Thika Chief Magistrate Stella Atambo, through her legal team, has moved to court seeking to block the Ethics and Anti-Corruption Commission (EACC) from pursuing her, arguing that the anti graft body has no legal standing to prosecute cases without the involvement of the Director of Public Prosecutions (DPP).
In an application before Anti-Graft Chief Magistrate Harrison Barasa, lawyers Danstan Omari, John Khaminwa, Cliff Ombetta, and Samson Nyaberi, among others, contended that the EACC acted beyond its mandate by attempting to appear in court without the DPP, which is the designated prosecuting authority.
The lawyers argue that under Article 157(9) of the Constitution, only the DPP has the <span;>authority to institute criminal proceedings. The EACC can only investigate but cannot prosecute without explicit delegation from the DPP.
“The EACC lacks the legal footing to prosecute or even move to court in the matter unless they present a gazette notice proving delegation of power from the DPP,” Nyaberi argued.
According to the lawyers, the search warrant executed at Atambo’s Syokimau residence was obtained under the name “Bonareri N.”, a move they claim was deliberate and misleading.
The court heard that allowing the EACC to act outside its mandate would set a dangerous precedent, threatening judicial officers with state-sponsored intimidation. <span;>The trial court initially assigned to hear the case recused itself, citing a potential conflict of interest, as Atambo was known to the trial court. The matter has since been forwarded for reassignment, delaying further proceedings.
Atambo’s lawyers took issue with how the case was handled, arguing that she was not granted audience before key court decisions were made. They insisted that no action could be taken without first establishing who represents the Republic in the matter.
“In criminal matters, the Republic is the DPP, not an investigating body. The EACC is merely a witness and cannot prosecute,” lawyer Shadrack Wambui submitted.
Atambo’s legal team has urged the court to prohibit the EACC from pursuing or prosecuting her unless the DPP expressly delegates that authority.
They also want the court to compel the EACC to return all items seized from Atambo’s residence and quash the search warrant issued on March 12, arguing that it was obtained through deception.
The court is set to deliver its ruling on the matter on March 18.
