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SUSPECT ACCUSED OF BITING POLICE OFFICER WHILE RESISTING ARREST.

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BY SAM ALFAN.

A man was on Tuesday arraigned and charged with biting a police officer and resisting arrest.

Peter Kirimi Kanogi alias Tosi appeared before Milimani Senior Principal Magistrate Kennedy Cheruiyot and denied the charges.

The court heard that on December 8, 2019 at Tsavo-Accra junction in Nairobi, Karimi resisted being arrested by corporal Munuku Kitavi and he allegedly bit his ear lobe. He is accused of punching the officer on the lower lip, as the cop was carrying out his duty.

The court ordered him to deposit cash bail of Sh200,000 and alternative bond of 600,000, to secure his release.

The court fixed the mention of the case for December 16.

OPERATIONS OF THE CHILD WELFARE BODY TEMPORARILY STOPPED.

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BY SAM ALFAN.

The high court has frozen the operation of the Child Welfare Society of Kenya bank account held at the Kenya Commercial Bank.

Justice Weldon Korir issued orders freezing the child welfare society of Kenya account No. 1267069430 of held at the Kenya Commercial Bank’ Capital Hill Branch pending hearing and determination of the matter.

“An interim order is hereby granted freezing the operation of the account No. 1267069430 of the Child Welfare Society of Kenya held at the Kenya Commercial Bank’ Capital Hill Branch pending the mention of the matter before Judge David Majanja on December 17, 2019”, Judge ordered.

The judge also transferred the matter to the Commercial Division and directed it to be placed before Justice David Majanja on the December 17, 2019 for directions.
Omtatah filed application seeking conservatory order suspending solicitor general , ministry of labour and social services, attorney general, the national treasury, Shakila Abdalla, Doris Kinuthia,Ibrahim Maalim, Cherly Majiwa, Peter Ibrae, Abdul Bahari , equity Bank and Welfare Society of Kenya decision to change signatories to the existing accounts of the CWSK, open new accounts of the CWSK and act as agents of the CWSK.  

The activists seeks pending the inter-partes hearing and determination of this application or the petition court be pleased to issue a temporary order compelling the respondents to reopen the following accounts of the Child Welfare Society of Kenya held at Equity Bank Kilimani Supreme Branch- Child Welfare Society of Kenya – Towa Account No. 0150295282488, Child Welfare Society of Kenya – (OVC) Account No. 0150291898416, Child Welfare Society of Kenya – Development Account No. 1470262374154, child Welfare Society of Kenya – Account No. 1470262150253, Child Welfare Society of Kenya – Account No. 1470262150225 , Child Welfare Society of Kenya – (Recurrent) Account No. 0150291898458 

“Pending the inter-partes hearing and determination of this application and/or the petition, the court be pleased to issue a temporary order closing (or suspending the operation of) Account No.1267069430 of the Child Welfare Society of Kenya held at the Kenya Commercial Bank’s Capital Hill Branch”, added omtatah.

He constitutional rights of the Society’s members have been interfered with whereby the Society has illegally been placed under persons who are not members of the society which is likely to interfere with members’ participation in the management of the Society.   

He said on Friday November 15, 2019, some Kshs. 117,200.00 million was transferred to the Bank Account No.1267069430 of the Child Welfare Society of Kenya held at the Kenya Commercial Bank’s Capital Hill Branch.  

” There is a great risk that the money will be misappropriated and the petition is a request that monies deposited in the account be returned to the Consolidated Fund”, Omtatah told the court. 

He said the opening of the impugned bank account was irregularly facilitated by the solicitor general , ministry of labour and social services and attorney general who are public officials who abused their power and acted ultra vires by meddling in the internal affairs of the Child Welfare Society of Kenya (“the CWSK”) by usurping the functions and powers of the Registered Trustees of the CWSK. 

He added that the case is extremely urgent that the application be heard immediately since the respondents have taken action to change signatories to existing accounts of the Child Welfare Society of Kenya, and also to open a new account with signatories who are strangers to the Trustees of the Child Welfare Society (CWSK) of Kenya.  

The decision by the respondents to close bona-fide bank accounts belonging to the Child Welfare Society of Kenya, and to irregularly and unlawfully open others not controlled by the trustees of the CWSK, has paralysed the operations of the CWSK and put the lives of the many children in their care in jeopardy. 

NEW KENYA PIPELINE BOSS STOPPED FROM ASSUMING OFFICE.

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BY SAM ALFAN.

Employment and Labour Relations Court has blocked the newly appointed Kenya Pipeline Managing director from assuming office.

Lady Justice Hellen Wasilwa ordered the status quo be maintained in the office of Kenya Pipeline Company Managing Director pending the hearing and determination of the petition challenging his appointment.


This is after activist Okiyah Omtatah filed application under certificate of urgency seeking to be heard urgently and be heard ex parte.

“Pending the inter-partes hearing and determination of this application or the Petition herein the court be pleased to grant an order suspending the appointment of Macharia Irungu as the new Managing Director of the Kenya Pipeline Company (KPC) with effect from 2nd January 2020”, court documents states.


Omtatah urged the court to issue a temporary order prohibiting Kenya Pipeline Company Board and Petroleum and mining cabinet Secretary John Munyes or any person claiming to act under their authority from proceeding to give effect to the appointment of Macharia Irungu as the Managing Director of the Kenya Pipeline Company.

He is further seeking an interim order compelling the board and the Mining CS to produce the scoring sheets showing how each member on the panel ranked candidates, the scores awarded to each candidate by each member of the committee, and the criteria used in selecting the three shortlisted candidates.


According to a statement from the Petroleum and Mining Cabinet Secretary John Munyes, Irungu emerged the best applicant among other 88 applicants who were interviewed by the board of directors.

The appointment is faulted on the grounds of nepotism and favouritism contrary to the express provisions of Articles 73(2)(c) of the Constitution, which provides that, “The guiding principles of leadership and integrity include objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices.” added Omtatah.

He said the KPC Board is tainted with unconstitutionality and illegality to the extent that five out of its nine members are from one tribe.

He added that the recruitment which has been carried out by the Board to fill the vacant position of the Managing Director of the Kenya Pipeline Company was conducted in contemptuous violation of very clear provisions of the Constitution and national legislation. 

“The impugned recruitment process was so tainted with violations of the law, including the Constitution that it must be called out and be quashed by the Court and the recruitment process was opaque and not transparent and accountable, and no provisions have been made for public participation at any stage in the entire recruitment process”, said Omtatah.

He said that no lists of applicants were advertised or publicised and no lists of shortlisted candidates were advertised or publicised.

The public were not invited and were not given the opportunity to comment on shortlisted candidates and the times and venues of the interviews were not advertised or publicised in advance.

KPC board directors on July 19, 2019 invited suitably qualified candidates to apply for the post of Managing Director. The deadline for applications was 5.00 pm on August 2, 2019.  “No long list of applicants in the first advert was published.

However, in the Re-advertisement for the job which closed at 5.00 pm East African Time on Monday, October 14, 2019, it was claimed that “On scrutiny of the applications, the Board did not find an adequate number of qualified applicants to proceed to the next stage of interviews”, added Omtatah.

He said the claim does not hold water since, in the same breath, the allegation was contradicted by the call in the second advert that, “All those who had applied earlier need to re-apply.”.

He argued that if it was true that applicants to the first advert were not qualified, why ask them to engage in an exercise in futility by reapplying for the job they were not qualified for, instead of notifying them that they were incompetent and should not apply? asked Omtatah.

He questioned that, if no candidate in the previous recruitment exercise actually met the mandatory criterion set by the KPC board of directors, it is weird that it still was the respondent’s considered opinion that the said individuals were still eligible to apply for the job in the repeat recruitment process. Any reasonable and competent employer finding itself in such a predicament would re-advertise the position with an explicit proviso that previous unsuccessful candidates would not be eligible to apply. 

“Failure to disclose the outcome of the first advert went against Article 35(3) of the Constitution on the right to access information as read together with Section 5 of the Access to Information Act, 2016 and the second advert was irregular and unlawful since the applicants of the first advert didn’t know what happened to their applications”, Omtatah said.

He said he reasonably suspects that, contrary to Article 73 of the Constitution, the decision to cancel the first recruitment process was influenced by nepotism, favouritism or other improper motives or corrupt practices, to the extent that the earlier recruitment exercise was abandoned not because it was not responsive but because a preferred candidate did not meet the minimum requirements.   

GRAND MANOR HOTEL OWNER FAILS TO CONVINCE COURT WHY CITY COUNTY GOVERNMENT WAS WRONG IN DEMOLISHING THE BUILDING.

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controversial multi-million Grand Manor Hotel situated in the upmarket area of Gigiri.

BY SAM ALFAN.

The Court of Appeal has dismissed a case filed by a developer whose hotel was demolished last December.

Three judges of the Appellate Court ruled that the application by Whitehorse Investments ltd, the developer of Hotel Grand Manor, near UN headquarters in Gigiri, had no merit.

The five-star hotel, which is being constructed in Gigiri next US embassy was demolished in December 2018 after the owner failed to convince Employment and Labour relations court to stopped notices, issued to the owner, demanding the structure to be pulled down.

The owner appealed but the Appellate Court said that the learned judge cannot be faulted for dismissing the case. “We find no merit in this appeal which we dismiss with costs to the Nairobi County Government,” court ordered.

Justice Benard Eboso dismissed the petition by Whitehorse Investments limited, saying the businessman had failed to appeal against the decision by the County Government at the physical planning liaison committee before moving to the Environment and Land Court.

 He said the petition before him was premature. 

Early January Court of Appeal suspended further demolition of multi-million-shilling Grand Manor Hotel near the US Embassy and United Nations office in Gigiri owned by businessman Praful Kumar.

Appellate Judges Mohamed Warsame, Daniel Musinga and Prof Otieno Odek directed the order of stay to operate pending hearing and determination of the appeal filed by the Kumar.

“In the mean time status quo the property L.R. NAIROBI/BLOCK 91/239 to be maintain pending hearing of the appeal” ruled the Judges.

This is after the Grand Manor hotel filed an appeal seeking orders to stop further demolition of the hotel.

Nairobi County Government had served the businessman with enforcement notices December 14, 2017, requiring them to stop further construction of the hotel.

But the businessman said he had obtained all the required approvals from the County for the construction of the hotel along UN Avenue of Limuru road. He claimed he was shocked to receive the letter asking him to stop further construction and remove the foundation.

Attempt by Whitehorse Investments limited lawyer Kithinji Marete to secure stay orders pending appeal were decline despite endless effort to plead with the judge.

He told the court that , U.S embassy is behind the the demolition and they have been conduct surveillance on the top of the multi-million hotel.

The court heard that the project was 75 per cent complete and he had spent over Sh200 million in the construction. He further told the court that he had paid the inspection fee of Sh2.9 million and it was upon the County Government to undertake the inspection because it was their duty..

The proprietor maintained that the letter was malicious, unreasonable and the County was shifting the burden to him.

The building owner told Justice Eboso that the construction had not been condemned and it did not pose any risk, including health to the residents nearby.

The court heard that the hotel was being constructed with high standards by reputable contractor and supervision was being done by qualified professionals.

On its part through lawyer Harrison Kinyanjui, the County Government said the notice was issued with Section 30(1)of the Physical Planning Act and the Nairobi County building by-laws, a legal framework which is geared towards containing and controlling developments within the City.

Lawyer Kinyanjui said the Act provides for mechanism for appeal to the liaison committee, which the proprietor had ignored. He further said the owner had ignored the Physical Planning Act and was trying to use the court to propagate the impunity.

MAN TAKES ON GIANT TELCO SAFARICOM OVER M-PESA OUTAGES.

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BY SAM ALFAN.

The telecommunication giant company Safaricom is facing a legal battle from an M-pesa customer for various disruptions, which he said has led to substantial losses its subscribers.

Martin Muiruri Ndung’u suid Safaricom PLC on his own behalf and on behalf of all registered M-pesa customers. He has accused the giant company of negligence over the continued outages.

He wants the court to enter judgment against Safaricom PLC jointly with Central Bank and Communication Authority of Kenya for the outage credits for the period of time when the M-pesa platform was not operational and general damages for the disruptions..

He wants all M-pesa customers compensated by Safaricom for failing in their duty to protect customers, users, subscribers against the lapses.

Muiruri is seeking the court to order CA and CBK to impose requisite fines against Safaricom PLC as are imposed in other jurisdiction and damages for neglect.

 He also wants the regulator to mediate a complaint dated December 14, 2018 and for various disruptions that have led to substantial losses to the M-pesa customers , users and subscribers.

“The plaintiff (Martin Muiruri) claim against Safaricom PLC as well as on own behalf and on behalf of all class of persons being all the registered M-pesa customers, users, subscribers is outages credits as envisaged by the Kenya Information and communications (customers protection) regulations, 2010 and damages against all three defedants for breaching the M-pesa customers, users and subscribers rights in breach of the constitution of Kenya ,2010 and consumer protection Act,2012”, said Muiruri.

According to documents filed before Milimani Commercial Court obtained by NairobiTimez, he claims all registered M-pesa customers, users and subscribers have a common interest and the class action herein has the ingredients of commonly , adequacy , numerousity and topicality.

He accuses Safaricom Company for failing to make sure that cost cutting measures by the Safaricom does not cut down on the reliability of the M-pesa services and the safety of the customers, users and subscribers hard earned money.

Muruiri told the court that the consequences of the outage to M-pesa customers caused inconvenience, embarrassment of customers remaining in darkness for being unable to purchase utility tokens, detention of customers in bars , restaurants , petrol stations , hospitals , shops and all other M-pesa outlets for being unable to settle their bills.

He accused CA and CBK of failing to ably supervise and surveillance the conduct of Safaricom so as to protect M-pesa customers from regular system outages and promote their best public interest.

“Failing to monitor the quality of service offered by the Safaricom company leading to M-pesa platform outages that ground customers, users and subscribers needlessly and failing to maintain a network performance monitoring systems”, claims Muiruri.

Muruiri also accuses CA for failing to keep and update of records from Safaricom by monitoring the real time traffic in the Safaricom’s network and being unable to identify outages without relying on reports from aggrieved customers and the Safaricom.

He accuses CA of failing to oversee that Safaricom takes measures of network performance and quality data services and being lenient with Safaricom despite the company failing the regulator’s threshold of service provision.

Muiruri said CA has failed to be proactive to ensure digital markets work for the customers , users, subscribers and thereby contributing to erosion of consumers , users and subscribers trust.

” CA has failed to promote consumers , users , subscribers awareness regards the potential risks when dealing with M-pesa services and how consumers , users, subscribers can protect themselves and protected by the CA and CBK using the outage credit facilities and other available protection methods ad a deterrent to Safaricom impunity “, added Muiruri.

He said the company is focusing on enforcement and not compliance to the detriment of customers ,users and subscribers of the Safaricom’s M-pesa service and failing to evaluate and monitor the performances and trends of the Safaricom PLC through market analysis and reporting of data collected from the Safaricom pursuant to the company’s license conditions with the intentions of denying information to the general public.

Muiruri told the court despite demand and notice of the intention to sue being given, Safaricom has formally denied that Muiruri has locus to sue on behalf of the M-pesa customers and expressly disputed the contents of the demand whilst the CA and CBK have neglected or failed to mediate the dispute as enunciated in the memorandum of complaint dated December 14,2018 against Safaricom within the legal timelines.

He argued there is no other suit pending and that there has been no previous proceedings in any court between him and Safaricom in respect of the subject matter.

OMTATAH CHALLENGES APPOINTMENT OF BUDGET BOSS MARGARET NYAKANG’O.

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BY SAM ALFAN.

Human rights activist has moved to court seeking to quash the appointment Margaret Nyakang’o as the Controller of Budget.

Okiyah Omtatah claims that Nyakang’o does not have the minimum qualifications set by the Constitution and that the body which recruited her was incompetent under the Constitution for the task.

Under certificate of urgency, Omtatah seeks the appointment be suspended pending hearing and determination of the case.

“Thee matter is extremely urgent since in a move that smacks of collusion between the National Assembly, the Presidency, and the Chief Justice, Ms. Margaret Nyang’ate Nyakang’o was approved for appointment, appointed, and sworn into office in the span of a few hours”, added Omtatah

 “Pending the inter-partes hearing and determination of this Application and the Petition herein the Court be pleased to grant an order suspending the appointment of Ms. Margaret Nyang’ate Nyakang’o as the Controller of Budget”, urged Omtatah.

He wants the court to issue a temporary order of prohibition prohibiting Ms. Margaret Nyang’ate Nyakang’o from accessing the office of the Controller of Budget and from executing the mandate of the Controller of Budget. 

The new controller of budget Dr. Margaret Nyakango was sworn in yesterday by chief justice David Maraga at the Supreme Court. 

Maraga said the Office plays an important role in ensuring the prudent and planned use of public funds..

He argue that Section 4(2) of the Controller of Budget Act,2016 pursuant to which Ms. Margaret Nyang’ate Nyakang’o was appointed to office was and is wholly inapplicable as it applies only to cases where the previous occupant of the office has resigned in writing to the President, has been removed for violating the Constitution or is dead which was not the case at the material time. 

 Omtatatah further add the the Act does not provide for commencement of appointment of new office holders when the term of office ends due to operation of the law. 

 “Nyakang’o does not meet the mandatory minimum constitutional qualifications set under Article 228(2) as read together with Articles 250(3) and  73(2)(a) of the Constitution, for appointment to the position of Controller of Budget. Further and in particular”, claim Omtatah.

He claim that the new appointed controller of budget does not have extensive knowledge in public finance, acquired through extensive training in public finance and practical experience in public finance management and does not have extensive training in public finance, which include training in all aspects of public finance (taxation, expenditure and budget, and deficit financing and debt management). 

He aver that Nyakamg’o does not have extensive application or experience in public finance which include applied experience in public finance management (taxation and tax administration, expenditure and budgeting, deficit financing and debt management). 

 “She does not have at least ten (10) years’ experience in auditing public finance management acquired through continuous working in auditing public finance management of a whole-of-government, including possessing the minimum professional qualifications requirements set out for the position of Auditor General under the National Audit Act”, adds Omtatah.

 He claim that it is not demonstrated from Ms. Nyakang’o’s profile, which is posted online at www.linkedin.com/in/cpa-dr-margaret-nyakang-o-b4aaa417, is publicly available, and was accessed by the petitioner on 6th December 2019, that she has “extensive knowledge of public finance or at least ten years experience in auditing public finance management.

 The fact that she has worked for 10 years at the Kenya National Bureau of Statistics as Director Finance & Administration, from November 2008 – October 2018, does not make the mark of “at least ten years experience in auditing public finance management.” She is still disqualified under the doctrine of close enough is not good enough in constitutional thresholds. 

 Nyakang’o’s is not extensively trained and experienced in public finance as required by the Constitution, but only has training in finance and ten (10) years’ experience in financial management of private sector/businesses as Director of Finance at the Kenya National Bureau of Statistics, a quasi-public entity dealing with statistics compilation. 

Omtatah further argue that the training of accounts and finance management is not the same as training public finance. Such a person would only be employed in accounts department of any ministry and departmental agency of government. What the Constitution requires is a qualification of extensive knowledge in public finance, which is the study of the role of government in the economy; or the study of government taxation, expenditure and deficit financing on resource allocation, distribution of income and macroeconomic stability for the welfare of the economy and households.

” This is a branch of economics that assesses the government revenue and government expenditure of the public authorities and the adjustment of one or other to achieve desirable effects and avoid undesirable effects. Public finance management, whose audit for at least ten (10) is a requirement means the set of laws, rules, systems and processes used by sovereign nations (and sub-national governments) to mobilize revenue, allocate public funds, undertake public spending, account for funds and audit results”, Omtatah claim 

 He claim that when Nyakang’o’s qualifications are held against Articles 228(1) and 250(2) it is clearly demonstrated that she does not meet the minimum mandatory constitutional eligibility requirements set under article 228(2) as read together with articles 73(2)(a) and 250(3).  

“That is because she did not meet the minimum requirements for appointment, any other qualifications she presented besides that which is specifically set by the Constitution as elaborated and defined above, and any actions arising from the exercise of delegated power in relation to the process by any authority/State officer/State organ to; nominate, approve, and appoint such a person without the minimum qualification requirements set out in Articles 228(2), 73(2)(a) and 250(3) as Controller of Budget, is inconsistent with the Constitution, and as such null and void to the extent of inconsistency and, therefore, invalid and of no effect”, adds Motatah.

The recruitment process was faulty and fatally defective because the committee convened by the Public Service Commission under Section 4(5) and (6) of the Controller of Budget Act No. 26 of 2016, for recruiting the Controller of Budget was insufficient for the purpose because, among others: 

He argue that despite the Controller of Budget in an independent office, it must be filled through a process that is not controlled by the Government the committee is composed entirely of the following government officials:
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GUARD IDENTIFIES THREE WHO ORDERED BREAKING OF OILIBYA PETROL STATION.

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BY NT CORRESPONDENT.

A security guard from KK Company has told a Nairobi court that he identified three accused persons who ordered the breaking in of an office door at Oilibya petrol station Juja on June 27, 2017.

Ben Bako told Milimani Chief Magistrate Martha Mutuku that he identified the five- two women and three men, who broke into the station and stole property worth Sh1.5 million.  

Joyce Nekoye Wanjala, Nancy Waeni Mutune, Antony Mugo, Stanley Njoroge and Samuel Marete are accused of breaking and entering Juja service station where they stole property worth Sh1,530,000, belonging to Maced Limited.

They are also charged with stealing ten units of CCTV cameras worth Sh400,000, a digital video recorder valued at Sh200,000, gas cylinders approximated at Sh200,000, lubricants valued at Sh500,000, car wash vacuum cleaner worth Sh30,000 and fuel of an approximated value of Sh200,000.

They are also accused that on June 7, 2017 at Juja road Service Station they willfully and unlawfully damaged 5 door padlocks valued at Sh12,500 the property of Maced Limited.

Maced Limited is said to have been in agreement with Libya Oil Kenya Limited to operate the Oilibya Juja Road Service Station and resell Oilbya products at the service station.

According to Oilbya, Maced was in breach of agreement and failed to maintain the minimum inventory levels and having unpaid cheques in respect to products delivered to Maced by Libya Oil Kenya Limited.

Thereafter Maced Limited made a criminal complaint alleging breaking and entry in to the Service Station and theft of property where three of their employees Waeni Kwainga, Anthony Muraya and Joyce Wanjala as well as Libya Oil Kenya Limited employee Samuel Marete were then charged in court on August 2017.

Thereafter on January 23, 2018 the prosecution withdrew charges against all the accused persons after a claim by the DPP that the matter is a civil one, and should referred to arbitration.

But they were later charged with breaking and stealing and were released on a cash bail of 100,000 each.

EMBATTLED DIRECTLINE INSURANCE CEO STOPS PLANNED OUSTER.

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BY SAM ALFAN.

The Insurance appeals tribunal has stopped a decision by the Commissioner of Insurance, revoking the appointment chief executive officer of Directline Assurance Limited, Terry Wejinje.

The tribunal suspended the decision, pending further directions on December 19.

The tribunal also directed the commissioner of insurance to withhold any action of approving any person (s) as the Principal Officer(s) of the said company, pending further directions of the tribunal.

Wejinje was directed to serve Directline with the application by December 6 and the underwriter to file its response, within seven days, if they wish to participate in the matter, as an interested party or otherwise.

The Tribunal said the regulator, Insurance Regulatory Authority is at liberty to file any other written submissions thereafter before the mention date.

The case will be mentioned on December 19, to confirm compliance and fixing of hearing dates.

RELIEF FOR MAGISTRATE AS COURT QUASHES CHARGES AND ORDERS FOR HIS COMPENSATION.

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Mombasa Principal Magistrate Kagoni Edgar Matsigulu.

BY SAM ALFAN.

Attempt by the Director of Public Prosecution Noordin Haji and Director of Criminal Investigation George Kinoti to charge a magistrate with obstruction to justice has been dealt a big blow.

This is after the High Court sitting in Mombasa quashed recommendations by DCI boss and the DPP to charge Mombasa Magistrate Edgar Mataigulu Kagoni over allegations of obstructing justice and aiding the commission of offence.

The court prohibited any magistrate court in Kenya from taking plea or any other criminal proceedings arising from the recommendations by the DPP.

“The decision of the Director of Public prosecution to charge Magistrate Edgar Kagoni contained in the press statement dated September 7,2019, with obstruction of justice contrary to section 117 of the penal code, aiding the commission of an offence contrary to section 8(c) of Narcotic drugs and psychotropic substances (control) Act or any other charge that may be founded on the facts of the Magistrate’s conduct as a judicial officer in Mombasa Chief Magistrate court criminal case Number 468 of 2018, is quashed”, ruled the judge.

The court further awarded Kagoni Sh2 million general damages for violation of his fundamental rights and freedom.

The court declared the decision to arrest and pre-arraignment detention of court assistant Onesmus Miinda Momanyi, in charge of exhibits Abdalla Awadh Abubakar and supporting staff Lawrence Thoya Bayan, violated their rights to freedom and security.

Mombasa Judge Reuben Nyakundi the general principal is judicial immunity to all judicial officers is absolute and not liable to any civil or criminal action for any judicial act done in good faith within their jurisdiction.

The judge added that there is a difference in structure of the judiciary with regard to the staff exercising discretion on a constitutional or a statutory cause of action and a class executing the ministerial Act.

“Judicial independence is critical to the maintenance of the rule law. In addition, egregious judicial behavior, such as corruption and other breach of criminal law must remain and will be dealt with through the criminal process as provided for under the constitution as every person is equal before the law”, ruled the judge.

Kenya Judges and Magistrates Association filed the case seeking to block the DPP from charging the Mombasa Principal Magistrate.

The association through lawyer Danstan Omari and Shadrack Wambui successfully sought orders restraining from charging the magistrate.

The association argued that the independence of Judges and Magistrates and all other judicial officers would be threatened, if the DPP is not stopped.

Article 160 (5) states that, a member of the Judiciary is not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.

KMJA true that they are concerned by threat to liberty of one of its members. Who was to be charged together with Momanyi, Abubakar and Thoya.

The magistrate on June 11, this year convicted Hussein Eid for trafficking in narcotic drugs and sentenced him to 30 years imprisonment and in addition fined him Sh90 million. He further ordered the money amounting to 600,000 found in possession of the convict at the time of arrest be returned to him.

But between June 28 and July 26, the exhibit of 10.002kg heroin which the embattled magistrate had ordered to be kept under lock and key, was reported missing.

“The sudden disappearance of the exhibits, the Mombasa Law Court chief magistrate Makori filed a complaint and requested Directorate of Criminal Investigation to institute investigations in order to establish the person culpable “, KMJA claim in the court documents.

The DPP accused the magistrate and his assistants of theft and reckless handling of the approximately 10.002kg of heroin valued 30,066,000 million and wanted them to be held liable.

DPP APPEALS ACQUITTAL OF NAKURU WEST MP.

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BY SAM ALFAN.

Director of Public Prosecution Noordin Haji has appealed against the acquittal of Nakuru town West MP Samuel Arama.

The DPP argues that Srnior Principal magistrate Felix Kombo erred in law by not considering the overwhelming evidence on record, and went ahead to acquit the MP under section 210 under the Criminal Procedure Act (CPC).

He also said the magistrate failed to properly consider the weight of the charges as against the evidence adduced.

“The magistrate erred in facts and law by ignoring the primary evidence of the businessman Yusuf Mustafah Ratemo who testified that he never owned land in Nakuru and also disowned the purported sell agreements presented by Samuel Arama who claimed to have purchased the land,” the DPP argued.

The businessman told the court he does not know and have never owned the land Nakuru town block measuring 0.0557 hectares. He also denied owning a postal address in Likoni and was not aware of it.

He said the signature, his name, identity number appear in the documents but he did not provide them and doesn’t know how and why they were used. He also denied any knowledge on the said transactions.

He denied an sale agreement between him and Samwel Arama dated August 3,2015 and the said agreement is false.

“I have never entered into any agreement with the MP before the named advocates Onkoba. I have never received any money from Arama”, Yusuf told the court.

He added that he has never received the amounts of money indicated on the agreement totaling to Kshs. 45,000,000 and Kshs. 60,000,000 and all false.

He denied selling the plot and knows nothing about the plot. He told the court all information in the sale agreement is false and knows nothing about it.

Prosecution argues that the magistrate erred by finding the evidence adduced by prosecution was insufficient to establish prima facie case against the MP. The DPp also faulted the finding there is no way the MP could have made the sell agreement without “authority”.

He accused the magistrate of disregarding the evidence of the document examiner and that there was no false pretence was demonstrated in the evidence against the MP.

He also accused the magistrate of finding that the evidence did not demonstrate any fraud on the part of the MP in obtaining registration under the transaction of prosecution exhibit 19.

The DPP also accused the magistrate of error by failing to consider that the prosecution had charged its burden of proof by establishing its case beyond reasonable doubt.

MP Arama was acquitted of graft charges in November alongside an employee from land registry Charles Birundu and a lawyer.

The MP was charged with several counts among the abuse of office, conspiracy to defraud, making a document without authority among others.

”I hereby acquit the three accused persons under Section 210 and order their cash bail of Ksh. 1million deposited in court to be refunded to them,” the Milimani Law Courts anti-corruption Chief Magistrate ruled