The Court of Appeal has upheld a six-year investigation by the Ethics and Anti-Corruption Commission (EACC) into businessman and former public official Joseph Ambuso Omondi, ruling that the prolonged probe did not violate his constitutional rights.
The three-judge bench comprising Justices K. M’Inoti, E.C. Mwita and B. Ongaya dismissed Omondi’s appeal against a High Court decision that had found the EACC’s continued investigation and retention of some of his documents did not amount to violations of his rights to dignity, privacy, property or fair administrative action.
The case arose from a search conducted by EACC officers at Omondi’s home and office on October 11, 2017.
During the operation, the officers seized 23 title deeds and six electronic devices.
Although the electronic devices and two of the title deeds were subsequently returned, the commission retained the remaining documents for more than six years as it continued with its investigations.
Omondi challenged the prolonged retention of his documents, arguing that the delay was unreasonable and violated his constitutional rights under Articles 27, 28, 31, 40 and 47 of the Constitution.
He asked the courts to declare that his rights had been violated, award him damages, order the return of his documents and lift restrictions placed on his properties.
The EACC, however, attributed the delay to the complexity of the investigations, which involved several counties and land registries.
The commission told the court that some land registries had required additional time to trace records, while the Nyakach Land Registry had been destroyed by fire.
The investigations were also disrupted by the Covid-19 pandemic.
The Court of Appeal found that the EACC had provided sufficient reasons for the prolonged investigation and agreed with the High Court that the circumstances of the case justified the extended period.
The judges held that lengthy investigations can have significant consequences for those being investigated, noting that prolonged probes may affect a person’s life, health, relationships and livelihood.
However, the court found that the complexity of the investigation and the circumstances surrounding the delay had been adequately explained.
The judges also rejected Omondi’s argument that the investigation violated his right to fair administrative action under Article 47 of the Constitution.
The court relied on a 2022 Supreme Court decision involving the EACC, which held that the commission’s investigative powers do not constitute “administrative action” within the meaning of Article 47.
The Supreme Court had held that the powers granted to the commission included powers, privileges and immunities similar to those of a police officer and, when exercised for investigative purposes, could not strictly be classified as administrative action.
The appellate court further dismissed the claim that Omondi’s right to property had been violated.
It said that Article 40(6) of the Constitution does not protect property found to have been unlawfully acquired and that the purpose of the EACC’s investigation was, in part, to establish whether the properties under scrutiny had been lawfully acquired.
The Court of Appeal also upheld the High Court’s decision directing the EACC to conclude its investigations within eight months.
The judges held that Omondi had himself asked the High Court to fashion an appropriate remedy over the prolonged investigation.
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