In a significant ruling from Nairobi’s High Court, the Ethics and Anti-Corruption Commission (EACC) has been granted the authority to covertly investigate allegations of corruption without a legal mandate to inform the individuals involved.
Justice Esther Maina of the High Court’s Anti-Corruption Division made the decisive ruling in response to a lawsuit initiated by Evans Cheruiyot, a recently suspended legal officer with the Kenya Medical Suppliers Authority (Kemsa). Cheruiyot was contesting the use of clandestinely gathered evidence by the EACC, secured through his former law school colleague who accused Cheruiyot of demanding a Sh1 million bribe related to a legal services tender.
Maina stated that no national legislation obligates the EACC to announce an impending corruption investigation to the suspected party. “The power to issue search warrants under Section 118 of the Criminal Procedure Code does not create an obligatory duty for the EACC or any law enforcement agency to notify the subject before launching an investigation,” Maina declared in her ruling.
The heart of Cheruiyot’s complaint was his former Moi University School of Law classmate, Titus Barasa Makhanu’s decision to secretly record their discussions concerning the tender, before turning these recordings over to the EACC for investigation into possible bribery.
Cheruiyot maintained, “He conspired against me by recording our exchanges without my consent, then brought it to the EACC to examine and prosecute me for alleged bribery. The Commission should not base their investigation on a recording made without my approval.”
The suspended Kemsa legal officer pleaded for the court to prevent the EACC from examining, detaining, or prosecuting him based on the clandestine recordings. He argued, citing their admissibility due to the violation of his right to privacy.
Despite his plea, Justice Maina rejected Cheruiyot’s application, deeming it premature, as he has neither been arrested nor charged with bribery solicitation. “I find that the applicant has not substantiated the claim that the controversial audio and video records of his conversations with Barasa from June to September 2021 infringed upon his privacy rights,” Maina ruled.
The justice concurred with the EACC’s contention that the recordings did not constitute entrapment, as the commission had only played a passive role in their procurement, and no evidence indicated Cheruiyot was pressured, coerced, or swayed during the conversation.
After graduating from Moi University School of Law, Cheruiyot was hired by Kemsa, while Barasa entered private practice. Cheruiyot stated that between June and September 2021, Barasa persistently queried him about Kemsa’s intention to secure legal services for impending litigation. Unbeknownst to him, Barasa was secretly recording their conversation.
Cheruiyot recounted, “Three days after our meeting, he informed me that he had captured our conversation in both audio and video formats, where he alleged that I was soliciting a bribe for approving his legal fees. This was a calculated attempt to coerce and manipulate me into endorsing his tender for legal services.”
On October 8, 2021, following these events, Cheruiyot was suspended by the Kemsa board after receiving allegations of bribery solicitation from Barasa. Subsequently, he was summoned to provide evidence at the EACC. Cheruiyot lamented that he only discovered the existence of the covertly captured videos upon reporting to the EACC as directed, where he was confronted with the footage and asked to justify his alleged bribe solicitation.