Ethics and Anti-Corruption Commission v Tom Ojienda & Associates & 2 others
The bottom line
#Supreme Court halts rulings that EACC must warn suspects before accessing bank accounts.
What this practically means
#The Supreme Court has temporarily blocked two lower court decisions that required the Ethics and Anti-Corruption Commission (EACC) to notify suspects before accessing their bank accounts during investigations. The Court found the fight against corruption is a matter of great public importance, and a final ruling is needed to clarify whether EACC investigations are administrative actions subject to fair hearing rules. Until the appeal is heard, no one can rely on those earlier rulings.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to entertain the application and the intended appeal under Article 163(4)(a) of the Constitution.
- 2.Whether the application for stay of execution meets the principles set out in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR.
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to hear an appeal challenging the Court of Appeal's finding that EACC investigations are administrative functions subject to Article 47 of the Constitution.
The Supreme Court has jurisdiction because the appeal involves the interpretation and application of Article 47 of the Constitution, a constitutional provision.
The 1st respondent's petition in the High Court alleged violations of several constitutional rights, including the right to fair administrative action under Article 47. The Court of Appeal upheld that finding. The applicant's appeal challenges that constitutional determination. Since the appeal raises issues of constitutional interpretation and application, it falls within the ambit of Article 163(4)(a).
Whether an application for stay of execution filed before the substantive appeal is lodged can be entertained.
Yes, if the substantive appeal is subsequently filed within the stipulated time, the application may be deemed properly on record.
The Court relied on its earlier decisions in Mohamed Ali Sheikh v Abdiwahab Sheikh Osman Hathe & 3 others and Alfred Nganga Mutua & 2 others v Wavinya Ndeti & another, where it held that an application for stay filed before the appeal is not fatal if the appeal is filed within time. Here, the application was filed on 18th July 2019, and the appeal was filed on 2nd August 2019, within the 30-day timeline.
Whether the applicant met the principles for granting a stay of execution pending appeal.
Yes, the applicant met the principles, particularly the public interest criterion.
The Court found that the fight against corruption and economic crimes is a matter of great public importance. It held that a clear and authoritative statement from the Supreme Court on the issues raised was imperative. Therefore, it granted the stay to preserve the status quo pending the hearing of the appeal.
Legal principles established
#- An application for stay of execution can be valid even if filed before the main appeal, as long as the appeal is lodged within the required 30 days.
- The Supreme Court has jurisdiction to hear appeals involving interpretation of constitutional rights, such as Article 47 on fair administrative action.
- To grant a stay of execution, the Court considers whether the appeal is arguable, would be rendered useless without a stay, and whether public interest favors the stay.
- The fight against corruption is a matter of great public importance that justifies preserving the status quo pending a final Supreme Court decision.
- No party may use or rely on the High Court or Court of Appeal decisions in this matter until the Supreme Court appeal is heard and determined.
Court orders
#- 1.The 1st respondent’s notice of preliminary objection dated August 1, 2019 is hereby overruled.
- 2.The notice of motion dated July 18, 2019 is hereby granted.
- 3.Neither party to this appeal, or any other person shall use, apply or in any way rely upon the High Court and/or the Court of Appeal decisions in this matter until the said appeal is heard and determined.
- 4.The costs of this application shall abide the outcome of the said appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No. 109 of 2016 (consolidated with Civil Appeal No. 103 of 2016)
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We consequently deem the Notice of Motion application dated 18th July, 2019 as properly on record as by the time of considering it, a substantive appeal had already been filed on August 2, 2019 within the stipulated timelines of 30 days of filing the notice of appeal.
It is not in doubt that the fight against corruption and economic crimes is a matter of great public importance. In the circumstances, in the interest of justice and to provide guidance, a clear and authoritative statement of this Court on the issues raised is imperative.
Neither party to this appeal, or any other person shall use, apply or in any way rely upon the High Court and/or the Court of Appeal decisions in this matter until the said appeal is heard and determined.
Key timeline
#Practical implications
#Stay applications before appeal filing
When filing a stay of execution at the Supreme Court, you may submit the application before the substantive appeal is lodged, provided the appeal is filed within the 30-day window from the notice of appeal. This ruling confirms that timing is not fatal if the appeal follows promptly.
EACC investigations remain unrestricted
For now, the EACC can continue accessing bank accounts and conducting investigations without giving prior notice to suspects. Businesses under investigation should not expect advance warning, as the lower court rulings requiring such notice are suspended pending the Supreme Court's final decision.
Fair hearing rights in EACC probes
If you are a suspect in an EACC investigation, your right to be heard before the commission accesses your bank accounts is not yet settled. The Supreme Court will decide whether Article 47 applies to EACC investigations. Until then, the earlier rulings that required notice are not enforceable.
Frequently asked questions
#Does the EACC have to warn me before checking my bank account in Kenya?+
Not for now. The Supreme Court has temporarily blocked lower court decisions that required the EACC to give notice before accessing bank accounts. The final decision on whether this is required under Kenya's Constitution is pending.
What is a stay of execution in Kenyan law?+
A stay of execution is a court order that temporarily stops a previous court ruling from being enforced while an appeal is being heard. In this case, it prevents anyone from relying on the High Court and Court of Appeal decisions until the Supreme Court makes a final ruling.
Can the Supreme Court hear an appeal about EACC investigations in Kenya?+
Yes. The Supreme Court ruled it has jurisdiction under Article 163(4)(a) of the Constitution because the appeal involves interpreting Article 47, which guarantees fair administrative action. This is a constitutional issue that the Supreme Court can decide.
Why did the Supreme Court stop the EACC rulings from being used in Kenya?+
The Court found that fighting corruption is a matter of great public importance. It granted the stay to preserve the current situation until it can give a clear and authoritative ruling on whether EACC investigations must follow fair administrative action rules.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission v Tom Ojienda & Associates & 2 others", Case Analysis (2020). Civil Application 21 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/56/eng@2020-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.