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NLC OFFICIALS FAIL IN BID TO STOP INVESTIGATIONS BY EACC.

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former National Land Commission Muhammad Swazuri with his co-accused before Milimani Anti-Corruption Court .
BY SAM ALFAN.

High Court has dismissed a petition by two officials of the National Land Commission (NLC) who sought protection from the court accusing the anti-graft body of harassment.

Dr Salome Munubi, a director valuation and taxation at NLC and her deputy Joash Oindo filed the application before the High Court accusing Ethics and Anti-Commission (EACC) of victimization, intimidation and harassment them and their families in the guise of carrying out investigations.

Oindo also sought to be reinstated back to his job, alleging that he was “forced” to go on compulsory leave with giving him a hearing.

The two claimed that investigations into compensation of the standard gauge railway (SGR), Port Reitz/Moi International Airport access road and for Mombasa Southern by-pass-Kipevu road are in bad faith and have not been a genuine effort towards the enforcement of the Anti- Corruption and Economics Crimes Act.

But after hearing the case, Justice Mumbi Ngugi of Anti-Corruption division said she cannot stop an investigative agency from carrying out its mandate. “They may also view the acts of the respondents as harassment.

However, I do not believe that a court can properly restrain a state investigative agency form carrying out its constitutional mandate only because it is causing harassment and embarrassment to the applicants,” the Judge said.

She added that the two must demonstrate that they are likely to suffer real prejudice, an element they were unable to demonstrate.

The court also dismissed an application seeking to compel EACC to produce a CCTV footage of an interview conducted by the commission and Mr Oindo as well as documents confiscated from their homes.

MP BARASA ALLOWED TO CHALLENGE CONFISCATION OF FIREARM.

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Kimilili Member of Parliament Didmus Wekesa Barasa Mutua.
BY SAM ALFAN.

Kimilili Member of Parliament Didmus Wekesa Barasa Mutua has been allowed by the High Court to challenge a decision by the Secretary of the firearms licensing board to return his gun as well as renew his firearm certificate.

Justice John Mativo further directed Firearms and Licensing Board Secretary to return the confiscated firearm to the MP without further conditions.

The Court also prohibited Ministry of Interior and Coordination from recalling or causing to be recalled by himself or acting through his agents employees or servants the two police officers currently attached to the MP until hearing and determination of the application.

In a case filed under certificate of urgency, Barasa also sought an order prohibiting the Interior CS Fred Matiang’i from recalling the two police officers currently attached to him, pending the hearing the hearing and determination of the case.

Through lawyer Dunstan Omari, the MP claims that no cause has been given in writing or otherwise, for the withdrawal, a move he termed as unconstitutional.

Mr Barasa said he was apprehensive that the CS was likely to take further actions against him such as withdrawing or causing the withdrawal of his security.

“The applicant has been vetted and cleared multiple times has never been nor is he currently accused of any violations of the use of firearm,” stated Omari in the application.

He said through an oral order of April 25, 2019 the secretary neglected, refused or failed to renew Mr Baraza’s firearm certificate. He further said his Glock 19 Gen4 9-millimeter firearm assigned to him, was confiscated.

He said the action puts the MP’s life in eminent danger as he has been receiving consistent and current threats to his life by unknown people.

He said Barasa was a victim of robbery with violence in January 2019 along Mombasa Road which he would not have survived the ordeal had he not been armed. He said the DCI has ascertained the death threats to be viable and active threats.

The secretary of the firearms licensing board, the firearms licensing board, the Attorney General and the cabinet Secretary ministry of interior and coordination of National Government are the respondents in the case.

LAWYER NYAKUNDI DETAINED AT MUTHAIGA AS POLICE READY TO PREFER MURDER OR MANSLAUGHTER CHARGE AGAINST HIM.

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City lawyer Assa Nyakundi before Makandara Law Courts on Thursday April 25,2019.

BY SAM ALFAN.

The police are likely to prefer a charge of manslaughter against city lawyer Assa Nyakundi who is suspected to have shot dead his son.

Investigating Officer attached to Homicide at DCI headquarters Sergeant Oliver Nabonywe from DCI headquarters told Makandara Court magistrate that Nyakundi is likely to face murder , manslaughter charges or any other that director of public prosecution may recommend.

Nyakundi was presented before a Makadara court today and the police were allowed to detain overnight as they conclude investigations.

Nyakundi who was being represented by four lawyers and appeared for the first time in court is suspected of killing his son in Muthaiga last month.

Investigating officer Oliver Nabonywe told the court he took over the case from PC Joseph Munene from Starehe DCI.

” I rely on the affidavit by PC Munene and I want to confirm that we are through with investigations but since the responded was discharged from hospital Wednesday evening, I wish to request the court to detain him for one day to be able to process his contents”, the prosecution said.

Nabonywe requested the court to detain Nyakundi at Muthaiga police station to enable them prepare the contents of his case before being charged or as will be directed by the DPP.

“We have to interrogate him, take his finger prints and visit the scene of crime as Nyakundi is likely to face charges of murder, manslaughter or any other charge as directed by the DPP”, the court was told.

The prosecution asked court not to release the suspect on bond as there were compelling reasons for him to face a murder charge.

Defence lawyers Ken Nyaundi, Cliff Ombeta, Sam Nyaberi and another did not oppose the application by the prosecution but requested the police to complete their investigations as early as 12pm on Friday and bring Nyakundi back to court.

“Visiting the scenes of crime might take a couple of hours and taking finger prints cannot take long time. Let the matter be mentioned tomorrow at noon”, Lawyer Ken Nyaundi said on behalf of other lawyers.

He added that though Nyakundi had been released from the hospital, he was still under medical attention by his private doctor.

“Our client is still under medication as he needs to be under insuline treatment.
This is a painful personal problem to the suspect as he is still under intensive depression, battling high level of BP as well as he has a fluctuating diabetes”, he said.
He urged the court to admit the suspect to bail or bond.

He added that Nyakundi is an advocate and there was no reason why he can’t abide by court as required.

The prosecution however asked the court to consider their application bearing in mind that all persons are to be treated equally despite him being an officer of the court.

Chief magistrate Heston Nyaga in his ruling said the matter was of public interest and granted the prosecution the application.

“This is a matter of public interest however, the request by Investigating officer is allowed. Nyakundi will be detained at Muthaiga police station and police should make sure he gets access to his medication. For bond it’s pre mature to rule at this stage as the case will be mentioned today”, Nyaga ruled.

Nyakundi was discharged on Wednesday evening from Nairobi hospital where he has been for six weeks after falling sick during his arrest.

CITY BUSINESSWOMAN CHALLENGES DPP’S MOVE TO WITHDRAW FORGERY CHARGES AGAINST LAWYER SPENCER.

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City lawyer Guy Spencer Elms leaving court after he denied forging will in sale of price of land at Milimani Law courts on Thursday September 7,2017 /PHOTO BY S.A.N.
BY NT CORRESPONDENT.

A Nairobi businesswoman wants the High Court to quash a decision by the Director of Public Prosecutions to withdraw forgery charges against lawyer Guy Elms Spencer.

In an application filed under certificate of urgency, Agnes Kagure through Osundwa & Company Advocates, wants the court to quash the entire decision made on March 20, directing the withdrawal of the criminal case.

Kagure says she wrote to the DPP on March 28 asking for reasons and documents in support of their decision to withdraw the case. “On April 1 and 13, the applicant again renewed the request for reasons from the DPP this time under Article 35 of the  Constitution citing the right to information but to date, there is no response from  the respondents,” the court documents state.

She says the magistrate’s ruling and the DPP’s action have infringed on her rights.

She adds that the court and DPP relied on evidence not presented in court to arrive at a decision and they willfully disregarded a plethora of other evidence in the matter which could have sustained the case.

Spencer had been charged with forging a will but the DPP withdrew the charge saying he found new evidence, and which dented the case.

BUSINESSMAN SEEKS PROTECTION AS WIFE ACCUSES HIM OF ASSAULT.

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Former Electronics Group of Companies in East Africa Chief Executive officer Tob Cohen with his lawyer Danstan Omari at his home.
BY NT CORRESPONDENT.

A Dutch businessman who has lived in Kenya for more than 30 years has moved to court seeking protection accusing his wife of harassing him using police officers.

Tob Cohen, a former Electronics Group of Companies in East Africa Chief Executive officer sought intervention, after his wife Sarah Wairimu pressed assault charges against him.

The Dutch businessman accused his wife of using friendly police officers to fabricate assault charges against him. Sarah was his personal assistant on the May 30, 2007 but thereafter moved in with him.

Through lawyer Dunstan Omari, the Dutch stated that soon thereafter, they began experiencing deep misunderstanding occasioned by Sarah’s demands to have a fifty percent (50%) stake in his situated at Farasi Lane.

The dispute over the property has resulted into a number of instances that Sarah has expressly been disrespectful to Cohen, being scornful and by use of emotional blackmail demonstrated by denying him his conjugal rights.

In a letter, Omari further alleged that Sarah has consequently taught her daughter- Renee Chettle, Cohen’s step daughter, to be disrespectful towards him whether in public or within the family set up.

“The aforesaid disrespect has since been exacerbated by defamatory statements levied against our client’s with accusations being peddled by Sarah that he has previously sought sex from their daughter’s male and female friends,” said Omari in the letter.

The 69 year old businessman has been living in Kenya since 1987, when he came to Kenya as the Chairman and the Chief Executive officer of the Philips (Electronics) Group of Companies in East Africa.

Sometime in 1991, Cohen single-handedly incorporated Tobs Limited, a company which promotes Kenya as a superb golf destination.

“That through our client’s determination and hard work, his company grew and blossomed, and as a result, sometime in June 2000 he purchased land at Farasi Lane, LR 2951/449 measuring 0.3162 hectares, where he presently lives and calls home and also the centre of dispute,” the letter reads.

The businessman commenced divorce proceedings this year under a certificate of urgency, accusing Sarah of cruelty. He said at one time, she pushed him downstairs, causing him serious injuries.

He filed a case at Parklands police station but Sarah allegedly fabricated assault charges against him at Gigiri police station.

WAJIR COUPLE SEEK TO LIFT ORDERS FREEZING THEIR COMPANIES ACCOUNTS OVER 26 MILLION GOVERNOR’S VEHICLE.

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Wajir Governor Mohamed Abdi waving to his supporters at Supreme Court./FILE PHOTO.

BY SAM ALFAN.

Two companies whose accounts were frozen over the purchase of two 26 million motor vehicles meant for the Wajir County Government now want the order lifted.

Daayo Construction and General Supplies Limited and Fine Trust Construction Company filed the application seeking to set aside orders obtained by Ethics and Anti-Corruption Commission freezing its bank accounts pending investigation into the purchase of two motor vehicles.

The companies were barred on February 12 from transferring or dealing with the funds in the account at KCB Wajir Branch, for six months.

“This court do hereby discharge orders issued on February 12 restraining Fine trust Construction company its agents or servants from transferring , disposing or dealing in anyway with account number held at KCB bank Wajir branch for a period of six months”, urged the companies.

They argued that the delay in filing of the application was caused by EACC, who served them with the orders six weeks, after they were obtained.

They further submitted that the delay was compounded after Fine Trust Construction Company director Yasmin Jama Abdullahi gave birth, while her spouse Osman Abdi Jimalle who is a director of Daayo Construction and Supplies limited, fell sick.

The High Court froze the account for six months pending investigation on alleged misappropriation of money meant for the purchase of two motor vehicles for Wajir Governor at a cost of Sh26 million.

It is alleged that Sh12 million paid for the purchase of governor vehicle was transferred to the account of Fine Trust Construction Limited

Justice Hedwig Ong’undi had also ordered that a Toyota Land cruiser VX 8 LC 200 SERIES KCQ 004U should not be disposed of in any manner during the period, while directing EACC to take custody of the vehicle, for inspection and valuation, pending conclusion of the investigations.

The agency also applied for Cosmos Cars Limited barred from disposing, wasting, dealing or transferring Toyota Land cruiser VX 8 LC 200 SERIES KCQ 004U.

According to affidavit by investigating Officer Eric Otieno, he said they are investigating allegations that 26 million public funds intended to purchase two vehicles for Wajir Governor were misappropriated.

The two companies claimed they were aware of the said orders they were denied access to the said bank account held at KCB Bank Wajir Branch.

“I made several unsuccessful efforts to obtain copies of the relevant preservation order and the application for the said order from KCB bank Wajir branch but was referred to EACC”,  they claim.

EACC is also investigating the tender number WCG/T/416/2017-2018 which they suspect was irregularly awarded to Daayo Construction & Suppliers limited.

But the companies are claiming the allegations are not supported by evidence as the relevant annual budget of the said county government was not produced before the court by the said investigator.

“There is evidence to show that the said procurement had been planned for by the county government of wajir in its annual procurement plan for the 2017/2018 Financial year as envisaged under the public procurement and Assets Disposal Act ,2015”, said the company.

They claimed county government of Wajir placed a tender notice in the Saturday local daily of February 3,2018 inviting bids through tender No.WCG/T//416/2017-2018 for the delivery of one Toyota Land cruiser VX 8 LC 200series and Land Cruiser heavy duty pick up and they submitted a bid for the said tender and was successful.

“EACC failed or neglected to inform the court that the contractual sum with respect to the aforesaid tender was Kshs. 39,440,000″, they said.

The companies added that the contract between the county government of Wajir and Daayo Construction and General Supplies to purchase two vehicles at a total costs of Kshs. 39,440,000 and not at a cost at Kshs. 26 million as claimed in the said application.

” I wish to state that on or about the July 3,2018, Daayo Construction and General supplies gave a friendly  loan of Kshs. 12 million to the Fine Trust Construction Company which is a sister company.

They submitted that no evidence was produced by the commission to show that it had any grounds to believe that the aforesaid transfer of funds from Daayo to the Fine trust was intended to embezzle funds belonging to the county government of Wajir as claimed by the commission.

The expenditure of 26 million to purchase two motor vehicles for the Wajir Governor were not budgeted in the financial year 2018/2019.

“We obtained warrants to investigate Daayo Construction & Suppliers limited Kenya Commercial bank account Wajir branch and established that the county Government of Wajir had transferred 26 million to Daayo account on 2.7.2018,” said EACC investigator.

They adds that on 3.July.2018 Daayo Construction & Suppliers limited transferred shilling 14 million to Cosmos Cars Limited ostensible  to purchase the motor vehicles sought by the Wajir County Government and remained with with 12 million.

On 3.7.2018 Daayo Construction for unknown reasons irregularly transferred the balance of 12 million to Fine Trust Construction Co. Ltd thereby fully expending the 26 million advanced by the county government.

The matter was fixed for hearing on April 24.

SWAZURI’S BID FOR HIGH COURT’S INTERVENTION ON BAIL, HITS A SNAG.

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former National Land Commission Muhammad Swazuri with his co-accused before Milimani Anti-Corruption Court .

BY SAM ALFAN.

The High Court has dismissed application by former National Land Commission Muhammad Swazuri seeking to be freed on bond.

Prof Swazuri and 10 other persons rushed to the High Court seeking to eb freed after trial magistrate set the ruling of the bail for Tuesday, April 23.

The officials had denied charges relating to compensation over the acquisition of land meant for the construction of the Mombasa Southern Bypass and Kipevu New Highway Container Terminal link road in 2013.

Justice John Onyiego ruled that the application cannot apply at this stage as the trial court must be given an opportunity to deliver it ruling.

“The application is therefore not applicable and his hereby struck out and any relevant application regarding bail application or review of the same be filed before the trial court”, ruled Onyiego.

They pleaded with the court saying trail court Lawrence Mugambi had reserved the ruling on bail for Tuesday next week without giving directions on interim bail or the liberty of the accused persons.

“The court did not give any directions on whether the accused persons are to remain in custody or be released howsoever, yet the liberty of the accused persons who did not attend the court for plea taking was protected by court until of the accused persons”, said the accused.

They argued that prosecution caused the arrest of the accused persons who took plea in the wee hours of yesterday morning of April 17,2019 and held them in custody since then only to produce them in court today which a view to exploit the impending long holiday of Good Friday to Easter Monday  as such reserving the ruling for next week to aid the prosecution to achieve the said purpose and therefore aiding an injustice.

COURT EXTENDS ORDERS BARRING SAMBURU GOVERNOR FROM ACCESSING OFFICES.

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Samburu Governor Moses Kasaine Lonelkulal outside Milimani Law Courrs.

BY SAM ALFAN.

A Nairobi court has extended orders barring Samburu Governor Moses Kasaine Lonelkulal and 10 other county officials from accessing their offices in Maralal.

Chief Magistrate Lawrence Mugambi extended the order until next week. “I have extended orders until April 25  when the matter will be placed before trial magistrate”, Mugambi ruled.

Director of Public Prosecution through senior prosecutor Alexander Muteti filed an application to bar the Governor Lonelkulal, Stephen Siringa Letinina, Daniel Nakuo Lenolkirina, Josephine Naamo Lenasalia, Reuben Marumben and Paul Lolmingani from accessing the county offices.

Others barred are Benard Ltarasi Lesurmant , Lilian Balanga , Geoffrey Barun Kitewan and Hesbon Jack Wachira Ndathi. All the officials are facing corruption charges and the prosecution wants them not to access offices for at least 24 months.

The prosecution also applied an order be issued directing the director of the Integrated Financial Management and Information System (IFMIS) to bar each of the accused from accessing IFMIS platform.

” Orders be issued directing the Central Bank of Kenya Governor to bar each of the accused from accessing any of the bank accounts of the Samburu County”, added Muteti.

In the application, the prosecution alleged that the suspects are likely to interfere with witnesses or the trial.

Mr Muteti told the court that county government offices and individual offices are collectively scene of crime and need to be protected from each of the accused.

“The said offices house a number of accountable documents that shall be relied on by the prosecution witnesses and thus the need to bar each of the accused from accessing the same so as to protect the same from interference”, said Muteti.

Prosecutor Muteti said the Governor and senior county officials of the county government are bosses to a number of prosecution witnesses and therefore they have a lot of power and influence and are likely to interfere with the said prosecution witnesses if they should not be barred.

In the supporting affidavit by county DPP director Wesley Nyamache he said there was real likelihood of interference with the scene of crime or the prosecution witnesses.

KORANE SAYS PETITION AGAINST HIM IS DRIVEN BY CLAN POLITICS AND MALICE.

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Garissa Governor Ali Bunow Korane./PHOTO COURTESY.

BY NT CORRESPONDENT.

Garissa Governor Ali Bunow Korane has termed petition challenging his academic papers as an abuse of court process, tainted with malice and clan hatred against him.

The governor through senior counsel Ahmednassir Abdullahi, said Dr Aden Muktar Bare has never challenged the election of the Governor nor his clearance to contest for the gubernatorial position in Garissa County.

“The petitioner is propelled by malice and clan hatred cleverly called under the guise of the constitutional petition raising alleged constitutional issues,” Governor Korane said.

He added that the jurisdiction to hear and determine election disputes is vested in an election court and the process of removal of the governor is prescribed by the constitution and County Government Act.

Korane further said that no court other than an election court has powers to remove a Governor from office after his election.

“The power of an election court must also be exercised within the strict timelines prescribed by law,” he added.

He dismissed allegations by Dr Muktar that he concealed his academic qualification. “It is clear this is an election dispute, which if anything, the petitioner is statutorily time barred to present for this court to determine,” added Korane.

He said the petition is questioning his academic qualifications to vie in the gubernatorial election is in effect to challenge the election process.

Korane said he was duly cleared to be a candidate for the Governor of Garissa County in the general election of August 8, 2017 and emerged the winner and declared duly elected the County boss.

He added that Dr Muktar is making allegations without any evidence explanations or supporting facts. He said Dr Muktar in his affidavit in support of the petition states that he has been reliably informed that Korane is a person of interest in the attempted murder of his son.

“The inclusion of this paragraph and paragraph 2 of the petition is a signal as to the true motive behind the petition, which is to punish the respondent for his alleged involvement in the attempted murder of the petitioner’s son. The allegation is without any basis,” Governor said.

COURT STOPS IMPLEMENTATION OF HOUSE LEVY FUND.

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Employment and Labour Relations Court Principal Judge Maureen Onyango. /PHOTO COURTESY.

BY NT CORRESPONDENT.

Employment and Labour relations court has temporarily stopped government’s plan to deduct 1.5 per cent from employees starting next month.

In a petition, Consumers Federation of Kenya told Justice Maureen Onyango that the Housing Fund Levy is unfair, oppressive and discriminatory to many citizens.

Through their lawyer they said the levy emphasizes ownership as opposed to modern trend of accessing housing. He said the decision by the government to implement section 31A of Employment Act is illegal, unconstitutional and irrational because the notice is too short and insufficient to consumers and the public. He further said the levy will lead to un-justified over taxation.

COFEK though its officials argued that the introduction of the Housing Levy is not a priority in Kenya because there are more pressing issues such as drought, health challenges and unmet expectations on NHIF, rising cost of living among other issues.

They argued that implementing the said levy will increase unemployment as many employers will resort to cut down their workforce to detriment of the economy.

COFEK submitted that the housing Finance Levy does not guarantee that all contributors under the scheme would get houses after investing their money.

“The Housing Fund Levy will  compel employees in private and public sector to invest in housing which may not be a priority to their individual needs thus infringing their constitutional right of utilizing their earning according to their earning according to their wishes,’’ said.

They argued that it is unreasonable to compel a citizen who will not secure a house to contribute towards house ownership of another person without corresponding benefit.

“The Housing Fund Levy is irrational because it does not factor the fact that some employees in private and public sector enjoy reasonable housing allowances and are members of home ownership schemes as part of their employment,” COFEK said.

They also argued that the Fund will be unfair, oppressive and discriminatory to many citizens such as those who own houses are retiring or about to retire, people living with disability , senior citizens, low income earners , retrenched workers, the terminally ill workers and so on.

Justice Onyango directed the case to be mentioned on May 20, with plans to consolidate it with another one filed by Central Orgainsations of Trade Unions (Cotu).

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