No evidence, no arrest - Kenya high court

23 October 2020 · Carmel Rickard

A prominent Kenyan legal academic and practising advocate, Professor Tom Odhiambo Ojienda, is in the midst of a running battle between himself and the country’s tax bosses and prosecution services. The authorities claim that he has not paid tax on payment for work in a series of cases. The claims are particularly damaging for Ojienda, given that his law company advertises itself as ‘a top-tier law firm comprising a dedicated team of advocates and support staff offering expert legal advice’. After he was arrested and detained by the prosecuting authorities, Ojienda asked the courts to intervene, and they have now done so, with the judge holding that Ojienda should not have been arrested as there had been no evidence to justify such a step. The judge said that the power to prosecute was like a ‘river’. It had to ‘flow within its course,’ he said. Anytime it left its path ‘it causes floods and untold human suffering’. The power of the prosecution services had to be confined ‘within the four corners of the constitution’, otherwise innocent citizens would suffer if the courts did not check the abuse of that power.

Read judgment

One of Kenya’s best-known lawyers, Professor Tom Odhiambo Ojienda, has won a significant battle in the continuing war between himself and the prosecution services.

The prosecuting authorities and the country’s tax bosses seem to be after Ojienda, and are conducting a number of investigations into his affairs. He, in turn, has been fiercely warding off allegations of improper behaviour and he has also turned to the courts on a number of occasions to test whether action taken against him is constitutionally permitted.

Most recently, Ojienda had asked the courts to declare that investigations into the ‘advocate/client relationship’ between himself and a client, Mumias Sugar Company, carried out by the director of criminal investigations, were an abuse of administrative power and of the court process, and were thus unlawful.

It was not just a question of confiscating and scanning documents. During the course of this investigation, Ojienda himself was ‘seized and detained’ – actions that he claimed violated his constitutional rights.

Reputation

A law professor and prominent legal practitioner, Ojienda is also a member of the Judicial Service Commission, the body that interviews and helps nominate candidates for judicial appointment. Hardly surprising, then, that he is fighting so hard over his reputation. It’s also no surprise that he knows the law very well, and has been able to devise legal arguments to challenge the action being taken against him.

The Kenya Revenue Authority claims he did not pay tax on the legal fees he earned from Mumias Sugar Company and the Nairobi County Government. And in addition to litigation on that issue, he has been targeted for prosecution in connection with the ‘advocate/client relationship’ between himself and Mumias Sugar.

Ojieda was arrested in December 2018 and held for questioning. He made a full list of all the rights that he believed had been violated by these actions, and asked for compensation as well as a court order preventing the tax and prosecuting authorities from any further criminal investigations against him.

Twitter

One of the more noteworthy claims by Ojienda – and one that smacks of behaviour by US President, Donald Trump – is that he was not told of the charges against him at the time of his arrest, but only came to learn of them via a later Twitter post by the Director of Prosecutions.

In response, the director says that the advocate-client privilege, invoked by Ojienda, ‘does not extend to cover criminal conduct’.

Judge Weldon Korir, who had to decide the latest round in the ongoing fight, said that the prosecuting authorities had not infringed the principles of double jeopardy in carrying out another round of investigations into the Mumias Sugar (MSC) issue.

Complaint

However, the court had to establish whether the new investigations were conducted lawfully. Had the authorities acted on a complaint? They said they acted on a report by KPMG. But the judge said he had read the report and found ‘that the investigation into the financial losses of MSC does not point to (Ojienda) in any way.’

This meant the allegation by the prosecuting authorities that their renewed investigation was triggered by that report was incorrect. Further, there was no other evidence put up to show that they had ‘acted upon sufficient information in seizing (Ojienda).’

The authorities could bring a criminal prosecution in relation to actions by an advocate carried out in a professional capacity – but the question was whether there had been a complaint against Ojienda by his client, MSC? If MSC had a complaint, then, as the victim of the alleged crime, MSC had to appear before court or make a statement to support the charge it had made.

But this had not happened.

Correct

The court found Ojeinda was correct: there was no complaint by MSC, and the KPMG report did not implicate him.

As there was no evidence to support the allegations against Ojienda, the court found that the DPP and the director of criminal investigations ‘exceeded and abused’ their mandates.

Investigators had tools in their hands to investigate crimes but these powers ‘are not toys to be played around with,’ said the judge. Ojienda had been arrested and held in custody even before the evidence on which the prosecution was to be based, had been retrieved. The impression was clear that a decision had been made to charge him whatever the results of the search.

In this particular round, the court found there was no justification for initiating criminal proceedings against Ojienda because there was no evidence. It was in the public interest to quash his prosecution, but if new evidence emerged that would justify arresting and charging him anew, that window had to be left open, the judge said.

This is part of an ongoing fight between the state authorities and Ojienda, and there will surely be other cases brought to resolve disputes along the way. Meanwhile, a fiercely determined Ojienda is continuing to score goals – though whether he will win the final match is still too early to tell.

Carmel Rickard

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