Court to determine whether EACC will address it in case filed against Thika magistrate Stella Atambo

The matter came up for directions before Milimani Anti-Corruption Chief Magistrate Harrison Barasa after the trial court recused itself from the hearing of the application and transfered the file to another court.

Atambo’s defence team comprising Danstan Omari, Samson Nyamberi, Matina Swiga, Cliff Ombeta, Shadrack Wambui and John Khaminwa asked the court to deny the EACC audience claiming that they sneaked before the court to prosecute their own matter which is against the law.

On his part, Omari told the court that EACC is an investigating body similar to other bodies and their mandate is to investigate a matter and propose to the Office of the Director of Public Prosecutions to open a criminal charges against a respective party.

In this case, Omari told the magistrate that the EACC poses as the Director of Public Prosecutions who is mandated to prosecute a criminal matter and, at the same time, they are still investigators,

“Your honour we want to know in this case who is the state because the EACC is fraudulently pretending to have the powers of the ODPP mandated by the constitution,” Omari told the court.

He quoted Article 157 of the Constitution which delegates the powers to charge only by the DPP unless the same is delegated via a Gazette Notice.

“The counsels for the EACC must produce a gazette notice that they are delegated by the office of the Director of Public Prosecutions to prosecute this matter.”

He urged the court to deny them audience to address the court.

While praying the same, Nyamberi submitted that the EACC is mandated to investigate a criminal matter and its lawyers were appearing before the court not to guide the commission but to help it in investigations.

“Your honour, the lawyers are now relinquished their right to address the court since the commission is an agency investigating the matter and it is moved by the DPP a party which is excluded in this case,” Nyamberi submitted.

He urged the court not to let them submit anything before him unless they produce a gazette notice delegating them the role of the DPP.

He condemned the action by the EACC in their application dated March 12, 2025, claiming it is not known by law where they fraudulently failed to disclose to the court who the respondent was until they were forced to do so.

Ombeta urged the court to consider by asking itself a question whether the commission has changed from investigators to prosecutors.

“Your honour, I humbly pray to this court to ask itself a question whether the commission whose mandate is to investigate has changed to prosecutors…the answer automatically will be no as per the law,” Ombeta told the magistrate.

Wambui Jointly with the team representing the Kenya Judges and Magistrates Association (KJMA) concurred and asked the court to disallow the participation of the EACC in the case unless addressing the court through the ODPP.

The court was also made aware of the ruling by the High Court which gave interim orders on the same matter where Justice Chacha Mwita early today gave conservatory orders restraining the EACC, its agents or any other person acting on their behalf from arresting, detaining, charging or arraigning Atambo based on materials collected from her house during a raid and the allegations based on the same.

The court heard that the judge scheduled the mention of the matter on June 10, 2025.

Barasa directed the parties to appear before him tomorrow at 9 am when he will deliver a ruling on whether the EACC will be allowed to address the court or not.