Danson Kaba VS Ethics and Anti-Corruption Commission AND Chief Registrar of the Judiciary

REPUBLIC OF KENYA

(ARISING FROM THE PROCEEDINGS, WARRANTS AND ORDERS  ISSUED IN MOMBASA CHIEF MAGISTRATE’S COURT IN MISC CRIMINAL APPLICATION NUMBER 773 0F 2024.

BACKGROUND

1. There are 3 related Applications touching on more or less the same subject matter but filed separately as each is in respect of a different case number.  The common denominator in the 3 Applications is the Applicant in  Mombasa Chief Magistrate’s Court Miscellaneous  Criminal Application number E 241 of 2024.  That is LIASON GROUP  ( I.B) LIMITED.   The Applicant in Msc Application Number  E 239 0F 2024  is the GENERAL MANAGER OF COAST REGION  AT LIASON GROUP (IB) LIMITED  and The Applicant in Misc Application Number  E240 Of 2024 is the General Manager of Healthcare at Liaison Group (Insurance Broker) Limited.
2. The Respondents in the 3 applications are  the EACC and the CM Mombasa.  The Genesis of these 3 Applications is the execution, on the 26th day of November 2024  by the 1^st Respondent,  of some warrants  issued by the 2^nd Respondent.  It   follows that the affidavits, objections and submissions are in the same line save for the differences in the case numbers. Consequently, the analysis and determination are more less in the same line save for the specificity in names and case numbers and details thereto.
3. THE APPLICATION
4. This ruling is in relation to the Notice of Motion Application dated and filed on 3^rd December 2024 seeking the following prayers:
5. SPENT
6. SPENT
7. THAT this Honourable Court calls for the record of the Mombasa Chief Magistrate Court in Chief Magistrate Misc. Criminal Application No. 733 of 2024 for examination for purposes of satisfying itself and determination as to the legality, propriety and correctness of the orders issued pursuant to the Notice of Motion Application dated 7^th November 2024.
8. THAT the Court be pleased to grant an order requiring the 1^st Respondent to return all documents and electronic devices seized by the 1^st Respondent from the Applicant’s office on 26^th November 2024
9. THAT this Honourable Court be pleased to grant any other or further order or relief it may deem fit and just in the circumstance.
10. THAT the costs of this application be provided for.

BRIEF FACTS OF THE CASE

1. The 1^st Respondent herein filed a Miscellaneous Application dated 6^th NOVEMBER 2024 before the Trial Court, 2^nd Respondent, under the statutory provisions of Section 118, 118A, 119, 120, 121 and 122 of the Criminal Procedure Code, CAP 75 and Section 23 of the Anti-Corruption and Economic Crimes Act, 2003 seeking Search Warrant Orders necessary for the conduct of investigation into alleged corruption and economics crime offences.

1. The 1^ST Respondent accompanied by armed policemen, proceeded to execute with an  Search Warrant which appears to have a not clear date upon the Applicant on 26^th November 2024.
2. Aggrieved by the procedure and decision of the 2^nd Respondent, the Applicant filed the Instant Suit under the statutory provisions of Article 165(6) and (7) of the Constitution of Kenya and sections 362 and 364 of the Criminal Procedure Code, CAP 75. Orders issued by this Court were served upon the Respondents on 4^th December 2024.
3. The Applicant submitted that 1^st Respondent approached the Trial Court seeking Orders under Section 23 of the Anti-Corruption and Economic Crimes Act Cap. 65 that grants it investigative powers, privileges and immunities similar to a Police Officer.
4. That the ex-parte Search Warrant Orders were triggered by the 1^st Respondent’s Notice of Motion wherein a Supporting Affidavit sworn by MohamedNoor Gollo. They argued that the  Supporting Affidavit therein DID NOT PRESENT ANY MATERIAL EVIDENCE to enable the Court have a reasonable suspicion that an offence had been committed.
5. It was the Applicant’s position that when the 1^st Respondent is seeking Search Warrant Orders, it must present the Court with facts that enable the Court conclude that Orders issued are warranted. They urged the court to follow the  position as expressed by the Court in CRIMINAL REVISION 569 & 2326 of 2012 MANFRED WALTER SCHMITT & ANOTHER V REPUBLIC & ANOTHER [2013]eKLR; where the JUDGE said:

‘I would be remiss if I did not comment on the nature of the proceedings before the subordinate court. The duty imposed on the judiciary to issue warrants of search and seizure is a constitutional safeguard to protect the rights and fundamental freedoms of an individual. The Court is not a conveyor belt for issuing warrants when an application is made nor must the court issue warrants of search and seizure as a matter of course. When an application is made, the Court is required to address itself to the facts of the case and determine, in accordance with the statutory provisions, whether a reasonable case has been made to limit a person’s rights and fundamental freedoms. On the other hand, the duty of the State and its agencies, in investigating and prosecuting crime, is to furnish the Court with facts upon which the court can conclude that there is reasonable evidence of commission of a crime by the person it seeks to implicate by the application for search and seizure.’

1. The Applicant also referred to Supreme Court regarding the 1^st Respondent’s powers under Section 23 of the ACECA in PETITION NO. 30 & 31 OF 2019 (CONSOLIDATION) ETHICS AND ANTI-CORRUPTION COMMISSION & ANOTHER V TOM OJIENDA, SC T/A PROF. TOM OJIENDA & ASSOCIATES ADVOCATES & 2 OTHERS [2022] KESC 59 (KLR)

‘If the Commission is carrying out a police operation or an intelligence gathering or asset tracing exercise, it cannot be required to issue a prior mandatory Notice to the intended targets. In such a situation, the provisions of Section 23 of ACECA, the Evidence Act, the CPC, and any other enabling legislation come into play.’

1. The position that reasonable suspicion is not arbitrary was further expressed in PETITION NO. 113 OF 2006 STANDARD NEWSPAPERS LIMITED & ANOTHER V ATTORNEY GENERAL & 4 OTHERS [2013] eKLR

‘Secondly, as is also clear from the provisions of the Criminal Procedure Code set out above, the onus is on the person seeking the search warrant to prove the necessity for such warrant. In Vitu Limited –vs- The CHIEF MAGISTRATE NAIROBI & TWO OTHERS, H.C. MISC. CRIMINAL APPLICATION NO. 475 OF 2004 the Court (Osiemo J.) remarked that:

“It is therefore expected that when a police officer or any other investigator approaches the Court for a warrant, there must be reasonable suspicion of an offence being about to be committed or having been committed …”’

1. The Applicant’s submitted that in the Application before the Magistrate’s Court,  the 1^st Respondent sworn affidavit of MohamedNoor Gollo dated 8^th November 2024 alleged loss public funds amounting to Ksh 40 million for the provision of Medical Insurance Cover, Group Life Assurance Cover and General Insurance Cover for KMA Staff and Board Members.
2. That the true position is that KMA issued the said tenders as open tenders with ver 10 insurance companies and insurance brokers participating.
3. For Tender No KMA-ONT-19-2023-202- Provision of medical insurance cover for KMA staff and board members

1. For Tender No: KMA/ONT/20/2023-2024- Provision of Group Life Insurance Cover for KMA Staff

1. For Tender No: KMA-ONT-29-2022-2023 for the provision of General Insurance Cover

1. Upon a very competitive tender process on the technical mandatory requirements, Liaison Group (Insurance Brokers) Ltd emerged as the lowest bidder and the majority if not all of the other bidders quoting higher prices. The alleged Ksh 40 million loss is actually the collective insurance premiums quoted for the various insurance covers by Liaison Group (Insurance Brokers) Ltd.

That since 16^th April 2024 and 29^th April 2024 when the Medical and Group Life Insurance contracts were duly executed respectively, KMA has been and still is consuming the said insurance covers.

1. That since the awarding of the tender to Liaison Group (Insurance Brokers) Ltd there has been no Application for Review filed at the Public Procurement Administrative Review Board (PPARB) seeking a review of the tendering process.
2. That the Applicant is apprehensive that the 1^st Respondent’s actions are intended to tarnish his reputation and presumption of innocence through the misrepresentation of the Search Warrant as an arrest warrant via the media.
3. Consequently, due to the Respondents’ impropriety in the procedure and Orders granted, the Applicant’s rights under Article 27, 28, 29, 31, 47 and 50 of the Constitution of Kenya have been infringed/violated as follows:
   1. Alleging the Applicant’s corrupt dealings without any charges being proffered to him. (Paragraph 10 & 11 of the Supporting Affidavit sworn on 3^rd December 2024 by Moses Mathini).
   2. The search and seizure of electronic devices and material documents without any justification. (Paragraph 3 of the Supporting Affidavit sworn on 3^rd December 2024 by Moses Mathini).
   3. 1^st Respondent acting maliciously and causing the Applicant substantial business and reputational harm by implying that the Applicant was engaged in corrupt dealings. (Paragraph 10 & 11 of the Supporting Affidavit sworn on 3^rd December 2024 by Moses Mathini.)
   4. That as of the date of filing  the 1^st Respondent continues to abuse its powers and be in gross violation of the Applicant’s rights as continues to hold the Applicant’s documents in abeyance.

• 1. Execution of Warrants contrary to the directions issued by Honourable J.Ong’udi in ACEC MISC NO. 51 OF 2018 HASAN MOHAMED V ETHICS AND ANTI CORRUPTION COMMISSION & ANOTHER [2018] eKLR

1. The 1^st Respondent through the Learned Advocate Mr Joram Wambugu, filed grounds of opposition to the motion dated   

     3^rd December 2024 stating  ;

That By virtue of Article 157 of the Constitution, the Director of Public Prosecution has the legal authority over criminal proceedings.    That Revisions are criminal proceedings in character, thus, these proceedings are therefore incompetent in Law for want of including the DPP.  They cited Mohamed Asif Rehman vs Chief Magistrate Court, Makadara [2022] eKLR.

1. That the Orders granting search warrants are not final but are in the nature of interlocutory orders such that the applicant, having been named in the application and served, ought to have filed an application for the setting aside of the impugned search warrants before the subordinate Court in the first instance.  The application is therefore flawed for want of ripeness.  They cited the  guidance provided in ACEC Misc. No. 51 of 2018 Hassan Mohammed vs EACC & Another [2019] eKLR.
2. The Respondent further submitted that without prejudice to the foregoing, the application for search warrants contained reasonable suspicion, which does not involve certainty of truth.  That Reasonable suspicion is merely reasonable conjective or summation.  There need not be proof but a mere seed which on investigations may lead to prima facie proof.  They cited Emmanuel Suipanu Siyanga vs Republic Criminal Appeal 124 of 2009 [2013] eKLR and Christopher Ndarathi Murungaru vs Kenya Anti-Corruption Commission & Another Misc. Civil Application 54 of 2006 [2006] eKLR.
3. Finally they urged the court to find that where  there is no evidence of abuse of power or a gross violation of the rights of a person to be searched has been placed before the court, the court should be slow to find that a search warrant is unlawful on purely technical grounds.  That the warrant was issued by a judicial officer presiding over a court which had the requisite jurisdiction to issue the warrant.  The warrant identified the person to carry out the search, and the places, day and times when the search should be conducted.  The failure to date the warrant was therefore a minor error.  They cited  Momanyi Obiri vs Ethics & Anti-Corruption Commission & another [2019] Eklr; and Omwanza Ombati t/a Nchogu, Omwanza & Nyasimi Advocates vs Director of Criminal Investigations Department Emmanuel Kanyungu & 3 Others [2017] eKLR).
4. As a result, they urged that , The Applicant’s Motion dated 3^rd December, 2024 lacks merit and should be dismissed with costs.
5. The Applicant, with leave,   filed a further affidavit stating that that the present suit is not similar to the referred case of Mohamed Asif Rehman vs. Chief Magistrate Court, Makadara [2022] eKLR and joinder of the DPP was not necessary/required.
6. THAT the 1^st Respondent is an Independent Office set up by Article 79 of the Constitution of Kenya with the same status and powers as a commission under Chapter Fifteen. This status includes being capable of suing and being sued in its corporate name as detailed in Article 253(b) of the Constitution of Kenya.
7. THAT the 1^st Respondent has not presented any evidence that the Office of the Director of Public Prosecution were involved/exercised their powers under Article 157 of the Constitution of Kenya or Section 5 of the Office of The Director of Public Prosecutions Act (Cap. 6b).
8. THAT furthermore, in the Trial Suit, the 1^st Respondent’s investigative officer, Mr. Mohamednoor Gallo was exercising his authority by dint of section 11(1)(d) of the Ethics and Anti-Corruption Commission Act therefore joinder of DPP is not necessary/required. 
9. THAT this Court has jurisdiction in revision suits by dint Article 165 (6) & (7) of the Constitution of Kenya.
10. THAT the Trial Court did not heed to the directions issued by the High Court in Hasan Mohamed v Ethics and Anti-Corruption Commission & another [2018] eKLR;
11. The Court therefore had to determine whether the warrants were properly issued and  executed and the test for this are the GUIDELINES  as set out in the Hasan Mohammed Case. They are as hereunder;
12. The Judge started by giving the background as:

“Over and over again this court has advised that the exparte orders issued for search warrants should not be open ended. They should not last as long as the investigator wants. There has to be a procedure where the court is given an account on how the search has progressed.

1. Then the guidelines were introduced as below:

”  Owing to the many complaints arising from the exparte issuance of search warrants by the Magistrates courts under section 118 and section 121(1) CPC and for proper management of the process, as a Division, we have decided to issue the following guidelines.”

(i) Upon issuance of the orders under section 118 & 118 A of the Criminal Procedure Code the Magistrate must state the duration within which the order shall remain in force.

(ii) The duration shall not exceed 14 days.

(iii) The court shall give a return to court date soon after the 14 days for the following purpose.

(a) For the Investigator to appraise the court on what he/she has done.

(b) For the affected party to raise any issues it may have.

(c) The court could extend the search warrant by a maximum of  days if satisfied of the need to do so.

(iv) The affected party must be served within 48 hours of the issuance of search warrants.

1. The Hon Judge Ong’undi  added that she was  confident that the above guidelines will assist all parties involved in this delicate issue and it was ordered that;

“ This direction should be circulated to all Magistrates courts to take note when handling any applications under section 118 and section 121(1) CPC in respect to Anti corruption and Economic Crimes only.”

33. The warrants complained of herein were issued on 6^th or 7^th  November 2024 and they were executed on the 26^th of November 2024.The Applicant pointed out that this Execution was some 19 days later and therefore irregular. To the Respondents this was a minor defect that can be over looked.

34. But therein lies the mischief. In the guidelines set out above, there are very specific provisions on time.  The  issuing court has to give the time lines for execution ,The  Execution has to be within 14 days and there has to be are turn date to update the court after the 14days.

35. I called for and examined the trial courts order for its  legality, correctness  , regularity and propriety under section 362 of were the  CPC  and it is clear that those guidelines were not adhered to.

36. I am inclined to find , that  this was the mischief the 1^st Respondent  was furthering by Executing  the un dated or not clearly dated  warrants.  Simply to cover up on the time lapse.  If we go by the date  the application was filed in the Magistrate’s Court, they  were executed on the 19^th day and hence way past the14 days set out in the guidelines .

36. This is very unfortunate especially coming from the body that is our ethics prefect.    Ethical conduct is doing the right thing at all  times and those who hold others to account should  set and lead as  an example.  Or is it a case of preaching water but drinking wine  ? I pray not.

37.The Applicant alleged malice citing the way the issue was highly published by the first Respondent.  It may not be malice as such but the  uniquely Kenyan practice that I have come to label “Headline Grabbing Guided Prosecution . This is where the investigators raid parties after summoning all the media houses and ensure that  the arrest   or execution of a warrant such as this , or  even  first court arraignment is widely circulated especially in public interest  matters.  Unfortunately most of these matters end up not going far.  I have said it before and I repeat, the investigators ought to conduct thorough investigations and prepare water tight cases. These do not  need media and social media platforms like x. They should aim at a successful prosecution  then shout about it from the roof tops.

38. I have also looked at the Application , The Magistrate’s  court record and the orders that were given and tested them as per the MANFRED WALTER SCHMITT & ANOTHER decision (IBID) . In as much as the applicant had given some background and mentioned entities and figures , I find that the court did not make any reference to, let alone attempt to analyze  the submissions. This is what the warrant states;

“WHEREAS information has been laid before me that for the purpose of an investigation into the commission of an offence, it is necessary to access and gain entry into and search the business premises and offices of DANSON KABA  of Liaison House, Links Road  Nyali within MOMBASA,  county, or any other business premises or premises wherever located, within the Republic of Kenya reasonably suspected to be holding documentary and or electronic evidence or anything which is necessary for the conduct of investigation into corruption and economic crime offences; Now THEREFORE: I authorize  ….”

39.        Clearly the trial court did not comply with the set guidelines.

40. There was also  the issue on the joinder of the DPP.       The Applicant pointed out that   the 1^st Respondent is an Independent Office set up by Article 79 of the Constitution of Kenya with the same status and powers as a commission under Chapter Fifteen. This status includes being capable of suing and being sued in its corporate name as detailed in Article 253(b) of the Constitution of Kenya. I agree.    That is why they did not involve the DPP IN the process.

40.Further, a revision is one of the supervisory mandates of the High court  under Article 165  (6) And (7) and  revisions can get to the high court variously. These   include by An Application, letter or even the trial court may forward such a file .

41.As to whether the warrants are a final order or otherwise,    the court is of course minded never to interfere with the mandate of any of the other stakeholders.   The high Court only steps in to ensure that all the parties run on the proper lanes and box   within the confines of their arena whilst observing all the rules set . No one should be seen to steal a match  by taking short cuts . Worse still , I repeat  such a party must not be the 1st Respondent  or the court.

42. In the Instant Application  the two  respondents bent the rules.    They ignored the Guidelines and Ignorance cannot be an excuse .    The 1^st  Respondent has always made these kind of Applications and they cannot be said to be ignorant.  Like wise the issuing court treated the matter casually or as of course.  That  lead to the breach complained of herein and there qualified the process for review for want of legality, correctness and propriety.

43. I therefore allow the Application herein and quash the search warrants  that were irregularly issued in MOMBASA CHIEF MAGISTRATE’S COURT IN MISC CRIMINAL APPLICATION NUMBER 773 0F 2024  on 26^th November 2024

. 

44.All the property, including the documents, and electronic devices  belonging to the APPLICANT that were  seized and carted away from the Applicant’s office by the 1st Respondent on the 26^th November 2024   should be returned to the Applicant. 

45. To ensure the is proper compliance these must be done   within the next 14 days from today and a proper inventory prepared.

1. .There are no orders as to costs in the Application.

47.Ordered accordingly.

.

Dated, signed and delivered in Open Court/online

through MS TEAMS,

this ……27^th …………day of ………February…………………2025

HON. LADY JUSTICE W. K. MICHENI

JUDGE

In the presence of: -

MR Munene for the Applicant

No appearance by the Respondents.

Ms Bebora  court Assistant

Ms Cherop in court for ODPP  but not a party.

HON. LADY JUSTICE W. K. MICHENI

JUDGE