Ethics and Anti-Corruption Commission & another v Ojienda & 2 others
The bottom line
#EACC can investigate corruption without giving prior notice in most cases.
What this practically means
#The Supreme Court ruled that the Ethics and Anti-Corruption Commission (EACC) does not have to give you a heads-up before investigating you for corruption. Its actions—like searching homes, arresting people, or getting court warrants—are law enforcement, not administrative tasks. So, the constitutional right to fair administrative action (Article 47) does not apply. The EACC only needs to give written notice in specific situations listed in the Anti-Corruption and Economic Crimes Act, such as when asking for documents or property.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court has jurisdiction under article 163(4)(a) of the Constitution to entertain the appeal
- 2.Whether investigations by the 1st appellant constitute an administrative action, within the meaning of article 47 of the Constitution, and section 2 of the Fair Administrative Action Act
- 3.Whether the 1st respondent's fundamental rights and freedoms were violated by the 1st appellant's investigative actions against him
- 4.Whether the 1st appellant is inflexibly bound to issue prior notice before commencing its investigations including applying for warrants
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to hear the appeal.
The Supreme Court has jurisdiction because the appeal involves the interpretation and application of the Constitution, specifically Article 47, which was the core issue before the High Court and Court of Appeal.
The court applied the settled principles from Lawrence Nduttu and Munya cases, finding that the matter revolved around constitutional contestation that came through the judicial hierarchy. The High Court and Court of Appeal had determined the 1st respondent's rights under Articles 47 and 50 of the Constitution, and the appeal challenged those findings. The court also rejected the mootness argument, noting that the enforcement of the warrants did not resolve the live grievances.
Whether investigations by the EACC constitute an 'administrative action' within the meaning of Article 47 of the Constitution.
The investigative actions of the EACC, including obtaining warrants, do not constitute 'administrative action' under Article 47 of the Constitution.
The court examined the definition of 'administrative action' in the FAA Act and the ordinary meaning of 'administrative' as relating to the management of affairs. It distinguished the EACC's investigative powers under Part IV of ACECA—such as searching premises, arresting persons, and applying for warrants—as special law enforcement powers, not administrative functions. The court held that these powers cannot be described as 'administrative action' within the meaning of Article 47.
Whether the EACC is inflexibly bound to issue prior notice before applying for warrants or commencing investigations.
The EACC is not inflexibly bound to issue prior notice in all situations; notice is only required in the specific circumstances set out in sections 26, 27 and 28 of ACECA.
The court analyzed sections 26, 27, and 28 of ACECA, finding that the language is permissive rather than mandatory. Under section 26, notice depends on the Secretary's satisfaction that it would assist or expedite an investigation. Under section 27, the EACC can apply ex-parte to court without notice. Under section 28, notice is required for production of records or property. The court held that where the EACC acts under its police powers (section 23(4) of ACECA, CPC, Evidence Act), it is not bound by the notice requirements of ACECA. The court overturned the Court of Appeal's finding that the EACC is 'inflexibly bound' to issue notice.
Legal principles established
#- EACC investigations are law enforcement, not administrative action under Article 47 of the Constitution.
- The EACC is not required to give prior notice before starting an investigation in most cases.
- Written notice is only needed in specific situations under sections 26, 27, and 28 of the Anti-Corruption and Economic Crimes Act.
- The Supreme Court has jurisdiction to hear appeals involving constitutional interpretation under Article 163(4)(a).
- The Court of Appeal was wrong to say the EACC must always give notice before investigating.
Court orders
#- 1.The Petitions of Appeal dated July 30, 2019, and July 31, 2019, as consolidated, are hereby allowed.
- 2.The judgment of the Court of Appeal dated June 28, 2019 is hereby overturned.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No 103 of 2016 (Consolidated with No 109 of 2016)
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
- Consolidated with
- Petition No 31 of 2019
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Having already concluded that the investigative actions of the 1st appellant cannot be categorized as 'administrative action' within the context of article 47 of the Constitution, we find no basis upon which we can hold, that the 1st respondent's rights were violated for failure to observe the requirements of the said article.
We find it difficult to sustain the declaration by the Court of Appeal to the effect that, the 1st appellant is inflexibly bound to issue notice in the conduct of its investigations.
Each party shall bear its own costs.
Key timeline
#Practical implications
#Challenge EACC investigations on new grounds
You can no longer argue that EACC investigations violate Article 47 for lack of notice. Focus instead on whether the EACC acted under sections 26-28 of ACECA, which require notice, or under its police powers. Also, consider challenging the validity of warrants under criminal procedure laws, not administrative law.
Prepare for unannounced EACC probes
Your company may face EACC investigations without warning. Ensure compliance records are always ready for inspection. Train staff on how to handle sudden searches or document requests. If the EACC asks for documents under section 28 of ACECA, you are entitled to written notice—insist on it.
Know your rights during EACC probes
If the EACC investigates you, do not expect prior notice. However, if they demand documents or property under section 28 of ACECA, they must give written notice. During a search or arrest, you still have rights under criminal procedure laws—like the right to remain silent and to a lawyer. Assert them.
Frequently asked questions
#Does the EACC have to tell me before investigating me in Kenya?+
No, not in most cases. The Supreme Court ruled that EACC investigations are law enforcement, not administrative actions. So, they do not have to give prior notice under Article 47 of the Constitution. They only need to give written notice in specific situations, like when asking for documents under section 28 of the Anti-Corruption and Economic Crimes Act.
Can I sue the EACC for violating my right to fair administrative action in Kenya?+
Probably not for the investigation itself. The Supreme Court said EACC investigative actions—like searching homes or getting warrants—are not 'administrative action' under Article 47. So, you cannot claim your right to fair administrative action was violated just because they did not give you notice. But you may have other legal remedies.
What is the difference between administrative action and law enforcement in Kenya?+
Administrative action is about managing affairs, like issuing licenses or making decisions. Law enforcement is about investigating crimes, like searching premises or arresting suspects. The Supreme Court said EACC investigations are law enforcement, not administrative action. So, the rules for fair administrative action (like giving notice) do not apply to them.
When must the EACC give written notice before investigating in Kenya?+
Only in specific situations under the Anti-Corruption and Economic Crimes Act. For example, under section 26, if the EACC Secretary thinks notice would help the investigation. Under section 27, they can apply to court without notice. Under section 28, they must give notice before asking for records or property. Otherwise, no notice is needed.
Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ria v Ethics and Anti-Corruption Commission (Civil Appeal E107 of 2022) [2026] KECA 1488 (KLR)[2026] KECA 1488 (KLR)24 Jul 2026followed
- Kamande v Judicial Service Commission[2025] KESC 48 (KLR)15 Aug 2025
- Ethics and Anti-Corruption Commission v County Government of Kitui (Civil Appeal 385 of 2019) [2025] KECA 311 (KLR)[2025] KECA 311 (KLR)21 Feb 2025
- Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae)[2024] KESC 63 (KLR)29 Oct 2024followed
Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission & another v Ojienda & 2 others", Case Analysis (2022). Petition 30 & 31 of 2019 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/59/eng@2022-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.