BY SAM ALFAN.
Wrangles on who to control the management of the National Land Commission has ended to control.
This is after the embattled chairman Mohammed swazuri filed a petition seeking to block his vice chairperson from performing his constitutional duties as the chairperson of the commission.
The outgoing National land commission Mohammed Swazuri has filed application before the high court seeking orders barring his deputy from performing duties of the chairman of the commission.
In a certificate of urgency filed in court swazuri claims wants the court to issue conservatory orders barring NLC vice chairperson Abigael Mbagaya Mukolwa from purporting to act as the chairperson of the NLC as she is interfering with the operations of the commission.
He claims that she (Abigael)has continued unlawfully and illegal capture the powers of the chairperson of NLC and in her capacity as the acting vice chairperson called for meeting and issues directives and memos and issued directives and made decisions as though she is the chairperson of the commission.
The chairman who is facing corruption related charges before Nairobi Anti-Corruption Magistrate Court claims that the conduct of Angel has hampered smooth operations of the commission and has triggered institutional chaos and continues to expose the commission and him to liability.
Swazuri argues that if orders sought are not issued the working of the commission and prospect for peaceful handle over will be imperilled the commission and the public at large will also be at risk of hefty legal liability.
He wants the court to issue the conservatory orders restraining Abigael from purporting to act as the chairperson of the NLC since it will interfere with the work of the commission and also affect the smooth transition to a new chairperson and other members.
Swazuri claims that Abigael has been calling meetings issuing letters, directives and other communications inspite of him being in office and has been putting to perform his duties.
He further claims that Abigael has been sacking employees, interfering with terms of their employment, issues gazette notices which her actions are exposing the commission to liability.
“Pending hearing and determination of the petition the court to issue conservatory orders restraining the respondent(Abigael) from calling national land commission meeting issuing directives, memos,letters in the name of NLC or in manner whatsoever from purporting to exercise the lower of the chairperson of The commission,” claims Swazuri in his court papers.
Swazuri says that Abigael staged a coup and swiftly assumed the position of the chairperson of the commission after he was charged with corruption related charges.
“upon being charged in court, the respondent declared herself as the chair of NLC and assumed the office of the chairperson of the commission and purportedly to make unilateral decision and issue official communication on behalf of the commission, ” he states in the court documents.
The embattled chairman claims he has never been removed from office and there had never been a vacancy in his position of the chairperson of NLC.
Swazuri further says that his deputy has continued to perform his duties even after he resume office and has been calling for meetings and even reversing some of his decision he has been making.
He says that one November 1,2018 Abigael issued a gazette notice Nos 11370 and 11371 purporting to revoke respectively award for Karimenu Dam II water supply project and award for Standard Gauge Railway phase II A Nairobi to Naivasha while acting as the chair person of the commission which the decision was later suspended by the court.
Swazuri accuses his deputy of orchestrating institutional chaos and unless she is restrained they likelihood of sending the working g of the commission into disarray.
He claims that there are no legal basis for Abigael to continue acting and performing of NLC chairperson.
Swazuri claims that there was no correspondence of his removal from constitutional office whosoever in accordance with article 251 of the constitution. He further claims that Abigael on August 15, 2018 declared on a press conference should be performing the his duties.
Article 251 of the constitution state that, A member of a commission (other than an ex officio member), or the holder of an independent office, may be removed from office only for–, serious violation of this Constitution or any other law, including a contravention of Chapter Six;gross misconduct, whether in the performance of the member’s or office holder’s functions or otherwise, physical or mental incapacity to perform the functions of office, incompetence; or bankruptcy among other reasons.
Swazuri further claims that the actions of Abigael to perform duties of a chairperson is utter disregard of the constitutional holder is in violation of chapter 6 on leadership and integrity.
The term of Abigael and Swazuri ends on February 19.2019.
Last year In 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.
They 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.
