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EACC MAINTAINS STANCE ON OBADO CASE: NO DEAL YET.

Nairobi Times
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EACC MAINTAINS STANCE ON OBADO CASE: NO DEAL YET.

By Sam Alfan.

Ethics and Anti-Corruption Commission (EACC) and the Director of Public Prosecution Renson Igonga have once again clashed in court over plans to withdraw graft charges against former Migori governor Okoth Obado.

Appearing before an anti-corruption court on Monday, EACC urged the magistrate to reject the plea bargaining agreement entered between DPP, Obado and other co-accused.

The anti-graft body maintained that it was not in agreement with some parts of the deal and accused the DPP of misusing the court process.

The commission told the court they were chased by DPP in the last meeting and were never served with the last copy of the agreement between DPP and Obado.

Further, the EACC told the court the said agreement disguised as plea agreement is withdrawal of the charges against Obado and co-accused and court should reject it.

The commission also accused DPP for misleading the court over the said plea bargaining agreement, arguing that no forfeiture and prosecution included against the accused.

The commission stand against withdrawal of charges against Obado and co-accused has derailed Obado bid to stay from court over the said charges.

EACC contended that a perusal of the plea agreement there is no consideration of the issues in question and the facts presented to court were misleading.

The anti-graft body added that the form in which plea agreement was done does not conform to the law.
The commission urged the court to look at the charges including a charge count 12 where the accused persons are charged with money laundering and engaged in transfer of Sh256,730,688.

“We confirm the facts given to you by the DPP are misleading it cannot be said as much as we are opposed to criminal and civil proceedings being jungled up. It cannot be said that the settled in the recovered suit in the High Court doesn’t cover for the criminal suit in this court proceedings,” court heard.

Referring to page seven of the plea agreement, commission that the parties of the Agreed that it alludes to misappropriated funds. Alludes to the settled agreement to the civil matters and the same are separate to the criminal cases which are different matters from the corruption matters.

EACC told the Anti-Corruption Court that they requested to atleast peruse the agreement and according to their knowledge they were to negotiate further but they were informed commission could not be given the plea agreement.

“We told this matter has a different dynamic and we were told that EACC could give or see the drafted plea agreement entered between the DPP Renson Ingonga and former governor Obado, his four children and associates. We were told this matter is unique and does not apply the practice for out of court settlement,” court heard.

In the case, Obado was charged in 2020 alongside his children and business associates with misappropriation of Sh73.4 million from the county government of Migori through corrupt dealings.

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WIN FOR SAFARICOM AS COURT QUASHES SH930 MILLION AWARD GRANTED TO SOFTWARE DEVELOPER

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WIN FOR SAFARICOM AS COURT QUASHES SH930 MILLION AWARD GRANTED TO SOFTWARE DEVELOPER

By Sam Alfan.

Safaricom PLC has won a Sh930 million legal suit against a payments solutions firm that had accused the telco of breach of contract.

The country’s largest mobile operator successfully argued for the quashing of a ruling issued in November last year by a sole arbitrator, directing Safaricom to pay the amount to Popote Ltd.

High Court judge Peter Mulwa allowed Safaricom’s appeal and set aside the arbitral award in its entirety.

“I find that Safaricom’s Notice of Motion dated 20 January 2025 has merit and is hereby allowed. The Final Arbitral Award dated 29 November 2024 and published by Mr. Paul Ngotho, HSC, FCI Arb is hereby set aside in its entirety,” ruled Justice Mulwa.

The court found that the arbitrator’s award, predicated on an unsigned and inoperative contract, and containing speculative damages unrelated to the evidence, offends the principles of contractual certainty, legality, and fairness thereby conflicting with the public policy of Kenya.

Justice Mulwa ruled that Popote Innovation Limited argument on finality under Section 32A cannot override express statutory grounds for setting aside under Section 35. Party autonomy does not immunize an award rendered outside jurisdiction or based on non-existent contractual obligations.

” This Court is therefore persuaded that the arbitral award dated 29″ November 2024 was made in excess of jurisdiction and is inconsistent with the public policy of Kenya,” said the judge.

Justice Mulwa ruled that Tribunal’s conclusion that Safaricom’s subsequent mobile applications, M-Pesa Super App and M-Pesa Business App, were “similar” to the envisaged Popote Pay project was unsupported by expert or factual evidence.

The judge said the argument was a speculative assumption forming the basis of a hypothetical damages computation, which fails the reasonableness test under public policy principles.

The court said while it recognizes the high threshold set in the above case, an award founded on an invalid arbitration agreement and speculative financial assumptions would indeed offend the public policy of Kenya by undermining the sanctity of consent in contractual relations.

“The award, based on speculative financial assumptions and an unsigned agreement, equally offends public policy as contemplated in Christ for All Nations v Apollo Insurance (supra),” said Justice Mulwa.

The Judge dismissed Popote Innovation ltd application seeking recognition and enforcement of the said award under Section 36 of the Act is dismissed.

The arbitrator had awarded Sh39.2 million to the innovator, a further Sh902.7 million as shared revenue for the applications and costs of the case amounting to Sh2.5 million.

Safaricom challenged the award saying the claim by Popote Innovations was fictitious and at best, an attempt to benefit from an activity where the company had not invested in.

Popote Innovation ltd through the affidavit of its Director, Samuel Gathungu Wanjohi argued that the Partnership Agreement was in fact executed in April 2018, confirmed by Safaricom in an email on May 3, 2018.

The firm said it delivered the customized “Popote Pay Solution” on 8th May 2018, thereby fulfilling its contractual obligations.

Safaricom, however, breached the Agreement by unilaterally abandoning the launch.

The software developer firm maintained that the Partnership Agreement was binding and automatically renewable unless properly terminated. The Settlement Agreement of September 2020 merely addressed reimbursement of development costs under Clause 4.2 and did not discharge Safaricom from its performance obligations.

The software developing firm submitted that when Safaricom launched its “M-Pesa Super App” and “M-Pesa Business App” in June 2021, incorporating features from the jointly developed solution, it became liable for breach of the Partnership Agreement.

Popote Innovations said despite having performed its obligations as required in the agreement to the extent that it could, Safaricom unilaterally chose to cease performance of its obligations and denied the existence of the agreement.

The firm then invoked the arbitration clause and declared a dispute against Safaricom for breach and non-performance of its obligations.

The telco pointed out that the smartphone applications contemplated in the August 2018 deal were intended to generate revenue by charging subscribers a monthly recurrent subscription fee, for their use.

Safaricom added that the application contemplated in the deal was also intended to generate revenue by charging customers a special fee when a customer undertook a payment.

The parties were then to have a revenue share based on the projected revenue generated from the monthly subscription fee and a special fee for payment transactions.

However, the M-Pesa smartphone applications launched in June 2021 simply replicated the standard M-Pesa services on a smartphone application to provide easy access to M-Pesa customers.

Further, the smartphone applications do not charge a monthly fee for use and a customer will simply use the application to undertake an M-Pesa transaction fees, Safricom said.

The M-Pesa transaction fees are uniform and apply if a customer uses the application or uses the M-Pesa menu on the SIM Toolkit or M-Pesa USSD menu, the telco explained.

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TECH FIRM ORDERED TO PAY SH95.4 MILLION FOR BREACH OF CONTRACT.

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TECH FIRM ORDERED TO PAY SH95.4 MILLION FOR BREACH OF CONTRACT.

By Sam Alfan.

A technology firm has been ordered to pay Sh95.4 million for breaching a contract over project management services and supervision of the Integrated Security Management System (ISMS) for the Parliamentary Service Commission (PSC).

High Court judge Helene Namisi directed Dynamicnav Systems Limited to pay Nisa Holdings Limited Sh95,400,000, plus interest at court rates from the date the case was filed until full settlement.

The judge noted that the contract provided that if the project cost varied from the initial Sh240 million, the effect would cascade.

Evidence presented in court showed that the final contract amount rose to Sh279 million.

“Theoretically, Nisa’s fee should have increased pro-rata. However, Nisa Holdings has chosen to act within the conservative bounds of the contract and claim only the fixed Sh100 million,” the court noted.

The court, however, dismissed the suit against David Omanga (alias David Dianga), who had been sued alongside Dynamicnav Systems, with the judge saying there was no evidence that Omanga had personally guaranteed the contract.

“While his actions bind the company via agency, he does not automatically become a co-debtor. The suit against Omanga in his personal capacity must fail,” the court ruled.

The judge further said the agreement clearly identified the parties as Nisa Holdings Limited and DynamicNAV Systems Ltd.

Omanga’s signature block indicated he was signing on behalf of the company.

“An agent acting for a disclosed principal is generally not personally liable unless they personally guaranteed the debt or acted fraudulently,” the court added.

According to the judgment, in early 2020 Dynamicnav Systems, a tech firm, identified a tender opportunity advertised by the PSC for the provision of project management services and supervision of the ISMS project.

Dynamicnav, aware it might lack the capacity or strategic networks to secure the tender on its own, sought the support of Nisa Holdings.

Through its director, Herbert Ojwang, Nisa represented itself as a consultancy experienced in preparing tender documents, navigating procurement processes, and leveraging networks.

On 22 April 2020, the two companies signed a Consultancy Fee Agreement. Ojwang signed on behalf of Nisa while Omanga signed on behalf of Dynamicnav, and the company’s stamp was affixed to the document. The agreement became the centre of the dispute.

The preamble stated that the purpose was to “explore the possibility of entering into a potential business relationship relating to Integrated Security Management System Project Management for the Parliamentary Service Commission.”

Shortly after, Dynamicnav entered into a joint venture with the University of Nairobi Enterprise and Services (UNES), a collaboration Nisa claims to have facilitated.
On 12 June 2020, Dynamicnav and UNES signed a contract with the PSC for the ISMS project worth Sh279,154,283.04 — higher than the Sh240 million anticipated in the consultancy agreement.

After the tender was awarded and work commenced, PSC made payments to Dynamicnav. Nisa then demanded payment of the agreed Sh100 million consultancy fee. Dynamicnav paid only Sh4.6 million, which it later described as a full and final “finder’s fee.”

Nisa issued demand letters on 7 July and 19 July 2022, insisting that Sh95.4 million remained outstanding. Dynamicnav’s lawyers initially requested time for consultations but later denied the claim.

Dynamicnav argued that Nisa did not perform work worth Sh100 million, claiming the consultancy merely introduced the firm to Parliament and took no part in technical execution.

The judge dismissed this defence, stating that it misunderstood the nature of the consultancy agreement. The agreement was for business development and origination—not technical implementation.

“Nisa’s role was to open the door. The question is: did the door open? Yes. Dynamicnav secured the contract with PSC on 12 June 2020,” she said.

The court held that in commercial consultancy, introductions and origination are valuable services.

“The fact that the technical work was done by Dynamicnav and UNES does not diminish the value of the introduction that made the work possible,” the judge said, adding that Nisa had fulfilled its obligation once Dynamicnav secured the PSC contract.

Dynamicnav also argued that the Sh100 million fee was exorbitant and unfair since its net profit from the project was only Sh45 million.

But Justice Namisi rejected this argument with the court emphasizing that the principle of freedom of contract remains central in Kenyan commercial law, and courts cannot rewrite agreements freely entered into by parties.

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WHY RECENTLY RECRUITED POLICE CONSTABLES NEED TO WORRY.

Nairobi Times
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WHY RECENTLY RECRUITED POLICE CONSTABLES NEED TO WORRY.

By Sam Alfan.

The fate of over 10,000 police recruits hangs in limbo after National Police Service Commission challenged a decision that allowed the Inspector General of Police to carry out the recruitment.

In an appeal, the NPSC wants the court to suspend last month’s decision by Employment and Labour Relations Court, which barred the commission from the recruitment exercise.

The Commission argues that the implementation of the judgment issued by Justice Hellen Wasilwa will cement an unconstitutional transfer of the Commission’s mandate to the Inspector-General of police, resulting in the progressive re-organisation of the National Police Service’s human resource framework.

The Commission further said the authority to recruit, appoint, transfer, promote, disciplinary control and manage human resource management will become embedded within an institution that lacks constitutional empowerment to exercise it, if the judgment stands.

“The intended appeal will therefore be overtaken by events because its subject matter the restoration of the Commission’s mandate will have already been displaced in practice,” court of Appeal heard.

The commission adds that the institutional arrangements that the Constitution deliberately assigned to civilian oversight through the commission will be gradually dismantled in favour of an internal police-controlled system.

NPSC said the intended appeal will lose practical utility because reinstating the constitutional order after prolonged implementation will require undoing entrenched administrative decisions taken without lawful authority.

The commission told the court that the impugned decision of the trial court (mis)interpreted or (mis)applied the provisions of Articles 246, 249, 259, 260 of the Constitution in its declaration that the commission and IG are vested with the independent command concerning the recruitment, training, employment, assignment, promotion, suspension and dismissal of the members of the service, without any direction or control from the Commission.

Pursuant to the judgment, the National Police Service advertised the recruitment of police constables on 31 October 2025 and the exercise unfolded on 17 November 2025 under the hand of the IG and recruits scheduled to report to the various police colleges to commence training.

The commission said that a single act carved an unusual mark upon Kenya’s legal landscape, a moment without precedent, where the Employment court decision Court’s judgement and decree became the sole pillar upon which an entire national recruitment rested.

“The exercise proceeded with the Inspector-General stepping into a space that the Constitution reserves for the commission, creating a scene never witnessed in the evolution of law in this country,” commission told appellate court.

The commission added that the recruitment itself is anchored on legal emptiness, a process undertaken in a vacuum, stripped of the statutory and regulatory safeguards that ordinarily anchor transparency, fairness, and merit.

“The Employment Court having already swept aside the Commission (Recruitment and Appointment) Regulations, leaving no guiding framework, no structured criteria, and no lawful guardrails for a function as delicate and consequential as the recruitment of new officers into the Service,” court heard.

The commission submitted that the moment illustrated a system operating without its compass, where a constitutional function proceeded without the laws meant to give it coherence, legitimacy, and public confidence.

The Employment Court, through its judgment, accomplished what the Constitution only permits through an amendment under Article 255(1)(g).

“The impugned judgement, delivered with the stroke of a pen, effectively erased the substance of Article 246 and swept away the mandate of the commission,” commission told the court.

The commission submitted that the outcome carried the practical effect of winding up the commission, because the very purpose for its creation and its placement within the constitutional architecture was extinguished by judicial fiat.

Court of Appeal of Appeal will deliver the ruling on February 27,2026.


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M-PESA FRAUD: ONE WOMAN’S PAINFUL M-PESA LOSS SPARKS A COURAGEOUS BATTLE FOR ACCOUNTABILITY.

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M-PESA FRAUD: ONE WOMAN’S PAINFUL M-PESA LOSS SPARKS A COURAGEOUS BATTLE FOR ACCOUNTABILITY.

By Sam Alfan.

When Paula Rogo discovered that money had vanished from her M-Pesa account, she became one more statistic in Kenya’s growing wave of mobile money fraud. But for her, the loss wasn’t just about the shillings stolen—it was about trust shattered in a service she had relied on for years.

Determined not to suffer in silence, Paula took on some of the biggest institutions in the country: Safaricom PLC, M-Pesa Holding Company, and even the Central Bank of Kenya (CBK).

Today, those same institutions are fighting back.

In court filings, Safaricom PLC and the CBK are asking judges to throw out Paula’s case, which accuses Safaricom of failing to prevent fraudulent transactions and protect customer data. Safaricom argues that the High Court is the wrong arena for her plight—saying Paula should have taken her complaint to the Communications Authority of Kenya (CA) first, as required by the Kenya Information and Communications Act (KICA).

For Paula, the case represents a search for accountability. For the corporations she’s suing, it’s a matter of legal procedure.

Safaricom insists that the High Court “lacks jurisdiction” because disputes between customers and licensed telecommunications providers must go through the CA before reaching the courts. According to them, Paula’s move to seek justice directly in court is “irregular, premature, and contrary to statute.”

Their argument hinges on KICA’s dispute resolution framework, which requires consumers to notify and lodge complaints with the CA under the 2010 Dispute Resolution Regulations.

To Safaricom and M-Pesa Holding Company, Paula’s ordeal fits squarely within the law’s definition of a “consumer dispute”—something they say can be “adequately adjudicated” by the Communications Authority.

CBK, the industry regulator, has also opposed the case but for different reasons. It acknowledges its role in licensing and supervising Safaricom as a payment service provider, stressing that its presence in the case is necessary so the court can fully understand industry obligations. But like Safaricom, the Central Bank wants the petition dismissed.

Paula, however, is not simply seeking compensation. Her petition reaches far beyond her own experience, calling for sweeping reforms meant to protect the millions of Kenyans who rely on M-Pesa every day. Among the orders she seeks are:

  • Stronger systems to prevent M-Pesa fraud
  • Dedicated reporting lines and support teams for victims
  • A transparent and fair compensation process
  • Investigations into fraud cases, with regular updates for affected customers

The changes she proposes could reshape how mobile money fraud is handled nationwide. And if the court rules in her favour, the Central Bank would be responsible for ensuring Safaricom and M-Pesa Holding Company comply—a role CBK says it is prepared to support, even as it opposes the way the case has been brought.

“CBK is merely supposed to offer guidance and support to the Court,” the regulator said, adding that its involvement would help enforce any orders issued.

For now, Paula’s fight is about more than her own financial loss. It echoes the frustrations of countless Kenyans who have fallen victim to mobile money fraud and felt powerless to seek redress. As the legal battle unfolds, her case poses a critical question: Who is responsible for protecting ordinary users in a system that has become essential to daily life?

Whether the High Court will hear her story—or whether it will be diverted back to the Communications Authority—remains in the judges’ hands. But for Paula Rogo, standing up to Kenya’s most powerful financial and telecommunications institutions is a fight she believes is necessary, not just for herself, but for millions like her.

Paula’she wants the High Court to declare that Safaricom and its subsidiary violated her constitutional right to access information under Article 35, as well as the consumer and administrative rights of all fraud victims.

Rogo argues that Safaricom failed to protect her and other customers from unauthorised access to their M-Pesa records, establish dedicated, responsive call centres to handle fraud cases and implement policies for mitigating loss and compensating victims

She also accuses the telco of failing to inform customers about available fraud-remedy measures.

She also accuses Safaricom of not compensating victims despite fraud being facilitated either by insiders or by individuals exploiting system vulnerabilities.

Rogo narrated that on 3 January 2024, she received a call from an unfamiliar number. After returning the call, she spoke to a man who introduced himself as Michael Kiptoo, claiming to be a Safaricom employee.

To gain her trust, the fraudster allegedly sent her messages from what appeared to be Safaricom’s official SMS system and revealed her M-Pesa balance, recent transactions, and frequent contacts—information she believed only Safaricom staff could access.

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BUSINESSMAN IN COURT OVER BID TO DEFRAUD NSSF OF SH350 MILLION LAND.

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BUSINESSMAN IN COURT OVER BID TO DEFRAUD NSSF OF SH350 MILLION LAND.

By NT Correspondent.

Three businessmen have been arraigned before a Nairobi court over conspiracy to defraud National Social Security Fund (NSSF) land valued at approximately Sh350 million.

Harish Ramji Manji , Ashvin Ramji Manji and Ashvin Ramji Bharat were presented before Milimani Chief Magistrate Dolphina Alego.

The trio, however, did not plead to the charges after their lawyers raised an objection stating that there was a similar matter pending before Senior Principal Magistrate Benmark Ekhubi.

They argued the charges were worded the same and that the case is coming up for mention before Ekhubi to confirm the status of another case pending at the Court of appeal.

The lawyer submitted that ruling by the court of appeal suspending arrest and prosecution of the accused was sufficient enough to defer the plea taking.

They were released on a personal bond of Sh200,000 each .

The magistrate directed the defence to avail the court of appeal ruling, which allegedly suspended their prosecution.

According to the charge sheet registered in court the suspects jointly with others not before court, conspired to forge a transfer document dated 27 May, 2010 purporting it to be a genuine document signed by the Board of Trustees NSSF.

The charges stated that they intended to defraud NSSF of a parcel of land LR.NO.11895/50 measuring approximately 3,043 Hectares located within Mavoko Municipality, valued approximately 350 million.

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DIRECTLINE FINED SH85 MILLION FOR DELAYING PAYMENTS TO TWO GARAGES.

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DIRECTLINE FINED SH85 MILLION FOR DELAYING PAYMENTS TO TWO GARAGES.

By Sam Alfan.

Directline Insurance has been fined Sh85 million by the competition watchdog for abuse of buyer power over delayed payments to two garages contacted to repair motor vehicles. 

Competition Authority of Kenya (CAK) penalized the insurance firm for abusing its superior bargaining position for delaying payments due to the two repair centers. 

The underwriter was further ordered to settle delayed payments of Sh 6,063,235 to the two companies.

Kilele Motors Limited (Kilele) and Midland Autocare Limited (Midland) provide services such aspanel beating, spray-painting and mechanical repairs on motor vehicles.

“Abuse of buyer power, which cripples suppliers is against the country’s aspirations of economic development,” CAK said.

Evidence was that the insurer contraced the two firms in 2023 and 2024, for motor vehicle repairers.

In May last year, the two garages 2024 lodged separate complaints with the Authority, alleging that the insurer had failed to honor its invoices despite satisfactorily undertaking several repair assignments.

They told the watchdog that the failure to settle the dues was without justifiable reasons and in breach of agreed payment terms.

To support their cases, the two firms supplied the Authority with evidentiary information, including authorization letters, re-inspection reports, invoices, release letters, customer satisfaction notes and correspondence between the parties regarding the pending payments.

The firms said the conduct had left them in a precarious financial position, rendering them unable to honour their obligations to suppliers, employees, landlords, or to invest in the growth and expansion of their businesses.

In the decision, CAK stated that buyer power refers to the ability of a large or influential purchaser to obtain supply terms that are more favorable than would arise under normal commercial arrangements.

It could also mean obtaining terms that are disproportionate, unfair and detrimental to a supplier, or unrelated to the legitimate objectives of a supply contract.

The authority added that the Competition Act outlines a non-exhaustive range of practices through which ABP may manifest, including delaying payments owed to a supplier, imposing significant reduction in supply prices, threats of termination or unilateral of contracts without justification, refusing to receive or return goods without valid reasons, and transferring undue costs or risks to suppliers.

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GOVERNMENT TO APPEAL DECISION ON SHARING AND SELLING OF INDIGENOUS SEEDS.

Nairobi Times
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GOVERNMENT TO APPEAL DECISION ON SHARING AND SELLING OF INDIGENOUS SEEDS.

The government has signaled its intention to appeal a judgment that quashing sections of the law that penalised sharing of indeginous seeds.

In a notice, the Kenya Plant Health Inspectorate Services (KEPHIS) and the Attorney General said they were not satisfied against the decision and intends to appeal.

Last week, High Court judge Rhoda Rutto declared Section 3D (1) of the Seed and Plant Varieties Act unconstitutional for violating Articles 31(a); 40(2) and 47 of the Constitution.

The said sections prevented farmers from sharing and selling indigenous seeds.

“Section 10 (4) (c) (d), (e), (f) and (g) of the Seed and Plant Varieties Act is hereby declared unconstitutional for violating Articles 11(3)b; 21(2) 27(2) and 43(1)c of the Constitution. e) Section 20(1) of the Seed and Plant Varieties Act is hereby declared unconstitutional, for violating Articles 21(2) and 43(1)c of the Constitution,” said the court.

The court further declared Section 20(1E) of the Seed and Plant Varieties Act unconstitutional, for violating Articles 21(2) and 43(1)c of the Constitution

In a 27 page decision, the court found Regulations Rules 6, 16, 19 and 21(1), (2), (3), (4), (5) of the Seed and Plant Varieties (Seeds) Regulations, 2016 are declared unconstitutional, for violating Articles 21(2) 27(2)(4) and (5) 40(2) 43(1)c and 47 of the Constitution.

The court faulted the government for not conducting public participation before passing the law.

“As I pen off, adequate and meaningful public participation by the respondent would have addressed the concerns by the petitioners,” noted the judge.

The judge ruled that it is through public participation that the people continue to find their sovereign place in the governance they have delegated to both the national and county governments. 

“The respondents remain at liberty to engage with the petitioners, interested parties and the public at large in order to streamline its objectives,” judge Bahati further said.

The Seeds and Plant Varieties Act was assented to law on 16th May 1972 and has undergone several amendments.

The last amendment was made on 31st December 2022, and revised by the 24th Annual Supplement (Legal Notice 221 of 2023).

On the other hand, the Seeds and Plant Varieties (Seeds) Regulations (the Regulations) were published on 3rd February 2017 in the Kenya Gazette and commenced on even date.

The Regulations were revised on 31st December 2022 by the 24th Annual Supplement.

Several farmers and lobby groups challenged the constitutionality of the sections/provisions for criminalizing selling, sharing and exchange of unregistered, uncertified and protected seeds. 

They contend that this negates the farmers’ rights guaranteed under the Constitution and international treaties applicable in Kenya.

Concerning the violations of International Law obligations, the petitioners urge that Article 2(5) of the Constitution provides that General Rules of International Law shall form part of Kenya’s law, and Article 2(6) of the Constitution incorporates international treaties to which Kenya is a party as part of Kenyan Law. 

Armed with these constitutional provisions, the petitioners argued that the provisions violate Kenya’s International Law obligations.

They emphasized that Kenya acceded to the 2001 International Treaty on Plant Genetic Resources for Food and Agriculture (the International Treaty) which under Article 9.2 declines farmers rights to include the protection of traditional knowledge relevant to plant genetic resources for food and agriculture.

The obligation also acknowledged the right to equitably participate in sharing benefits arising from the utilization of plant genetic resources for food and agriculture, and the right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture. 

They further cited Article 9.3, which provides that nothing under Article 9 shall be interpreted to limit any rights that farmers have to save, use, exchange and sell farm-saved seed/propagating material, subject to national law and as appropriate. 

The petitioners also contended that the said said rights are recognized and guaranteed by the 2001 African Model Legislation (the OAU), whose objective, as per its Preamble, is to recognize, protect and support the inalienable rights of local communities, including farming communities, over their biological resources, knowledge and technologies. 

Similarly, Article 24(1) of the OAU, justifies the existence of farmers’ rights, from the continued ‘enormous contributions that local farming communities have made in the conservation, development and sustainable use of plant and animal genetic resources that constitute the basis of breeding for food and agriculture production.

It is the petitioners further case that, Article 24(2) of the OAU affirms that, for farmers to continue making significant contributions to the conservation, development and sustainable use of plant genetic resources, their rights have to be recognized and protected. 

They also cited Articles 26/1)(d) and 32 which expressly permit farmers to ‘save, exchange and use part of the seed from the first crop of plants which they have grown for sowing in their own farms to produce a second and subsequent crop.

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BIDCO BOSS URGES COURT TO DECLINE BID BY NESBITT TO TERMINATE FRAUD CHARGES.

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BIDCO BOSS URGES COURT TO DECLINE BID BY NESBITT TO TERMINATE FRAUD CHARGES.

By Sam Alfan.

Bidco boss Vimal Bhinji Shah has narrated how businessman Nicholas Alexander Nesbitt and Briton Boytorun Mehment visited his house promising to provide his company with US dollars to help in running the business.

Introducing themselves as partners, the duo allegedly said they were in a position to provide Bidco Africa with US dollars in exchange for Kenya shilling to finance the business.

The tycoon said it was from the said visit that a Trade Finance Agreement was signed between him, on behalf of Bidco Africa ltd and Bulent Boytorun on behalf of Bee N Bee Kenya.

While opposing Nesbitt an application by Nesbitt seeking to quash the criminal charged he is facing, Shah said he was induced into entering into the Agreement because of other relationship that he had with Nesbitt.

He said Nesbitt intentionally manipulated the said relationship to intentionally defraud Bidco Africa ltd.

The Bidco CEO said that it is from the representation of Nesbitt that they got into the agreement with the Company Bee N Bee Kenya Limited.

Aggrieved by the actions Shah said he lodged a complaint with the Directorate of Criminal Investigation, leading to the decision by the Office of the Director of Public Prosecutions to prosecute Nesbitt together with his business partner.

Nesbitt has denied charges of conspiracy to defraud while his co-accused fled the country.

Shah submitted that the court should hesitate to interfere with the functions of the DPP unless there is clear evidence of breach of the Constitution or abuse of discretion to prosecute, which he said Nesbitt has failed to demonstrate in the documents submitted in the application.

“We submit that no evidence has been tendered to show that the DPP abused his discretion or powers under the Constitution.

“An analysis of the documents filed by the Ex-Parte Applicant in the Judicial Review Application herein only speaks of an pending civil dispute which should not be a subject of the criminal process as the two are separate and distinct in their very nature,” said the company.

The company submitted that the constitutional independence of the DPP must be respected, and for the court to intervene, there must be clear evidence of breach of the constitutional duty to act on the part of the DPP or abuse of discretion.

The company added that the prosecutorial discretion is generally accorded judicial deference and that courts will only interfere in the clearest and most exceptional of cases.

“The Application by Nesbitt herein does not meet the threshold set as analysed hereinafter to warrant this Court to interfere with the discretion of the DPP,” court heard.

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ACTIVIST TO PURSUE RECUSAL OF JUDGES IN GACHAGUA CASES.

Nairobi Times
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ACTIVIST TO PURSUE RECUSAL OF JUDGES IN GACHAGUA CASES.

By Sam Alfan.

An activist seeking the removal of Deputy President Kithure Kindiki will challenge a ruling by a three bench declining to recuse themselves from hearing the case. 

Joseph Aura has filed a notice, seeking to appeal the decision in which the judges declined to disqualify themselves from hearing the case, which is linked to the impeachment of former deputy president Rigathi Gachagua.

Aura had asked the judges to recuse themselves from hearing the case for alleged bias but Justices Eric Ogolla, Anthony Mrima, and Freda Mugambi dismissed the application saying the activist had failed to prove claims of bias.

Aura through his lawyer Harrison Kinyanjui had argued his case was unfairly isolated citing bias by the three judges.

Aura had also pointed out that Chief Justice Martha Koome reappointed the bench despite a Court of Appeal decision faulting the appointment of the same bench by Deputy Chief Justice Philomena Mwilu.

He reckoned that the appellate court had ruled that the authority to empanel a bench to hear such cases is the sole mandate of the CJ.

Nonetheless, CJ Koome proceeded to appoint the same bench.

During previous hearings in the High Court, the judges were asked to recuse themselves, but they declined.

Through his lawyer Harrison Kinyanjui, Aura said the nullification of the judges earlier appointment by the Court of Appeal raises concerns about their objectivity.

“Else, the edict that justice must not only be done, but also be seen to be done will clearly stand violated and inevitably, there will register in the public mind that the said Judges have assumed an unjustifiable and opaque reason to cling to this Petition and drive its determination in a manner detrimental to the securing of justice objectively,” the court papers read in part.

Kinyanjui also stated that despite writing to CJ Koome requesting a larger bench of five judges, she returned the matter to the same three judges, who are unlikely to change their stance.

In the appeal, Aura will be seeking orders to block the three judges from hearing the petition.

“Pursuant to the directions of the Hon. Chief Justice of Kenya by her letter to the petitioner herein dated 23rd January, 2025 in the instant Petition, this Honourable Court be pleased to grant the Applicant’s plea that the bench herein comprising of the Hon. A. Mrima J., Hon. E. Ogola J., and Hon. Lady Justice F. Mugambi, forthwith ceases to hear and determine any aspect of the Amended Petition,” the court papers read in part.

Kinyanjui further argued that if President William Ruto were declared mentally or otherwise unfit to hold office, the country could face a major constitutional crisis.

He added that should the President suffer incapacitation or be declared unfit during the pendency of the proceedings, Article 146(2)(a) of the Constitution would come into immediate effect.

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