BY SAM ALFAN.
It is a dark Dawn for the controversial Subukia couple who sensationally lay claim to the son of fallen Internal Security minister George Saitoti lost their attempt to re-open the case.
The Appellate Court extinguished a plea by Nakuru farmer Sebastian Maina Ngunju to revive the matter that was withdrawn by mutual agreement on July 11, 2013.
The consent had been signed by veteran lawyer Fred Ngatia on behalf of the late Prof. Saitoti’s wife, Margaret and son Zachary Musengi, on the one hand and lawyer Hari Gakinya representing Maina. Senior State Counsel Warui Mungai, representing the Director of Public Prosecutions, had endorsed the agreement.
Appellate Judges Philip Waki, Roselyne Nambuye and Patrick Kiage yesterday ruled that Gakinya had the authority to compromise the judicial review petition lodged by the Saitotis to safeguard the interests of Maina against possible prosecution over his unsubstantiated paternity claims. There was no justification to overturn Justice Lenaola’s decision against vacating the consent order, they said.
The appellate bench dismissed Maina’s assertions that Gakinya had fraudulently agreed to withdraw his paternity claim in which he had accused Margaret of having abducted his three-year old son-known as Stephen Wachira-on August 31, 1988. Maina had lodged a criminal application before the Nakuru Chief Magistrate’s court on November 8, 2012 seeking permission to institute a private prosecution against Prof. Saitoti’s widow.
“An allegation made against an advocate of the High Court that he was involved in fraud or colluded with another advocate or person to subvert the cause of justice in a matter pending in court is certainly one of utmost gravity. It destroys the advocate’s honour and respect. It can undo his entire legal practice and attract censure from his professional body. It cannot merely be flashed or mentioned only to be believed. There must he cogent and truthful evidence of such charges,” Justices Waki, Nambuye and Kiage said.
The Director of Public Prosecutions, Keriako Tobiko, had ordered investigations following Maina’s paternity claims and established that the alleged Stephen Wachira was not the same person as Zachary Musengi. The findings were filed before the Nakuru court.
Prof Saitoti’s widow and son filed the judicial review petition on November 16, 2012 seeking to stop Maina from making false allegations they described as “frivolous and scandalous charade actuated by ulterior and improper motives.” They wanted the proceedings before the Nakuru court quashed and Maina investigated and prosecuted.
The Saitotis had explained that Zachary was born on September 8, 1983 and narrated his upbringing and educational history. Before the petition could be heard, the parties agreed to close the chapter by stopping both the applications in Nakuru and Nairobi.
