BY SAM ALFAN.
Embattled Kisumu County Assembly speaker Onyango Oloo has suffered another major blow after the Anti-corruption Court dismissed an application seeking to stop his prosecution.
Oloo termed his prosecution unconstitutional, overbroad and unreasonable because a search and seizure conducted Ethics and Anti-Corruption Commission at his home and offices, were illegal.
Justice Mumbi Ngugi, however, ruled that it was difficult to make finding that his rights were violated given that the provisions require that the orders sought are applied ex-parte.
“My findings above is that I find no merit in the application before me. It is hereby dismissed,” the Judge ruled.
The judge observed that no evidence or submissions were placed before court and she was unable to make a finding his right to a hearing contained in Article 50, as alleged has been violated.
Judge Mumbi further observed that at the stage of investigation and issuance of search warrants under section 128 and 118A of the Criminal Procedure Code (CPC) and without demonstration by Oloo of the alleged violation of constitutional rights, it was difficult to make a finding on the alleged violation.
Oloo petitioned the High Court seeking to block the EACC together with the Director of Public Prosecutions, from prosecution him over graft allegations.
In the application, Oloo through senior counsel James Orengo sought the court to prohibit future searches and seizures by the EACC, without order granted by the High Court and without giving him a hearing.
“I urge the court to stop my prosecution based on the search and seizure orders made by a subordinate court or recommendations by EACC to DPP,” says Oloo.
Further, the speaker wanted the High Court to issue orders requiring the commission to return all documents including cheque books, log books, reports, title documents, equipment, firearms, ammunition and various articles seized from his residences in Syokimau, Machakos County and Mamboleo in Kisumu on June 4, 2019.
This is after EACC on May 29 this year obtained orders from Milimani Chief Magistrate Courts for search and seizure warrant against Onyango Oloo.
“My right of privacy was infringed by the commission when they searched my houses or property and going ahead to seize information relating to my family or private affair and the privacy of my communications or correspondence’, says the speaker.
EACC is said to be investigating Oloo over the loss of millions of shillings used for the construction of Kisumu Lake Basin Development Authority mall.
He says that he is not aware of the ongoing investigations being conducted against him and has not been afforded the right or opportunity to confront the allegations against him.
Oloo adds that the magistrate court irrationally and unreasonably gave an in permissibly overboard authorization of search and seizure with a single sweeping blanket warrant that enabled the commission to carry out simultaneous and multiple areas of search and seizure.
“The warrant did not properly limit and confine the scope of the search and in essence it did not set a boundary to what could be seized”, reads the court papers.
He claim lack of limiting language in the warrant created a room for abuse and over reach particularly when the offence or crime prompting the investigations and the need for search and seizure and focus of the search were not set out or disclosed.
He further says that the commission has disobeyed the orders of the subordinate court by not returning with promptitude the warrant together with an endorsement certifying what the commission has done under the warrant upon execution and giving a full account and inventory of what was seized to the court.
In a supporting affidavit, Oloo says that on June 4, 2019 EACC officers and police raided his Syokimau residence at 5am and carried out an extensive search in his house and compound and seized several document.
An inventory was prepared at about 11 am in the morning and was signed various persons including his son, cousin and EACC officers who seized the documents.
