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Supreme Court suspends order against EACC probe into Ojienda

Friday February 7 2020

The case concerns his alleged receipt of Sh280 million from Mumias Sugar.

Lawyer Tom Ojienda follows proceedings at the Milimani Law Courts in Nairobi on December 31, 2018, in a case against his prosecution for allegedly defrauding Mumias Sugar Company. PHOTO | DENNIS ONSONGO | NATION MEDIA GROUP  

IN SUMMARY

  • The Court of Appeal upheld a judgment by the High Court, which found that the EACC violated Prof Ojienda’s constitutional right to fair administrative action, in its probe into an alleged Sh280 million payment by the Mumias Sugar Company.
  • In its ruling on Friday, the Supreme Court said it is not in doubt that the fight against corruption and economic crimes is a matter of great public importance.
  • The commission told the Supreme Court that the lower courts' decision for suspects to be given notice before their bank accounts are accessed had “serious ramifications on the fight against corruption and economic crimes.
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The Supreme Court has suspended an order that stopped the EACC from investigating lawyer Tom Ojienda until an appeal it lodged against two court decisions on the matter is determined.

The Court of Appeal upheld a judgment by the High Court, which found that the Ethics and Anti-Corruption Commission violated Prof Ojienda’s constitutional right to fair administrative action, in its probe into an alleged Sh280 million payment by the Mumias Sugar Company.

However, while suspending the appellate court's decision on Friday, Supreme Court judges David Maraga, Mohamed Ibrahim, Jackton Ojwang, Smokin Wanjala, and Njoki Ndungu said 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 issue raised is imperative,” they said.

EACC'S ARGUMENTS

The commission told the Supreme Court that the lower courts' decision for suspects to be given notice before their bank accounts are accessed had “serious ramifications on the fight against corruption and economic crimes.

It said the requirement undermines searches as an investigative tool.

The EACC said several applications have since been filed in different courts seeking release of documents that had been obtained without compliance with the findings of the High Court and the Court of Appeal.

THE CASE

The matter dates back to March 18, 2015, when the Chief Magistrate's Court in Kibera issued warrants for the EACC to look into Prof Ojienda’s bank accounts.

The warrant was issued after the commission told the court that it wanted to investigate the Sh280 million allegedly paid into the lawyer’s account by Mumias Sugar Company.

Aggrieved by this order, Prof Ojienda filed an application saying the EACC secretly, and without giving him notice, obtained warrants to look into his bank account.

He said the action amounted to abuse of power and violated his rights to privacy and a fair hearing.

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