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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT LODWAR
CONSTITUTIONAL AND HUMAN RIGTHTS DIVISION
PETITION NO. E003 OF 2025
IN THE MATTER OF CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS AS ENSHRINED UNDER ARTICLES 27,28,29(c)(d), 31, 40(3),47,48,50,157,160,245 & 249 OF THE CONSTITUTION OF KENYA, 2010
BETWEEN
MICHAEL EREGAE EKIDOR………….……..……………..……...….…..1ST PETITIONER
PETER LOMORUKAI……………………………………...……………….2ND PETITIONER
MARK ACHILLA EKIRU…………………………………...………………3RD PETITIONER
SAMSON NAKITO………………………………….……………………..4TH PETITIONER
LILIAN ALAPER ATEYO……………………………………………………5TH PETITIONER
ANNAH NAROT LONGOLI……………………………………………….6TH PETITIONER
ABENYO AMATHWEL ETIIR…………………………….………………..7TH PETITIONER
STEPHEN LOWOTON……………………………………………...………8TH PETITIONER
WILLIAM EREX AMINIT……………………………………….…………..9TH PETITIONER
NANGIRO EDUNG ICHOR…………………………………..………..10TH PETITIONER
AND
ETHICS & ANTI CORRUPTION COMMISSION…......….………….1ST RESPONDENT
THE CHIEF MAGISTRATE’S
(ANTI-CORRUPTION COURT) NAIROBI…………………………..2ND RESPONDENT
THE ATTORNEY GENERAL…………………………………….....….3RD RESPONDENT
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTION…….…...4TH RESPONDENT
DIRECTORATE OF CRIMINAL INVESTIGATION……….……….…4TH RESPONDENT
JUDGMENT
The Petitioner’s Case
1. In the petition dated 13th April, 2025, the 1st to the 7th petitioners are described as employees of the County Government of Turkana serving in different capacities; County Executive Member of Finance, Chief Officer for Urban Management, Chief Officer for Roads and Transport, Director of Procurement, senior accountant, employee and a security warden respectively. The 8th to 10th petitioners are described as businessmen.
2. The petition then describes the respondents and assigns to each the creating law and mandate.
3. The petitioners'' case is that the 1st respondent by way of ten ex parte motions moved the Chief Magistrate’s Court at Milimani in Misc Cases No. E524 to E533 of 2025 all dated 08.04.2025 seeking warrants to enter their homes, offices and places of abode for purposes of seizing documentary evidence, electronic devices, unexplained sums of money or any other items deemed necessary in an investigation into economic crimes. They add that the orders were granted on the same day and on 12.04.2024 at 6AM, officers from the 1st respondent’s office arrived at the petitioner’s homes where they reside with their families and gained entry in a manner both excessive and uncivilized, ransacked the houses, disrupted everything in sight and left the premises in disarray. The entries were considered excessive and disruptive because, the 1st respondent broke the doors and gates to the home of the 1st and 8th petitioner and disrupted wedding arrangements that were ongoing on in the compounds.
4. The 1st petitioner contends that the 1st respondent went ahead and took his photos and videos during the fracas and shared with bloggers terming such actions by the 1st respondent against the petitioners to be in violation of their constitutional rights under articles 2,28,29,31,40,47,50 & 157(11) of the Constitution of Kenya.
5. The petitioners thus seek a raft of orders, including a declaratory order nullifying the searches on the basis that the order giving rise thereto were obtained by material none disclosure, orders of prohibition restraining any initiation and sustenance of criminal proceedings on the basis the searches and from further conduct of such searches, a certiorari to quash the ex-parte orders and the results of the searches and an order of mandamus to compel the unconditionally release and return all items and any other property unlawfully seized from the petitioner’s premises pursuant to the impugned search and seizure. In the petitioners’ own words, the court is asked to grant to them;
a) A declaration be and is hereby issued that the raid, search and seizure by the respondents pursuant to the proceedings and subsequent rulings and orders in the ten ex parte Miscellaneous Notice of Motion applications ranging from Misc. No. E524 to E533 of 2025 all dated 8th April 2025 in Milimani Chief Magistrate’s Misc Criminal Applications was precipitated by material non-disclosure, mala fides, an abuse of process and are consequently rendered unconstitutional, null and void for violating articles 47,50,157(11) and 245 of the Constitution.
b) An order of prohibition restraining the respondents, their agents, or any persons acting under their authority from initiating, sustaining or instituting any criminal proceedings against the petitioner arising from the impugned search, seizure and the circumstances giving rise thereto, unless undertaken in strict compliance with the constitutional safeguards enshrined in articles 47,50,157(11) and 245 of the Constitution.
c) An order of prohibition restraining the respondents, their agents, or any persons acting on their authority from engaging in any form of harassment, which will include freezing of their personal and business accounts that would limit their professional and social well-being.
d) An order of certiorari to bring into this court and quash the ex parte search and seizure orders issued pursuant to the proceedings and subsequent rulings and orders in the 10 Milimani Chief Magistrates Misc. Criminal applications on 8th March, 2025 on the basis of material non-disclosure and procedural irregularity, together with all consequential actions, processes, or decisions arising therefrom, including but not limited to the confiscation, retention or use of any materials, devices or documents seized from the petitioner’s residence.
e) An order of mandamus compelling the respondents, their agents, or any persons acting under their authority to unconditionally release and return all items, documents, electronic devices, and any other property unlawfully seized from the petitioner’s premises pursuant to the impugned search and seizure, forthwith and without any further delay.
f) Costs of this petition be provided with interests at the court’s rate.
g) Any other order that this court deems fit and just in the circumstances.
6. The petition is supported by the affidavit of Michael Eregae Ekidor sworn on 13.04.2025 in which he he asserts to have the authority of his co-petitioners then reiterates the averments in the petition with the stress that at no point were the petitioners summoned for questioning yet they have always been willing to submit to a fair and impartial process.
1st Respondent’s Response to the Petition
7. The petition is resisted by the 1st respondent through the replying affidavit of Felix Asete, an investigator with the commission, sworn on 29.04.2025. The deponent begins his opposition to the petition by stating that he was a member of the team investigating allegation of embezzlement of public funds to the tune of Kshs. 1 billion from the County Government of Turkana by senior county officials between the years 2018 to 2024, which cases were recorded under inquiry files No. EACC/AT/INQ/12/2025 and EAC/PI/INQ/9/2025.
8. He detailed that he was aware that the commission is empowered under sections 118-122 of the Criminal Procedure Code to apply ex parte to a court or magistrate for warrants to search any premises for anything which is necessary for the conduct of an investigation into an offence, and if found, to seize the items. In support of the assertion that an application for a search and seizure is lawfully made ex parte, he refers the court to the decision in the case of Mape Building & General Engineering v Attorney General & 3 others Petition No. 437 of 2015 (2016) eKLR where the court observed that the reason why an application for search and seizure is made ex parte is because no offender knowing that there existed evidence which if not destroyed would lead to his guilt can be expected to sit back once notified of possible investigations.
9. He added that he was aware that search warrants once issued may be executed on any day including Sunday between the hours of sunrise and sunset, with the leave of the court, and that where ingress and egress from a building cannot be obtained, reasonable force including breaking open any outer or inner door or window to effect an entrance is envisaged and provided for under section 120(2) as read together with section 22 of the Criminal procedure Code.
10. It is his deposition that the commission was investigating the following allegations which resulted in the search;
i. Conflict of interest against senior officials of the County Government of Turkana, who through their companies and business entities traded with the county in contravention of section 42 of ACECA.
ii. Receiving illegal benefits (kick-backs) against senior county officials including the Governor of the County of Turkana from companies purportedly trading with the county.
iii. Irregular award of tenders to entities whose proprietors are close relatives of the Governor of the County of Turkana.
iv. Sources of massive wealth by county officials and their associates in a considerably short period of time, which was not commensurable to their legitimate sources of income.
11. He then posits that the commission obtained orders to use reasonable force if necessary, and that reasonable force was applied to gain entry to some of the petitioners’ residences where access had been denied by the respective owners who were already tampering with the evidence by throwing documents over the perimeter wall. He added that during the search, they retrieved crucial documents including an amount of Kshs. 6,700,000/- in cash from the residence of the 1st petitioner. He also stated that the search operations in the homes of the 7th and 10th petitioners were suspended due to security concerns for the search teams.
12. He asserts that the searches were conducted professionally and that the petitioners’ rights under articles 28,29,40 and 47 of the Constitution are not absolute but capable of limitations and that investigations including ex parte search seizure orders are lawful justifications for the limitation of fundamental rights to facilitate the fight against the crimes.
13. On the petitioners’’ allegations of breach of article 47 of the Constitution, the deponent refers the court to the Supreme Court decision in the case of EACC & DPP v Tom Ojienda , SC t/a Prof. Tom Ojienda & Associates Advocates & 2 others Petition 30 & 31 of 2019 (consolidated) [2022] KESC 59(KLR) where the court observed that the commission’s investigative powers when exercised cannot be described as ‘administrative action’ within the meaning of article 47 because the commission is not required to give written notice prior to commencing an investigation in all situations.
14. He avows that since the investigation is not an event but a process, the petitioners shall at the opportune time be afforded an opportunity for an interview and statement recording.
15. Lastly, the deponent asserts that section 29 of the EACC Act authorizes the commission to publicize important cases and that in execution of this mandate, the commission on 10.04.2025 issued a press release notifying the public of the searches and the items seized including the cash.
16. Upon being served with the responses by the respondents, the petitioners, with the leave of the court, filed a further Affidavit sworn by the 1st Petitioner, Michael Eregae Ekidor.
17. In the affidavit, the petitioners posit that; EACC is a creation of the Constitution and therefore bound by the provisions of the Constitution including article 47 of the Constitution of Kenya; sections 26,27 and 28 of ACECA obligates the commission to issue notices to people suspected of any economic crime; the ten applications dated 08.04.2025 made to court and which led to the issuance of the search warrants raised no reasonable suspicion of the commission of offences of corruption as they contained no annexures; the money recovered from the deponent’s car was payment for a leased property and he was on his way to bank it when he was ambushed by members of the commission and on the allegation of violation of human rights, he reiterates the averments in supporting affidavit and adds that the 7th and 8th petitioners and their spouses have had their bank accounts frozen in violation of article 40 of the constitution despite the fact that some of the accounts individual accounts that have been in operation since the year 2016.
18.
2nd,3rd,4th and 5th Respondents’ Response to the Petition
19. These four respondents have resisted the petition by way of a joint grounds of opposition dated 09.05.2024 and term the same unmerited on the grounds that; the petition does not meet the test of a constitutional petition as laid down in the case of Mumo Matemu v Trusted Society of Human Rights Alliance (2014) eKLR because the petitioners have only stated the provisions of the Constitution violated but they do not explain further the manner of the alleged infringements; the investigative mandate of the respondent is constitutionally protected under articles 244 and 245 of the Constitution and cannot be restrained on the basis of speculation; the orders sought if granted would unjustifiably interfere with the lawful and constitutional mandate of the DPP and other investigative agencies under articles 157 and 245 of the Constitution.
20. They then contend that the High Court can only interfere with the functions of the ODPP where; institution/continuance of criminal proceedings against an accused could amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice, or; it manifestly appeared that there was a legal bar against the institution or continuance of the said proceedings, for example want of sanction or; the allegations in the first information report or the complaint taken at their face value and accepted in their entirety, did not constitute the offence alleged or; the allegations constituted an offence alleged but there was neither legal evidence adduced, nor evidence adduced clearly or manifestly failed to prove the charge. It is thus emphasised that the petition does not meet the criteria set out by the Supreme Court which bind the court and must be followed by it.
21. Even though there was contemporaneously filed with the petition a motion for conservatory orders, that application was compromised and collapsed into the petition for purposes of fast-tracking the petition. The court then directed that the petition be canvassed by way of written submissions. Those directions were duly honoured by the parties who filed respective submissions.
Petitioners’ Submissions
22. The petitioners identify three issues for determination by the court to be; a) whether the 1st respondent violate express provisions of the statute and the constitution in obtaining the search warrants? b) whether the 1st respondent violate the rights of the petitioners during the process of the search and seizure of items and properties from the petitioners, and; c) whether the orders prayed for herein in the petition are merited.
23. The petitioners submit that the commission is a creature of the Constitution and therefore bound by the provisions of the Constitution. They contend that the commission however violated the petitioners right to a fair administrative action under article 47 of the Constitution by denying them a fair chance to be invited to their offices and be questioned on any issue that was under investigation before their homes were raided and their privacy violated.
24. The petitioners additionally argue that the commission did not meet the threshold required in the issuance of search warrants as laid down by Justice Majanja in the case of MANFRED WALTER SCHMITT & ANOTHER V REPUBLIC & ANOTHER [2013] eKLR where the court observed as follows;
“…It would be remiss if I did not comment on the nature of the proceedings before the subordinate court. The duty imposed on the judiciary to issue warrants of search and seizure is a constitutional safeguard to protect the rights and fundamental freedoms of an individual. The Court is not a conveyor belt for issuing warrants when an application is made nor must the court issue warrants of search and seizure as a matter of course. When an application is made, the Court is required to address itself to the facts of the case and determine, in accordance with the statutory provisions, whether a reasonable case has been made to limit a person’s rights and fundamental freedoms. On the other hand, the duty of the State and its agencies, in investigating and prosecuting crime, is to furnish the Court with facts upon which the court can conclude that there is reasonable evidence of commission of a crime by the person it seeks to implicate by the application for search and seizure.”
25. They contend that the orders obtained did not include breaking in and the publication of private pictures which they assert lowered their dignity as some of the images had the petitioner in compromising clothes thus a violation their rights under article 28 of the Constitution. It is then added that in publishing their pictures the commission had presumed their guilt and convicted them in the court of public opinion.
26. They further submit that the freezing of their accounts violated their rights under article 40 of the Constitution and that the way in which their phones, documents and other properties were obtained violated their rights under article 50(4) of the Constitution.
1st Respondent’s Submissions
27. On the question whether the search warrants were illegally obtained, the 1st respondent submits that it acted lawfully based on that the search warrants were obtained through applications filed under section 118 of the Criminal Procedure Code; the applications were filed and dealt with ex parte as provided under section 118A of the Criminal Procedure Code detailing the suspicious conduct against each petitioner based on preliminary information gathered; the searches was conducted after 6AM as envisaged under section 119 of the Criminal Procedure Code; only reasonable force was applied to enter the residences where the owners had denied access as provided for in the court order and sections 120(2) and 22(2) of the Criminal Procedure Code; and that as envisaged under section 121 of the Criminal Procedure Code, the commission detained the items seized pending the conclusion of the investigations.
28. The 1st respondent submits that the case cited by the petitioner that is, MANFRED WALTER SCHMITT & ANOTHER V REPUBLIC & ANOTHER [2013] eKLR is distinguishable from the investigations subject of this petition. They argue that in the Schmitt case, the applicants’ bank accounts had been frozen yet the only allegation made was that there had been theft of treasury bonds with no attempt to link the theft of the bond to the applicants and their bank accounts, yet in this case, the investigators specified the allegations against the petitioners including; conflict of interest, abuse of office, irregular awards of tenders and transfer of kick- backs to senior county officials all constituting offences of corruption and economic crime. They add that the investigator also described each petitioner indicating their position in the county government and their relation to the entities that received the embezzled funds during the period of investigation.
29. On the allegation of the violation of the petitioners’ fundamental rights, the 1st respondent asserts that the petitioners’ rights under articles 28,29,31,40 and 47 of the Constitution are not absolute but are capable of limitation for justifiable reasons.
30. On the right to fair administrative action, the 1st respondent contends that the commission is not required to give written notice prior to commencing an investigation. Reference is made to the court decision in Ethics and Anti-Corruption Commission & another v Ojienda, SC t/a Prof Tom Ojienda & Associates Advocates & 2 others (Petition 30 & 31 of 2019 (Consolidated)) [2022] KESC 59 (KLR) (7 October 2022) (Judgment) where the Supreme Court held as follows;
“Does the 1st appellant’s investigative powers fall within the corners of this definition? Part IV of the ACECA specifically provides for the 1st appellant’s investigative powers. The powers granted therein include powers, privileges and immunities of a Police Officer under section 23(3), to search premises under section 29, to apply for surrender of travel documents under section 31, to arrest persons under section 32 amongst others. Strictly speaking, these powers when exercised cannot be described as “administrative action” within the meaning of article 47…On the contrary, these are special powers conferred by a specific legal regime, to be exercised for a special purpose.
If the Commission is carrying out a police operation or an intelligence gathering or asset tracing exercise, it cannot be required to issue a prior mandatory notice to the intended targets. In such a situation, the provisions of section 23 of ACECA, the Evidence Act, the CPC, and any other enabling legislation come into play.
We have already held that the 1st appellant is not required to give written notice prior to commencing an investigation in all situations.”
31. The 1st respondent then submits that it did not summon nor issue the petitioners notice before undertaking the search because of the potential danger of evidence tampering. It is added that it is inevitable that a suspect would destroy incriminating evidence hence the rationale of the provisions of sections 118-121 of the Criminal Procedure Code. The court is then cited to the case of R v EACC & 2 others; Ex parte Applicant: Stephen Ogaga Osiro JR No. 25 of 2019 [2020] eKLR where the court observed as follows;
“…it will definitely amount to alerting a wrong doer of the impending investigation hence cover up his inadequacy by concealing any implicating evidence or materials. This court will not serve any public interest if suspects of crime were to be alerted of pending sting operation/s.”
32. On the allegation of the violation of the petitioners’ rights under article 50 of the Constitution, the 1st respondent asserts that a search warrant is issued to facilitate investigations, and at that stage, there is no dispute for adjudication envisaged under article 50 of the Constitution. The 1st respondent adds that a court’s assessment of an application for warrants does not amount to a determination of the civil rights or criminal culpability to trigger the rights enshrined under article 50 of the Constitution. They refer the court to Willian Moruri Nyakiba vs The Chief Magistrate, Nairobi &2 Others (2006) eKLR where the court noted that the stage of search warrants is not at that stage of a contested process which calls for responses from an affected party.
33. On the allegation of the violation of petitioners’ rights to privacy, human dignity and freedom and security of a person under articles 28, 29 and 31 of the Constitution, the commission refers the court to the decision of the court in Abubakar Shariff Abubakar v Attorney General & another H.C (Mombasa) Constitutional Petition No. 82 of 2012 (2014) eKLR where it was held that where there exists a lawful search warrant issued by a court of law, then any search and seizure in pursuance of that warrant cannot be said to amount to a violation of a person’s constitutional rights and freedoms.
34. They further refer the court to the Schmitt case where the court observed that the authority given to state agencies to conduct searches and seizures is a limitation of the fundamental right to privacy protected under the provisions of article 31.
35. On the right to property guaranteed under article 40 of the Constitution, the commission submits that the property seized in the execution of a search is seized pursuant to a valid search and seizure order, which is an acceptable limitation of the right to property protected under article 40 of the Constitution of Kenya.
Submissions by 2nd,3rd, 4th and 5th Respondents
36. In the submissions, the four respondents identify three issues for determination by this court namely; a) whether the Director of Public prosecutions and other investigative agencies are acting within their constitutional mandates; b) whether the court can and should interfere with ongoing investigations and possible prosecution and; c) whether the orders sought by the petitioners are warranted.
37. On whether the Director of Public prosecutions and other investigative agencies are acting within their constitutional mandate, it is submitted that article 157(6) of the Constitution empowers the DPP to institute and undertake criminal proceedings while article 157(10) affirms the DPP’s independence, stating that the office shall not be subject to direction or control by any person or authority. In addition, article 157(11) further obligates the DPP to act in the public interest, ensure justice is served and avoid abuse of the legal process. The respondents argue that the independence of the DPP was reaffirmed in the case of Jirongo v Soy Developers & 9 others (2021) KESX 32 (KLR) where the Supreme Court held that the courts should only interfere with the independence of the DPP where there is evidence of abuse of power, bad faith or breach of constitutional standards under article 157(11).
38. The offices of the DCI and EACC derive their investigative authority from articles 79, 244 and 245 of the Constitution and that there is nothing unconstitutional in being investigated for possible commission of an offence as observed in the case of Florence Mwangangi v Principal Secretary, Ministry of Interior (2019) eKLR. When the applicable law is applied to the facts of the case, the respondents argue that the petitioners have not shown that the investigations are founded on bad faith or other vitiating factors to invite the interference by the court.
39. On whether the court can and should interfere with ongoing investigations and possible prosecution, the respondents submit that there exists no legal or factual basis to restrain the respondents from discharging their constitutional duties. They contend that the High Court’s supervisory jurisdiction is not intended to substitute its own judgment for that of investigative or prosecutorial authorities. For that proposition the court is referred to the case of Ethis & Anti-Corruption Commission v Republic & 3 others Ex Parte Arthur Sakwa [2014] eKLR where the court held that;
“The court should not engage in micromanaging investigations or prosecutions. The threshold for judicial intervention is high and can only be invoked when the actions complained of are so egregiously unlawful or unconstitutional.”
40. The four respondents then contend and assert that the reliefs sought by the petitioners would undermine and subvert public interest as well as the constitutional values of accountability and transparency it being added that the orders sought by the petitioners are not warranted the petitioners have not met the legal threshold for the grant of any of the reliefs sought.
41. In particular, the respondents contend that the petition amounts to a collateral challenge to subordinate court decisions through a constitutional petition contrary to established legal principles established by the court in the decision in Peter Odhiambo Ogego v Inspector General of Police & Others [2019] eKLR where the court held that a constitutional petition is not an avenue for reviewing, appealing or overturning valid decisions of competent courts because an aggrieved party must pursue the statutory mechanisms of review or appeal. Secondly, the prayers for judicial review remedies of certiorari, prohibition and mandamus cannot be grated because the petitioners have not met the applicable threshold set out in Pastoli v Kable District Local Government Council & Others [2008] 2 EA 300 that an applicant seeking those remedies has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety. Lastly, the respondents assert that to grant the orders sought to prohibit the functions of the respondents would amount to an unconstitutional encroachment on independent institutions. Because there is no evidence of harassment, improper conduct or procedural abuse by the respondents.
Issues, Analysis and Determination
42. The court has perused the petition and all responses filed in resistance thereto as well as the submissions by the parties and identify only three issues to stand out for determination by the court. The issues are: -
a) Whether the search warrants obtained by the 1st respondent from the Lower Court were lawfully and legally issued? and if not, whether they should be quashed?
b) Whether the petitioners have, on the facts pleaded, demonstrated a violation of their constitutional rights as enshrined under Articles 2,28,29,31,40,47,50 & 157(11) of the Constitution of Kenya, 2010 by the respondents?
c) If a) and be answered in the affirmative, Whether the petitioner is entitled to the reliefs sought?
Were the search warrants lawfully obtained?
43. The miscellaneous criminal applications that sanctioned the search and seizure warrants before the Chief Magistrate’s Court were anchored on, and brought pursuant to sections 118, 118A,119,120,121 and 122 of the Criminal Procedure Code and section 23 of ACECA. That the applications are by law, section118A. Criminal Procedure Code mandated to be made and prosecuted ex-parte should not be in contention but that is the petitioner’s case here.
44. The petitioners’ fault and challenge against the proceedings at the lower court is on the basis that they were not informed and/or notified of the proceedings, thus flies on the face of or just wishes away the statutory position and the plethora of stare decisis on the point giving the rationale of
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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT LODWAR
CONSTITUTIONAL AND HUMAN RIGTHTS DIVISION
PETITION NO. E003 OF 2025
IN THE MATTER OF CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS AS ENSHRINED UNDER ARTICLES 27,28,29(c)(d), 31, 40(3),47,48,50,157,160,245 & 249 OF THE CONSTITUTION OF KENYA, 2010
BETWEEN
MICHAEL EREGAE EKIDOR………….……..……………..……...….…..1ST PETITIONER
PETER LOMORUKAI……………………………………...……………….2ND PETITIONER
MARK ACHILLA EKIRU…………………………………...………………3RD PETITIONER
SAMSON NAKITO………………………………….……………………..4TH PETITIONER
LILIAN ALAPER ATEYO……………………………………………………5TH PETITIONER
ANNAH NAROT LONGOLI……………………………………………….6TH PETITIONER
ABENYO AMATHWEL ETIIR…………………………….………………..7TH PETITIONER
STEPHEN LOWOTON……………………………………………...………8TH PETITIONER
WILLIAM EREX AMINIT……………………………………….…………..9TH PETITIONER
NANGIRO EDUNG ICHOR…………………………………..………..10TH PETITIONER
AND
ETHICS & ANTI CORRUPTION COMMISSION…......….………….1ST RESPONDENT
THE CHIEF MAGISTRATE’S
(ANTI-CORRUPTION COURT) NAIROBI…………………………..2ND RESPONDENT
THE ATTORNEY GENERAL…………………………………….....….3RD RESPONDENT
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTION…….…...4TH RESPONDENT
DIRECTORATE OF CRIMINAL INVESTIGATION……….……….…4TH RESPONDENT
JUDGMENT
The Petitioner’s Case
1. In the petition dated 13th April, 2025, the 1st to the 7th petitioners are described as employees of the County Government of Turkana serving in different capacities; County Executive Member of Finance, Chief Officer for Urban Management, Chief Officer for Roads and Transport, Director of Procurement, senior accountant, employee and a security warden respectively. The 8th to 10th petitioners are described as businessmen.
2. The petition then describes the respondents and assigns to each the creating law and mandate.
3. The petitioners'' case is that the 1st respondent by way of ten ex parte motions moved the Chief Magistrate’s Court at Milimani in Misc Cases No. E524 to E533 of 2025 all dated 08.04.2025 seeking warrants to enter their homes, offices and places of abode for purposes of seizing documentary evidence, electronic devices, unexplained sums of money or any other items deemed necessary in an investigation into economic crimes. They add that the orders were granted on the same day and on 12.04.2024 at 6AM, officers from the 1st respondent’s office arrived at the petitioner’s homes where they reside with their families and gained entry in a manner both excessive and uncivilized, ransacked the houses, disrupted everything in sight and left the premises in disarray. The entries were considered excessive and disruptive because, the 1st respondent broke the doors and gates to the home of the 1st and 8th petitioner and disrupted wedding arrangements that were ongoing on in the compounds.
4. The 1st petitioner contends that the 1st respondent went ahead and took his photos and videos during the fracas and shared with bloggers terming such actions by the 1st respondent against the petitioners to be in violation of their constitutional rights under articles 2,28,29,31,40,47,50 & 157(11) of the Constitution of Kenya.
5. The petitioners thus seek a raft of orders, including a declaratory order nullifying the searches on the basis that the order giving rise thereto were obtained by material none disclosure, orders of prohibition restraining any initiation and sustenance of criminal proceedings on the basis the searches and from further conduct of such searches, a certiorari to quash the ex-parte orders and the results of the searches and an order of mandamus to compel the unconditionally release and return all items and any other property unlawfully seized from the petitioner’s premises pursuant to the impugned search and seizure. In the petitioners’ own words, the court is asked to grant to them;
a) A declaration be and is hereby issued that the raid, search and seizure by the respondents pursuant to the proceedings and subsequent rulings and orders in the ten ex parte Miscellaneous Notice of Motion applications ranging from Misc. No. E524 to E533 of 2025 all dated 8th April 2025 in Milimani Chief Magistrate’s Misc Criminal Applications was precipitated by material non-disclosure, mala fides, an abuse of process and are consequently rendered unconstitutional, null and void for violating articles 47,50,157(11) and 245 of the Constitution.
b) An order of prohibition restraining the respondents, their agents, or any persons acting under their authority from initiating, sustaining or instituting any criminal proceedings against the petitioner arising from the impugned search, seizure and the circumstances giving rise thereto, unless undertaken in strict compliance with the constitutional safeguards enshrined in articles 47,50,157(11) and 245 of the Constitution.
c) An order of prohibition restraining the respondents, their agents, or any persons acting on their authority from engaging in any form of harassment, which will include freezing of their personal and business accounts that would limit their professional and social well-being.
d) An order of certiorari to bring into this court and quash the ex parte search and seizure orders issued pursuant to the proceedings and subsequent rulings and orders in the 10 Milimani Chief Magistrates Misc. Criminal applications on 8th March, 2025 on the basis of material non-disclosure and procedural irregularity, together with all consequential actions, processes, or decisions arising therefrom, including but not limited to the confiscation, retention or use of any materials, devices or documents seized from the petitioner’s residence.
e) An order of mandamus compelling the respondents, their agents, or any persons acting under their authority to unconditionally release and return all items, documents, electronic devices, and any other property unlawfully seized from the petitioner’s premises pursuant to the impugned search and seizure, forthwith and without any further delay.
f) Costs of this petition be provided with interests at the court’s rate.
g) Any other order that this court deems fit and just in the circumstances.
6. The petition is supported by the affidavit of Michael Eregae Ekidor sworn on 13.04.2025 in which he he asserts to have the authority of his co-petitioners then reiterates the averments in the petition with the stress that at no point were the petitioners summoned for questioning yet they have always been willing to submit to a fair and impartial process.
1st Respondent’s Response to the Petition
7. The petition is resisted by the 1st respondent through the replying affidavit of Felix Asete, an investigator with the commission, sworn on 29.04.2025. The deponent begins his opposition to the petition by stating that he was a member of the team investigating allegation of embezzlement of public funds to the tune of Kshs. 1 billion from the County Government of Turkana by senior county officials between the years 2018 to 2024, which cases were recorded under inquiry files No. EACC/AT/INQ/12/2025 and EAC/PI/INQ/9/2025.
8. He detailed that he was aware that the commission is empowered under sections 118-122 of the Criminal Procedure Code to apply ex parte to a court or magistrate for warrants to search any premises for anything which is necessary for the conduct of an investigation into an offence, and if found, to seize the items. In support of the assertion that an application for a search and seizure is lawfully made ex parte, he refers the court to the decision in the case of Mape Building & General Engineering v Attorney General & 3 others Petition No. 437 of 2015 (2016) eKLR where the court observed that the reason why an application for search and seizure is made ex parte is because no offender knowing that there existed evidence which if not destroyed would lead to his guilt can be expected to sit back once notified of possible investigations.
9. He added that he was aware that search warrants once issued may be executed on any day including Sunday between the hours of sunrise and sunset, with the leave of the court, and that where ingress and egress from a building cannot be obtained, reasonable force including breaking open any outer or inner door or window to effect an entrance is envisaged and provided for under section 120(2) as read together with section 22 of the Criminal procedure Code.
10. It is his deposition that the commission was investigating the following allegations which resulted in the search;
i. Conflict of interest against senior officials of the County Government of Turkana, who through their companies and business entities traded with the county in contravention of section 42 of ACECA.
ii. Receiving illegal benefits (kick-backs) against senior county officials including the Governor of the County of Turkana from companies purportedly trading with the county.
iii. Irregular award of tenders to entities whose proprietors are close relatives of the Governor of the County of Turkana.
iv. Sources of massive wealth by county officials and their associates in a considerably short period of time, which was not commensurable to their legitimate sources of income.
11. He then posits that the commission obtained orders to use reasonable force if necessary, and that reasonable force was applied to gain entry to some of the petitioners’ residences where access had been denied by the respective owners who were already tampering with the evidence by throwing documents over the perimeter wall. He added that during the search, they retrieved crucial documents including an amount of Kshs. 6,700,000/- in cash from the residence of the 1st petitioner. He also stated that the search operations in the homes of the 7th and 10th petitioners were suspended due to security concerns for the search teams.
12. He asserts that the searches were conducted professionally and that the petitioners’ rights under articles 28,29,40 and 47 of the Constitution are not absolute but capable of limitations and that investigations including ex parte search seizure orders are lawful justifications for the limitation of fundamental rights to facilitate the fight against the crimes.
13. On the petitioners’’ allegations of breach of article 47 of the Constitution, the deponent refers the court to the Supreme Court decision in the case of EACC & DPP v Tom Ojienda , SC t/a Prof. Tom Ojienda & Associates Advocates & 2 others Petition 30 & 31 of 2019 (consolidated) [2022] KESC 59(KLR) where the court observed that the commission’s investigative powers when exercised cannot be described as ‘administrative action’ within the meaning of article 47 because the commission is not required to give written notice prior to commencing an investigation in all situations.
14. He avows that since the investigation is not an event but a process, the petitioners shall at the opportune time be afforded an opportunity for an interview and statement recording.
15. Lastly, the deponent asserts that section 29 of the EACC Act authorizes the commission to publicize important cases and that in execution of this mandate, the commission on 10.04.2025 issued a press release notifying the public of the searches and the items seized including the cash.
16. Upon being served with the responses by the respondents, the petitioners, with the leave of the court, filed a further Affidavit sworn by the 1st Petitioner, Michael Eregae Ekidor.
17. In the affidavit, the petitioners posit that; EACC is a creation of the Constitution and therefore bound by the provisions of the Constitution including article 47 of the Constitution of Kenya; sections 26,27 and 28 of ACECA obligates the commission to issue notices to people suspected of any economic crime; the ten applications dated 08.04.2025 made to court and which led to the issuance of the search warrants raised no reasonable suspicion of the commission of offences of corruption as they contained no annexures; the money recovered from the deponent’s car was payment for a leased property and he was on his way to bank it when he was ambushed by members of the commission and on the allegation of violation of human rights, he reiterates the averments in supporting affidavit and adds that the 7th and 8th petitioners and their spouses have had their bank accounts frozen in violation of article 40 of the constitution despite the fact that some of the accounts individual accounts that have been in operation since the year 2016.
18.
2nd,3rd,4th and 5th Respondents’ Response to the Petition
19. These four respondents have resisted the petition by way of a joint grounds of opposition dated 09.05.2024 and term the same unmerited on the grounds that; the petition does not meet the test of a constitutional petition as laid down in the case of Mumo Matemu v Trusted Society of Human Rights Alliance (2014) eKLR because the petitioners have only stated the provisions of the Constitution violated but they do not explain further the manner of the alleged infringements; the investigative mandate of the respondent is constitutionally protected under articles 244 and 245 of the Constitution and cannot be restrained on the basis of speculation; the orders sought if granted would unjustifiably interfere with the lawful and constitutional mandate of the DPP and other investigative agencies under articles 157 and 245 of the Constitution.
20. They then contend that the High Court can only interfere with the functions of the ODPP where; institution/continuance of criminal proceedings against an accused could amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice, or; it manifestly appeared that there was a legal bar against the institution or continuance of the said proceedings, for example want of sanction or; the allegations in the first information report or the complaint taken at their face value and accepted in their entirety, did not constitute the offence alleged or; the allegations constituted an offence alleged but there was neither legal evidence adduced, nor evidence adduced clearly or manifestly failed to prove the charge. It is thus emphasised that the petition does not meet the criteria set out by the Supreme Court which bind the court and must be followed by it.
21. Even though there was contemporaneously filed with the petition a motion for conservatory orders, that application was compromised and collapsed into the petition for purposes of fast-tracking the petition. The court then directed that the petition be canvassed by way of written submissions. Those directions were duly honoured by the parties who filed respective submissions.
Petitioners’ Submissions
22. The petitioners identify three issues for determination by the court to be; a) whether the 1st respondent violate express provisions of the statute and the constitution in obtaining the search warrants? b) whether the 1st respondent violate the rights of the petitioners during the process of the search and seizure of items and properties from the petitioners, and; c) whether the orders prayed for herein in the petition are merited.
23. The petitioners submit that the commission is a creature of the Constitution and therefore bound by the provisions of the Constitution. They contend that the commission however violated the petitioners right to a fair administrative action under article 47 of the Constitution by denying them a fair chance to be invited to their offices and be questioned on any issue that was under investigation before their homes were raided and their privacy violated.
24. The petitioners additionally argue that the commission did not meet the threshold required in the issuance of search warrants as laid down by Justice Majanja in the case of MANFRED WALTER SCHMITT & ANOTHER V REPUBLIC & ANOTHER [2013] eKLR where the court observed as follows;
“…It would be remiss if I did not comment on the nature of the proceedings before the subordinate court. The duty imposed on the judiciary to issue warrants of search and seizure is a constitutional safeguard to protect the rights and fundamental freedoms of an individual. The Court is not a conveyor belt for issuing warrants when an application is made nor must the court issue warrants of search and seizure as a matter of course. When an application is made, the Court is required to address itself to the facts of the case and determine, in accordance with the statutory provisions, whether a reasonable case has been made to limit a person’s rights and fundamental freedoms. On the other hand, the duty of the State and its agencies, in investigating and prosecuting crime, is to furnish the Court with facts upon which the court can conclude that there is reasonable evidence of commission of a crime by the person it seeks to implicate by the application for search and seizure.”
25. They contend that the orders obtained did not include breaking in and the publication of private pictures which they assert lowered their dignity as some of the images had the petitioner in compromising clothes thus a violation their rights under article 28 of the Constitution. It is then added that in publishing their pictures the commission had presumed their guilt and convicted them in the court of public opinion.
26. They further submit that the freezing of their accounts violated their rights under article 40 of the Constitution and that the way in which their phones, documents and other properties were obtained violated their rights under article 50(4) of the Constitution.
1st Respondent’s Submissions
27. On the question whether the search warrants were illegally obtained, the 1st respondent submits that it acted lawfully based on that the search warrants were obtained through applications filed under section 118 of the Criminal Procedure Code; the applications were filed and dealt with ex parte as provided under section 118A of the Criminal Procedure Code detailing the suspicious conduct against each petitioner based on preliminary information gathered; the searches was conducted after 6AM as envisaged under section 119 of the Criminal Procedure Code; only reasonable force was applied to enter the residences where the owners had denied access as provided for in the court order and sections 120(2) and 22(2) of the Criminal Procedure Code; and that as envisaged under section 121 of the Criminal Procedure Code, the commission detained the items seized pending the conclusion of the investigations.
28. The 1st respondent submits that the case cited by the petitioner that is, MANFRED WALTER SCHMITT & ANOTHER V REPUBLIC & ANOTHER [2013] eKLR is distinguishable from the investigations subject of this petition. They argue that in the Schmitt case, the applicants’ bank accounts had been frozen yet the only allegation made was that there had been theft of treasury bonds with no attempt to link the theft of the bond to the applicants and their bank accounts, yet in this case, the investigators specified the allegations against the petitioners including; conflict of interest, abuse of office, irregular awards of tenders and transfer of kick- backs to senior county officials all constituting offences of corruption and economic crime. They add that the investigator also described each petitioner indicating their position in the county government and their relation to the entities that received the embezzled funds during the period of investigation.
29. On the allegation of the violation of the petitioners’ fundamental rights, the 1st respondent asserts that the petitioners’ rights under articles 28,29,31,40 and 47 of the Constitution are not absolute but are capable of limitation for justifiable reasons.
30. On the right to fair administrative action, the 1st respondent contends that the commission is not required to give written notice prior to commencing an investigation. Reference is made to the court decision in Ethics and Anti-Corruption Commission & another v Ojienda, SC t/a Prof Tom Ojienda & Associates Advocates & 2 others (Petition 30 & 31 of 2019 (Consolidated)) [2022] KESC 59 (KLR) (7 October 2022) (Judgment) where the Supreme Court held as follows;
“Does the 1st appellant’s investigative powers fall within the corners of this definition? Part IV of the ACECA specifically provides for the 1st appellant’s investigative powers. The powers granted therein include powers, privileges and immunities of a Police Officer under section 23(3), to search premises under section 29, to apply for surrender of travel documents under section 31, to arrest persons under section 32 amongst others. Strictly speaking, these powers when exercised cannot be described as “administrative action” within the meaning of article 47…On the contrary, these are special powers conferred by a specific legal regime, to be exercised for a special purpose.
If the Commission is carrying out a police operation or an intelligence gathering or asset tracing exercise, it cannot be required to issue a prior mandatory notice to the intended targets. In such a situation, the provisions of section 23 of ACECA, the Evidence Act, the CPC, and any other enabling legislation come into play.
We have already held that the 1st appellant is not required to give written notice prior to commencing an investigation in all situations.”
31. The 1st respondent then submits that it did not summon nor issue the petitioners notice before undertaking the search because of the potential danger of evidence tampering. It is added that it is inevitable that a suspect would destroy incriminating evidence hence the rationale of the provisions of sections 118-121 of the Criminal Procedure Code. The court is then cited to the case of R v EACC & 2 others; Ex parte Applicant: Stephen Ogaga Osiro JR No. 25 of 2019 [2020] eKLR where the court observed as follows;
“…it will definitely amount to alerting a wrong doer of the impending investigation hence cover up his inadequacy by concealing any implicating evidence or materials. This court will not serve any public interest if suspects of crime were to be alerted of pending sting operation/s.”
32. On the allegation of the violation of the petitioners’ rights under article 50 of the Constitution, the 1st respondent asserts that a search warrant is issued to facilitate investigations, and at that stage, there is no dispute for adjudication envisaged under article 50 of the Constitution. The 1st respondent adds that a court’s assessment of an application for warrants does not amount to a determination of the civil rights or criminal culpability to trigger the rights enshrined under article 50 of the Constitution. They refer the court to Willian Moruri Nyakiba vs The Chief Magistrate, Nairobi &2 Others (2006) eKLR where the court noted that the stage of search warrants is not at that stage of a contested process which calls for responses from an affected party.
33. On the allegation of the violation of petitioners’ rights to privacy, human dignity and freedom and security of a person under articles 28, 29 and 31 of the Constitution, the commission refers the court to the decision of the court in Abubakar Shariff Abubakar v Attorney General & another H.C (Mombasa) Constitutional Petition No. 82 of 2012 (2014) eKLR where it was held that where there exists a lawful search warrant issued by a court of law, then any search and seizure in pursuance of that warrant cannot be said to amount to a violation of a person’s constitutional rights and freedoms.
34. They further refer the court to the Schmitt case where the court observed that the authority given to state agencies to conduct searches and seizures is a limitation of the fundamental right to privacy protected under the provisions of article 31.
35. On the right to property guaranteed under article 40 of the Constitution, the commission submits that the property seized in the execution of a search is seized pursuant to a valid search and seizure order, which is an acceptable limitation of the right to property protected under article 40 of the Constitution of Kenya.
Submissions by 2nd,3rd, 4th and 5th Respondents
36. In the submissions, the four respondents identify three issues for determination by this court namely; a) whether the Director of Public prosecutions and other investigative agencies are acting within their constitutional mandates; b) whether the court can and should interfere with ongoing investigations and possible prosecution and; c) whether the orders sought by the petitioners are warranted.
37. On whether the Director of Public prosecutions and other investigative agencies are acting within their constitutional mandate, it is submitted that article 157(6) of the Constitution empowers the DPP to institute and undertake criminal proceedings while article 157(10) affirms the DPP’s independence, stating that the office shall not be subject to direction or control by any person or authority. In addition, article 157(11) further obligates the DPP to act in the public interest, ensure justice is served and avoid abuse of the legal process. The respondents argue that the independence of the DPP was reaffirmed in the case of Jirongo v Soy Developers & 9 others (2021) KESX 32 (KLR) where the Supreme Court held that the courts should only interfere with the independence of the DPP where there is evidence of abuse of power, bad faith or breach of constitutional standards under article 157(11).
38. The offices of the DCI and EACC derive their investigative authority from articles 79, 244 and 245 of the Constitution and that there is nothing unconstitutional in being investigated for possible commission of an offence as observed in the case of Florence Mwangangi v Principal Secretary, Ministry of Interior (2019) eKLR. When the applicable law is applied to the facts of the case, the respondents argue that the petitioners have not shown that the investigations are founded on bad faith or other vitiating factors to invite the interference by the court.
39. On whether the court can and should interfere with ongoing investigations and possible prosecution, the respondents submit that there exists no legal or factual basis to restrain the respondents from discharging their constitutional duties. They contend that the High Court’s supervisory jurisdiction is not intended to substitute its own judgment for that of investigative or prosecutorial authorities. For that proposition the court is referred to the case of Ethis & Anti-Corruption Commission v Republic & 3 others Ex Parte Arthur Sakwa [2014] eKLR where the court held that;
“The court should not engage in micromanaging investigations or prosecutions. The threshold for judicial intervention is high and can only be invoked when the actions complained of are so egregiously unlawful or unconstitutional.”
40. The four respondents then contend and assert that the reliefs sought by the petitioners would undermine and subvert public interest as well as the constitutional values of accountability and transparency it being added that the orders sought by the petitioners are not warranted the petitioners have not met the legal threshold for the grant of any of the reliefs sought.
41. In particular, the respondents contend that the petition amounts to a collateral challenge to subordinate court decisions through a constitutional petition contrary to established legal principles established by the court in the decision in Peter Odhiambo Ogego v Inspector General of Police & Others [2019] eKLR where the court held that a constitutional petition is not an avenue for reviewing, appealing or overturning valid decisions of competent courts because an aggrieved party must pursue the statutory mechanisms of review or appeal. Secondly, the prayers for judicial review remedies of certiorari, prohibition and mandamus cannot be grated because the petitioners have not met the applicable threshold set out in Pastoli v Kable District Local Government Council & Others [2008] 2 EA 300 that an applicant seeking those remedies has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety. Lastly, the respondents assert that to grant the orders sought to prohibit the functions of the respondents would amount to an unconstitutional encroachment on independent institutions. Because there is no evidence of harassment, improper conduct or procedural abuse by the respondents.
Issues, Analysis and Determination
42. The court has perused the petition and all responses filed in resistance thereto as well as the submissions by the parties and identify only three issues to stand out for determination by the court. The issues are: -
a) Whether the search warrants obtained by the 1st respondent from the Lower Court were lawfully and legally issued? and if not, whether they should be quashed?
b) Whether the petitioners have, on the facts pleaded, demonstrated a violation of their constitutional rights as enshrined under Articles 2,28,29,31,40,47,50 & 157(11) of the Constitution of Kenya, 2010 by the respondents?
c) If a) and be answered in the affirmative, Whether the petitioner is entitled to the reliefs sought?
Were the search warrants lawfully obtained?
43. The miscellaneous criminal applications that sanctioned the search and seizure warrants before the Chief Magistrate’s Court were anchored on, and brought pursuant to sections 118, 118A,119,120,121 and 122 of the Criminal Procedure Code and section 23 of ACECA. That the applications are by law, section118A. Criminal Procedure Code mandated to be made and prosecuted ex-parte should not be in contention but that is the petitioner’s case here.
44. The petitioners’ fault and challenge against the proceedings at the lower court is on the basis that they were not informed and/or notified of the proceedings, thus flies on the face of or just wishes away the statutory position and the plethora of stare decisis on the point giving the rationale of
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