Samburu Governor Moses Lenolkulal at Milimani Law court./FILE PHOTO.
BY SAM ALFAN.
Samburu Governor Moses Lenolkulal has urged the court of appeal to quash decision by High Court barring him from accessing his office over corruption charges.
In the appeal, the embattled Governor said the judge erred in finding section 62(6) of Anti-Corruption and Economic Crimes Act (ACECA) contravenes the constitution.
Through Lawyer Paul Nyamodi, Lenolkulal told the appellate court that judge erred in law in finding that a proper reading of section 62 (6) of the Anti-Corruption and Economic Crimes Act requires the Governor once charged with ACECA should not continue to perform the function of Governor while criminal case is pending before court.
He argued that the judge erred in law by introducing new issues and arguments into the ruling that were never argued before High Court at the hearing of the application for revision which was not opposed. He said the court denied him the opportunity to respond contrary to the law.
Lenolkulal in his appeal also argued that in failing to find the orders of trial court barring him being a constitutional holder from accessing his office unless the authorisation of the Chief Executive officer of EACC, rendered the Governor subject to the authority of EACC CEO contrary to the law.
He claim that the judge erred in failing to find that the trial court order of May 15, 2019 barring the Governor from accessing his office unless authorized by EACC CEO was unlawful and unconstitutional.
He accuses the judge of being bias and being prejudicial against him by allowing her personal views or beliefs which were contest to the express provision of the statute law and which found itself in the ruling.
The Samburu County boss further argue that the judge erred in reading or rewriting the provision of section 62(6) of the ACECA by finding that if the said section is to be given an interpretation that protect the appellant access to his office, then the conditions must imposed that protects the public interests and by so doing the learned judge legislated contrary to Article 94 of the constitution.
He further argued that Judge Ngugi applied an unknown doctrine of constitutional interpretation and application in interpreting the constitutional otherwise of section 62(6) of Anti-Corruption and Economic Crimes Act (ACECA).
“Mumbi Ngugi erred in law in finding that section 62 (6) of the Anti-Corruption Act is inconsistent or contrary to the constitution notwithstanding that the court had not been asked to make this finding,” said the Governor.
Judge Ngugi ruled that she was not satisfied there was an error of law in prohibiting Governor Moses Lenolkulal from accessing his office which according to the trial court is a scene of crime.
“The trial court did in making the order requiring that the applicant (Moses Lenolkulal) obtains the authorisation of the CEO of EACC before accessing his office. In the circumstances ,i am not satisfied that there has been an error of law that requires that this court revises the said order and i accordingly decline to do so”, ruled judge Ngugi.
The learned judge added that section 62(6) are contrary to the constitution requirements of integrity in governance.
“It seem to me that provisions of section 62(6), apart from obfuscating, indeed helping to obliterate the ‘political hygiene’ that Nyamondi spoke of, are contrary to the constitutional requirements of integrity in governance , are against the national values and principles of governance and the principles of leadership and integrity in chapter six , and undermines the prosecution of officers in the position of the applicant in this case. In so doing , they entrench corruption and impunity in the land”, said judge Ngugi.
Lenolkulal through lawyer Paul Nyamondi by a letter dated June 3 applied for revision of orders issued by the trial court magistrate Douglas Ogoti prohibiting the governor from accessing his office.
Magistrate Ogoti barred the governor and his co-accused from accessing any of the Samburu County offices pending hearing and determination of the criminal case against them.
Lawyer Nyamondi argued that the concern of the trial court the accused would interfere with witnesses because he is in position of authority over the prosecution witnesses is speculative as no evidence of such interference was presented by the prosecution and investigations are complete.
He added that the bail term term condition requiring the Governor to seek authorisation from the EACC CEO before accessing his office is unreasonable and unconstitutional.
Director of Public Prosecution through senior prosecutor Alexander Muteti filed an application to bar the Governor Lonelkulal, Stephen Siringa Letinina, Daniel Nakuo Lenolkirina, Josephine Naamo Lenasalia, Reuben Marumben and Paul Lolmingani from accessing the county offices.
Others barred are Benard Ltarasi Lesurmant , Lilian Balanga , Geoffrey Barun Kitewan and Hesbon Jack Wachira Ndathi. All the officials are facing corruption charges and the prosecution wants them not to access offices for at least 24 months.
