Lawyer Cecil Miller for Muchanga Investment limited with lawyer Allan Kaman leaving Milimani law courts after high Court suspended a criminal case against former National Social Security Fund managing Trustee Josephat Konzolo and suspended Cabinet Secretary Charity Ngilu pending determination of Sh8 billion Karen land disputed case on Friday October 30,2015..
BY SAM ALFAN.
The High Court has suspended a criminal case against former National Social Security Fund managing Trustee Josephat Konzolo and suspended Cabinet Secretary Charity Ngilu pending determination of Sh8 billion Karen land disputed case.
In her ruling Justice Lucy Nyambura Gacheru said that it is fair for the criminal case against the two pending in the lower court to be temporarily suspended pending the court come of the case filed in the high court by Muchanga Investment Ltd, the company which claims the ownership of the property in dispute.
After the judge suspended the criminal case against Ngilu and Konzolo, Muchanga Investment, through its lawyer Cecil Miller and Director of Public Prosecution (DPP) Keriako Tobiko applied for leave to file
their appeal application to challenge the ruling.
However the judge allowed their intention to appeal against the ruling and fixed the case to be mentioned of November 17 for further direction.
Earlier Ngilu and Konzolo, through lawyers Paul Muite and Kioko Kilukumi had urged the judge to consider their application seeking to halt the trial of the two filed at the Anti-Corruption Court in
Milimani by the DPP.
In that case Ngilu is accused of obstructing investigators into them Karen land by directing ministry officials not to release documents to EACC investigators or even record any statements regarding the land.
She is out on Sh 1 million bond,while Konzolo is accused of forging tittles of the same land.
In the application which sought stay of the criminal case, the Director of Public Prosecution , who had enjoined as interested party, through senior state counsel F.S.Ashimosi has opposed Ngilu and Konzolo’s request to have their
criminal case suspended.
Also the Ethics and Anti-Corruption Commission (EACC) which was also in the case as interested party had urged court not to allow the application, saying no evidence had been tabled by Ngilu and Konzolo.
During the submissions, Ashimosi and Miller jointly told the court that Environment and Land Court being a specialized court under the constitution of Kenya does not have jurisdiction to entertain or
determine of criminal proceedings commenced in Anti-Corruption case against Konzolo and Ngilu.
Miller told the court that Konzolo and Ngilu have not demonstrated abrogation, breach, infringement, violation of any constitutional provision.
He said that the applicant has not demonstrated a prima facie case and exceptional and unusual circumstances that unless stay is granted then the applicant will suffer prejudice.
Miller told the court that the supervisory jurisdiction of the High Court under the constitution and other statutory provisory and rules made.
Mr Miller said that Environmental Court was only set up for dealing with Environment matters and that it has no jurisdiction of determining criminal matters.
He told the court that Ngilu and Konzolo have already filed another application at the Constitutional Court seeking the same orders which they have failed to be granted to them.
In the application Konzolo through his company Telesource.com limited, said there are two pending matter before the High Court touching on the anti-corruption case relating to the dispute of ownership of the Sh 8 billion Karen land.
He told the court that since Environmental and Land division is yet to make a decision as who owns the suit land the subject matter of the criminal case that is set for hearing at anti- corruption court on
November 3, 2015 should be stayed to await the outcome of High Court’s
decision.
The court heard that Ngilu’s petition has been already referred to Chief Justice Willy Mutunga to appoint a bench to determine the constitutionality and legality of Ethics and Anti- Corruption Commission which made recommendation for his prosecution.
Konzolo said that the two High Court divisions are likely to come up with conflicting decisions, saying already some officers from the ministry of Lands who have been charged have given evidence in the
civil suit filed by Muchanga Investment who claims ownership of the suit land.
The court heard that the actions of DPP to charge some of the defendants in the civil suit is clearly an abuse of the legal process which act is aimed at giving unfair advantage to one of the parties in
both civil and constitutional cases.
He urged the court to exercise its discretion and intervene by issuing orders staying the criminal case pending the hearing and determination of the application seeking to quash the matter before
the anti- corruption court.
Konzolo, Ngilu and several senior officials from the ministry of Lands were arraigned in court facing charges of corruption and abuse office in relation to Karen land, saying that ownership of the suit
property is the central issue pending before the civil court which was instituted long before the criminal case limited.
