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MAN IN COURT FOR DEFRAUDING BUSINESSWOMAN SH9 MILLION.

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BY NT CORRESPONDENT.

A businessman has been charged with conspiracy to defraud a trader of over Sh9 million.

Oscar Juma appeared before Milimani Chief Magistrate Wendy Mocheni Kagendo and denied the charges.

The court heard that Juma committed the offence on diverse days between January 10, 2020 and July 8, this year within Nairobi County.

It is alleged that jointly with others not in court, they conspired to defraud Flemister Leilan Sh9, 091,693,45 by falsely pretending that he would use the money in running and operating a joint venture business.

The court further heard that on the same dates and month between last year and this year, jointly with others not before court, he obtained the money from Leilan.

The court ordered to deposit cash bail of Sh1 million, to secure his release.

COHEN’S FAMILY NOW WANTS COURT OF APPEAL JUDGE REMOVED FROM JUDICIARY.

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BY SAM ALFAN.

The family of the late billionaire businessman Tob Cohen has filed petition before the Judicial Service Commission seeking the removal of Appellate Court Judge Sankale ole Kantai.

The family through Cohen’s sister Gabriel Hannah Van Straten further wants the petition heard expeditiously to ensure the judge is removed or he resigns voluntarily for violation of judicial code of conduct.

Through lawyers Danstan Omari, Cliff Ombetta and Shadrack Wambui, the family told journalist at Milimani law courts that Justice Sankale forged government documents which were used to transfer shares from Silas Itaa to himself and later to Cohen’s widow Sarah Wairimu Kamotho.

At the same time, Wairimu has sought to join a petition filed by Justice Sankale, seeking to bar the police from arresting and charging him over the murder of the tycoon. Wairimu says she has been adversely mentioned in the petition, necessitating her to participate in the proceedings.

In the petition before JSC, Gabriel accuses Justice Sankale of engaging in acts that breach public trust and consistently demeaning the dignity of his office and dishonor to the Nation.

“Clause 7 (14) of the Judicial Code of Conduct and Ethics (Legal Notice No. 132 of 2016) provides that “a judge not practice law by offering legal advice or drafting pleadings for litigants or members of the public, whether for a free or free of charge while the holder of a judicial office.” The petition states.

“I believe the action of the judge to draft the witnesses statement for the accused person, Sarah Wairimu as evidenced by their email correspondence is a breach of the above clause and should occasion the removal of the judge,” she says.

She adds that in further breach of the said Clause and further demonstration of the gross misconduct on the part of the judge, Justice Sankale allegedly admits, in his statement to the DCI, that he hosted his lover, Wairimu, in his official chambers at Nyeri in February or March 2019.

It is alleged that they discussed an active divorce case filed by her late brother at Milimani Law Courts, Divorce case No. 35 of 2019.

She adds that the action is breach of Clause 5(5) that bars the judge from making comments on a matter that is likely to come before him.

Gabriel claims that exactly a week after the heinous murder of her brother, the Judge purchased an air ticket for Wairimu to travel to Kisumu ostensibly to scheme a cover-up of their alleged involvement in the murder.

Wairimu is charged alongside businessman Peter Karanja with the murder of Cohen.
In documents filed before JSC, Gabriel claims that the DCI has since forensically placed the Judge at the scene of murder of her brother.

“The report filed by the DCI clearly demonstrates that the Judge actively participated in the planning and the attempts of cover-up of the murder of my brother,” she states in the petition.

The sister further claims that the Judge facilitated Wairimu to travel from Kisumu airport to Acacia hotel where they stayed by arranging her travel using his official Judiciary vehicle and official driver contrary to the government directives that official government vehicles should be used for official functions only.

She claims that the Judge also embarked on a mission to destroy evidence of their involvement in the murder between July 20 and August 28 via WhatsApp calls, phone calls and meetings planned.

Further, it is her argument she petition pointed out how the judge assisted Wairimu to draft a statement after the death of Cohen and the same statement was forwarded to the DCI and the DPP.

The lawyers argued that the Judge is being protected by the DPP after the DCI recommended that he be charged with the offense of murder.

The family wants JSC and PSC to give timelines and expedite the hearing of two petitions, which seek the removal of DPP and Justice Sankale, respectively, from office.

RELIEF FOR SACKED POLICE OFFICERS AFTER COURT ORDERS HER REINSTATEMENT.

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BY SAM ALFAN.

National Police Service has been ordered to reinstate a senior police officer who sacked six years ago after failing in the vetting process.

Employment and Labour Relations Judge Maureen Onyango directed NPS to reinstate Superintendent Regina Mutindi Mbithi, who was in charge of Highway Patrol Unit based at Traffic Headquarters Nairobi.

“An Order be and is hereby issued directing the immediate reinstatement of the Petitioner to her post as a Superintendent of the Kenya Police Service with effect from May 5, 2016 with all privileges and salary attached to her office; (d) Costs are awarded to Regina,” ordered the judge.

The court found that her fundamental rights and freedoms were violated following her dismissal and the Judge went ahead and quashed the entire proceedings and the decision of the NPS, which declared her having failed the vetting process.

In her court documents, Regina urged the court to quash the entire proceedings and the decision of the NPS declaring that she had failed vetting and had been discontinued from the National Police Service including the decision.

She also urged the Employment court to reinstate her to her post as a Superintendent of the Kenya Police Service as well as reinstatement of all her privileges in that position.

She also sought an order substituting the NPS’s decision with a declaration that there exists no material to find that she had failed vetting.

She averred that prior to her removal from service, she worked for the NPS as a Superintendent of Police and her last position was officer in charge of Highway Patrol Unit based at Traffic Headquarters Nairobi.

She added that that prior to the vetting interview, she was requested to fill a vetting questionnaire and avail certain vital documents including bank statements for the two years preceding the vetting exercise.

Regina was also required to table a copy of pin certificate and ID Card for the spouse, Tax Compliance Certificate, Curriculum Vitae and copies of educational and professional certificates.

She added that without being informed that there were any complaints or adverse allegations or documentary evidence in support of any complaints or allegations against her as required under regulation 18(2) of the National Police Service (vetting) regulations, she was invited to appear for a vetting interview before the NPS’s vetting panel.

According to her court documents, on October 9, 2015, the NPS, in a decision signed by all the commissioners, she was found to have failed vetting and proceeded to remove her from the Service.

The officer was found guilty of professional misconduct over an incident that involved her husband Wilfred Mbithi Jason (also a Police Officer) and a minor known as FMM.

BAT TO PAY FORMER EMPLOYEE MILLIONS FOR UNFAIR SACKING.

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BY SAM ALFAN.

Cigarette maker British American Tobacco (BAT) will pay its former senior business analyst over Sh5 million for unfair dismissal.

Employment and Labour Relations judge Stephen Radido faulted the tobacco company for firing Julius Mark Mbwibo unfairly.

Mbwibo told the court that on 3 May 2013, BAT notified him of the termination of his employment and being aggrieved he lodged the case arguing that the sacking was unfair.

He also alleged breach of contract.

He filed a suit challenging BAT decision to terminate his contract.

BAT responded arguing that the reason for terminating the Mbwibo’s contract was under-performance in the years 2011 and 2012.

WELFARE GROUP MEMBERS DENY FRESH CHARGES OVER SH1 BILLION DONHOLM PROPERTY.

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BY SAM ALFAN.

Ten people belonging to a welfare organisation have been charged afresh with malicious destruction of a perimeter wall valued over Sh144, 000 property of Gidjoy Investment ltd.

Benita Nathaniel, Peter Owino, David Makau, Kennedy Odhiambo, Titus Ochieng and Patrobas Owino, who are members of Sowesavva group were charged before Milimani Principal Magistrate Gilbert Shikwe.

Others were Boniface Anyieng, Calvince Ooko Nick Owango and Philomen Otieno. They denied the charges.

The prosecution told the court that the accused persons willfully and unlawfully damaged a perimeter fence valued Sh144, 400 the property of Gidjoy Investment ltd.

It is alleged that they committed the offence on March 27 in the year 2018 at Donholm Phase 8 in Embakasi East sub – County within Nairobi County.

The ten members are also accused of entering the property on March 24, 2018 and chasing away security guards while armed with crude weapons.

The court heard that they entered the property with an intention of taking possession of the land in Donholm Phase 8 in Embakasi East sub.

Directors of Gidjoy Investment ltd were supposed to continue testifying but defence lawyer argued that charge sheet has changed and there was addition of information that he was not familiar with.

They accused are out on a cash bail and the court directed the matter to proceed for hearing on November 2.

MCAS TO CONTEST POLLS WITHOUT DEGREE.

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BY PHEOBE WANJOHI.

Members of the County Assembly (MCAs) have been granted a major reprieve after the high court nullified a law that would have barred them from vying in next year’s polls without a degree.

Justice Antony Mrima held that the amendment of the law (Elections Act) by Parliament in 2015 was unconstitutional as there was no public participation.

The court declared section 22 (1)(b) of the Elections Act unconstitutional because it contravened Article 10 (2)(a) of the Constitution when public participation was not taken into account.

“A declaration be and is hereby issued that section (1)(b) of the election act is unconstitutional and in violation 22,27,38(3) and 56 of the Constitution. An order is hereby issued that section 22(1)(b)(2) of the election act is imporperational as it has no legal effect and is therefore null and void,” the judge ruled.

The decision comes after petitions were filed by the County Assembly Forum and six others argue that the law that is set to take effect in the 2022 polls requiring contestants for Member of Parliament (MP) and Member of the  County Assembly (MCA) seats to have a university degree qualification is unconstitutional.

It further the MCAs argument that it would be unfair to subject them to the same qualifications as MPs.

MAN CHARGED WITH FORGERY OF SH1.5 MILLION GUEST RECEIPT

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BY NT CORRESPONDENT.

A middle aged man charged in connection with the forgery of receipts belonging to a restaurant in Nairobi has been released on bail.

Senior Principal magistrate Benard Ochoi released Mr Addiaziz Abdi Mohamud on a cash bail of Sh50,000 after he denied the charge of forging the receipts worth Sh1.5 million.

The prosecution told court that the forged receipts bearing the name of Hosh Guest House were made on different dates and for different amounts.

He wwas released on a cash bail of Sh50, 000.

JUDICIARY PITCHES FOR MORE FUNDS AHEAD OF NEXT YEAR’S BUDGET.

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BY SAM ALFAN.

The Judiciary has pleaded for more fund allocation to the tune of Sh36.56 billion for the 2022/2023 budget.

Through the acting finance director Susan Oyatsi, the judiciary said funding to the justice chain sector players needs to be enhanced to enable facilitation of speedy delivery of justice and also for all government institutions to operate at the same level.

“The stakeholders in the justice chain should come together to review, harmonize and amend statutes governing adoption of ICT in court procedures,” she said.

She added that other agencies dealing with witnesses attending cases in court should be funded to meet part of their cost or expenses.

She further added that the judiciary has realized great strides in automation but continues to be hampered by inadequate funding which has affected ICT infrastructure and capacity building.

“The situation has been compounded by the fact that other stakeholders in the justice chain whom the judiciary relies upon to discharge its mandate have not achieved comparable levels of automation”, she added.

The Tribunals Bills that was to regulate the administration and functions of Tribunals, provides standardised procedures for the transition of Tribunals in the judiciary has not been finalised to date.

Judiciary has been underfunded over the years with its annual allocation being continuously reduced by half the required budget.

The underfunding has affected its operations and capital projects such construction of courts, expansion of courts, expansion and improvements of existing courts facilities and provisions of residential houses of judicial officers.

Others include administration of justice and recruitment plans where the judiciary is unable to recruit adequate number of judicial officers like judges, Magistrate and also staff that are required to effectively handle workload since the current staffing levels fail below the optimal number per judiciary establishment.

COURT TO DECIDE WHETHER JOGOO ROAD POLICE OFFICERS WILL BE DETAINED FOR TWO WEEKS TO ALLOW FOR PROBE.

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BY SAM ALFAN.

Three police officers arrested following the disappearence of self-proclaimed serial killer Masten Mulimu Wanjala from custody will tomorrow know whether they will be detained 14 days.

Milimani Magistrate Jane Kamau will rule tomorrow whether the three- inspector Philip Mbithi, coporal Kamakia Mutuma Boniface and Precious Mwende Mwinzi will be detained for two weeks as requested by police.

The investigators asked the court to allow the trio be detained, pending conclusion of the probe. The three were arrested after the allegedly escaped from custody under their watch.

The officers through their lawyers Danstan Omari and Shadrack Wambui vehemently opposed their detention.

Omari told the court that the Director of Criminal Investigation had recommended the three to be charged but the DPP allegedly refused to sign the charge sheet.

He urged the court not to allow itself to be dragged into the wars between the DPP Noordin Haji and DCI boss George Kinoti.

The lawyers applied for the suspects to be released on cash bail to enable the investigating officers complete their investigation.

“We plead with the court to release the suspect on bail or bond and impose conditions and the suspect will comply with the court orders imposed against them,” Omari urged the court.

The officers defended themselves saying there were no lights at the police station when the suspect allegedly disappeared.

“On the day the suspect escaped from police custody, there was no light. The state failed to provide light, so the police officers on duty took shifts at 7pm in total darkness using the spotlight on their phones to count suspects,” lawyer Omari told the court.

Chief Inspector Wanga Masake sought to be allowed to detain the three officers for 14 days to conclude investigations.

Mbithi, Mutuma and Mwende were arrested on October 13 over suspicions of aiding a prisoner to escape from custody.

They are also accused of failing to prevent escape of the self-proclaimed serial murderer from Jogoo road police station.

The investigating officer said the three are police officers and may interfere with the investigations if they are allowed to be at their working station.

The court heard that the investigator will rely on assistance of the three officers to help them re-arrest the fugitive who is still at large.

BLOW TO GOVERNMENT IN HUDUMA NUMBER ROLL OUT AS COURT RULES IT ILLEGAL.

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BY SAM ALFAN.

The Huduma number program has been thrown into disarray after it’s rollout was declared illegal.

High Court Judge Jairus Ngaah held that the state failed to comply with the constitution during the role out.

The state failed to ensure that the bill of rights including the right to privacy was respected and protected during the processing and roll out of the cards.

“”The order of is hereby issued quashing the respondents’ decision of November 18, 2020 to roll out Huduma Cards for being ultra vires section 31 of the Data Protection Act, 2019″, Judge Ngaah declared.

The Judge ordered the state to conduct a data protection impact assessment in accordance with section 31 of the data protection act before processing of data.

“An order is hereby issued compelling the respondents to conduct a data protection impact assessment in accordance with section 31 of the Data Protection Act, 2019 before processing of data and rolling out of the Huduma Cards”, Judge Ngaah compelled government.

The Judge also ordered the state to conduct a data protection impact assessment in accordance with section 31 of the data protection act before processing of data.

The suit which had been filed by Katiba Institute and Yash Pal Ghai was against ICT CS Joe Mucheru, Interior CS Fred Matiangi and the Attorney General.

In the Judgment, Justice Ngaah noted that the state had not appreciated the import and extent of the data protection act with respect to the data collected under National Integrated Identity Management System- NIIMS.

“If they did, they would have given effect to section 31 of the data protection act and conducted a data impact assessment before processing personal data and rolling out the huduma cards,” the Judge said.

The Judge also noted that NIIMS which the state used to collect data relied on section 9(a) of the registration of Persons act which in turn came about as a result of the miscellaneous amendment act no.19 of 2018.

According to the Judge, the said miscellaneous amendment act no.19 of 2018 was nullified by a three Judge bench   among other laws that were purportedly enacted by the national assembly   without any involvement of the senate.

“It is the individual constitutional rights and basic rights that were under threat by exercise of the state in collecting and processing data without a legal framework to ensure that even as it embraces a new system of identification, the right to privacy is protected,” he said.

“I will stand with the individual against the might of the state and hold that fairness is in interpretation of section 31 as being retrospective in its application. I am satisfied that the applicant has made out a case against the respondents,” he ruled.

The lobby group through lawyer Dudley Ochiel had argued the roll-out of Huduma Namba cards lacked guarantees of theft or misuse of Kenyans’ personal information.

According to the lobby group the State failed to subject the fresh registration of Kenyans to data protection impact assessment (DPIA) — a requirement under the law.

“The Respondent’s omission to conduct the data protection impact assessment in this case is not only ultra vires the Act, but also threatens the right to privacy under Article 31 of the Constitution,” they argued.

It was their contention that the nature of the data collected is such that there exists a tangible risk that subjects may be discriminated against on various bases in contravention of Articles 10 and 27 of the Constitution.