BY SAM ALFAN.
A judge has ordered Homa Bay Town MP Peter Kaluma to appear before the Nairobi Chief Magistrate and plead to criminal charges.
“I order that the applicant shall present himself before Magistrate on 6 December 2018 for plea taking,” Judge Grace Ngenye said.
Justice Ngenye directed Kaluma to appear before Nairobi Chief Magistrate Francis Andayi after she dismissed his application challenging the decision to consolidate his case and another matter.
The decision was made on 14 of August and 18 of December 2014 consolidating two criminal proceedings.
“It is my finding that the application for revision has no merit. The applicant (Peter Kaluma) should take plea and proceed with the trial. The same is hereby dismissed with no orders of costs,” Justice Ngenye ruled.
The judge said the fact that the applicant is an advocate does not exempt him from criminal prosecution in transactions where, even if acting as a lawyer, he acted in furtherance of criminal venture. Kaluma argued that he is an advocate and his involvement in the transactions was in his capacity as a lawyer.
“Any offer was advanced at the behest of my clients and any other monies received were utilized to pay stamp duty and to settle legal fees for the transactions,” he had submitted.
The MP moved to the High Court seeking orders to reverse decision by the then Chief Magistrate Hannah Ndungu to consolidate two criminal cases, a mov me he opposed.
Kaluma had obtained a temporary injunction from Justice George Odunga blocking his prosecution after police filed a criminal case against him in January 2012.
He wanted the criminal cases to be heard differently but the magistrate dismissed his application.
The charge against him stated that, on diverse dates between 29 February and April 17,2012 at unknown place in Nairobi with others not before court obtained 313,000 from Constantine George Sparks by falsely pretending that you were in a position to finance processing and registration /recordation at the lands ministry a lease agreement capable of registration/recordation for the lease of land parcel No.5892/22, not encumbered by any mortgage , situated at Ololua Ridge , Karen a fact which he knew to be false.
The MP is further accused of conspiracy to defraud.
The second charge state that on diverse dates between 16 of January and 29 February of 2012 at an unknown place in Nairobi jointly conspired to defraud by offering to subdivide and sell by registration /recordation of an agreement of sale at the lands ministry, a portion of Land parcel No. 5891/22 situated at Ololua Ridge, Karen to Deboray Achieng Aduda and Rene Johny Dierkx.
Justice Ngenye said the above charges contain all material ingredients of the offences.
The court further said there was no evidence that prosecution was acting under the instructions of third parties to prosecute the MP Kaluma or that prosecution instigated ulterior motives beyond attainment.
“It was the ultimate finding of the court the Kaluma’s claim that his prosecution was commenced for extraneous purpose was not supporter by evidence “. Said the judge.
The MP in Judicial review No.13 of 2013 moved to court seeking to quash the criminal proceedings and an order of prohibition to restrain his arrest and prosecution. He alleged in that case that Briton lawyer Constantine George Sparks had instigated the prosecution against him for representing Florence Seyanoi.
He led the evidence that the said Constantine paid the former Director of Public Prosecutions Keriako Tobiko 5,000,000 million to bring the criminal charges.
Kaluma further argued that the prosecution against him is unfair and it is intended to embarrass him for performing his duties
BACKGROUND.
On July 31, 2014, Milimani Chief Magistrate Hannah Ndung’u declined to excuse herself from hearing the alleged land fraud case facing Homa Bay MP Peter Kaluma. This is after his defence Wednesday accused the magistrate of bias.
In her ruling, Chief Magistrate said there were no compelling reasons given by the defence in their application seeking her excusal from the matter apart to the alleged bias by the defence.
“Despite of my court taking the plea it doesn’t mean I will be the trial court”. Said the Magistrate in her ruling.
Kaluma had asked Mrs Ndung’u to throw away the charges leveled against him saying the charges were defective.
The Homa Bay MP had appeared in court in the morning but declined to plead to nine counts of fraud in which he is accused of defrauding Deborah Achieng and Rene Johny Dierkx over a parcel of land situated in Karen, Nairobi.
State counsel Eddie Kadebe asked Kaluma to take his plea but he declined and through his lawyer he asked the court to make a determination since the prosecution had not tabled in court the High Court order issued by Justice Weldon Korir directing Kaluma to plead to the charges.
There was a heated exchange and altercation on Wednesday between the magistrate and Ndubi and at one time he asked the magistrate to record his submissions so that his protest can go on record.
Mrs Ndungu directed Kaluma to appear in court Wednesday in the afternoon to know whether he could plead to the charges or not.
In her ruling the magistrate directed Kaluma to plead to the nine counts of fraud charges but he declined.
Defence lawyer Harun Ndubi urged the magistrate to disqualify herself from the case accusing her of bias and ‘holding brief’ for the prosecution.
“It appears to the defence that the magistrate is clearly biased against the suspect despite our preliminary objection on the inadmissibility of the charges leveled against my client. The court cannot therefore proceed to give directions that seem to determine the outcome of this case.” Ndubi.
