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KIBOKO RESIDENTS NOW WANTS KPC STOPPED USING CONTROVERSIAL LINE AFTER OIL SPILLAGE.

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Kiboko Water Resource Users Association Lawyer Apollo Mboya at Milimani Law Court registry.

BY SAM ALFAN.

Kiboko Water Resource Users Association has moved to court seeking to stop Kenya Pipeline Company limited from pumping or transporting petroleum products through Line V Oil Pipeline.

Through lawyer Apollo Mboya, the association wants the court to stop and order KPC to cease pumping, transmitting and transporting petroleum products or any form of hydrocarbons through Line V Oil pipeline, pending hearing and determination of the petition.

Further, the association wants pending hearing and determination KPC to file in court a copy if the project report detailing the capacity and scope of the project for construction of line V, including environmental impact assessment report submitted by the KPC in the application for a construction license.

They are also seeking KPC to supply a copy of Environment Impact Assessment License No. NEMA/EIA/PSL/556 dated September 12, 2014 issued to KPC by the National Environment Management Authority (NEMA).

The residents are also demanding a Hydrological report assessment report detailing the underground spread extent and any possible movement of the pollutants consequences of oil leak and spillage at Kiboko area in Makueni County and Samburu area in Kwale county and intrusion at Mlolongo Town on the border of Nairobi County and Machakos County.

The association also wants to be furnished with the acceptance letter of the condition by NEMA dated July 28, 2014 and all the reports and plans filed with NEMA pursuant to the restoration order dated May 16,2019.

In the court documents, the resident allege that KPC has omitted, failed and refused to construct KM 304 line V oil pipeline in accordance to the documents submitted in the application for construction permit.

The EIA report had indicated that NEMA, Water Resources Authority (WRA) and Energy and Petroleum Regulatory Authority (EPRA) was to install a fibre optic cable digital pipeline leak detection system, for real time monitoring.

They said the oil leak and spillage from KPC’s pipeline at Kiboko area, which has been continuing for a very long time without a detection system, has polluted and continues to pollute the soil, the surface and the underground water comprising among other aquifers and springs flowing into Kiboko River and the Athi River.

“The oil leakage and spillage site is catchment with porous volcanic formation with high water table and the source of water serving the residents, downstream users and ecosystem as it drains into Athi River”, the Association said.

Lawyer Mboya told the court that there was also a recent intrusion of the same pipeline near Mlolongo town on the border of Nairobi County and Machakos County.

They added that NEMA ssued a Restoration Order dated May 16,2019 directed KPC while expressing concern on the integrity and safety of the pipeline which is barely one year since its commissioning.

This was after another petroleum oil product leakage and spillage was detected on March 31, 2019 at KM 40.5 on the same pipeline in Samburu area, Kwale County.

“The restoration order dated May 16, 2019 issued by NEMA after the oil leakage and spillage at Kiboko did not address the issue of compensation to the victims of the activities of KPC”, stated the court documents.

They said the oil leakage and spillages poses serious environmental and health risks to the residence of the affected areas who have been left destitute on account of lack of alternative water sources for domestic use and irrigation, thereby rendering the affected and surrounding areas unsafe for human habitation.

Wilson Mbithi Munguti the chairman of Kiboko Water Resource association said he mobilized residents and reported the matters to the relevant authorities.

Mbithi said on or about March 30, this year, the members and residents of Kiboko started to experience traces of oil in the water coming from various springs in the area.

Upon further investigations from samples taken from Kiboko mainsprings, Earth pan (mutiso) , Kathimani springs among others between April 5 and May 14 ,2019  , the existence of dangerous levels of petroleum hydrocarbons in the soil, the surface and the underground water was confirmed arising from the oil leak and spillage.

According to court documents, on April 8 this year, WRA issued a compliance order No. 002421 directed to Kenya Pipeline Company Limited requiring respondent to clean up oil spill area within Kiboko springs water catchment and to remove the soil containing the oil product to safer grounds.

The cabinet for Water and Sanitation in a statement to the senate standing committee on energy confirmed that the spillage site geographically lies at 37M 0356113 , 9865377(S01.217663, E037.706752) at an attitude f 935 metres above sea level and lies to the south of Nairobi -Mombasa Highway 400m south west of Kiboko springs within Kiboko springs catchment , Makueni county.

The cabinet secretary for water and sanitation further states that the said catchment has porous volcanic formation with high water table and it is the source of water serving the residents downstream users and ecosystem as it drains into Athi River.

DCI WANTS NAKURU COUNTY SECRETARY JAILED FOR IGNORING COURT ORDER.

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Directorate of Criminal Investigation headquarters Nairobi.

BY NT CORRESPONDENT.

The Directorate of Criminal Investigation has filed application seeking summons to be issued against the County Secretary, Nakuru.

In the application, the police want the county secretary to show cause why he should not be cited for contempt of court order and jailed for a period not exceeding one year.

It is alleged the secretary ignores orders issued in miscellaneous criminal application No. 2384-2019 by Milimani Chief Magistrate court on June 6, 2019.

In the case, the county secretary had been ordered to supply land investigating officer Sargent Japheth Kipngeno with books and records of Nakuru County Government related to Nakuru MUN BLOCK II/678, 679& 680.

The plots were hived off Nakuru MUN.BLOCK II/66 and despite the officer obtaining a search warrant, he was not supplied with the records.

The order also required the county Secretary to supply the officer with the report of Town Planning and Works Committee as contained in the minutes held on September 29, 2019.

The order had also directed the county secretary to supply letter of authority to dispose off council property referenced as C/18/97/EMK/1W dated September 17,1997 and letter from the Ministry of Local Government approving the council to dispose some property referenced C/114203/54 dated May 4, 1998.

But despite obtaining the order, the county secretary have not complied or communicated with the investigating officer or failed to give reasons for non-compliance.

The officer is investigating an offence of obtaining land registration by false pretence contrary to section 320 of the penal code.

This is after the matter was reported by the Director of Public Prosecution through a letter dated August 16, 2018.

The parcel of land Nakuru/municipality block 11/66 was fraudulently registered in the name of Kennedy Nyabwari Bosire and issued with a certificate of lease.

According to court documents, on January 9, the letter was dispatched to Nakuru County Government dated August 1, 2019 seeking to be provided with particulars of the ownership of the land.

BLOW TO CJ MARAGA AS COURT QUASHES SUSPENSION AGAINST KIAMBU MAGISTRATE KHAEMBA. 

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Kiambu Senior Principal Magistrate Bryan Khaemba with Judges and Magistrate Association Secretary General Derrick Kutto on Friday August 30,2019. PHOTO BY S.A.N.

Khaemba suspension was unlawful and unfair.

BY SAM ALFAN.

Chief Justice David Maraga has suffered a major blow after court found his decision to suspend Kiambu Senior Principal Magistrate Bryan Khaemba unlawful.

Employed and Labour Relations Court declared decision by CJ to suspend Khaemba as null and void.

“The suspension was unlawful and unfair”, ruled the judge.

Judge Byram Ongara said Maraga decision was in contravention of Articles 41,47(I) and 236 of the constitution and infringed Khaemba’s fundamental rights.

The employment judge quashed the decision by the Chief Justice contained on the the letter issued on June 13,2019 suspending Bryan Khaemba after he granted Kiambu Governor Ferdinand Waititu anticipatory of Kshs. 500,000 pending prosecution.

The court also issues a permanent injunction prohibiting Judicial Service Commission and the Chief Justice from implementing the decision contained in the Chief Justice’s letter dsted July 13,2019 and from taking any adverse against Khaemba pursuant to the said decision.

Khaemba will be paid all his salaries, allowances and given all other due contractual and statutory benefits withheld throughout the suspension period.

“Khaemba to continue in employment without loss of rank, status, all attached benefits and the JSC and CJ to pay him due some of money by November 11,2019 failing interest at Court rates to be payable from the date of this judgement till full payment and further to report to the JSC,CJ not later than September 9,2019 for appropriate deployment and assignment”, ordered judge Ongaya.

Court ordered Khaemba to serve Attorney General with the court judgement within 7 days to take appropriate action within his constitutional and statutory roles to correct the anomaly that the court identified in number of paragraphs as referred to in paragraph 15 of the Third Schedule of Judicial Service Act.

The judge in his 72 page judgement said Khaemba acted in good faith and has not been shown to have acted in bad faith or in interests outside his official roles and court found he did not violate articles 10,73,232 and 236 as was sought.

He said court was guided by section 45(1) of the Judicial Service Commission Act that the members of the Judicial Service Commission shall not be liable to any civil action or suit for or in respect of any matter or thing done or omitted to be done in good faith as a member of JSC.

Kenya Judges and Magistrate Association welcomed the court decision saying it was a reprieve to judicial officers who had been working on fear.

This decision is a big win not only for Khaemba but for the entire members of judicial fraternity, all the magistrate and judges.

“I dare say these are issues that has been put before the administration , these are issues have been put before Judicial service commission and Chief Justice. Am happy that now there has been a clear direction that JSC should come with clear procedures within the law”, SG Kutto said.

Speaking outside Milimani court building, Kuto added that many judicial officers out there are suffering and people have been working with a lot of fear because they feel that any time they get suspension without being given opportunity to explain themselves.

Khaemba trouble started after granting embattled Kiambu County Governor Ferdinand Waititu anticipatory bail orders on 23rd May this year.

It was alleged that Khaemba was not in a position to handle the file since he had indicated to his immediate boss that he was unable to go to work that day since he was unwell.

In his reply, the magistrate responded to the CJ saying that he felt better and decided to report to work at around 11 am.

He added that upon arrival to work, he did inform his superior that he had reported.

A day after giving his explanation, Chief Justice David Maraga sent him a suspension letter saying his explanation was unsatisfactory and that he had no right to handle the file since it was not assigned to him.

The letter also indicated that he was suspended without pay contrary to the Judicial Service Act.

Judge found that no provision requires an employee to be suspended on nil salary.

“The suspension did not safeguard the requires provisions. The petitioner was suspended indefinitely and was entitled to lament,” the judge ruled.

The judge further found that it was not contested that the CJ did not act in bad faith and had no personal vendetta against the petitioner.

The court ordered that Khaemba be paid accrued salaries, allowances and statutory benefits withheld throughout the suspension by September 1, and report back to work in his position by September 9, 2019.

TWO IN COURT OVER ATTEMPT TO DEFRAUD GIDJOY INVESTMENT LAND WORTH SH 994 MILION.

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Peter Gitau Muiruri and Peter Njoroge Kanika before Milimani Chief Magistrate where they pleaded not guilty to fraud charges on Thursday August 29,2019./PHOTO BY S.A.N.

BY NT CORRESPONDENT.

Two men have been charged before Milimani Magistrate court with attempt to fraud GIDJOY investments limited land worth over 944 million.

Peter Gitau Muiruri and Peter Njoroge Kanika before Milimani Chief Magistrate Martha Mutuku pleaded not guilty to the charges.

They are accused that on unknown datees jointly with others not before court they made a false allotment letter of the said land located at Donholm purporting it to be genuine signed by P. Amiani, a land administration officer.

The accused persons are also charged with making a false lease and forging the title deed for the said land purporting it to be genuine signed by Rosemary Anyango Ngong’a, a land registrar.

They were released on a cash bail of 1 million and a bond of Sh 2 million.

The case will be mentioned 13 September and will be heard on 16th October this year.

BUSINESSMAN INVOLVED IN LOVE TRIANGLE SCUFFLE CONVICTED OF MANSLAUGHTER CHARGE.

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Nakuru businessman Leonard Kanari Gitui who has been convicted over manslaughter charges before high court judge lady Jessie Lessit on Thursday August 29,2019./PHOTO BY S.A.N.
BY SAM ALFAN.

Nakuru businessman Leonard Kanari Gitui has been convicted over manslaughter charges.

Lady Justice Jessie Lessit discharged the businessman of the murder charges which he was initially facing and substituted it with manslaughter.

The judge found that the convict shot the deceased Christopher Muganda Adagi who was a credit officer in the circumstances of provocation and in heat of passion but did retaliate by using excessive force.

Muganda’s girlfriend testified that the deceased and the accused got into scuffle when they met in the corridor while the accused was leaving the house.

The judge in her judgement questioned how many men would have strength to walk away after they find a stranger walking from their girlfriend house.

“I find the offence of manslaughter contrary to section 202 of the penal code proved beyond reasonable doubt and therefore substitute charge of murder with that of manslaughter”, ruled Lessit.

Kanari was accused that on the night of May 26 ,2016 at Icon Flats Garden Estate of Kasarani in Nairobi murdered Christopher Muganda Adagi.

He denied the murder charges and was released on a on a bond 5 million with surety of similar amount after spending eight months in custody at industrious area prison.

While closing the case, Prosecution urged the High Court to find insurance broker Leonard Kanari accused of killing a credit officer in an alleged love triangle scuffle involving Eda Wathithi Kamau has a case to answer.

Prosecution also urged the trial judge to hold that the Nakuru businessman was behind the death of deceased claiming they have proved their case.

In their submission the state said  that they will rely on the evidence of 11 prosecution witness as they have proved there was death as a results of a gunshot.

They also informed the trial Judge that the accused was at the scene of crime and asked the court to find the accused was armed these was confirmed by the ballistic expert.

Kanari through his lawyer in his defence has urged the court to find that there was no sufficient evidence that he had the intention or malice to cause death of the deceased.

“We humbly urge the court to find that the accused has no case to answer and acquit him,” urged the accused.

They submitted that the prosecution has not adduced sufficient evidence which in the absence of a defence the court can convict the accused of the offence of murder.

“There is no evidence whatever doubt that the accused either shot the deceased or that his gun was was used to shoot the deceased,” submitted defence.

Kanari surrendered his gun o of May 31 ,2016 at Kasarani police station and recorded after the said crime was committed.

During the hearing a House girl Risper Munala to Eddah said she knew the deceased Andagi. She said on the fateful day,she heard the deceased calling the seven year girlfriend who told her to open gates. She later went to the bedroom back to sleep .

Munala testified that after about fifteen minutes , she heard a familiar voice screaming , ” why are you shooting me?” at that point in time, she was afraid of what was happening and went to the sitting room and found the door to the house open.

She found  her boss Eddah seated on the chair facing outside. She added that Adah was having a monologue while trying to dial on her phone and at that point, she noticed the deceased, Andagi lying on the floor next to the door one meter away.

“This was distance between Edinah and the deceased. The deceased lay on the floor facing up. I did not speak to the deceased,” said Munala.

She testified that the deceased was injured on the left side of his stomach, there  was bleeding, the deceased was talking to himself while his girlfriend Adah was just sited. She offered the deceased water to drink . The deceased took a bit of water and also gave the deceased a pillow from the seat.

A Government pathologist Johnson Oduor  testified that there was an entry gunshot wound on the left side of the stomach and there was not exit wound of the bullet.

The deceased wife Irene Nanjala Barasa testified that on the fateful day the deceased did not return home from work and she had tried calling late in the night.

They talked around 1:00 am and the deceased never picked up his phone again. She was informed about the shooting by one a Agrey who had been informed by the caretaker. The deceased and Nanjala had two children of the marriage.

WANGUSI TO CONTINUE SERVING AS CAK BOARD STOPS SUCCESSOR.

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Embattled Communication Authority of Kenya (CAK) director Francis Wangusi.

BY SAM ALFAN.

Embattled CAK director Francis Wangusi will continue serving as the boss after the Employment court extended orders barring the commission from recruiting his successor.

The court decision to extend orders means newly appointed acting director general of the Communications Authority of Kenya Mercy Wanjau will not assume office until a board is in place.

Wangusi, whose term expired last week and was replaced by Mercy Wanjau in acting capacity vowed not to hand over to the new appointee, saying her appointment was illegal.


Consumers Federation of Kenya (COFEK) filed a case saying there is no board in place and therefore the appointment of Wanjau was not procedural. “We are asking that the orders issued before to be extended because there’s no existing board,” the court heard.COFEK urged the court to extend the orders and have an open recruitment exercise be done.

COFEK argued that there was no proper board and the planned recruitment to replace Wangusi is unlawful.

According to COFEK, the 13-member board, led by Gituku, has no powers to recruit a new director-general for a state entity, adding that the process should instead be steered by an independent recruiting body.

CAK through lawyer Githu Muigai refuted claims that there was no board. While explaining why the board is not full, the former AG said that there is a court order stopping gazettement of the other board members.

Last week court suspended Gazette Notice No. 6657 of July 18, 2019 that appointed appointment of Mahmoud Noor, Paul Mureithi, Jackson Kemboi and Laura Chite.

 The court also issued a temporary injunction prohibiting Communication Authority , Public Service Commission and Attorney General from giving effect to Gazette Notice No. 6657 of July 18,2019.

The court said it cannot aid the furtherance of a constitutional breach as it has the duty to uphold the constitution which it must do without fear or favour.

CHINESE INVESTOR CHARGED WITH OVER 194 MILLION TAX EVASION.

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New X-Tigi Technology Limited director Gao Fei before Nairobi Milimani Chief Magistrate Court on Tuesday August 27,2019./PHOTO BY S.A.N.

BY SAM ALFAN.

A Chinese investor has been charged before a Nairobi court with tax evasion amounting to Sh194 million.

New X-Tigi Technology Limited director Gao Fei, who has been on the run appeared before Milimani Resident Magistrate Muthoni Nzibe and pleaded not guilty to the tax evasion charges.

Fei is accused that on diverse dates between January 2015 and June 2016, in Nairobi being the director of New X-Tigi Technology Company Limited, he failed to pay VAT amounting to Sh194,357,743 for the year starting January 2015 to July 2016 to Kenya Revenue Authority.

Prosecution accused Fei that on June 30, 2016 in Nairobi, being a registered taxpayer PIN No. P051576009G, he failed to submit tax returns for the year 2016 as of due date June 30, 2016 to KRA.

It was further alleged that on June 30, 2015 in Nairobi, being director of New X-Tigi Technology Limited, Fei failed to submit tax returns for the year 2015 to Commissioner Kenya Revenue Authority.

The prosecution opposed the release of the accused person on bail stating that the accused person was a flight risk being a Chinese national.

The court was also informed of his previous conduct where he had been released on police cash bail of Sh100,000 but he did not present himself to court as required but reported that his passport had gotten lost yet it was being held by the investigating officer.

He was released on a cash bail of Sh150,000 with a bond of 1 million.

The accused was ordered to deposit his passport in court pending hearing and determination of the case.

TRICKSTERS DENY FRAUD CHARGES.

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Mzava Selemani Salum, Sharif Ali Haji and Titus Fedha before Milimani Magistrate Court on Tuesday August 27,2019./PHOTO BY S.A.N.

BY SAM ALFAN.

Three men who deceived a businessman in Kitsuru that his land had evil spirits and witchcraft and required cleansing have denied fraud charges.

Mzava Selemani Salum, Sharif Ali Haji and Titus Fedha appeared before Milimani Chief Magistrate Francis Andayi and denied charges of conspiracy to defraud Harbans Singh Nandsingh of Sh2 million.

The charges against them stated that between June 10 and 26, 2019 at Red Hill Garden in Westlands, jointly with others not before court, they conspired to defraud Singh of 2 million by fraudulently tricking him his property (land), which he was intended to sell had evil spirits.

They allegedly said the land had a snake and other witchcraft paraphernalia (cowry shell, gourds, black powders, assorted clothing), which required cleansing by burning the snake and scattering its ashes into the Indian Ocean.

The charges further stated that the trio, with others still at large, conspired to defraud Singh of Sh280,000, by claiming that his land had evil spirits and needed to be cleansed. In total, the fraudsters denied four counts each of fraud and cheating.

The three were ordered to deposit cash bail of Sh300,000 each or an alternative bond of Sh500,000 each, to secure their release.

TOURIST COMPANY DIRECTOR FACING OVER 11 MILLION FRAUD CHARGES. 

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Tourist company director Lysanian Otieno Onjwayo before Milimani Chief Magistrate Court on Monday August 26,2019./PHOTO BY S.A.N.

BY NT CORRESPONDENT.

A director of a tourists company has been charged with several counts of fraud before a Nairobi Count.

Lysanian Otieno Onjwayo appeared before Milimani Chief Magistrate Francis Andayi and pleaded not guilty to sixteen counts of fraud.

Otieno is accused of obtaining a total of over 11 million from various tourist intending to visit Kenya by falsely pretending he was in a position to offer them tours and accommodation through on-line booking.

He is accused that on May 28 this year in Nairobi obtained 2455 US dollars from PP/NO R5569193 Saswat Nanda by falsely pretending he was in a position to offer him tourand accommodation services as a tourist in Kenya a fact he knew to be false.

Otieno is also accused on July 26, this year with intent to defraud , obtained 1484 US dollars from Olive Seidel by falsely pretending he was in position to offer her tour and accommodation services as a tourist in Kenya.

State accused Otieno of obtaining money from various tourists including Juan Pento Valenzuela, Nicholas Joseph Caparco, France national Jeremie Benjamin, Shantanu Nath, Arindam Thakur among others.

He was released on a cash bail of Ksh 300,000.

NO ANTICIPATORY BAIL FOR CHINESE INVESTORS IN LAKE MALL BUILDING KISUMU.

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Edermann Property Limited Company Managing Director Zeyun Yang who has been denied anticipatory bail./PHOTO BY S.A.N.

According to court documents, among the beneficiaries of the said fraud were engineer George Nichodemus a member of the board who received from Erderman Kshs. 7,655,172.00 on May 2,2013 and Kshs. 4,750,000 on December 11, 2013.

BY SAM ALFAN.

Two directors of Edermann Property Limited, a company involved in the construction of Lake Basin Development Authority mall in Kisumu have been denied anticipatory bail by the High Court.

The court dismissed the application by the Managing Director Zeyun Yang and director Zhang Jing, after they rushed to court fearing their impending arrest.

“It is my finding that the the application is not merited and same is dismissed with no orders to costs”, the court ruled.

Justice John Onyiego said that the apprehension by the directors has been taken care of by the law. The Judge said any fear of possible illegal arrest where there is no evidence, is a matter of constitutional petition or judicial review but not application for anticipatory bail.

The two Chinese investors moved to the High Court Anti-Corruption court seeking to be admitted on anticipatory bail pending intended charges against them.

Zeyun and Zhang urged the court to release them on reasonable bail or bond terms, pending arrest and presentation for plea taking.

They argued that sometime in February 2013 , Lake Basin Development Authority advertised for a tender for the design and construction of mixed-use development in Kisumu Town which project included development of a hotel and mall complex and the company won the tender after competitive process.

They completed the project as per specification and a completion certificate was issued. Nobody, they added, questioned the manner in which the tender was awarded and its execution until sometime in 2015 when they were confronted by certain investigators.

They allege the investigators sought to know how the contract was awarded and varied facts they claim were beyond their control.

They expressed fear in the manner in which they have been harassed together with their staff by DCI and EACC officers while conducting investigations.

They made reference to a legal opinion allegedly given by the Attorney General on January 31, 2017 approving and giving the project a clean bill of health and that the Auditor General’s report dated January 24,2017 also gave approval to the project.

While replying to the case, EACC said that the anticipatory bail can be issued only when there is proof that one’s fundamental rights have been infringed or about to be infringed and not mere speculation.

According to court documents, among the beneficiaries of the said fraud were engineer George Nichodemus a member of the board who received from Erderman Kshs. 7,655,172.00 on May 2,2013 and Kshs. 4,750,000 on December 11, 2013.

They claim on the other hand, on May 2,2013, one Innocent Obiri received Kshs. 2,392,241 from Erderman yet he was contracted by LBDA.

The commission said the contractual sum was unlawfully inflated with the two directors company failing in crucial stages but was nevertheless awarded the contract after unduly influencing the board members.

EACC added that contrary to the two directors allegations that the project was passed by attorney general’s legal opinion dated December 5,2016 revealed several irregular in the award and execution of the tender (contract).

“Section 27 of the 2003 Public Procurement Act was violated and that they had proof that the cost of construction was inflated to take care of the gifts given to the board members by the Erderman Company interalia houses and money which induced the board to disregard necessary procument procedures”, EACC told the court.