Judgment in Hari gakinya Vs EACC & Anor E040 of 2025
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CONSTITUTIONAL PETITION NO. E040 OF 2025
IN THE MATTER OF ARTICLES 10, 22, 23, 28, 50(1) & (2), 157(11) AND 165(6) OF THE CONSTITUTION
JOHN HARI GAKINYA………..………………………………PETITIONER
VERSUS
ETHICS & ANTI-CORRUPTION
COMMISSION…………………………………………… 1 st RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS…………..2 nd RESPONDENT
COUNTY GOVERNMENT OF NAKURU……………..3 rd RESPONDENT
JUDGEMENT
Introduction
1. The Petition dated 18 th June 2024 by John Hari Gakinya Advocate against the Ethics and Anti-Corruption Commission (EACC) 1 st Respondent, the Office of the Director of Public Prosecutions (ODPP) the 2 nd Respondent, and the County Government of Nakuru the 3 rd Respondent.
2. The Petitioner’s grievance is that he acted as legal adviser to the 3 rd Respondent and provided legal services through his law firm, for which payments were made to his Law-firm. A complaint was later lodged alleging conflict of interest and unlawful payment of legal fees. The 1 st Respondent commenced investigations into the matter, but later agreed with the Petitioner to resolve the matter through Alternative Dispute Resolution (ADR) and proposed repayment of Kshs. 3,686,800 together with interest. The Petitioner contends that he accepted the settlement framework and made several proposals for repayment, including instalments and set-offs against monies allegedly owed to him by the County Government.
3. The Petitioner argues that, despite the ADR agreement, the 1 st and 2 nd Respondents unlawfully resumed investigations and threatened arrest and prosecution without basis. He claims this conduct infringed upon his constitutional rights under Articles 10, 27, 28, 47, 48, and 50 of the Constitution, including the rights to fair administrative action, equal protection of the law, dignity, and fair hearing.
4. He further contends that the Respondents’ actions amount to abuse of power, breach of legitimate expectation, bad faith, and misuse of criminal proceedings for collateral purposes. The Petition urges that the constitutional court is clothed with jurisdiction under the circumstances to intervene to stop the prosecution that is oppressive, malicious, delayed, or contrary to public interest.
5. The Petitioner therefore seeks declarations that the investigations and intended prosecution are unconstitutional, orders prohibiting his arrest or prosecution, and directives compelling removal of restrictions affecting payments due to him from the 3 rd Respondent plus costs and any further relief the Court may deem appropriate.
6. The Court had directed that the Petition was to be heard and disposed off by way of filed written submissions.
Petitioners Case and Submissions
7. The Petitioner states that, he is an advocate of about 20 years’ experience who served as legal adviser to the Governor of Nakuru County from 2015 and also represented the County Government in various legal matters. He claims that the County approved payment of Kshs. 13,568,000/= for legal services rendered by his firm.
8. He avers that after the expiry of his term of employment, the 3 rd Respondent lodged a complaint alleging conflict of interest regarding payments made to his law firm. The EACC began investigations and requested documents, which he supplied voluntarily. He also expressed willingness to resolve the dispute through Alternative Dispute Resolution (ADR).
9. That after investigations by the 1 st Respondent lasting between 2019 and 2023, it accepted settlement of the matter through ADR and, by a letter dated 14 th March 2023, that required him to pay Kshs. 3,686,800/= plus interest at 12% per annum. The Petitioner argues that once the 1 st Respondent accepted ADR, the dispute was effectively settled and only payment remained outstanding.
10. The Petitioner proposed several repayment arrangements, including, setting-off the amount against monies owed to him by the3rd Respondent in equal monthly instalments of Kshs. 200,000/=; and later instalments of Kshs. 300,000/= which proposals were rejected or ignored, while the 1 st Respondent froze payments due to him and continued investigations with the intention of prosecuting him.
11. It is the Petitioner’s submissions that, the Respondents actions contravene the provisions of Articles 10, 28, 47, and 50 of the Constitution being unfair, irrational, and contrary to legitimate expectation. The Petitioner argues that, once the EACC formally agreed to ADR and communicated settlement terms, it became bound by that agreement and could not later resume investigations or threaten prosecution without fresh evidence.
12. Reliance is placed upon the case of Kuria & 3 Others v Attorney General, Bernard Mwikya Mulinge v DPP, Stanley Munga Githunguri v Republic, and Republic v Attorney General ex-parte Kipngeno Arap Ngeny, contending that courts may prohibit prosecutions that are oppressive, malicious, delayed, unsupported by evidence, or constitute abuse of process.
13. The Petitioner further argues that, the 1 st Respondent took nearly eight (8) years to investigate the complaint, it accepted settlement through ADR, no fresh evidence has been disclosed to justify renewed investigations; and continued threats of prosecution are therefore vexatious and unconstitutional.
14. On public interest, the Petitioner maintain that, public funds should not be used to investigate and prosecute a matter already settled through constitutionally recognized ADR mechanisms. The Court is therefore urged to grant orders stopping the investigations, arrest, detention, and prosecution, and to compel removal of restrictions placed on payments due to the Petitioner from the 3 rd Respondent.
Respondents Case & Submissions
26. Only the 1 st and the 3 rd Respondents defended their actions by filing replies to the petition with the 1 st Respondent equally filing written submissions.
27. It is the 1 st Respondent’s case in opposition to the Petition that, it is constitutionally mandated under Article 79 of the Constitution and the Ethics and Anti-Corruption Commission Act to investigate corruption and economic crimes, including abuse of office and conflict of interest involving public officers.
28. The 1 st Respondent disputes the Petitioner’s claim that the matter was conclusively settled through Alternative Dispute Resolution (ADR). The EACC argues that, the negotiations and correspondence regarding repayment did not amount to a binding settlement capable of extinguishing criminal liability or permanently barring investigations and prosecution.
29. The 1 st Respondent further contends that, the investigations disclosed possible criminal conduct involving conflict of interest and unlawful receipt of public funds; that the recovery negotiations do not prevent criminal proceedings where offences are disclosed, that the Petitioner cannot rely on doctrine of legitimate expectation to defeat constitutional and statutory anti-corruption mandates; and that the Court should not interfere with investigative or prosecutorial discretion unless clear abuse of power or violation of constitutional rights is demonstrated.
30. The 1 st Respondent further contends that, the Petitioner has not showcased bad faith, malice, or abuse of process on its part, no constitutional rights have been violated merely because investigations are ongoing; and that public interest favors full investigation and prosecution of corruption-related complaints involving public funds.
31. The 1 st Respondent urges the Court, to dismiss the petition with costs and allow the investigations and prosecutorial processes to proceed unhindered.
32. The 3 rd Respondent opposed the Petition by filing its replying Affidavit Sworn by Dr. Samwel Mwaura the County Secretary and Head of Public Service dated 10 th June 2025 confirming that the Petitioner served as Legal Adviser to the County Government between 2015 and 30 th September 2017.
33. That during the period of the Petitioner’s employment, he should not have allocated legal work to his own law firm as it was a conflict of interest, that the Petitioner’s law firm improperly handled legal matters for the County and later demanded payment of legal fees after the Petitioner’s employment ended.
34. That, that the 3 rd Respondent received correspondence from the 1 st Respondent raising concerns about conflict of interest and abuse of office arising from payments made to the Petitioner that revealed possible criminal offences including conflict of interest and abuse of office under the Anti-Corruption and Economic Crimes Act (ACECA).
35. The 3 rd Respondent contends that it acted upon advice of the 1 st Respondent not to make further payments to the Petitioner pending negotiations and investigations. It maintains that it is in the interests of justice for the EACC investigations to continue and be concluded fully.
36. Consequently, the 3 rd Respondent urges the Court to dismiss the Petitioner’s application with costs and allow the investigative process to proceed.
Analysis and Determination
37. The core issue before this Court is whether to grant the declarations and conservatory orders sought by the Petitioner to halt ongoing investigations and prevent any intended prosecution.
38. The Petitioner claims that an enforceable Alternative Dispute Resolution (ADR) framework was finalized, thereby ending his potential criminal exposure. Conversely, the Respondents maintain that no final settlement was reached and that investigative or prosecutorial agencies cannot be blocked from performing their constitutional mandates.
39. To fully resolve this dispute, this Court addresses the following key questions:
A. Whether a Binding ADR Settlement Agreement Conclusively Extinguished Criminal Liability
40. The Petitioner relies heavily on the 1 st Respondent’s letter dated 14 th March 2023. He argues it served as a final contractual settlement of the dispute. However, a literal reading of Section 25A (3) of the Anti-Corruption and Economic Crimes Act (ACECA) makes it clear that the EACC is not obligated to halt its work simply because a suspect makes an offer. An enforceable undertaking under the law strictly requires a full and true disclosure of all material facts, full restitution of property or public funds with interest, and formal approval.
41. The evidence reveals that after the terms were offered, the Petitioner rejected them on 18 th May 2023, raising concerns regarding tax calculations. He subsequently sent postdated cheques and made different counter-proposals for installment options which were never formally accepted or validated by the Commission.
42. In law, counter-offers reject the original offer. Because no formal settlement agreement was completed or signed by both arms, this court holds that the ongoing recovery discussions did not create a binding resolution capable of barring criminal proceedings.
B. Whether the Ongoing Investigations Violate the Petitioner’s Constitutional Rights
43. The Petitioner asserts that, the ongoing investigations violate his rights under Articles 10, 28, 47, and 50 of the Constitution. This Court does not agree. The mere initiation or continuation of an inquiry by a constitutionally authorized body does not amount to an automatic breach of fundamental human freedoms.
44. Furthermore, as established in a long line of jurisprudence, fair trial protections under Article 50 are fully activated when an individual is formally charged.
45. The ongoing process is a pre-charge administrative phase handled under statutory authority. The Petitioner has already recorded statements and participated in interviews, meaning his right to be heard was respected. No actual violation of human dignity or fair administrative action has been demonstrated.
C. The Question of Conflicts of Interest and Public Trust
46. The 3 rd Respondent filed an absolute objection showing that the Petitioner served as a salaried Legal Adviser to Nakuru County between 2015 and 2017. During that exact window of active employment, public funds were allocated and paid out to the Petitioner's private law firm.
47. The prohibition against conflict of interest under Article 73 and Article 227 of the Constitution is absolute. Public officers cannot award contracts or allocate legal work to themselves or entities they privately control.
48. A contract engineered in breach of procurement laws and national integrity principles is void ab initio (invalid from the very beginning). Consequently, the court will not step in to protect private financial streams arising from an inherently flawed public process.
49. The independent powers to investigate corruption belong to the EACC under Article 79, while prosecutorial discretion belongs exclusively to the ODPP under Article 157. The High Court retains supervisory jurisdiction under Article 165(6) but will only intervene under rare, exceptional circumstances. Such intervention requires clear proof of gross abuse of power, bad faith, manifest injustice, or actions completely outside the law.
50. The fact that an investigation has taken a long timeline does not automatically nullify a case, especially when dealing with complex financial and economic crimes where the suspect's own actions and counter-proposals contributed to the timeline.
51. Public interest demands that allegations touching on the safety and proper use of public funds must be investigated and resolved to their logical conclusion. Blocking these agencies before any charge has even been preferred would create a dangerous form of judicial immunity unknown to Kenyan law. The Petitioner must raise his substantive defenses before the trial court if a criminal case eventually ensues.
52. The Petitioner relied heavily on early asset recovery talks to claim immunity from state prosecution. However, statutory parameters dictate that an investigation or a charge cannot be scuttled by an unfulfilled proposal.
53. Section 25A (3) of the Anti-Corruption and Economic Crimes Act (ACECA) establishes that an investigative amnesty or formal undertaking is only binding if the suspect makes a full and true disclosure, completes total restitution of the irregularly acquired property, and pays full interest.
54. A counter-offer or a conditional proposal rejected by the Commission does not create an enforceable agreement.
55. In the case of Floriculture International Ltd & Others v Trust Bank Ltd & Others (HCCC No. 114 of 1997) :Kuloba J while establishing the strict, foundational rules for private prosecution in Kenya, Confirmed that, the presence of parallel civil recovery tracks or ongoing regulatory negotiations does not create a bar against concurrent criminal proceedings if state offences are disclosed.
56. The High Court strictly maintains judicial restraint when asked to halt pre-charge administrative actions managed by independent state bodies. Article 157 of the Constitution vests the Office of the Director of Public Prosecutions (ODPP) with exclusive prosecutorial autonomy.
57. Article 79 of the Constitution empowers the Ethics and Anti-Corruption Commission (EACC) with independent investigative authority over economic crimes.
58. In the case of Bernard Mwikya Mulinge v Director of Public Prosecutions & 3 Others [2019] eKLR : this court held that, the High Court will not step into the shoes of the trial court to weigh the sufficiency of evidence during early investigative stages. A suspect with valid defenses must ventilate those arguments before the trial court rather than seeking an ongoing block via judicial review.
59. Similarly in the case of Agnes Ngenesi Kinyua v Director of Public Prosecution & Another [2019] eKLR this court affirmed that, a constitutional petition cannot be utilized to preview the merits of a state case. The judicial framework only interrogates the decision-making process for evidence of absolute bad faith or illegal excess of authority.
60. Because the Petitioner simultaneously served as a salaried county officer and received parallel payouts through his law firm, the transaction borders on violation of the foundational laws governing public trust.
61. Articles 73 and 232 of the Constitution Lays down mandatory public ethics standards, prohibiting state officers from positioning personal financial interests against official duties.
62. Section 66 of the Public Procurement and Asset Disposal Act e xpressly bars conflicts of interest in public procurement. Contracts processed in defiance of these statutory provisions are void from the beginning ( void ab initio ), and private actors cannot seek judicial enforcement of financial gains flowing from an illegal layout.
63. The Petitioner sought to block state action by citing the classic standard on prosecutorial delay. This court distinguishes the current matter from Stanley Munga Githunguri v Republic [1986] eKLR. In that foundational case, the state explicitly issued written, public notifications confirming that the files were closed and that no charges would ever be preferred, causing the target to lose vital exculpatory evidence. Here, the EACC never issued a final clearance. Rather, continuous transactional counter-offers and ongoing multi-year balance calculations directly contributed to the investigative timeline.
Final Orders
64. This Court finds that the Petition fails to demonstrate any genuine constitutional violations and lacks legal merit. Allowing the reliefs sought would unlawfully tie the hands of independent statutory bodies executing their mandates in the public interest.
65. Consequently, the following orders are hereby issued:
i. The Constitutional Petition dated 18 th June 2024 is dismissed in its entirety for want of merit.
ii. The conservatory and prohibitory orders sought by the Petitioner are declined.
iii. Parties shall bear their own costs.
It is So Ordered
Signed, Dated and Delivered in virtually at Nakuru
On this 26 th Day of June 2026
____________________
Mohochi S.M
PRESIDING JUDGE
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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CONSTITUTIONAL PETITION NO. E040 OF 2025
IN THE MATTER OF ARTICLES 10, 22, 23, 28, 50(1) & (2), 157(11) AND 165(6) OF THE CONSTITUTION
JOHN HARI GAKINYA………..………………………………PETITIONER
VERSUS
ETHICS & ANTI-CORRUPTION
COMMISSION…………………………………………… 1 st RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS…………..2 nd RESPONDENT
COUNTY GOVERNMENT OF NAKURU……………..3 rd RESPONDENT
JUDGEMENT
Introduction
1. The Petition dated 18 th June 2024 by John Hari Gakinya Advocate against the Ethics and Anti-Corruption Commission (EACC) 1 st Respondent, the Office of the Director of Public Prosecutions (ODPP) the 2 nd Respondent, and the County Government of Nakuru the 3 rd Respondent.
2. The Petitioner’s grievance is that he acted as legal adviser to the 3 rd Respondent and provided legal services through his law firm, for which payments were made to his Law-firm. A complaint was later lodged alleging conflict of interest and unlawful payment of legal fees. The 1 st Respondent commenced investigations into the matter, but later agreed with the Petitioner to resolve the matter through Alternative Dispute Resolution (ADR) and proposed repayment of Kshs. 3,686,800 together with interest. The Petitioner contends that he accepted the settlement framework and made several proposals for repayment, including instalments and set-offs against monies allegedly owed to him by the County Government.
3. The Petitioner argues that, despite the ADR agreement, the 1 st and 2 nd Respondents unlawfully resumed investigations and threatened arrest and prosecution without basis. He claims this conduct infringed upon his constitutional rights under Articles 10, 27, 28, 47, 48, and 50 of the Constitution, including the rights to fair administrative action, equal protection of the law, dignity, and fair hearing.
4. He further contends that the Respondents’ actions amount to abuse of power, breach of legitimate expectation, bad faith, and misuse of criminal proceedings for collateral purposes. The Petition urges that the constitutional court is clothed with jurisdiction under the circumstances to intervene to stop the prosecution that is oppressive, malicious, delayed, or contrary to public interest.
5. The Petitioner therefore seeks declarations that the investigations and intended prosecution are unconstitutional, orders prohibiting his arrest or prosecution, and directives compelling removal of restrictions affecting payments due to him from the 3 rd Respondent plus costs and any further relief the Court may deem appropriate.
6. The Court had directed that the Petition was to be heard and disposed off by way of filed written submissions.
Petitioners Case and Submissions
7. The Petitioner states that, he is an advocate of about 20 years’ experience who served as legal adviser to the Governor of Nakuru County from 2015 and also represented the County Government in various legal matters. He claims that the County approved payment of Kshs. 13,568,000/= for legal services rendered by his firm.
8. He avers that after the expiry of his term of employment, the 3 rd Respondent lodged a complaint alleging conflict of interest regarding payments made to his law firm. The EACC began investigations and requested documents, which he supplied voluntarily. He also expressed willingness to resolve the dispute through Alternative Dispute Resolution (ADR).
9. That after investigations by the 1 st Respondent lasting between 2019 and 2023, it accepted settlement of the matter through ADR and, by a letter dated 14 th March 2023, that required him to pay Kshs. 3,686,800/= plus interest at 12% per annum. The Petitioner argues that once the 1 st Respondent accepted ADR, the dispute was effectively settled and only payment remained outstanding.
10. The Petitioner proposed several repayment arrangements, including, setting-off the amount against monies owed to him by the3rd Respondent in equal monthly instalments of Kshs. 200,000/=; and later instalments of Kshs. 300,000/= which proposals were rejected or ignored, while the 1 st Respondent froze payments due to him and continued investigations with the intention of prosecuting him.
11. It is the Petitioner’s submissions that, the Respondents actions contravene the provisions of Articles 10, 28, 47, and 50 of the Constitution being unfair, irrational, and contrary to legitimate expectation. The Petitioner argues that, once the EACC formally agreed to ADR and communicated settlement terms, it became bound by that agreement and could not later resume investigations or threaten prosecution without fresh evidence.
12. Reliance is placed upon the case of Kuria & 3 Others v Attorney General, Bernard Mwikya Mulinge v DPP, Stanley Munga Githunguri v Republic, and Republic v Attorney General ex-parte Kipngeno Arap Ngeny, contending that courts may prohibit prosecutions that are oppressive, malicious, delayed, unsupported by evidence, or constitute abuse of process.
13. The Petitioner further argues that, the 1 st Respondent took nearly eight (8) years to investigate the complaint, it accepted settlement through ADR, no fresh evidence has been disclosed to justify renewed investigations; and continued threats of prosecution are therefore vexatious and unconstitutional.
14. On public interest, the Petitioner maintain that, public funds should not be used to investigate and prosecute a matter already settled through constitutionally recognized ADR mechanisms. The Court is therefore urged to grant orders stopping the investigations, arrest, detention, and prosecution, and to compel removal of restrictions placed on payments due to the Petitioner from the 3 rd Respondent.
Respondents Case & Submissions
26. Only the 1 st and the 3 rd Respondents defended their actions by filing replies to the petition with the 1 st Respondent equally filing written submissions.
27. It is the 1 st Respondent’s case in opposition to the Petition that, it is constitutionally mandated under Article 79 of the Constitution and the Ethics and Anti-Corruption Commission Act to investigate corruption and economic crimes, including abuse of office and conflict of interest involving public officers.
28. The 1 st Respondent disputes the Petitioner’s claim that the matter was conclusively settled through Alternative Dispute Resolution (ADR). The EACC argues that, the negotiations and correspondence regarding repayment did not amount to a binding settlement capable of extinguishing criminal liability or permanently barring investigations and prosecution.
29. The 1 st Respondent further contends that, the investigations disclosed possible criminal conduct involving conflict of interest and unlawful receipt of public funds; that the recovery negotiations do not prevent criminal proceedings where offences are disclosed, that the Petitioner cannot rely on doctrine of legitimate expectation to defeat constitutional and statutory anti-corruption mandates; and that the Court should not interfere with investigative or prosecutorial discretion unless clear abuse of power or violation of constitutional rights is demonstrated.
30. The 1 st Respondent further contends that, the Petitioner has not showcased bad faith, malice, or abuse of process on its part, no constitutional rights have been violated merely because investigations are ongoing; and that public interest favors full investigation and prosecution of corruption-related complaints involving public funds.
31. The 1 st Respondent urges the Court, to dismiss the petition with costs and allow the investigations and prosecutorial processes to proceed unhindered.
32. The 3 rd Respondent opposed the Petition by filing its replying Affidavit Sworn by Dr. Samwel Mwaura the County Secretary and Head of Public Service dated 10 th June 2025 confirming that the Petitioner served as Legal Adviser to the County Government between 2015 and 30 th September 2017.
33. That during the period of the Petitioner’s employment, he should not have allocated legal work to his own law firm as it was a conflict of interest, that the Petitioner’s law firm improperly handled legal matters for the County and later demanded payment of legal fees after the Petitioner’s employment ended.
34. That, that the 3 rd Respondent received correspondence from the 1 st Respondent raising concerns about conflict of interest and abuse of office arising from payments made to the Petitioner that revealed possible criminal offences including conflict of interest and abuse of office under the Anti-Corruption and Economic Crimes Act (ACECA).
35. The 3 rd Respondent contends that it acted upon advice of the 1 st Respondent not to make further payments to the Petitioner pending negotiations and investigations. It maintains that it is in the interests of justice for the EACC investigations to continue and be concluded fully.
36. Consequently, the 3 rd Respondent urges the Court to dismiss the Petitioner’s application with costs and allow the investigative process to proceed.
Analysis and Determination
37. The core issue before this Court is whether to grant the declarations and conservatory orders sought by the Petitioner to halt ongoing investigations and prevent any intended prosecution.
38. The Petitioner claims that an enforceable Alternative Dispute Resolution (ADR) framework was finalized, thereby ending his potential criminal exposure. Conversely, the Respondents maintain that no final settlement was reached and that investigative or prosecutorial agencies cannot be blocked from performing their constitutional mandates.
39. To fully resolve this dispute, this Court addresses the following key questions:
A. Whether a Binding ADR Settlement Agreement Conclusively Extinguished Criminal Liability
40. The Petitioner relies heavily on the 1 st Respondent’s letter dated 14 th March 2023. He argues it served as a final contractual settlement of the dispute. However, a literal reading of Section 25A (3) of the Anti-Corruption and Economic Crimes Act (ACECA) makes it clear that the EACC is not obligated to halt its work simply because a suspect makes an offer. An enforceable undertaking under the law strictly requires a full and true disclosure of all material facts, full restitution of property or public funds with interest, and formal approval.
41. The evidence reveals that after the terms were offered, the Petitioner rejected them on 18 th May 2023, raising concerns regarding tax calculations. He subsequently sent postdated cheques and made different counter-proposals for installment options which were never formally accepted or validated by the Commission.
42. In law, counter-offers reject the original offer. Because no formal settlement agreement was completed or signed by both arms, this court holds that the ongoing recovery discussions did not create a binding resolution capable of barring criminal proceedings.
B. Whether the Ongoing Investigations Violate the Petitioner’s Constitutional Rights
43. The Petitioner asserts that, the ongoing investigations violate his rights under Articles 10, 28, 47, and 50 of the Constitution. This Court does not agree. The mere initiation or continuation of an inquiry by a constitutionally authorized body does not amount to an automatic breach of fundamental human freedoms.
44. Furthermore, as established in a long line of jurisprudence, fair trial protections under Article 50 are fully activated when an individual is formally charged.
45. The ongoing process is a pre-charge administrative phase handled under statutory authority. The Petitioner has already recorded statements and participated in interviews, meaning his right to be heard was respected. No actual violation of human dignity or fair administrative action has been demonstrated.
C. The Question of Conflicts of Interest and Public Trust
46. The 3 rd Respondent filed an absolute objection showing that the Petitioner served as a salaried Legal Adviser to Nakuru County between 2015 and 2017. During that exact window of active employment, public funds were allocated and paid out to the Petitioner's private law firm.
47. The prohibition against conflict of interest under Article 73 and Article 227 of the Constitution is absolute. Public officers cannot award contracts or allocate legal work to themselves or entities they privately control.
48. A contract engineered in breach of procurement laws and national integrity principles is void ab initio (invalid from the very beginning). Consequently, the court will not step in to protect private financial streams arising from an inherently flawed public process.
49. The independent powers to investigate corruption belong to the EACC under Article 79, while prosecutorial discretion belongs exclusively to the ODPP under Article 157. The High Court retains supervisory jurisdiction under Article 165(6) but will only intervene under rare, exceptional circumstances. Such intervention requires clear proof of gross abuse of power, bad faith, manifest injustice, or actions completely outside the law.
50. The fact that an investigation has taken a long timeline does not automatically nullify a case, especially when dealing with complex financial and economic crimes where the suspect's own actions and counter-proposals contributed to the timeline.
51. Public interest demands that allegations touching on the safety and proper use of public funds must be investigated and resolved to their logical conclusion. Blocking these agencies before any charge has even been preferred would create a dangerous form of judicial immunity unknown to Kenyan law. The Petitioner must raise his substantive defenses before the trial court if a criminal case eventually ensues.
52. The Petitioner relied heavily on early asset recovery talks to claim immunity from state prosecution. However, statutory parameters dictate that an investigation or a charge cannot be scuttled by an unfulfilled proposal.
53. Section 25A (3) of the Anti-Corruption and Economic Crimes Act (ACECA) establishes that an investigative amnesty or formal undertaking is only binding if the suspect makes a full and true disclosure, completes total restitution of the irregularly acquired property, and pays full interest.
54. A counter-offer or a conditional proposal rejected by the Commission does not create an enforceable agreement.
55. In the case of Floriculture International Ltd & Others v Trust Bank Ltd & Others (HCCC No. 114 of 1997) :Kuloba J while establishing the strict, foundational rules for private prosecution in Kenya, Confirmed that, the presence of parallel civil recovery tracks or ongoing regulatory negotiations does not create a bar against concurrent criminal proceedings if state offences are disclosed.
56. The High Court strictly maintains judicial restraint when asked to halt pre-charge administrative actions managed by independent state bodies. Article 157 of the Constitution vests the Office of the Director of Public Prosecutions (ODPP) with exclusive prosecutorial autonomy.
57. Article 79 of the Constitution empowers the Ethics and Anti-Corruption Commission (EACC) with independent investigative authority over economic crimes.
58. In the case of Bernard Mwikya Mulinge v Director of Public Prosecutions & 3 Others [2019] eKLR : this court held that, the High Court will not step into the shoes of the trial court to weigh the sufficiency of evidence during early investigative stages. A suspect with valid defenses must ventilate those arguments before the trial court rather than seeking an ongoing block via judicial review.
59. Similarly in the case of Agnes Ngenesi Kinyua v Director of Public Prosecution & Another [2019] eKLR this court affirmed that, a constitutional petition cannot be utilized to preview the merits of a state case. The judicial framework only interrogates the decision-making process for evidence of absolute bad faith or illegal excess of authority.
60. Because the Petitioner simultaneously served as a salaried county officer and received parallel payouts through his law firm, the transaction borders on violation of the foundational laws governing public trust.
61. Articles 73 and 232 of the Constitution Lays down mandatory public ethics standards, prohibiting state officers from positioning personal financial interests against official duties.
62. Section 66 of the Public Procurement and Asset Disposal Act e xpressly bars conflicts of interest in public procurement. Contracts processed in defiance of these statutory provisions are void from the beginning ( void ab initio ), and private actors cannot seek judicial enforcement of financial gains flowing from an illegal layout.
63. The Petitioner sought to block state action by citing the classic standard on prosecutorial delay. This court distinguishes the current matter from Stanley Munga Githunguri v Republic [1986] eKLR. In that foundational case, the state explicitly issued written, public notifications confirming that the files were closed and that no charges would ever be preferred, causing the target to lose vital exculpatory evidence. Here, the EACC never issued a final clearance. Rather, continuous transactional counter-offers and ongoing multi-year balance calculations directly contributed to the investigative timeline.
Final Orders
64. This Court finds that the Petition fails to demonstrate any genuine constitutional violations and lacks legal merit. Allowing the reliefs sought would unlawfully tie the hands of independent statutory bodies executing their mandates in the public interest.
65. Consequently, the following orders are hereby issued:
i. The Constitutional Petition dated 18 th June 2024 is dismissed in its entirety for want of merit.
ii. The conservatory and prohibitory orders sought by the Petitioner are declined.
iii. Parties shall bear their own costs.
It is So Ordered
Signed, Dated and Delivered in virtually at Nakuru
On this 26 th Day of June 2026
____________________
Mohochi S.M
PRESIDING JUDGE
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