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DPP HAJI DEFENDS MOVE TO TERMINATE MURDER CHARGE AGAINST OMAR LALI.

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BY SAM ALFAN.

Director of Public Prosecution Noordin Haji has defended the move to drop murder charge against Lamu boat operator Omar Lali, who had been accused of murdering Keroche heiress Tecra Mungai.

According to Haji, there was no sufficient evidence to sustain murder charge against Lali and an inquest was the best option, to establish who caused the death of Tecra.

“We established that there was insufficient evidence against the suspect Lari Omari for murder as recommended by investigative agency,” Haji said.

He added that initially, a decision to charge the suspect with murder was made and upon review of the file, he established that there was insufficient evidence to support the case, hence the matter was withdrawn under Section 82 of the Criminal Procedure Code.

The PPP promised to ensure that the matter is handled professionally and the allegations by the Keroche’s are vexatious and malicious.

“I wish to state that withdrawal of this matter is within the powers exercised by the Director of Public Prosecutions as he is mandated under the constitution,” Haji added.

Responding to claims that Lali rules Lamu Island, owns a boat and thus has influence on the island, the DPP said no evidence has been furnished to that effect and the family should strictly prove the claims.

“There is no evidence express or manifest that has been tendered to show that the suspect or any other person has intention of causing any harm to the deponent’s family. In the absence thereof, the deponent cannot make such grave allegations,” he added.

On the allegation that he made a whimsical and arbitrary decision to withdraw the inquest proceedings from Milimani Chief Magistrate court in preference for Lamu, the DPP said the decision was made after review of the file based on the jurisdiction where the incident occurred.

He dismissed claims by the family to appoint a special prosecutor due to lack of confidence in him saying it was baseless.

“No evidence has been given to show that the DPP or the officers of the DPP cannot competently prosecute the inquest. The DPP has a pool of competent prosecutors that can be assigned to prosecute the inquest. Further the deponent has not come up with a specific person she is against to warrant the appointment of a special prosecutor,” he said in response.

Haji said he does not require the consent of any person or authority to commence criminal proceedings and in the exercise of powers or function, he is not under the direction or control of any person or authority.

“There is no evidence that has been given to show that the DPP or any of his officers were compromised or that undue influence was exerted upon them to warrant the DPP to make the decision to enter the decision and averment is baseless and should be dismissed”, adds prosecution.

He adds that the key evidence and the principal witnesses are based in Lamu therefore the evidence collected in Nairobi cannot therefore unravel the mystery of death of the deceased. No investigations were done in Nairobi other than the postmortem examination. If the inquest were to be conducted in Nairobi, it would only serve to inconvenience the said witnesses to the detriment of achieving justice for all.

“All the critical witnesses reside in Lamu and should the case be instituted in Nairobi, they would be gravely inconvenienced.

Tecra’s mother Tabitha Karanja through her lawyer James Orengo had told the court that most witnesses are based in Nairobi, but the DPP disputed the claims.

ELDERLY MAN DENIES LAND FRAUD CHARGES.

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BY NT CORRESPONDENT.

A Machakos businessman has been charged in a Nairobi court with conspiracy to defraud a private firm of two parcels of land situated in Mavoko worth Sh210 million.

Seuri Legusi Sanoye appeared before Milimani Senior Resident Magistrate Sinkiayan Tobiko wearing his maasai attire. He pleaded not guilty to four counts.

The charges against Legusi stated that on unknown dates and place in the Republic, with intent to defraud and jointly with others not before court, he conspired to make a title Deed dated December 1,1998 in his name.

He is also accused that on June 4, this year at Machakos county knowingly and fraudulently uttered a forged certificate of title Deed.

He is alleged to have presented it to Machakos Law Courts Deputy Registrar, purporting it to be genuine certificate issued by the land registrar a fact he knew was false.

Further the court heard that on or before December 1, 1998 at unknown place Legusi jointly with others not before court, with intent to defraud Mukwano Distributors limited of land situated at Mavoko sub-county in Machakos, he forged a title Deed in his name.

He is also charged with holding the said parcel of land in a manner likely to cause breach of peace against Mukwano Distributors limited who was entitled by law to the possession of the said land.

Legusi was released on a bond of Sh 2 million or alternative cash bail of Sh 500,000 pending hearing and determination of his fraud case.

FORMER NBK BOSS SMILING ALL THE WAY TO THE BANK AFTER COURT VICTORY.

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BY SAM ALFAN.

National Bank of Kenya has been ordered to pay its former managing director Munir Sheikh Ahmed Sh26.5 million for illegal termination of his employment.

Employment and Labour Relations court Judge Byram Ongaya ordered the bank to pay Munir the amount by December 15 this year.

The court further ordered the bank to retract a damaging notice it published over alleged misconduct and governance.

The notice was placed in the print media on March 30, 2016 and the Judge said the lender should retract it in the print media, contents of which must be approved by his lawyer Issa Mansour.

In the decision, the court said the bank breached Munir’s right to fair labour practices, the right to a fair disciplinary and administrative process.

According to the Judge, the lender denied him adequate time and opportunity to respond to the allegations made against him.

“A declaration that the termination of petitioner’s employment was unprocedural, unfair, unlawful and wrongful as it was contrary to provisions of Articles 41 and 47 of the constitution sections 41,43 and 45 of the Employment Act and section 4(3) of the fair administrative actions,” ruled the judge.

Munir had sought a compensation of Sh453, 489,133 from the bank.

He also sought to be reinstated to his former position on the terms that he previously enjoyed for the reminder of the contract period.

The former MD also sought pay arising from his salary accrued benefits from April 2016 until the date of reinstatement.

Munir was sacked before he completed his five year tenure at the helm of the struggling bank.

Some 16 months were remaining to the end of his five year term and his reputation should not therefore be soiled as it was prejudicial to his professional undertaking.

The court heard that upon receiving the show-cause letter, Munir was escorted out of from office by the bank security team.

“The allegations against me were vague, the time allowed to prepare defence was too short and termination was based on the interim report by the bank’s external auditors Deloitte and Touche”, he told the court.

He told the court that the bank’s decision to terminate his employment was made way back in May-June 2015 when board’s remuneration and HR committee met several times.

He said the teams laid the ground for the termination of his contact and at that time the bank’s interim financial statements for June 2015 to September 2015 had not been prepared.

He said the allegations levelled in the showcase letter were contemplated and executed by the bank’s board itself and audit completed in March 2016 was only used to justify the dismissal.

He further added that after the publication in the newspapers on March 30, 2016 by the bank, Inspector General of police informed the public he had ordered his immediate arrest and that of senior management officers.

National bank had opposed Munir’s petition claiming he was served with the notification of a disciplinary hearing and showcause notice.

According to bank response to the petition, the letter to Munir reffered to the contract of employment and the meeting with the bank’s board of directors and the external auditors on March 23, and 24, 2016.

The letter further stated that as Munir was aware, the auditors revealed material differences between the bank’s financial results appeared to have misrepresented and did not not present the correct financial position.

It is based to that auditors report the bank considered to terminate his contract for gross misconduct occasioned by hs failure to take appropriate action to ensure the bank’s financial results reflected the current position.

COG PETITIONS TO JOIN TEA REGULATIONS DISPUTE.

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BY SAM ALFAN.

The Council of Governors has sought to join a case challenging Crops (Tea Industry) Regulations 2020.

The petition was filed by Kenya Tea Development Agency Holdings Limited and KTDA Management Services Limited against the CS Ministry of Agriculture Livestock Peter Munya.

The Agency is accusing the CS for releasing an implementation timeline for tea reforms before they are approved by Parliament.

And COG wants to join the case arguing that counties have an identifiable stake in the matter and stand to suffer prejudice if the matter is heard and determined in their absence.

The COG said the regulations negatively affect the functional and institutional integrity of the County Government as they fail to take into account the functions assigned to County Governments under the fourth schedule of the constitution.

“It is in the interest of justice that the orders sought are granted forthwith,” reads the court papers.

The council claims that the petition is an alleged constitutional violation by the Munya led Ministry which have been introduced by the crops (Tea Industry)Regulations 2020 as part of the ongoing reforms in the Tea sub-sector without the involvement of the County Governments.

They say that if enjoined in the petition they will articulate their interests in the case adding that their joinder shall not occasion any prejudice to the parties in the petition.

The ministry in the regulations want directors in tea factories to be limited to two with each factory having a company secretary.

The ministry also proposes that buyers pay before carting away tea to ensure farmers’ money gets to individual factories’ accounts.

The regulations were initiated in January and are aimed at addressing corruption and exploitation of farmers as well as conflict of interest in the management of the tea value chain.

The matter is scheduled in court on October 13, 2020.

WIN FOR USIU LECTURERS AS COURT STOPS SALARY CUTS.

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BY SAM ALFAN.

A judge has stopped United State University- Africa from reducing lecturers’ salaries pending the determination of a case they have filed.

Justice Onesmus Makau stopped the institution from effecting the pay cuts, as contained in a letter sent to the lecturers on August 31. The pay cuts were to take effect from September 15.

Some 54 lecturers led by Prof Maina Muchara moved to court seeking to suspend the move and also bar the institution from terminating their services or interfering with their terms of employment, pending the determination of the case.

In the letter, USIU-A also wrote to the Chairman of the Board of Trustees of USIU Staff Retirement Benefits Scheme, seeking to suspend remitting their contributions for a period of four months.

But the lecturers said the move was made without consultations. “Unless the Notice of Motion application is heard during the current court vacation and Orders sought herein are granted at exparte stage, the Applicants stands to suffer irreparably as the 1st Respondent shall proceed and effect its intention of effecting salary deductions and stoppage of benefits of the Claimants,” the application reads.

Some of lecturers include Prof James Ngari, Prof Francis Wambala, Emma Wamai, Joseph Nyanoti, Jane Muasya, Benard Messiah, George Achoki, Wanjiku Mbugua, Jeremiah Koshal, Githaiga Njoroge, Elizabeth Ntambi and Naumi Noah.

They argue that on or about August 31, 2020, they received individual letters from the USIU and vice Chancellor indicating that they would be subjected to salary cuts with forfeiture of entire benefits allegedly owing to the effects of the Covid-19 pandemic and are required to sign the letters accepting the said move by Tuesday, September 15, 2020.

“The Applicants herein are core staff at the university who are all attending the normal teaching duties even after the first case of Covid-19 was reported in Kenya which duties are proceeding normally albeit virtually with normal student enrolment rates with payment of full fees complete with enrolment of new students”, adds the lecturers.

They argue that they are aggrieved by the said abrupt decision and have challenged the University to vacate its position of requiring them to agree to salary cuts by September 15, 2020 to allow for further consultations but the University is still adamant on proceeding with the said move necessitating the filing of this suit and seeking urgent protection orders from this Honourable Court.

They are apprehensive that come the Tuesday, September 15, 2020, USIU Africa University shall proceed and effect deductions of salary and forfeiture of benefits which will not only render the Application nugatory but also cause financial hardship and embarrassment to the Applicants who have continued to discharge their teaching duties with utmost diligence.

“The University has already written to the Chairman of the Board of Trustees of USIU Staff Retirement Benefits Scheme to the effect that the Respondent had resolved to suspend the employer-employee contribution for a period of 4 months and the same was written without consultations with the Claimants.

This is patently illegal since the Retirement Benefits Authority (RBA) has issued a Circular dated 23rd April 23,2020 which requires the employer to seek consensus of the members which should be evidenced by members signatures or a joint affidavit by the employer and the trustees. This has not happened”, adds the lecturers.

Another key benefit that will be withdrawn or suspended effective September 15, 2020 is Employee-Tuition Waiver (ETW) which will have serious implications on the children of the Applicants studying at the Respondent at the moment.

Such a move of doing away with the ETW needs sufficient notice to enable the Applicants with own children in class to transfer the children to institutions they can afford. Deducting salaries from the Applicants and further requiring them to pay Tuition fees for their children in the range of Kshs. 120,000.00 to Kshs. 130,000.00 per semester is unfair.

“We would suffer irreparably should they be compelled to take irredeemable salary cuts and have their entire benefits suspended yet they incur personal expenses to carry out or ensure smooth running of the online classes which have normal student enrolment rates with almost zero fee rebates”, adds lecturers.

TUSKYS AND SUPPLIER GIVEN 45-DAYS TO SETTLE SH248 MILLION DISPUTE.

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BY SAM ALFAN.

Troubled supermarket chain Tuskys and a home appliances and electronic dealer now have 45 days to settle a Sh 248 million dispute out of court.

The parties appearing before Justice Francis Tuiyot were granted the period to settle the matter after they said that they were in the process of striking a deal and would need between one and two months to pay the amount.

However Justice Tuiyott allowed their application and give them 45 days to see whether they can hammer a deal.

This comes after Hotpoint rushed to court seeking to wind up the Tusker Mattresses Limited on grounds that the fallen retail giant was unable to settle the debt.

“The Hotpoint imports the goods sold to the Company. As result, the failure by the Company to pay for the goods promptly, the Petitioner is suffering losses. Therefore, the Petitioner claims interest for the unpaid goods at the rate of 14% per annum from April 28, 2020,” reads the court paper.

Further, petition shows that Hotpoint supplied Tuskys with refrigerators, water dispensers, cookers, coolers, microwaves and TVs.

“Hotpoint has made repeated requests and demands to the company for the payment of the debt, but the company has failed, refused and neglected to pay the debt,”they argue.

The supplier urged the court to appoint Kolluri Venkata Subbaraya Kamasastry as the liquidator and also have the cost of the petition paid out of Tuskys assets when wound up.

Besides Hotpoint, a security company, Syndicate Agencies has also sought to wind-up Tuskys over a debt of Sh30 million.

Documents before the Commercial Division of the High Court showed that Tuskys hired Syndicate Agencies on November 10, 2017, to beef up security and help cut losses from shoplifting and theft by employees.

Other than personnel, the firm installed CCTV feeds in Tuskys’ branches, conducted shop patrols, double-checkers, individuals to inspect staff as they entered and exited work, and system controllers.

“The petitioner’s most thorough search has established that the respondent has no cash in any of its bank accounts or with any financial institutions to meet the above stated indebtedness,” the application reads.

In the circumstances, Syndicate stated in court documents, it is just and equitable that Tuskys- known as Tusker Mattresses ltd, should be wound up.

The court documents further states that the two companies entered into an agreement for provision of loss control services in November 2017, an agreement that was to last up to May 31, 2020.

Part of a clause in the agreement provides for insolvency in case the company fails to pay the debt.

The document shows part of the responsibilities of Syndicate were shop patrols, access control, physical searchers and preparation of daily reports.

COURT QUASHES 10-YEAR JAIL TERM IMPOSED ON FORMER EACC EMPLOYEES.

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BY SAM ALFAN.

Two employers of Ethics and Anti-Corruption Commission have escaped ten years in jail after a judge acquitted them of charges of abuse of office.

Justice Mumbi Ngugi acquitted the commission legal officer Anthony Juma Opondo and operation assistant Paul Martin Sao.

“I find that this appeal has merit. The conviction of the appellant Anthony Juma Opondo and Paul Martin Sao is hereby quashed and sentences set aside,” ordered the judge.

The Judge further ordered that Sh1 million fine paid by Opondo, be refunded.

The two had been sentenced to serve 10 years in prison each or pay a fine an alternative fine of Sh1 million.

The Judge agreed with the two saying they were correct when they submitted that bringing the EACC to disrepute and flouting internal processes does not amount to offence of abuse of office as contemplated under ACECA.

However, in her decision the judge noted that the two flouted all internal processes regarding investigations, doubtless with intent to confer a benefit to themselves and such conduct most certainly brought some degree of disrepute to EACC.

“What is one to make of the integrity of the anti-graft fight if those charged with waging engage in corruption themselves?” Judge asked.

They challenged the trial court decision to convict them by relying on” internal procedural breach” as opposed to the specific breach of the law hence arriving at a wrong decision.

They wanted the court to quash their conviction on count three and four and set aside the sentence and direct fine paid by Opondo be refunded to him.

They also argued the magistrate erred in law and in fact in convicting them when crucial ingredients of the offence of “abuse of office” were never established and prosecution did not discharge their duty to prove the case beyond reasonable standard requirements.

“The magistrate erred in law and in fact in convicting the appellants in court three and four for offence of abuse of office when there is no sufficient evidence to prove the charge” argued the two.

They told the judge that the trial erred and misdirected herself and relied on facts not adduced in evidence and thus arrived at a wrong decision. They further added that despite the magistrate holding that the two never used their offices to confer any benefit on themselves, she erred in failing to appreciate that conferment of benefit is the main ingredient of the charge of abuse of office as stipulated in law.

“Trial court erred in law and fact by sentencing us to suffer maximum sentence yet we were first time offenders and never breached section 46 of ACECA to warrant such harsh punishment” the two argued.

The two were accused that on April 27,2017 at Uganda house in Nairobi City County being persons employed by the EACC as legal officer II and Operations assistant II respectively, they requested for a financial advantage amounting to SH15 million from Dennis Mumbo of Mwananchi Credit Limited through his lawyer Albert Kuloba with intent that in consequence, they would compromise a purported tax evasion investigation involving the said Mwananchi credit limited.

They were also charged with conspiracy to commit corruption offence, and abuse of office and pleaded not guilty to the charges.

HALAL COMPANY MANAGER IN COURT OVER SH10. 5 FRAUD.

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BY NT CORRESPONDENT.

Total Halal a quality company Kenya limited manager has been charged with stealing over Sh 10.5 million.

Hussein Mukhtar Haji appeared before Senior Principal Magistrate Sinkyian Tobiko and denied charges of stealing by servant

He is accused that in diverse dates between November 27 and July 2 2020 at first community bank in Nairobi county, being a servant of Total Halal as office manager jointly with others not before court, stole Sh 10,553,328 property of the said company.

Prosecution opposed the accused person to be released on bond saying he faces severe charges.

According to an affidavit filed in court opposing bail, the prosecution claimed that the accused has been collecting company money and keeping it in the office safe since April this year, when the company accounts were frozen and directors barred from withdrawing money from the account.

The investigating officer said the accused will interfere with evidence given that other two directors of the company who are believed to be connected to the offence are foreigners and are out of the country and will facilitate his flight.

The court will deliver his bail ruling after seven days.

HIGH COURT JUDGE MARTIN MUYA DEFIES THE SACK,WANTS DISMISSAL QUASHED.

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BY NT CORRESPONDENT.

Sacked High Court Judge Martin Muya has finally petitioned the Supreme Court to block his removal from the bench early this year for alleged gross misconduct.

The aggrieved Judge has already appointed veteran lawyers Fred Ngatia and Philip Nyachoti to challenge adverse findings pronounced against him on March 17 by the seven-member judicial tribunal, chaired by retired Appellate Judge Alnashir Visram.

The recommendations by the team were subsequently presented to President Uhuru Kenyatta on March 20 at State House in Nairobi, effectively sealing the fate of the long-serving judicial officer, who rose through the ranks from the magistracy.

The tribunal concluded that Justice Muya was guilty of gross misconduct by his delay in delivering reasons for his ruling dated May 30, 2017 in a commercial dispute while sitting in Bomet. But the Judge had justified his professional handling of the civil suit, in which his decision has never been challenged in the Court of Appeal.

When the matter came up today in the morning before Supreme Court Deputy Registrar, Daniel Ole Keiwua, Nyachoti explained that Muya had instructed Ngatia to prosecute the appeal. State Attorney Martin Munene said the tribunal will not file any further grounds of opposition.

The parties were directed to appear in court for mention on October 15 for further directions before the file is forwarded to Chief Justice David Maraga.    

The complaints against Justice Muya were first investigated by a JSC committee chaired by Prof Olive Mugenda. The other members were Deputy Chief Justice Philomena Mwilu, Emily Ominde and Patrick Gichohi.

The Judge said the JSC exceeded its jurisdiction by delving into the merits of a commercial dispute and usurping the appellate jurisdiction contrary to the law. “The commission arrived at an illogical, irrational, unreasonable and erroneous conclusion,” he protested in court papers.

Nyachoti said the complaint against Justice Muya was, who was based in Bomet, was lodged by the law firm of Onyinkwa and Company Advocates on behalf of NIC Bank on August 17, 2017. The firm had written to the Chief Justice and resulted in the disciplinary process.

NIC bank lodged that complaint against Justice Muya in a 2016 commercial dispute between it and Alfred Kipkorir Mutai and Kipsigis Stores Ltd. The Judge after numerous adjournments granted an injunction against the bank and reserved the reasons for five months.

In its report to the President, the JSC observed that the defunct bank suffered financial loss despite its pleas to the Judge that the vehicles offered as security for the disputed loan had already been sold by the defaulting borrowers.

The commission had concluded that the petition against the Judge had disclosed “open bias, abuse of office, incompetence and gross misconduct.”

The tribunal, which conducted its proceedings at the Kenyatta International Convention Centre in Nairobi, comprised Justice Viaram, retired High Court Judge festus Azangalala, Senior counsel Lucy Kambuni, lawyers Ambrose Weda and Andrew Bahati Mwamuye and members Sylvia Wanjiku Muchiri and Amina Abdalla.The lead Assisting Counsel was Paul Nyamodi, assisted by Senior State Attorney Stella Munyi. The Joint Secretaries were Peter Kariuki and Josiah Musili.    

AGENCY NOW WANTS MP GACHAGUA MILLIONS FORFEITED TO STATE.

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BY SAM ALFAN.

Troubles seems to deepens for Mathira MP Rigathi Gachagua after Assets Recover agency seeks to forfeit She 200 million held in his banks suspected to be proceeds of crime.

In a petition before the High Court Anti-Corruption division, ARA wants the court to declare that the funds held in the banks of the MP at Rafiki Micro Finance bank are proceeds of crime and the same should be forfeited to the government.

Through lawyer Mohammed Adow, ARA claims that they have amassed more than Sh5.8 billion within seven years, amounts that included funds from companies or business entities, providing services to ministries, state agencies and county governments.

The application comes after the High Court had in May frozen the MP’s three accounts holding Sh200 million, pending a petition by a state agency for the money to be forfeited to the government.

The accounts are held at Rafiki Micro Finance bank.

According to court papers, preliminary investigations by ARA has established that Gachagua and Jenne Enterprises limited were involved in a suspected complex scheme of money laundering.

The funds emanated from the Ministry of Lands (Kenya Informal Settlements Programme), state department for Special Planning, Ministry of Health, Bungoma county government, Mathira constituency development funds, Nyeri county government and National Irrigation Board.

The agency says funds, at Rafiki Micro Finance Bank, are held in three accounts with one holding Sh165 million, a second account holds Sh35 million while the other holds Sh773,228. All the three are registered in the MP’s names. A fourth account, holding Sh1,138,142, is registered in the name of Jenne Enterprises.

Further, the documents stated that after being transferred to companies or businesses entities, the funds were ultimately moved to a fixed deposit account, which is Gachagua’s personal accounts.

“That within the said period, there were massive suspicious cash withdrawals, transfers, inter and intra bank transfers from other accounts to the accounts under investigations and other bank accounts owned by MP Gachagua in suspicious complex money laundering schemes,” the agency said.

ARA argues that it was apprehensive that unless the court intervenes, the MP was likely to withdraw the funds and defeat the cause of justice.

“There are reasonable grounds to believe that the suspects’ bank accounts were used to conduit of money laundering in efforts to conceal, disguise the nature, source, disposition and movement of the illicit funds and should be preserved,” the agency submitted to court.