EACC: Search warrants are investigative tools and not criminal proceedings
18:03:2025: The Ethics and Anti-Corruption Commission has responded in detail to the application of the Chief Magistrate (CM) of Thika Law Courts, Hon. Stella Atambo, which asserted that the Commission has no audience before the Court.
This is in relation to the search orders that the Commission obtained against the Hon. CM on March 12, 2025, and successfully executed on March 13, 2025, following complaints that she demanded and received bribes from accused persons in criminal cases before her.
On the day of the search, which produced a total of Kes2.07 million in cash from Hon. Atambo’s residence, suspected to have been solicited from accused persons and other relevant documents to the investigations, she served the Commission with an application and an order staying any operations arising from the search warrants. The application also ordered the parties to appear before the Court the following day, March 14, 2025.
In the application, through her lawyers, she argued that the ex parte search orders by EACC were obtained through material non-disclosure of facts, particularly her identity. The Commission filed a replying affidavit and a notice of preliminary objection on March 13, 2025, opposing her application.
On March 14, 2025, pursuant to the court’s directions, the parties appeared before the Court for an inter-partes hearing. The Hon. Ondiek asked the Commission to address the identity of the person of interest in the search warrant and why the Commission gave the person’s identity in the manner that it did, as Bonareri N. and not her full name.
After the counsel for the Commission satisfactorily addressed the issues, Hon. Ondieki ruled, recusing himself from hearing the application, citing close family ties with Hon. Atambo. He directed the matter to be placed before the Head of Station on March 17, 2025, for directions.
The parties appeared before CM Hon. Barasa yesterday, March 17, 2025. Hon. Atambo’s counsel made an oral application asserting that the EACC has no audience before the Court and should not be entertained in the proceedings. They exclusively argued that the power to prosecute was solely within the mandate of the DPP, and the EACC Counsel cannot assume prosecutorial powers without demonstrating that they have been gazetted or have been given delegated powers to prosecute by the DPP.
The Court set March 18, 2025, as the day it would give directions on whether or not EACC counsel could have an audience before court.
Today, March 18, 2025, the Court, on the strength that no one should be condemned unheard, directed that EACC had a right to respond to the issues raised by the Hon. Atambo as to whether it had a right of audience before the Court.
Led by the Director of Legal Services, EACC’s lawyers submitted that the Commission is an independent body established under Article 79 of the Constitution with the mandate to investigate corruption, economic crimes, and ethical breaches and that search warrants are investigative tools that should not be interpreted as criminal proceedings.
They further submitted that it is after conducting investigations that the EACC is required by law under section 11 1(d) and Section 35 of the EACC Act to forward the result of the investigation to the DPP. The Court was invited to look into various court cases where issues relating to the legality of search warrants have been litigated and orders to that effect granted. Particularly, the Court was invited to look into the matter of EACC & DPP -vs.- Tom Ojienda and Another and the matter of EACC -vs.- Kitui County Government.
As a rejoinder, Hon. Atambo’s advocates reiterated that the issue of application of search warrants falls within the DPP’s mandate under Article 157 of the Constitution.
The matter is scheduled for ruling on April 2, 2025, at 2:00 pm. The Court extended the stay orders issued on March 13, 2025.
