T1. The Application that forms the subject of this Application is the one dated 19th day of October, 2024 wherein the Applicants seek the following orders:
1) An Order of Certiorari to remove into this honourable court and quash the three notices to explain all dated the 15th day of January 2024 and the demand notices dated the 5th September 2024 as issued by the Respondent against the Applicants;
2) An Order of Prohibition prohibiting the Respondent by themselves, their agents, employees and or anybody deriving authority from the said Respondent from freezing, confiscating, implementing and/or taking any action or punitive disciplinary measures against the Applicants on account of the notices to explain and demand notices dated 15th January 2024 and 5th September 2024 respectively issued against the Applicants.
3) An Order of Mandamus do issue compelling the Respondent to release and/or return to the Applicants all the landed property documents both original and copies and monies as particularized in the Respondent’s inventory dated 23rd march 2023, 24th march 2023 and 6th June 2023 and further be compelled to remove any caution that they may have placed on any of the said inventorized properties.
4) A declaration do issue that the Applicants’ fundamental right to fair administrative action, fair hearing, equal protection of the law, and legitimate expectation have been infringed and/or threatened by the Respondent on account of the notices to explain and demand notices dated 15th January 2024 and 5th September 2024 respectively as issued by the Respondent against the Applicants.
5) A declaration do and hereby issue that the Respondent is Constitutionally obligated to act lawfully, fairly and reasonably in the exercise of their Constitutional mandate, which principles have been threatened / violated by issuing / causing the issuance of the notices to explain and demand notices dated 15th January 2024 and 5th September 2024 respectively against the Applicants herein.
6) An order permanently restraining any attempt by the Respondent by themselves, their agents, employees and or anybody deriving authority from the said Respondent from freezing, confiscating, implementing and/or taking any action or punitive disciplinary measures against the Applicants on account of the notices to explain and demand notices dated 15th January 2024 and 5th September 2024 respectively issued against the Applicants.
7) The Respondent be ordered to pay the Applicants the cost of this Application.
8) Such further and other reliefs that the honourable court may deem just and expedient to grant.
The Applicants’ Case;
2. The 1st Applicant argues that he is duly authorized by the 2nd and 3rd Applicants to swear this affidavit on their behalf regarding the facts of their claim herein.
3. It is his case that on 7th February 2024, the Respondent issued to the Applicants, notices to explain their purported disproportion between their assets and known legitimate sources of income.
4. It is The 1st Applicant’s case that these notices to explain basically targeted him to explain his sources of income between the period 2013 and 2023 herein referred to as the ‘relevant period.’
5. The 1st Applicant is aggrieved that prior to the notices to explain, the Respondent commission had, out of malice and driven by ill motives, broken into his houses in Nairobi and Webuye taking away a pile of landed property ownership documents including and cumulatively over 75 land title deeds, land sale agreements and cash amounting to over Kshs 1,675,000/= and confiscated his documents per the inventory marked aw 4.
6. He argues that the Respondent commission wants him to explain his sources of income but has taken all the documents including copies of the same and has declined to release even copies to him to enable him to effectively account for each of the property acquired lawfully within the relevant period.
7. The 1st Applicant further argues that The Respondent had even previously sought for his summary dismissal and/or suspension from employment which led to his illegal suspension for 12 months. He secured a judgment from the employment court.
8. The foregoing presentation depicts an unethical, malicious, corrupt and vindictive Respondent commission driven by ulterior motives and who is out to unnecessarily injure the reputation of the Applicants, and completely destroy an otherwise my illustrious career according to the 1st Applicant.
9. On 5th September 2024, the Respondent issued demand notices to him and his Co-Applicants requiring them to surrender all the property jointly and severally owned amounting to Kshs 418,286,554.16/= within 14 days from the date of issue of demand failure to which they institute recovery proceedings against them without any further reference to the Applicants.
10. In the notices dated 15th January 2024, the Respondent commission is seeking for The 1st Applicant to explain how he acquired property which the Respondent has purportedly valued at Kshs 434,844,839.80/= comprising of value of land - Kshs 294,200,000/=Bank deposits - Kshs 129,569,Motor vehicles - Kshs 9,400,000/= and Cash Kshs1,675,000/=.
11. The 1st Applicant argues that despite his comprehensive responses to the notices to explain and which responses are respectively dated 19th April 2024, 28th may 2024, 14th August 2024 and 22nd September 2024 among others, the Respondent only chose to look at the response of 19th April 2024 ignoring all the others consequently issuing demand Notices
12. He considers the impugned demand notices unfair, unreasonable, clouded with malice and ulterior motive, biased and overbearing on grounds that whereas the Respondent commission is clear that the period of interest or investigation i.e. the relevant period is between 2013 and 2023, the 1st Applicant’s home where he resides with his family and which was bought and developed in 2009 at a cost of Kshs 8,255,000/= before even joining his current employer has been included in the Demand notices as part of the property to be surrendered to the Respondent commission and which they have overvalued at Kshs 28,200,000/=.
13. To demonstrate further abuse of power and bad faith on the part of the Respondent, for the salary account, the Respondent commission listed 79 entries of deposits of which they summed up to Kshs. 85,348,552.20. The commission also acknowledged that in the relevant period, the 1st Exparte Applicant’s net salary was Kshs. 43,137,225.38 and therefore demanded an explanation on the difference.
14. But on the summation of the 79 entries, the correct sum is Kshs. 43,239,686.20. This figure includes Kshs 3,996,977.30 in entry no. 42 as provided in the notices to explain which was arbitrarily inserted and therefore the correct summation should be Kshs 39,242,707.20.
15. It The 1st Applicant case that the demand for explanation for a difference of Kshs. 46,105,843 arises from their own errors of commission and omission and is therefore unreasonable and unfair and must be stopped.
16. The 1st Applicant argues that since March 2023, the Respondent has been in custody of all his landed property documents being all original land title deeds and original sale agreements and copies thereof having confiscated them including even those acquired before the relevant period.
17. He is unable to access credit to even pay school fees for his children hence the continued retention of the said documents without any justifiable cause has adversely affected the schooling of his children.
18. He cannot dispose of any of his property because all the original documents are in custody of the Respondent illegally.
19. He is further concerned that the Respondent commission has wrongly included five landed properties in the impugned demand notices valued at Kshs 36,000,000/= giving a wrong and malicious impression that the same were acquired within the relevant period.
20. According to the 1st Applicant,The Respondent has, without any basis of their valuation or any indication as to how they arrived at their valuation, overvalued the landed property acquired in the relevant period at Kshs 258,200,000/= yet from the land sale agreements and which agreements are in their possession clearly show that the same were acquired over a period of 10 years at Kshs 60,970,000/= hence an overvaluation of and/or by Kshs 197,230,000/=.
21. According to him the intention of the Respondent commission is just to dump figures and/or throw figures to create a perception or an impression that the 1st ex parte Applicant acquired the said properties corruptly yet the 1st Applicant has clearly demonstrated how he acquired the said properties from his savings, salary and business and most and/or almost all of them are in his rural Webuye Sub-county, but the commission doesn’t won’t to hear any of the above.
22. The Respondent has also ignored his professional valuers report.
23. He argues that he has been in employment for over 27 years as a civil engineer and consulting civil engineer rising the ranks to acting Managing Director, KETRACO and now the general manager, d & c and my direct income alone and as confirmed by the Respondent, for the relevant period of 10 years cumulatively amounts to Kshs 63,141,480.00/= comprising of salary of Kshs 53,668,372.40; bank loan of Kshs 4,321,800/=; interest of bank deposits Kshs 110,579.00/= and bank balance brought forward of Kshs 5,040,729.00/=.
24. The Respondent has ignored all his explanations and comprehensive responses and 18 months have since lapsed from the date when the Respondent confiscated his documents and demands to have them returned to me have gone in vain and as it stands the Respondent remains in total violation of Section 26(2) of the leadership and integrity regulations.
25. He argues that the Respondent’s continued illegal possession of his land title documents contravenes his Constitutional right to property and has demobilized him, rendered him miserable and subjected him to economic distress.
26. The Fair Administrative Action Law demands that a party to whom a claim is raised against is accorded a fair process and supplied with documents relied upon by his adversary as is in the instant case of the Applicants and the Respondent but the Respondent has blatantly overlooked this.
27. A decision or action would be unconstitutional and an unconstitutional decision is not a law, it confers no rights, it imposes no duties, it affords no protection, creates no office and it is in legal contemplation as inoperative as though it had never been passed. That, is the only fate that must befall the decision and or intended decision of the Respondent in the instant case as the impugned demand notices remain void ab initio.
28. The Respondent commission has a predetermined decision, motivated by malice and choreographed to defeat the ends of justice and are so keen on locking the 1st Applicant out from the seat and wheel of justice.
29. The issuance of the notices, was done with an ulterior motive or purpose calculated to prejudice the legal rights of the exparte Applicants; failed to take into account relevant considerations and violates the legitimate expectations of the Exparte Applicants to whom they relate.
30. This honourable court is mandated to protect the national values and principles set out in article 10 of the Constitution which includes the observance of human rights, the rule of law, integrity, social justice, non-discrimination, and accountability.
31. In The Exparte Applicants' Replying Affidavit to the Respondent’s Affidavit dated 25.11.2024,he argues that he declared his wealth as required by law for the years 2013 and 2023 in line with his wealth declarations forms and argues that his assets have never been a subject of doubt or investigations.
32. The Respondent sought and obtained court orders to investigate what they alleged as his involvement in procurement irregularities in the Lake Turkana wind power project and the associated Loiyangalani- Suswa transmission line.
33. He argues that, the statement by the Respondent that investigation was prompted by a report on accumulated assets that were disproportionate to his known legitimate source(s) of income between January 2013 and December 2022, (the period of interest), is an afterthought by the Respondent on realising that the first attempt to kick him out of KETRACO through false criminal accusation failed, thus resorting to attempted false civil accusations.
34. There was therefore according to The 1st Applicant no investigations pending and/or to be commenced as had already been completed and no iota of evidence whatsoever implicating him to any form of corruption in the said project.
35. It is the 1st Applicant’s case that the Magistrate Court issued the search warrant with specific directions that required the Respondent to seize any material connected with the two projects.
36. Instead of complying with the said court order and/or search warrant, the Respondent operating irrationally and unreasonably confiscated 28 of his landed property documents which documents relate to properties he had acquired some way before his employer-KETRACO was established and some of which he had acquired way before the impugned projects were conceptualized and before the said period of investigation or relevant period of interest.
37. The 1st Applicant argues that on the purported completion of the said investigations, the Respondent without any evidence alleged that they had found that he was involved in misappropriation of Kshs. 18.5 billion by processing fraudulent payments to Isolux Ingeniera, a contractor on the Loiyangalani- Suswa transmission line.
38. They even went ahead to recommend his suspension for 12 months on the basis of their investigations which suspension the employment court termed as unlawful and unconstitutional thereby revoking the same and directing for his unconditional restoration to work
39. He was never involved in the Ketraco-Loiyangalani-Suswa transmission line project when payments were made to Isolux and the purported investigations into his wealth is a ploy to sanitise their failed bid to make him a scapegoat in the Lake Turkana wind power alleged scandal.
40. The Respondent acting so maliciously and desperately even went to the extent of engaging in falsifying his bank credits as explained in the paragraph below with an intention to just unfairly punish him, ruin his career and kick him out of employment, unlawfully taking all his properties.
41. He argues that in the course of their purported investigations, the Respondent employed fraudulent, unethical, irrational, unreasonable and unfair means to arrive at what they termed as “unexplained assets disproportionate to his known legitimate sources of income within the period of interest valued at approximately Kshs 418,286,554.16 in his possession.”
42. In the three notices to explain, the Respondent purported to have valued my assets at Kshs. 552,472,194.40 and by subtracting Kshs. 137,182,680.24 which they termed as adequately explained, the balance was Kshs 418,286,554.16.
43. The Respondent for instance, in their notice to explain required him to explain source of income adding up to Kshs 85,348,533/= yet in their own analysis - their demand notice to the Applicant annexed and marked as aw 10), where they have clearly and correctly so admitted that his net salary was Kshs 43,137,225.38. Therefore, the Respondent’s action to include fraudulent/fictious and/or fabricated credits and then demand him to explain including the fabricated difference of Kshs 49,846,977.30 is in itself not only malicious and fraudulent but also irrational and unreasonable.
44. It is deplorable and shocking that such a high office constitutionally regarded as custodian of ethics and integrity can sink this low purely to drive malicious and unethical intent to unjustly ruin my career and deprive him of genuinely and lawfully acquired property. The exaggerated deposit to KCB Account No. 1103087045 alone is even more than double the correct sums.
45. The Kshs. 418,286, 554.16partly comprised of bank credits amounting to Kshs. Ksh224, 784,657.96 which the Respondent has wrongly interpreted as assets in his possession. An asset in a bank is a credit balance at any particular point in time, in this case December 31st 2022. Credit and debit entries represent day-to-day account transactions that may result from sales and purchases.
46. Therefore, counting all credit entries as assets in his possession violates the doctrine of double counting which is erroneous thus leading to wrong conclusions.
47. His closing credit balances for the respective bank accounts, which represented the correct assets in his possession are tabulated below in comparison to the Respondent’s demand.
Table 2: exaggerated assets in bank balances
S/no. Account name Bank Account
Number Balance as at
December 31 2022 Respondent’s
Demand notices
1 Antony Tawayi Wamukota KCB 1103087045 Ksh645,528.30 35,501,575.90
2 Antony Tawayi Wamukota ABSA 2035352573 Ksh2.85 44,221,286.60
3 Aliceson Investment Company Ltd ABSA 2028711231 Ksh824,557.96 68,937,897.90
4 Aliceson Investment Company Ltd ABSA 2028711231 Us$214.70 111,620.48
5 Civil Build Developers Company Ltd DBK 11120151301 Ksh193,900.00 13,195,000.00
6 Equivalent total in Kshs (1USD=Kshs 117.20 Ksh1,689,151.95 Ksh161,967,380.88
48. This resulted in a wrong variation of over 160,000,000/= an erroneously arrived amount which the Respondent wants him to explain and despite his responses to them trying to clarify they did not bother to consider his response.
49. The 1st Applicant is concerned that the Respondent further alleged in their affidavit “that upon conclusion of the investigations, the plaintiff established that the 1st Applicant was in possession of unexplained assets...........valued at approximately Kshs 418,286,554.16 in his possession and his associates, the 2nd and 3rd Applicants”.
50. The only assets that he possessed in banks, either directly or indirectly are bank balances tabulated above and which he annexed in his bank statements as proof.
51. Therefore, according to the 1st Applicant for the Respondent to demand that he surrender ksh224,784,657.96 in cash without attaching bank statements to indicate where the monies are domiciled/kept is unreasonable and irrational.
52. The fabricated Kshs 418,286,554.16 which he is being asked to surrender partly comprised of Kshs. 9,400,000 being valuation of a lorry truck Reg. KCW 151A that is not his asset.
53. Whereas the Respondent are very clear in their notices to explain that they investigated into assets acquired in the relevant period being January 2013 to December 2022, they seized ownership documents i.e. Title deeds and sale agreements for assets acquired before the said period even contrary to the search warrant and/or order of the court.
54. The Respondent went ahead to demand that him to explain how he acquired the same assets.
55. His advocate wrote to the Respondent requesting that they avail original and/or copies ownership of documents to assist in the explanation.
56. According to The 1st Applicant The Respondent, by refusing to hand over the documents even copies knowing they had not only picked original documents but also copies which indicates that the Respondent took all documents including original and copies and therefore leaving him with nothing he could use to explain as the purchase prices were on the sale agreements.
57. By concealing the requisite information from him, the Respondent conspired to ensure that he failed to give comprehensive responses to their notices so that they can issue demand notice. Whereas the Respondent has the original land sale agreements for all of his landed properties, they valued the same assets at imagined prices which are very high.
58. Having obtained very high valuations, the Respondent, in the notices to explain, required him to explain the source of funds used in the acquisition of the assets at the imagined rates.
59. The Respondent declined to avail a valuation report and or any indication on how they arrived at the said figures which up to now remains as cooked figures fabricated to arrive at malicious and illegal end.
60. Despite visiting all land properties owned and possessed by him directly and indirectly through Aliceson Investment Company, a family enterprise where he owns 25% shareholding, the Respondent ignored the value of development on the land in terms of 40 acres of forests with mature trees mostly aged above 10 years and ready for harvesting.
61. The market price of unprocessed 10-meter wooden poles ranges from Kshs. 5,000 to 8,000. Sale of wooden poles is our main source of income which would have easily explained the question of “possession of unexplained assets disproportionate to his known legitimate sources of income” as put in the notices to explain, demand notice and in the Respondent’s replying affidavit. There is no worse manifestation of malice than the Respondent’s refusal to recognise sale of forest material in my responses but instead seek to criminalise such income as money laundering.
62. The Respondent in their own admission, secured the search warrant by swearing an affidavit submitted by the Respondent, stating that they were investigating procurement irregularities in the Lake Turkana Wind Power Project and the associated Loiyangalani- Suswa Transmission Line.
63. On this basis the court issued the search warrant with specific directions that required the Respondent to seize any material connected with the two projects. Both projects were commenced and completed between year 2013 and 2018.
64. While executing the search warrant the Respondent violated his right to a fair process in that the Respondent committed an illegality by seizing ownership documents of property acquired not only before the two projects were conceptualized but even before KETRACO was incorporated in 2008.
65. Whereas the Respondent, in paragraph 6 of the said affidavit, confirms that they were investigating income between January 2013 and December 2022 referred to as period of interest, most of the original title deeds seized were for properties acquired and developed before January 2013.
66. The Respondent seized 28 ownership documents in violation of court orders which had clearly restricted that they pick documents related to the two projects which commenced in 2013 and completed in 2022 i.e. the relevant period. Out of the 28 documents, he was never and has never been required by the Respondent to explain on 23 documents yet the Respondent still unlawfully holds them. These documents do not appear anywhere in the notices to explain.
67. It is therefore illegal, unfair and unreasonable to continue keeping the said original and copies of the said documents causing unnecessary inconvenience to myself.
68. He is not able to access any credit and/or even do meaningful transactions in the said property whose documents have been unlawfully confiscated.
69. The Respondent violated the court order by seizing original and copies of title deeds of land parcels acquired by the Applicant not only before the projects were conceptualized, but even before KETRACO was incorporated. The Respondent’s act of seizing material that were acquired before the relevant period is irrational and unreasonable and the same contravenes the order of the court.
70. Whereas the Respondent, in paragraph 6 of their affidavit, confirms that they were investigating income between January 2013 and December 2022 (hereinafter the period of interest), most of the original title deeds seized were for the properties acquired before January 2013.
71. The Respondent acted outside the provision and directions of the order of the court in seizing documents not related with the impugned project and acting maliciously by cooking figures to paint the Applicant as corrupt.
72. According to him The 1st Applicant The Respondent acted with malice and ill motive as summarized and indeed demonstrated in fabrication and creation of fictitious bank credits, application of the doctrine of double counting, unlawfully compelling the 1st Applicant to account for an asset which does not belong to him and which he is not in possession, confiscation of landed property documents which fall outside the period of interest, refusal to accord the Applicants a fair hearing and fair administrative process by declining to avail documents to the Applicants to allow them fully respond to the Respondent’s notices to explain, failure to disclose certain landed property documents to the Applicants.This property is not listed on the notices to explain, is not inventorized and was therefore not accounted for in court as required by law, failure to avail valuation report as request by the Applicants to allow them respond effectively to the valuation of the assets by the Respondent, very valuation of assets which assets the corresponding sale agreements are in the custody of the Respondent and which bear the actual purchase prices, refusal and/or failure to value assets which constitute part of the main sources of income- trees.
73. The very act of falsifying bank entries to achieve an exaggeration of Kshs. 49,846,977.30 as explained in paragraph 4 above and then issuing a notice to explain the difference followed with a demand notice to surrender the difference is in itself unethical, the highest form of extortion and corruption laced with malice and ill motive. It is unfortunate that such act can be perpetrated by an agency who are purportedly inquiring to alleged corruption. It is only this court that can protect him from these schemes and high handedness.
74. According to the 1st Applicant it would only be fair and just that this honourable court grant an order of certiorari to call into this honourable court and quash the three notices to explain all dated the 15th of January 2024 and the demand notices dated 5th September 2024 as issued by the Respondent against the ex-parte Applicants as the same were arrived at maliciously and wrongfully.
The Applicants’ Written Submissions;
75. The Applicants rely on their Notice of Motion dated 19th October 2024, Statutory Statement, Verifying Affidavit, Applicants’ Replying Affidavit dated 7 th January 2025 together with the list and bundle of documents filed therewith and the bundle of authorities filed herewith. He submits as follows.
76. The Applicants submit that vide a search warrant dated 20th March 2023, the Respondent was authorized to obtain and seize any documentary and electronic evidence connected with transactions touching on the Lake Turkana Wind Power Project or the associated Loiyangalani - Suswa Transmitter Interconnector Project.
77. The search warrant was specific as to the extent and scope of the search and seizure thus to obtain and seize any documentary and electronic evidence connected with transactions touching on Lake Turkana Wind Power Project or the associated Loiyangalani-Suswa Transmitter Interconnector Project.
78. The said projects commenced in 2013 and completed in 2018 and the period within which the Respondent was conducting investigations against the Applicants is between 2013 and 2022 otherwise known as the “relevant period”.
79. On 23rd March 2023, in the most abhorrent, undignified, inhumane and humiliating manner, the Respondent raided the homes of the 1st Applicant making away with a pile of documents being the Applicants’ original and copies of title deeds and sale agreements.The Respondent also seized Kshs 1,675,000/= from the 1st Applicant.
80. The Respondent contrary to the Search Warrant, seized including the Applicants’ landed property ownership documents which fall outside the period of investigation and/or the relevant period and are not in any way connected to the projects mentioned in the search warrants.
81. They submit that the Respondent thereafter made an Inventory of documents seized from the Applicants deliberately excluding other land ownership documents which they had seized and have declined to return such documents to the Applicants despite several demands.
82. They further submit that the Respondent failed to return to the warrant-issuing court, some of the documents confiscated, together with the money obtained for accountability, as required by law.
83. On 7th February 2024, the Respondent then issued to the Applicants, Notices to Explain purportedly for them to explain what the Respondent allege as disproportion between their assets and known legitimate sources of income.
84. They submit that even after a thorough explanation by the Applicants in response to the Respondent’s Notices to Explain, the Applicants clearly linking each of the asset and how acquired, the Respondent want to hear none of the above and seems like they have a predetermined mission driven by ulterior motives to realize an unjust end.
85. On 5th September 2024, the Respondent issued to the Applicants, Demand Notices demanding that the Applicants surrender to them Kshs 418,286,554/= purportedly being the value of unexplained assets.
86. They submit that there is no unexplained asset instead the Respondent has embarked on a desperate mission to fabricate and has created fictitious bank credits and over-valued properties of the Applicants including just dumping figures in order to paint the Applicants as corrupt.
87. The Applicants have ably and elaborately demonstrated the fabrication of figures and overvaluation of properties by the Respondent, in their Affidavits and statutory statement supported by the accompanying annexures.
88. They submit that the Respondent has fabricated and/or created fictitious bank credits in order to portray the Applicants as corrupt and has unlawfully confiscated their land ownership documents, placing caution on some property contrary to the Applicants’ right to property
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1) An Order of Certiorari to remove into this honourable court and quash the three notices to explain all dated the 15th day of January 2024 and the demand notices dated the 5th September 2024 as issued by the Respondent against the Applicants;
2) An Order of Prohibition prohibiting the Respondent by themselves, their agents, employees and or anybody deriving authority from the said Respondent from freezing, confiscating, implementing and/or taking any action or punitive disciplinary measures against the Applicants on account of the notices to explain and demand notices dated 15th January 2024 and 5th September 2024 respectively issued against the Applicants.
3) An Order of Mandamus do issue compelling the Respondent to release and/or return to the Applicants all the landed property documents both original and copies and monies as particularized in the Respondent’s inventory dated 23rd march 2023, 24th march 2023 and 6th June 2023 and further be compelled to remove any caution that they may have placed on any of the said inventorized properties.
4) A declaration do issue that the Applicants’ fundamental right to fair administrative action, fair hearing, equal protection of the law, and legitimate expectation have been infringed and/or threatened by the Respondent on account of the notices to explain and demand notices dated 15th January 2024 and 5th September 2024 respectively as issued by the Respondent against the Applicants.
5) A declaration do and hereby issue that the Respondent is Constitutionally obligated to act lawfully, fairly and reasonably in the exercise of their Constitutional mandate, which principles have been threatened / violated by issuing / causing the issuance of the notices to explain and demand notices dated 15th January 2024 and 5th September 2024 respectively against the Applicants herein.
6) An order permanently restraining any attempt by the Respondent by themselves, their agents, employees and or anybody deriving authority from the said Respondent from freezing, confiscating, implementing and/or taking any action or punitive disciplinary measures against the Applicants on account of the notices to explain and demand notices dated 15th January 2024 and 5th September 2024 respectively issued against the Applicants.
7) The Respondent be ordered to pay the Applicants the cost of this Application.
8) Such further and other reliefs that the honourable court may deem just and expedient to grant.
The Applicants’ Case;
2. The 1st Applicant argues that he is duly authorized by the 2nd and 3rd Applicants to swear this affidavit on their behalf regarding the facts of their claim herein.
3. It is his case that on 7th February 2024, the Respondent issued to the Applicants, notices to explain their purported disproportion between their assets and known legitimate sources of income.
4. It is The 1st Applicant’s case that these notices to explain basically targeted him to explain his sources of income between the period 2013 and 2023 herein referred to as the ‘relevant period.’
5. The 1st Applicant is aggrieved that prior to the notices to explain, the Respondent commission had, out of malice and driven by ill motives, broken into his houses in Nairobi and Webuye taking away a pile of landed property ownership documents including and cumulatively over 75 land title deeds, land sale agreements and cash amounting to over Kshs 1,675,000/= and confiscated his documents per the inventory marked aw 4.
6. He argues that the Respondent commission wants him to explain his sources of income but has taken all the documents including copies of the same and has declined to release even copies to him to enable him to effectively account for each of the property acquired lawfully within the relevant period.
7. The 1st Applicant further argues that The Respondent had even previously sought for his summary dismissal and/or suspension from employment which led to his illegal suspension for 12 months. He secured a judgment from the employment court.
8. The foregoing presentation depicts an unethical, malicious, corrupt and vindictive Respondent commission driven by ulterior motives and who is out to unnecessarily injure the reputation of the Applicants, and completely destroy an otherwise my illustrious career according to the 1st Applicant.
9. On 5th September 2024, the Respondent issued demand notices to him and his Co-Applicants requiring them to surrender all the property jointly and severally owned amounting to Kshs 418,286,554.16/= within 14 days from the date of issue of demand failure to which they institute recovery proceedings against them without any further reference to the Applicants.
10. In the notices dated 15th January 2024, the Respondent commission is seeking for The 1st Applicant to explain how he acquired property which the Respondent has purportedly valued at Kshs 434,844,839.80/= comprising of value of land - Kshs 294,200,000/=Bank deposits - Kshs 129,569,Motor vehicles - Kshs 9,400,000/= and Cash Kshs1,675,000/=.
11. The 1st Applicant argues that despite his comprehensive responses to the notices to explain and which responses are respectively dated 19th April 2024, 28th may 2024, 14th August 2024 and 22nd September 2024 among others, the Respondent only chose to look at the response of 19th April 2024 ignoring all the others consequently issuing demand Notices
12. He considers the impugned demand notices unfair, unreasonable, clouded with malice and ulterior motive, biased and overbearing on grounds that whereas the Respondent commission is clear that the period of interest or investigation i.e. the relevant period is between 2013 and 2023, the 1st Applicant’s home where he resides with his family and which was bought and developed in 2009 at a cost of Kshs 8,255,000/= before even joining his current employer has been included in the Demand notices as part of the property to be surrendered to the Respondent commission and which they have overvalued at Kshs 28,200,000/=.
13. To demonstrate further abuse of power and bad faith on the part of the Respondent, for the salary account, the Respondent commission listed 79 entries of deposits of which they summed up to Kshs. 85,348,552.20. The commission also acknowledged that in the relevant period, the 1st Exparte Applicant’s net salary was Kshs. 43,137,225.38 and therefore demanded an explanation on the difference.
14. But on the summation of the 79 entries, the correct sum is Kshs. 43,239,686.20. This figure includes Kshs 3,996,977.30 in entry no. 42 as provided in the notices to explain which was arbitrarily inserted and therefore the correct summation should be Kshs 39,242,707.20.
15. It The 1st Applicant case that the demand for explanation for a difference of Kshs. 46,105,843 arises from their own errors of commission and omission and is therefore unreasonable and unfair and must be stopped.
16. The 1st Applicant argues that since March 2023, the Respondent has been in custody of all his landed property documents being all original land title deeds and original sale agreements and copies thereof having confiscated them including even those acquired before the relevant period.
17. He is unable to access credit to even pay school fees for his children hence the continued retention of the said documents without any justifiable cause has adversely affected the schooling of his children.
18. He cannot dispose of any of his property because all the original documents are in custody of the Respondent illegally.
19. He is further concerned that the Respondent commission has wrongly included five landed properties in the impugned demand notices valued at Kshs 36,000,000/= giving a wrong and malicious impression that the same were acquired within the relevant period.
20. According to the 1st Applicant,The Respondent has, without any basis of their valuation or any indication as to how they arrived at their valuation, overvalued the landed property acquired in the relevant period at Kshs 258,200,000/= yet from the land sale agreements and which agreements are in their possession clearly show that the same were acquired over a period of 10 years at Kshs 60,970,000/= hence an overvaluation of and/or by Kshs 197,230,000/=.
21. According to him the intention of the Respondent commission is just to dump figures and/or throw figures to create a perception or an impression that the 1st ex parte Applicant acquired the said properties corruptly yet the 1st Applicant has clearly demonstrated how he acquired the said properties from his savings, salary and business and most and/or almost all of them are in his rural Webuye Sub-county, but the commission doesn’t won’t to hear any of the above.
22. The Respondent has also ignored his professional valuers report.
23. He argues that he has been in employment for over 27 years as a civil engineer and consulting civil engineer rising the ranks to acting Managing Director, KETRACO and now the general manager, d & c and my direct income alone and as confirmed by the Respondent, for the relevant period of 10 years cumulatively amounts to Kshs 63,141,480.00/= comprising of salary of Kshs 53,668,372.40; bank loan of Kshs 4,321,800/=; interest of bank deposits Kshs 110,579.00/= and bank balance brought forward of Kshs 5,040,729.00/=.
24. The Respondent has ignored all his explanations and comprehensive responses and 18 months have since lapsed from the date when the Respondent confiscated his documents and demands to have them returned to me have gone in vain and as it stands the Respondent remains in total violation of Section 26(2) of the leadership and integrity regulations.
25. He argues that the Respondent’s continued illegal possession of his land title documents contravenes his Constitutional right to property and has demobilized him, rendered him miserable and subjected him to economic distress.
26. The Fair Administrative Action Law demands that a party to whom a claim is raised against is accorded a fair process and supplied with documents relied upon by his adversary as is in the instant case of the Applicants and the Respondent but the Respondent has blatantly overlooked this.
27. A decision or action would be unconstitutional and an unconstitutional decision is not a law, it confers no rights, it imposes no duties, it affords no protection, creates no office and it is in legal contemplation as inoperative as though it had never been passed. That, is the only fate that must befall the decision and or intended decision of the Respondent in the instant case as the impugned demand notices remain void ab initio.
28. The Respondent commission has a predetermined decision, motivated by malice and choreographed to defeat the ends of justice and are so keen on locking the 1st Applicant out from the seat and wheel of justice.
29. The issuance of the notices, was done with an ulterior motive or purpose calculated to prejudice the legal rights of the exparte Applicants; failed to take into account relevant considerations and violates the legitimate expectations of the Exparte Applicants to whom they relate.
30. This honourable court is mandated to protect the national values and principles set out in article 10 of the Constitution which includes the observance of human rights, the rule of law, integrity, social justice, non-discrimination, and accountability.
31. In The Exparte Applicants' Replying Affidavit to the Respondent’s Affidavit dated 25.11.2024,he argues that he declared his wealth as required by law for the years 2013 and 2023 in line with his wealth declarations forms and argues that his assets have never been a subject of doubt or investigations.
32. The Respondent sought and obtained court orders to investigate what they alleged as his involvement in procurement irregularities in the Lake Turkana wind power project and the associated Loiyangalani- Suswa transmission line.
33. He argues that, the statement by the Respondent that investigation was prompted by a report on accumulated assets that were disproportionate to his known legitimate source(s) of income between January 2013 and December 2022, (the period of interest), is an afterthought by the Respondent on realising that the first attempt to kick him out of KETRACO through false criminal accusation failed, thus resorting to attempted false civil accusations.
34. There was therefore according to The 1st Applicant no investigations pending and/or to be commenced as had already been completed and no iota of evidence whatsoever implicating him to any form of corruption in the said project.
35. It is the 1st Applicant’s case that the Magistrate Court issued the search warrant with specific directions that required the Respondent to seize any material connected with the two projects.
36. Instead of complying with the said court order and/or search warrant, the Respondent operating irrationally and unreasonably confiscated 28 of his landed property documents which documents relate to properties he had acquired some way before his employer-KETRACO was established and some of which he had acquired way before the impugned projects were conceptualized and before the said period of investigation or relevant period of interest.
37. The 1st Applicant argues that on the purported completion of the said investigations, the Respondent without any evidence alleged that they had found that he was involved in misappropriation of Kshs. 18.5 billion by processing fraudulent payments to Isolux Ingeniera, a contractor on the Loiyangalani- Suswa transmission line.
38. They even went ahead to recommend his suspension for 12 months on the basis of their investigations which suspension the employment court termed as unlawful and unconstitutional thereby revoking the same and directing for his unconditional restoration to work
39. He was never involved in the Ketraco-Loiyangalani-Suswa transmission line project when payments were made to Isolux and the purported investigations into his wealth is a ploy to sanitise their failed bid to make him a scapegoat in the Lake Turkana wind power alleged scandal.
40. The Respondent acting so maliciously and desperately even went to the extent of engaging in falsifying his bank credits as explained in the paragraph below with an intention to just unfairly punish him, ruin his career and kick him out of employment, unlawfully taking all his properties.
41. He argues that in the course of their purported investigations, the Respondent employed fraudulent, unethical, irrational, unreasonable and unfair means to arrive at what they termed as “unexplained assets disproportionate to his known legitimate sources of income within the period of interest valued at approximately Kshs 418,286,554.16 in his possession.”
42. In the three notices to explain, the Respondent purported to have valued my assets at Kshs. 552,472,194.40 and by subtracting Kshs. 137,182,680.24 which they termed as adequately explained, the balance was Kshs 418,286,554.16.
43. The Respondent for instance, in their notice to explain required him to explain source of income adding up to Kshs 85,348,533/= yet in their own analysis - their demand notice to the Applicant annexed and marked as aw 10), where they have clearly and correctly so admitted that his net salary was Kshs 43,137,225.38. Therefore, the Respondent’s action to include fraudulent/fictious and/or fabricated credits and then demand him to explain including the fabricated difference of Kshs 49,846,977.30 is in itself not only malicious and fraudulent but also irrational and unreasonable.
44. It is deplorable and shocking that such a high office constitutionally regarded as custodian of ethics and integrity can sink this low purely to drive malicious and unethical intent to unjustly ruin my career and deprive him of genuinely and lawfully acquired property. The exaggerated deposit to KCB Account No. 1103087045 alone is even more than double the correct sums.
45. The Kshs. 418,286, 554.16partly comprised of bank credits amounting to Kshs. Ksh224, 784,657.96 which the Respondent has wrongly interpreted as assets in his possession. An asset in a bank is a credit balance at any particular point in time, in this case December 31st 2022. Credit and debit entries represent day-to-day account transactions that may result from sales and purchases.
46. Therefore, counting all credit entries as assets in his possession violates the doctrine of double counting which is erroneous thus leading to wrong conclusions.
47. His closing credit balances for the respective bank accounts, which represented the correct assets in his possession are tabulated below in comparison to the Respondent’s demand.
Table 2: exaggerated assets in bank balances
S/no. Account name Bank Account
Number Balance as at
December 31 2022 Respondent’s
Demand notices
1 Antony Tawayi Wamukota KCB 1103087045 Ksh645,528.30 35,501,575.90
2 Antony Tawayi Wamukota ABSA 2035352573 Ksh2.85 44,221,286.60
3 Aliceson Investment Company Ltd ABSA 2028711231 Ksh824,557.96 68,937,897.90
4 Aliceson Investment Company Ltd ABSA 2028711231 Us$214.70 111,620.48
5 Civil Build Developers Company Ltd DBK 11120151301 Ksh193,900.00 13,195,000.00
6 Equivalent total in Kshs (1USD=Kshs 117.20 Ksh1,689,151.95 Ksh161,967,380.88
48. This resulted in a wrong variation of over 160,000,000/= an erroneously arrived amount which the Respondent wants him to explain and despite his responses to them trying to clarify they did not bother to consider his response.
49. The 1st Applicant is concerned that the Respondent further alleged in their affidavit “that upon conclusion of the investigations, the plaintiff established that the 1st Applicant was in possession of unexplained assets...........valued at approximately Kshs 418,286,554.16 in his possession and his associates, the 2nd and 3rd Applicants”.
50. The only assets that he possessed in banks, either directly or indirectly are bank balances tabulated above and which he annexed in his bank statements as proof.
51. Therefore, according to the 1st Applicant for the Respondent to demand that he surrender ksh224,784,657.96 in cash without attaching bank statements to indicate where the monies are domiciled/kept is unreasonable and irrational.
52. The fabricated Kshs 418,286,554.16 which he is being asked to surrender partly comprised of Kshs. 9,400,000 being valuation of a lorry truck Reg. KCW 151A that is not his asset.
53. Whereas the Respondent are very clear in their notices to explain that they investigated into assets acquired in the relevant period being January 2013 to December 2022, they seized ownership documents i.e. Title deeds and sale agreements for assets acquired before the said period even contrary to the search warrant and/or order of the court.
54. The Respondent went ahead to demand that him to explain how he acquired the same assets.
55. His advocate wrote to the Respondent requesting that they avail original and/or copies ownership of documents to assist in the explanation.
56. According to The 1st Applicant The Respondent, by refusing to hand over the documents even copies knowing they had not only picked original documents but also copies which indicates that the Respondent took all documents including original and copies and therefore leaving him with nothing he could use to explain as the purchase prices were on the sale agreements.
57. By concealing the requisite information from him, the Respondent conspired to ensure that he failed to give comprehensive responses to their notices so that they can issue demand notice. Whereas the Respondent has the original land sale agreements for all of his landed properties, they valued the same assets at imagined prices which are very high.
58. Having obtained very high valuations, the Respondent, in the notices to explain, required him to explain the source of funds used in the acquisition of the assets at the imagined rates.
59. The Respondent declined to avail a valuation report and or any indication on how they arrived at the said figures which up to now remains as cooked figures fabricated to arrive at malicious and illegal end.
60. Despite visiting all land properties owned and possessed by him directly and indirectly through Aliceson Investment Company, a family enterprise where he owns 25% shareholding, the Respondent ignored the value of development on the land in terms of 40 acres of forests with mature trees mostly aged above 10 years and ready for harvesting.
61. The market price of unprocessed 10-meter wooden poles ranges from Kshs. 5,000 to 8,000. Sale of wooden poles is our main source of income which would have easily explained the question of “possession of unexplained assets disproportionate to his known legitimate sources of income” as put in the notices to explain, demand notice and in the Respondent’s replying affidavit. There is no worse manifestation of malice than the Respondent’s refusal to recognise sale of forest material in my responses but instead seek to criminalise such income as money laundering.
62. The Respondent in their own admission, secured the search warrant by swearing an affidavit submitted by the Respondent, stating that they were investigating procurement irregularities in the Lake Turkana Wind Power Project and the associated Loiyangalani- Suswa Transmission Line.
63. On this basis the court issued the search warrant with specific directions that required the Respondent to seize any material connected with the two projects. Both projects were commenced and completed between year 2013 and 2018.
64. While executing the search warrant the Respondent violated his right to a fair process in that the Respondent committed an illegality by seizing ownership documents of property acquired not only before the two projects were conceptualized but even before KETRACO was incorporated in 2008.
65. Whereas the Respondent, in paragraph 6 of the said affidavit, confirms that they were investigating income between January 2013 and December 2022 referred to as period of interest, most of the original title deeds seized were for properties acquired and developed before January 2013.
66. The Respondent seized 28 ownership documents in violation of court orders which had clearly restricted that they pick documents related to the two projects which commenced in 2013 and completed in 2022 i.e. the relevant period. Out of the 28 documents, he was never and has never been required by the Respondent to explain on 23 documents yet the Respondent still unlawfully holds them. These documents do not appear anywhere in the notices to explain.
67. It is therefore illegal, unfair and unreasonable to continue keeping the said original and copies of the said documents causing unnecessary inconvenience to myself.
68. He is not able to access any credit and/or even do meaningful transactions in the said property whose documents have been unlawfully confiscated.
69. The Respondent violated the court order by seizing original and copies of title deeds of land parcels acquired by the Applicant not only before the projects were conceptualized, but even before KETRACO was incorporated. The Respondent’s act of seizing material that were acquired before the relevant period is irrational and unreasonable and the same contravenes the order of the court.
70. Whereas the Respondent, in paragraph 6 of their affidavit, confirms that they were investigating income between January 2013 and December 2022 (hereinafter the period of interest), most of the original title deeds seized were for the properties acquired before January 2013.
71. The Respondent acted outside the provision and directions of the order of the court in seizing documents not related with the impugned project and acting maliciously by cooking figures to paint the Applicant as corrupt.
72. According to him The 1st Applicant The Respondent acted with malice and ill motive as summarized and indeed demonstrated in fabrication and creation of fictitious bank credits, application of the doctrine of double counting, unlawfully compelling the 1st Applicant to account for an asset which does not belong to him and which he is not in possession, confiscation of landed property documents which fall outside the period of interest, refusal to accord the Applicants a fair hearing and fair administrative process by declining to avail documents to the Applicants to allow them fully respond to the Respondent’s notices to explain, failure to disclose certain landed property documents to the Applicants.This property is not listed on the notices to explain, is not inventorized and was therefore not accounted for in court as required by law, failure to avail valuation report as request by the Applicants to allow them respond effectively to the valuation of the assets by the Respondent, very valuation of assets which assets the corresponding sale agreements are in the custody of the Respondent and which bear the actual purchase prices, refusal and/or failure to value assets which constitute part of the main sources of income- trees.
73. The very act of falsifying bank entries to achieve an exaggeration of Kshs. 49,846,977.30 as explained in paragraph 4 above and then issuing a notice to explain the difference followed with a demand notice to surrender the difference is in itself unethical, the highest form of extortion and corruption laced with malice and ill motive. It is unfortunate that such act can be perpetrated by an agency who are purportedly inquiring to alleged corruption. It is only this court that can protect him from these schemes and high handedness.
74. According to the 1st Applicant it would only be fair and just that this honourable court grant an order of certiorari to call into this honourable court and quash the three notices to explain all dated the 15th of January 2024 and the demand notices dated 5th September 2024 as issued by the Respondent against the ex-parte Applicants as the same were arrived at maliciously and wrongfully.
The Applicants’ Written Submissions;
75. The Applicants rely on their Notice of Motion dated 19th October 2024, Statutory Statement, Verifying Affidavit, Applicants’ Replying Affidavit dated 7 th January 2025 together with the list and bundle of documents filed therewith and the bundle of authorities filed herewith. He submits as follows.
76. The Applicants submit that vide a search warrant dated 20th March 2023, the Respondent was authorized to obtain and seize any documentary and electronic evidence connected with transactions touching on the Lake Turkana Wind Power Project or the associated Loiyangalani - Suswa Transmitter Interconnector Project.
77. The search warrant was specific as to the extent and scope of the search and seizure thus to obtain and seize any documentary and electronic evidence connected with transactions touching on Lake Turkana Wind Power Project or the associated Loiyangalani-Suswa Transmitter Interconnector Project.
78. The said projects commenced in 2013 and completed in 2018 and the period within which the Respondent was conducting investigations against the Applicants is between 2013 and 2022 otherwise known as the “relevant period”.
79. On 23rd March 2023, in the most abhorrent, undignified, inhumane and humiliating manner, the Respondent raided the homes of the 1st Applicant making away with a pile of documents being the Applicants’ original and copies of title deeds and sale agreements.The Respondent also seized Kshs 1,675,000/= from the 1st Applicant.
80. The Respondent contrary to the Search Warrant, seized including the Applicants’ landed property ownership documents which fall outside the period of investigation and/or the relevant period and are not in any way connected to the projects mentioned in the search warrants.
81. They submit that the Respondent thereafter made an Inventory of documents seized from the Applicants deliberately excluding other land ownership documents which they had seized and have declined to return such documents to the Applicants despite several demands.
82. They further submit that the Respondent failed to return to the warrant-issuing court, some of the documents confiscated, together with the money obtained for accountability, as required by law.
83. On 7th February 2024, the Respondent then issued to the Applicants, Notices to Explain purportedly for them to explain what the Respondent allege as disproportion between their assets and known legitimate sources of income.
84. They submit that even after a thorough explanation by the Applicants in response to the Respondent’s Notices to Explain, the Applicants clearly linking each of the asset and how acquired, the Respondent want to hear none of the above and seems like they have a predetermined mission driven by ulterior motives to realize an unjust end.
85. On 5th September 2024, the Respondent issued to the Applicants, Demand Notices demanding that the Applicants surrender to them Kshs 418,286,554/= purportedly being the value of unexplained assets.
86. They submit that there is no unexplained asset instead the Respondent has embarked on a desperate mission to fabricate and has created fictitious bank credits and over-valued properties of the Applicants including just dumping figures in order to paint the Applicants as corrupt.
87. The Applicants have ably and elaborately demonstrated the fabrication of figures and overvaluation of properties by the Respondent, in their Affidavits and statutory statement supported by the accompanying annexures.
88. They submit that the Respondent has fabricated and/or created fictitious bank credits in order to portray the Applicants as corrupt and has unlawfully confiscated their land ownership documents, placing caution on some property contrary to the Applicants’ right to property
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