BY SAM ALFAN.
The High Court has suspended summons issued by the Director of Criminal Investigations to prominent city lawyer Danstan Omari.
Justice Jairus Ngaah suspended the notice to compel Attendance, which was issued to Omari under Section 52(1) of the National Police Service Act.
The lawyer was required to appear before the DCI on February 22, 2023, to give information in connection over the alleged invasion and raid of the residence of the former Interior Cabinet Secretary, Dr Fred Okeng’o Matiang’i.
“Leave granted shall operate as stay in terms of prayer 5 of the summons. The substantive motion shall be filed and served within seven days of the date of this ruling,” ruled Justice Ngaah.
Omari has challenged the decision by the DCI to summon him citing advocate-client privilege. Lawyer Omari has been acting for former CS Matiang’i among other Azimio la Umoja One Kenya Coalition.
He told the court that Senior Superintendent of Police Michael Sang, CFE, issued the notice to him February 21, 2023 to appear at the DCI headquarters the following day at 9:30 am.
“The Notice required me to give information in relation to a raid conducted by the police at the home of Dr. Fred Okeng’o Matiang’i on the 8th February 2023 and his connection to the said raid,” lawyer Omari told the court.
He told the High Court at the material time, he had been engaged to render professional legal services by the Client who was under a real apprehension that DCI and DPP had set out to arrest him in the wee hours of night with a view of harassing him.
Dr Matiang’i through Mr Omari later obtained anticipatory bail, pending any arrest.
He told the court that the information received by him in the course of taking instructions was used to file the above application which is actively pending before the high court.
The lawyer says the information was not used in furtherance of any illegal or criminal activity.
He further adds that the undated summons by the DCI have been issued to him in his professional capacity as an Advocate of High Court of Kenya to give information concerning the said raid that was conducted at the home of the Client.
“The nature of the information that the Applicant is required to give, as per the said notice, is privileged under section 134 of the Evidence Act, Cap 80 Laws of Kenya and the said privilege has not been waived by the client’s express consent,” says Omari.
He adds that DCI and DPP are acting in bad faith as they are not acting on a legitimate complaint either by the client or any other complainant and there is no justification for commencing investigations against him.
“The Notice to me is a clear attempt to victimize an advocate for a spirited defense of his client and is only meant to harass, silence and intimidate him, and by extension all Advocates of the High Court from exercising their noble duty of advancing the rule of law and DCI’s actions of investigating me and my client for information and opinions given vide a live tv interview/broadcast is contrary to the express provisions under article 34(2)(b) of the constitution which provides that the state shall not penalize any person for any opinion or view or the content of any broadcast, publication or dissemination,” Omari says.
Omari said it was quite telling because neither Matiang’i nor Raila Odinga have been summoned to record their statements despite the latter addressing the media on the night of the raid.
“The Respondents have only singled out an Advocate who was rendering professional legal services and the decision is therefore biased and unfair,” he said.
He adds that notwithstanding, the Notice is an affront to functionality of Advocates by intruding to the privileged information they receive from their clients and an attempt to intimidate advocate(s) who take up politically instigated cases to divulge information touching on their client pleas and atrocities.
“The action or decision to summon me contravenes his legitimate expectation as an advocate that he will not be turned into a witness against his own client based on information volunteered by the Client in confidentiality in furtherance of advocate-client relationship,” Omari told the court.
He further adds that DCI action or decision to summon him was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the Applicant and in bad faith, is unfair, violates the Advocate client Privilege and is taken in or made in abuse of the DCI and DPP’ powers.
DCI move to summon lawyer Omari have attracted condemnation by Lawyer society of Kenya and his fellow colleagues in legal profession.
