The Court of Appeal has thrown out former Nairobi Governor Evans Kidero’s petition seeking to stop Ethics and Anti-Corruption Commission (EACC) from filing a suit to recover Sh58m alleged to be corruptly acquired.

A three-judge bench comprising of Justices Hannah Okwengu, Fred Ochieng and John Mativo dismissed the petition.

“In a nutshell, we find and hold that the applicant has failed to surmount the arguability test. Having so found, we find no reason to address the nugatory aspect. However, it will suffice to mention that we find nothing to suggest that if the civil suit is determined, the petition or the criminal trial will be rendered nugatory,” the judges said.

In September 2019, Evans Kidero filed a petition at the Constitutional and Human Rights Division of the High Court, challenging the constitutional validity of his said arrest, detention, prosecution and the warrants authorizing investigations into his bank accounts. He sought a raft of reliefs among them, that the criminal proceedings be quashed.

This had been preceded by the events of April 2019, where Kidero jointly with others, they were charged with conspiracy to commit an offence of corruption EACC argued that they conspired to defraud the Nairobi City County Sh58 million.

During the pendency of the both the petition and the criminal proceedings, EACC sued Kidero and others, seeking orders to recover the sum of Sh58 million.

Aggrieved by the existence of three concurrent cases, Evans Kidero applied to strike out the civil suit by EACC on grounds that it was an abuse of court process. Kidero argued that the said suit arose from the lower courts, and that if the civil suit is allowed to proceed concurrently with others, there was a real likelihood of the three courts entering different decisions over the same subject matter regarding his culpability.

Senior Counsel Tom Ojienda who represented Kidero in the petition argued that the applicant has an arguable appeal that has high probability of success as outlined in the grounds in the draft memorandum of appeal.

EACC on the other hand argued that the applicant (Kidero) lacks an arguable appeal, that the appeal challenges the mandate of the EACC to institute recovery proceedings under section 11(1) (j) of the Ethics and Anti-Corruption Commission Act during the pendency of a criminal trial.

According to the three-judge bench, the Petition challenges the warrants permitting investigations into the petitioner’s bank accounts, his arrest and prosecution in the criminal case.

“He sought to halt the criminal proceeding citing constitutional invalidity of the warrants, arrest, prosecution and the charges. The civil suit seeks to recover the money claimed. The civil suit was instituted by the 1st respondent pursuant to section 11(1) (j) of the Ethics and Anti-Corruption Commission Act which permits the Commission to institute and conduct proceedings in court for purposes of the recovery or protection of public property, or for the freeze or confiscation of proceeds of corruption or related to corruption, or the payment of compensation, or other punitive and disciplinary measures including proceedings for the recovery of property or proceeds of corruption located outside Kenya,” the judges said.

The judges in their ruling further opined that it remains necessary for the applicant to demonstrate that the precise steps which he is required to take in the civil action will have the effect of undermining the protections to which he is entitled to as an accused person in the criminal trial or in the Petition.

“For example, there is no suggestion that the applicant’s rights to a fair trial either in the criminal trial or the civil suit will be compromised. To us this would have been a formidable arguable ground. There is no suggestion that requiring him to plead a defence in the civil action would have the effect of undermining his privilege against self-incrimination or prejudice his presumption of innocence in the criminal trial or his prosecution of the petition.

Again, this could have been an arguable ground, though not conclusive because when filing his defence in the civil action, a defendant is free to plead whatever facts he deems fit and considers relevant, for example, by denying the plaintiff’s allegations and putting forward a different version of events (the intended effect of which would be exculpatory rather than incriminating),” the judges said.

The petition was dismissed unanimously by the bench.

“The upshot is that we find and hold that the applicant has not satisfied the twin principles for consideration in an application under Rule 5(2) (b) nor is it in public interest to stay the proceedings. Accordingly, we dismiss the application dated 20th December, 2021 with costs to the 1st respondent,” the judges said.

By this ruling of the Court of Appeal, Evans Kidero hasn't been found guilty yet since the other cases haven’t kicked off yet. EACC will still have to file a suit seeking to recover the funds.

The Commission took to Twitter following the ruling.

“The ruling creates a good precedent given the many petitions and Judicial Review Applications that EACC faces in the event of concurrent civil and criminal cases against the same parties. The decision will, in effect, reduce the time taken in the disposal of anti-graft cases.” EACC said.