A judge has directed the anti-graft body to complete investigations against two Chinese nationals facing fraud charges over the Sh4.1 billion Lake Basin Mall in Kisumu and release documents seized from their premises in 2019.
High Court judge Nixon Sifuna said the Ethics and Anti-Corruption Commission (EACC) should complete the investigations within 100 days and provide an inventory of all documents seized from the premises within 30 days of the ruling. The judge added that the documents should be released within 100 days if they are not to be used in any trial against the two.
Justice Sifuna said it amounts to impunity, unreasonable, and unconstitutional for an investigative agency to seize documents for investigations, and years later still be holding them, claiming that investigations are still ongoing.
“It is high impunity for an investigative agency such as EACC to carry a raid or swoop on a person or entity’s premises or close, seize and cart away that person’s or entity’s properties or documents for years and years on continue holding the seized items claiming to be continuing with investigations years on end,” said the judge.
According to the judge, where the law has not prescribed the duration within which something should be done, it is a cardinal principle of the law for it to be done within a reasonable time.
The duo were charged together with former Lake Basin Development Authority chairman Onyango Oloo, former managing director Peter Abok, and board members. They all denied charges of conspiracy to defraud.
The prosecution says the construction of Sh4.1 billion Lake Mall was inflated but the Chinese contractors maintain their innocence.
Their firm, Erdemann Properties Ltd, was contracted by the LBDA in April 2013 to build a mixed retail mall, which also included a three-star hotel and showroom for commercial use.
The EACC said the contract was marred with irregularities including an inadequate feasibility study report, approvals were not obtained and the project lacked a strategic plan of the authority.
He directed the case to be mentioned on April 3, 2024, to confirm compliance.
The two directors of Erdemann moved to court to compel the EACC to release all the documents seized from their premises at Runda Mimosa Groove, which are not subject to criminal proceedings.
The two Chinese were charged before the Milimani anti-corruption court on November 10, 2021, with conspiracy to commit an offence of corruption, unlawful charging of public property, and fraudulent acquisition of public funds.
They said the EACC officers seized at least 87 documents from the premises and four years later, the documents are yet to be returned even though they are not exhibits in the trial.
The EACC opposed the application stating that the documents were seized pursuant to a warrant of search obtained on June 4, 2019. The anti-graft body said it was holding them lawfully, pending the conclusion of investigations.
However, the Chinese submitted that investigations cannot last forever.
The judge said despite enjoying the privilege of executive power and having a wide mandate on the investigation of corruption and economic crimes, the constitution or the EACC Act did not intend to make the EACC an unruly horse or rabid dog on the loose.
“Its actions and motions are subject to the said constitutional imperatives, legislative prescriptions, common law principles, doctrines of equity, and the principles of natural justice, fair play as well as reason and good sense,” the judge said.
