Senior Counsel Professor Tom Ojienda speaking to journalist after high court has quashed search warrants allowing Ethics and Anti-Corruption Commission (EACC) officers to investigate his held at Standard Chartered Bank in Nakuru branch on Friday February 5, 2016.
BY SAM ALFAN.
High court has quashed search warrants allowing Ethics and Anti-Corruption Commission (EACC) officers to investigate Senior Counsel Professor Tom Ojienda’s accounts over alleged payment collusion with Nairobi Governor Evans Kidero to defraud Mumias Sugar Company of Sh280 million.
Justice Isaac Lenaola however advised Professor to sit with EACC to clear his name.
“You are a senior Counsel, a member of Judicial Service Commission and a professor, sit with EACC and give them what they want to clear your name. Investigations are not good for your standing,” said Justice Lenaola.
Senior counsel had moved to court seeking to stop EACC officers from investigating his bank account held at Standard Chartered Bank in Nakuru branch, arguing that it was obtained irregularly from the Kibera Law Courts.
EACC were investigating Prof Tom Ojienda’s bank account over allegations that he received Sh280 million from Mumias Sugar Company (MSC).
The order was issued by Justice Isaac Lenaola after Ojienda complained that the decision to probe his account at Standard Chartered Bank was granted unlawfully.
Lawyer Prof Tom Ojienda has sued Ethics and Anti-corruption Commission, Micheal Kasilon, Euastace Waweru, Julius Muraya, Chief Magistrate Kibera Law Courts and Director of Public Prosecution.
The lawyer wants to stop the commission from investigating his accounts, saying the warrants allowing the investigators to access them were obtained irregularly through collusion with the Kibera Chief Magistrate.
In his court document, Ojienda says on March 18 this year the 1-4 respondents in collusion with the chief magistrate Kibera surreptitiously and without any notice to Ojienda obtained a warrant from the Director of Public Prosecution to investigate a bank account number that he holds in Standard Chartered Bank Nakuru branch over alleged legal fees that Mumias Sugar Company limited paid him for services that the he did not render.
“As a matter of fact, it is Mumias Sugar that owes me Sh100 million for legal services I have rendered since 2011. The company has never complained to anybody who shows that by purporting to investigate my bank details, EACC is acting maliciously and abusing public power entrusted to them,” argues Prof Ojienda.
Mr Ojienda in his document filed in court on Wednesday says Micheal swore that ever since the company procured his services in 2011, he has executed all transactions with due diligence and wondered why EACC singled out his law firm for investigations when Mumias Sugar has contracted 12 other law firms for legal services.
As is evident of his malicious intent against Ojienda, Micheal failed to particularize any payment that Mumias Sugar Company limited made to the petitioner for legal services or at all with a view to enabling the 1-4 respondents obtain authority to snoop into all transactions that have occurred in Ojienda’s bank accounts number maintained at Standard Chartered.
Prof Ojienda wants the court to declare that the warrants to investigate his accounts are null and void, and order Director of Public Prosecutions Keriako Tobiko to investigate the conduct of EACC officials.
Prof Ojienda says at no point did Mumias Sugar or anybody complain to the 1-4 rep that the company paid him any legal fees but the petitioner failed to render to the company legal services thus by the respondents purporting to investigate the petitioners bank details when there is no complaints by the 1-4 rep are clearly acting maliciously and abusing public power entrusted to them.
He further says since Mumias sugar procured the services of the petitioner into it panel of advocates as from 2011 to date, the petitioner has always executed all transactions he receives from the company meticulously, diligently and with distinction, indeed Mumias Sugar is aware that as at the date, the company owes the Ojienda over Shs 100 million in legal fees arrears which the petitioner is by law entitled to tax against the company at any time of his choice.
He said without any notice to him, obtaining warrants from the chief magistrate to investigate the his bank account number 0150154443401 maintained at Standard Chartered bank Nakuru Branch, the 1-4 respondents breached the petitioners rights.
He argues 1-4 respondents breached the provision of the anti-corruption economic crimes act which enjoin the respondents to issue a notice to the petitioner of their application to the magistrate for an order to access Ojienda’s bank records and afford him to be heard on the application before the Chief Magistrate Could legitimately issue an order to the 1-4 respondents to access the petitioners bank details.
“Whereas the 1-4 respondents sought from Mumias Sugar Company and was issued with a list of all twelve law firms that are currently in the company panel of advocates the respond singled out only the petitioner for the purported investigations in patent breach of the provisions of the constitution which entitle him to right to equal protection and benefit of the law and oblige the respondents not to discriminate against the petitioners “said Prof Ojienda.
He further added that, the 1-4 respondents in obtaining warrants from the chief magistrate to investigate the petitioner’s bank account maintained at Standard Chartered Bank, the respondents patently breached his rights under Articles 40(1) of the constitution that militates against arbitrary deprivation or limitation of enjoyment of the petitioner’s property.
He says anytime from now the 1-6 respondents will proceed to investigate or further investigate the said account number held in his name which will irredeemably trample upon the rights and fundamental freedoms of the applicant.
The warrants to investigate account patently violate the petitioner’s rights under the constitution….
Ojienda sought a declaration that the warrants to investigating account given to Micheal Kasilon and Eustace Wawrru on the 18 March this year in Kibera Chief Magistrate criminal case no 168/2015 )EACC vs Standard Chartered Bank) breached the his rights and fundamental freedoms under the provisions of the constitution hence void for all intents and purpose.
He further sought an order to quash warrants to investigating account given to Michael on March 18 2015 in Kibera Court. And an order directed to the EACC, Michael and Eustace, Julius from investigating or further investigating statements, cheques, telegraphic money transfers, client transactions or any other information in respect of the said account held in the name of Ojienda or any other acco8unt held by the petitioner.
And an order compelling the DPP to direct the IG of the National Police under article 157(4) of the constitution to investigate Micheal Kasilon for possible commission of the offence of perjury in respect of the supporting affidavit sworn by Micheal on March 9 2015 in Kibera courts and prosecution of Micheal if the investigation reveal he is culpable for the offence.
