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City tycoon loses appeal against EACC

The Ethics and Anti-Corruption Commission has been allowed to investigate business tycoon Deepak Kamani over his involvement in the multi-billion-shilling Anglo-Leasing scandal.

A three-judge bench of the Court of Appeal unanimously overturned a High Court ruling that barred the EACC from interfering with the passports of Mr Kamani and his brother Rashmi Kamani.

“Freedom of movement can be curtailed if the limitations are justifiable. The limitation can be temporary, lasting only the period of investigations, and we find that the commission was justified in curtailing their freedom,” ruled the judges.

The judges further ruled that the principal immigration officer had the powers to cancel the Kamani brothers’ passports after they failed to present themselves before the Anti-Corruption Commission for questioning.

The dispute leading to the appeal started in early 2006 when the commission started investigating allegations of corruption and economic crimes involving procurement of security projects between the government and some companies, including the Anglo-Leasing and Finance Company Ltd.

In the course of investigations, the commission became concerned that the two might flee the country and obtained orders from a magistrate’s court that they surrender their passports.

But by the time the order was issued, Mr Kamani had already flown to India while his brother was said to be in Dubai, but both men are now in Kenya.

Unable to serve them with the order, the commission, in cooperation with police, posted their pictures in the police website and circulated them in newspapers, requesting the public to provide any information that could lead to their arrest.

In March 2006, the principal immigration officer followed up on the matter and cancelled their Kenyan passports on grounds that their absence was a deliberate way of evading investigations into the multi-billion shilling Anglo-Leasing scandal.

Aggrieved

Aggrieved by the turn of events, the two brothers filed a petition at the High Court, and a three-judge bench of Justices Joseph Nyamu, Roselyn Wendo and Enyara Emukule declared the cancellation of their passports unconstitutional, and therefore null and void.

The judges also directed the police to remove their pictures depicting them as criminals from their website and stopped the commission from harassing, arresting or charging the two brothers with criminal cases.

The Anti-Corruption Commission then appealed the decision, arguing that the High Court made a mistake in failing to appreciate that they had a mandate to protect public interest by ensuring the suspects did not flee the country. 

Appellate Judges David Maraga, William Ouko and Jamilla Mohammed, however, set aside the High Court decision on Friday, despite a spirited defence from the brothers through lawyer Paul Nyamodi.

“The commission was conducting criminal investigations with a view of preferring criminal charges, and we find that they did not infringe on any of their rights,” ruled the judges.

Foot legal cost

“The investigations were based on reasonable suspicion that the two were involved in criminal acts, and if the investigations revealed that indeed they were involved then they would have bee charged in court appropriately,” ruled the judges.

The High Court decision, the Appellate Judges also ordered the two brothers to pay the legal cost spent by the commission in litigating the appeal.