COURT FORCED RELEASES NAIROBI COUNTY SECRETARY PETER KARIUKI.

September 4, 2018

NairobiTimez — Nairobi county Secretary Peter Kariukbefore Justice Chacha Mwita on Tuesday August 4,2018/PHOTO BY S.A.N.

BY NT CORRESPONDENT.

High court was this afternoon forced to release Nairobi county Secretary Peter Kariuki after police denied arresting him under a warrant of arrest.

Kariuki told the Court that he was never arrested by the police.He told Justice Chacha Mwita he presented himself before the central police station.

Further he said that he was presented before the court by two police officers who later dismissed the allegations.

According to one Court orderlies said that he found Kariuki at the Milimani Law Court cells and escorted him before Mwita.

The police officer said that he did not know about Kariuki’s case.

“I do not know who brought Kariuki to Court,i just found him at the cells,” Court heard.

Judge chacha mwita efforts to know who had arrested Kariuki were futile with lawyers inthe matter giving out conflicting accounts .

“There’s no one in court or evidence to show that Kariuki was arrested,I hereby release him unconditionally,” directed Mwita.

Mr Kariuki was allegedly arrested for failing to obey court orders that the Nairobi county pay Proland Limited for services it offered to the county several years ago.

The warrant was issued in December last year by Justice George Odunga.

Sources indicate flysquad officers were seeking to arrest Kariuki since Wednesday last week before he surrendered to central police station.

CA WANT TRIBUNAL TO UPHOLD PENALTY ON ALMOST HALF BILLION PENALTY ON SAFARICOM.

By Nairobi Times -

September 4, 2018

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SAM ALFAN.

The Communication Authority has urged the Multimedia Tribunal to upholds the decision of the Authority as contained in its letter dated 1st August 2018 that fined Safaricom PL almost half a billion.

The authority through lawyer Wambua Kilonzo says Safaricom will not suffer any prejudice if it complies with the as contained in the letter of 1st August 2018 as the Authority is capable of refunding the penalty amount should the Appeal succeed.

The Authority wants the appeal dismissed with cost.

In a replying affidavit CA Director General Francis Wagusi, the Authority received a letter dated 25th April 2018, a complaint from Elige Communications Limited (Elige Communications) alleging that the Safaricom was blocking and rate limiting their calls on their network.

CA made the decision after GeoNet made a complaint on 22 of November 2016 over alleged interference and interruption of it services by Safaricom who GeoNet alleged was blocking its calls.

The regulator further says , the action was taken after continuous interference of other licenses by Safaricom.

” I am aware of the continued interference of other licensees’ systems without approval of the Authority constituted a breach of the terms of the Appellant’s NFP-T1 license and which warranted a regulatory sanction by the Authority”. Says Wagusi.

CA wrote to safaricom PL and the said letter of 26th April 2018, the Authority required the safaricom to respond to the allegations by both Geonet Communications and Elige Communications within 14 days from the date of the letter failure to which Authority would not hesitate to take appropriate regulatory measures.

CA through lawyer Wambua Kilonzo in response to Safaricom appeal against the authority historical penalty, says the tribunal lacks the necessary quorum for it proceedings and it is not properly constituted as required.

The Authority further said the tribunal chairperson who is Senior residence Magistrate William Okech has not met the required by the law.

They argued Kenya Information Act requires that a person to be appointed as chairperson of the tribunal shall be a person qualified for appointment as a judge of the High Court as provided by the law.

August 24 this year, Communications and Multimedia Appeals Tribunal suspended decision by Communication Authority of Kenya to fine Safaricom Limited almost half a billion shillings for failure to head the authority’s directives pending hearing and determination of the application.

According to legal documents exclusively in possession of NairobiTimez, Safaricom appealed the decision by CA to fine the telecommunication giant 449 million shillings which is the highest penalty in the history.

Tribunal Senior Resident Magistrate William Oketch suspended the payment which was supposed to be paid by 30th of this month.

“The CA decision requiring the applicant (Safaricom PL) to pay the penalty of 0.2% of its annual Gross Turnover for a period ended 31 March ,2018 amounting to Kshs. 449,070,000,0 is hereby stayed pending hearing and determination of the application” ordered Tribunal Oketch Senior Resident Magistrate.

The tribunal further suspended the letter dated 1 of August , 2018 that ordered Safaricom to pay the said amount by 30 th of this month.

“Tribunal stay the decision of Communications Authority of Kenya made by a letter dated 1 of August, 2018 and reference ‘failure to heed the Authority’s directives’ pending the hearing and determination of the application” Oketch Senior Resident Magistrate.

The company filed the application under certificate of urgency through lawyer John Ohaga .

This is the highest regulatory fine in Kenya’s history.

The company argued the CA found that Safaricom was liable to pay the penalty of 0.2% of it annual gross turnover for a period ended 31 of 2018 amounting to Kshs. 449,070,000,0.

The telecommunication giant argued that, the period of the almost half a billion penalty lapses on the 30 of August this year and CA is likely to initiate proceedings for the recovery of the said amount immediately.

“Regulation 8 (7) of the Kenya Information and Communications (Dispute Regulations) Regulations, 2010 is clear that the decision of the 1 Respondent shall be binding until subsequent orders are made by the Tribunal or the determination of the appeal” said the company.

The telecommunication company claims the company will suffer substantial loss and irreparable damage if the decision is executed by CA.

In a supporting an affidavit,the head of department regulatory and public policy of Safaricom (PLC) Mercy Ndegwa, safaricom acknowledged to be the most profitable company in the country and will be ready to pay the penalty if the appeal is unsuccessful.

“The applicant is a public company and is acknowledged to be the most profitable company in Kenya and will no doubt be in position to remit the penalty without delay in the unlikely event that the appeal is unsuccessful” said Mercy in the affidavit.

She argued CA will not suffer any prejudice if the decision dated 1 August ,2018 is suspended pending hearing and determination of the appeal.

Tribunal further certified the appeal urgent and directed Safaricom PL to serve Communication Authority and Elige Communications Limited within three days of the order.

In the year 2015, Federal Communications Commission slapped AT&T with a$100 million fine, accusing the country’s second-largest cellular carrier of improperly slowing down Internet speeds for customers who had signed up for “unlimited” data plans.

TOP OFFICIAL IN DPP OFFICE CHARGED WITH THEFT.

By Nairobi Times -

August 31, 2018

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BY SAM ALFAN.

Top Administrative officer of the office of the Director of Public Prosecution (DPP) has been charged for an offence of stealing Sh 7.5 million.

The accused William Ashael Osoro, was arraigned before Anti Corruption court he denied two accounts of abuse of office and stealing.

Trial MagistrateLawrence Mugambi, ordered the accused released on a cash bail of Sh 600,000 or deposit bond Sh 1.5 million.

The court fixed the pre-trial conference on 14 September 2018 to further confrim whether the prosecution has supplied witnesses statements to the defence.

The prosecution told the court that, on diverse dates between 1 September 2013 and 25 April 2018, the accused being senior administrative officer, he arbitrarily directed the use of fuel card number 11220003953 for purchase of fuel, lubricants and pit stop service s valued at Sh 7,902,250 which act was prejudicial to the office of the DPP.

The Milimani Anti-corruption Chief Magistrate Lawrence Mugambi ordered Osoro to deposit his passport in court.

Osoro was also denied access to the DPP offices unless he was authorised by the directorate.

The prosecution will call about ten witnesses.

COURT TO RULE ON THE FATE OF DETAINED BODY OF LEGENDARY BOXER NEXT MONTH.

By Nairobi Times -

August 29, 2018

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BY REPORTER.

Nairobi Commercial Court will rule on 4 September on whether Kenyatta National will release the detained body of the legendary boxer unconditionally.

This is after six lawyer told the court that, KNH has not reached any settlement with the family of the late boxer Muchoki Mwangi over Sh 750,000 medical bill, the court heard.

The hospital management has stood on their ground to have the money paid before releasing the body to the family for burial.

Trial Magistrate E. K. Nyaloti was told that family is not able raise the amount demanded and it could be for the interest of justice that body is given to the lonely daughter for burial.

City lawyer Shadrack Wambui, told the court that its against public policy to hold the body when it has been demonstrated that indeed their is financial constraints.

He said that the hospital being a public institution getting its budgetary allocation from the government should consider to wave the medical bill demanded.

The deceased lived a very amble life in Kayole area, Nairobi county and left no property that can be placed as security in order to have the released.

Wambui said that the court was approached after the family failed to raise the amount sought by the hospital management.

The lawyers Danstan Omari, Shadrack Wambui, Dorcas Mwae, Alex Mola, Baston Haggal and Anita Masaki on behalf of Nancy Njeri daughter to the deceased Muchoki Mwangi, sough the court’s intervention to have the body released.

In the urgent application filed at high court, the advocates have advanced the inability of the lonely daughter to raised the amount demanded by the hospital.

They have sought an order barring the management of KNH from levying any charges or fees on account of keeping the deceased’s body.

” The court in the interest of justice should compel the hospital to unconditionally and immediately release the cadaver of the late Muchoki to his daughter for burial” they argued.

The deceased was admitted the hospital facility on 28 April 2018 after his condition worsened at his home in Kayole area, Nairobi County.

He was taken to KNH by a good Samaritan who paid Sh 80,000 which included admission fees.

The lawyers says that after Muchoki passed on the daughter through her friends held fund’s drive in which Sh 100,000 was raised and the same was paid to hospital making a total of Sh 180,000.

The respondent have refused to release the body until the last coin as contained in the bill is paid, they note.

The deceased was a man of low income earner without any fixed asserts which can be offered as security or sold to settle the bill.

” Due to my inability to raise sufficient funds to secure my father’s discharge the respondent chose to exercise ” Lien” over the person of my father at its premises and would only be released when the bill is paid” the daughter says.

The deceased passed on 15 July 2018.

FORMER UNIVERSITY STUDENTS ACQUITTED ROBBERY WITH VIOLENCE CHARGES.

By Nairobi Times -

August 29, 2018

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BY SAM ALFAN.

Nairobi Court has acquitted former University of Nairobi who were facing with robbery with violence charges.

The case was discharged after several adjournment for failure to have witnesses appear in court to testify against the accused.

“I have considered the application for adjournment and the objection and the accused persons are hereby discharged”. Ordered the the Magistrate.

Prosecution told the court four years cannot be said to be a reasonable time to commence and conclude the trial.

However, the magistrate said the accused persons are entitled to speedy trial under article 50 of the constitution.

The case was withdrawn due to lack of witnesses who have demonstrated unwillingness and interests to pursue the case.

” I found prosecution witnesses are no longer interested in the case and if at all they were initially. I find there’s no reasons to warrant adjournment sought and refuse to grant adjournment sought”. Said Magistrate.

This after prosecution applied to withdraw the matter under section 87(a) of criminal procedure code.

Their lawyer Gitobu Imanyara opposed the withdrawal of criminal case and urging court to terminate the case instead.

Mr Imanyara told the court that, prosecution application was abuse of office.

“It is abuse of office to withdraw the case under section 87(a) where witnesses are serving police officers who treat this court with outmost contempt should not be allowed to have opportunity to rearrest accused persons”. Imanyara told the court.

The accused Booker Ngesa Omole , Samwel Legira, Job Mandara , Benedict Wandeto, Oliver Kennedy Muriithi , Astagus Rayori, Jacob Opiyo Onono, Benrodger Nganu, Mwachi Mazden, Edward Otiono ,Langat Kenneth and Edwin Kemoi were charged with robbery with violence.

It was alleged that on 9 of April 2014 , at lower Kabete campus jointly with others not before court while armed with dangerous weapons namely one Glock Pistol , two kitchen knives, one sword and two pangas robbed Silvance Abeta of mobile phone make samsung galaxy pocket valued Kshs. 15,000 and the time of the said robbery threatened to use actual violence.

They were facing seven different charges including, going armed to the public, creating disturbance, robbery with violence.

FORMER NLC BOSS SWAZURI ALLOWED LIMITED ACCESS TO COMMISSION’S OFFICE.

By Nairobi Times -

August 28, 2018

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BY SAM ALFAN.

Former National Land Commission Chairman Mohamed Swazuri has been given limited access to his office, but after informing the Commission’s CEO and the EACC, the court has ruled.

Trial Magistrate Lawrence Mugambi, said that Swazuri can only access office under the supervision to avoid interference of prosecution witnesses.

“For constitutional office holders, the first accused (Mohammed Swazuri), who has been at the helm of the NLC and indeed any other constitutional office holder prior written authorization by the Secretary/CEO of the commission authorizing the access after making consultations with the investigative agency in this case so that the appropriate arrangements (if any) can be made to ensure contact with witnesses who are expected to testify against accused is minimized or that any other evidence properly secured “. Ruled Mugambi.

He said the court has no power to bar or suspending him from entering office, given that he occupies a constitutional office.

Mr Mugambi, however said that other public officers who have been charged alongside hi cannot access their respective offices until their criminal case facing them is heard and determined.

The court declined to vary bond terms issued to him, saying that the application for review should be filed at high court.

EACC on Friday opposed application by former National Land Commission seeking to review his bond term conditions that restrained him from accessing his office without investigating officer.

“This court has no authority under the law to review the bond terms. This matter ought to be place before the high court and not before you” Dorcas to the court.

In the preliminary objection, they argued investigations have established that Mohammed Swazuri has been accessing and giving instructions to officers at NLC. They attached a letter dated 9 of August ,2018 with Swazuri instruction to the vice chairman.

EACC said Swazuri office is part of a crime as most of the witnesses are junior officers working under him at NLC offices at Ardhi house ad he will interfere with the witnesses and documentary exhibit.

The affidavit said Swazuri is not the office that he holds and his suspension or requirement to allow him to access his in the company of a police officer cannot bring the activities of the office to any halt.

“The chairman (Mohammed Swazuri) is not a office. An attempt to invite the court to find the office without a chairman is not operational is laughable” submitted Dorcas.

DPP WANTS OJIENDA STOPPED FROM REPRESENTING FORMER NLC BOSS SWAZURI.

By Nairobi Times -

August 28, 2018

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BY NT CORRESPONDENT.

The Director of Public Prosecution has filed an application seeking to have Professor Tom Ojienda to cease from representing embattled NLC chairman Mohammed Swazuri in criminal case.

The prosecution in its application filed before the trial court they say that there’s is a clear conflict of interest by Ojienda who they say he represent the Lands Commission.

“Professor Tom Ojienda has represented NLC on several matters before various courts within the country where MohMmed SWazuri worked “said DPP.

In the application through senior assistant director of public prosecution Mrs Lilian Obuo, wants the court to dispose off the application before the trial against Swazuri commence.

She argues that NLC is public body and it is in the interest of justice that Prof Ojeinda is recused from the criminal proceedings facing the former NLC chairman and others.

The application will be argued tomorrow by all parties.

PRIMARA PROPRIETOR ,CITY CLERK AND OTHER TOP OFFICIALS CHARGED.

By Nairobi Times -

August 27, 2018

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BY NT CORRESPONDENT.

Nairobi County Assembly Clerk has been charged with failure to comply with guidelines relating to management of public funds.

Jacob Ngwele Muvengei is accused that on diverse dates between 16 March and 5 July 2017 being Nairobi County Assembly Clerk failed to comply with section 68(1) and (2) of the public financial management Act 2012 by applying public funds under his care to an unlawful purpose namely unlawful payment of a sum of Kshs. 997,926 to Primara for supply of books for the Nairobi County Assembly resource center for goods not delivered.

Raphael Mwinzi Maluki the proprietor of Primara Ventures is also accused of unlawfully acquiring Kshs. 997,926 that was deposited in his equity bank account the property of Nairobi City County Assembly Resource Center for goods not delivered.

Nairobi City County Principal Accountant Philomena Kavinya Nzuki is accused on 29 of June last year, used her office to improperly confer benefit to Primara Ventures by authorising payments of Kshs. 997,926 for supply of books to the assembly.

Prosecution further accused Senior Procurement Officer James Kariuki Kaguma of having conflict of interest, instructed Daisy Mueni Muema , procurement officer ll to irregularly prepare quotations for Bluefox technologies, Saruva Technologies, Chehaja Investments Limited, Beriza Solutions and Primara Ventures in contravention of the applicable procedure and guidelines relating to public procurement.

Senior Finance and Planning officer for Nairobi County Assembly and a member of the Inspection and Acceptance committee Fredrick Macharia Mwangi, is alleged to have used his office to irregularly acknowledge acceptance of books worth 997,926 being not delivered goods.

The accused were paraded before Anti Corruption Court, where they denied the criminal charge and were released on a cash bail of Sh 300,000 each.

Trial Magistrate Lawrence Mugambi, ordered the accused not to go back to their offices, unless they have written authority from the County office.

He also directed them to deposit their passports in court, to alternative of cash the accused were ordered to place a bond of Sh 600,000 each.

Court decline prosecution application to deny the accused persons bail claiming 90 percent of the witness are employees of Nairobi County Government.

Lawyer Abdikadir Hassan strongly opposed prosecution application saying there was no compelling reason provided by the state to deny accused bond.

The accused were ordered not to report to their respective offices unless with a written authority by Nairobi County Government. They were further ordered to deposit passport in court.

EACC OPPOSES SWAZURI BOND TERMS REVIEW.

By Nairobi Times -

August 25, 2018

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BY SAM ALFAN.

Ethics and Anti-Corruption Commission has opposed application by former National Land Commission seeking to review his bond term conditions that restrained him from accessing his office without investigating officer.

“This court has no authority under the law to review the bond terms. This matter ought to be place before the high court and not before you” Dorcas to the court.

In the preliminary objection, they argued investigations have established that Mohammed Swazuri has been accessing and giving instructions to officers at NLC. They attached a letter dated 9 of August ,2018 with Swazuri instruction to the vice chairman.

EACC said Swazuri office is part of a crime as most of the witnesses are junior officers working under him at NLC offices at Ardhi house ad he will interfere with the witnesses and documentary exhibit.

The affidavit said Swazuri is not the office that he holds and his suspension or requirement to allow him to access his in the company of a police officer cannot bring the activities of the office to any halt.

“The chairman (Mohammed Swazuri) is not a office. An attempt to invite the court to find the office without a chairman is not operational is laughable” submitted Dorcas.

Prosecution argued that, the conduct of accused person including his agitation to have the total control of the activities of the NLC despite having been charged and the interference with witnesses and the documentary exhibits should warrant the cancellation of his bail terms all together.

They told the court that Swazuri being a state officer and a public officer as defined under Article 260 of the constitution having been charged with economic crimes, stands suspended with the effect from the date he was charged.

Prosecution submitted that, denying Swazuri access to the office does not amount to removal from office.

“The accused having been charged was admitted to bail terms including access to the office in the company of a police officer which conditions were very fair and reasonable” said prosecution.

Swazuri through his lawyer Prof Tom Ojienda filed an application seeking his client to be allowed to access his office as NLC chair and perform his constitutional mandate.

Ojienda claimed that, NLC is a crucial institution and failure to access office not only unconstitutional removal from office but also undermines the working of the commission as the current vice chairman has since purported to fill the vacancy that was created by the order dated 13 of August, 2018.

” The vice chair of national land commission thought you have promoted him. He convened few commissioners and now he is the of the commission “. Ojienda told the magistrate.

He claimed the office continues to suffer if restrictions imposed to the chairman by the court continues to be operational.

He argued that, there was no evidence that any official of national land commission is a witness.

” We are asking you to review your orders of bond terms and allow the accused to attend his constitutional duties “. Said Ojienda.

The court will deliver it ruling on whether to review the bond terms on Tuesday.

SAFARICOM NOT YET OFF THE HOOK FROM HIGHEST PENALTY IN THE COUNTRY OVER RULES VIOLATION.

By Nairobi Times -

August 24, 2018

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BY SAM ALFAN.

Communications and Multimedia Appeals Tribunal have suspended decision by Communication Authority of Kenya to fine Safaricom Limited almost half a billion shillings for failure to head the authority’s directives pending hearing and determination of the application.