BY SAM ALFAN.
A case in which eight Kenyans have sued the National Police Service and Safaricom seeking a refund of Sh40,000 paid through MPesa as cash bail to secure release of suspects will be heard in October.
The money was paid when the police launched a paybill number in a bid to remove the use of cash deposits, which are prone to loss. The product was launched on a pilot basis but the plan was later dropped.
Efforts by the eight Kenyans to get a refund have been futile forcing them to move to court.Court documents show that the money was paid at Shauri Moyo police station, which was among the stations trying out the use of the paybill.
Juliana Olayo Awino, Patrick Oroko Onsembi, Winnie Obure Akoth, Antonia Rose Atieno, Esther Kerubo Nyamweya, Dornie Awuoro Okongo, Pamela Adhiambo Wasuda and Margaret Moraa Mwamba were arrested on November 23, 2016 and were required to deposit a police bail of Sh40,000.
Their lawyer Suiyanka Lempaa fears that the project might have collapsed with millions of shillings belonging to Kenyans who might have been frustrated following up on the refund.
The eight were arrested and later charged over allegations of calling police officers ‘Waiganjo’.
They have sued the NPS and Safaricom over for failure to refund the money. The money which would have been previously paid in cash was deposited via MPesa to a till number 811555 registered under the national police service account 57.
Before the trial court, the eight were accused of creating disturbance by banging the report office counter desk and main entrance door demanding to peruse the occurrence book.
Okoth and Awino were also charged with offensive conduct for using insulting words, calling two Shauri Moyo officers “Waiganjo” with intent to provoke breach of peace.
Onsembi and Awino were also charged with offensive conduct by calling another officer “Waiganjo” and “Rapist” with intent to provoke breach of peace.
However, efforts to get back the money has been fruitless as the OCS Shauri Moyo allegedly said it was impossible to retrieve the money.
“The accused were thus forced to obtain alternative sources to pay the cash bail to the magistrate court,” Suyianka said.
According to the national police service act and the criminal procedure code, the police are under obligation to return such sum paid as cash bail once attendance of the suspect is secured.
The police were ordered to convert the Sh40,000 to cash bail by the magistrate following appearance of the eight petitioners in court.
“Their failure to do so constitutes a violation of court orders and constitutes a behaviour in consistence with national values and principles required of public officers,” said Suyianka.
Suyianka questions how many other Kenyans suffered monitory lost as a result of the failure of the NPS Paybill.
According to Suyianka, failure of Safaricom’s Mpesa system and subsequent requirement that the petitioners find an alternative source of cash bail in a short time, or face imprisonment, resulted in violation of their constitutional rights to be released on bail pending trial.
The petitioners claim that they continued to suffer for failure of the police to return the said money resulting in them owing money to their creditors since December 2016 and thus causing their reputation to suffer.
Safaricom through Stephen Gikera filed a preliminary objection on grounds that the petition discloses no cause of action against them. They want suit to be dismissed with costs.
They wants the court declaration that the NPS and Safaricom have violated the constitutional right to bail.
They also want NPS and Safaricom to be compelled to refund the bail amount paid.
The eight want an order of compensatory damages to be paid by the respondents for the monitory and reputation loss they have suffered.
