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Court of AppealPartially AllowedNot stated in the judgment as provided

Ethics and Anti-Corruption Commission v County Government of Kitui (Civil Appeal 385 of 2019) [2025] KECA 311 (KLR)

Court of Appeal
21 February 2025
FTF. TuiyottPNP. NyamweyaFOF. Ochieng
6,556 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that the EACC has no duty to give legal opinions to those it investigates, though its investigations shouldn't stall public procurement.

What this practically means

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Executive summary

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This is a unanimous first-appeal judgment of the Court of Appeal (Tuiyott, Nyamweya and Ochieng, JJA) delivered at Nairobi on 21 February 2025, in which the Ethics and Anti-Corruption Commission appealed against a High Court decision (Odunga, J, Machakos Petition No 3 of 2019) that had declared EACC's conduct in the Kitui livestock-trucks procurement to amount to unfair administrative action. The Court framed three issues: whether EACC is obliged to render a legal opinion during investigations; whether EACC investigations are administrative action subject to timelines; and whether the petition was brought in good faith. Relying authoritatively on the Supreme Court's decision in Tom Ojienda, the Court held that EACC's investigative powers are special powers, not article 47 administrative action, though canons of fair administrative action may apply contextually to aspects of investigations. It held that EACC's advisory function under section 11(1)(g) of the EACC Act is discretionary, exercised 'on its own initiative', so EACC was under no duty to render a legal opinion to the County Government. On delay, the Court held that while EACC could have acted more expeditiously, its conduct did not prejudice the County, which could have concluded its lawful procurement without EACC's endorsement; a party alleging inordinate delay must prove both unreasonableness and prejudice. The Court substantially allowed the appeal, set aside the High Court judgment save for one declaration (that EACC's investigative powers should not impede the procurement process), dismissed the petition to that extent, and ordered each party to bear its own costs in both courts. The third issue was left moot.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the EACC is under an obligation to render a legal opinion in the course of investigations.
  2. 2.Are investigations undertaken by EACC administrative action, and connected to that, must they be concluded within a specific timeline?
  3. 3.Whether the petition has been brought in good faith.

Key legal issues

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01

Whether EACC is obliged to render a legal opinion in the course of investigations

Holding

No. Section 11(1)(g) and (i) of the EACC Act empower EACC to advise 'on its own initiative'; the timing, recipient and manner of advice are discretionary. Compelling opinions would be absurd and burdensome and could bind EACC to opinions formed on incomplete facts.

Reasoning

The court construed the statutory language: the words 'on its own initiative' denote discretion rather than duty. Requiring a legal opinion to every person under investigation would create absurdity, since EACC could be bound by opinions based on misapprehended or suppressed facts, and would be an unduly burdensome responsibility inimical to the public good of investigating and prosecuting corruption. EACC's advice to act in conformity with the law did not obstruct the procurement, as the payment decision remained the County's own.

p. 11
02

Whether EACC investigations are administrative action under article 47 subject to timelines

Holding

No, per the Supreme Court in Tom Ojienda, EACC's investigative powers are special powers under a specific legal regime, not article 47 administrative action; but certain canons of fair administrative action may apply contextually, and investigations affecting devolved service delivery should be carried out expeditiously and efficiently.

Reasoning

The Court of Appeal treated itself as bound by the Supreme Court's holding that investigative powers (searches, arrests, etc.) are special powers for a special purpose, not administrative action. However, it preserved the applicability of canons of fairness - efficiency, lawfulness, reasonableness and procedural fairness - to certain aspects of investigations, applied case by case. Where investigations touch delivery of devolved services, expedition and efficiency are expected given their public impact.

p. 12
03

Whether the investigations here were unreasonably delayed

Holding

While EACC could have acted more expeditiously, its conduct did not handicap, impede or prejudice the County Government; no basis existed to stop the investigations. Whether delay is unreasonable is fact-specific, not mathematical.

Reasoning

The County bore the onus of proving both unexplained tardiness and prejudice. Though over a year of investigation into a county service-delivery decision was prima facie unreasonable, the prejudice element failed: EACC gave the green light within four months for the procurement to proceed in conformity with the law, so the County could have simply concluded the procurement without EACC's endorsement. Reasonableness of delay is a value judgment dependent on complexity, scope, witnesses and cooperation, drawing on Julius Kamau Mbugua and Jirongo.

p. 4

Legal principles established

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  • The EACC is not under an obligation to render a legal opinion to any person it is investigating; under section 11(1)(g) of the EACC Act the advisory function is exercised on its own initiative and is discretionary.
  • The investigative powers of the EACC cannot be described as administrative action within the meaning of article 47 of the Constitution, per the Supreme Court's binding decision in Tom Ojienda; however, some canons of fair administrative action (efficiency, lawfulness, reasonableness, procedural fairness) may apply in certain aspects of investigative functions on a case-by-case, context-based basis.
  • A person alleging that an investigation is unreasonably slow bears the onus of showing the investigating body could have been more expeditious, and must additionally demonstrate that the delay is prejudicial to him or her.

Court orders

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  1. 1.Upheld the declaration that the investigative powers of the EACC in respect of county governments and their procurement of goods and services should not impede the procurement process
  2. 2.Set aside the judgment and decree issued in Machakos on May 30, 2019 in Petition No 3 of 2019 save for the upheld declaration
  3. 3.Dismissed Machakos High Court Petition No 3 of 2019 save to the extent of the upheld declaration
  4. 4.Each party to bear its own costs in the appeal and in the High Court proceedings

The bench

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One judgment of the whole court — no separate or dissenting opinions.

FT
majority
PN
majority
FO
majority
On appeal from
High Court of Kenya
Machakos HCC Petition No 3 of 2019
Jurisdiction invoked
First appeal to the Court of Appeal against a High Court decision in a constitutional petition (Article 164 of the Constitution implied; not expressly cited)

Relief refused

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Declaration that EACC has a duty to furnish requested guidance within a reasonable time so as not to impede the procurement process

EACC's advisory function under section 11(1)(g) is discretionary ('on its own initiative'); it is not obliged to render a legal opinion to persons it is investigating

p. 11

Injunction restraining EACC from preferring charges relating to the acquisition of the five trucks

There was no basis to stop the investigations or insulate suspects from being charged if reasonable cause arose

p. 17

Order compelling EACC to render its opinion within 30 days and consequential certiorari quashing the decision to halt payment

These orders fell with the setting aside of the High Court judgment; the County Government did not need EACC's approval to conclude a lawful procurement

p. 4

Costs

Given the nature of this litigation, each party shall bear its own costs herein and in the High Court proceedings.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We do not think, and so hold, that EACC was under an obligation to render a legal opinion in favour of the County Government or anyone it is investigating.
p. 11Scope of EACC advisory function under section 11(1)(g)
the apex court has authoritatively spoken that investigative powers of EACC cannot be described as administrative action within the meaning of article 47
p. 12Status of EACC investigations vis-à-vis article 47 fair administrative action
a person who seeks to halt a criminal investigation on account of delay must, in addition, demonstrate that the speed of the investigations is prejudicial to him or her.
p. 16Burden of proof on allegations of inordinate investigative delay
Save that we uphold the declaration that the investigative powers of the Ethics and AntiCorruption Commission EACC in respect of county governments and their procurement of goods and services should not impede the procurement process, the judgment and decree issued in Machakos on May 30, 2019 in Petition No 3 of 2019 is hereby set aside.
p. 17Final orders - partial setting aside of the High Court judgment
Given the nature of this litigation, each party shall bear its own costs herein and in the High Court proceedings.
p. 17Costs order

Issues in the judgment

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minor

The petition is dated February 26, 2019 in one passage but the court later refers to 'the date of the petition (February 26, 2018)' when recounting the common-ground chronology - an apparent typographical year discrepancy within the judgment.

minor

The coram lists the judges by initials and surname with certification wording typical of a copy, and the judgment does not print the appeal number or neutral citation in the material provided.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ethics and Anti-Corruption Commission v County Government of Kitui (Civil Appeal 385 of 2019) [2025] KECA 311 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/311/eng@2025-02-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.