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COURT GIVES BUSIA SUGAR INDUSTRIES GREEN LIGHT TO OPERATE.

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BY NT CORRESPONDENT.

It is a big win for Busia Sugar Industries as the High Court grant it the green light to operate.

This is after the High Court dismissed a case challenging the validity of its milling licence.

In the ruling made by Bungoma Land and Environment Court, Justice Boaz Olao set aside the petition by West Kenya Sugar for lacking merit, saying Busia followed the right procedure in acquiring the permit.

The decision means the two rivals will jostle for the scarce cane in the region.

Contrary to the petitioner’s allegations that the licence was issued illegally or in contempt of the judgment in the petition, Justice Olao noted that Agriculture Food and Fisheries Board acted rightfully.

“Agriculture Food and Fisheries Board acted within its powers and the law in issuing the milling licence to Busia Sugar Industries and was in fact under a constitutional obligation to do so,” he said.

According to the ruling, Head of Sugar Directorate Solomon Odera upon receipt of application from Busia Sugar on March 7, 2018 issued a Gazette Notice No 2196 notifying stakeholders of the proposal to consider the miller’s application for a milling licence and invited objections.

BLOW TO KIDERO AS COURT CLEARS EACC TO PROBE HIS WEALTH.

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Former Nairobi Governor Evans Kidero before Milimani Anti-Corruption Court.

BY SAM ALFAN.

Ethics and Anti- corruption Commission did not violate former Nairobi governor Evans Kidero and his wife’s rights by searching their homes and offices over unexplained wealth.

In her judgement,Justice Mumbi Ngugi ruled that there was nothing wrong with the search warrants, dated September 19, 2018, issued by a Makadara court authorizing the anti-graft body to search the premises owned by the couple.

Kidero together with his wife Dr Susan Mboya accused the EACC of infringing on their right to privacy among other violations.

“In my view, there was no violation of the petitioners ( Kidero and Dr Mboya’s) rights in the search mounted on the residential premises in which the duo reside,” ruled Justice Mumbi.

The search was conducted at Kidero’s homes in Muthaiga and Kisumu as well as offices in Westlands

Kidero also said EACC had published a list contains 58 properties, some registered in the names of his children, while some of the properties targeted were purchased before he joined Mumias Sugar Company and later plunging to politics.

Justice Mumbi also said the warrant that authorized EACC to investigate unexplained assets by Kidero and such investigation must require assessment of the value of the properties in question.

However the judge dismissed Kidero’s defence that EACC had no role investigating the affairs of Mumias Sugar Company, a private entity, saying the legal status of MSC does bar EACC’s investigative powers.

Dr Mboya had claimed that the EACC violated his right by raiding her home at 4am yet her only connection was marriage to Kidero. But the Judge dismissed the argument stating “While the rights of women, whether within marriage or outside must be jealousy safeguarded, it has to be acknowledged that the can be complicit, wittingly or otherwise, in the concealment of corruptly acquired assets,” she said.

The Judge said investigations of their assets in such circumstances is in the public interest and cannot be deemed violation of her rights.

EACC had obtained orders to look account opening documents, statements, cheques, deposit slips, telegraphic money transfers, and client instructions in respect to her accounts.

Dr Kidero had defended his properties saying he was a man of decent means and had accumulated his wealth over the years since his first employment in 1983.

He said since he left politics after the loss of his seat in 2017, he has been subject to threats, attacks, harassment and intimidation by EACC.

He said the search warrant was unconstitutional, defective and ought to be quashed.

MARAGA IRKED BY UHURU’S EXECUTIVE ORDER.

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BY SAM ALFAN.

Chief Justice David Maraga has dismissed the Executive Order issued by President Uhuru Kenyatta on May 11, on the organization of the government.

In a statement, Justice Maraga said the functions of the Judiciary cannot be restructured or assigned through an executive order.

“The Judiciary and the Judicial Service Commission are established under Chapter 10 of the Constitution. The order cannot ‘restructure’ or ‘assign’ functions to the other co-equal and co-substantial arms of government and independent commissions,” said CJ Maraga.

Maraga, who is also the President of the Supreme Court and the Chairman of the JSC said Judiciary is neither a Ministry nor a government department to be ‘organized’ by an Executive Order.

The CJ reinstated the independence of the Judiciary enshrined in Articles 171-178 of the constitution. He said it must have been an error.

“I want to believe that this was an inadvertent error and that the office of the President will promptly issue a correction,” he said.

CITY MCA CHARGED WITH OVER SH2.1 FRAUD, ILLEGAL POSSESSION OF FIREARM.

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BY SAM ALFAN.

Makongeni MCA Peter Anyule Imwatok has been charged with obtaining over Sh2.19 million from a businesswoman claiming he was in position to sell her a piece of land.

Imwatok, the minority whip at the Nairobi County Assembly, appeared before Milimani Principal Magistrate Kenneth Cheruiyot and pleaded not guilty to the charge.

The court heard that between February 1 and October 31, 2017 in Nairobi with intent to defraud, he obtained Ksh2,190,000 million from Fresky Jepchirchir Bett. It is alleged that he pretended that he was in a position to sell a parcel of land Nairobi/block 155/1/578 a fact he knew was false.

He further denied charges of possessing firearm without a firearm certificate, making a false document and uttering a false document to a police officer. The ocurt heard that on September 10, 2017 at Galitos Restaurant, on the junction of Lusaka and Enterprise roads, he was found with a firearm without a certificate.

It was further alleged that he was found with 13 rounds of ammunition without a certificate. And he later made a forged certificate, purporting it to be genuine and issued by firearms licensing board. He later presented the said certificate to a Corporal Wambua, with intent to deceive the said officer, yet he knew it was not genuine.

He pleaded with the court to release him on a lenient cash bail saying he was not a flight risk.

The court ordered him to deposit cash bail of 200,000 to secure his release.

The MCA was arrested on Wednesday through a warrant of arrest and spent a night in police cells before he was arraigned. The warrant for his arrest was issued on March 4 after he failed to appear in court as directed.

WOMAN DENIES OBTAINING MILLIONS OVER FALSE TENDER AT THE MINISTRY OF DEVOLUTION.

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BY PHOEBE WANJOHI.

A woman has been charged before a Nairobi court with obtaining over shilling 62 million from Hopeland Advertising and design limited.

Mercy Wanja Muriithi alias Hannah Nyaguthie Murithi appeared before Nairobi Chief Magistrate Martha Mutuku and pleaded not guilty to the charges.

Wanja is accused that on diverse dates between August 8 and October 29, 2018 in Nairobi jointly with others not before court, she obtained Sh62,950,000 from Hopeland advertising and design limited director John Ohas Omondi.

She allegedly pretended to be in a position to award a tender from the Ministry of Devolution for the supply of laptops to the company valued Sh94,250,000.

She is also alleged that together with others not before court, they conspired and defrauded Omondi of Sh62,950,000.

The court ordered her to deposit cash bail of Sh100,000 or alternative bond of Sh500,000 to secure her release.

HOPE FOR EACC AS COURT SUSPENDS DECISION TO RETURN FROZEN MILLIONS TO TRADER.

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BY SAM ALFAN.

Ethics and Anti-Corruption Commission has obtained an order stopping a trader from recovering Sh45 million, monies allegedly paid fraudulently by National Youth Service(NYS) Supplies.

Anti-Corruption division of the High Court suspended execution of it judgement, which would have seen the trader get back the money.

The Judge recently dismissed bid by EACC to have the money belonging to Catherine Nkirote forfeited to the government.

The woman trades as Venyte suppliers, Joscate Sales and supplies, together with her partners John Kago Murima and Jane Makena Maingi who trades as Qsetters Investments.

“Stay of execution of the judgement delivered on April 8,2020 be and is hereby allowed pending filing of the intended appeal”, ordered judge Onyiego.

Justice Joseph Onyiego directed that the stay of execution order shall last for a period of 45 days from the date of delivery of the court ruling the period which the commission would have filed the intended appeal before the court of appeal.

The judge further directed that the money in the frozen account in Equity and Cooperative bank as per the judgement of April 8,2020 be transferred to an interest earning account to be opened at KCB ltd Milimani high court branch and same held in the joint names of counsel appearing for the parties.

The judge observed that considering that the case is of public interest and the value of the subject property, the original applicant (plaintiff) is likely to suffer substantial loss if the property is disposed off and money withdrawn. Equally , the appeal will be rendered nugatory should it succeed.

This is after the commission filed an application urging the court to suspend execution of it judgment to allow the agency to challenge the said judgment before the appellate court.

On April 8, Ehics and Anti-Corruption Commission suffered a blow in its attempt to seek a refund of Sh45 million from one of the suppliers to National Youth Service (NYS).

The high court dismissed the application for restitution of Kshs. 45,517,241 allegedly paid paid over and above the public works’ estimates, to sevaral companies.

The anti-graft body filed the application two years ago seeking the amount, jointly and severally from Catherine Nkirote who trades as Venyte suppliers, Joscate Sales and supplies, John Kago Murima , Jane Makena Maingi who trades as Qsetters Investments.

“Accordingly, It is my finding that the plaintiff (EACC) has not proved its case on a balance of probability against the defendants,” justice John Onyiego ruled.

In a 30 page judgement, the judge also lifted an order of injunction, issued on May 3, 2018 preserving the funds.

The judge said the concerned government officials who played part in the procurement process with their eyes closed to the detriment of the public, should be held accountable.

Regarding the restitution, the Judge said EACC did not take into account the fact that the suppliers were supposed to buy goods on behalf of NYS at the exact market price without making profit.

“I do not find it reasonable that the Catherine Nkirote T/A venyte suppliers and Joscate Sales and supplies, John Kago Murima , Jane Makena Maingi T/A and Qsetters Investments should be blamed for earning supper profit,” the Judge said.

The commission argued that the companies were awarded tenders for NYS/93/2024-2015 and NYS IRT/35/2014-2015 were irregular and subsequent contracts were null and void.

In the alternative, the EACC prayed for an order for restitution to the NYS Kshs. 33,700,000, being the difference between the payments received and actual value of materials supplied.

The money was being held in five bank accounts at Equity and Co-operative Banks.

The commission case was based on allegations of embezzlement of government funds through illegal and irregular contracts allegedly awarded to the firms.

The agency said the goods and services to NYS were made at inflated prices, compared to the prevailing prices then.

Upon receipt of information regarding the said contracts, the agency embarked on investigations which revealed that the NYS under Ministry of Devolution and Planning in the financial year 2014-2015 invited bids for the supply of bed making materials for pre-fabricating double decker beds for use at the NYS college.

It also found that under tender one of the tenders, three entities were invited namely M/s Qsetters Investments, M/s Joscate sales and Elandic logistics.
In yet another tender No.NYS/RT/35/2014-2015 ,ten entities were invited to bid among them Qsetters Investments.

On February 6,2015 , Qsetters Investments under Min No.13/24/2014-2015 was awarded tender Ref.No. NYS/93/2014-2015 for supply of supply of 1,000 cutting disc 14″ at unit cost of Kshs. 1,800 and 1,000 grinding disc 9″ at cost of 1,950 and that Qsetters Investments was issued with an LPO and payment voucher on June 25,2015 following delivery of the items, she was on December 3,2015 paid cheque of Kshs. 3,556,034.50 million.

It also said that on June 16,2015 Qsetters Investments again vide tender No.MS/RT/35/2014-2015 won an award to supply 15000 round tubes 1 and 1/2″ at unit price of Kshs. 24,400 and 5,000 cutting 9″ at a price of Kshs.1,650 and she was issued with an LPO and payment voucher following delivery of the items worth Kshs. 44,250,000 and subsequently paid a net payment of Kshs. 41,961,206.90 on December 2013.

The agency claimed that the procurement process was tainted with fraudulent practices by Catherine Nkirote who was in direct control of the three entities that were invited to tender including the introduction of Eribet fair deal supplies owned by Betty Maingi Kagendo a sister to Nkirote and Qsetters Investments.

LSK TAKES COMPUTER MISUSE AND CYBERCRIME ACT TO APPELLATE COURT.

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BY SAM ALFAN.

Law Society of Kenya has moved to the Appellate Court to challenge the dismissal of a case filed by bloggers Association of Kenya (BAKE) over the constitutionality of the computer misuse and cybercrime Act.

High Court Judge James Makau dismissed the petition saying it was unwarranted and lifted a section suspended earlier by fellow Judge George Odunga.

But LSK has moved to the Court of Appeal, seeking to suspend several sections of the Computer Misuse and Cybercrime Act 2018, pending the determination of the appeal.

“In the alternative, a conservatory order be issued suspending enforcement of sections 22 (false publications) and 23 (publication of false information) of computer misuse and cybercrime Act, 2018 by Director of public prosecution and Inspector general pending hearing and determination of the intended appeal,” urged LSK.

The Court of Appeal certified the application urgent and directed the matter to be heard on June 3 by a bench of three judges.

The Society through lawyer Dudley Ochiel, argued that the high court erred in law by entirely disregarding his submissions on the unconstitutionality of the Act.

He further said by entirely omitting the LSK from the judgement despite its joinder on December 3, 2018 as an interested party in the case.

It is LSK argument that the judge erred in law by upholding the limitation of the right to freedom of expression under Article 33 without undertaking the mandatory, three-part , article 24 analysis to determine if or not the limitation was by law , served a legitimate aim and was the least restrictive measure in circumstances.

LSK is concerned that unless the said sections of the Act are suspended through conservatory order, the entire appeal if successful will be rendered nugatory.

“The validity of the impugned sections is the subject matter both in the judgement and order of the high court sought to be stayed as well as in the intended appeal. Allowing the DPP and IG to arrest and prosecute members of the public at this stage, would render the question of the constitutionality of the statute academic thus defeating the administration of justice by way of effective exercise of judicial authority and scrutiny of Acts said to violate the constitution,” added LSK.

It added that without conservatory order, the court’s final decision on a successful appeal will be a mirage as there can be no use of a favourable judgement to the applicant if bloggers, journalists and whistle-blowers have already been arrested, prosecuted and convicted under the impugned Act.

It also added that Police and prosecution are arresting, arraigning and prosecuting members of the public under the Act for publishing online information on the Covid-19 pandemic and the arrest and prosecution of independent journalists and activists for Covid-19 related publications under statute is likely to have chilling effect on the public.

“Bloggers, activists, journalists and whistle-blowers will be discouraged from publishing information on suspected violation of the Ministry of health Covid-19 guidelines with grave consequences. Censorship, harassment and punishment for speaking out hinder the fight against the coronavirus outbreak as was the case with Ghana.

Sections 22 and 23 of the Act were challenged on the grounds that they limit freedom of expression by criminalizing ” false publication” and “publication of false information ” in violation of Article 33 and 24 of the constitution.

The legal professional body told the court they are concerned that section 22 and 23 of the Act particularly limits freedom of speech and expression of the applicant and the citizenry of Kenya at large by the use of broad and vaguely worded offences that the government can wield to arrest , investigate and imprison its critics and dissenting voices on Covid-19.

LSK says government has been arresting and prosecuting bloggers for whistle-blowing on suspected violations of Covid-19 protocols, the ministry of health has issued toll free SMS number 988 urging members of the public to anonymously report or ‘mulika’ , anyone who’s supposed to quarantine, but is not or any suspected coronavirus case that is not yet reported.

LSK maintains that in a constitutional democracy like Kenya, a citizen has the right to say or whatever he likes about the government or any of its Covid-19 policies, by way of criticism or comment, so long as his speech does not amount to propaganda for war, incitement to violence or advocacy to hatred under  Article 33(2)(d).

While opposing the case, Attorney General , National Assembly, DPP and National police service said the issuance of conservatory orders saying high court applied the law and the facts independently and suitably found that the impugned provisions were constitutional.

They also said that the right to freedom of expression is not an absolute right and it is subject to limitations provided the limitations are line with the requirements under article 24 of the constitution.

“We humbly submit that the right to freedom of expression contains both positive and negative connotations and the negative connotation restrains the government from unnecessary intruding into the private sphere of an individual”, they adds.

They argued that the positive connotation on the other hand places an obligation on the government to protect its citizens from misleading information whose effect would be to cause panic among members of the public thus affecting the ability of the government to exercise its duty of care over its citizens.

COURT REJECTS STATE’S BID TO STRIKE OUT LAWYERS AND IPOA FROM LIST OF ESSENTIAL SERVICES.

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BY SAM ALFAN.

The High Court has rejected an application by the government seeking to suspend an order directing Interior CS Fred Matiang’i to include lawyers and IPOA members in the list of essential services providers.

Justice Weldon Korir in a ruling said allowing the application by state will amount to a mockery of justice and the curfew order is a temporary measure.

“The applicants’ application for stay of execution is therefore found to be without merit and is dismissed with costs to the Petitioner and the interested parties,” ruled Judge Korir.

The judge said that the orders he issued were meant to enable members of LSK reach out to clients who may need their services during the curfew hours.

He agreed with LSK that the application lacks merit.

“Indeed allowing this application will amount to a mockery of justice considering that the Curfew Order is a temporary measure and staying the order of this Court will amount to denying the Petitioner (LSK) and the Independent Police Oversight Authority (IPOA) the fruits of the judgment”, said Judge Korir.

In the main petition, LSK argued that failure to exempt legal services from the curfew order violates the rights of arrested persons to access a lawyer.

They further argued that their non-listing went against the right to fair hearing and fair trial as spelled in Article 50 of the Constitution.

Interior PS Karanja Kibicho had brushed off the request saying that courts operate during the day.

But Judge Korir ruled that the work of advocates is not limited to court work.

“They also attend to persons arrested by the police. There is therefore no merit in the contention by LSK that its members should have been exempted from the operations of the curfew order,” the judge said.

HOMICIDE UNIT TAKES OVER PROBE IN THE DEATH OF KEROCHE HEIRESS.

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BY SAM ALFAN.

Homicide unit at the Directorate of Criminal Investigation (DCI) has taken over the probe of the death of Keroche Breweries daughter Tecra Muigai.

The homicide team took over the investigation from DCI Lamu. Tecra’s lover Omari Ali Omari is being held over her death as the police investigate circumstances that led to her death.

Through the investigating officer Inspector Raphael Wanjohi, the unit told the court that they require more time to tie up loose ends, which were discovered after taking over of the investigations.

The investigators said they required seven days to complete the probe. Tecra passed on while undergoing treatment at Nairobi Hospital.

“In spite of the investigative efforts that have so far gone into investigation, critical leads are still being followed to ascertain the events of the April 22 and 23, 2020 both being critical dates in this investigation,” Wanjohi told the court.

Lawyer James Orengo is representing the family of Keroche Breweries Limited.

Wanjohi further told the court that there are samples that have been submitted to the government chemist for analysis and the results are yet to be sent to his team.

The investigating officer told the court that DCI is yet to receive the medical treatment notes from Nairobi hospital where the deceased was receiving treatment until her death.

He said the notes are critical in establishing the treatment regimen that the deceased was accorded as well as the alleged fall at Jaha Guest House.

“It will be necessary to revisit the scene in the company of the Omari Ali Omari to reconstruct the scene and establish the circumstances surrounding the fall,” Wanjohi added.

COURT DECLINE TO DETAIN WOMAN IN SH37 MILLION FAKE LETTER FOR SUPPLY OF PPES TO MINISTRY OF HEALTH.

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BY PHOEBE WANJOHI.

A woman being investigated over a letter awarding her a tender for the supply of Personal Protective Equipment (PPEs) worth Sh37.5 million has been brought before a Nairobi court.

Mercy Waihiga Wanjiku alias Linda Masaka was produced by DCI parklands but the investigators sought to be allowed to detain her for 15 days to complete the probe.

The investigating officer Elias Kariuki told the court that on May 5, this year Wanjiku with others not before court handed over a notification letter of award from Ministry of Health.

The letter dated May 4, 2020 was handed to one Rahma, an agent of Bishar Yunis Bora, the director of Rocketway construction limited.

The said letter was purported to be genuine awarded by the Ministry for the supply of PPEs worth Sh37.5 million.

The probe later established that Bora approached Ibrahim Adan to finance the purchase of the items as indicated in the letter of notification.

“The said PPE’s were (1) hand gloves-non powered standard size 20,000 boxes at Ksh19 million, (2) non-contact infrared thermometer 1000 pieces at Ksh18, 500.000” Kariuki said.

The complaint’s (Aden) agent met with Wanjiku at G6 digital Marketing limited in Westlands where the agent had identified the said equipment.

Wanjiku and her accomplices informed the complainant that the thermometers met the required specification and fit for purchase as per the letter of award.

The equipment were purchased and Wanjiku sent her co-accused to pick the equipment and on the same day she signed an invoice while at the Ministry of Health headquarters.

The complaint was assured of his payment immediately but after failing to receive the payment he decided to go the Ministry headquarters to confirm when he would be expecting his dues.

He was shocked to be informed the tender was not genuine and reported the matter to DCI at Parklands.

She was released on a cash bail after court rejected police application to detain her for 15 days pending investigations.