BY SAM ALFAN.
Court of Appeal is expected to hear Appeal by acting Inspector General Masengeli challenging High Court Judge Lawrence Mugambi decision to sentence him for six months without fine.
Justice Justice Gatembu Kairu , George Odunga and Aggrey Muchelule are expected to hear Masengeli’s appeal 48 hours after withdrawing the judge security details alleging they were recalled for training.
In the application, Masengeli is urging the court of appeal to quash ruling by Justice Mugambi that found him guilty of disobeying Court order and sentencing him to serve six months imprisonment.
“The sentence upon the Appellant (Gilbert Masengeli) vide the Ruling of the Superior Court dated 13th September 2024 be varied and substituted with an entry of an Order dismissing or quashing the same,” pleads Masengeli.
He argue that the judge erred in law and in fact in granting ex parte orders of habeas corpus ad subjiciendum by relying solely on allegations of abduction without corresponding prima facie proof that the 2nd-4th Respondents herein were indeed held at a police station.
It is the humble submission that this Court should be persuaded that he has demonstrated an arguable appeal which may be rendered nugatory should stay not be granted.
“Accordingly, it is the Applicant’s humble prayer that this Court do allow the Application dated 16th September 2024, and do grant a conservatory order of stay of execution of the decisions and any consequential ordersby Justice Lawrence Mugambil dated and delivered on 9th September, 2024 and 13th September, 2024 respectively,” pleads the top officer.
Further, Masengeli prays that the Court do hold and find that if he is sent to jail, he would be unable to recover the time and freedom lost, in the event that his appeal was successful after he had been imprisoned.
He argues that Judge Mugambi gravely erred in law by disregarding Masengeli’s replying Affidavit dated 4th September 2024, which presented affidavit evidence stating that the 2nd 4th Respondents herein were not in pollice custody.
” Judge gravely erred in law and in fact by falling to note that the Masengeli’s affidavit evidence stating that Kitengela brothers Jamil Longton ,Hashim Longton and activist Bob Michemi Njagi were not in police custody was wholly without rebuttal.
He fault Judge Mugambi finding that the acting Inspector General of Police was in contempt of court for falling to attend court, while it is common cause that the acting Inspector General of Police, at all material times appeared in court through his legal counsels and duly recognized agents.
He further argue that erred in law by holding that Masengeli cannot be represented by his recognized agent or Advocates to render an explanation as to why the ex parte orders of habeas corpus had not been complied with.
According to embattled police boss, the judge erred in holding that the acting Inspector General of Police was in contempt of court in the absence of any formal application for contempt thereby acting without jurisdiction.
“By finding the acting Inspector General of Police in contempt of court in the absence of any formal application for contempt, the Judge erred in law by making adverse findings on unpleaded issues,” he adds
He accuses Judge gravely erred in law and in fact by showing open bias and setting and applying different standards in analyzing evidence adduced by him on the one hand, and Masengeli’s unsupported aver merits on the other.
