BY SAM ALFAN.
Director of public Prosecution Noordin Haji has urged Mombasa High Court to dismiss a case filed by Kenya Judges and Magistrate Association (KJMA) seeking to stop prosecution of Magistrate Edgar Kagoni.
In his response to the petition, Haji wants the case thrown out on grounds that the association has failed to demonstrate how he has violated the rights of the Mombasa principal magistrate by recommending his prosecution.
Further the DPP argues that the petition by the KJMA has been made in bad faith, frivolous, vexatious and lacks merit.
DPP disagreed with the association defence that as per Article 160(5) a member of the Judiciary is not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.
“The judicial immunity is only available to judicial officers for things done or omitted in good faith in lawful performance of judicial functions and is not therefore available to Mombasa magistrate for his conduct which has describe was criminal and without good faith, “says haji.
He added that the KMJA has failed to demonstrate how he abused his powers by recommending the criminal charges against Kagoni.
Documents filed in court states that the office of the DPP has a mandate to institute and undertake criminal against those whom he has sufficient factual and legal basis such as the magistrate in question.
Haji says that KMJA has not demonstrated in executing his mandate, he acted without or in excess of his powers or acted maliciously.
He also says that the association made general allegation relating to the alleged violation and infringement of the magistrate.
According to the DPP he reveals that Kagoni dismissed the application by investigation officer to have the 10 Kg drugs released back to the police for safe custody.
Instead he allowed the court assistant Onesmus Miinda Momanyi to take control of the exhibits in the Sh30 million heroin and the foreign currency worth Sh 600,000.
Haji says that the magistrate failed to make any written direction as to how or where to store the heroine and the fake currency.
The magistrate is said to have order the exhibits to be kept by the court after production.
” The failure by the magistrate to make any written direction as how or where to store the said exhibits and the resultant failure to comply with the requirement of the provisions of part of 67(f) and 68(a) of the registry manual that requires court to give a propriety storage of exhibits was criminal in the nature and facilitate the theft of the exhibits, “says DPP.
The DPP said a stay order by the magistrate in his judgement dated June 11,2019 to have the fake money amounting to over Sh 600,000 be returned to the convict Hussein Massoud Eid breached sections 36 and 78 of Narcotic Drugs and Psychotropic Substance control Act No. 4 of 2004 which he is obligated upon convicting the accused to be forfeited.
Prosecution said it is clear from the foregoing factual background that the manner in which the magistrate handled or treated the exhibits was reckless and that it is recklessness that led to the loss of the said exhibits.
“Such recklessness on the part of the magistrate amounts to criminal culpability for which he is liable for prosecution”, added prosecution.
This comes after after KMJA moved to court on Monday and obtained orders stopping the prosecution of Kagoni.
The association through lawyers Dunstan Omari and Nelson Havi argue that a magistrate cannot be arrested over his judgement adding that the DPP can only disagree with judgements through seeking revision or appeal.
“That interim conservatory orders against the state, the assignees, agents, servant, employees in processing and preferring any criminal charges against the petitioner (kagoni) arising from criminal case No. 468 of 2018 Republic vs Hussesin Masood EId and two others pending the hearing of notice of motion filed by him and Kenya Magistrates and Judges Association,” order the Judge.
Kagoni says that there’s no justification upon which he should be charged for the theft of of the exhibits.
The magistrate further claims that the move by the DPP to press charges against him is misguided and meant to harass and intimidate him.
Kagoni who is out on Sh 20,000 cash bail pending the hearing of the application is charged alongside three others including court assistant Onesmus Momanyi based at Ruiru law courts and court executive assistant Abdallah Awadh and court assistant Lawrence Thoya.
The magistrate was today released on a cash bail of 300,000 and a bond of 700,000 on other drugs issue of the three remaining case in Mombasa.
Kenya Judges and Magistrates Association filed a case seeking to block Director of public prosecution from charging Mombasa Principal Magistrate Kagoni Edgar Matsigulu.
The association through lawyer Danstan Omari and Shadrack Wambui wants the court to issue a conservatory order restraining DPP from charging the magistrate pending hearing and determination of the application.
The association successfully secured a order from Mombasa High Court blocking the DPP from charging the magistrate.
DPP move has been condemned by the Kenya Judges and Magistrates Association and Law Society of Kenya.
