Director of Public Prosecutions v Tom Ojienda t/a Prof Tom Ojienda & Associates Advocates & 3 others [2019] KECA 572 (KLR)

The Court held EACC, a creature of Article 79, is bound by the Constitution and cannot pick and choose which of its actions are so bound. Parliament defined administrative action broadly in the Fair Administrative Action Act to include acts of any authority affecting legal rights or interests. Investigations affect rights and interests, so Article 47's procedural fairness requirements, including notice, apply.

The special regime of ACECA, with its severe consequences, contains ring-fenced safeguards requiring written notice and a chance for voluntary compliance. Section 23(4) incorporates police powers only in so far as they are not inconsistent with ACECA, so EACC could not fall back on the general powers in section 118A CPC and section 180 of the Evidence Act to defeat those safeguards.

Sections 134 and 137 of the Evidence Act protect client communications for the client's benefit. The proviso to section 134 removes protection for communications in furtherance of illegal purposes or showing crime or fraud. Mumias Sugar Company had voluntarily given information (waiver) and there were allegations of corruption, so Ojienda could not invoke the privilege; nor could he complain of a privacy breach of an account holding clients' funds.

Ojienda did not demonstrate different treatment without objective justification since no other firm was alleged to have received fictitious payments. Privacy over the advocate-client account belonged to the clients, who had not complained. The right to property was not infringed as the account was never frozen or depleted and the intrusion was lawful.