The High Court has declined to block the Ethics and Anti-Corruption Commission (EACC) from investigating former National Treasury Cabinet Secretary Ukur Yatani over claims of embezzlement of Sh1.2 billion during his tenure as Marsabit governor.
Instead, Justice Nixon Sifuna allowed Mr Yatani and his spouse, Dr Gumato Yatani, to file a case challenging the process being undertaken by the anti-graft body.
The former CS informed the court that the EACC obtained search warrants from the Milimani Law Courts on April 22 and later raided his homes in Marsabit and Karen, as well as his offices.
Mr Yatani moved to court on April 30 and stated that the anti-graft body had claimed that it was investigating allegations of embezzlement of public funds, procurement irregularities and irregular awarding of tenders by the County Government of Marsabit leading to the loss of public funds amounting to Sh1.2 billion for the 2013/2014 financial year.
Mr Yatani said there was sufficient basis to believe that unless urgently checked, the EACC would use the warrant to perpetuate ulterior intentions to arrest and humiliate him and his spouse.
“For the foregoing reasons, the petitioners believe that the search warrants against the 1st petitioner were issued in bad faith, in abuse of court process and/or for ulterior purposes not rationally connected to legitimate investigations,” Mr Yatani said in the petition heard on April 30.
The former CS was arrested from his home on April 24 and questioned by the anti-graft agency before he was released and directed to return to the Integrity Centre on May 2.
The former North Horr Member of Parliament said that he was apprehensive that during the unsupervised raid at his home in Marsabit, the EACC officers may have planted fabricated evidence to frame him.
He submitted that he was subjected to unreasonable and unjustified harassment and humiliation resulting from injudicious and illegal search warrants.
His lawyer, Jackson Awele, said the search warrant was so widely and vaguely drafted in contravention of the rule of specificity regarding the offence which triggered the criminal investigation.
“The application for search warrants contains bare allegations without reasonable and or any evidence to substantiate the apprehensions expressed therein or to justify the orders sought thereby,” he said.
He accused the EACC of failing to furnish the court with sufficient and specific facts upon which the court could conclude that there is reasonable evidence of the commission of an offence.
“The petitioners’ apprehensions are compounded by the manner with which the search warrants were executed including the intentional harassment, search and confiscation of properties belonging to the 2nd petitioner (Dr Gumato) who was not a party to or subject of the impugned warrants,” Mr Yatani said in an affidavit.
Other than declaring his arrest and detention by the EACC for about five hours as unlawful and amounting to abuse of power and legal process, Mr Yatani also wants to quash the search warrants and for the court to order the return of all items including documents, cash, jewellery and electronic devices collected from his offices and residences.
“The 1st and 2nd respondents (EACC and the Inspector General of Police, respectively) be and are hereby ordered jointly or severally to pay the petitioners general damages for the violation of the petitioner’s rights and fundamental freedoms and for the 1st petitioner’s unlawful arrest, detention, intimidation, hindrance, cruel inhuman and degrading treatment and harassment,” he said in an affidavit.
