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KENYA COURT JAILS TWO CHINESE NATIONALS FOR ATTACKING COLLEAGUE.

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BY NT CORRESPONDENT.

Two Chinese national who attacked and injured their colleague over a disputed bet will serve a year in jail.

Gu Xiong and Jin Ping were convicted after pleading guilty to the offense.

Kibera senior principal magistrate Charles Mwaniki however gave them the option of paying sh100,000 for the offense.

They had attacked and injured Dong Chen Pang on may 16, this year at Kingston apartment in Nairobi.

In his decision the Magistrate said he considered the mitigations from the accused persons and the nature and the circumstances of the offence and the accused person has saved the judicial time by pleading guilty and this suggests that they have undergone considerable introspection and that they are remorseful.

“Nonetheless they admitted a crime and injury resulted from it. A deterrent sentence is called. I hereby sentence each of them to pay a fine of Sh100, 000 of serve one year in jail, “ruled the magistrate.

The case was reported to police after the fight and Pang was taken to hospital. He was later treated at Coptic Hospital after the eye developed complications.

The court heard that Xiong and Pang disagreed over a bet and picked a fight before Ping joined in to fight Pang, the police report says.

Senior state prosecutor told the court that on the fateful day the complainant and the accused persons were at an apartment in Kilimani.

It was said that the accused persons and the complainant were at the Kingstone apartment playing a game called Magician- the game that is of the gambling nature and the owner of the game left them there, the accused persons and the complainant then disagreed and an argument started,” said the prosecution.

The prosecution told the court that the argument later  turned physical  and the second accused person hit the complainant with the fist on his face, injuring his left eye.

The  court heard that the second accused person Pang wrestled him to the ground  and both of them started beating him and he shouted for help attracting neighbors and they stopped attacking him, he suffered a broken tooth at the  upper mandible ,

The complainant was then carried to an apartment since curfew was in place and was later taken to the hospital.

CJ URGES JUDGES TO DISPENSE DUTIES WITHOUT FEAR AS KMJA CONDEMNS ARRESTS

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BY SAM ALFAN.

Chief Justice Martha Koome has urged judges to continue dispensing their duties without fear saying the independence of the Judiciary and their constitutional duties are protected by the constitution.

In a statement following the arrest of two judges on Thursday, Justice Koome said no formal report had been made to her as the head of the Judiciary or the chairperson of Judicial Service Commission (JSC).

She however, said High Court judges Aggrey Muchelule and Said Chitembwe notified her that they recorded statements at the Directorate of Criminal Investigations headquarters, after a search was conducted at their chambers at the Milimani law courts.

Justice Koome said the arrest of the two judges had caused anxiety among judges and judicial officers and but urged them to continue discharging their duties without fear.

The two Judges were picked yesterday afternoon as they headed for lunch and turned back to their chambers where a search was conducted, but which did not yield anything.

They were later driven to DCI headquarters where they recorded statements.

The CJ said because a case has been filed before the High Court, she would not make any comments but will await the findings of the investigations and make a statement at the ‘opportune time’.

Kenya Magistrates and Judges Association also issued a statement condemning the arrests saying it was meant to intimidate the judges.

“We believe that this intimidation is part of the wider agenda by outside forces to influence the judiciary in its operations,” KMJA secretary general Derrick Kuto said.

KMJA expressed concerns about the sustained and ill-advised pattern of public attacks, “directives” and intimidation against the judiciary and more importantly against individual judges and magistrates.   

Through SG Derrick Kutto, the association said that the arrest and latest is the brazen attempt by the DCI to harass, intimidate and malign the good reputation of Justice Aggrey Muchelule and Justice Said Ali Chitembwe yesterday.

The search conducted yesterday in which the DCI officers involved created a scene at the offices, manhandled the judges by pushing them around while shouting at them to go back to their chambers as they stepped out for lunch was gross, wrong, wicked, immoral and disrespectful to the senior judges. It was an open insult to them.

SG Kutto added that the fact that public investigations against the judges are being conducted in secrecy without information on the complaint or complainant, that the search found nothing, and that the judges were then asked to record statements on activities of the day, confirms our position that this is pure harassment with the intention to instil fear in judges.

“This pattern by the DCI to intimidate and harass judges is ancient and old school. It is a wellrehearsed script from the archives to police and instil fear in judges and judicial officers as used to happen sometimes back.

The ultimate goal is for Judges and Judicial officers working while fearing a prefect on their shoulders. One wonders who sanctioned these illegalities with the Director of Public Prosecutions (DPP) having denied being aware of any complaint against the said judges,” Kutto added. 

WHY COURT STOPPED PROSECUTION OF JUDGES MUCHELULE, CHITEMBWE.

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BY SAM ALFAN.

The High Court has barred Director of Public Prosecution Noordin Haji and Director of Criminal Investigations George Kinoti from arresting or charging Judges Aggrey Muchelule and Said Chitembwe.

Justice Jairus Ngaah also suspended any further action by the DCI and the DPP against the two High Court judges.

The Judge said in order to maintain the substratum of the suit and so as not to render the substantive suit futile, the leave granted to quash the planned charges will operate as stay of any action by the police.

“To be precise, the leave granted hereby stays any decision or action to investigate, summon, arrest or charge the applicant on anything connected with the search conducted in the applicant’s Chambers on July 22,2021 pending the hearing and the determination of the substantive motion or until such further orders that this Court may deem fit to issue, ” Judge Ngaah ruled.

Former Kiambu Magistrate Bryan Khaemba moved to court seeking to block the DCI and the DPP from charging the two judges after they were picked up a day earlier and questioned over corruption allegations.

Lawyer Khaemba pleaded with the court to issue an order prohibiting further arrests of or preferring any charge against the two judges.

He recalled that detectives conducted an ‘illegal search on the judges’ chambers on July 22, 2021 and later took them for questioning.

“That upon leave being granted, the same do operate as stay of any decision to arrest, charge, investigate or summon the ex-parte Applicant connected with the unlawful and illegal search conducted in the ex-parte Applicant’s Chambers on 22nd July 2021 and the resultant arrest pending the hearing and determination of the substantive motion, ” urged Khaemba.

Khaemba said officers under the command of the DCI and DPP stormed the judges’ chambers at Milimani Law Courts ostensibly to conduct a search on suspicion that one of them was about, or had received an unknown amount of money from an undisclosed source.

The said search, he added, did not yield anything but the officers caused the arrest of the two judges and intent to charge Justice Muchelule without disclosing to him the reasons for the arrest, the particulars of the complaint and the identity of the complainant.

He said both DCI and DPP have abused their authority and power to arrest and detain the two judges without conducting any criminal investigation and it is in the interest of justice that the intended prosecution or any further arbitrary arrest of the judges be restrained pending the hearing and determination of the substantive motion challenging the legality of the entire decision.

He told the court the judges’ risked being charged, if the court did not intervene and stop the intended prosecution.

JUDGE MAKES FINAL ATTEMPT IN OUSTER BID.

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BY SAM ALFAN.

A petition filed by embattled High Court Judge Martin Muya will be heard by the supreme court.

He is challenging the recommendation made by a tribunal last year that he should be sacked.

The constitution allows judges whose sacking has been recommended by a tribunal, to contest the decision before the apex court.

Former supreme Court Judge jackton ojwang had survived the petition seeking his removal.

The tribunal was chaired by former Court of Appeal judge Alnashir Visram.

The tribunal found him guilty of gross misconduct after he delayed giving reasons for a ruling he had made for five months.

The recommendations by the seven-member tribunal chaired by Justice Visram presented its report to President Uhuru Kenyatta on March 20, last year asking for his removal.

The dispute revolved around a loan borrowed by Kipsigis Stores from NIC Bank and used 14 lorries as security.

The company fell into arrears and the lender seized them, with plans to auction the vehicles only for Kipsigis stores to seek an injunction.

The tribunal found the Judge’s action for not giving reasons for stopping the sale occasioned the loss of Sh76 million to the lender.

But the judge through lawyer Philip Nyachoti has defended himself saying he ordered a ‘status quo’ which was to ensure that the possession of the lorries remained as they were, until further orders of the court.

He further said the orders did not allow Kipsigis stores to sell or dispose of the lorries.

According to the Tribunal, there was unjustifiable and inordinate delay by the Judge in delivering the ruling for the injunction of an application pending before him.

“The Tribunal is of the view that the Hon. Judge misconducted himself by delaying to deliver the reserved reasons with the result that access to justice was curtailed and specifically with respect to the Defendant,” the Tribunal said.

But through lawyers Ngatia and Nyachoti, the judge moved to the Supreme Court to challenge the decision arguing that he explained the delay because the file was missing.

Lawyer Nyachoti further says in the court documents that there was no valid petition before the Judicial Service Commission (JSC).

NEWLY APPOINTED JUDGES FOR LABOUR, LAND COURTS TO START WORKING ON AUGUST 1.

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BY NT CORRESPONDENT.

Twenty-seven newly appointed judges of the Environment & Land Court (ELC) and the Employment & Labour Relations Court (ELRC) will report to work on August 1.  

Chief Justice Martha Koome said during an induction workshop for the judges that eight of the judges will sit full-time in newly established Environment and Land Courts, bringing the total number of ELC judges in the country to 34 at the county level.  The ELC now has 51 judges following the latest appointments.  

The new ELC stations are in Nyamira, Kilgoris, Siaya, Vihiga, Kwale, Isiolo, Homa Bay and Nanyuki.  

CJ Koome who spoke to the judges ahead of their deployment said she now hopes to see improved access to justice and expeditious disposal of cases.  

“Your appointment brings hope to Kenyans seeking justice through your courts,” she told the judges at the Safari Park Hotel.   

The CJ said approximately 60 per cent of cases adjudicated in courts are land matters or have a land related dimension.

She added that the implication is that the ELC either in its original or appellate jurisdiction deals with the bulk of cases in Kenyan courts.

The ELRC, which got an additional 9 judges, now has three full-time judges in Kericho, Malindi and Bungoma.  

The court has 13,500 cases pending, with the bulk of cases at 9,500 being in Nairobi.  The court has nine fully fledged registries in Nairobi, Kisumu, Kericho, Nyeri, Mombasa, Eldoret, Nakuru, Bungoma and Malindi.   

CJ Koome said Kenyans were yearning for and deserve accessible and expeditious delivery of justice. 

 “Every Judge must take individual initiative to reduce backlog and ensure that we hear and determine cases in a timely manner. My expectation is that no case should take more than three years before a trial court and no more than one year in an appellate court,” she emphasised.  

She urged the judges to embrace active case management to deal with the backlog and the expected increased case filings.  

She stressed that case management should be court driven and should not be left to litigants and advocates to determine the way cases are managed.  

“You must reduce the number of adjournments and strive to resolve cases with fewer hearings. Always endeavour to make each case hearing date meaningful. You must discourage interlocutory applications and preliminary objections.”  

She assured that her administration will give the judges adequate support to discharge their duties.   

CJ Koome pointed out that both courts are critical for the development of the indigenous social justice jurisprudence decreed by the transformative 2010 Kenya Constitution.   

“Our Constitution is unique in its preoccupation with values, principles, rules, and policies touching on the environment and land, and fair labour practices. We must ensure that these values and principles radiate to every nook and cranny of our legal system,” she said.  

The Chief Justice asked the judges to inspire public trust and confidence in the judicial functions they undertake by being sensitive and more responsive to litigants.  

“They have a right to be informed of the orders which affect them, to understand the same and the reason why the orders have been made. You must go out of your way to treat litigants with politeness, dignity, and respect.”  

She said judges and other judicial officers should exhibit independence, impartiality, and consistency in their decisions. “Embrace excellence, innovation, and accountability,” she advised.

TYCOON MOHAN GALOT DENIES SH2 BILLION TAX EVASION CHARGES.

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BY SAM ALFAN.

Tycoon Mohan Galot and his company London Distillers Kenya Limited has been charged with over Sh2 billion tax evasion.

Mohan Galot who is the Director of the distiller appeared before Milimani Chief Magistrate Martha Mutuku and denied a total of 18 counts.

Galot is accused of unlawfully omitting excise duty returns for the year 2017 production volumes totaling to 5,563 litres of ready to drink 4,330,720 litres of spirit which ought to have been declared to KRA. It is alleged that he committed the offence between January 1 and December 31, 2017.

The prosecution told the court that Galot and his company failed to pay excise duty amounting to Sh814,531,858 for the year 2017.

The court also heard that between January 1 and December 31,2019, Galot being director of LDK, he unlawfully omitted from value added Tax returns for the year 2019 sales totaling to Sh344,084,000 which ought to have been declared to the commissioner as required by the law

A probe into London Distillers (K) Limited found that the firm and its director devised a scheme to evade taxes, including excise duty on locally manufactured spirits, VAT and Corporation taxes.

Investigations revealed that the Taxpayer engaged in a scheme of gross under-reporting of production and sales volumes and purchase of packaging materials through associated firms.

He pleaded not guilty to all the counts and released on a bond of 5 million or alternative cash bail of Sh1 million to be released.

The case will be mentioned on August 9.

COURT SUSPENDS IMPOSITION OF EXCISE DUTY ON IMPORTED FURNITURE.

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BY SAM ALFAN.

The High Court has suspended the imposition of 25 percent excise duty on all imported furniture.

Justice Anthony Mrima issued conservatory orders suspending the imposition of excise duty, following a petition by activist Okiya Omtatah.

Okiyah Omtatah told the court that the National Assembly mischievously sneaked in the 25 percent import duty on all forms of imported furniture into the Finance Bill 2021 at the Bill’s Third and Final Reading, being a stage in the legislative process when substantive amendments to Bills are prohibited by the Standing Orders of the House.

He argues that this was made without public participation. “The imposition of 25% Excise duty on imported furniture under Tarrif No. 9304 in the Finance Act, 2021 be a and is hereby suspended pending inter-parties hearing of Notice of Motion dated July 5,2021,” ruled Judge Mrima.

The judge observed that the case was indeed unique in several ways including the rejection by Treasury to impose tax in the issue and possibility of brewing conflict with other member states of East Africa Community (EAC).

“It is the unique nature of this matter this court is of the considered position that upon the consideration of the material on record and having in mind the guiding principles in granting of conservatory orders, that the imposition of impugned excise duty be suspended pending inter-partes consideration of the application,” said Judge Mrima.

Further, effecting the changes at the tail end of the legislative process means that the amendments were passed without Public Participation, which is a violation of the Constitution.

Omtatah urged the court to note that the imposition the impugned excise duty was first considered by the departmental committee of Finance and National planning and the Committee subjected the intention to impose the impugned excise duty to public participation.

Among those who made presentations before the committee included an association of importers of furniture known as Furniture Importers Group and ministry of National Treasury and Planning.

According to Omtatah, the Furniture Importers Group expressed their reservations of the impugned excise duty and National Treasury did not also support the imposition of the impugned excise duty.

Omtatah added that at the close of stakeholders’ the committee considered the matter further and the Committee report dated May 4,2021 recommended that the Excise Duty (Amendment) Bill (National Assembly Bill No. 47 of 2020 referred to as ‘the Amendment Bill’ which intended to impose the impugned Excise Duty be deleted in its entirety.

It was Omtatah’s utter shock and surprise, when the report was tabled before the National Assembly, the amendment Bill was reintroduced on the floor of the house and wholly passed.

Attorney General opposed the application seeking the interim orders saying parliament is the only institution invested with the sole mandate to make laws including the passage of amendment Bill.

COURT BLOCKS EACC FROM RECRUITING DEPUTY CEO.

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BY SAM ALFAN.

A judge has blocked Ethics and Anti-Corruption Commission (EACC) from recruiting or appointing the commission’s Deputy Chief Executive officer.

Employment and Labour Relations Court issued the order barring the commission from recruiting, conducting interviews or appointing the Deputy CEO pending hearing and determination of a petition filed by Kevin Otieno Odongo.

“An order of temporary injunction be and is hereby issued restraining the Ethics and Anti-Corruption commission from conducting interviews, recruiting, nominating or appointing any person to the position of Deputy Chief Executive officer pending and determination of the Petition, ” Justice Nzioki wa Makau ruled.

Odongo filed case seeking to compel the commission confirm Abdi Mohamed Ahmed to the position for a term of five years.

Ahmed was appointed to the position in an acting capacity in 2019 and has serving in the said position since then.

The commission put up a job advertisement on its website, inviting the public or qualified persons to apply for the position of Deputy CEO.

The deadline for the applications is Monday, July 19, 2021 at 5pm

“The action of the commission is in contravention of section 34 of the public Service Commission Act since the Interested Party has served in the said position for a period of over six months,” he said adding that the commission is also in contravention of Fair Labour Practices as the acting DCEO and the public had a legitimate expectation after a long period in the position.

He argues that the advertised post is currently being held by Ahmed who has all the requirements for the job including academic qualifications, skills, experience, discipline, high ethical standards and integrity.

The process of advertising recruiting and appointing of a Deputy CEO will only amount to waste of public resources as the same is challengeable for being in cor travention of the Constitution of Kenya, the Public Service Commission Act and fair labour practices.

“If this court does not intervene and issue the orders of injunction sought, the commission will proceed with the process recruitment, interviewing and appointment of a Deputy Chief Executive Officer of the Ethics and Anti-Corruption Commission and the public hall stand to suffer loss of its resources which will be used in the said process, ” he added.

He said the court has a duty to uphold, protect, and promote the ealization of fundamental rights and freedom, the Rule of Law, the Constitution and to protect public interest.

WILLIE KIMANI : INVESTIGATING OFFICER EXONERATES COP IMPLICATED IN THE TRIPLE MURDER.

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BY SAM ALFAN.

The Investigating officer into the murder of lawyer Willie Kimani, his client Josephat Mwenda and driver Joseph Muiruri has exonerated administration police officer Sylvia Wanjiku from the triple murders.

Nicholas Ole Sena told trial Judge Jessie Lesiit that from the communication data, the officer did not feature as being part of the conspiracy to murder the lawyer, the client and the taxi driver.

He also said although Wanjiku was on duty on the fateful day, when the trio were brought to the post, he only undoing was failing to report to her seniors.

The three went missing on June 23, 2016 after a court hearing in Syokimau and their mutilated bodies were retrieved a week later at Oldonyo Sabuk River, stashed in gunny bags
While being cross-examined by Wanjiku’s lawyer Katwa Kigen, the officer said Wanjiku did not appear on the CCTV camera or data calls, linking her to the murders.

He said the investigation largely dependent on the use of police radio, mobile phone and CCTV footage but Wanjiku never featured in any of them.

Wanjiku is charged alongside Fredrick Leliman, Stephen Cheburet and Leonard Mwangi and police informer Peter Ngugi.

The advocate was working with International Justice Mission, an organization that together with IPOA has been investigating cases of police brutality and extra-judicial killings.
One of the handset which was being held by one of the officers showed that it was at Mavoko Law courts, on June 23, 2016, the day the three victims disappeared.

The signal later moved Syokimau police post and in the evening, to an open field an area he said is known as SOWETO.

Police suspect that the three was tortured to death in the open field before the bodies were dumped in a river miles away.

Chief government Pathologist Johansen Oduor, who testified a few months ago, said the three had fractured skulls and injuries on the chest, neck and face. According to him, the three were ultimately bludgeoned to death using a blunt object. They were hit on the head, he said.

IPOA OPPOSES RELEASE OF DCIO IMPLICATED IN THE KILLING OF SECURITY OFFICER IN EMBAKASI.

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BY PHOEBE WANJOHI.

Independent Police Oversight Authority has opposed the release on bond, the 53 year old Embakasi DCIO who is accused of murdering a security guard.

Through the investigating officer Jane Ndusya, IPOA opposed the release of Simon Mutia Mwongela on bail, saying he is an influential person and might interfere with witnesses, if released.

She said several prosecution witnesses who are of lower ranks in the said service, might be intimidated and there is legitimate anxiety about the impact and influence he may have on the said witnesses if he is released pending trial.

“Several civilians Prosecution witnesses in this case are very well known to the accused person and there is a high likelihood that if released on bond or bail the accused person will threaten, intimidate, coerce, interfere or in any other way try to influence the said witnesses,” IPOA investigator told the court.

She said when the DCIO was arrested, he threatened the police officers that no one should go near him, lest he will shoot them. Ndusya said there is a likelihood that if released on bond or bail he will threaten, coerce, interfere or in any other way try to influence the said junior officers.

The court further heard that the DCIO resides near scene of crime and he is in charge of investigations within the neighboring jurisdiction of the scene of crime.

“There is high likelihood that if released on bond or bail the accused person will threaten, intimidate or influence the civilian witnesses,” she added.

But according to probation officer report, Mwongela who is a son of small scale farmers from Meru County, his family is disturbed that he facing murder charges at the sunset of his long career in the police force.

He pleaded with the court to be granted lenient bond terms, promising that he will not run away from justice saying that Kenya is home and he does not have second home.
He said he has permanent residence so not a flight risk and his cousin is ready to bail him out using his lock book.

Mwongela said he attends Nairobi Gospel Centre and he is a social drinker and does not have previous arrest or convictions. He spends most of the leisure time with his family.

According to the probation report, the deceased family said they do not oppose the bond terms claiming that the accused is innocent until proven otherwise and that they do not want to hold on innocent person. They said they want their loved one to rest in peace therefore they are not supporter of punitive justice.

They even want the court to embrace restorative justice rather than the punitive justice, in the event the accused is found guilty of the offence at the conclusion of the case. The deceased was of Tanzanian origin.

The probation officer recommended the accused to the accused can be considered for a reasonable bail or bond terms pending the murder trial.

He is charged with the murder of security guard Lapaja Topiwo Laizer.