Mulama v Ethics and Anti-Corruption Commission [2022] KEHC 11721 (KLR)

Mulama v Ethics and Anti-Corruption Commission (Constitutional Petition 14 of 2019) [2022] KEHC 11721 (KLR) (10 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11721 (KLR)

Republic of Kenya

In the High Court at Kakamega

Constitutional Petition 14 of 2019

WM Musyoka, J

June 10, 2022

Between

Simon Ongonga Mulama

Petitioner

and

Ethics and Anti-Corruption Commission

Defendant

Ruling

1. The application for determination is dated September 22, 2021. It seeks six principal prayers: stay of execution of the warrants of attachment and sale issued on September 13, 2021pending hearing and determination of the application; the warrants of attachment and sale dated September 13, 2021be set aside and the proclamation notice dated September 15, 2021issued against the respondent be lifted; that a permeant injunction issues to restrain the petitioner from proclaiming or attaching or selling any of the assets of the respondent on the basis of the warrants dated September 13, 2021and the proclamation dated September 15, 2021; the warrants of attachment and sale dated September 13, 2021against the respondent are in contravention of section 61A of the Anti-Corruption and Economic Crimes Act, No. 3 of 2003, Laws of Kenya, and Order 29 Rules 2 and 4(1) of the Civil Procedure Rules; the petitioner meets the auctioneers costs or any consequential costs for the unlawful proclamation or attachment of the respondent’s assets and goods and costs of the application be provided for.

2. The application was placed before me on 22nd September 2021, and I directed that it be served, and there be temporary stay orders to last till the date given for inter partes hearing. When the matter came up for inter partes hearing, on 6th October 2021, the parties consented on grant of the prayers relating to stay of execution and lifting of the attachment. It was agreed that the rest of the prayers be canvassed by way of written submissions. The parties have complied, by filing written submissions, which I have read through, and whose contents I have noted.

3. The matter before me is fairly straightforward. The respondent is a government or State agency or entity, to which the Government Proceedings Act, cap 40, Laws of Kenya, applies. It is trite that a decree or order against such an agency or entity cannot be executed by way of attachment and sale, for that is prohibited by section 21(4) of the Government Proceedings Act and Order 29 Rules 2 and 4 of the Civil Procedure Rules. These provisions are mirrored in section 61A of the Anti-Corruption and Economic Crimes Act, 2003, principally as the respondent is not strictly an agency under the Executive, but an independent Constitutional Commission. Even then, it is still a State agency, and a government organ to which the Government Proceedings Act applies. See Kisya Investments Ltd v Attorney General & another[2005] 1 KLR (visram. Ibrahim JJ) and Pravin Bowry v EACC [2015] eKLR (Lenaola J).

4. In the circumstances, I do hereby allow the application, dated September 22, 2021, in its entirety.

DELIVERED DATED AND SIGNED IN OPEN COURT AT KAKAKMEGATHIS 10THDAY OF JUNE 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Munyendo, instructed by Oscar Wachilonga & Associates, Advocates for the petitioner.Ms. EW Githinji, Advocate for the respondent.