Kakamega Governor Wycliffe Oparanya before Nairobi Chief Magistrate Daniel Ogembo directed the case to be mentioned on January 25 next year pending the outcome of the governor’s petition before the constitutional division of the High Court.
BY SAM ALFAN.
Kakamega Governor Wycliffe Oparanya moved to the High Court to challenge his prosecution for failing to comply with a Senate summons.
In the petition Oparanya contends that he should not be prosecuted for disobeying an unlawful order as the Senate had no power to summon him.
The move now put on hold a ruling that was to be delivered at the Chief Magistrate’s court on whether he was to be released on bail.
Chief Magistrate Daniel Ogembo directed the case to be mentioned on January 25 next year pending the outcome of the governor’s petition before the constitutional division of the High Court.
In the petition, Mr Oparanya has accused Director of Public Prosecution Keriako Tobiko of abusing his office by directing that he be arrested and charged.
“We have filed a constitutional petition which raises weighty issues for determination before this matter can proceed,” said Senior Counsel Paul Muite.
He said in the petition, the court has been urged to find that the summons from which the criminal charge arises was “unconstitutional and unlawful”.
“That my attention has been drawn to a letter dated 12th August 2015, written by the Office of the Clerk of the Senate addressed to me requiring my attendance at the Senate Sessional Committee on County Accounts and Investments meeting to be held on 15th and 16th September 2015” said Oparanya in hi affidavit.
Mr Oparanya further claims he was informed that on 12th November 2015 a Witness Summons was served upon my secretary in my office, requiring my attendance at the Senate Sessional Committee on County Public Accounts and Investments on the following day, the 13th November 2015, ostensibly to produce a plethora of documents listed therein. (Annexed and marked WAO 111 is a copy of the said letter.
In his court documents filed before Milimani constitutional division, he argues he was not in the office on the 12th November 2015 when the Witness Summons was served.
The Governor says he was actually in far away Baringo County attending to official business.
He claimed the documents he was being asked to respond to are the same documents that are presently before the County Assembly of Kakamega.
“I have been shown a letter by the County Secretary of Kakamega in which she informed the Senate of the difficulties of my attending this session of the Senate. (Annexed and marked is a copy of the said letter” said Oparanya.
That on 03.111.2015 I was served a Notice to Compel attendance at the CID Headquarters, Nairobi.
The Notice served to the governor stated that “I was being asked to attend on inquiries into an alleged offence of incitement to violence and disobedience of the Law contrary to section 96(c) of the Penal Code” Document states.
“Appeared before one Samuel Nyabengi who upon receiving me directed me to see the Director in Charge of Operations, Mr. Kariuki” said in his affidavit.
The Governor argues after discussion with Mr Kariuki he was surprised to learn that he had been summoned to attend on inquiries of incitement.
He claims he called the Investigating Officer and requested that I take a charge and caution statement on failure to attend the Senate contrary section 23 (a) of the National Assembly (Powers and Privileges) Act.
“The Investigating Officer, Mr. Andolo Munga administered upon me a charge and caution statement on the offence of a failure to attend the Senate contrary to section 23(a) of the National Assembly (Powers and Privileges) Act” said the Governor.
He says Mr. Munga prepared a fresh charge and caution statement including a second count of disobedience of a lawful order contrary to section 131 of the Penal Code.
“I was informed that I was under arrest and escorted to Muthaiga Police station where I posted a Cash Bail of Ksh. 10,000.00 and released to attend court on Monday 14th December 2015” said Oparanya.
The Governor further claims that by attending court at Milimani Law Courts, he was “surprised to learn that I was being charged under the Penal Code for ‘Disobedience of a Lawful Order’” said Oparanya.
He has argued that it is the County Assembly and not the Senate which is mandated to put his County Government to task over queries raised in Auditor General Reports.
“The Senate cannot scrutinize county expenditures in the same way that the committees and general assemblies of the county Legislature can. At most, if a County Assembly is considering a financial or Auditor General’s report, the Senate should be simultaneously seized of the matter in a manner that does not undermine or compete with the County Assembly,” Oparanya avers in his petition.
He has accused the Senate of undermining the Kakamega County Assembly by failing to allow it complete debate on the Auditor General’s report in question.
“On September 11, the Speaker of the County Assembly of Kakamega wrote a letter to the Clerk of the Senate stating the Auditor General’s report they wanted to examine was before the County Assembly for consideration and sought indulgence for the County Assembly to complete its work of the said report,” the petition reads.