Blog

CITY ADVOCATE CONVICTED FOR STEALING SH16 MILLION.

0
Convicted lawyer Macmillan Mutiso Mutinda before Court./PHOTO BY S.A.N.

BY SAM ALFAN.

A city lawyer has been found guilty of stealing Sh16 million from a trading company.

Macmillan Mutiso Mutinda was convicted by trial magistrate Martha Nanzushi in absentia, after failing to appear in court.

The court went ahead and issued a warrant for his arrest.

He was found guilty of stealing the money from Katitika Trading company between 2013 and 2014.

“I find that the Prosecution case has met the beyond reasonable doubt threshold. I will proceed to convict the accused pursuant to section 215 of Criminal Procedure Code (CPC),” ruled the Magistrate.

In the 10 page judgement, Nazushi said that the lawyer didn’t deny having received the money and gave account of disbursement.

The court noted that the lawyer didn’t account for the balance and did not pay the complainants as it was to be in excess of Sh16 million.

The magistrate said the prosecution called seven witnesses to support their case and the defense had an opportunity to cross-examine them.

Lawyer Mutinda gave unsworn statement in his defence and did not call any witness.

Mutinda was charged that on the diverse dates between 10th November in the year 2013 and 30th June in the year 2014 at consolidated Bank Koinange street branch in Nairobi County being agent of Katitika trading company ltd stole Sh16,205,200 the property of the said company which came into his possession in account of being an agent of the said company.

SACCO ACCOUNTANT CHARGED WITH STEALING MILLIONS.

0
Tetra Pak Sacco accountant Nancy Kabuci Njagi before Kibera Court./PHOTO BY S.A.N.

BY NT CORRESPONDENT.

A savings and credit organisation accountant has been charged with stealing over Sh27 million from Sacco.

Nancy Kabuci Njagi, an accountant with Tetra Pak Sacco was charged with stealing the millions, which came into his possession by virtue of his employment.

He denied the charge when he appeared before Kibera Senior Principal Magistrate Electina Rihani.

Kabuci is accused of stealing Sh27,077,026, an offence he allegedly committed between January 2, 2012 and July 31, 2021 at Tetra Pak Sacco in Nairobi.

She was released upon posting bond of Sh4 million or alternative cash bail of Sh 3million

The case will be mentioned on 15 February.

Kabuci was arrested after Directorate of Criminal Investigations received a complaint from the Sacco manager Rose Kemunto Moenga.

TANZANIAN GETS ORDERS BLOCKING HIS REMOVAL FROM KENYA.

0
Tanzanian businessman Mueiz Ahmed Osman Bilal lawyer John Swaka outside Milimani Law Courts building./PHOTO BY S.A.N.

BY SAM ALFAN.

The High Court has blocked the government from deporting a Tanzanian businessman who lives in Kenya from the country.

Constitutional and Human Rights Court Judge Mugure Thande ruled that Mueiz Ahmed Osman Bilal should not be arrested or unlawfully deported to his Tanzania.

Osman operates business in Kenya and was to be deported after the government declared him a prohibited immigrant.

“An order is hereby issued to the 1st respondent (Director of Criminal Investigations (DCI) to permit the petitioner (Osman) to enter into and remain in Kenya and should a decision be made to remove him from Kenya, then due process should be followed,” ordered Judge Thande.

The judge further declared that the decision to tag Osman as a prohibited immigrant without any lawful cause and due process is unconstitutional and unlawful.

The court further declared that failure by DCI , Inspector General and Director of Immigration services to issue him with a written explanation for removing him from Kenya is illegal and unlawful.

The judge further said the decision amounts to a denial and breach of his fundamental rights and freedom.

Through lawyer John Swaka, Osman had sued DCI, the Inspector General of police, Director of Immigration Services, CS Ministry of Interior and Coordination National Government and Attorney General for tagging him as a prohibited immigrant.

Osman claimed that on April 12, 2022 at about 2.30 pm, as he was preparing for prayer during the Ramadhan season, he was inhumanely whisked away by officers from DCI’s office into an awaiting vehicle.

He was later taken to Jomo Kenyatta International Airport (JKIA) and shuffled into a flight to Tanzania.

He was informed that orders had been issued for him to be taken to Tanzania as he had been listed as a prohibited immigrant for being involved in organized crime.

Judge Thande pointed out in the 16 page judgement that Osman demonstrated that the government did not follow due process in dealing with him.

“Worse still, they did not even bother to respond to the petition. As stated by justice Lenaola, as he then was, the constitutional requirement for due process is not illusory but obligatory,” she said,

“This judgment should serve as a wake up to all security agencies and those charged with issues of immigration. Due process under the Constitution 2010 is not illusory. It lives and thrives whatever the status of the person who demands it. The casual response to the present petition is worrying and the trend, if it continues, may lead to decisions that would in the end compromise national security,” said justice Thande.

The judge further issued an order to the DCI to permit the petitioner to enter into and remain in Kenya and should a decision be made to remove him from Kenya, then due process shall be followed.

CITY RESTAURANT OWNER FACES CONTEMPT CHARGES.

0
Trattoria Restaurant at Central Business District in Nairobi City whose owner is facing contempt of court for failing to obey court orders./PHOTO BY S.A.N.

BY SAM ALFAN.

The proprietor of City’s Trattoria Restaurant is facing contempt charges alongside the Nairobi county executive officer in charge of health over failure to obey a court order issued five years ago.

The owner of Town House, which houses the restaurant Joaninah Wanjiku Maina wants it’s proprietor Gaetano Ruffo be summoned to explain why he should not be cited for contempt of court.

Through lawyer Kethi Kilonzo, Wanjiku also wants Nairobi County Government attorney and County Executive Committee member in charge of health, wellness and nutrition summoned to show case why they should not be cited for contempt.

Wanjiku says the government officials and restaurant owner have failed to comply with court orders issued on July 21, 2017.

“There is an ever present and continuing danger to public health and safety as a result of the contempt of Nairobi County Government and Trattoria Restaurant owner,” said Wanjiku. 

Lawyer Kethi told the court Nairobi county has failed, refused and neglected to enforce the removal of items that are blocking the fire exits and fire assembly points of L.R No. 209/2362 therefore posing a threat to public health.

She said both the county Government and restaurant owner are aware of the court orders having participated in the proceedings all the way to the Supreme Court and lost the case.

The owner of the famous Restaurant have been fighting with the Wanjiku for close to a decade over approvals granted to the eatery for installation of water tanks, smoke extractor, L.P.G gas cylinder and cold storage.

Ruffo lost an application to escalate the dispute at the Supreme Court last year.

The Apex court comprising of Deputy Chief Justice Philomena Mwilu, Smokin Wanjala , Njoki Ndung’u, Isaac Lenaola and William Ouko struck out the case saying they do not have the jurisdiction to hear the matter.

“Having found that this Court lacks jurisdiction to entertain the appeal under Article 163 (4) (a) of the Constitution, we find that the appeal lacks legal foundation. Consequently, we find that the Notice of Motion dated 9th September 2022 is not merited and is hereby dismissed for want of jurisdiction and the petition of appeal is also struck out for want of jurisdiction,” ruled the Apex court judges.

Maina and her tenant Ruffo have been embroiled in a court fight since 2013 after the landlady protested against the tenant’s move to block exit passages and fire assembly point by placing 1000kg gas cylinders and water tanks.

She accused Ruffo of using the police to harass her for trying to enforce safety regulations imposed by the Nairobi County Government.

AFRICA PROSECUTORS RESOLVE TO FIGHT CROSS-BORDER CRIMES.

0
Director of Public Prosecution Noordin Haji during Mombasa APA Conference Declaration 2023 at Africa Prosecutors’ Association (APA) conference in Mombasa, Kenya.

BY SAM ALFAN.

Prosecutors from across Africa have resolved to engage with international and regional bodies that are aimed at facilitating the confiscation and repatriation of criminal assets across borders.

In what they termed as Mombasa Declaration, the prosecutors also agreed to encourage member countries to develop and implement robust asset recovery mechanisms that uses both conviction and non-conviction based measures.

The declaration was made during the 16th Annual General Meeting and conference of the Africa Prosecutors Association (APA), which was held in Mombasa, Kenya.

The prosecutors further resolved to encourage member countries to adopt and ratify relevant regional, continental and international conventions and other instruments that may aid international cooperation in the investigation and prosecution of transnational crimes.

It was also agreed that member countries will develop, promote and improve technological initiatives to facilitate investigation, prosecution and adjudication of organised transnational crimes.

It is the prosecutors plan to lobby their countries to develop laws and related mechanisms to deal with illicit financial flows, through sharing best practices regionally and internationally.

They agreed to co-operate to address the growing threat of terrorism, including terrorist financing and violent extremism that are posing and increasing threat in several African countries and enhance formal and informal cooperation between member states.

They will also recognise that in addition to climate change, environmental crime such illegal logging, illicit mining, wildlife poaching, and trafficking are used by organised criminals as part of transnational crimes, thereby making it necessary for member countries to strive to actively combat this growing criminal phenomenon.

The prosecutors recommended member countries to establish and strengthen existing witness protection agencies and mechanisms, including enacting witness protection legislation to promote regional cooperation and coordination.

They will recognise and accept the request of the following 14 countries; Burkina Faso, Benin, Cameroon, Gambia, Mauritania, Mali, Republic of Congo and Guinea Bissau.

Other countries accepted to join APA are Somalia, Sudan, Central Africa Republic, Madagascar, Sierra Leone, and Niger.

APA recognized organized criminal enterprises continue to establish networks across Africa and the globe by exploiting the rapid advancements in technology that transcends our borders.

They added that hese organized criminal groups engage in the commission of various transnational organized crimes often go undetected.

“These include the proliferation of illicit financial flows, terrorism and violent extremism, maritime crime, cybercrime and environmental crimes among others.

In responding to these threats, APA recognises the need to develop mechanisms aimed at tackling transnational organised crime,” they said.

Director of Public Prosecution Noordin Haji urged the prosecutors to unite and contribute to APA to enable it fund itself without depending on outside sources for financial assistance.

Haji added that Africa has not been responding to mutual legal assistance.

He said that organized criminal groups have become sophisticated and are facilitated by technology and thus needs prosecutors to develop mechanism to counter transnational organized crime.

While closing the five-day conference, Speaker of the National Assembly Moses Wetang’ula said that crime has mutated in Africa and urged the prosecutors should be ahead of them and bring them to book.

KOROGOCHO MCA FREE AFTER COURT RULES THAT POLICE ARRESTED HIM USING NON-EXISTENT LAW.

0
Korogocho Member of County Assembly Absalom Odhiambo before Nairobi Magistrate Court./PHOTO BY S.A.N.

BY SAM ALFAN.

Korogocho MCA Absolom Odhiambo is a free man after a Nairobi court ruled that the police arrested him under a non-existent law.

Milimani Magistrate Gilbert Shikwe ruled that the section of the law, which the police sought to charge the lawmaker was declared unconstitutional by three-judge bench of the High Court three years ago.

The magistrate upheld objections by lawyer Danstan Omari, who represented the MCA, stating that the police were seeking to detain Odhiambo for more days yet the section 96(a), the prosecution was relying upon was quashed by Justices Jessie Lesiit, Luka Kimaru and John Mativo.

The three judges have since been elevated to the Court of Appeal.

The magistrate said the application to continue holding the suspect for seven days, to enable the police complete investigations into allegations of incitement to violence, cannot be issued on a defective law.

The High Court declared as unconstitutional the provision of Kenya penal code on incitement to violence and disobedience of the law.

The section was challenged by UDA chairman and former Machakos Senator Johnstone Muthama, who was facing hate speech-related charges.

The judges held that the said section of the Criminal Procedure Code(CPC) infringes and transgresses on presumption of innocence of an accused person in a criminal trial.

The MCA was arrested by officers from the Directorate of Criminal Investigations, three days after the National Cohesion and Integration Commission (NCIC) summoned him over remarks he made at Kamukunji during the Azimio La Umoja rally.

He was presented to court on Monday but the police through miscellaneous application asked the court to detain him for seven days so that the police can retrieve any possible inciting messages from his phone and also record statements from witnesses and the suspect.

BID TO BLOCK SWEARING IN OF HUSTLER FUND BOARD FLOPS.

0
Operation Linda Ugatuzi Director Fred Ogolla speaking at Milimani Law Courts building after hustler fund case failed to proceed./PHOTO BY S.A.N.

BY SAM ALFAN.

Attempts by a lobby group to block the swearing in a board appointed by President William Ruto to steer his brainchild the Hustler Fund has hit a snag.

This is after the Employment and Relations court declined to grant orders to Operation Linda Ugatuzi suspending the swearing in of Hustler Fund Advisory Board.

The board was gazzeted last week by Cooperatives and MSME Development CS Simon Chelugui.

Justice Monica Mbaru declined but directed the lobby group’s leader Fred Ogola and two others to serve the Attorney General with the court documents.

Ogola, lawyer Bernard Odero Okello and Kevin Macharia moved to court to challenge the appointment of the board saying it was constituted without an open, fair and competitive process and in total disregard of the Constitution.

He further says there was no public participation in picking the members.

Speaking at Milimani Law Courts building, Ogola faulted the judge over the failure to temporarily suspend the process to await the outcome of his petition.

He added that the president appointed the board without following the due process of the law.

He noted that the President Ruto complied with the law after launching the hustler Fund without appropriation.

“How do you appoint a board after dispensing Sh25 billion ? This board has not been have not been advertised or vetted, this board does not include people with disability or youth. The president said he is forming government of mama mboga or boda boda people. We have not seen mama mboga and bodaboda given chance to apply to sit on the board,” said Ogola.

In the gazette notice dated January 20, 2023, President Ruto appointed Irene Karimi as the Chairperson of the newly established Financial Inclusion Fund.

He also named Lawrence Kibet Chelimo, Paul Ndore Musyimi, and Hardlyne Lusui to the Hustler Fund Advisory Board.

The lobby group, however, said President Ruto and the CS handpicked the board hence denying other qualified persons an opportunity to serve in the board.

“The respondents violated the constitution by conducting the process of appointment in a clandestine manner catching everyone by surprise by only announcing appointments without precedent,” they argued in court documents.

It is their arguments that the President and the CS discriminated against persons with disability by not appointing any person with disability among the appointees.

“There is an imminent danger that the Interested Parties will assume office illegally hence rendering this petition an academic exercise… The rights of persons with disability to appointment will be violated if the Interested Parties assumes office hence suffering damage that cannot be compensated,” they argued in court documents.

In the petition, the lobbyists sought orders suspending the Gazette Notice announcing the appointment of the board for a period of three years and restraining the board from assuming office, taking oath of office or discharging the duties of the members of the financial inclusion fund board.

They said the Gazzette notice was surprisingly backdated to take effect from January 13, 2023, which was before the official publication in the Kenya gazette notice, a move that is contrary to the law.

According to them, the Board was appointed without advertising for the positions and also made their appointments in blatant disregard of public participation.

MAGISTRATE IN TROUBLE AFTER JUDGE ORDERS FRESH TRIAL OF A MAN ACCUSED OF RAPE DUE OBSCENE BIAS.

0

BY SAM ALFAN.

The High Court in Malawi has ordered retrial of a 21 year old man accused of rape after the presiding magistrate was accused of bias.

Nzomba District Justice Zione Ntaba ordered that the rape trial being heard by the magistrate, and of which the office scene had ostensibly formed part, should start again under a different presiding officer.

The judge noted that the trial magistrate allowed the playing of sordid sexual scene in his chambers, in a case where Yusuf Willy is facing charges.

“This court orders that the trial in this matter recommence before a different magistrate assigned by Chief Resident Magistrate. The said trial to recommence by the first week of January 2023,” Judge ordered.

The judge declared that proceedings before the lower court had procedural irregularities including blatant bias especially when one examines how the case progressed for case to answer.

“Accordingly, In upholding the constitutional freedom and rights as guaranteed and recognizing fundamental principles of criminal law espoused in section 3 and 5 of the criminal procedure and evidence code, it is evident that this matter should not proceed before the said magistrate,” ruled Judge Ntaba.

Judge Ntaba held that there was none-judicial factors that influenced the conduct of the trial magistrate. “This court cannot find as a fact those that those facts are attributed to corruption, familial relationships or friendship but what it finds is that there was some bias elements noted in his conduct.”

The judge said that the court was at pains to understand the conduct of the Magistrate in the case noting that Malawi criminal justice system has safeguards in the criminal Procedure and Evidence Code in terms of how defence is mounted including the introduction of evidence especially scientific or medical.

The court added that there was no need for the Magistrate to come to the aid of the accused in defence and in any case, a demonstrated was uncalled for, gross but more so inappropriate.

Ntaba also ordered the government through Director of Public Prosecutions to assist the victim and her family with the resources to ensure her attendance at court and further that counseling services to be provided until when the identified doctor deems.

The judge referred to the Judicial Service Commission to deal with the issues of gender bias including the Magistrate conduct in the case.

The Judge said it was critical that the judiciary through the commission or the Chief Justice’s office review the practice direction on the sexual offences and through training committee develop programmes for training of the country’s judicial officers to avoid such situation in future dealing with gender stereotypes, evidence in sexual offences, safeguarding and re-victimization.

Judge Ntaba noted that it is trite in law that judicial decision as well as judges must be impartial and devoid or not influenced by stereotypes or other bias.

This is after the High Court received a complaint against the conduct of the First Grade Magistrate who was conducting the said proceedings.

The complaint was raised through Justice Chipao when the parent went physically into her office raise issue.

LATE RALLY DRIVER’S FAMILY OPPOSE BID TO CLOSE INVESTIGATIONS FILE.

0
Maxine Wahome before Milimani Court Senior Principal Magistrate Benard Ochoi./PHOTO BY S.A.N.

BY SAM ALFAN.

The family of the late rally driver Asad Khan has opposed the termination of investigations into his death before the Director of Public Prosecutions Noordin Haji decides whether to charge Maxine Wahome, Asad’s lover.

The family through their lawyer Danstan Omari told Senior Principal Magistrate Benard Ochoi that the file cannot be closed when the DPP has not disclosed the outcome of the investigation.

Lawyer Omari said the attempt by the investigating officer asking the court to close the file, undermines the pending decision of the DPP.

“You are being told close this file by the Investigating Officer. If the DPP decides to charge, we shall be in a position of absurdity.This is the first time the state is saying close the mischillneoes application without a charge or proper direction from the DPP,” Omari told the court.

The victim family through lawyer Omari urged the court to decline to close the miscellaneous application without proper directive adding that the Chief Justice Martha Koome said the Court should not be a parking lot.”Let not the office of the DPP be turned into a parking late.”

He said that the family wants to know who killed the former rally driver.

Lawyer Omari said it is the Police who brought Maxine to court on suspicion she had information about the death of Assad following a grievous assault.

“The public and the family also wants to know what befell the celebrated rally champion,” Omari added.

Maxine, who is also a celebrated rally driver was arrested on December 22, over Asad’s death but was released on cash bail, pending conclusion of investigations.

The court ordered her to be reporting to Kilimani police station every Thursday.

Asad, popularly known as Kalulu, was rushed to hospital while bleeding and spent a few days in Intensive Care Unit but died after losing so much blood.

Lawyer Omari further opposed plans to hand over the house in which the rally drivers stayed together, back to the landlord, saying it was a scene of crime.

The court will rule on February 15, whether to close the file.

SEVEN ACCUSED OF VIOLENTLY ROBBING FORMER MP HAVE A CASE TO ANSWER.

0
Former Kabete Member of Parliament George Muchai.

BY NT CORRESPONDENT.

Seven people accused of violently robbing former Kabete MP George Muchai and his two bodyguards and a driver have a case to answer, a Nairobi court has ruled

City Court magistrate Roseline Oganyo said that after analysing evidence adduced before by 36 witnesses, the seven accused persons should be placed on their defence.

The accused persons include Erick Isabwa, alias chairman, Raphael Gachii, alias Kim Butcher, Kimani Anyonyi, alias Musto, Stephen Lipapo, alias Chokora, Jane Wanjiru, alias Shiro, and Margaret Wachuiri and Simon.

“I accordingly put all of them on their defence,” said the magistrate.

Muchai, his driver Stephen Wambugu and two bodyguards’ police constable Samwel Lekakeny and Samwel Kimathi were killed on the morning of February 7, 2015, in Nairobi.

They accused persons are separately also accused of murdering Muchai and his aides. The late MP was accosted at around 3am the city center as he was being driven home from a family gathering at Galileo’s restaurant in Westlands, Nairobi.

They are further accused of robbing Michael Gituto of a vehicle and other personal property all worth Sh416,000.

During the last hearing a newspaper vendor Ronald Nyangeres Siang’o told the court that he was handing a newspaper to Muchai, who had been his customer for seven years, when a white car came and blocked the MP’s vehicle.

“A man wearing a mask came out of the vehicle armed with a G3 rifle and started firing at Muchai’s vehicle,” said the witness.

The court heard that a gunman opened fire without provocation, in a gangland-style shooting in Nairobi’s Central Business District, before fleeing.

“He shot without provocation, he stepped out and started shooting, first at the driver, I fell to the ground and left my bunch of newspapers on the ground,” the witness said.

In his evidence in chief Siang’o said a lone gunman stepped out of a white car which had stopped in front of “mheshimiwa’s” and “just started shooting.”

“He first shot at the driver who I had given the newspapers to and had turned to hand them to mheshimiwa who was at the backseat…I heard about eight gunshots,” the witness said.

The witness was testifying in a case in which seven suspects are charged with violently robbing and killing the former MP alongside his aides

“I knew Mheshimiwa well as I had sold him newspapers for more than seven years,” Sian’go said.

He said when the late MP’s car pulled over along Kenyatta Avenue his driver beckoned him to bring the newspapers.

He said the late Muchai was killed before he paid for the four copies of newspapers he had handed to the driver.

“The white car appeared shortly after the one carrying the MP pulled over and stopped directly in front of it as if to block it,’ the witness said.

He said a masked tall man stepped out of the co-driver’s side and was armed with a gun.

The witness was shown a G-3 rifle which he said looked like the killer weapon he saw on the fateful day.

He said he ran towards Parliament to save his life and did not return to the spot for two weeks.

“I was hurt when I fell on the ground and when I went to hospital at daybreak, I heard that Mr Muchai had been killed alongside his three bodyguards,” the witness said.

They were reportedly arrested after two guns, one believed to have been used in the actual shooting and another snatched from one of Mr Muchai’s bodyguards, were found in their possession.