Fresh twist as court accuses EACC of failing to disclose it was targeting Thika magistrate in raid

Milimani Principal Magistrate Charles Ondieki has reversed orders granted to the Ethics and Anti-Corruption Commission (EACC) to search the home of Thika Chief Magistrate Stella Atambo as part of investigations into alleged corruption for failing to fully disclose who the target was.

Ondieki, while granting orders sought by Atambo restraining EACC from acting on materials collected during a raid at her home, said had the anti-graft agency made full disclosure,  he would have recused himself since she is a close friend of the colleague and her husband Evans Achoki.

Ondieki said that until this morning, the true identity of the subject of the search order was not available to the court until it was confirmed by Atambo’s lawyers Danstan Omari, Mwenda Njagi and Shadrack Wambui, when they moved to court to bloc EACC from continuing with probe and recommending her prosecution.

“Today, having confirmed the true identity of the respondent in the original application ( Atambo), and for reasons to be apparent here in after, I find it instructive to state that I will not hear and determine the main prayer of this application and all other applications connected to this matter,” said Ondieki.

“Picture this, the applicant in the second application (M Atambo) plus her husband, have been and remain not only close personal friends spanning a period of approximately 17 years – dating back to 2008 – but also family friends with close ties with my nuclear family.”

He said the context presented in the original application, where the full identity of the subject of the search was undisclosed – to the fullest extent, best exemplifies both the enduring wisdom and the indispensable significance of the requirements of full and frank disclosure of material facts and in this case, the true identity of the subject of the search order.

Had the EACC made full and frank disclosure of the true identity of the subject of the search order, then pursuant to regulations of the Judicial Service (Code of Conduct and Ethics) of 2020, Ondieki said he would not have determined the application in the first place.

Instead, the magistrate said he would have recused himself and directed that the file be placed before the head of station for possible reallocation.

“Although it is a practice I found entrenched in this court apparently founded on the morbid fear of sabotage, henceforth, this court will not entertain similar applications if the full identity of the subject of the search order is not disclosed. The morbid fear for sabotage should not override the rule of law and more particularly, the obligation fastened upon the applicant (EACC) to make a full and frank disclosure of material facts,” stated Ondieki.

Ondieki faulted the EACC for withholding the details of the subject of the investigations, adding that although the nondisclosure of the details of the subject may be used as an internal administrative measure to avert sabotage, it should not be extended to the court in exercise of its judicial authority.

He said judicial authority should benefit from the full and frank disclosure of material facts in order to render decisions from a fully informed standpoint.

“Full disclosure of material facts, goes beyond disclosure of the full identity of the subject of search, but also covers other contours which may materially determine the trajectory an application ought to take when placed before any judicial officer. For example, invoking the doctrine of absurdities,” stated Ondieki.

“What if there is no full disclosure of material facts and ultimately turns out that the subject of the search order enjoys certain legal immunities (which are inviolable) and the court, oblivious of this fact, is persuaded to grant the search order? It emerges from this analogy that the (EACC) must craft a better way of confronting the morbid fear of sabotage,” he added.

EACC had earlier announced that it had sought the search warrants following numerous complaints that Atambo has been soliciting bribes from persons facing criminal charges at the Thika court.

“The Commission, upon obtaining search warrants, conducted searches at the residences of the Chief Magistrate and the Clerk to obtain relevant documents and information to support the investigations. A total of Kes2,070,000 in cash, suspected to be proceeds of corruption, was recovered inside a laptop bag at the residence of Hon. Atambo among various documents relevant to the investigations,” it said.

The magistrate and the clerk were then brought to Integrity Centre to for grilling and recording statements.

However, Atambo has demanded that EACC returns the money, saying it belongs to her husband.