BY SAM ALFAN.
Attempt by the Director of Public Prosecution Noordin Haji and Director of Criminal Investigation George Kinoti to charge a magistrate with obstruction to justice has been dealt a big blow.
This is after the High Court sitting in Mombasa quashed recommendations by DCI boss and the DPP to charge Mombasa Magistrate Edgar Mataigulu Kagoni over allegations of obstructing justice and aiding the commission of offence.
The court prohibited any magistrate court in Kenya from taking plea or any other criminal proceedings arising from the recommendations by the DPP.
“The decision of the Director of Public prosecution to charge Magistrate Edgar Kagoni contained in the press statement dated September 7,2019, with obstruction of justice contrary to section 117 of the penal code, aiding the commission of an offence contrary to section 8(c) of Narcotic drugs and psychotropic substances (control) Act or any other charge that may be founded on the facts of the Magistrate’s conduct as a judicial officer in Mombasa Chief Magistrate court criminal case Number 468 of 2018, is quashed”, ruled the judge.
The court further awarded Kagoni Sh2 million general damages for violation of his fundamental rights and freedom.
The court declared the decision to arrest and pre-arraignment detention of court assistant Onesmus Miinda Momanyi, in charge of exhibits Abdalla Awadh Abubakar and supporting staff Lawrence Thoya Bayan, violated their rights to freedom and security.
Mombasa Judge Reuben Nyakundi the general principal is judicial immunity to all judicial officers is absolute and not liable to any civil or criminal action for any judicial act done in good faith within their jurisdiction.
The judge added that there is a difference in structure of the judiciary with regard to the staff exercising discretion on a constitutional or a statutory cause of action and a class executing the ministerial Act.
“Judicial independence is critical to the maintenance of the rule law. In addition, egregious judicial behavior, such as corruption and other breach of criminal law must remain and will be dealt with through the criminal process as provided for under the constitution as every person is equal before the law”, ruled the judge.
Kenya Judges and Magistrates Association filed the case seeking to block the DPP from charging the Mombasa Principal Magistrate.
The association through lawyer Danstan Omari and Shadrack Wambui successfully sought orders restraining from charging the magistrate.
The association argued that the independence of Judges and Magistrates and all other judicial officers would be threatened, if the DPP is not stopped.
Article 160 (5) states that, 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.
KMJA true that they are concerned by threat to liberty of one of its members. Who was to be charged together with Momanyi, Abubakar and Thoya.
The magistrate on June 11, this year convicted Hussein Eid for trafficking in narcotic drugs and sentenced him to 30 years imprisonment and in addition fined him Sh90 million. He further ordered the money amounting to 600,000 found in possession of the convict at the time of arrest be returned to him.
But between June 28 and July 26, the exhibit of 10.002kg heroin which the embattled magistrate had ordered to be kept under lock and key, was reported missing.
“The sudden disappearance of the exhibits, the Mombasa Law Court chief magistrate Makori filed a complaint and requested Directorate of Criminal Investigation to institute investigations in order to establish the person culpable “, KMJA claim in the court documents.
The DPP accused the magistrate and his assistants of theft and reckless handling of the approximately 10.002kg of heroin valued 30,066,000 million and wanted them to be held liable.
