Unexplained assets: Former City Hall finance chief Kiamba pleads with court to spare his matrimonial home

Unexplained assets: Former City Hall finance chief Kiamba pleads with court to spare his matrimonial home

Mr Kiamba, who has filed a petition alongside his spouse Tracy Musau, is also seeking to have an order issued that they be at liberty to liquidate their property to settle the claim with the Ethics and Anti-Corruption Commission (EACC).

In their petition at the High Court in Mombasa, Mr Kiamba says during the pendency of his employment, he managed to build his income by saving.

He says he used the savings and loans from banks to start wheat and livestock farming, and he later on built hotels in Mombasa and Machakos.

According to the petitioners, Ms Musau, a career interior designer, built her business from scratch through the establishment of an interior design company.

She says she later established a beauty parlor, enabling her to acquire a property that was leased out to supplement her income from the core business.

The couple say sometime in 2014, unknown to them, EACC began investigations on them and their dealings, including the registered companies they had interests in, and it formed an opinion that they were in possession of unexplained assets.

The petitioners also say EACC filed a case at the High Court to forfeit the unexplained assets, an application that was eventually granted.

The couple argue that they tendered evidence that their young family was at least entitled to the protection of the Constitution regarding rights attributable to a family, children and their presumptive right to own property.

This, they say, means that the attachment and forfeiture of their matrimonial home would render them homeless, and deprive their children of their rights.

“Part of the so-called unexplained assets, including the matrimonial home, were aptly explained to the extent they were acquired through pooling of resources of the petitioners and loans advanced by financial institutions,” the petition states in part.

Mr Kiamba and his spouse have challenged the constitutionality of some sections of the Anti-Corruption and Economic Crimes Act.

They claim that some sections of the law are in direct conflict, and in contravention of the Constitution, specifically the Bill of Rights as they prescribe a procedure by which an individual is adjudged and instantly presumed guilty until proven otherwise.

According to the petitioners, the procedure laid down presupposes a mini-trial conducted by the EACC which after investigations is incumbent upon the anti-graft agency to invite rebuttal evidence before it can recommend either prosecution or acquittal of anticipated charges against the suspect.

“It is imperative that the court invokes its interrogative constitutional mandate to interpret the Constitution as invited by the petitioners relating to conflict of laws in order to safeguard the dictates and gains in criminal and quasi criminal proceedings for furtherance and protection of the rule of law,” the petition states in part.

The petitioners are seeking a declaration that Sections 55 (1),55 (2) (b),55 (6),55 (9),56 (1) &56 (2) of Aceca are inconsistent and contravene Articles 50 (2) (a),50 (2) (K),50 (2) (n),159 (2) (e) and 160 (1) of the Constitution are unconstitutional null and void.

Upon declaration of the unconstitutionality of the sections, the petitioners want a declaration that the orders of the High Court and the Court of Appeal have no force in law.

Alternatively, the petitioners want their matrimonial home situated in Runda Water Estate, Nairobi excluded from forfeiture by the state as ordered by the Court of Appeal.

The petitioners are also seeking conservatory orders among them staying implementation or execution of the judgment and orders of the Court of Appeal pending hearing and determination of their petition.

The case will be mentioned on Thursday for directions.