The High Court has barred the Ethics and Anti Corruption Commission (EACC) from probing employees of state corporations and parastatals.
The court argued that state corporations and parastatals are not offices in the public service.
The decision ruled by the three bench judges, Jessie Lesiit, Chacha Mwita and Lucy Njuguna, locks out investigating agencies from probing the expenditure by the parastatals.
Among those affected by the ruling also include the office of the Attorney General and the Kenya Revenue Authority (KRA).
The judges ruled that state officers would not be categorized as public officers, based on the Constitution.
According to Article 260 of the Constitution, a public office is an office in the national government, county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament.
The judges argued that state corporations and parastatals generate their own revenue for expenditure and their funding is not directly provided by Parliament. This is based on the State Corporations Act.
Furthermore, the court cited that the constitution defines a public service as the collectivity of all individuals, other than state officers, performing a function within a state organ.
EACC boss Twalib Mbarak criticized the ruling arguing that it would give state officers leeway to misuse public funds and engage in unscrupulous activities.
“It means that those working for such corporations can claim to be exempted from requirements under Chapter 6. EACC may not be able to enforce the law against them until the decision is reversed on appeal,” Mbarak noted.
The Law Society of Kenya President Nelson Havi also shared Mbarak's sentiments adding that if those holding state offices were not held accountable, then the country would lose the gains made in public expenditure.
The EACC body was established in 2011 under the Ethics and Anti-Corruption Act. The body's core mandate is to carry out investigations on corruption and unethical conduct and ensure high standards of integrity by all public offices.
