Ex-City Hall finance chief faces setback in bid to save Runda home
Former chief finance officer at City Hall Jimmy Kiamba.
Former Nairobi County Chief Finance Officer Jimmy Kiamba has temporarily lost his bid to save his Runda home from being forfeited to the State as ordered by the Court of Appeal.
This is after the High Court declined to issue conservatory orders suspending the execution or implementation of all directives made under some sections of the Anti-Corruption & Economic Act.
Justice Olga Sewe directed that preliminary objections filed by the Attorney General (AG) and the Ethics and Anti-Corruption Commission (EACC) challenging the jurisdiction of the court to hear the petition by Mr Kiamba be heard first.
“The prayer for conservatory orders in terms of prayer two in the notice of motion is declined pending hearing and determination of the preliminary objections,” ruled Justice Sewe.
Mr Kiamba and his spouse Tracy Musau had moved to court challenging the constitutionality of some Sections of the Anti-Corruption and Economic Crimes Act (Aceca).
The petitioners are also seeking to have their matrimonial home excluded from the list of properties to be forfeited to the state as ordered by the Court of Appeal.
They are also seeking to have an order issued that they be at liberty to liquidate their property to settle the claim with the EACC.
On Thursday, through lawyer Leonard Shimaka, Mr Kiamba and Ms Musau told the court that it was in the interest of justice that they be granted the conservatory orders as they argue the case.
However, the AG and EACC through lawyers Janet Lang’at and Faith Ng’ethe opposed the issuance of the conservatory orders arguing that one of the issues they had raised in their preliminary objections, touched on the jurisdiction of the court.
In their petition, Mr Kiamba and Ms Musau claim that some sections of the Aceca are in direct conflict and 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.
The petitioners state that the procedure laid down presupposes a ‘mini-trial’ conducted by the EACC which after investigations is incumbent upon the anti-graft agency to invite rebuttal evidence before it can recommend either prosecution or acquittal of anticipated charges against the suspect.
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.
Alternatively, the petitioners want their matrimonial home situated in Runda Water Estate, Nairobi to 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 savings and by building rapport with different financial institutions and 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.
They say that sometime in 2014, unknown to them, EACC commenced investigations on them and their dealings including but not limited to registered companies they had an interest in and it formed an opinion that they had unexplained assets.
The petitioners also say that EACC filed a case at the High Court for forfeiture of the unexplained assets and at the end of the case the court believed that the assets were unexplained and were to be forfeited to the state.
They argue that they tendered evidence that their young family was at least entitled to protection by 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 their rights.
The case will be mentioned on June 19, 2024 for further directions.
