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ANOTHER THREE JUDGE BENCH TO HEAR SONKO’S APPEAL AGAINST IEBC’S DECISION TO BAR HIM FROM CONTESTING.

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Chief Justice Martha Koome who will appoint another bench to hear former Nairobi Governor Mike Sonko appeal.

BY SAM ALFAN.

A petition by Mombasa Gubernatorial candidate Mike Sonko challenging the move to bar him from contesting the August 9 vote will be heard by a bench of three judges.

This was after High Court judge Olga Sewe certified the case as urgent and forwarded the file to Chief Justice Martha Koome for appointment of a bench to hear the appeal.

“I’m of the considered view of empanelling the bench by the Chief Justice. This file should therefore be transmitted to the Chief Justice for the empanelling of the bench,” ruled Olga.

The Independent Electoral and Boundaries Commission dispute resolution committee barred Sonko from contesting on grounds that he was impeached he can not eligible to hold public office.

Sonko, however, says he was challenged the impeachment and a hearing is pending before the Supreme Court.

Sonko wants in the appeal for the high court to temporarily bar the electoral body from publishing names of candidates seeking to contest the Mombasa county gubernatorial seat, pending the determination of the application.

The former city boss also wants the court to compel IEBC to furnish court with copies of the degree certificates as submitted to the county Returning Officer.

Sonko told the court that he was nominated by the Wiper Party as its candidate for the Mombasa County Gubernatorial candidate seat in the coming general election.

IEBC chairmen Wafula Chebukati had issued a media statement purportung Sonko was disqualified feom contestinf for the seat of Mombasa Governor

He presented his papers before Mombasa Returning Officer Swalha Ibrahim Yusuf at 2:30 pm as per IEBC checklist.

BUSINESSMAN JARED OTIENO AND OTHERS DENIES FRESH SH300 MILLION GOLD FRAUD CHARGES.

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Businessman Jared Otieno and Philip Nashon Ng'ru Aroko before Milimani chief Magistrate court where they pleaded not guilty to obtaining 300 million from a Chinese businessman on Tuesday May 21,2019./PHOTO BY S.A.N.

BY SAM ALFAN.

Flashy businessman cum politician Jared Kiasa Otieno has been charged afresh with fraudulently obtaining Sh300 million in a fake gold scam.

Otieno alias Jonathan Tololwa was charged alongside Philip Nashon Ng’uru Aroko alias Benson Mutola, Ricky Thomas Ochieng alias Tom Okoth, Dillon Kibet  and Paul-ine Adhiambo Odok alias Rose Adhiambo Omamo.

The charges stated that they conspired to defraud Simuong Group Company from Lao of Sh300 million by means of fraudulent tricks.

It is alleged that they displayed heavy steel boxes allegedly marked with genuine foreign currencies between February 8 and 28, 2019 in Nairobi County, an offence they jointly with others not before court.

The court heard that they claimed they owned a company office trading as Nirone Safe Keeping ltd, claiming that they were engaged in a genuine foreign currency business.

Otieno, Aroko and Odok were further accused that between February 7 and 28 in the year 2019, they obtained Sh300 million from Simuong Group company ltd of US $2 million as a loan for payment within a month.

They allegedly presented themselves as Jonathan Tololwa, Benson Mutola and Rose Adhiambo Omamo, with intent to defraud.

The three were also charged with obtaining Sh100 million from the same company with intent to defraud. The money was purported to be as security to offer a loan, a fact they knew to be false.

Sixteen other persons denied charges of preparation to commit a felony when they appeared before Milimani Chief Magistrate Wendy Kagendo.

The charges stated that they were found in a building designed as the office of Nirone Safe Keeping ltd with intent to commit a crime, an offence they allegedly committed on May 13, 2019 at Kaputei gardens plot No.12 in Kileleshwa in Nairobi County.

COPS ACCUSED OF ASSAULTING LAWYER GIVEN THREE DAYS TO SETTLE CASE OUT OF COURT.

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Police Officers Benedict Mugo and Moses Labu Kangere before Milimani Chief Magistrate courts./PHOTO BY IRENE ONYANGO.

BY IRENE ONYANGO.

Two police officers accused of assaulting an advocate have been given up to Monday to settle the case out of court or face charges in default.

Chief magistrate Wendy Kagendo granted Benedict Mugo and Moses Labu Kangere until June 27 to try alternative dispute resolution mechanisms.

It is alleged that the two police officers assaulted Mr Joseph Kinuthia Nyambura on January 23, 2022 at around 12hrs within Dandora Police Station in Kamukunji sub-county, Nairobi County. The police officers allegedly caused the advocate body harm.

Lawyer Omari, who is the victim’s employer, appeared as a friend of the court and requested for an out-of-court settlement.

The matter will be mentioned on Monday. 

COURT CLEARS ONE HURDLE FOR SONKO IN RACE TO BECOME MOMBASA GOVERNOR.

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Wiper Party Leader Kalonzo Musyoka with Wiper Mombasa Gubernatorial candidate Mike Sonko at Milimani Law Courts building./PHOTO BY S.A.N.

BY SAM ALFAN.

The High Court has dismissed all petition seeking to bar former Nairobi governor Mike Sonko from contesting the forthcoming polls stating that the case was filed prematurely.

The former City boss is the Wiper Party Mombasa Gubernatorial candidate. Opinion polls indicates Sonko has high chances of becoming the next Mombasa Governor.

A bench of three judges ruled that the petition against Sonko, Paul Thang’wa and Nakuru Town West MP Samuel Arama, is a pre-election issue and should have been filed before the Independent Electoral and Boundaries Commission (IEBC) dispute resolution committee, before moving to the High Court.

Justices David Majanja, Chacha Mwita and Mugure Thande said since the matter had been presented before the dispute committee, it should run its course. “The jurisdiction of this court should not be invoked until that process is exhausted,” the judges said.

“We find and hold that petitions relating to the nomination process concerning Miko Sonko, Paul Thang’wa and Samuel Arama are premature. We therefore decline jurisdiction”, ruled judges. 

The committee separately barred Sonko and Thang’wa from contesting, saying they had been impeached. Sonko has already filed an appeal saying a case challenging his impeachment is pending before the Supreme Court.

A total of nine petitions had been filed before the bench seeking interpretation of various chapters of the constitution.

The petition against Sonko was that he is disqualified from holding any other State office including the office of the Governor of Mombasa County.

The court heard that any person who has been dismissed or otherwise removed from office by way of impeachment or through other disciplinary procedure is disqualified from holding State office.

The petition said Sonko is therefore barred from being elected, appointed, designated, employed or otherwise recruited to serve in any other state office.

On Thang’wa, the court heard that he was impeached as the Kiambu county executive committee member for Youth Affairs, Sports, ICT and Communication in 2019.

Although Mike Sonko admits that his impeachment was upheld by the High Court and the Court of Appeal, he contends that the petitions are premature because the petition is pending before the Supreme Court.

“The net effect of this decision is that pre-election disputes such as those regarding suitability and eligibility for nomination of candidates, must be resolved by the IEBC in the first instance. The High Court’s jurisdiction is only triggered once the IEBC makes a decision on the issue,” the judges said.

The judges said the Supreme Court has emphasised before that the issue of the suitability of a candidate ought to be brought before the IEBC in the first instance and pursued from there.

AUNT BATTLES NEPHEW OVER PARCEL OF LAND IN DAGORETTI.

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Rachael Nduta before High Court during hearing of the land dispute between her and her nephew/PHOTO BY IRENE ONYANGO

BY IRENE ONYANGO.

A woman fighting over a parcel of land with her nephew has claimed that the disputed plot belongs to her having been given by her late father.

Rachael Nduta told Justice Ogutu Mboya that before her father died, he subdivided his land among his five children. She was given the portion, which is being claimed by Raoul, who has been residing in the United Kingdom.

The woman told the court that she later erected a house on a piece of land. The land in question is situated in Uthiru Township in Dagoretti.

Raoul Emanuel Muchene on his part claims that his aunt developed her portion and continued occupying his piece, taking advantage of his father’s demise and his absence since he lives in the UK.

Raoul’s lawyers Danstan Omari and Omayio Arang’a told the court that the aunt took advantage of the nephew’s absence to unlawfully and forcibly detain his share of the land.

Muchene he was duly registered as the absolute proprietor of the piece of land situated in Uthiru Township and more particularly known as Dagoretti/Uthiru/884(mother tittle).

It is Muchene case that when he demanded that Nduta surrenders the same,she filed a case against him in Milimani Chief Magistrate ‘Civil Case No.993 of 2016,which suit was dismissed.

Muchene avers that even though his Aunt case was dismissed by the magistrate courts, she had remained adamant and refused to vacate his property and at times using vigilante boys to bar him from taking over possession of his property.

Muchene’s efforts to recover their property and develop the same have now hit a snag with Nduta’s refusal to vacate the same,even though she continues to reap the benefits of her own property which she developed while sitting on and refusing to vacate Muchene’s property.

Nduta however claims that she only took possession of what was rightfully given to her which was the house located at the land of her brother. She further states to the court that her late father, Caxton, in the presence of her siblings assigned her brother the land with conditions that the house would permanently belong to her.

“I left my husband and came back home to my father where I was given a house together with my children. When my father was allocating us lands later in 1986, my brother was assigned the land that the house I was staying in but with a condition. That house therefore is rightfully mine because I was entitled to it by my father,” said Rachael.

Nduta wants the court to declare that there exists a customary implied trust over that entire house,development erected on the suit property. AND /OR in am alternative a declaration that Nduta is entitled to the said parcel of land under the doctrine of adverse possession.

She also wants to issue permanent injunction restraining Raoul and the father or any one acting under their instructions from evicting,selling,transferring or interfering with the suit property.

The court has allowed both the plaintiff and the defendant 21 days to serve their written submissions and avail the same in court as a hard copy.

The case will be mentioned on September 27, 2022.

POLICE GIVEN GREENLIGHT TO CONTINUE DRAFTING CHARGE SHEETS.

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Director of Criminal Investigations George Kinoti.

BY SAM ALFAN.

The appellate court has suspended a decision barring investigating agencies from drafting charge sheets for suspects appearing in court to face criminal charges.

Court of Appeal Justices Daniel Musinga, Fatuma Sichale and Agnes Murgor suspended the High Court decision issued last month, pending determination of an appeal filed by the Director of Criminal Investigations George Kinoti.

“We hereby grant an interim stay of the execution judgement of Mrima J in Nairobi Petition No. E495 of 2021, Geoffrey Kaaria Kinoti & Others v The Chief Magistrates’ Court & Others, except in so far as the judgment relates to the charges and liberty of all the accused in Nairobi Chief Magistrates’ Court Criminal Case No. 1333 of 2019 who have already been discharged by the trial court,” ruled appellate judges.

Kinoti challenged the High Court’s decision saying it has far-reaching consequences in the criminal justice system.

The DCI boss said the conduct and determination of numerous criminal cases have been thrown into legal uncertainty, affecting the entire criminal justice system. He said the judgment should be suspended, as the consequences are irreparable.

Attorney General Kihara Kariuki, Inspector General of Police Hillary Mutyambai also supported Kinoti’s application.

“Unless a conservatory order staying the execution of the judgement and orders of the superior court of May 23, 2022 in Nairobi Constitution petition No E495 of 2021 is granted pending the hearing and determination of the substantive appeal, the appeal if successful, will be rendered nugatory,” says DCI Kinoti.

The DCI boss argued that it would be in the greater public interest to suspend the decision and orders as the stalemate occasioned by the said judgement is a threat to the national security in that people who have committed criminal offences cannot be urgently charged in court.

Mutyambai said thousands of investigated cases were affected by Mrima’s judgement and the court should take judicial notice that the country is in an electioneering period.

The police boss added that the entire security apparatus and criminal justice system are supposed to be effective and this cannot be achieved with the legal uncertainty occasioned by the said judgement.

“The applicant and the general public will suffer prejudice if orders sought are not granted for the same are sought in public interest and stability of a country is dependent on a robust criminal justice system and this has been compromised by the legal uncertainty brought about by the said judgement,” IG Mutyambai told the appellate court.

The IG further argues that if the decision and orders of the superior court are not suspended pending the determination of the intended appeal, the same may be rendered nugatory as the grave and adverse implications of the decision of the court will have taken effect.

SAKAJA NOW WANTS CUE CHAIRMAN JAILED FOR CONTEMPT OVER HIS DEGREE SAGA.

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United Democratic Alliance (UDA) gubernatorial candidate Johnson Sakaja before IEBC Dispute Resolution committee.

BY NT CORRESPONDENT.

Nairobi Senator Johnson Sakaja now wants the chairman of Commission for University Education Chacha Nyaigoti jailed for contempt of court.

The legislator said in an application that Prof Nyaigoti should be arrested and jailed for six months over contempt of court for commenting on his academic papers while the matter was in court.

“The Court be pleased to commit Prof Chacha Nyaigoti-Chacha, the Contemnor to imprisonment for a period of six months at Kamiti Maximum Prison,” said Sakaja.

According to the Nairobi gubernatorial candidate, Prof Nayigoti addressed the media on June 17, 2022 at 7pm, Chacha, and said the statement he issued amounted to a mockery and contemptuous of the court’s order, which was served to the commission.

He said Prof Nyaigoti addressed the press conference in his capacity as the Chairman of the Board of CUE.

He said on June 20, Prof Nyaigoti released a signed press statement to all media houses, where he ostensibly made reference to Sakaja’s matter in contempt of the court orders.

The Senator said Prof Nyaigoti stated, “We want to let Sakaja know that the Commission for University Education is the only Institution mandated in law to recognize foreign earned degrees in order to allow IEBC to issue them with nomination to run as Governor, Deputy Governor, President or Deputy President. Any other method he wants to use will not stop us from fulfilling our mandate as provided for by the law. The Commission wants to reiterate that the revocation of his purported degree still stands”.

He said the chairman proceeded to issue a press statement in utter disregard of the orders of the court, blatantly and arrogantly stating that he will not obey the orders requiring him and the commission to maintain the status quo.

Sakaja said the statement in reiteration not only confirms Prof Nyaigoti’s contempt, disregard and disobedience of the court orders but it also amounts to a direct challenge and dare of the court’s authority.

Sakaja also accuses CUE chairman of summoning him in a bid to cosmetically and belatedly try to cure the defects of the process.

He said that unless he is cited and punished, Prof Nyaigoti will continue to ignore, demean, assume and belittle not only the court order but also the authority of the court.

“An order of the court is not a mere suggestion but rather a binding directive that is issued after ample judicial reflection and circumspection, hence the need for utmost compliance by all persons. The Contemnor herein is no exception,” Sakaja states.

SUDI’S TRIAL ADJOURNED HANDING THE MP TIME TO CAMPAIGN FOR HIS RE-ELECTION.

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Kapsaret Member of Parliament Oscar Sudi before Milimani Anti-Corruption court./PHOTO BY S.A.N.

BY SAM ALFAN.

Kapsaret Member of Parliament Oscar Sudi has been handed a relief after the anti-corruption court suspended the hearing of his forgery case.

The prosecution requested for adjournment of the case since the lead prosecutor Joseph Riungu will be engaged in the Tribunal appointed by President Uhuru Kenyatta to probe High Court Judge Said Chitembwe, who has been suspended over gross misconduct.

Trial Magistrate Felix Kombo pushed the case to September 7 when two remaining witnesses are expected to testify.

The court also heard that a state witness that had been recalled to testify today was unable to make it in court on time.

The Magistrate ruled that it is prudent that the two remaining witnesses (documents examiner and investigating officer) testify after all other witnesses have given their evidence.

“The remaining witnesses bear crucial evidence and it would be prudent to have them testify in the presence of both parties,” said Magistrate.

Sudi’s lawyer George Wajackoyah was also a happy man because the adjournment would give him time to campaign for his presidential bid.

He told the court Kenyans should not be surprised that he might be the next president of Kenya and the first president to appear in court to defend his client.

While taking the September dates Wajackoyah told the court that a win for him in August would mean that he would be busy the following months, with the selection of cabinet secretaries.

Sudi is accused of forging a diploma certificate in Business Management purporting it to be a genuine document issued by the Kenya Institute of Management.

The MP is facing other counts of giving false information to an Independent Electoral and Boundaries Commission (IEBC) officer and the EACC.

He is said to have presented the certificates to the two commissions with the intention of deceiving them.

Sudi allegedly provided false information to Derrick Kaisha, an officer of EACC, at Haron Court Hotel, Nairobi County, in September 2015.

The legislator is also accused of making a false declaration under oath through a self-declaration form to IEBC at Barng’etuny plaza in Eldoret on that date.

This was contrary to Section 46(1)(d) as read with Section 46(2) at the Leadership and Integrity Act

TOP COURT TO HEAR SONKO’S APPEAL AS KANANU’S CLAIM OF LATE FILING IS REJECTED.

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Mombasa Gubernatorial candidate Mike Sonko with his runningmate Ali Mbogo./PHOTO BY S.A.N.

BY SAM ALFAN.

The Supreme Court has confirmed that an appeal filed by former Nairobi governor Mike Sonko challenging his impeachment was done within the stipulated time.

The Registrar of the Supreme Court Letizia Wachira says contrary to the affidavit filed by the Nairobi County Governor Anne Kananu to the effect that the appeal was filed out of time does not hold

In a letter to parties set to appear before the top court for the hearing of Sonko’s appeal, the Registrar Letizia said the appeal was filed on April 4 and presented at the court’s registry on May 20.

The response was prompted by an affidavit filed by Nairobi county boss Ann Kananu and a letter by her lawyers saying the case was filed outside the stipulated time frame.

“Kindly note that this appeal was lodged in our online system on the April 4, 2022. The hardcopy of the petition was presented to the registry on May 20,2022 and our ICT officers have checked our online filing system and confirmed that there has been no change or attempt to change the filing date,” states the Supreme Court Registrar.

Kananu who seems to be going after her former boss, filed an affidavit supporting the application by the IEBC seeking to strike out Sonko’s appeal.

In her affidavit she says she agrees with the IEBC statement that the notice of appeal not lodged nor served renders ineffective of any subsequent act.

She had also stated that Sonko’s appeal was filed outside the prescribed timeframe provided under Supreme Court rules without leave of the court.

The Wiper party nominee for Mombasa gubernatorial seat has a pending appeal before the Supreme Court, seeking to overturn the decision to impeach him.

“My petition is properly before Supreme Court and the same ought to be determined on merit,” Sonko said in an affidavit.

Sonko moved to the Supreme Court after his appeal was dismissed by the appellate court in April, saying he was properly removed and there was a substantive governor in office.

The former Governor has maintained that his impeachment was illegal and the court should determine whether it was done as required by the law.

He has further argued that his successor unlawfully and unconstitutionally assumed the position of the deputy governor, and her assumption to the governor’s office was against the law and the constitution.

Sonko has vowed to pursue the decision of IEBC Dispute Resolution committee dismissing his complaint against Mombasa Returning officer for declining to receive his clearance documents on grounds that he was impeached as Nairobi County Governor.

CJ KOOME URGES JUSTICE SYSTEM TO BE PRO-POOR.

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Chief Justice Martha Koome.

BY SAM ALFAN.

Chief Justice Martha Koome has challenged the justice sector to protect the voiceless, the weak and the vulnerable in society.

Justice Koome said the justice system must be responsive and alive to the realities of the people and offer tangible and substantive justice that speaks to their concerns, vulnerabilities and pains.

According to the CJ, the justice sector must come up with and promote initiatives and interventions that are aimed at responding to the people’s social needs, including their plight and cries for justice.

Justice Koome, who was speaking when she opened the National Alternative Justice System (AJS) conference, said the mission of the justice system is to give life to the Constitution and in the process, generate social transformations that reduce the gap between constitutional promises and real life.

“We are expected to embrace a responsive role to respond promptly to the ordinary citizen’s quest for justice by providing a solution to their claims of injustice. It also means that access to justice should be easy and cheap enough to be afforded by even resource-poor individuals or groups,” she said.

She said all persons, especially the marginalised and vulnerable in society, expect that the doors of justice will be opened and remain ajar when they seek a solution to their grievance and protection of the law.

“I have always believed that all of us are Agents of justice. What I mean by this is that all of us, as individuals and within our communities, have the capability of resolving any disputes or conflicts that we have between ourselves in our communities. It means that we should not see courts as the “sole” institutions or places where justice resides”, she added.

The Chief Justice said the idea is nothing new but reflects the reality that our communities going all the way to pre-colonial times to contemporary times have always had indigenous systems of justice that operate outside the strictures of state institutions.

“Indeed, most of our communities emphasised social harmony as the overriding ideology of social organisation. It is pursuant to this that the communitarian ethos of “Utu” or “Ubuntu” as it is called in Southern Africa is observed in our communities”, she said.

She added that the foundation of the “Utu” philosophy is basically that all humans are symbiotic. We are all human simply because we all belong to, participate in, and have stakes in our respective human societies. In societies upholding Utu, maintaining constructive social relations is a communal undertaking to which every person is committed. “Thus, we are called upon to be Agents of justice and resolution of societal conflicts in our communities”.

It is in appreciation of this reality that the 2010 Constitution envisages a broad dispute resolution system. Article 159(2) of the Constitution points us to the possibility of open-ended pursuit of justice beyond the confines of state institutions and It does this by commanding the Judiciary to promote the use of alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.

“These alternative forms of dispute resolution allow for the resolution of disputes outside the courts. By commanding us to embrace the multi-door institutional approach to the pursuit of justice, the Constitution is alive to the need for efficient and timely delivery of justice”, said CJ Koome.

The multi-door approach to justice has the potential of deepening access to justice. The desirability and utility of this approach is that it has the potential to address the concerns around the cost-effectiveness and speed of delivery of justice.

She said by channeling a significant number of disputes for resolution outside the courts, the justice system will avoid the current problem of courts that are swamped and paralysed with disputes that might be better resolved elsewhere. She pointed out that family disputes are better resolved in a non-adversarial process.

“Mediation and reconciliation processes, including those conducted within our traditional justice mechanisms, would be ideal for resolution of family disputes given that they are collaborative processes that foster long-term relationships. In contrast, court litigation takes an adversarial approach therefore tends to work against maintaining social harmony,” she added.

Koome said the ‘Social Transformation through Access to Justice’ vision of the Judiciary takes seriously and embraces the constitutional command that the Judiciary should dig up our indigenous systems of justice by promoting the use of traditional dispute resolution mechanisms.

“We believe that the AJS offers an appropriate and effective system of justice to our people given that our communities have used elements of facilitated consensus-building in dispute and conflict resolution outside state structures for centuries”, she added