues to suffer loss of livelihood, grave financial loss, loss of expectation to a decent earning and risks being rendered destitute and vagrant. He states that the 1st respondent has not given any reason for the administrative action taken and has failed to address his legitimate concerns.

5. The 1st respondent filed a replying affidavit dated 21st August, 2017 while the 2nd respondent filed grounds of opposition 30th August, 2017. The petitioner then filed a further affidavit dated 7th September, 2017.

6. In his reply, Pius Maithya an investigator with the 1st respondent deponed that he was part of the team investigating allegations of irregular compensation paid to land owners following compulsory acquisition of land along the Standard Gauge Railway (SGR) by the government through the National Land Commission (NLC). He stated that the 1st respondent received information that the NLC officials were involved in an fraudulent scheme to irregularly approve compensation of land acquired for the SGR project and that among the individuals under investigation was commissioner Salome Ludenyi Munubi, who was the director Valuation and Taxation at NLC for allegations of inflation of compensation of land in Embakasi, Mtito-a-Ndei, Kibwezi and Voi.

7. He further stated that the said inflation conferred unlawful benefit to NLC officials including Salome Ludenyi, the amounts paid in compensation were inflated thereby resulting to loss of public funds and that the NLC officials unjustly enriched themselves from the fraudulent scheme. He said that the 1st respondent obtained search warrants pursuant to section 118 of the criminal procedure code and executed the same on 4th May, 2017 at Salome Ludenyi’s resident whereupon the money mentioned in paragraph 2 was recovered. He stated that they prepared an inventory of the same and that the inventory was signed by Salome Ludenyi and witnessed by the petitioner. The 1st respondent then filed returns by way of an affidavit at the Chief Magistrate’s Court and undertook to take reasonable care of the seized items until conclusion of the investigations.

8. The 1st respondent further stated that the petitioner was invited and that he indeed recorded a statement wherein he stated that he operated several businesses and that he had been advanced the seized money by his daughter. He said that the petitioner was yet to provide any documentary evidence in support of his alleged relationship to Salome Ludenyi, that he runs several businesses or that he is in dire financial constraints as a result of the 1st respondent’s investigations.

9. He averred that in the absence of such evidence, the 1st respondent reasonably suspects that that the seized cash belongs to Salome Ludenyi Munubi – whose residence was subject to investigations. That the money was acquired from inflated compensation of land compulsorily acquired for the SGR project. He stated that the 1st respondent is statutorily empowered to conduct investigations into allegations of corruption and economic crimes and denied either breaching any of the petitioner’s rights. He also deponed that the petitioner is presumed innocent until proven guilty and thus Article 50 (2) of the constitution does not apply to a person subject to investigations.

10. On prayer 1 of the petition, he said that the same cannot issue as a search warrant was lawfully obtained and executed, prayers 5 and 6 of the petition should fail as the same are only issued where there is an infringement of rights which the petitioner has failed to prove and that prayer 8 will amount to curtailing the 1st respondent’s constitutional and statutory powers and concluded that the petition lacked merit and that it should be dismissed with costs.

11. The gist of the 2nd respondent’s grounds of opposition is that the 1st respondent acts were well within their constitutional and legal mandate, that the petitioner’s rights had not been infringed as alleged in the petition and that the petitioner’s petition is misconceived, incompetent and bad in law and that the same should be dismissed with costs.

12. On 18th September, 2017, Mr. Thuku for the petitioner, M/s. Kibogi of the 1st respondent and Mr. Marwa for the 2nd respondent agreed to abandon the application (Notice of Motion) dated 3rd August, 2017 and proceed to hear the petition. They further agreed to proceed with the hearing of the petition by way of written submissions. The petitioner filed his submissions on 3rd October, 2017, the 1st respondent filed on 13th October, 2017 while the 2nd respondent filed on 23rd October, 2017. The parties then highlighted their submissions on 23rd October, 2017.

THE PETITIONER’S CASE

13. Mr. Thuku for the petitioner submitted that the petitioner’s right to property had been infringed and that much as it is not absolute, the limitations if any must be within the law. He argued that the property in question does not belong to the person under investigations and that the petitioner had filed documents to prove the same. He submitted that the procedures under the ACECA were not followed; specifically that the petitioner was never issued with any notice contrary to the provisions of the Fair Administrative Action Act. He relied on the case of Joshua C. Kulei –vs- Kenya Anti-Corruption Commission & Another [2013] eKLR where the court had stated that the notice had to be particular. He contended that the 1st respondent having failed to issue the said notice, could not proceed with the provisions of the Criminal procedure Code and the evidence Act.

14. He also referred to the case of Republic –vs- Chief Justice of Kenya & 6 others Ex-parte Moijo Mataiya Ole Keiwua [2010] eKLRand said that the governing law particularly ACECA had to be followed. He submitted that the investigations against the petitioner’s wife started early in the year and that neither she nor her husband had been charged with any criminal offence. He said that under the provisions of section 4 of the Fair Administrative Action Act and Article 50 of the Constitution, the petitioner is entitled to a process that is fair and reasonable. It was his submission that the delay in prosecuting the petitioner is both unfair and unreasonable and defeats the principles of good governance.

15. Referring to the case of Director of KALP Ltd & 2 Others –vs- Economic and Commercial Crimes Unit CID Headquarters [2016] eKLR,he submitted that investigations cannot be conducted without end and stated that the 1st respondent’s statutory and constitutional powers must be exercised within the law and the provisions of the Constitution. He stated that where the court finds that procedure was not followed, it has the power to make appropriate orders and that if the court finds that the 1st respondent acted within its mandate, then they should be given timelines within which investigations should be concluded.

THE RESPONDENT’S CASE

16. Ms. Kihuria appearing for the 1st respondent relied on the replying affidavit of Pius Maithya and the 1st respondent’s filed submissions. She submitted that the 1st respondent was investigating acts of corruption at the NLC and that the petitioner’s wife was among the individuals under investigations. She stated that the 1st respondent sought for and obtained search warrants in accordance with the law and that upon execution of the said warrants, the cash complained of by the petitioner herein was seized. She contends that returns on the search warrants were filed and that there is no order for release of the seized items. That the 1st respondent never infringed any of the petitioner’s alleged rights and that the same can be limited which limitation is necessary for the purpose of investigations. She said that protection and right to property alleged to have been infringed does not extend to property obtained unlawfully.

17. Ms. Kihuria further submitted that much as the petitioner alleged that the money recovered belonged to him, there is need to verify and ascertain the same which verification can only be done by the court that issued the warrants. She said that this case was a matter of great public interest and that sections 26-28 of ACECA do not apply where the orders are issued under Sections 118-121 of the Criminal Procedure Code.

18. It was her submission that the 1st respondent’s seizure was to enable the 1st respondent lay basis for investigations and that notice under section 26 of ACECA related to unexplained assets and concluded that the petitioner does not deserve the orders sought. Responding to the court, Ms. Kihuria stated that the 1st respondent has been summoning the petitioner’s daughter to clarify a few issues but she had not shown up to record a statement. A decision would be made as soon as the lady records a statement.

19. Mr. Marwa for the 2nd respondent opposed the petition while relying on the written submissions and authorities. He stated that much as the petitioner alleged that the money seized was made of advances from friends and loans only a sum of Kshs.3,000,000/= had been accounted for. On this issue, he relied on the case of Joseph Mungai gichuru and Another –vs- Machaara Mwangi & 4 Others [2017] eKLR and Article 40 (6) of the Constitution which provides that any property that has been found to have been unlawfully acquired does not enjoy constitutional protection.

20. Counsel further submitted that the money in issue is under lawful investigation. That the Court could not turn a blind eye to such money whose source is unknown. It is this unknown source that is under investigation, he submitted.

21. On prayer No. 2 where the petitioner wanted the 1st respondent ordered to refund the money with interest in one (1) day, counsel referred to case of Joseph Mutuku Masinga –vs- Town Council of Wote & 8 others (2012) and stated that the Kshs.17 million recovered from the petitioner’s houses was not earning any interest, and that if the money shall be found to belong to the petitioner then it would be returned to him. He prayed that the petition be dismissed.

22. In reply, Mr. Thuku submitted that Article 40 does not dictate the form in which property should be and that the petitioner had sworn an affidavit on how his business deals with liquid cash. He said that under section 104 of the Evidence Act, the respondents are bound to prove in a criminal litigation court that the petitioner’s money was obtained by way of corruption. He stated that the petitioner had already shown his source of money and that he was contesting the procedure of search and confiscation. He stated that the respondent’s investigation should not be open ended and urged the court to allow the petition.

23. I have read and considered the petition, affidavits, the written and oral submissions as well as the authorities filed and cited by both parties. I find the issues falling for determination to be as follows:

i. Whether the petitioner’s rights as alleged in the petition were infringed

ii. Whether to release the monies seized by the 1st respondent to the petitioner.

24. Chapter 4 of the Constitution of Kenya, 2010 grants each person rights and fundamental freedoms which form what is known as the Bill of Rights. So important are these rights that article 19(1) (2) & (3) of the Constitution provides as follows;

“19(1) The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies.

(2) The purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.

(3) The rights and fundamental freedoms in the Bill of Rights—

(a) belong to each individual and are not granted by the State;

(b) do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognized or conferred by law, except to the extent that they are inconsistent with this Chapter; and

(c) are subject only to the limitations contemplated in this Constitution.”

25. These rights set out under chapter 4 of the Constitution of Kenya, 2010 are prone to denial, violation, infringement and outright threat at the behest of either natural or juristic persons. Such circumstances are envisaged at Article 22 (1) of the Constitution with both remedial measures and modalities thereto provided at Article 22(2) and (3) of the Constitution.

26. Article 23(1) of the Constitution confers jurisdiction upon the High Court pursuant to Article 165, 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. Article 23 (3) sets out the remedies which are available to an aggrieved party whenever his/her fundamental rights or freedoms have been violated to wit;-

“23(3) In any proceedings brought under Article 22, a court may grant appropriate relief, including—

(a) a declaration of rights;

(b) an injunction;

(c ) a conservatory order; the remedies

(d) …….

(e) …….

(f) ……”

27. It is not however, enough to allege that one’s fundamental freedoms or rights have been violated. The violation must be proved. Section 107 (1) of the Evidence Act Cap. 80 Laws of Kenya is clear in this regard and provides as follows;

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”

28. The letter and spirit of the above provision has been captured in several decisions of the superior courts including but not limited to the cases of Anarita Karimi Njeru –vs- Republic [1979] eKLRandMumo Matemu –vs- Trusted Society of Human Rights Alliance & 5 others[2013] eKLR. Ancillary to the foregoing is the requirement that any prospective petitioner ought to set out his or her complaint with precision and clarity to enable the court to ascertain whether or not a given right or fundamental freedom has been infringed.

29. Prayer No. (a) of the petition is for a declaration that 1st respondents act of seizing and withholding the petitioner’s Kshs.17,940,000/= is an infringement of his rights under article 31, 40 and 47 of the constitution. In his submission Mr. Thuku stated that the act of seizure and confiscation of the 1st petitioner’s money was in breach of article 40 of the constitution. He also impugned the procedure of search and seizure and stated that he was never served with a notice contrary to the provisions of ACECA and that failure to issue the said notice amounted to infringement of his right to fair administrative action.

30. In Anarita Karemi -vs- Republic 1976-1980 KLR Trevelyan & Hancox, JJ,threshold for proof of infringement and violation of Fundamental rights was summarized as follows;

“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”

31. Has the petitioner met the threshold of precision set out in the Anarita Karemi Case (supra)? The petitioner pleaded the alleged violations at Paragraph 14 of the petition, which states;

- Right to equality and freedom discrimination under Article 27 of the Constitution.

- Right to privacy which includes the right not to have his person, home or property searched or his possession seized.

- Right to individually or in association with others, to acquire or own property of any description in any part of Kenya.

- Right to fair administrative action that is expeditious, effective, lawful and procedurally fair.

When these two paragraphs are placed against the requirements of the Anarita case (supra),the petition falls short of the threshold set therein.

32. There is nothing in the pleadings showing with a reasonable degree of precision the manner in which these rights were violated. During the hearing it was mentioned that in the investigations by the Ethics and Anti-Corruption Commission, the right procedure was not followed. It was also stated that the money belonged to the petitioner and not his wife. The 1st respondent has on the other hand explained that they obtained search warrants against one Salome Ludenyi Munubi and that upon searching her residence, the contested money was found and seized. The petitioner confirmed in an affidavit that the said Salome was actually his wife and that there was reason to believe that the seized money belongs to her. The respondents submitted that this was a matter of public interest.

33. Strictly speaking, no notice could have been served on the petitioner herein by the 1st respondent. The reason is that the person targeted in the investigation is one Dr. Salome Ludenyi Munubi, the Director Valuation and Taxation at the National Land Commission (NLC). The search warrant was in respect of the said Salome Ludenyi Munubi and the officers went to her residence. It is in the process of the search that the petitioner comes into picture as the husband of the said Salome. Thereafter, he made claims to the money that was seized from Salome’s residence.

34. As at the time of seizure, the investigators believed that the sized money belonged to Salome Ludenyi Munubi and they still believe so. The allegations by the petitioner as to his being the owner of the money must be investigated to establish the truth about his claims.

35. The money having been found in the residence of a person under investigations pursuant to a lawful court order, renders prayer No. (a) untenable. This is because, there has been no demonstration of infringement of the petitioner’s rights. The petitioner is complaining about the act of seizure and not the manner the seizure was conducted. The act of seizure had been authorized by the law through the Court. Prayer No. (a) therefore fails.

36. Prayer (b) seeks a mandatory injunction directing the 1st respondent to release to the petitioner the Kshs.17,940,000/= seized from his house on 4th May, 2017. Prayer (c) in the alternative, seeks an Order of mandamus for a similar purpose as in prayer (b). Having found that the money held by the 1st respondent is legally held in the course of investigation and by Order of the court, it follows that prayer (b) and (c) also fail.

37. In prayer (d), the petitioner is seeking to have the 1st respondent ordered to pay him interest on the money seized at prevailing rates since the seizure till payment in full. The 2nd respondent submitted that the money was seized from the petitioner’s house and that it was not earning any interest. This money was lawfully seized and not lent to the 1st respondent for any business. It was stored in the house and was not earning any interest. This prayer must also fail..

38. In prayer (e) the petitioner seeks damages for wrongful and unlawful seizure and retention of the sum of Kshs.17,940,000/= belonging to him. First of all, the ownership of this money is a subject of investigation. It’s not clear whether the money belongs to the petitioner or Salome his wife. Secondly, as stated above, the seizure was not illegal. This prayer as well as prayer (f) lacks merit.

39. The petitioner in prayer (g) seeks a mandatory injunction to restrain the respondents, their servants and/or agents from interfering with the said funds in any other manner, harassing, arresting, interrogating or questioning the petitioner on account of the said funds. The mandate of the 1st respondent has been spelt out in Article 252 (1) of the Constitution of Kenya 2010; Leadership and Integrity Act Cap 182 Laws of Kenya; Section 11 of the Ethics & Anti-Corruption Commission Act (EACCA).

40. On the other hand, the mandate of the 2nd respondent is outlined in Article 157 of the Constitution of Kenya 2010 and Office of the Director Public Prosecution Act 2013.

41. The issue then is whether the respondents acted outside their constitutional and/or statutory mandate. In the case of Thuku Kirori & 4 Others –vs- County Government of Murang’a [2014] eKLR where Ngaah, J. expressed himself as hereunder:

“Moreover, where a statute or the Constitution for that matter, has expressly delegated specific functions, duties or responsibilities to particular organs…this court will be hesitant to intervene and curtail these organ’s efforts to execute their statutory or constitutional mandates; it is the duty of this court to interpret the Constitution in a purposive rather than a restrictive manner.”

42. The 1st respondent is constitutionally and statutorily empowered to conduct investigation into acts of corruption and economic crimes. That being the case, the, the petitioner’s allegations are unfounded as it has not been shown that the respondents acted outside their mandate.

43. Having found none of the prayers proved by petitioner, it follows that the petition must fail. However, before I do that, I wish to state that I entirely agree with the petitioner that investigations should not proceed forever. The 1st respondent indicated to the Court that there is a daughter of the petitioner whom they are waiting for to record a statement which would enable them make a final decision on the seized funds.

44. The petitioner is asked to support the 1st respondent by availing the individual for statement recording as requested as soon as possible. Otherwise, the 1st respondent is directed to conduct and conclude its investigations within the next three (3) months from today’s date.

45. The upshot is that the petition lacks merit and is dismissed with costs to the respondents, save for the order at paragraph 44.

Orders accordingly.

Dated, signed and delivered this6thday of December2017 in open court at Nairobi.

…………………………..

HEDWIG I. ONG’UDI

HIGH COURT JUDGE