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JOURNALIST WHO POSTED FALSE INFORMATION ON INTERIOR CS MATIANG’I TO BE HELD FOR TWO DAYS.

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BY SAM ALFAN.

A freelance journalist who posted on social media that Interior CS Fred Matiang’i is admitted to ICU suffering from Covid-19 will be detained for two days as police complete investigations into the case.

Although the police had sought to detain Isaac Kibet Yego for 14 days, Milimani Chief Magistrate Martha Mutuku rejected the application and ruled that two days was enough.

“I have carefully considered the submissions and taken into account the nature if investigation for forensic the prosecution has the gadget and does not require a total of 14 days. I will only allow two days to enable investigating officer to complete investigations,” ruled Mutuku.

Investigating officer Nicolas Ole Sena said that he was investigating the case over alleged publication of false information by the journalist between July 23 and 24, 2020.

He claimed that the post was false and was made with intent to cause alarm and panic to citizens in the wake of the Covid-19 pandemic in the country.

The officer further claimed the screenshots if the same had quickly made it way to various social media platforms including twitter whereby a hash tag #matiangiicu started trending.

“After the post started spreading through various social media platforms the poster pulled the said post down but we intend to recover through forensic analysis,” he said.

He claimed that the journalist might interfere with investigations by deleting vital evidence from the Facebook page and the website, if released on bond. He further told the court that they have submitted his phones and computer for forensic examination.

However, Kibet lawyers opposed the application vehemently claiming it an infringement of his rights. They said if police wants to recover forensic material, the suspect has nothing to do with it.

“Kibet has nothing to do with facebook page, he is ready to abide with all the conditions set by court,” he said through his lawyer.

The freelance was arrested on Saturday in Nigeria within Eldoret in Uasin Gishu county.

SONKO MAKES U-TURN, SEEKS TO TERMINATE DEED OF TRANSFER.

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BY NT CORRESPONDENT.

Nairobi Governor Mike Sonko has written to National Government through attorney general and devolution ministry declaring of a dispute between the City County and national government to terminate Deed of Transfer.

The Governor accuses national government of adopting and has continued to adopt an overbearing and superior attitude so far as the four affected functions are concerned and all other function constitutionally vested on the Nairobi county government.

“The national government has effectively adopted a scorched earth attitude and approach to the Nairobi city County government altogether in breach of Article 189(1)(a) of the constitution,” said Sonko.

Governor Sonko says the intergovernmental relations Act, 2012 is binding on the parties to the Deed of Transfer of functions and it was enacted primarily to establish a framework for consultation and cooperation between national government and county government.

He added that the Act forms a primary legislative framework for the bedrock and operations of any Deed of Transfer of functions.

According to the city boss, there was neither consultation of any sort regarding the four affected departments nor cooperation by the national government with the Nairobi city county government prior to the execution of the subject Deed of Transfer of the functions.

Sonko’s administration says it is unwilling to fly blind on this and its constitutionally-vested mandate over the four functions or violate the applicable law in furtherance of an unlawful scheme and since national government has adopted a wholly belligerent and bullying attitude as against the county government in respect of the four functions, it is best that the county government withdraws from the Deed of Transfer of functions.

“The Deed of Transfer is fatally flawed ab initio and it cannot  be panel beaten with time , where milistones are required by law. We would be turning to re-look at the Deed of Transfer of functions to plug financial capacity or deliverables hemorrhage which is untenable in fact and in law” adds Sonko.

Sonko further added that his administration had and was possessed of managerial and technical capacity in all the four functions which probably needed a little tweaking for optimal service delivery yet there is no similar managerial or technical capacity in NMS, which he termed as an amorphous entity assuming to take over constitutionally-vested functions of the county government.

Governor Sonko says NMS is engaged in unconstitutional actions that are untenable in light of Article 241(3)(c). He says that deployment of military officers to NMS as it was to deliver services to Nairobi county is outright objectionable led by its director general Mohammed Abdalla Badi  a military officers.

He says his administration disassociates itself with any breach of the constitution by Major Badi and similar with all other military officers serving under NMS including Brig F. Leuria, J.Mbithi, Major A. Nyakundi , Major J.Njoroge, Lt Col J. Biomdo and Major A.Musoma have not been approved and sanctioned by Parliament to be part of civilian affairs in deployment to the NMS.

He adds that the county government will not proceed any further with the open militarized takeover of the Nairobi city county government stated Key functions.

Sonko further claim that deployment of military officials of Kenya Defence Forces in furtherance of the Deed of Transfer of functions to the NMS is for all intents and purposes a silent coup and constitute bad faith vitiating the entire Deed of Transfer of functions and no Kenyan has approved such an act.

He claims prior to the crafting of the Deed of Transfer of functions and final execution were never availed to the Nairobi city county government and the county government finds it unfair, oppressive, mischievous and gross bad faith for the Deed of Transfer of functions to purport to broaden the source of funding of the four functions.

He says that despite his protest , NMS purported to recall all the employees of the Nairobi city county government and purported to employ 6,052 employees of the county government a move that has generated legal issues with their Union.

KATIBA INSTITUTE ESCALATES JSC’S APPOINTMENT DISPUTE TO TOP COURT.

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BY SAM ALFAN.

Katiba Institute will move to the Supreme Court to challenge the appointment of three commissioners to the Judicial Service Commission (JSC).

The lobby said it will take the fight to the Supreme after being dissatisfied with the Appellate Court decision to dismiss their suit.

Through lawyer Ochiel Dudley, Katiba said the three judge bench segregated the constitution and refused to give the meaning of requirements  to JSC on merit.

The lobby group is challenging the appointment of Olive Mugenda, Felix Koskei and Patrick Gachochi to the JSC.

“We will appeal the judgment  to the Supreme Court. The Court of Appeal segregated the Constitution and refused to give any meaning to the requirements on merit and fair competition,” Ochiel said.

Appellate judges Wanjiru Karanja, Asike Mukhandia and Fatuma Sichale dismissed Katiba’s appeal but allowed the cross appeal.

“We find the appeal devoid of merit it. The cross appeal is nonetheless allowed,” the judges ruled.

On the cross appeal, the judges confirmed vetting of Patrick Gachohi and Olive Mugenda was not pleaded and was never canvased and it appeared the judge raised it himself and went on a tangent to discuss it at length and made determination without having been addressed on the issue by any of the parties.

Katiba Institute filed the case on March 8, 2018 after being aggrieved by the decision to appoint the three as members of JSC terming the decision as unconstitutional and invalid.

The institution also wanted the court to prohibit the president from appointing and gazetting them as members of JSC and by extension barring them from taking oath as commissioners.

Katiba Institute also sought an order invalidating their appointment to the JSC.

Through lawyer Ochiel, Katiba said argued that the appointment of Patrick Gichochi was null and void as his nomination was done by the president instead of public service commission and he previously held public office hence not competent nominee or appointee.

He added the appointment of the three who are currently discharging their duties as commissioners of the body mandated to vet judges were were not done done on the basis of fair competition and merit contrary to the law.

He added that despite the evidence on record questioning character and integrity of Olive Mugenda while acting in other capacities previously holding public office, the evidence was disregarded.

APPELLATE COURT DISMISSES RMS’ CASE IN FREQUENCY FIGHT.

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SAM ALFAN.

Royal Media Services has suffered a major blow after losing a frequency battle which has been pending in court for the last eight years.

The Court of Appeal dismissed an appeal by RMS challenging a letter by the Communication Commission of Kenya (CCK) eight years ago, directing the broadcaster to stop interfering with frequencies allocated to other media houses.

“The upshot is that the appeal lacks merit and is hereby dismissed” the ruled.

Justices Wanjiru Karanja, Fatuma Sichale and Jamila Mohammed upheld a decision of High Court Judge David Majanja, saying CKK, the predecessor of Communication Authority (CA) was legally mandated to regulate airwaves.

The bench said CCK was acting within its mandate in investigating any complaints of interference with frequencies.

“From the record, we are satisfied that the 3rd respondent (CCK) followed the due process in enforcing the regulation of airwaves as mandated and that the impugned letters and notice were issued in accordance with Section 41 of the Kenya Information and Communication Act,” the Judges said.

RMS had challenged a letter written by CCK in 2012, which stated that several frequencies used by the media house were in contravention of the frequency assignment conditions.

The letter had also asked RMS to cease broadcasts on certain frequencies as they were interfering with frequencies assigned to other broadcasters.

The regulator then gave RMS 30 days to put in place corrective measures and install bandpass filters, obtain type approval for transmitters, shut down unauthorized stations and relocate to designated broadcast sites.

But the company argued that the letter lacked any basis because the regulator had inspected its radio and TV sites and broadcasting equipment in 2003 and had confirmed compliance.

S.K. Macharia accused CA of engaging in selective and discriminatory enforcement of the Act because some broadcasters were using transmitters not approved but the regulator took no action against them.

He claimed the move by CCK was threatening to infringe on its freedom guaranteed by the Constitution and usurping the powers it does not have by seeking to license and regulate airwaves yet no legislation has been made establishing an independent body to license and regulate broadcasting frequencies.

The judges dismissed the appeal saying CCK was legally mandated to regulate airwaves and licensing under the 1998 and 2009 Acts and that the promulgation of the Constitution did not render its actions immediately unconstitutional.

“Accordingly, we find that the CCK did not breach Article 34 of the Constitution in sending the impugned letters to the appellant and issuing the notice,” the Judges said.

The judges found that there was no material placed before the high court or before them to demonstrate that the appellant had instituted any contempt proceedings against the CA within media owners case.

“We find that the letters dated March 6,2012 , August 3,2012 and the notice published in the local daily on May 17,2012 were not in contempt of the conservatory orders issued in the media owners case and the judge did not error in finding that Communication Authority. was not in breach of the orders issued to media owners case” court added.

The judges found that there was no material placed before the high court or before them to demonstrate that the appellant had instituted any contempt proceedings against the 3 respondents within media owners case.

“We find that the letters dated March 6,2012 , August 3,2012 and the notice published in the local daily on May 17,2012 were not in contempt of the conservatory orders issued in the media owners case and the judge did not error in finding that 3 respondent was not in breach of the orders issued to media owners case.

The CA opposed RMS appeal through veteran lawyer Wambua Kilojzo saying that frequency spectrum is a scarce public resource allocated to nations in accordance with complex international agreements  and CA was mandated to ensure utilization of the frequency spectrum in a coordinated manner to avoid interference of frequency users with each other.

Lawyer Wambua further told the appellate judges that frequency is not an owned asset or vested private property interest to be subjected to either mortgage, lien , pledge, attachment, seizure or similar property right by the RMS.

“Under Article 40(6) of the constitution, the right to property does not extend to any property found to have been unlawfully acquired” Wambua told the court.

He further submitted that CA gave appellant notice to remedy any breach and allowed the appellant to respond and address any issues through the letters dated March 6 ,2012 and August 3,2012 and dismissed the appellant claims that the judge erred in law and in fact finding that orders made in the media owners case were limited to the four corners of the said suit and matters in issue in that suit did not afford the appellant to operate without the law.

COURT FREEZES ACCOUNTS BELONGING TO TREASURY DIRECTOR.

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BY SAM ALFAN.

The High Court had frozen four bank accounts belonging to an official at Treasury after the anti-graft body argued that it was above his known legitimate source of income.

Justice Mumbi Ngugi froze four accounts at ABSA, Co-operative Bank and Kenya Commercial Bank (KCB) belonging to Charles Muia Mutiso for a period of six months.

This will allow Ethics and Anti-Corruption Commission (EACC) complete investigations. The four accounts hold a total of Sh41 million.

The court also barred Mutiso from dealing or transferring four parcels of land in Nairobi, Donyo Sabuk and Matungulu in Machakos County and a motor vehicle.

The court heard that Mutiso is a deputy director external resources at Treasury and has accumulated assets that are disproportionate to his known legitimate sources of income.

The anti-graft body said the man earns a monthly salary of Sh144,675 and net pay of Sh118,691. This translates to a net salary of Sh7.1 million for a period of five years up to April 2020.

However, his accounts have received credits amounting to Sh41.8 million between April 1, 2015 and April 30, 2020.

One of the accounts at Co-op Bank holds Sh2 million, while another at Absa holds Sh20.1 million. In yet another account, at Absa account Mutiso has deposited Sh16,403,633 while a fourth account at KCB has Sh3,249,300.

EACC moved to court saying it was apprehensive that in light of the ongoing investigations, Mutiso might transfer the funds, before investigations are complete.

An analysis of his accounts revealed in January 8, 2015 he made two deposits of Sh400,000 and Sh300,000 just three days apart. He was also not making withdrawals from yet deposits were made three times a month.

EACC said Mutiso has accumulated assets that are disproportionate to his known legitimate sources of income.

“The intended civil recovery proceedings will be rendered nugatory if the assets reasonably suspected to constitute the proceeds of corruption and economic crimes are allowed to dissipate,” the agency argued. 

The commission said investigations are likely to take some time given the time period for which the investigation is being carried on, the colossal amount of assets and funds involved, the multiplicity of transactions and the possible numerous illegal acts or offences involved.

“In the absence of an order under Section 56 aforesaid and the respondent being aware of the nature of investigation and possible consequences thereof, there is nothing to prevent him from dealing with the properties in the intervening period by transferring, disposing of or wasting the same, to the detriment of the public and the agency,” Ms Rosslyne Murugi, an advocate with EACC said.

COURT DIRECTS KIMILILI MP TO PRESENT HIMSELF IN COURT IN A BOTCHED CAR DEAL.

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BY SAM ALFAN.

Kimilili MP Didmus Barasa has been ordered to appear before a Kajiado court and plead to charges over a botched car deal.

High Court Luka Kimaru ordered the MP to appear before Kajiado Chief Magistrate and face charges over motor vehicle transaction, which happened sometimes in 2016.

“He shall appear before court on August 8, 2020 with his lawyer John Khaminwa at 11:00 am with view to take plea,” ordered Kimaru.

The judge also barred the police from arresting or detaining him, until he appears in court.

In an application, the MP moved to court seeking to be admitted to bail pending investigations and his planned arrest over the civil case. 

Barasa told the court unless the orders he sought were granted, the police would arrest him and he stood to suffer as his rights and freedoms would be infringed.

Through the veteran lawyer, the MP pleaded with the court to be admitted to bail.

He revealed that he was involved in a commercial transaction sometimes in year 2016 and sold his motor vehicle through an agent to businessman Irungu John Mwangi. He said Mwangi was a willing buyer for good value consideration.

He claims that Mwangi being in breach of their agreement has chosen to make unwarranted allegations or complaint against him seeking to extort from him a colossal sum of money from him under the guise of compensation for a non-existent breach of the sale agreement.

He further claimed that the businessman has decided to use police officers to intimidate and extort colossal sums of money from him. He further said the matter is a civil case and nothing criminal. 

He claims that complaint filed by Mwangi to the police is a ploy to intimidate and harass him using criminal investigations.

WIN FOR ARA AS NYS SCANDAL SUSPECTS LOSE PROPERTY.

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BY SAM ALFAN.

The High Court has ordered a house in Kasarani and a plot in Juja belonging to a former employee of National Youth Service (NYS) be forfeited to the government through Asset Recovery Agency.

This is after made decision that they were purchased using funds stolen from the agency.

High Court Anti-Corruption udge Mumbi Ngugi also forfeited to the government four Toyota Prados belonging to some of the suspects facing charges, over the loss of Sh791 million at NYS.

“The following properties which are proceeds of crime be forfeited to the asset recovery agency on behalf of the state, maissonette house at Kasarani – L. R 20857/190, Plot L. R. No. Ruiru, Juja East block block 2/360, Toyota Prado KCE 852T, KCE 874R, KCD 536P and KCB 715E S. Wagon Toyota prado” said Mumbi.

The maissonette in Kasarani belonged to Sam M. Mwadime, a former finance director at NYS and (AIE) holder at the agency.

In her decision, the judge noted that despite the right of property being guaranteed under the constitution, the same constitution under Article 40(6), such protection does not extend to property that is acquired unlawfully.

“Should this Court find that the property the subject of the application was acquired from proceeds of crime, then an order for forfeiture does not violate the respondents rights to property” added the judge.

Court documents showed that a key suspects in the scandal, Josephine Kabura Irungu wired Sh40 million to Mwadime’s account in family Bank on two occasions in 2015.

He allegedly used some of the money to purchase the house worth Sh21 million from Tirus Mutoru in 2015. He paid the money in several instalments and transferred the house to his wife Susan Mkiwa Mdanyi.  The plot was valued at Sh3.9 million in 2015.

Judge Ngugi said that the agency had demonstrated a complex scheme of money laundering involving Ms Kabura, one of the key suspects in the scandal, who fraudulent payments from the agency.

The four Toyota Prados were purchased and registered in the names of relatives to conceal the identities of the suspects.

“From the facts presented by ARA, which have not been controverted, the assets in issue were purchased using funds stolen from NYS. All show a complex scheme of money laundering contrary to the law,” the Judge said.

The Judge noted that there were movements of funds from NYS accounts to Ms Kabura’s accounts, and which ended in the accounts of the suepcts. 

The judge further observed that facts by the ARA for the forfeiture were unchallenged and the respondents didn’t file response to the application despite them being served with the application to give them chance to defend the source of their wealth.

Through senior state counsel Mohammed Adow, ARA said they received information on the loss of Sh791 million from NYS. The complaint was made by former Devolution CS Anne Waiguru, who claimed that the theft was perpetrated by public officials, some of whom have been charged.

Adow told the court that it was fair and just that the said property which are proceeds of crime should be forfeited to the government and applied for the public good on behalf of the people of Kenya who are the victims of the crime committed by the suspects.

PROMINENT LAWYER HARUN NDUBI IN COURT TO STOP EVICTION OVER RENT ARREARS.

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BY SAM ALFAN.

Prominent lawyer Harun Ndubi has rushed to court seeking to stop his landlord from evicting him from his house and selling his property over rent arrears amounting to Sh414,000.

Through a certificate of urgency, Mr Ndubi told Justice Weldon Korir, Ndubi that his landlord, Young Muslim Association (YAM) has already instructed Benwill Auctioneers to throw him out of his apartment on Kirichwa Road.

The Auctioneer will also seize his household goods over rent arrears amounting to Sh414,715 and charge him a fee of Sh150,000. The lawyer said he is long-serving tenant to YAM.

Through veteran lawyer John Khaminwa and Shadrack Wambui, Ndubi said he was given a 14-days’ notice of July 9 that his goods would be seized and sold to recover the rent arrears. He started defaulting from March 2020, when Chief Justice announced closure of courts to contain the spread of coronavirus.

The lawyer said he received a call on July 18, from the auctioneer threatening to come and seize his household goods. Ndubi said he moved into the house seven years ago and the initial rent was 60,000 but the landlord increased it to 70,000 inclusive of service charge of Sh10,000 in 2012. He said they disagreed but nonetheless, continued staying in the house.

“As a court room practitioner, my income has hitherto been frustrated but I have nonetheless undertaken to pay all his dues as an when I am able to as long as the effects if the coronavirus pandemic persist as I am left without any other option,” he said in a sworn statement.

He wants the court to grant him temporary orders, stopping the landlord and the auctioneer from evicting him from the house and attaching his household property, pending the determination of the case.

Lawyer Wambui further told the court the distress of Ndubi households’ goods and items will certainly affect his responsibilities as an advocate and therefore pose a grave and imminent threat to the independence of the bar and his duty especially now the Ministry of Health insists that everybody should work from home due to coronavirus pandemic.

Justice Korir directed the case to be heard on July 27.

FORMER IRA CEO DENIES FRAUD CHARGES.

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BY SAM ALFAN.

Former Commissioner of Insurance Regulatory Authority Sammy Makove has been charged with attempt to sell a property belonging to Blue Shield Insurance, a few years after the underwriter was placed under receivership.

Sammy Makove,John Sifa Keah and Eliud Muchoki Muriithi appeared before Milimani Senior Principal rincipal Magistrate Kennedy Cheruiyot and pleaded not guilty.

The company was placed under receivership in September 2011 and Makove, who was then the Commissioner if Insurance, appointed tow statutory managers to manage the company

Makove was charged together with a former statutory manager John Sifa Keah, with the prosecution claiming that they intended to defraud the company.

The charges against them stated that they attempted to defraud the company by planning to dispose of its building known as Blue Shield Towers, Upper Hill area, Nairobi.

The court heard that a moratorium was in place and the plan to sell the building had not been approved by the statutory management. They allegedly committed the offence between July 5, 2015 and July 31, 2016.

Keah was separately charged with Eliud Muchoki Muriithi, yet another former statutory manager, with stealing Sh10.2 million belonging to the underwriter, money which came into their possession by virtue of their employment.

The accused persons said they brought themselves to court after being released by police officers on cash bail of Sh100,000.

The trio further said they were not a flight risk since they have cooperated with investigators since 2015. The prosecution through senior state counsel Kennedy Panyako did oppose the application.

Makove said he was a retired civil servant and a senior citizen and had no intention of jumping bail.

They were released on a cash bail of Sh100,000 each pending hearing and determination of the case.

The case will be mentioned on August 4 for pre-trial.

COURT SUSPENDS UHURU’S DIRECTIVES ON HIRING EXTERNAL LAWYERS BY STATE AGENCIES.

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BY SAM ALFAN.

The High Court has suspended President Uhuru Kenyatta’s order barring cabinet secretaries and state departments from hiring external advocates unless approved by Attorney General Kihara Kariuki.

In a ruling, Justice John Mativo said he was satisfied that the case filed by the Nairobi branch of the Law Society of Kenya, was merited. The Judge directed the LSK-Nairobi branch to file the main case within 15 days and the Attorney General to file his response within 21 days.

“For avoidance of any doubt, the order of stay herein above granted is directed to the accounting officers and Cabinet Secretaries in the National Government stopping them from implementing the actions specified in paragraph 4 of the Chamber Summons dated 20th July 2020 pending the hearing and determination of the substantive application,” the Judge said.

The Judge said after weighing the grounds cited in the application, the issues presented establish an arguable case which ought to be interrogated by the court.  “Differently put, the application meets the threshold to warrant the leave sought,” the Judge said.

The directive to CSs and state departments barred them from contracting external lawyers, unless with written approval of the Attorney General. The order also directed state agencies with cases already in court to terminate them within 21 days.

But LSK-Nairobi branch moved to court arguing that the directive was unconstitutional since there is the Public Procurement Act that guides the ministries, independent commissions, agencies and institutions on procurement.

Justice Mativo said the case will be heard on October 6.