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TRIO IN ‘MISCHIEF’ CHARGED FOR SPYING ON DCI.

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BY SAM ALFAN.

Three men has been charged with an attempt to spy on Directorate of Criminal Investigations.

Morris Otieno Ooko, Kimilu Martin Mwenze and Benard Ojiambo appeared before Milimani Senior Principal Magistrate Kennedy Cheruiyot and denied the charge.

The trio were accused that on June 8 this year at Directorate of Criminal Investigations (DCI) headquarters in Nairobi, jointly with others not before court, they committed an act of mischief by interfering and fixing a communication transmitter antennae to the government antennae at DCI headquarters, without authority.

They were released on a bond of 1 million or a cash bail of Sh300, 000 pending hearing and determination of their criminal case.

Chief Inspector from DCI headquarters is among officers listed to testify against the three for their attempts to spy on DCI Kenya.

TRADER LOSES OVER SH43 TO STATE AFTER FAILING TO EXPLAIN SOURCE OF FUNDS.

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BY SAM ALFAN.

A Nakuru businessman accused of smuggling cigarettes from Uganda worth millions lost over Sh43 million to the state after a judge ruled that the money held at Equity bank are proceeds of crime.

Justice James Wakiaga directed the money belonging to Josphat Kamau be forfeited to Asstes Recovery Agency after he failed to explain the source of the money.

Justice Wakiaga said that the businessman failed to produce any license issued to him by relevant authorities in support of the business he was engaged in and the only logical conclusion was that he was involved in the smuggling goods.

“Therefore am satisfied that Assets Recovery Agency has proved based on the evidence that the funds held in Kamau’s bank accounts in the absence of any rebuttable evidence to the contrary are process of crime and therefore reliable to forfeiture to the state,” ruled Wakiaga.

The judge observed that any business concern must have records in support of it or its operations.

“It is not enough for Kamau to state that he has been in business since October 29, 2014 and that he owns heavy commercial vehicles for commercial use finance by financial institutions and the same was under evidential burden to show to the court how the said loans are serviced and the source of the funds used in servicing the same,” the Judge said.

Judge Wakiaga further said that Kamau failed to counter the evidence adduced against him by ARA that his motor vehicles were modified for the purposes of concealing uncustomised goods and the bank statements confirming cash deposit over the period of the inquiry.

In his defence, Kamau informed the court that he was a registered businessman in Nakuru trading under as Tifphat transporters and that he was a registered owner of three motor vehicles jointly owned with Equity bank limited as the financier for the use in his transportation and cereal business.

The ARA Investigations officer Sergeant Fredrick Musyoki told the court that they received information and conducted investigations which established that on October 26, 2019 Kamau’s three motor vehicles were impounded snagging 390 cartons of Supermatch cigarette worth Sh 9,750,000 which had been concealed in a disguised place customized for smuggling goods.

Kamau was charged jointly with his driver with two counts of smuggling goods and importing of restricted goods contrary to East Africa community Customs Management act 2004 before Eldoret chief Magistrate Court.

The investigation officer told the court that further analysis of Kamau’s bank statement reviewed several suspicious transactions which coincided with the border crossing of his two motor vehicles totally to grand total of sh 24,290,000 and that the deposits were mainly made in trenches below sh 1 million to evade the reporting threshold as per section 44 and 4 schedule of PROCAMLA.

AGENCY TO PAY KRA SH643 MILLION IN TAXES IN FAILED DAM PROJECT.

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BY SAM ALFAN.

A state agency at the centre of multi-billion Itare Dam contract in Nakuru County has been ordered to pay Kenya Revenue Authority Sh 643 million worth of taxes.

In a ruling delivered by a Nairobi Tax Tribunal ordered Central Rift Valley Water Development Agency (CRWDA) which had contracted Italian firm CMC Di Ravenna to construct the multibillion Itare Dam in Nakuru to pay the tax arrears after rejecting it’s appeal to stop it from paying the taxes.

“The Appeal be and is hereby dismissed. The Respondent’s objection decision dated May 14, 2020 confirming an assessment for the sum of Sh. 643,394,426.00 be and is hereby upheld in its entirety”, ruled Tribunal.

Tribunal members chairman Mahat Somane, Wilfred Gichuki, John Wangari, Rose Namu and Timothy Chesire ruled that Central Rift Valley Water Development Agency (CRWDA) was supposed to withhold tax for management and professional fees in respect of the dam in Nakuru and another project in Elgeyo Marakwet known as Sabor Iten tambach Water supply project (phase 2) which was undertaken by Belgian firm Aspen International SPRL.

They that found that the agency assessment was proper in law and their appeal lacks in merit.

The Tribunal further found that KRA was therefore well within its rights as the assess or tax obligation in his assessment against the said state corporating adding that it was supposed to withhold tax from the management and professional fees to the contractors.

“In any event, by failing to include the withholding taxes due the Appellant (CRWDA) herein fell into error. The Respondent (KRA) is therefore well within its rights as the assessor tax obligation in his assessment against the appellant; that the appellant was supposed to withhold tax from the management and professional fees to the contractors, “held the tribunal.

The Mahat lead tribunal also dismissed the argument by the state agency that the project was exempt from withholding tax as baseless, because there was no evidence that the exemption was granted by the Treasury.

Central Rift Valley Water Development Agency had argued that it was not responsible for the preparation of payment vouchers and as such, it would have nothing to return to KRA since it was not in control of the funds.

KRA on its part said the agency was responsible for preparation of payment certificates which were forwarded to the Water ministry for processing of payment and the failure to account for withholding tax as it was preparing the payment certificates, the agency failed to discharge its obligations as the employer of the contractor.

The agency had entered into a separate contract with CMC Di Ravenna for the execution of the Itare Dam Water supply and the Belgian company in May 2015.

KRA stated that CMC Di Ravenna was not exempt from income tax, a position confirmed by the Treasury in a value added tax master exemption letter.

The taxman further said the services offered under the contracts for the two projects were in the nature of management and professional services as defined under the income tax act.

Tribunal added that the appellant upon being invoiced will begin processing the payment by preparing payment certificates, which should include as we have said the amounts due to the contractor and the amount to be withheld.

GARISSA COUNTY GOVERNMENT RECEIVED SH233. 5 MILLION FROM WORLD BANK, COURT TOLD.

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BY SAM ALFAN.

Nairobi Anti-Corruption Court has heard that Governor Ali Korane administration received Sh 233million as conditional grant for the Kenya Urban Support Program (KUSP) from World Bank.

Vincent Onyango Ogutu, a former co-ordinator for the Urban Support program andthe first witness to testify in Korane graft case confirmed that the said amount was dispatched to the county for the urban development.

“The purpose of the grant of over Sh 233 million to Garissa was to finance infrastructure investment in the urban areas in municipalities,” said Ogutu.

The witness also informed the court that World Bank had released at total of sh 11.5 billion to 45 counties for urban upgrading.

“The project in question was a conditional grant and the purpose of the project was supposed to establish and strengthen urban institutions to deliver improved services and infrastructure in 45 counties with exemptions of Nairobi and Mombasa,” said Ogutu.

The witnesses further table in court a letter dated October 22,2020 showing the release of the disbursement grant for the year 2018 to 2019 that was signed by Treasury Principal Secretary Charles Mwaura.

However, the magistrate adjourned the matter to June 28 due to documents hitch.

This is after Korane’s lawyers Ahmednasir Abdullahi and Issa Mansour confirm to court they did not have about 300 copies of the documents the witneses was to rely on while giving his evidence.

The lawyers sought to have the case which was schedule to be heard this week takeout of the hearing list in order to obtain the documents from the EACC investigating officers.

In the case Korane is charged alongside the county finance chief officer Ibrahim Nur Malow, Head of Treasury Mohammed Ahmed Abdullahi, Municipality County Executive Officer Abdi Shale and the Municipal head of accounting Ahmed Abdullahi.

The accused person have since denied the graft charges relating to misappropriation of Sh 233 million for a World Bank-funded project.

The charges involve a conspiracy to commit an offence of economic crime, misappropriation of public funds and willful failure to comply with law relating to management of funds.

They allegedly committed the offences between February 25 and September 30, 2019.

WHY NAKURU MEDIC WANT UHURU TO SWEAR IN SIX JUDGES

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BY SAM ALFAN.

A Nakuru doctor has moved to court seeking to stop Chief Justice Martha Koome from assigning any work to newly appointed Judges.

In a petition, Dr Magare Gikenyi Benjamin wants the court to bar the CJ from assigning all 34 judges who were gazetted, appointed and sworn in on Friday at Statehouse, any work pending hearing and determination of the petition.

“A conservatory order of prohibition prohibiting Chief Justice, its agents or assigns from assigning duties to 34 judges in the gazette notice no. 5233, 5234 and 5235 pending determination of this application inter-parties and thereafter pending hearing and determination of this Petition or such orders of the court may issue, ” Dr Magare urged the court.

He also wants Judiciary Chief Registrar Anne Amandi to provide email addresses of all the 34 judges for purpose of serving with directions of the court.

Dr Magare argues JSC conducted grueling interviews in 2019 and recommended the appointment of 41 judges.

However, President Uhuru Kenyatta refused to appoint the said judges leading to court battles.

Last week President Kenyatta appointed 34 judges, leaving out Judges Joel Ngugi, George Odunga, Aggrey Muchelule and Weldon Korir who were among recommended judges for appointment.

Dr Magare terms the President’s move as unconstitutional as there is no room of cherry picking JSC’s nominees once forwarded to him.

“The president is disobeying court orders and constitutional guidelines and he has no powers to indirectly cancel the appointment of the judges,” says Dr Magare.

The medic, who is a consultant and general surgeon also says that Kenya is a democracy governed by the rule of law and it’s not a failed state or a dictatorial or authoritarian state where president decides what to do even in the face of straightforward constitutional requirements.

“If the same is left out unabated, the independent of the Judiciary which Kenyan hold dearly will be lost or eroded,”.

He adds that the six judges and Magistrates Judges Joel Ngugi, George Odunga, Aggrey Muchelule, Weldon Korir, Evans Makori Kiago and Judith Omange have been discriminated against article 27 of the constitution.

He adds that from the forgoing, the actions of the president, chief justice and attorney General will lead to the loss of public confidence, anarchy, outright discrimination and abuse of power and political class against independent institutions.

“It is important to maintain constitutionalism, rule of law, law and order, good governance, non-discrimination, protecting of the constitution and this matter is of public interest,” he added.

According to the Sergon, the cherry-picking of the judges and leaving others takes away powers of Judicial Service Commission and independence of the Judiciary.

He further added that presidency is national office and should not be reduced to who is at the helm of the Chief Justice office.

HOW PAST DECISIONS CAME TO HAUNT JUDGES DURING INTERVIEWS.

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BY SAM ALFAN.

The recent interviews of judges conducted by Judicial Service Commission had proved that decisions made by judges and magistrates may came to haunt them in future while applying for the promotions.

During the interviews, the judges who sought to join the Supreme Court were put to task over their past decisions, some of which are controversial although the concerned officers stood by their judgements.

Commissioner David Majanja who also sits at the commercial division of the High Court surprised many applicants by putting in to task each of them over the past rulings and judgments.

Chief Justice Martha Koome, was for example put into task to explain the Court of Appeal’s decision to sit at night to overturn a decision by Justice George Odunga, who had ruled that the appointment of returning officers, as appointed by the electoral body was unprocedural.

But Justice Koome stood her ground and said she had to obey the orders of the President of the Court of Appeal, who happened to be Attorney General Kihara Kariuki and a commissioner at JSC.

CJ Koome defended the decision saying the matter was urgent and the country was staring at a crisis.

“My lord, the Attorney General was the President of the Court, then, I was working on the bench in Mombasa and Malindi but as you all know the Court of Appeal is a circuit court, even if you’re in Mombasa you can work in Nairobi,” she said.

The judge said on the particular week all the judges were all in Nairobi because the next day was a public holiday for the repeat elections to be held.

Judge Koome said she was called by the Registrar of the COA a Mr Serem and told her that the president had certified the matter urgent and empaneled the bench, including her, to hear the matter urgently.

High Court Judge Said Chitembwe was also put into task to explain how he reached on his decision to set free a 24-year-old man who had been convicted for defiling a 13-year-old girl.

The judge defended his decision arguing that a judicial officer should look at the circumstances of the case and the ruling was based on the practicability of the issue more than the legal framework.

“I did my best to deal with the case at hand and I can tell you for sure that despite all these hullabaloos, the number of magistrates who called to say I freed them from the shackles of Sexual Offences Act are many,” Justice Chitembwe said.

According to him, judge Chitembwe said the judge, the two had consensual sex, which should never be termed as defilement.
Employment and Labour Relations Court Judge David Marete faced the fate during the interviews.

From events and questions regarding various decision made by individual judges, it signals in future and sitting Magistrate or a judge will account for the decisions he or she makes whenever they applies for any promotion from one level to another

UHURU SWEARS IN JUDGES IGNORING PROTESTS FROM, KMJA, LSK AND KENYANS.

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BY SAM ALFAN.

President Uhuru Kenyatta on Friday swore in 34 judges leaving out six others despite protestations from across section of Kenyans.
President Kenyatta swore seven judges to join the Court of Appeal and the rest to join the Employment and Labour Relations court as well as Environment and Land court.

Earlier in the day, Kenya Magistrates and Judges Association and Law Society of Kenya has joined their voices in condemning President Kenyatta for leaving out the six judges, who had been recommended by Judicial Service Commission (JSC).

KMJA through Secretary General Derrick Kutto said the decision by the President to leave out the six is therefore baffling, unfounded and patently unconstitutional.

“The President is setting a very bad precedent for this country, one of not following the rule of law and disobedience of court orders and it is against this background that KMJA calls upon the President to immediately gazette the six that were left out,” he said.

Kutto said once the JSC has recommended names for appointment, the President has no power to tinker with the names.

He added any such attempt amounts to interference with the Institutional Independence of the JSC, violation of the Constitution and in particular, the rule of law which the President swore to uphold.

LSK through Chief Executive Officer Mercy Wambua said the action of the President to omit or fail to appoint the 6 Judges is in contravention of Article 166 of the Constitution.

She added that the move was also against a finding in Constitutional Petition No. 369 of 2019, Adrian Kamotho Njenga –v- Attorney General, where the Court held that once the Judicial Service Commission makes recommendations, the President has no other option but to formalize the appointments.
CEO Wambua said the President cannot change the list, review it or reject some of the names.

“President must appoint the persons as recommended and forwarded to him by the Judicial Service Commission,” CEO Mercy added.

The Council said it is concerned and condemns the failure by the President of the Republic of Kenya to appoint all the Judges as required under Article 166 of the Constitution.

“This is an outright contravention of the Constitution of Kenya, a blatant disregard of the Rule of Law and undermines the independence of the Judiciary. We wish to remind the President that the Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government. Further, that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the Constitution,” Wambua said.

The council called upon President Uhuru Kenyatta to comply with and uphold the Constitution by appointing the remaining 6 Judges without any further delay failure to which we shall move to Court for appropriate orders.

The Council further notes with great concern the continued attacks on the Judiciary by the President of the Republic of Kenya as well as by the members of the Executive. In particular, the Council takes great exception to the remarks made in the President’s address to the Nation on the occasion of the 58th Madaraka Day, held at the Jomo Kenyatta International Stadium, Kisumu on June 1, 2021.

In his remarks, the President noted that, indeed Kenya’s Constitution has been celebrated far and wide as a progressive Constitution but soon thereafter went on a rampage onslaught against the Judiciary for among others, its role in nullifying the 2017 Presidential Elections and in the Judgment on the Building Bridges Initiative or Constitution Amendment Bill, 2020.

WHY UHURU’S MOVE TO BLOCK SIX JUDGES HAS BEEN CONDEMNED.

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BY SAM ALFAN.

President Kenyatta’s decision to block the appointment of six judges as recommended by the Judicial Service Commission (JSC) has been criticized by a cross-section of Kenyans who describe the move as outright illegality.

Among the judges who were left out are Justices Joel Ngugi and George Odunga, who were among a bench of five judges that quashed President Kenyatta’s push to amend the constitution through the Building Bridges Initiative (BBI).

Others who were left out are High Court Judges Weldon Korir and Aggrey Muchelule and magistrates Evans Makori Kiago and Judith Omange, both of whom had been appointed to the Employment and Labour Relations court.

Politician and law scholar Kithure Kindiki termed the decision as unfortunate saying the public humiliation of the six judges is the biggest single attack on the Judiciary yet.

“I shudder to imagine how litigants will view these judges when they appear before them tomorrow morning. Any adverse information on these judges ought to have been brought during JSC hiring for consideration before the list was forwarded for appointment,” he said.

The lawyer, who is also Tharaka Nithi Senator said the role of hiring judges is the sole and exclusive constitutional responsibility of the JSC and the president’s role in it is to mandatorily appoint them upon recommendation by JSC

The appointment comes two days after President Kenyatta unleashed an attack on the Judiciary during the Madaraka Day celebration in Kisumu. He attacked the Judiciary over nullification of his election in 2017 and decision by the five judge bench to declare his own initiative of BBI as unconstitutional.

“From nullification of a presidential election in 2017 to an attempt to stop the will of the people as expressed through BBI, the Judiciary has tested our constitutional limits,” the President said.

Veteran lawyer Ahmednasir Abdullahi termed the President’s move as unacceptable, saying a big test for Chief Justice Martha Koome and JSC was a watershed moment in the history of judicial independence.

“I think CJ Koome and JSC must have an emergency meeting and resolve unanimously to engage H.E UHURU with one agenda: “Appoint all 40 judges OR none will come for swearing in State House,” said Ahmednasir.

He added that Justices Joel Ngugi and George Odunga are prospective Justice of the Supreme Court and potential chief justice and they shouldn’t worry about this transient Act of executive skullduggery.

While condemning the President’s move, senior counsel Martha Karua said cherry-picking of JSC appointees may amount to deliberate intimidation of judiciary especially in view of the uncalled for attacks of the institution by the President in Kisumu coupled with the pending BBI appeal we must stand firm to protect the constitution.

Karua added that Kenyans cannot leave the defence of constitutionalism and the rule of law to judiciary and JSC alone. “All Kenyans of goodwill must join hands to protect our independent institutions and to protect the constitution.”

Karua, who is a former Justice Minister further added that Attorney General Kihara Kariuki represented the executive at the commission when these appointments were made and that is where the executive’s sentiments should have been tabled and JSC has the mandate to recommend appointees and not the president.

Prof Makau Mutua on his part said BBI judges Joel Ngugi and George Odunga have been denied elevation to the Court of Appeal and President Kenyatta can’t choose which provisions of the constitution to obey or disregard. 

He added that gazetted judges should decline their appointment until all JSC-recommended judges are included.

Rarieda Member of Parliament Otiende Omollo said the President Cannot Select Which Judges to Gazette after JSC Recommendation.

Senator Kipchumba Murkomen added his voice by congratulating all the Judges whose appointments were confirmed after needless and inordinate delay.

“In a blatant violation of the Constitution the President is using the opportunity to punish Judges he doesn’t like and this is a very dangerous path. He is setting a bad precedent,” he tweeted.

He further added that he was not so worried about what Uhuru has done on judicial appointments but he was more worried by the thought that all judicial appointments in the future will depend on the wishes of the president. Makes nonsense of Judicial Independence under our Constitution.

Lawyer Muthomi Thiankolu said the President’s message is that he will thwart the career progression of any judge or magistrate that decides cases against the executive or political establishment of the day. Irrespective of whether the executive or political establishment has breached the law.

“Judges are moved by law, facts, excellent legal research and persuasive advocacy or argument. Not threats, intimidation, insults or tirades. That’s why the Constitution gives them security of tenure,” he added.

On his part, Law Society of Kenya President Nelson Havi said once President Uhuru Kenyatta leaves office in September, 2022, Justices Muchelule, Korir, Ngugi and Odunga will then ascend to the Court of Appeal.

“For Chief Justice Emeritus David Maraga it was all 40 Judges or none, a stand supported throughout by LSK. Chief Justice Martha Koome has weakened the Judiciary by conceding to the rejection by Uhuru Kenyatta of four Judges and two Magistrates,” he tweeted. 

FIRM DIRECTOR DENY SH700 MILLION FRAUD CHARGES.

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BY SAM ALFAN.

A British investor has been charged before a Nairobi court with conspiracy to defraud Prime Bank limited Sh 700 million.

Jayesh Kumar Kotecha and Midland Hauliers limited appeared before Senior Principal Magistrate Bernard Ndungi and denied several counts.

He is charged alongside Guarav Jayesh Kumar Kotecha and Super Hakika limited who were not present in court.

The absence of Kotecha, who is said to be a student in the United Kingdom, prompted the court to issue a warrant for his arrest.

The charges allege that on April 29, 2019 at Midland Hauliers limited (under administration) offices along Kyangombe road in Nairobi being directors and company respectively, jointly conspired to transfer three vehicles.

The court heard that they committed the offence with intent to defraud Prime Bank Limited Sh706, 980, 273 by transferring three motor vehicles from Midland Hauliers to Hakika limited without the administrator’s authority. 

The prosecution told the court that on that the same dates in the year 2019 at Midland Hauliers, the accused persons disposed the three vehicles from Midland Hauliers to Hakika limited without the administrator’s authority.

Kotecha is further alleged that on April 29, 2019 at Midland Hauliers limited offices being director of the company performed a management function to transfer three motor vehicles from Midland Hauliers to Hakika limited without the administrator. 

Jayesh and Midland Hauliers are also facing charges of failure to submit statement of the company affairs to the appointed administrator and failure to give the appointed company administrator information concerning the company contrary to section 679(3)(a) of insolvency Act. 

They were released on a bond of 5million or cash bail of 2 million pending their criminal trial. 

Jayesh was also directed to deposit his passport in court.

COURT STOPS TRIAL OF SONKO IN SH10 MILLION GRAFT.

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BY SAM ALFAN.

The High Court has stopped the prosecution of the former Nairobi Governor Mike Sonko over the Sh10 million graft allegations.

Justice James Wakiaga of the anti-corrupton division suspended the trial, albeit temporarily pending hearing of the petition filed by Sonko.

“I do and hereby grant the petitioner temporarily conservatory orders upto June 23, 2021 when the matter is scheduled for mention for further directions thereon. The order is in respect of ACCNo., 2020 only,” ruled Judge Wakiaga.

Soonko challenged his prosecution before the High Court accusing trial magistrate Douglas Ogoti of bias. He wants him stopped from handling his trial.

He argued if Ogoti is allowed to continue hearing the case against him, he stands to suffer irreparable damage.

The former governor explained that he once asked the magistrate to recuse himself from his case but he dismissed the application.

“The petitioner has reasonable apprehension that during the trial of his case before chief magistrate Douglas Ogoti, good counsel, fairness and impartiality will not prevail and therefore the petitioner does not feel that his fundamental rights to a fair trial will be respected in the said court,” he said.

Sonko wants the case to be assigned to another magistrate of similar jurisdiction to ensure a fair trial.

In the case before the court, Sonko was accused of demanding Sh10 million bribe from Web Tribe Ltd through ROG Security Limited as an inducement to facilitate payments by the county government.

Web Tribe Ltd had been contracted by the Nairobi City County Government six years ago to collect revenue.

The governor is said to have committed the offence between January 10 and 19, 2019 within the city