Michael Kamau Kuria & another v Ethics and Anti-Corruption Commission
The bottom line
#The court confirmed that law enforcement can obtain warrants to investigate suspicious bank accounts without notifying the account holder, provided there is reasonable suspicion.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent's ex parte warrants to investigate the petitioners' bank accounts violated the right to privacy
No violation. The warrants were lawfully obtained under sections 118 and 121(1) of the CPC, section 180 of the Evidence Act and section 23 of ACECA, and the Supreme Court's stay of the Tom Ojienda decisions restored the position that such ex parte warrants are proper.
The court traced the effect of the Court of Appeal decision in Tom Ojienda, which required EACC to use sections 26, 27 and 28 of ACECA with notice, and held that the Supreme Court's stay of that decision's effect restored the earlier line of authority permitting ex parte warrants under the CPC and Evidence Act where reasonable suspicion is demonstrated on oath.
Whether the right to property under Article 40 was violated
No violation; the petitioners effectively conceded the point in their submissions.
The court noted that the petitioners' own written submissions concluded that the right to property was not deprived under Article 40, contradicting their pleaded allegation, and declined to say more.
Whether the right to fair administrative action and fair hearing were violated
No violation. The petitioners were aware of the investigations, were invited to record statements, and will have an opportunity to be heard in any forfeiture proceedings.
Relying on its findings on the warrants, the court held that the notices issued under sections 26 and 55(2) of ACECA gave the petitioners an opportunity to explain, and any forfeiture application would afford a further hearing; Article 50 fair trial rights attach to an accused person, not a person under investigation.
Legal principles established
#- A court may issue warrants ex parte to investigate accounts suspected of holding proceeds of crime or corruption where reasonable grounds are shown, without notice to the account holder
- The Supreme Court's stay of the effect of the Court of Appeal decision in Tom Ojienda restored the pre-existing position that warrants obtained under sections 118 and 120 of the CPC and section 180 of the Evidence Act are lawful
- A court will be slow to find search warrants unlawful on purely technical grounds absent evidence of abuse of power or gross violation of rights
Court orders
#- 1.The two petitions are dismissed with costs to the respondent
- Jurisdiction invoked
- Original constitutional jurisdiction under Article 22 and 23 of the Constitution (petitions alleging violation of fundamental rights and freedoms)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Kamau Kuria & another v Ethics and Anti-Corruption Commission", Case Analysis (2020). Petition No. 18 of 2019 (consolidated with Petition No. 19 of 2019). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.