Former Nairobi Governor Evans Kidero has suffered a setback after the Court of Appeal dismissed a case in which he sought to stop the Ethics and Anti-Corruption Commission (EACC) from investigating his bank accounts.
Appeal Court judges Daniel Musinga, Asik Makhandia and Sankali Ole Kantai said yesterday that the questions raised by Dr Kidero in the appeal had been answered by the Supreme Court, in a ruling it delivered in a separate case in February 2019.
In this case, the anti-corruption body sought information against Dr Kidero during his tenure as CEO of Mumias Sugar between 2003 and 2012 and during his tenure as governor of Nairobi, including a memorandum of understanding signed between the city government and a Chinese company.
Dr Kidero alleged that the mandate of the EACC is limited to enforcing the provisions of Chapter VI of the Constitution and does not extend to investigating offences other than those provided for in the Constitution. He alleged that the EACC acted beyond its mandate when it claimed to be conducting investigations against him after obtaining orders to investigate his six bank accounts in February 2016.
“It is therefore clear that the Supreme Court has dismissed all the complaints raised by the appellant in the memorandum of appeal. These complaints are without merit,” Justices Musinga, Makhandia and Sankali said.
The Authority obtained court orders to investigate account opening documents, statements, checks, deposit papers, wire transfers, customer instructions, bank books, and any other information relating to bank accounts.
Through his lawyer, Ochieng Odiwole, Dr. Kidero maintained that the investigations were conducted without prior notice, however, every act or practice by a government or public official must necessarily conform to the constitution.
Mr Odiwole said that by dismissing his case in June 2018, the High Court gave the ACCC and any police officer or investigator the discretion to move the court at will and obtain arrest warrants without first using other constitutional safeguards to obtain the evidence in question.
The ECFA, through Senior Counsel Fred Ngatia, claimed that the arrest warrants were issued lawfully, and in such cases what is required is a reasonable basis on which the investigator seeks to investigate a bank account.
The Supreme Court has ruled that it all depends on what is at stake, the nature of the evidence required, and the urgency with which the evidence needs to be obtained.
The Court also ruled that the ECRF was not always obliged to notify persons it intended to investigate before starting an investigation.
The anti-corruption body alleges that Dr Kidero received millions of dollars deposited into several accounts and acquired properties in Nairobi while he was Mumias and later Nairobi County Governor.