Africa-Press – Kenya. The High Court has dismissed a petition by a former Kemsa official who sought to block EACC from using secretly recorded audios and videos in any case that may be lodged against him.
Evans Cheruiyot who is a former legal officer at the Kenya Medical Supplies Authority wanted the court to stop EACC from investigating, arresting or charging him using the recordings on grounds that the evidence is unacceptable for violating his right to privacy.
Justice Esther Maina last week dismissed the petition saying Cheruiyot was yet to be charged with any offence and thus an attempt to stop the investigations at this stage will be an interference with the Ethics and Anti-Corruption Commission in the exercise of its mandate.
“The petitioner shall have the opportunity to object to the admissibility of the audio and video recordings or any other evidence at the trial, should he be eventually charged with an offence,” Justice Maina said.
Investigations against Cheruiyot are still pending. Maina said she found it premature to determine the issue in the circumstances of the case where Cheruiyot has neither been arrested nor charged.
She said the allegations of breach of constitutional rights by the petitioner were not proved on a balance of probabilities. “The petition cannot succeed. It is dismissed in its entirety,” the judge said.
On July 19, 2021, EACC received a report alleging that Cheruiyot had demanded a Sh1.5 million bribe to facilitate payment of legal fees. EACC conducted a covert operation to establish the elements of bribery on August 12, 2021, at Ole Sereni Hotel in Nairobi by securing an audio-visual recording.
Cheruiyot then moved to court on September 26, 2022, seeking that the High Court declare the audio and video recordings obtained during the covert operation by EACC as illegal.
He argued that EACC required judicial authorisation before carrying out covert operations and that failure to do so amounted to an infringement of his right to privacy and a violation of the Data Protection Act.
Judge Maina said no law creates a mandatory obligation on EACC to issue a notice before investigations in respect of corruption, bribery or any other economic crime.
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