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COPS ACCUSED OF MURDERING TWO CIVILIANS IN GARISSA GRANTED BAIL.

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BY NT CORRESPONDENT.

Two police officers accused of killing unarmed civilians in Garissa County three months ago have been released on a cash bail of Sh500,000 each.

Milimani High court judge James Wakiaga also gave Adan Ibrahahim Salat and Abdirahman Roble Samow an alternative bond of Sh1 million with two sureties of similar amount. 

“I have considered submissions by parties involved in the case who includes the victims family represented by lawyer Bryan Odhiambo and order the two accused persons to be released on bail,” ruled Wakiaga.

The judge released them on bail on conditions they deposit in court their passports and not to interfere with witnesses set to testify in the case. They were also barred from traveling to Garissa, where they are accused of shooting dead two people in July.

The officers had applied to be released on bail pending hearing and determination of their murder trial.

They argued that they will abide by all conditions set by the court one released on bail. 

Salat and Samow said they are family men and not a flight risk.

Director of Public Prosecutions had vehemently opposed their release on bond arguing that the charges they were facing were serious with serious penalty if convicted.

The two officers have since denied that on July 25 this year at Soko Ngombe Area of Garissa Township in Garissa sub-county, they jointly murdered Aden Abdi Madhobe and Mudhidin Aden Mudhow.

The prosecution was apprehensive that the two officers might interfere with key witnesses who are members of the Garissa township community living with their families and conducting businesses in the area.

The court was told that the families of the deceased persons also reside in the same area and are eager to give their testimony and see the court dispense justice.

Further, the prosecution said the court and the wider criminal justice system has a duty to ensure the protection of victims of crime and provide a platform for their views to be provided to court.

The prosecution had also told the court that taking into account that the accused persons are police officers who can access weapons or use other means of causation against them and their families.

Prosecution also added that there has been public anger in relation to acts of police abuse within the country which have caused deaths of innocent Kenyans.

WIN FOR SENATE AS COURT ASSERTS NEED TO BE CONSULTED OVER PASSAGE OF BILLS.

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BY SAM ALFAN.

The battle of supremacy between the National Assembly and the Senate over the concurrence of the speakers of both houses before passing certain bills has now been settled with the High Court nullifying 23 pieces of legislation.

A bench of three judges ruled that the laws, which were passed by National Assembly without consulting the Senate, were a nullity.

“A declaration be and is hereby issued that where the Speakers of the House concur that a Bill is one that concerns Counties, pursuant to Article 109(4), the Bill must be passed in accordance with Articles 110 to 113, 122 and 123 of the Constitution and the Standing Orders of both Houses and is not subject to Article 114 of the constitution,” the court ruled.

The bench led by presiding Judge, Justice Ngaah Jairus, Anthony Ndungu and
Mumbua Matheka made a decision that the Speaker of the National Assembly must involve the Speaker of the senate.

Today’s decision settles a contest between the two houses and reinforcing Senate’s argument on the requirement to be consulted by the National Assembly.

The judges also declared that the provisions of Standing Order 121(2) of the National Assembly Standing Orders is inconsistent with Articles 109(4), 110 to 113, 122 and 123 of the Constitution and is therefore null and void.

“A declaration be and is hereby issued that Standing Order 143(2) to (6) of the National Assembly Standing Orders is inconsistent with Articles 109(4), 110 to 113, 122 and 123 of the Constitution and is therefore null and void”, ordered further.

The Court further declared that an Act of Parliament has to comply with the legislative process required of both Houses by participation of both Speakers as required under Article 110 (3) of the Constitution.

Some of the bills affected include the Computer Cyber Crime Act, Finance act 2018.

However, the court suspended it decision to nullify the Bills for nine months to allow the senate and the national assembly to comply with the law.

“In the circumstances of this case we shall suspend our orders nullifying the impugned Acts for a period of 9 months from the date of this judgment within which period the respondents ought to have complied with the provisions of Article 110 (3) of the Constitution and regularised these Acts and in default they stand nullified. Orders accordingly”, said the judges.

The bills that have been declared unconstitutional include The Public Trustee (Amendment) Act, Building Surveyors Act, 2018, Computer Misuse and Cybercrimes Act.

Others are The Statute Law (Miscellaneous Amendments) Act 2018, The Equalisation Fund Appropriation Act, 2018, The Sacco Societies (Amendments) 2018, National Youth Service Act, The Sports (Amendment) Act and The National Cohesion (Amendment) Act.

Senate moved to court against National Assembly challenging the laws passed without their involvement arguing that a number of them relate to counties and the devolution process.amd therefore they should be involved

COURT ORDERS REMOVAL OF MOMBASA BUSINESSMAN FROM DISPUTED PLOT.

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BY SAM ALFAN.

A Mombasa court has directed the police in Makupa to remove a businessman from a disputed property in the coastal town, pending the determination of the long-running case pitting a woman and her relatives.

Principal magistrate Lesootia Saitabau directed the officers at Makupa Police station to verse the removal of Jeylani Omari Abu from the property along Tom Mboya Avenue in Mombasa.

“That temporary injunction is restraining the 5th defendant ( Abu) whether acting by themselves, servants, agents or any person acting on their account from interfering, trespassing, encroaching carrying out groundwork’s, building constructing, staying or interfering in anyway with the plaintiff’s property,” the court ruled.

Documents filed in court showed that Shamsha Abdulrahman Bin Miran is the sole surviving daughter of Abdulahman Miran, who died on March 16, 1976 leaving behind a will that was registered in court.

Pursuant to the will, and a succession case, Shamsha was named the beneficiary of the estate, including the land in Mombasa.

She said in 2011, her nephew and niece, Asha Abdalla Abdulrahman a Miran and Mohamed Abdalla respectively, moved to the High Court in Mombasa, alleging the Miran died without a will and that they were the only surviving heirs to the estate.

They also purported to distribute Miran’s other properties among themselves.

They also filed a death certificate to support the grant of letters to administer the estate in March 2012. The grant was confirmed on November 1, 2012, stipulating the modality of sharing the property.

The property was transferred to their names but she has written to the police to investigate the forgeries of the death certificate.

When she discovered the move, Shamsha moved to court seeking to quash the grant and in August 2015, the High Court issued an order restraining the two from wasting or disposing the property.

The parties later recorded a consent in court in October 2018, revoking the grant on the grounds that it was procured through fraud and concealment of facts.

The property in contention was later transferred to Mohamed Adam for Sh10 million.

Last year, Adam allegedly transferred the property to Abu. Shamsha said she had filed a complaint of forgery before the Makupa Police station way back in 2015 but no action has been taken for the past five years.

She later lodged a caveat with the Chief Land’s registrar, while the case was pending in court.

Shamsha is seeking a permanent injunction, barring them from laying claim on the property and for the court to declare them trespassers.

She also wants the court to restore the property to the estate of Miran and she be compensated for damages. This was after the new owners demolished a building on the property and started new construction.

“The defendants have since refused to vacate from the property, albeit incessant pleas for negotiations and demands and notice of intention to sue continue to waste my land,” she said in an affidavit.

UN AWARDS JUSTICE KOOME FOR DEFENDING CHILDREN RIGHTS.

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BY SAM ALFAN.

Court of Appeal lady Justice Martha Koome has received a Runner-up Award as United Nations Kenya Person of The Year 2020.

The appellate judge was recognized for her advocacy for the rights of children in conflict with the law as well as child victims.

In her acceptance speech Justice Koome said that she was grateful that it was not only those ordinary mwanachi on the streets who had noticed her work for children but also the UN had noticed that she spoke and worked for children.

“In accepting this nomination, I do so to celebrate and affirm that our children are indeed a gift from God, our bridge to the future and we owe them a duty of care. All of us stand in a position of local parents for a child in the streets, in a remand home, in schools and everywhere,”she said.

Koome added that “If a child is not in a good place, it is because of failure of a system in the society. This is the message I spread that our children our collective responsibility.”

The Judge has been chairing the NCAJ Special Task Force on Children matters that has highlighted the plight of children in the Justice system.

The Task Force mobilized and coordinated other stakeholders and reviewed the Children’s Act to align it with the Constitution of Kenya 2010, it developed practice directions to deal with children during Covid 19 pandemic.

The Task force sourced for laptops which were supplied to Children’s remand homes to enable them conduct virtue hearing of cases without having to transport children in court.

The Award was introduced in 2002 as the collective UN family of agencies honour to an individual and/or an institution for succeeding to bring to public notice significant issues related to the Sustainable Development Goals which are sustainable and serve as an inspiration to all Kenyans, and in keeping with the ideals of the UN.

BUZEKI SEEKS OUT-OF-COURT DEAL IN SH105 MILLION DEBT.

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BY SAM ALFAN.

A fight between two law firms has derailed plans to settle a Sh105 million debt between politician Zedekiah Bundotich Kiprop, popularly known as Buzeki and a warehousing firm.

Documents filed in court showed that Buzeki and Landmark Conveyors had reached out-of-court settlement plans in September.

However, Gikandi & Company Advocates now wants to be allowed to complete the deal with Landmark, leaving out P.I Samba & Company Advocates, a firm which jointly represented Buzeki Enterprises ltd.

“That given the contents of the letter, the defendant is left with no option but to request this court to allow the firm of Gikandi & Company advocates to formally come on record and take over the case from P.I Samba & Company Advocates,” stated an affidavit of Diana Bundotich.

Gikandi Ngubuini has supported the application saying he will proceed with the deal and settle the dispute fully and amicably.

“In the circumstances I seek for permission to come on record in this matter and be allowed to fully represent the defendant’s best interest,” Ngubuini said.

He was handling the matter jointly with P.I Samba. Which the latter doesn’t want joint representation. Diana Bundotich.

In the dispute, Landmark had sought to auction some 53 trucks and trailers belonging to Buzeki over a debt of Sh105 million.

Justice Msagha Mbogholi had last year allowed Landmark to auction the vehicles to recover the money after Buzeki reneged on a mutual agreement recorded in court in November 2018 which required the company to settle its debt in monthly installments.

The debt stems from a deal in which Buzeki agreed to sell two pieces of prime land worth Sh340 million in Mombasa County to the warehousing firm in August 7, 2015

Landmark paid Buzeki Enterprises Sh105 million for the deal in which the transport firm was expected to discharge a mortgage accrued in one of the properties after receiving the deposit but failed to do so. Buzeki later asked Landmark to review the agreement, forcing the latter to demand a refund of its money.

Landmark moved to court and successfully managed to attach the 53 trucks and trailers in contention.

In the consent to be filed in court, Buzeki had agreed to pay a first instalment of Sh45 million. Subsequently, the transport firm would pay a monthly instalment of Sh2 million on the 16th of every month, until payment in full.

Buzeki was also required to withdraw an appeal, which is pending before the Court of Appeal. The parties had also indicated that failure to honour the deal as agreed would signal Landmark to auction the lorries.

REPRIEVE FOR CHEMICALS COMPANY IN LEGAL FEE DISPUTE.

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BY SAM ALFAN.

Twiga Chemicals Industries has been spared seizure and sale of it’s assets over a debt of Sh70 million arising from legal services offered to the company over a decade ago.

The Court of Appeal issued a temporary reprieve to the company stating it’s appeal was arguable.

A bench of three judges stopped the law firm of Gichuki King’ara & Co. Advocates from demanding the money, pending the determination of the appeal filed by the chemical company.

The Judges said in the ruling that there is no guarantee that it will be compensated by way of damages, in case the appeal succeeds.

Further, the judges said it would be a financial burden for the company to recover the money.

According to the Judges, the company’s assets were likely to be attached and auctioned by the law firm in a bid to recover the money, hence the loss will be irreparable.

“The applicant (Twiga Chemicals) has demonstrated an arguable appeal which will be rendered nugatory should stay of execution not be granted,” said Justices Asike Makhandia, Kathurima M’inoti and Fatuma Sichale.

The company through its director Hezekiah Mwangi Macharia, indicated that it had instructed the law firm sometime in 2006 to act for them in a court case involving a 507-hectare land.

However, their relationship deteriorated and the law firm, which is ran by lawyer Peter King’ara, ceased to act for the company before the determination of the case.

Macharia said on September 1, 2017 the law firm filed an Advocate-Client Bill of Costs seeking Sh77 million in legal fees with Sh28.9 as instruction fees.

But he said the amount was founded on a speculative figure of Sh1.5 billion as being the value of the land.

However, the court Deputy Registrar taxed the advocate/client bill of costs at Sh5.3 million.

Both parties were aggrieved by the Deputy Registrar’s decision and sought to have the same reviewed at the Environment and Lands Court.

Justice Elijah Obaga allowed the application of the law firm while that of the Twiga Chemicals was dismissed. This forced Twiga Chemicals to move to the Appellate court, as the lawyer’s claims of fees had sailed through.

While opposing the company’s request to have his demands suspended, lawyer King’ara told the judges that the company had failed to disclose some material facts.

He pointed out that the company had been given over one year by the judge to file its written arguments but it failed to do so.

The lawyer said the suit property is approximately 507 hectares and the approximate value at time of filing suit was Sh1.5 Billion.

He observed that the company’s application was a calculated attempt to deny his law firm it’s hard earned fees.

However, the judges noted at the centre of dispute is an email dated April 22, 2016 which indicated the estimated value of the property to be Sh1.5 billion. The estimated valued was used in determining the legal fees.

The lawyer had argued that it is trite that in the absence of the value of the subject matter being determinable on the pleadings, judgment or settlement, the taxing officer (Deputy Registrar) can use the estimated value of the suit property and consider any document presented for such determination.

But according to the appellate judges the question on whether the email was admissible or not is arguable issue which would have been rendered nugatory.

PARENTS TO KNOW WHETHER SCHOOLS SHOULD RE-OPEN FULLY NEXT MONTH.

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BY SAM ALFAN.

The High Court will next month decide whether it will compel the government to fully reopen schools.

Justice James Makau said he will deliver his judgement on November 19, 2020.

The petition was filed parents challenging the decision by Education CS George Magoha to close schools without complying with the law.

The judge adjourned the case several times since August 2020, waiting for evidence from Prof Magoha on the reasons for closure and spread, testing, and fatalities among school enrolled children on Covid-19.

The Court had granted Attorney General more time to furnish the court with the evidence, without much success.

State Counsel Momanyi Moimbo made repeated requests for adjournment, to enable him file the evidence.

At last he submitted an affidavit by Health CS Mutahi Kagwe, which was filed in a separate case, not related to closure of schools.

The AG’s failure to file documents in reply incensed the Petitioner, who castigated the Health CS.

He submitted that the CS was prominent in giving press and mass media update on Covid-19 outside the Clcourt process, but was totally averse to filing anything under oath to back up his claims, to enable the court rely in it’s judgement.

Lawyer Harrison Kinyanjui told the court that the government had not cited any single medical report to support the allegations he was making in the public about the spread and fatalities but his remarks were loaded with scaremongering statistics rather than hard evidence.

In the case, the petitioner cited Tanzania’s school going children saying they were a living example that Kenya’s children are being subjected to an irrational situation by the State, while denying them their right to Education.

Moimbo countered arguing that Kenyans were at risk of a second wave of Covid-19.

He was, however challenged to offer evidence, by verifiable data that could assist the Court.

Justice Makau then stated that he could not adjourn the case further, and being a case of great public importance, he said he will deliver his judgement on November 19.

The Court extended the order barring the government from rolling out Community Based learning which the State had attempted to start in September 2020.

DPP TO DROP CHARGES AGAINST 14IN KISUMU MALL SCAM.

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BY NT CORRESPONDENT.

Director of Public Prosecution Noordin Haji is considering dropping charges against 14 people facing graft charges in the alleged loss of the Sh4.2 billion Lake Basin mall scam.

Appearing before trial magistrate Douglas Ogoti on Tuesday, the DPP said he intends to use the 14 as witnesses in the trial. He said he needed more time to make a formal application and prepare statements from the 14 people.

CM Ogoti allowed the DPP’s request for more time as he also considered transferring the case to Kisumu law courts for hearing and determination as requested by accused persons.

Ogoti directed the case to be mentioned virtually on December 1 for the prosecution to give his directions on the matter. 

At the same time, state counsel James Kihara informed the court that Haji has since instructed him to drop charges against Boniface Orori Simba, one of the accused persons.

He said Orori has since been made a state witness and is expected to give evidence against Onyango Oloo, former LBDA managing director Peter Aguko, Bobasi MP Innocent Obiri and other suspects facing graft charges over the construction of the Lake Basin Mall.

“I have formal instructions from Haji to withdraw charges against the eighth accused person (Orori). This is after reviewing the evidence on record. The DPP has said he will be treated as a prosecution witness and before the l drop the charges l require him to record a witness statement with EACC,” said Kihara.

The state counsel further sought another ten days to record witness statements  with EACC for the accused persons who they intend to make state witnesses following the DPP’s decision to drop the charges against them.

The defence team led by lawyer Katwa Kigen did not oppose the application. “We can accord the state the said days. We urge the court to give us a mention date within which time prosecution will indicate which parties will be affected or not in their intended withdrawal of charges,” said Katwa. 

In the case Oloo is accused of conspiring with the contractors including Zeyun Yang and Zhang Jing, directors of Edermann Property Limited to defraud the public billions of shillings.

Erdemann property limited is accused of bribing Oloo, then the chairman of the board, with Sh17 million and other benefits including apartments and shops. 

Oloo, Aguko, the MP, Yang and Jing are charged alongside the Mall’s board members, tender committee members, and contractors among other suspects. 

They include Albert Ojango Omondi (Internal Auditor) Nelson Ouma Onyango (Production Technologist), Teresa Achieng Ochaka (Former Supplies officer)and Former board members  Micheal Obora, Denis Sebastian Mulaa, John Nyera mango  a director Chinese construction firm.

Oloo and Aguko are charged that that on between December 18 and 19, 2014 in Kisumu county the accused persons being members of the lake basin development authority board of directors jointly improperly conferred a benefit of Sh 1.3 billion to Erdemann property by irregularly approving the variation of the contract for the lake basin Development authority lower Kanykwar phase from Sh 2.4 billion to Sh3.7 billion.

MAN IN COURT OVER SH8.1 MILLION FRAUD.

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BY NT CORRESPONDENT.

A businessman has been charged before a Nairobi court with sh8.1 million fraud from a company.

Cliff Museti Obwogi appeared before Milimani Senior Resident Caroline Muthoni Njagi and pleaded not guilty to fraud charge.

Prosecution told the Nairobi court that  on diverse dates between January 5 and 17,2017 at Triple Agro Investments limited Ford Tena building in Kilimani in Nairobi, Obwogi  jointly with others not before court with intent to defraud obtained Sh 8.1 million from Kathiresan Naidu Subbramaniam.

He falsely pretended he was in position to supply donkey skins to Naidu a fact he knew was false.

The accused was released on a cash bail of Sh100, 000 pending hearing and determination of his criminal case.

BOOST FOR WITNESS PROTECTION AGENCY AS UN DONATES VEHICLES, OFFICE EQUIPMENT.

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BY SAM ALFAN.

The Witnesses Protection Agency (WPA) has received a boost after EU and a UN agency donated three vehicles and office equipment to the unit.

The donation of the four-wheel drive pickups, 10 digital voice recorders and three office safes were donated by the EU and United Nations Office on Drugs and Crime (UNODC), for immediate use by witness protection officers who provide daily support to protected witnesses across the country.

Operating since 2008, the mandate of WPA is to provide special protection, on behalf of the State, to persons in possession of important information and who are facing potential risk or intimidation due to their cooperation with prosecution and other law enforcement agencies.

WPA Director and Chief Executive, Alice Ondieki, thanked the EU and UNODC for the vehicles which she observed will boost field operations and alleviate the current shortage of utility vehicles for Nairobi, Mombasa and Kisumu operational regions.

“The support received so far will enable the Agency deliver on its mandate to the wider justice, law and order sector and the public at large while playing its critical role of protecting witnesses,” Mrs Ondieki said.

The vehicles and equipment are the latest example of support for WPA through the Programme for Legal Empowerment and Aid Delivery in Kenya (PLEAD), a partnership funded by the EU that is improving the delivery of justice services and use of alternatives to imprisonment.

The Agency performs a significant role in promoting the rule of law and enabling the administration of justice by protecting the safety and welfare of threatened or intimidated witnesses. It‘s satisfying for the European Union to provide these vehicles given the direct impact they will have on the mobility of Witness Protection Officers as they go about supporting their clients, as well as office equipment to support the Agency’s operations,” the EU Ambassador to Kenya, Simon Mordue, said during the ceremony.

Research and consultations by UNODC identified mobility as one factor affecting the delivery of witness protection services in the community, mainly due to a lack of suitable work vehicles.

“The Witness Protection Agency operates in often challenging circumstances. UNODC works closely with the Agency to respond to their priority needs for technical and practical assistance, and we’re pleased to have procured these vehicles, voice recorders and safes that will have a direct impact on their service delivery,” the UNODC Regional Representative, Dr Amado Philip de Andrés, said.