[2022] KEHC 1842 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

ANTI-CORRUPTION & ECONOMIC CRIMES DIVISION

PETITION NO. E004 OF 2021

STEPHEN OGAGA OSIRO....................................................................................PETITIONER

VERSUS

THE HON. THE ATTORNEY GENERAL.................................................1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS............................................2ND RESPONDENT

ETHICS & ANTI-CORRUPTION COMMISSION...................................3RD RESPONDENT

JUDGMENT

Introduction

1. By the Petition dated 17th June, 2021 the petitioner seeks orders as follows: -

“a. A declaration that the Petitioner’s bank statements for account No. a/c 100xxxxxxx at NIC Bank PLC were obtained from the bank by the 3rd Respondent irregularly, illegally and unconstitutionally.

b. A declaration that any purported court warrants used to access the Petitioner’s bank statements for Account No. a/c 100xxxxxxx at NIC Bank PLC are irregular, illegal, null and void ab initio.

c. A declaration that the 2nd and 3rd Respondents are therefore not entitled to use the said impugned bank statements for account No. a/c 100xxxxxx at NIC Bank to prosecute the Petitioner in Nairobi Chief Magistrates Anti-Corruption Case No. 32 of 2018 R v Evans Kidero and 10 others or any other criminal or civil actions.

d. A permanent injunction restraining both the 2nd and 3rd Respondents jointly and severally from using the impugned bank statements for account No. a/c 100xxxxxxx at NIC Bank to prosecute the Petitioner in Nairobi Chief Magistrates Anti-Corruption Case No. 32 of 2018 R v Evans Kidero and 10 others or any other criminal or civil actions.

e. The court be pleased to award the Petitioner general damages against the Respondents jointly and severally, for violating and or infringing on his fundamental rights and freedoms and the damages to accrue interest at court rates from the date of Judgement until full payment.

f. The costs consequent upon this Petition be borne by the Respondents jointly and severally in any event.

g. The court do make such other or further orders as it may deem just and expedient in the circumstances to remedy the violation of the Petitioner’s fundamental rights and freedoms.”

2. On 17th August, 2021, the Petitioner filed a Notice of Motion seeking a conservatory order to restrain Hon. Ogoti from admitting into evidence the Petitioner’s NIC Bank PLC statements for A/c No. 100xxxxxxx in Nairobi Chief Magistrates Anti-Corruption Case No. 32 of 2018 Republic v Evans Kidero and 10 others (CM ACEC No. 32 of 2018).

3. When this matter came up for mention on 20th September, 2021 the court directed counsel for the parties to file submissions in the main petition as the same could be disposed before the dates fixed for hearing of the criminal case. On 13th October, 2021 Counsel appeared before me for mention and Counsel for the Petitioner intimated that he was willing to abandon the application so that the court could go straight into the main petition.

The Petitioner’s case

4. Briefly, the Petition is brought under Articles 31, 47,50 (4) and 25 (c) of the Constitution.The gist of the Petition is that the bank statements in regard to account number 100xxxxxxx at NIC Bank PLC obtained by the Respondents on 13th June 2015 were so obtained without notice to the Petitioner and without his consent or authority and without valid court warrants and are therefore a violation of his right to privacy under Article 31 of the Constitution and his right to fair administrative action under Article 47 of the Constitution.

5. The Petitioner avers that the impugned bank statements having been irregularly, illegally and unconstitutionally obtained by the 3rd Respondents, the same should not be used by the 2nd and 3rd Respondents to prosecute him in CMACC No. 32 of 2018or in any other criminal or civil actions. The Petitioner avers that this court has jurisdiction to determine this Petition and grant reliefs thereon under Article 23.

The Respondents’ case

6. The Petition is vehemently opposed by the Respondents. The 1st, Respondent filed Grounds of Opposition dated 24th June 2021, the 2nd Respondent a Replying Affidavit sworn by Prosecution Counsel Jennifer Kaniu on 5th July 2021 and the 3rd Respondent a Replying Affidavit sworn on 20th August 2021 by Andrew Lekamparish its Forensic Investigator.

7. The 1st Respondent, pleads misjoinder and states that he should be struck out from the proceedings under Rule 5 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; That the Attorney General and the Department of Justice has no prosecutorial powers under Article 156 of the Constitutionhis mandate being to advise the Government and to represent the National Government in legal proceedings to which it is a party other than in criminal proceedings and the orders sought against the 1st Respondent are therefore not tenable since the Petitioner has not demonstrated how the 1st Respondent has violated his rights.

8. In its Replying Affidavit the 2nd Respondent, deposes that this Petition arises from the criminal proceedings in CMACC No. 32 of 2018 in which the Petitioner is charged with various anti-corruption related offences alongside ten other persons; That the charges against the Petitioner and his co-accused resulted from investigations carried out by the 3rd Respondent after successfully obtaining search warrants on 7th July 2015 in Kibera Chief Magistrates Court Miscellaneous Application 1195 of 2018. That therefore the statements of accounts the subject of this petition were obtained pursuant to a court order and through proper legal process and procedure. The 2nd Respondent also deposes that in the course of the trial, the prosecution sought to produce the impugned statement of accounts but the Petitioner’s Counsel objected to its production on the grounds that it had been obtained under the wrong provisions of the law and that notice had not been given to the Petitioner prior to accessing his account. That the trial court however considered the objection and in a ruling dated 25th July 2019 it found the objection unsustainable and admitted the statement of account as an exhibit.

9. The 2nd Respondent further deposes that being aggrieved the Petitioner filed a judicial review application in this court to wit Republic v Ethics & Anti-Corruption Commission & 2 others; Ex parte Applicant: Stephen Ogaga Osiro[2020] eKLR, Nairobi HCACEC J.R No. 25 of 2019 [2020] eKLR where he sought inter alia, orders of certiorari to quash the Miscellaneous Application 1195 of 2018 (supra)and to expunge the impugned exhibits from the court record for allegedly having been obtained through an illegal order. The 2nd Respondent deposes that the judicial review application was dismissed in a judgment dated 10th June, 2020 where the court held that the admissibility of exhibits should be left to the trial court. The 2nd Respondent deposes therefore that each of the issues raised by the Petitioner in this Petition have been exhaustively considered and determined both by the learned trial court during the trial and by the High Court in the judicial review proceedings and hence the same are res judicata. The 2nd Respondent further deposes that this Petition was brought after an inordinate, unreasonable and unjustifiable delay as the impugned exhibits have been produced and this petition is an abuse of court process and is made in bad faith and is an attempt to delay the criminal proceedings which are at an advanced stage with the prosecution having only 3 witnesses remaining to be called.

10. The 3rd Respondent, through the affidavit sworn by Andrew Lekamparish, states that this Petition is an abuse of court process as the issues in contention were substantially the same in HCACEC J.R No. 25 of 2019 (supra)which was heard and dismissed by Onyiego J on 10th June 2020 and no appeal was preferred against the judgment. The 3rd Respondent deposes further that inEthics & Anti-Corruption Commission v Tom Ojienda, SC t/a Prof. Tom Ojienda and Associates& 2 others; Law Society of Kenya (Amicus Curiae) Civil Application 21 of 2019 the Supreme Court stayed the decision of the High Court and the Court of Appeal upon which the Petitioner relies and directed that no party shall rely on, use or apply the decisions of the High Court and the Court of Appeal until the appeal filed in the Supreme Court is heard and determined. It is the 3rd Respondent’s contention that the bank statements the subject of this petition were obtained lawfully. The 3rd Respondent also deposes that the Petitioner has not set out with specificity the rights which he alleges were violated and that in any event the rights alleged to have been violated are not non-derogable and may be limited and that this Petition is hence an abuse of court process and it should be dismissed with costs.

Submissions by the parties

11. Mr. Ogutu, learned Counsel for the Petitioner relied on the Petitioner’s written submissions dated 4th October 2021. Counsel framed four issues for determination: -

a. whether this court has jurisdiction to hear this petition,

b. whether the petition is res judicata,

c. whether the Petitioner’s right to privacy and fair administrative action were violated by the 3rd Respondent in obtaining the impugned evidence and

d. whether the Petitioner’s right to fair hearing is threatened by the intended use of the bank statement evidence against him in CM ACC No. 32 of 2018.

12. On the first issue Counsel submitted that this court has jurisdiction to hear and determine this Petition by dint of Article 23 of the Constitution which provides that this court has jurisdiction 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 and to grant appropriate reliefs. Counsel submitted that this Petition is not res judicata and it should be determined on its merits; That the Respondents have not demonstrated the elements in Section 7 of the Civil Procedure Act; that in HCACEC J.R No. 25 of 2019(supra) the Petitioner was seeking judicial review orders to quash a court order that was used by the 3rd Respondent to procure the Petitioner’s bank statements but in this Petition the issue in controversy is that the 3rd Respondent accessed the Petitioner’s bank account and obtained account statements therefrom without the Petitioner’s consent or without a court order. Counsel submitted that in HCACEC J.R No. 25 of 2019 (supra)the issues are administrative in nature while those in this Petition are constitutional in nature. Counsel argued that the parties in the two suits are not the same because whereas the Chief Magistrates’ Court Kibera was a party in HCACEC J.R No. 25 of 2019 (supra) it is not a party in this Petition. Counsel asserted that moreover JR No. 5 of 2019 did not substantially and finally deal with the issues in dispute but it dismissed the matter on a technicality. Counsel stated that a determination in judicial review proceedings cannot be termed as a final determination of issues under a constitutional Petition since the mandate and jurisdiction of a court sitting on judicial review is different from that sitting on a constitutional petition. To support this proposition Counsel cited the case of Republic v Chesang (Ms) Resident Magistrate & 2 others ex parte Paul Karanja Kamunge t/a Davisco Agencies & 2 others [2017] eKLR and the Supreme Court decision in the case of John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others [2021] eKLR.

13. On the merits of the Petition, Counsel submitted that in obtaining the impugned evidence the 3rd Respondent violated the Petitioner’s rights to privacy and fair administrative action; and that the Petitioner’s bank account is private property which should only be accessed with his consent or through a court order. Counsel submitted that whereas the court order was obtained on 7th July 2015 the account had been accessed on 13th June 2015 without a court order. Counsel stated that the order having been obtained after the fact reliance on the same is illogical, baseless and contemptuous of the court. Counsel relied on the case of the Hon. DCJ Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR,where he submitted that the court held that the action of the investigating officer (DCI) in accessing the petitioner’s account with a court order that had no bearing to the said account amounted to violation of the petitioner’s right to privacy.

14. Mr. Ogutu further submitted that Article 47 of the Constitution applies to this case; that the process of obtaining the Petitioner’s bank statements was devoid of fair administrative action as the 3rd Respondent did not comply with due process in obtaining the same. Counsel submitted that the 3rd Respondent was bound but violated the procedure set out in Section 4(3) and (4) of the Fair Administrative Action Actand Article 47of theConstitutionand furtherthat freezing of the account violated the petitioner’s right to privacy and was administrative in nature. Counsel relied on two cases: Republic –vs- Principal Secretary, Ministry of Transport, Housing and Urban Development ex parte Soweto Residents Forum CBO [2019] eKLR and the case of standard Newspapers Limited & another –vs- Attorney General and 4 Others [2013] eKLR. Counsel asserted that action that has the result of impacting on a citizen’s rights is administrative action. Counsel argued that although the right to privacy and fair administrative action are not non-derogable the same can only be limited within the confines of the law and only to the extent that is reasonable and justifiable as provided in Article 24 of the Constitution. Counsel contended that the petitioner’s right to privacy was violated without any lawful justification or cause and hence he is entitled to relief.

15. As to whether the Petitioners right to fair hearing is threatened Counsel submitted that Article 50(4) provides that evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice. Counsel submitted that Article 25 (c) lists the right to fair hearing as one of the rights that cannot be limited and that having established that the 3rd Respondent obtained the impugned evidence irregularly, illegally and unconstitutionally it follows that the same should be excluded. Counsel asserted that allowing the 3rd Respondent and the trial court to rely on the same would violate the respondent’s right to fair trial. For this proposition Counsel cited the case of Philomena Mbete Mwilu V Director of Public Prosecutions & 3 Others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR where the court halted the trial for reason that the evidence was obtained through use of a court order that had no bearing on the petitioner’s account. Counsel submitted that this petition is neither an appeal nor a revision. Counsel pointed out that the trial magistrate’s finding was that the warrants were obtained from a court of competent jurisdiction and hence were valid while HC ACEC J.R No. 25 of 2019 (supra)was dismissed on a technicality, to wit, that the suit was filed out of time. Counsel contended that all the other remarks by Onyiego J in the Judicial review proceedings were obiter. Counsel submitted that the Petitioner did not see need to appeal against the ruling of the trial court and the judgment of Onyiego J as he has several options under the law and his preferred choice is this Constitutional petition. Counsel stated that his intention is not to stop the prosecution in the trial court, but to obtain a declaration that the evidence was illegally obtained and the same cannot be used against the Petitioner. Mr. Ogutu submitted that what is required to be proved in this Petition is whether the Petition has complied with the law but not the effect it has on other matters. Mr. Ogutu asserted that the Petitioner cannot be stopped from using the law to stop the respondent from using illegally obtained evidence. He submitted that the Supreme court decision in the case of Tom Ojienda SC (Supra)is not applicable to this case and urged this court to find that the Petitioner has proved his case and is entitled to the prayers sought.

16. The 1st Respondent did not file written submission as directed by the court.

17. On their part Counsel for the 2nd Respondent argued the petition on the following grounds: -

“1. That the Petition dated 17th June 2021 is not justiciable as it is res judicata and the issues raised herein are moot.

2. That the Petition is vexatious, frivolous and therefore an abuse of the legal process.

3. That it is in the interest of justice and public interest that the orders sought in the instant petition be declined.”

18. Mrs. Shamallah Counsel for the 3rd Respondent opposed the petition on four grounds namely that the Petitioner did not as was held in Anarita Karimi Njeru v Republic (1979) eKLR demonstrate and prove that his rights under Articles 31, 47, 50 (4) 22 and 25 of the Constitution were violated. Counsel submitted that the Petitioner’s allegation that the 3rd Respondent did not give him notice before searching his account and obtaining bank statements under Section 28 of Anti-Corruption and Economic Crimes Act is an issue that was raised during the trial when the documents were identified for admission and the trial magistrate considered the issue and dismissed the objection in a ruling delivered on 25th July 2019. Counsel submitted that instead of appealing the ruling the petitioner filed HC ACEC J.R No. 25 of 2019(supra) and raised the same issue. Mrs. Shamalla submitted that the issues in this petition are the exact same issues raised in the HCACEC J.R No. 25 of 2019(supra) in which it was held that there was no illegality in the manner the warrants were obtained. Mrs. Shamalla submitted therefore that this case is res judicata in that the issue of violation of Articles 31 and 47 of the Constitution were dealt with in HCACEC J.R No.25 of 2019 (supra). She contended that this Petition seeks to appeal Onyiego J’s judgment in the judicial review through the back door. Counsel stated that the prayer seeking to restrain the lower court from admitting the impugned bank statements was raised before Onyiego J in the Judicial review proceedings and the Judge was categorical that matters of admissibility of evidence is a matter for the trial court and the High court cannot interfere. That similarly, the objection that there were discrepancies in the certificate attached was raised in the trial court and was addressed by the court in its Ruling. Counsel stated that when the case went before Onyiego J he cited the case of Thomas Patrick Gilbert Cholmondeley v. Republic [2008] eKLR where it was held that matters of admissibility are best left to the trial court until the case is concluded and there is an appeal. Counsel submitted that litigation must come to an end and that the Petitioner must be stopped from abusing the court process by filing multiple suits. Thirdly, Counsel submitted that investigations are not administrative actions; that the process of obtaining search warrants in a criminal case is an investigative process but not an administrative act and that fair administrative action broadly refers to administrative justice in public administration and is concerned mainly with control of the exercise of administrative powers by state organs and statutory bodies in the execution of constitutional and statutory duties guided by constitutional principles and policy considerations and that the right to fair administrative action though a fundamental right is contextual and flexible in its application and can be limited by law. For this she relied on the case of Judicial Service Commission –vs- Mbalu Mutava [2015] eKLR and a decision of the Supreme Court of Philippines in the case Senator Jinggoy Ejercito Estrads v Office of the Ombudsman, Field Investigation Office, Office of the Ombudsman, National Bureau of Investigation and ATTY Levito D. Baligod G. R Nos. 212140-41 January 21 2015

19. On the issue of notice not being given prior to conducting the search and obtaining the bank statements, Counsel submitted that the issue is pending before the Supreme Court in SC Court Petition No. 30 of 2019 Ethics & Anti-Corruption Commission v Tom Ojienda SC t/a Prof. Ojienda & Associates & 2 others; Law Society of Kenya (Amicus Curiae)and that the Supreme Court having stayed the decision of the Court of Appeal in the matter, this court has no jurisdiction to hear and determine this issue.

20. In regard to the case of Hon. DCJ Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR Counsel submitted that the case is distinguishable from this case in that the Deputy Chief Justice’s argument was that her case should have been taken to the Judicial Service Commission whereas in this case the court has already held that the warrant was lawfully obtained. Counsel submitted that it is trite that the right to privacy is limitable and reiterated that the Supreme Court ruling in the Prof Tom Ojienda SC case is applicable to this case as this petition raises the same issue of notice. Counsel submitted that in HCACEC J.R No. 25 of 2019(supra). the court considered the same issue and found that the Prof Tom Ojienda SC ruling applied to the Petitioner’s case.

21. On the allegations of violation of the right to fair hearing Counsel submitted that the petitioner has not demonstrated that the court was biased in any way or that he was denied the right to representation. Counsel submitted further that the petitioner was well represented at the trial and was given an opportunity to challenge the evidence through cross-examination. Counsel stated that the trial court considered the objections and overruled the same and the ruling was upheld in HCACEC J.R No. 25 of 2019 (supra). Counsel submitted further that violation cannot be inferred but must be proven. Counsel submitted that the 3rd Respondent did not see the need to attach the order in contention as the Petitioner acknowledged its existence and is only questioning why no prior notice was given to him before the order was obtained; that in HCACEC J.R No. 25 of 2019(supra) the court held there was in existence a valid court order hence the petitioner is simply using this court to stop a prosecution that he is facing in the anti-corruption court and also civil cases filed by the commission and more so ACEC suit No. 32 of 2018 Republic v Evans Odhiambo Kidero & 10 Others. Counsel reiterated that the orders sought cannot be granted as there is a stay before the Supreme Court. She urged this court to dismiss this petition with costs.

Issues for determination

22. Having considered the pleadings and rival submissions of learned Counsel for the parties the following issues arise for determination:

a. Whether this petition is res judicata

b. Whether the Petitioner is entitled to the reliefs sought

c. Who should bear the costs of the Petition.

Analysis

Whether this petition is res judicata

23. In their grounds of opposition and replying affidavit the 2nd and 3rd Respondents challenged the justifiability of this Petition on the grounds that it is res judicata by virtue of Onyiego J’s judgment in HCACEC J.R No. 25 of 2019(supra). This is a preliminary issue that goes to the jurisdiction of this court and it ought to be dispensed from the onset.

24. The doctrine of res judicata ousts the jurisdiction of a court to try any suit or issue which has been finally determined by a court of competent jurisdiction in a former suit involving the same parties or parties litigating under the same title. It is founded on public policy and is aimed at achieving two objectives namely; that there must be finality to litigation and that an individual should not be vexed twice with the same litigation. This doctrine is anchored on Section 7 of the Civil Procedure Act which states:-

“7. Res judicata

No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

25. A perusal of this Petition and the submissions of the parties reveals that firstly the parties in this petition and in the HCACEC J.R No.25 of 2019 (supra) are substantially the same. The Petitioner herein was the Ex Parte Applicant in HCACEC J.R No. 25 of 2019 (supra)and the 2nd and 3rd Respondents were the 1st and 2nd Respondents. That the Chief Magistrates Court Milimani which was a Respondent in the HCACEC J.R No. 25 of 2019 (supra)is not a party in this Petition does not in my view make the two cases materially different. Secondly, the subject of HCACEC J.R No. 25 of 2019 (supra)was the legality, validity, constitutionality and admissibility of the statements obtained by the Respondent in respect to the Petitioner’s NIC Bank Account No. 1000256249 allegedly without a court order and without prior notice to the petitioner. The gist of this petition is that “The 3rd Respondent obtained the petitioner’s bank statements for AC No. 100xxxxxxx at NIC Bank PLC on 13th June 2015 without the petitioner’s consent or authority and or valid or any court orders......... The said impugned bank statements having been irregularly, illegally and unconstitutionally obtained by the 3rd Respondent, the same should be excluded from being used by the 2nd and 3rd respondents to prosecute the petitioner in Nairobi Chief Magistrate Anti-Corruption Case No. 32 of 2018 – Republic v Evans Kidero & 10 others, or any other criminal or civil actions against him. The petitioner is the 5th accused in the matter.” Production of the statements was raised in the trial court with the petitioner arguing as they have in this petition that the statements obtained without a court order, without notice and without the consent of the Petitioner were not admissible. The objection was however overruled by the trial court and the statements were admitted whereupon the petitioner moved this court by way of HCACEC JR No. 25 of 2019 (supra).

26. A reading of the pleadings in both this Petition and HCACEC JR No. 25 of 2019 (supra) makes it crystal clear that this Petition is an attempt to re-litigate the issues raised in the former. My reading of the judgment inHCACEC JR No. 25 of 2019 (supra) reveals that the judicial review was dismissed for lack of merit but not on a technicality as submitted by Counsel for the Petitioner. Onyiego J’s holding was:-

“75. In a nutshell, I do not find any merit in the application herein. The applicant has failed to meet the threshold for grant of Judicial Review orders hence the suit is dismissed with costs to the respondents.”

I see nothing in the ruling that would support Counsel’s submission that the proceedings were dismissed on a technicality. The above holding is to the contrary.

27. In HCACEC JR No. 25 of 2019 (supra)the applicant averred inter alia:-

“10. It is the applicant’s further contention that; the Magistrate’s Court was not competent to issue orders to search and inspect accounts; the order was not dated and therefore lacks legitimacy and, that the 1st respondent’s move to obtain a search warrant and bank statements from the applicant’s NIC account on 13th June 2015 without the requisite notice under Section 28 of ACECA was irregular and illegal. .........

14. That despite spirited objection against the production of the impugned documents obtained vide an irregular court order, the trial court presiding on ACC No. 32/2018 dismissed the same vide its ruling dated 25th July 2019 thus admitting them as exhibits.

15. He therefore urged; the court to quash the exparte and undated order in the Chief Magistrate Kibera Misc. Application No. 1195/2015; the Honourable Court to call for and examine court’s proceedings in ACC No. 32/18 and direct that the same be expunged from court records; the said order obtained in Misc. Appl. No. 1195/15 (marked MF1. 54(b)) together with the applicant’s account opening documents produced as Ex. 56 and certificate produced by the NIC bank official produced as Ex. 57 be expunged also from the court records.

28. Among the issues framed by Onyiego J in the proceedings were the following:-

“.........

c. Whether the exparte applicant was entitled to notice under Section 28 of the ACECA before the 1st applicant could conduct search and inspection of his bank account.

d. Whether the impugned exhibits admitted in ACC No. 32/2018 against the exparte applicant in Republic v Evans Kidero and 10 others should be expunged from the court record.

After considering the rival submissions, in regard to those issues Onyiego, J held:-

“65. According to Mr. Mtange for the exparte applicant, the above requirement is mandatory pursuant to the holding of the Court of Appeal decision in DPP V Prof. Tom Ojienda case (supra). M/s Shamalla however countered the argument by referring to the Supreme Court decision between the EACC v. Prof. Tom Ojienda (supra) where the Court of Appeal decision was stayed.

66. Whereas Section 28 of ACECA refers to service of notice upon a person under investigation, the same does not oust Section 118, 118A, 121 of the Criminal Procedure Code and Section 180 of the Evidence Act which confers authority upon the 1st respondent to conduct investigation against any person suspected or alleged to have committed a crime.

67. Indeed, the very purpose for which the legislature enacted Sections 118, 118A, 121 of the CPC and 180 of the evidence would be rendered superfluous if notice were to issue in advance against people suspected of or being investigated over engaging in criminal conduct. It will definitely amount to alerting a wrong doer of the impending investigation hence cover up his inadequacy by concealing any implicating evidence or materials. This court will not serve any public interest if suspects of crime were to be alerted of pending sting operation/s. See Mape Building and General Engineering v. Attorney General and 3 Others (2016)eKLR where the court stated that:-

“The 2nd Respondent moved the court. Statute law under Section 118 of the Criminal Procedure Code and Section 180 of the Evidence Act allowed them to do so. The application could be made ex parte for very obvious reasons. To hold otherwise would not be in the public interest. It would indeed destroy the very fabric of forensic investigations. No suspect or offender, knowing that there existed evidence which if not destroyed or vanquished would lead to his guilt or liability, can be expected to sit back once notified of possible investigations. The suspect would rid the evidence out of sight and reach. Consequently, the investigator must where there is a foundational basis be allowed and be in a position to seize and secure the evidence.”

68. It is no wonder that the Supreme Court in The Ethics and Anti-Corruption Commission v. Tom Ojienda S.C T/A Prof. Tom Ojienda and Associates(Supra) stayed the Court of Appeal decision which held that service of notice under Section 28 of ACECA was mandatory. Further, in the case of George Onyango Oloo v. EACC and another ACEC Misc. Criminal Application No. 29/2019 the Court found that issuance of exparte order was within the statutory provisions under Section 118, 118A and 121 of the CPC and 180 of the Evidence Act. The court further held that public interest should prevail when investigations are executed to achieve a lawful purpose.

69. It is my humble finding that there was nothing irregular, improper or illegal in issuing the orders sought to be quashed. Accordingly, I am of the view that notice was not necessary and that no prejudice was suffered.

70. As to whether the applicant’s right to privacy was violated in breach of Article 31 of the Constitution, the applicant did not with precision establish the manner in which his rights were violated when a lawful process was executed. See Japhet Ododa Origa V Vice Chancellor University of Nairobi (supra. In any event, public interest supersedes individual rights. The 1st and 2nd respondents have a mandatory constitutional and statutory obligation pursuant to Articles 79 and 157 of the Constitution respectively to investigate crime and prefer criminal charges against any person suspected of committing a crime. Carrying out investigations is a lawful duty and its upon the court to reasonably balance individual and public interest and strike a balance while fully aware that public interest triumphs over private interest. In this case I do not find any specific private interest violated or threatened to be violated.

Whether the impugned exhibits admitted in ACC No. 32/18 the exparte applicant and 10 others should be expunged from the court record

71. It is the exparte applicant’s prayer that the search order, his account opening documents and bank statements obtained through the alleged illegal order should be expunged from the court record. Similar issues were raised before the trial court in ACC 32/18 when the applicant raised an objection resisting admission of the said exhibits on grounds of non-compliance with Section 68 of the Evidence Act.

72. It is trite that admission of exhibits before a trial court is the duty of the presiding Magistrate or Judge. Whether the documents are properly admitted or not is a matter for the trial court to determine. It cannot be an issue to call for Judicial Review remedy. There is a suitable remedy which is lodging an appeal upon completion of the hearing. If courts were to entertain every application challenging admissibility of exhibits, it will be akin to entertaining interlocutory appeals through the back door. See Thomas Patrick Gilbert Cholmondeley v. Republic (2008)eKLRwhere the Court of Appeal stated that:-

“In ordinary criminal trials, there is generally no interlocutory appeals allowed for Section 379(1) of the Criminal Procedure Code allows only appeals by persons who have been convicted of some offence. As far as we understand the position the basis of an appeal cannot be that an order made in the course of a trial is highly prejudicial to an accused person: … the fact that a trial Judge has made an adverse ruling against an accused person in a criminal trial does not and cannot mean that the Judge will inevitably convict. The Judge might well acquit in the end and the adverse ruling, even if it amounted to a breach of fundamental right, falls by the wayside and causes no harm to such an accused.”

29. The similarity in the judicial review proceedings and this petition becomes very glaring when one reads the whole of Onyiego J’s ruling. The crux of this petition is a replica of that in the judicial review proceedings. The issue in both cases is the admissibility of the bank statements obtained without notice to the Petitioner.

30. Moreover, on the issue of the constitutionality or otherwise of the orders obtained by the 1st Respondent from the magistrate’s court to freeze and obtain statements or to investigate the Petitioner’s account without giving him notice hence without his consent and authority the position as it stands is that expressed by the Supreme Court in the Prof Tom Ojienda SC case Supreme Court Application No. 30 of 2019 (supra) where the court emphatically and categorically stated: -

“15) We have considered these rival submissions. It is not in doubt that the fight against corruption and economic crimes is a matter of great public importance. In the circumstances, in the interest of justice and to provide guidance, a clear and authoritative statement of this court on the issues raised is imperative. Consequently, we allow this application and direct that pending the hearing and final determination of the applicant’s appeal – NO. 30 of 2019, the effect of the High Court and Court of Appeal decisions in this matter is hereby stayed. Neither party to this appeal, nor any other person shall use, apply or in any way rely upon them until the said appeal is heard and determined.”

31. The issues raised by the Petitioner herein are similar to those in the Prof. Tom Ojienda SC case as can be discerned in paragraphs 3, 4, 5 (b) & (c) of the decision of the Supreme Court:-

“3) Upon hearing the Petition, the High Court, Lenaola, J (as he then was), in a judgment delivered on 5th February, 2016, besides quashing that order, issued a declaration that “the warrants to investigate an account given to the officers of the commission breached the 1st Respondent’s rights and fundamental freedoms under the provisions of Article 47(1) & 47(2) and 50(1) of the constitution and were hence void for all intents and purposes.”

4) Aggrieved by that decision, the EACC and DPP filed Civil Appeal Nos. 103 and 109 respectively before the Court of Appeal. The 1st Respondent cross-appealed faulting the high Court for failing to hold that his fundamental rights to privacy, to property and not to be discriminated against were violated; and for failing to award him damages for the violation of his right to fair administrative action. The Court of Appeal (Nambuye, Kiage & Ole Kantai, JJA) consolidated those appeals and in its judgment dated 28th June 2019, dismissed those appeals and the cross-appeal holding that investigations undertaken by EACC are an administrative function subject to the provisions of Article 47 of the Constitution and directed that in exercise of its mandate, EACC should always comply with the unambiguous and clear provisions of Section 26, 27 and 28 of Anti-Corruption and Economic Crimes Act by giving notice to suspects. It is that Court of Appeal decision that has provoked the present application.

5) (a) ..........

(b) That the judgment of the Court of Appeal has created inconsistencies in the interpretation and applications of Section 26, 27 and 28 of ACECA vis a vis Section 118 of the CPC and 180 of the Evidence Act;

(c)That the judgment and directions to give notice has serious ramifications on the fight against corruption and economic crimes and goes against the very basis of searches as an investigative tool.” (Emphasis mine)

It is my finding therefore that the decision of the Supreme Court is applicable to this case and that it answers prayers (a), (b), (c) and (d) of this petition.

32. Further, as I stated earlier it is evident that the issues in this petition were the exact same issues in the judicial review proceedings. The Petitioner’s invitation to this court to hear and determine the same issues between the same parties goes against Section 7 of the Civil Procedure Act and the doctrine of res judicata. It would also be improper and unlawful for this court to sit on appeal on a decision of a court of concurrent jurisdiction. What the Petitioner should have done was to file an appeal against the judgment of Onyiego J. Filing this petition can only be described as an abuse of the court process. It certainly is not a legitimate choice of approach of the court in exercise of one’s guaranteed right to access to justice. Litigation must come to a close and a party should exercise the right of appeal rather than filing a multiplicity of suits on the same issue albeit in different methods. I find that the petition is devoid of merit and it is dismissed.

33. Having come to the above findings the prayer for damages cannot hold and it is also dismissed.

34. Costs follow the event and the petitioner having failed to prove his case against the respondents coupled with the fact that he brought this petition after failing to obtain the same orders in the Judicial Review proceedings he must bear the costs of the petition. Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 3RD DAY OF MARCH, 2022

E.N. MAINA

JUDGE