Although the Director of Public Prosecution Keriako Tobiko has said lately that search warrants for investigating Nairobi Governor Dr Evans Kidero bank account were obtained legally, the latter still contends they were obtained behind his back without giving him a chance to be heard.
This is the backdrop against which a court decision in a month, echoes, sending simmering political ripples across the governor’s unenviable career.
The investigations relate to the Mumias Sugar Company and an MoU signed between the Nairobi county government and a Chinese firm.
Smirked of malice
Kidero on the one hand contends that the corruption watchdog, EACC, has no mandate to investigate and on the other, wants a quashing of warrants to probe his accounts at Standard Chartered bank and Commercial bank on grounds that the circumstances surrounding the obtaining of warrants dated February 24 2016 at the Makadara chief magistrate’s court were in bad faith and smirked of malice.
The warrants were given to one Dennis Joseck Mare barely two days after his colleague had failed to obtain them at the Milimani law courts and Kidero says it was in ” breach of his rights and fundamental freedoms under the provisions of the constitution.”
The governor is former managing director of Mumias Sugar Company Limited where he served between 2003 and 2012 before he resigned, contested, and won, in March 2013.
Kidero avers the EACC initially sought to investigate his accounts on February 22 2016 through one inspector Mulki Abdu Umar who presented an application before the Milimani law court chief magistrate.
Application had been declined
He says the EACC also asked the court for a search warrant allowing access into his houses ” for some information required for the purpose of an alleged investigation.”
“The said application was placed before Edda Agade,(who has since been transferred), and who declined to allow the application,” Kidero states in his pleadings.
He says that on February 24 2016 EACC was back in court through one of its officers Dennis Joseck Mare, but this time at the Makadara Chief magistrate’s court, in a new application to have access to his as well as Evans Kidero Foundation family Bank account
The governor’s wife , Susan, is embroiled in a similar tussle with a hearing slotted in early September 2017.
EACC wanted the couple investigated over allegations that they had stashed over Ksh1 billion in their bank accounts allegedly accrued from misappropriation of public funds, corrupt practices and economic crimes.
“In the said application, the respondent sought to inspect and lift copies of statements, account opening documents, original cheques, mandate cards,bankers books and other relevant materials in respect to the bank accounts,” Kidero says.
He says the application is premised on allegations that EACC is investigating alleged fraudulent transfer of public funds to his personal accounts and that he is involved in corrupt practices and economic crimes, of which he denies being aware of.
Kidero states he is not aware, has never been informed nor has he been given any notice of such allegations against him.
Violation of rights
He says a violation of his rights occurred when EACC agents did not disclose to the Makadara court that “it had made a similar application at the Milimani chief magistrate’s court but which had been declined.”
“By obtaining warrants to investigate the petitioner’s accounts, without any notice to and hearing of the petitioner or to Evans Kidero Foundation, the respondents patently breached the petitioner’s right to a fair hearing and access to justice,” court documents read.
However the DPP says that an application for warrants to investigate accounts under Section 23 of the Anti-corruption and Economics Crimes Act does not require a prior notice as alleged by Kidero.
He further argues that the application by Kidero should be dismissed saying that Kidero has failed to prove violation of his fundamental freedoms and rights and infringement of any law.
Kidero moved to the High Court under a certificate of urgency to challenge the Magistrate Court’s decision to grant the EACC access to his accounts through the issuance of warrants.
EACC sought access to his Standard Charted US dollar account, CBA Sterling Pound account and the Evans Kidero Foundation Family Bank account, saying the commission is investigating complaints that he had transferred public funds into his personal accounts.