Director of Public Prosecution Noordin Haji to appeal high court decision that allowed National Land Commission Chairman back to the office.
The DPP has filed a notice appeal challenging high court decision dated 1 November 2018 that allowed NLC Chairman Mohammed Swazuri back to the office.
“Take the notice that the DPP being dissatisfied with the decision of Judge Hedwig Ong’undi delivered on November 1 ,2018 intends to appeal the court of appeal against the whole of the said decision”. Read’s the notice of appeal.
In her ruling ong’undi allowed Swazuri to fully access his office unconditionally.
” Am satisfied the trial court did not access practical impact of the orders it gave in respect to Swazuri. I therefore find that section 362 of CPC is applicable in the circumstances of this case. This is for the purpose of making it practical for the Swazuri to carry out his official duty and not earn a full salary for doing nothing “. Ruled Ong’undi.
The judge ruled that Swazuri can access his office without getting approval from EACC or CEO/Secretary of NLC as ordered by the trial court.
The faulted the magistrate Lawrence Mugambi for directing NLC to get approval from the two agencies.
” I therefore set aside the order complained of and substitute it with an order directing the applicant (Swazuri) to make undertaking not to interrupt and or interfere with witnesses at his work place or any other witness. He will also undertake not to interfere with records and or documents relevant to the case at hand. Failure to comply will lead to automatic cancellation of his bond”. Ruled the judge.
He was charged alongside Kenya Railways Corporation boss Atanas Maina, NLC officials Tom Chavangi, Salome Munubi, Francis Mugo, Victor Kariuki, Elijah Nyamu, John Mwaniki, Carolyne Kituyi, Peter Mburu, Gladys Muyanga, and Obadiah Wainaina.
In August , trial Magistrate Lawrence Mugambi gave Mohammed Swazuri limited access to his office, but after informing the Commission’s CEO and the EACC, the court has ruled.
He said that Swazuri can only access office under the supervision to avoid interference of prosecution witnesses.
“For constitutional office holders, the first accused (Mohammed Swazuri), who has been at the helm of the NLC and indeed any other constitutional office holder prior written authorization by the Secretary/CEO of the commission authorizing the access after making consultations with the investigative agency in this case so that the appropriate arrangements (if any) can be made to ensure contact with witnesses who are expected to testify against accused is minimized or that any other evidence properly secured “. Ruled Mugambi.
He said the court had no power to bar or suspending him from entering office, given that he occupies a constitutional office.
Mr Mugambi, however said that other public officers who have been charged alongside hi cannot access their respective offices until their criminal case facing them is heard and determined.
The court declined to vary bond terms issued to him, saying that the application for review should be filed at high court.
EACC on Friday opposed application by former National Land Commission seeking to review his bond term conditions that restrained him from accessing his office without investigating officer.
“This court has no authority under the law to review the bond terms. This matter ought to be place before the high court and not before you” Dorcas to the court.
In the preliminary objection, they argued investigations have established that Mohammed Swazuri has been accessing and giving instructions to officers at NLC. They attached a letter dated 9 of August ,2018 with Swazuri instruction to the vice chairman.
EACC said Swazuri office is part of a crime as most of the witnesses are junior officers working under him at NLC offices at Ardhi house ad he will interfere with the witnesses and documentary exhibit.
The affidavit said Swazuri is not the office that he holds and his suspension or requirement to allow him to access his in the company of a police officer cannot bring the activities of the office to any halt.
“The chairman (Mohammed Swazuri) is not a office. An attempt to invite the court to find the office without a chairman is not operational is laughable” submitted Dorcas.