Blog Page 225

KMJA SEEKS TO BLOCK MOMBASA MAGISTRATE EDGAR PROSECUTION.

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Mombasa Principal Magistrate Kagoni Edgar Matsigulu.

SAM ALFAN.

Kenya Judges and Magistrates Association has filed a case seeking to block Director of public prosecution from charging Mombasa Principal Magistrate Kagoni Edgar Matsigulu.

The association through lawyer Danstan Omari and Shadrack Wambui wants the court to issue a conservatory order restraining DPP from charging the magistrate pending hearing and determination of the application.

Under certificate of urgency, the association also seek orders to stop Mombasa Principal Magistrate Edgar from taking plea in any criminal court until the case is determined.

The association argue that unless the court moves with speed and stop arraignment and charging of Magistrate Edgar on the basis of the DPP’s spurious allegations , the independence of Judges and Magistrates and all other judicial officers will be threatened by the DPP.

Article 160 (5) state 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 it members magistrate Edgar who is a judicial officer serving as a Principal Magistrate at Mombasa Law court.

Edgar is expected to be charged alongside court clerk Onesmus Miranda Momanyi, Abdalla Abubakar in charge of exhibits and a support staff Lawrence Thoya Bayan with conspiracy to defeat and interference with witnesses and stealing by person in public service.

The association argue that, the criminal charges against their colleague arise out of his orders or exercise of judicial authority in a criminal case no. 468 of 2018 republic vs Hussein Madison Eid and two others where the said accused person were charged with trafficking of 10.002 kilograms of heroin.

The magistrate on June 11 this year convicted Hussein Eid for trafficking narcotic drugs and sentenced him to 30 years imprisonment and in addition fined him 90 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 said exhibit of 10.002kg heroin which the embattled magistrate had ordered to be kept under lock and key in the exhibit tore 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.

Last week Director of criminal investigation released a press statement as inquiry into allegations of theft and reckless handling of approximately 10.002kg of heroin valued 30,066,000 million and various foreign currency valued over 600,000 kept as exhibit at Mombasa law chief magistrate.

COURT DETAINS SIX G4S OFFICIALS FOR 7 DAYS OVER DISAPPEARANCE OF 72 MILLION FROM CITY BANK.

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Six G4S officials Musa Rajab, Abraham Mwangi Njoroge, Ascar Kemunto , Wilfred Nyambane, Nathan Njiiru and Danmark Magembe before Nairobi Court on Friday September 6,2019./PHOTO BY S.A.N.
BY SAM ALFAN.

Six G4S officials have been detained for seven days to allow police complete investigation over alleged disappearance of 72 million from Standard Chartered Bank (K) limited Nairobi West.

Milimani Chief Magistrate Martha Mutuku allowed the detectives to detain Musa Rajab, Abraham Mwangi Njoroge, Ascar Kemunto , Wilfred Nyambane, Nathan Njiiru and Danmark Magembe at Langata Police station pending investigation.

Constable Joseph Ngeno attached to DCI Langata police told the court that on September 5, 2019 G4S personnel who were assigned ATM restocking duties , left their Headquarters off Witu road with cash on transit Van containing 72 million.

The said money was destined to ATM restocking withon Nairobi and they were accompanied with three administration police officers designated to escort the said cash.

“At about 6.05 a.m the said officers turned to be robbers and they turned against the five taking all money in Transit and bundled and bundled the six into Nairobi West Standard chartered (K) limited ATM room and left with cash”, said Ngeno.

The gun rubbers left with the robbed money and disappeared and the robbery was reported at Nairobi West Police post.

Police told the court they need to further scrutiny of the CCTV footage from standard Chartered Bank (K) Headquarters since there is high likelihood that the six will interfere with investigations and evidence.

The officer further said that other accomplices are still at large and they are yet to receive call data of the suspects mobile phones to ascertain the relationships between the six and other key accessories in this heinous crime of robbery with violence.

” The six face daunting criminal charges should there be sufficient evidence adduced in their and it is prudent to establish the truth of the allegations.

DNA RESULTS CONFIRM KEN OKOTH SIRED NOMINATED MCA’S SON.

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City lawyer Danstan Omari with Elkana Mogaka for Nominated Nairobi County Assembly Member Ann Thumbi before Milimani Commercial Court after filing DNA results on Thursday September 5,2019./PHOTO BY S.A.N.

BY SAM ALFAN

DNA results have proved that the late Kibra MP Ken Okoth is the father of MCA Ann Muthoni Thumbi’s son.

The three year old minor was subjected to the test after his mother moved to court through lawyer Danstan Omari and Elkana Mogaka seeking to be included in the funeral and burial arrangements of the late MP.

Lawyer Omari speaking outside Milimani Court commercial building said three samples from three local and international labs were taken and tested.

KEMRI confirmed that the chances of Okoth being the father of Thumbi’s son were 99.99+ per cent.

Muthoni had argued that Okoth’s falimy had refused to let her and her son participate in the send off.

She asked the court to stop the cremation of the late MP so that the DNA test could be conducted.

However, through their lawyers Danstan Omari representing the MCA and Edwin Sifuna who represented Okoth’s mother, the parties reached an agreement and decided to take DNA samples from the deceased for testing and continue with the cremation.

The court also allowed her and her son to be part of the funeral arrangements.

Okoth died in July after a two year battle with cancer while serving his second term as Kibra MP.

WIFE OF MISSING TYCOON CHALLENGES DETENTION ORDER.

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Missing Dutch Kenyan based businessman wife Sarah Wairimo Kamotho before a high Court where she filed application seeking to review magistrate order to detain her for fourteen days pending investigations on Thursday September 5,2019/PHOTO BY S.A.N.

BY SAM ALFAN.

The Director of Criminal Investigation George Kinoti  has urged the court to dismiss the application by Sarah Wairimo Kamotho, the wife of the missing Kenyan based  Dutch businessman, who has  challenged orders granted by a Kiambu magistrate detaining her for 14 days.

The DCI through Senior Assistant Prosecutor Alexander Muteti said that Wairimu is likely to interfere with witnesses, some of whom she had coached on what information to give to the police.

In his affidavit, detective Maxwell Otieno asked the court to uphold the ruling of the trial Magistrate since no grounds have been advanced to warrant the disturbance of the exercise of the discretion of the Magistrate.

According to the police, it is highly probable that the missing Tob Cohen might have been kidnapped from his residence in Nairobi and taken by Wairimu and associates to an unknown place. The police suspect that the kidnap may probably turn to be murder.

Cohen has been missing since July 19, 2019 and his phone has since been unreachable.

His wife filed the case before the High Court seeking to review the orders to detain her for 12 days.

Wairimu who arrested in connection to the disappearance of her husband was detained on 2nd September by Kiambu Law Courts Chief Magistrate to allow police to complete investigations.

She argued that her arrest and arraignment in court without a charge or holding charge is in breach of her fundamental right to liberty and freedom.

Through her lawyer Eva Mbula, Wairimu says that the learned Magistrate misdirected herself in finding that there sufficient grounds on which she should be remanded for 12 working days without justifiable reasons.

“Without prima facie evidence of the nature of the purported offence for which the applicant has been arrested, she has been ordered detained for 12 days without justifiable cause and in contravention of her constitutional right to liberty,” states Mbula.

The court heard that the learned Magistrate misapprehended and/or failed to appreciate the law applicable for applications of custodial orders.

She accuses the police of failing to provide the information they hold, which she requires for the exercise or protection of her fundamental rights to freedom and liberty by failing to inform her of the charges or purpose of her arrest with sufficient details to enable her answer it.

“Rather than inform the applicant of the charge and/or purpose of her arrest to enable her answer it, the respondent has resorted to ‘leaking’ information to the media,” her lawyer said.

RUNDA HOME LAND WAS BOUGHT USING PROCEEDS FROM MY MOTHER PROPERTY, KITTANY TELLS COURT.

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Meru Senator wife MaryAnne Kittany testifying before a Nairobi Court in a case she is seeking a divorce from Linturi on Wednesday September 4,2019/PHOTO BY S.A.N.

BY SAM ALFAN.

Estranged wife of Meru Senator Mithika Linturi, Marianne Kitany has told a Nairobi court that the land where their Runda home sits was bought with money from her mother property.

Kitany told Chief Magistrate Peter Gesora that the land was bought at Sh38.7 million using Atticon Company.

“This company Atticon resources came from a facility that had been taken from family bank using properties and titles from my mother”, added Kittany.

While responding a question from Lawyer Danstan Omari, She said the property was sold by Kings Commodities company which was paid 38.700 million.

“The land in Runda was bought through company monies and those company monies had been acquired through a facility taken to the bank with titles belonging to my parents”, said Kittany.

She urged the court to grant her divorce from Mithika Linturi who she said they married in 2016 under Nandi customary law.

Kittany told the court that she was married under Nandi customary law and not Meru customary law.

At the same time, the two agreed to bar media from livestreaming the proceedings. However, the two said the media can cover the case as it unravels.

Linturi’s lawyer Muthomi Thiankolu said that this was the decision of the parties adding that anyone aggrieved should direct their anger to them and not the court.

Gesora adopted the consensus and allowed the media to continue covering the proceedings without streaming it live.

“Hearing a divorce matter in the media may unsettle some people but that is the digital era,” lawyer Danstan Omari representing Kitany said.

This was after the re-examination of Kitany who has finished testifying.

Kitany told the court that Linturi’ family, including his parents, siblings, cousins, among others did not attend their marriage ceremony.

However she responded by saying that she was married under the Nandi customary law and it is not a requirements for relatives to attend.

She told the court that she got the money to build the two houses in Meru from money she had been saving over the years.

“By the time I was done with my first degree I had already made millions and before leaving the the office of the Deputy President where I was employed in 2013, I had a substantial amount of money,” she testified.

She also refuted claims that she lured the Senator to Sapa Lodge in 2014 to have some good time in order to make sure he was not present in Parliament during the motion to oust Waiguru.

“We went as two consensual adults. Willing seller willing buyer situation if I may put it,” Kitany said sarcastically.

Linturi’s lawyers Prof George Wajackoya and Muthomi objected Kitany answering questions she had refused to answer during cross-exanimation.

At some point, prof Wajackoya applied Kitany to be taken for psychiatrist examination and be subjected to a lie defector test.

However the Magistrate ruled that it has not gotten to that point since the court has not noted any reaction or behavior to warrant such drastic measures.

She told the court that she does not suffer from any health of mental condition.

Kitany said that she agreed to be married as a fourth wife to Linturi because of love and trust.

Further hearing will be on September 24 when the second witness after Kittany will be testifying.

JUDGE WARNS ABOUT ARRESTS REVERSING GAINS IN ADVANCEMENT OF HUMAN RIGHTS.

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High Court Criminal Division Judge Justice Luka Kimaru.

BY SAM ALFAN.

The arrest and detention of State House official Dennis Itumbi and that of blogger Robert Alai among other arrests continues to expose the tricks employed by the police to punish suspects before they are formally charged.

The tricks are mostly through miscellaneous application which police seek to detain suspects up to 30 days or more pending conclusions of investigations.

But last year, a Judge ruled that it is unlawful for the police to seek to have a person who has been arrested to continue to remain in custody without a formal charge being laid in court.

“If this trend continues, it will erode all the gains made in the advancement of human rights and fundamental freedoms as provided for in the Bill of Rights since the Constitution was promulgated in August 2010,” Justice Luka Kimaru said.

And in a recent decision, Justice Kimaru said the prosecution must fulfill the requirements of Section 36A(3) and (5) of the Criminal Procedure Code, which include convincing the court that the offence being investigated is of such a serious nature that it will necessitate the holding of the arrested person in custody.

In both cases, the Directorate of Criminal Investigations had sought to detain the suspects for several days as they conclude investigations. Among the reasons sought is the need to go through their call data records.

City lawyer Danstan Omari welcomed the ruling saying Kenyan constitution envisages complete investigation before arrest and arraignment in court.

“Today suspects are arrested brought to court then detained then investigators commended investigation that is meant to look for anything to charge a person. Legally it’s an abuse of article 157 sub article 11 where the DPP should act in the public good. Many who have been arraigned the state has later withdrawn the allegations and closed the files. Who will compensate them?”, said lawyer Omari.

He added that this constitutes to malicious prosecutions.

Lawyer Omari said that miscellaneous applications is a way to remove public officers from offices. Because courts are granting cash bail to suspects on the spot the only way to ensure the are put to humiliation is to use that approach.

“Miscellaneous application is a new tool that replaced the infamous detention without trial of the Moi era”, added Omari.

Alai has already been charged with among other offences, treachery while in Itumbi’s case, the police intend to charge him with making a false document without authority.

The court was told that the investigators needed to go through his call data records and also summon all 256 members of a whatsapp group known as Tangatanga movement.

The law says if a police officer has reasonable grounds to believe that the detention of a person arrested beyond the 24 hour period is necessary, he shall- produce the suspect before a court; and apply in writing to the court for an extension of time for holding the suspect in custody.

The said application must be supported by an affidavit and shall specify the nature of the offence.

Justice Kimaru observed that Article 49(1) of the
Constitution does not give the police a carte blanche to the police to arrest people for any other purpose other than in preparation to present them to court for the purpose of having them charged with a recognized offence.

While freeing some 40 suspects from Kenya Revenue Authority arrested over claims of aiding persons evade tax, Justice Kimaru said the reasons presented to court for the continued detention of an arrested person must be such that a reasonable man applying his mind to the particular facts reaches the conclusion that indeed there is justification in having them continued to be detained.

“The prosecution must also establish to the court that there are compelling reasons to believe that the suspect shall not appear for trial, may interfere with witnesses or the conduct of investigations, or commit an offence while on release,” he said.

The Judge explained that the term “reasonable ground to believe” used in Section 36A(2) of the Criminal Procedure Code has not been defined.

However, he said, the test “reasonable ground to believe” is different when a police officer is arresting a suspect from when the police officer is requesting the court to continue holding the arrested person in custody after his first production in court.

“The legal threshold when the police are effecting arrest is lower than when the police are seeking to continue holding the arrested person in custody,” he said.

The Judge released the KRA suspects stating that the information provided in the affidavit was generalized in nature and did not disclose the specific offence that is being investigated in respect of each applicant.

” It was evident that the Applicants were arrested before even the investigators had gathered sufficient prima facie evidence to link each applicant to the commission of a specific disclosed offence,” he said.

The Judge said he was not convinced that the reasons that the DCI advanced in a bid to secure the continued detention of the suspects applied to each applicant.

He said the impression he got was that the arrest of the was rushed even before investigations had concretized and the criminal culpability of each applicant established.

I WAS AT SOPA LODGE WITH LINTURI, KITTANY MAINTAINS.

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Estranged wife of Meru Senator MaryAnn Kittany and her husband Senator Mithika Linturi during their divorce proceedings at Milimani Commercial Court on Monday September 1,2019./PHOTO BY S.A.N.

BY SAM ALFAN.

Estranged wife of Meru Senator MaryAnn Kittany has told Chief Magistrate Peter Gesora that she entered into relationship with senator Mithika Linturi because i trusted him.

Kittany further told the court that matters of the heart cannot be questioned and relationship are about trust.

“Relationships are about trust and that is the key pillar, I trusted Linturi,” Ms Kitany said as she was being cross-examined by lawyer Muthomi Thiankolu.

She denied luring the senator into sexual escapades at Sopa Lodge with an aim of getting his properties. The jovial Kittany dismissed claims by Linturi’s lawyers that he has never been to Sopa Lodge in Naivasha.

While responding to Linturi lawyer, Kittany reiterated her earlier testimony that she was with Linturi at Sopa Lodge and they had been there severally even after that day.

“We were together at Sopa Lodge having quality time. We went back several times after that,” Kittany told the court.

She added that, they obtained the properties in question during the subsistence of marriage.

Kitany who dodged some questions saying that there are experts who will testify in the case, said that her witnesses from Meru who attended their traditional marriage in Nandi have been threatened by the lawmaker adding that Linturi stole her relative’s tittle deeds to secure loans with Family Bank.

“I will stick to my testimony, Linturi stole properties belonging to my relatives without my knowledge and forged signatures” Kittany said.

A jovial Kittany dressed in a maroon burgundy dress, accused the Meru senator of fraud by taking the documents without her permission and forging petition to show that he was in the process of divorcing his wife –Mercy Kaimenyi.

Among the witnesses that Kitany claims that they have been threatened include the master of ceremonies, who accompanied the Senator from Meru.

She was taken to task over claims that chewing of miraa signifies or constitutes to marriage but she stuck to her story saying the partaking of Mursik and chewing of miraa was part of cementing their union.

Kitany said the ceremony was initially planned for April 16, 2016 but Linturi asked it to be brought forward to fall on the Easter season and was thus held on March 26, 2016 at their Kapchemosin village in Nandi South.

On the issue of her wealth, she said that she earned her money, invested the money and bought pieces of land. She testified that after she was fired from the Deputy President’s office, she started working as a CEO at Atticon Limited adding that Linturi used to pay her “little money”.

Kittany told the senator lawyer she had made money prior to joining the office of the deputy president as chief of staff.

MarryAnn Kittany with his husband Mithika Linturi linturi during cross examination./PHOTO BY S.A.N.

Lawyer Muthomi for Linturi argued that engagement and marriage are not the same things, ruling out Kitany’s document showing the court an engagement invitation.

Muthomi said all documents on customary marriage shown by Kitany had different dates, hence showing inconsistency.

But Kittany told him that in Nandi culture Koitok both engagement and marriage are same thing.

The divorce proceedings will proceed on the fifth day tomorrow before Milimani Commercial Magistrate Court.

KIBOKO RESIDENTS NOW WANTS KPC STOPPED USING CONTROVERSIAL LINE AFTER OIL SPILLAGE.

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Kiboko Water Resource Users Association Lawyer Apollo Mboya at Milimani Law Court registry.

BY SAM ALFAN.

Kiboko Water Resource Users Association has moved to court seeking to stop Kenya Pipeline Company limited from pumping or transporting petroleum products through Line V Oil Pipeline.

Through lawyer Apollo Mboya, the association wants the court to stop and order KPC to cease pumping, transmitting and transporting petroleum products or any form of hydrocarbons through Line V Oil pipeline, pending hearing and determination of the petition.

Further, the association wants pending hearing and determination KPC to file in court a copy if the project report detailing the capacity and scope of the project for construction of line V, including environmental impact assessment report submitted by the KPC in the application for a construction license.

They are also seeking KPC to supply a copy of Environment Impact Assessment License No. NEMA/EIA/PSL/556 dated September 12, 2014 issued to KPC by the National Environment Management Authority (NEMA).

The residents are also demanding a Hydrological report assessment report detailing the underground spread extent and any possible movement of the pollutants consequences of oil leak and spillage at Kiboko area in Makueni County and Samburu area in Kwale county and intrusion at Mlolongo Town on the border of Nairobi County and Machakos County.

The association also wants to be furnished with the acceptance letter of the condition by NEMA dated July 28, 2014 and all the reports and plans filed with NEMA pursuant to the restoration order dated May 16,2019.

In the court documents, the resident allege that KPC has omitted, failed and refused to construct KM 304 line V oil pipeline in accordance to the documents submitted in the application for construction permit.

The EIA report had indicated that NEMA, Water Resources Authority (WRA) and Energy and Petroleum Regulatory Authority (EPRA) was to install a fibre optic cable digital pipeline leak detection system, for real time monitoring.

They said the oil leak and spillage from KPC’s pipeline at Kiboko area, which has been continuing for a very long time without a detection system, has polluted and continues to pollute the soil, the surface and the underground water comprising among other aquifers and springs flowing into Kiboko River and the Athi River.

“The oil leakage and spillage site is catchment with porous volcanic formation with high water table and the source of water serving the residents, downstream users and ecosystem as it drains into Athi River”, the Association said.

Lawyer Mboya told the court that there was also a recent intrusion of the same pipeline near Mlolongo town on the border of Nairobi County and Machakos County.

They added that NEMA ssued a Restoration Order dated May 16,2019 directed KPC while expressing concern on the integrity and safety of the pipeline which is barely one year since its commissioning.

This was after another petroleum oil product leakage and spillage was detected on March 31, 2019 at KM 40.5 on the same pipeline in Samburu area, Kwale County.

“The restoration order dated May 16, 2019 issued by NEMA after the oil leakage and spillage at Kiboko did not address the issue of compensation to the victims of the activities of KPC”, stated the court documents.

They said the oil leakage and spillages poses serious environmental and health risks to the residence of the affected areas who have been left destitute on account of lack of alternative water sources for domestic use and irrigation, thereby rendering the affected and surrounding areas unsafe for human habitation.

Wilson Mbithi Munguti the chairman of Kiboko Water Resource association said he mobilized residents and reported the matters to the relevant authorities.

Mbithi said on or about March 30, this year, the members and residents of Kiboko started to experience traces of oil in the water coming from various springs in the area.

Upon further investigations from samples taken from Kiboko mainsprings, Earth pan (mutiso) , Kathimani springs among others between April 5 and May 14 ,2019  , the existence of dangerous levels of petroleum hydrocarbons in the soil, the surface and the underground water was confirmed arising from the oil leak and spillage.

According to court documents, on April 8 this year, WRA issued a compliance order No. 002421 directed to Kenya Pipeline Company Limited requiring respondent to clean up oil spill area within Kiboko springs water catchment and to remove the soil containing the oil product to safer grounds.

The cabinet for Water and Sanitation in a statement to the senate standing committee on energy confirmed that the spillage site geographically lies at 37M 0356113 , 9865377(S01.217663, E037.706752) at an attitude f 935 metres above sea level and lies to the south of Nairobi -Mombasa Highway 400m south west of Kiboko springs within Kiboko springs catchment , Makueni county.

The cabinet secretary for water and sanitation further states that the said catchment has porous volcanic formation with high water table and it is the source of water serving the residents downstream users and ecosystem as it drains into Athi River.

DCI WANTS NAKURU COUNTY SECRETARY JAILED FOR IGNORING COURT ORDER.

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Directorate of Criminal Investigation headquarters Nairobi.

BY NT CORRESPONDENT.

The Directorate of Criminal Investigation has filed application seeking summons to be issued against the County Secretary, Nakuru.

In the application, the police want the county secretary to show cause why he should not be cited for contempt of court order and jailed for a period not exceeding one year.

It is alleged the secretary ignores orders issued in miscellaneous criminal application No. 2384-2019 by Milimani Chief Magistrate court on June 6, 2019.

In the case, the county secretary had been ordered to supply land investigating officer Sargent Japheth Kipngeno with books and records of Nakuru County Government related to Nakuru MUN BLOCK II/678, 679& 680.

The plots were hived off Nakuru MUN.BLOCK II/66 and despite the officer obtaining a search warrant, he was not supplied with the records.

The order also required the county Secretary to supply the officer with the report of Town Planning and Works Committee as contained in the minutes held on September 29, 2019.

The order had also directed the county secretary to supply letter of authority to dispose off council property referenced as C/18/97/EMK/1W dated September 17,1997 and letter from the Ministry of Local Government approving the council to dispose some property referenced C/114203/54 dated May 4, 1998.

But despite obtaining the order, the county secretary have not complied or communicated with the investigating officer or failed to give reasons for non-compliance.

The officer is investigating an offence of obtaining land registration by false pretence contrary to section 320 of the penal code.

This is after the matter was reported by the Director of Public Prosecution through a letter dated August 16, 2018.

The parcel of land Nakuru/municipality block 11/66 was fraudulently registered in the name of Kennedy Nyabwari Bosire and issued with a certificate of lease.

According to court documents, on January 9, the letter was dispatched to Nakuru County Government dated August 1, 2019 seeking to be provided with particulars of the ownership of the land.

BLOW TO CJ MARAGA AS COURT QUASHES SUSPENSION AGAINST KIAMBU MAGISTRATE KHAEMBA. 

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Kiambu Senior Principal Magistrate Bryan Khaemba with Judges and Magistrate Association Secretary General Derrick Kutto on Friday August 30,2019. PHOTO BY S.A.N.

Khaemba suspension was unlawful and unfair.

BY SAM ALFAN.

Chief Justice David Maraga has suffered a major blow after court found his decision to suspend Kiambu Senior Principal Magistrate Bryan Khaemba unlawful.

Employed and Labour Relations Court declared decision by CJ to suspend Khaemba as null and void.

“The suspension was unlawful and unfair”, ruled the judge.

Judge Byram Ongara said Maraga decision was in contravention of Articles 41,47(I) and 236 of the constitution and infringed Khaemba’s fundamental rights.

The employment judge quashed the decision by the Chief Justice contained on the the letter issued on June 13,2019 suspending Bryan Khaemba after he granted Kiambu Governor Ferdinand Waititu anticipatory of Kshs. 500,000 pending prosecution.

The court also issues a permanent injunction prohibiting Judicial Service Commission and the Chief Justice from implementing the decision contained in the Chief Justice’s letter dsted July 13,2019 and from taking any adverse against Khaemba pursuant to the said decision.

Khaemba will be paid all his salaries, allowances and given all other due contractual and statutory benefits withheld throughout the suspension period.

“Khaemba to continue in employment without loss of rank, status, all attached benefits and the JSC and CJ to pay him due some of money by November 11,2019 failing interest at Court rates to be payable from the date of this judgement till full payment and further to report to the JSC,CJ not later than September 9,2019 for appropriate deployment and assignment”, ordered judge Ongaya.

Court ordered Khaemba to serve Attorney General with the court judgement within 7 days to take appropriate action within his constitutional and statutory roles to correct the anomaly that the court identified in number of paragraphs as referred to in paragraph 15 of the Third Schedule of Judicial Service Act.

The judge in his 72 page judgement said Khaemba acted in good faith and has not been shown to have acted in bad faith or in interests outside his official roles and court found he did not violate articles 10,73,232 and 236 as was sought.

He said court was guided by section 45(1) of the Judicial Service Commission Act that the members of the Judicial Service Commission shall not be liable to any civil action or suit for or in respect of any matter or thing done or omitted to be done in good faith as a member of JSC.

Kenya Judges and Magistrate Association welcomed the court decision saying it was a reprieve to judicial officers who had been working on fear.

This decision is a big win not only for Khaemba but for the entire members of judicial fraternity, all the magistrate and judges.

“I dare say these are issues that has been put before the administration , these are issues have been put before Judicial service commission and Chief Justice. Am happy that now there has been a clear direction that JSC should come with clear procedures within the law”, SG Kutto said.

Speaking outside Milimani court building, Kuto added that many judicial officers out there are suffering and people have been working with a lot of fear because they feel that any time they get suspension without being given opportunity to explain themselves.

Khaemba trouble started after granting embattled Kiambu County Governor Ferdinand Waititu anticipatory bail orders on 23rd May this year.

It was alleged that Khaemba was not in a position to handle the file since he had indicated to his immediate boss that he was unable to go to work that day since he was unwell.

In his reply, the magistrate responded to the CJ saying that he felt better and decided to report to work at around 11 am.

He added that upon arrival to work, he did inform his superior that he had reported.

A day after giving his explanation, Chief Justice David Maraga sent him a suspension letter saying his explanation was unsatisfactory and that he had no right to handle the file since it was not assigned to him.

The letter also indicated that he was suspended without pay contrary to the Judicial Service Act.

Judge found that no provision requires an employee to be suspended on nil salary.

“The suspension did not safeguard the requires provisions. The petitioner was suspended indefinitely and was entitled to lament,” the judge ruled.

The judge further found that it was not contested that the CJ did not act in bad faith and had no personal vendetta against the petitioner.

The court ordered that Khaemba be paid accrued salaries, allowances and statutory benefits withheld throughout the suspension by September 1, and report back to work in his position by September 9, 2019.

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