Reprieve for ex-Nairobi finance chief Jimmy Kiamba in battle to save unexplained assets
Former chief finance officer at City Hall Jimmy Kiamba.
Former Nairobi County chief finance officer Jimmy Kiamba has got a reprieve in his battle to save some of the unexplained assets he was ordered to forfeit to the state.
On Thursday, the High Court declined a request to strike out his petition seeking to have his matrimonial home excluded from the list of properties to be forfeited to the State as ordered by the appellate court.
Justice Olga Sewe dismissed objections by the Attorney General (AG) and the Ethics and Anti-Corruption Commission (EACC), an interested party in the petition, who sought to have the case struck out.
She ruled that the court had jurisdiction to hear and determine issues raised in the petition and an application for conservatory orders provided they allege violations of the constitution.
The AG had argued that the issues raised in the petition filed by Mr Kiamba and his spouse Tracy Musau were determined by the High Court and also the Court of Appeal, thus were res judiciata (already determined by the court).
EACC told the court that the petition and application by Mr Kiamba and his spouse were incompetent and an abuse of the court process as they were asking the court to vary or suspend a judgment of the Court of Appeal.
It also argued that the petitioners have introduced a new party, the AG, in a mischievous attempt to evade the doctrine of res judicata where the issues have been subject of adjudication and determination by courts of competent jurisdiction.
Justice Sewe ruled that it is not in every case that the issue of res judicata can be appropriately taken up by way of a preliminary objection.
Liquidate property
“In this case, for instance, for the court to make a determination either way, it would have to embark on an examination of the factual basis of previous suits including an examination of the pleadings, proceedings and judgement in those cases,” ruled Justice Sewe.
The judge further directed that the petition be transferred to the Anti-Corruption and Economic Crimes Division, Milimani High Court, Nairobi for hearing and determination.
Justice Sewe ruled that it was not apparent from the pleadings why the petition was not filed in Nairobi County.
In their petition, Mr Kiamba and his spouse are also seeking to have an order issued that they be at liberty to liquidate their property to settle the claim with the EACC.
The petitioners are challenging the constitutionality of some Sections of the Anti-Corruption and Economic Crimes Act (Aceca).
They claim that some sections of Aceca are in direct conflict and in contravention of the constitution, specifically the Bill of Rights as they prescribe a procedure in which an individual is adjudged and instantly presumed guilty until proven otherwise in the ‘eyes’ of the law.
According to the petitioners, the procedure laid down presupposes a ‘mini-trial’ conducted by the EACC which after investigations, it is incumbent upon it (EACC) to invite rebuttal evidence before it can recommend either prosecution or acquittal of anticipated charges against the suspect.
“It is imperative that the court invokes its interrogative constitutional mandate to interpret the constitution as invited by the petitioners relating to conflict of laws in order to safeguard the dictates and gains in criminal and quasi-criminal proceedings for furtherance and protection of the rule of law,” the petition states in part.
The petitioners are seeking a declaration that Sections 55 (1),55 (2) (b),55 (6),55 (9),56 (1) &56 (2) of Aceca are inconsistent and contravene Articles 50 (2) (a),50 (2) (K),50 (2) (n),159 (2) (e) and 160 (1) of the constitution are unconstitutional null and void.
Upon declaration of the unconstitutionality of the Sections, the petitioners want a declaration that the orders of the High Court and the Court of Appeal, in the cases where Mr Kiamba and three others were involved, in so far as they are pegged on the sections be declared to have no force in law.
Matrimonial home
Alternatively, the petitioners want their matrimonial home situated in Runda Water Estate, Nairobi be excluded from forfeiture by the state as ordered by the Court of Appeal.
Mr Kiamba says that during the pendency of his employment, he managed to build his income through saving and building rapport with different financial institutions where through savings and loans he was able to start wheat and livestock farming and later build hotels in Mombasa and Machakos.
According to the petitioners, Ms Musau, a career interior designer built her business from scratch through the establishment of an interior design company which later ‘gave birth’ to a beauty parlour, enabling her to acquire a property which was leased out to supplement her income from her core business.
They argue that they tendered evidence that their young family was at least entitled to the protection of the constitution regarding rights attributable to a family, children and their presumptive right to own property meaning that the attachment and forfeiture of their matrimonial home would render them homeless and deprive their children of the rights.
“Part of the so-called unexplained assets including the matrimonial home were aptly explained to the extent they were acquired through pooling of resources of the petitioners and loans advanced by financial institutions,” part of the petition states.
