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BRAVIE GROUP LTD AND GOLD DEALER DENIES SH7.6 MILLION FRAUD.

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Makadara Law Courts./PHOTO BY S.A.N.

BY NT CORRESPONDENT.

A businessman claiming to be dealing in gold nuggets has been charged with Sh7.6 million fraud.

Samuel Waithaka Gathuru of Bravie Group limited appeared before Makadara Magistrate Court and denied the charges.

Gathuru and Bravie Group ltd are accused of defrauding Rasim Rafeek and Joseph Nevin of Sh7.6 million, on diverse dates between 23rd August and 25th October in Nairobi County and outside jurisdiction.

The court heard that they committed the offence jointly with others not before court.

Gathuru was released on a bond pending the hearing of the criminal case.

FORMER KEBS MD ONGWAE ACCUSED OF IGNORING ADVISE FROM COUNCIL MEMBERS.

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Former Managing director of Kenya Bureau of Standards (Kebs) Charles Ongwae.

BY NT CORRESPONDENT.

Former Managing director of Kenya Bureau of Standards (Kebs) Charles Ongwae ignored the advice from the council members over importation of substandard goods over five years ago.

Senior Counsel Mugambi Imanyara told Chief Magistrate Rukas Onyina that being the chairman of the board, Ongwae had dictated that some fakes stamps were being used which allowed large amount of goods that entered to the country in the year 2015 and 2018.

He testified that he called Ongwae and urged him to take action to remedy the situation but his advice was not taken seriously.

He said he took upon himself and reported the matter to the DCI, who later commenced investigations and established that indeed stamps, were being used on imported goods were fake and lacked security.

While being led in his evidence in chief by prosecuting counsel Henry Kinyanjui, the lawyer said the former MD never cooperated with council board.

Ongwae is charged alongside Eric Kiptoo and Raymond Michuki. They are together facing charges of breach of public trust, abuse of office and neglect of official duties.

TOYOTA KENYA TO COMPENSATE FORMER MANAGER FOR ILLEGAL SACKING.

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Toyota Kenya Limited which has been ordered to pay millions to former Financial Manager Abigael Munyinyi over unlawful dismissal.

BY SAM ALFAN.

Toyota Kenya has been ordered to pay a former top manager over Sh6 million for illegal sacking.

Justice Linnet Ndolo ordered the car dealer to pay its former financial Manager Abigael Munyinyi Sh6.24 million for dismissing her in 2019.

The judge further ruled that a meeting held on February 20, 2019 could not pass for a disciplinary hearing as required by Section 41 of the Employment Act. 

“At best, this was an investigative meeting which ought to have been followed by a duly convened disciplinary meeting with adequate lead time for the Claimant to prepare her defence,” the judge said.

The judge said there was no valid reason for dismissing Munyinyi hence she should be compensated for wrongful and unfair dismissal.

“In the result, I award the Claimant twelve months’ salary in to account the compensation. In arriving at this award, I have taken into Claimant’s long service and the Respondent’s unlawful conduct in bringing the employment relationship to an end,” ruled the Judge.

The former manager was employed by Toyota Kenya in March 2007 as an assistant management accountant. She was promoted to the position of Finance Manager on August 9, 2016.

She told the court that she had a stellar performance record throughout her employment with Toyota Kenya.

Through lawyer Omondi Ogutu, she said that she was suspended on 15th February 2019, to allow Toyota Kenya to conduct investigations, following a forensic audit report on ‘the Hino Special Service Campaign Project’.

Munyinyi said she was later served with a show cause letter, citing allegations of her culpability which led to an estimated loss of Sh20 million. She was then required to respond by 3pm on February 18, 2018.

The former manager was then invited for a disciplinary hearing on the same date she was suspended and directed to provide a written response to the show cause letter, based on an incomplete investigation.

She argued that it was procedurally unfair to invite her for a disciplinary hearing before receipt and consideration of her response to the notice to show cause.

She told the court that the move clearly showed a predetermined decision to terminate her employment.

The court heard that the draft forensic report was prepared by Deloitte, a consultancy firm which is not part of the structural organs or departments of and or within the Respondent, which firm also sat in the proceedings leading to her dismissal.

She further said the employer declined to furnish her with a copy of the forensic report.

Munyinyi also accused Toyota Kenya of ceding control of the disciplinary proceedings as to officials Dennis Nganga and Eric Thuku, sat in the proceedings.

She states that the meeting was investigative in nature and not a disciplinary hearing as defined in law.

Further, it was her argument that there is no provision in the Toyota’s Employee Handbook that permits third parties to sit in disciplinary committees of the company.

She added that the meeting of 27th February 2019, at which she was served with the dismissal letter, was not properly constituted as it was only the Human Resource Manager present, while the Handbook requires a witness to be present.

She took issue with the letter of summary dismissal for lack of clarity on the reason for dismissal.

She asserted that even though she was involved in the Special Service Campaign, by virtue of her being the Finance Manager, the Respondent did not provide a job description, terms of reference or key performance indicators on control of costs specifically related to the Project.

Toyota Kenya admitted that she was suspended by letter dated 15th February 2019, to pave way for further investigations into allegations of gross misconduct.

The Toyota car dealer stated that the Claimant was given an abridged version of the investigation report, which was in relation to her only and explained that it could not have given the whole report to the Claimant because the report discussed other employees as well and such information was classified and confidential and inconsequential to the Claimant’s case.

The company further stated that after conclusion of the investigations, the Claimant was issued with a notice to show cause, giving her an opportunity to respond to the issues giving rise to her suspension.

Toyota Kenya argued that the suspension was lifted and adds that the meeting of 20th February 2019 was a proper disciplinary hearing. The Respondent takes the view that in any event, there is no legal requirement that a suspension must be lifted before a disciplinary hearing is held.

The company claimed that the disciplinary hearing was conducted in full compliance with the law, with the Claimant being accompanied by the Respondent’s Credit Manager, Alice Munene.

BUSINESSWOMAN CHARGED WITH OBTAINING TOYOTA PRADO REGISTRATION WORTH SH5.5 MILLION.

By Nairobi Times -
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Gladys Adhiambo Omondi who was charged with conspiring to obtain motor vehicle registration being escorted out of the courtroom./PHOTO COURTESY OF ODDP KENYA.

BY NT CORRESPONDENT.

Kisumu businesswoman has been charged with over Sh 5 million fraud.

Gladys Adhiambo Omondi appeared before Kisumu Chief Magistrate Douglas Ogoti and denied the charges.

Adhiambo is accused that on unknown date at unknown place jointly with others not before court she conspired together to obtain registration of Toyota Prado KDJ 342K black in colour property of Sacho Motors limited worth Sh5.5 million.

She is also charged with willfully registering the said Toyota Prado under her name.

She was released on a bond of Sh.2million or alternative cash bail of Sh. 1.2 million pending hearing and determination of her criminal case.

BUSINESSMAN IN COURT OVER SH1.6 MILLION FRAUD.

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Businessman Charles Chege Mbuthia before Court./PHOTO BY S.A.N.

BY NT REPORTER.

A businessman has been charged with Sh1.6 million fraud.

Charles Chege Mbuthia appeared before Milimani Chief Magistrate Onyina and denied the charges.

Mbuthia is accused that on 27th April in the year 2021 at unknown place with intent to defraud obtained credit of Sh1.6 million.

He obtained the money from Together as one investment by falsely pretending he was using motor vehicle Toyota Prado as valuable security to secure the loan.

Mbuthia is also accused of of changing the ownership of the said motor vehicle in the NTSA transport integrated systems (TIMS) from joint ownership to himself.

He was released on a cash bail of Sh300,000.

COURT SENDS STERN WARNING TO MEN WHO TARGET CHILDREN FOR MARRIAGE.

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Narok High Court Judge Francis Gikonyo who has sent a stern warning to men marrying under age girls.

BY SAM ALFAN.

The High Court in Narok has condemned men who marry underage girls saying such action deny young women a chance of furthering their education.

While jailing a man for marrying an underage girl to 15 years in prison, Justice Francis Gikonyo said that the conduct of some men seducing and impregnating underage girls and then converting them into their wife’s is unlawful.

Denis Njapit had moved to the High Court in an attempt to overturn the sentence imposed on him by a Narok court in January 2019 for marrying a 17-year-old girl.

“This is a long life forcible confinement of a minor into undesired motherhood by the appellant. I repeat; you admire, marry and defile the prohibited- a child you will surely tremble in the right place; the prison, for a long time or life,” said the judge.

The judge dismissed the appeal saying marrying a child is unconstitutional as well as criminal act. Justice Gikonyo said such actions is an infringement of the right of the child enshrined and protected in the Bill of Rights as well as international instruments recognised by Kenya.

He added that it is criminal because the girl is exposed to sexual intercourse which will cause penetration with a child- and which amounts to defilement contrary to the Sexual Offences Act.

The judge said a child is incapable of consenting or of appreciating the nature of sexual intercourse- penetration.

“Accordingly, I sound a stern warning to those traditional cultures which marry away children- girls- that by admiring and marrying and engaging in sexual intercourse with a child, they indulge in what is prohibited by law. Parents or guardians who give away their children for marriage should also be charged in a court of law,” said the judge.

The judge said to eradicate this vice, the country needs collective efforts- both soft and hard- through education of the public as well as punishment of the offender.

The judge found that the prosecution proved their case beyond reasonable doubt and that the trial court did not error in convicting the elderly man for defilement.

“In these circumstances, a sentence of 15 years was quite lenient. Nonetheless, it is capable of acting as a deterrent measure on these debauchery sexual attacks on children, yet, giving him an opportunity to be reintegrated back into society and be a productive citizen. I therefore see nothing upon which I may interfere with the sentence imposed of 15 years’ Imprisonment. Accordingly, I dismiss the appeal on sentence,” ruled the judge

Judge Gikonyo said the offence was serious and the manner and circumstances in which it was committed require real deterrent sentence.

“I do note that the girl was in school- in class 6 and aged 17 years- yet, the appellant seduced her. As a consequence, the victim became pregnant, dropped out of school and the appellant started to cohabit with her as his ‘wife’,” the judge said.

He said the unlawful acts forced the young girl to become a teenage mother, thus, decimating her opportunities in education and other growth opportunities.

The judge said that Njapit seemed to be justifying his action and treated the teenage mother as his wife her parents were just unhappy with the bride price. “What a shameless excuse?” Posed the judge.

In his appeal, Njapit had claimed that the minor parents reported him because they were not happy with the dowry.

The court dismissed the evidence adduced by Njapit and termed it an attempt to justify his actions.
Director of Public Prosecution Noordin Haji through senior Principal Prosecutor Duncan Ondimu vehemently opposed Njapit appeal.

He urged the court to uphold the trial court decision and let the convict serve his 15 years sentence.

COURT DISMISSES ELECTION PETITION AGAINST WEST MUGIRANGO MP MOGAKA.

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West Mugirango MP Steve Mogaka celebrating his victory with his brother lawyer Danstan Omari after court upheld his victory.

BY SAM ALFAN.

West Mugirango MP Steve Mogaka can now rest easy after the High Court upheld his election victory.

Justice Kiarie Waweru dismissed the election petition filed by his opponent Charles Ongera Moturi of ODM, who came in second during the August 9 general election.

The judge dismissed the petition saying Ongera did not provide sufficient evidence to overturn Mogaka’s win.

The judge further said Ongera did not adduce any evidence to demonstrate that the Independent Electoral and Boundaries Commission failed to conduct the election in an independent manner as required.

“I therefore find that none of the grounds raised in the petition have been proved to the required standards and the petition is, therefore, dismissed with costs to the respondents,” ruled the judge.

The judge added that if a party seeks to make an analysis as to why there were discrepancies between different elective positions, the same must be scientific and undertaken by an expert data analyst.

“In the instant case, if the petitioner wanted an explanation as to why it appeared that MP position had more valid votes than MCAs positions, then he ought to have had an analysis for all elective positions. It would be simplistic to assume that all elective positions must have the same number of valid votes, given the explanations proffered on the issue of differences,” observed the judge.

The court noted that from the analysis of the evidence in court, it was abundantly clear that the issues the petitioner raised were adequately explained.

He said the errors captured could did not affect the outcome.

“These were errors in transposing the results from Forms 35A to B, summation errors and in the case Rirumi SDA primary School 01 & 02 the exchange of results between the two stations. These errors could not affect the results of the election for the member of National Assembly; West Mugirango Constituency,” said the judge.

Three weeks ago the election had dismissed the petitioner’s application seeking an order for recount and scrutiny of the votes.

Mogaka was represented by team of lawyers led by lawyer Danstan Omari, Samson Nyaberi, Shadrack Wambui and Omaiyo Mogaka.

The court ordered the petitioner to pay cost of the suit.

THREE TAKE ON SAFARICOM OF SHIFTING PROFITS TO TAX HEAVENS TO THE DETRIMENT OF KENYANS.

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Safaricom Plc M-pesa product.

BY SAM ALFAN.

Three Safaricom subscribers have taken on the giant telco accusing the company of among others, transfer pricing by unlawfully removing money belonging to M-Pesa account holders from Kenyan and shifting it to low tax jurisdictions.

In a case filed under certificate of urgency, the three claim that Vodafone Group and the related companies have made money in Kenya and should, therefore, not be allowed to ‘cart away’ the money out of country but plough it back into the local economy.

S.Gichuki Waigwa, Lucy Nzola and Godfrey Okutoyi say the carting away of billions has reduced the Tax-to-GDP ratio and long-term prospects for the Kenyan economy.

Further, they claim that the move has increased Kenya’s public debt, thereby unnecessarily leading to higher taxes being imposed on taxpayers. 

The trio through their lawyer senior counsel Wilfred Nderitu want the court to compel the company to refund M-Pesa account holders more than Sh305 billion, which they said the company admitted from March 2019 and March 31, 2020.

The subscribers have further accused the Central Bank further of failing to notify other regulatory agencies that the consistently high profits that Safaricom reported were largely being derived from MPesa Account holders’ funds through theft of interest and investment income generated using their monies.

“The Central Bank was at all times well aware that these illegal and unlawful circumstances would ultimately lead to erosion of the shareholder value of Safaricom’s shareholders,” the petition reads.

It is their argument that the transfer pricing between Safaricom Plc on the one hand and the Vodafone Group Plc and its subsidiaries on the other hand was fraudulent, contrary to the relevant OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations.

They claim the company manipulated and failed to observe the “arm’s length” principle as to the setting of prices approximate to those set by unrelated parties for comparable goods or services and under comparable circumstances in an open and free market and therefore engaged in tax evasion.

The three have sued Safaricom and its affiliates including Vodafone Group Plc, Vodafone Kenya limited, M-pesa Holding Company limited and Vodafone International Holdings B.V.

They further wants the High Court of Kenya to declare that the Fuliza overdraft service is an illegal and unlawful service for lack of a proper and effective regulatory framework, leading to predatory lending through the charging of usurious interest rates.

“A further Declaration that the Fuliza overdraft service has since inception on-lent, and continues to on-lend, to M-Pesa Accountholders funds belonging to non-borrowing M-Pesa Accountholders without their consent in contravention of the Data Protection Act,” seeks the duo.

They further wants the high court declare that the misappropriation of M-Pesa Accountholders’ funds and the theft of interest and investment income derived from such funds inevitably resulted in the erosion of the value of the shares of Safaricom Plc. 

The petitions claim that in January 2009 by the Government through the then Permanent Secretary in the Ministry of Finance Joseph Kinyua, and by the Central Bank of Kenya, stated that M-Pesa Service was risk-free, safe and reliable.

However, they say the statements and were false and made with the intention that they would be acted upon by M-Pesa Accountholders and Safaricom shareholders, and that they were so acted upon to the detriment of the Accountholders and the shareholders.

The three wants an order for a determination of the appropriate transfer method applied in respect of the transfer pricing transactions between Safaricom Plc and the Vodafone Group Plc and their associated companies and a re-computation of the appropriate respective prices in accordance with the Kenyan Income Tax (Transfer Pricing) Rules, the OECD Guidelines and the “arm’s length” principle.

“A declaration that the Safaricom M-Pesa Terms which purported that the Registration and Acceptance Form together with the Conditions of Use constituted a binding agreement between Safaricom Plc, M-Pesa Holding Co., Ltd and the M-Pesa Accountholders were null, void and of no legal effect ab initio,” the petition reads.

The three have also sought the lifting the corporate veil of Safaricom Plc, the Vodafone Group Plc, Vodafone Kenya Limited, M-Pesa Holding Company Limited, Vodafone International Holdings B.V., M-Pesa Foundation Charitable Trust, Safaricom Foundation Charitable Trust and Carepay Limited.

“A finding that the Directors of Safaricom Plc, Vodafone Kenya Limited, M-Pesa Holding Company Limited and Carepay Limited were in breach of Sections 140, 143-146 (both inclusive), 168 and 1002 of the Companies Act (No. 17 of 2015) as to Directors’ duties and the prohibition against fraudulent trading,” seeks the duo.

They contend that they suffered the following other forms of injury, loss and damage.

The duo further contend that if they had been receiving the income derived from their real money, they would not have had to be borrowing money which was essentially their own, through overdraft or savings and loan service the Fuliza Service. 

They state that they have been made aware of the probable highly detrimental financial consequences that this suit may have for various Defendants in the suit, in view of the magnitude of the decree that may be passed against them, or some of them. 

Accordingly, the three argue that without prejudice whatsoever to the foregoing in any respect, that they would at this stage be amenable to exploring an option that is good for all the parties in the suit, such as the conversion of debt to equity.

DEYA DEFENDS HIMSELF OVER CLAIMS OF CHILD TRAFFICKING.

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Televangelist Gilbert Juma Deya Milimani Magistrate Courts in Nairobi./PHOTO BY S.A.N.

BY SAM ALFAN.

Televangelist Gilbert Juma Deya has dismissed claims of being involved in child trafficking.

Giving his evidence before senior Principal Magistrate Robinson Ondiek, Deya said the criminal charges brought against him by the state does not contain evidence linking him to the five children.

Led by his lawyer John Swaka, the preacher said the evidence allegedly took place in 2002 when he was not in Kenya.

He said he was then in the United Kingdom and that he never authorised anyone to give the children his name or obtain their birth certificates using his name.

He told the court that his wife Mary Deya was charged with the same offence of child trafficking but was acquitted.

Deya further stated that despite the children being found in his house in Mountainview estate in Nairobi, he was not aware who brought the children in the house.

“I did not process a birth certificate for the alleged children and that the DNA result did not show that the children were mine,” said Deya.

He said he has no connection with the five children. Deya also denied having visited several clinics in Nairobi.

He said he never registered the children as his own as claimed by the prosecution.

He asked the court to acquit him for lack of evidence, saying he has never engaged himself in child trafficking.

“The ingredients of the offence have not been proven to satisfaction,” said the bishop.

In the case Deya is charged with five counts of stealing five children, all aged under 14 years, between 2002 and 2004, at Mountain View Estate, Nairobi.

Lawyer Swaka submitted that the prosecution presented several exhibits that failed to show the main ingredient that would place his client at fault and guilty beyond any reasonable doubt.

“There was no evidence pointing to the offence laid out against the accused person,” said Sawka.

The lawyer told the court that the prosecution placed the reliance on a number of witnesses who failed to show that Deya received and harboured the children.

Deya was deported into the country in 2017 after the Director of Public Prosecution obtained a warrant for his arrest.

The criminal case will proceed on the 13th of March when the prosecution will cross-examine Deya.

HAJI ELECTED REGIONAL PROSECUTORS PRESIDENT.

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Director of Public Prosecution Noordin Haji who has been elected the President of the Eastern Africa Association of Prosecutors (EAAP).

Kenya’s Director of Public Prosecution Noordin Haji has been elected the President of the Eastern Africa Association of Prosecutors (EAAP).

Haji was elected during EAC Prosecutors 10th AGM and Annual Conference in Kampala, Uganda. 

While welcoming his election, Haji said he will advance innovative strategies to tackle transnational organized crime, enhance Regional and International cooperation and collaboration in the prosecution of transnational organized crimes such as terrorism, corruption cybercrime and human trafficking among others.

“I am deeply honoured to stand before you today as the newly elected President of the Eastern Africa Association of Prosecutors. My heartfelt gratitude to each and every one of you for placing your trust in me and giving me this incredible opportunity to steer the Association towards realising our common vision of “enhanced regional cooperation in preventing and combating Transnational Organized crime,” said Haji after being elected.

Haji thanked the out-going administration under the stewardship of Tanzania’s DPP Sylvester Mwakitalu.

“Your administration re-invigorated our efforts in the execution of our objectives, bolstering cooperation not only in East Africa, but also in both Southern and Central Africa respectively.  It is therefore my hope that we will build on your legacy,” added Haji.

The Kenya’s chief prosecutor said that the unique opportunity given to him to serve as the President of the Association is a responsibility he will duly undertake to ensure that the objectives of the Association are met.

“As the EAAP exponentially grows, I affirm my commitment to strengthening regional cooperation through the following initiatives,” said Haji.

Haji pointed out that it is critical to strengthen the association membership as he proposed to open up the Association to individual prosecutors across the region.

He said the prosecutors will be subject to registration as individual members and nominal payments that will be used to strengthen association financial independence.

Haji further said that through organised membership, they shall strive to enhance capacity building through quarterly joint trainings in thematic areas. (Use this as an opportunity to talk about PTI and the opportunity it presents to the association).

“Let us integrate rapid advancements in technology within our operations. As the world around us continues to change as a result of these advancements, so must we. Through digitisation we can streamline our processes and procedures as a region as well as improve communication amongst ourselves,” he added.

He recognized efforts in effective cooperation are significantly hampered by our differing legislative structures.

“It is therefore high time for us as criminal justice practitioners to explore avenues that will allow for hybrid legislative systems that will support our efforts. I firmly believe that this approach, however novel, will represent a significant step towards stamping our mark as a regional association,” he added.

He called for the call for robust information sharing networks and pledged to engage member states and partners towards realising this platform.

“As we integrate our efforts as National Prosecution Authorities, I believe that we must undertake joint capacity building and training exercises with a view of ensuring uniform development across our respective jurisdictions,” Haji added.

He said that his election was acknowledgement of the important place, which Kenya occupies in the criminal justice arena in Africa.  

“The ODPP expresses its gratitude to the members of the EAAP and pledges to strengthen regional cooperation in Prosecution of transnational organized crimes,” said Haji.

Other elected officials include, DRC and Rwanda will serve as joint Vice Presidents, Tanzania as Treasurer, Uganda as Secretary General, while Mozambique will serve as General Counsel.

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