Kenya’s Ethics and Anti-Corruption Commission has the power to secretly investigate suspects on allegations of corruption and has no legal obligation to inform the suspect, the High Court in Nairobi has ruled.
Justice Esther Maina of the Anti-Corruption Division of the High Court in Nairobi made the ruling in a case brought by a suspended legal officer at the Kenya Medical Suppliers Authority (Kemsa), Evans Cheruiyot, who challenged the use of evidence secretly obtained by the EACC from his former classmate who demanded a Sh1 million bribe from the state agency over a tender for the provision of legal services.
In her ruling, the magistrate said no law in the country requires the EACC to issue a notice to a party before commencing an investigation into corruption, bribery or any other economic crime.
“Section 118 of the Criminal Procedure Code provides for the power of the court to issue search warrants, it does not create a mandatory obligation on the EACC or any other law enforcement agency to issue a notice prior to investigations,” the judge ruled.
Cheruiyot had challenged the decision by his former classmate at Moi University School of Law, Titus Barasa Makhanu, to secretly record their conversations about the tender and then take the recordings to the EACC to investigate him for soliciting a bribe.
“He set me up by recording our conversation and taking it to the EACC to investigate and prosecute me for allegedly soliciting a bribe. The commission cannot rely on the recording to investigate me because it was made without my consent,” Cheruiyot said.
Kemsa’s legal officer wanted the court to restrain the EACC from investigating, arresting or prosecuting him on the basis of the recordings, which his friend and former classmate told the court were inadmissible because they violated his right to privacy.
But in her ruling, the judge dismissed Cheruiyot’s application outright, saying it was premature as he had not been arrested or even charged with the offence of soliciting a bribe.
“I am of the view that the applicant has failed to establish that the impugned audio and video recordings of the conversations between him and Barasa between June 1, 2021 and September 17, 2021 violated his right to privacy,” Justice Maina ruled.
The judge also agreed with EACC’s submission that the said recordings did not amount to entrapment because the commission’s involvement in securing the recordings was passive and Cheruiyot was not induced, coerced or influenced in any way in the conversation.
In his affidavit, Cheruiyot said Barasa was his classmate at Moi University School of Law and after graduating, he was employed by Kemsa while his friend went into private practice.
He said Barasa was then listed as one of the private attorneys to act for the state agency and that they worked with each other in their official capacity and as acquaintances.
“Therefore, I always ensured that the legal instructions assigned to my classmate were given the necessary attention and conducted in the best interest of Kemsa,” Cheruiyot said.
Following the closeness, Cheruiyot alleged that between June and September 2021, Barasa continued to call and text him to enquire about the agency’s plans to procure legal services for some upcoming court cases.
He said he agreed to meet and discuss the matter, but unbeknownst to him, Barasa had secret equipment to record their conversation in audio and video format.
“Three days after our meeting, he told me that he had a video and audio recording of our conversation in which he claimed that I was demanding a bribe to approve his legal fees. This was an attempt to blackmail and manipulate me into approving his tender for legal services,” Cheruiyot said.
He added that on 8 October 2021, he was suspended from his post by the Kemsa board after they received complaints that he had solicited a bribe from Barasa. He was later summoned to give evidence at the EACC.
According to Cheruiyot, he reported to the EACC as instructed, only to learn that they had the secret video recordings, which they played and asked him to explain why he had solicited a bribe from his former classmate.
