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CITY LAWYER NGOE AND BUSINESSMAN NDOLO GOLD FRAUD TRIAL PUSHED TO SEPTEMBER

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Nicholas Otieno Ndolo and Thomas Otieno Ngoe who are facing gold fraud charges./PHONE BY IRENE ONYANGO.

BY NT CORRESPONDENT.

Gold fraud case against advocate and businessman who were charged with defrauding an American citizen of Sh132.9 million has been pushed onced again.

Trial magistrate Principal Magistrate Rose Ndombi pushed the gold fraud case in which Nicholas Otieno Ndolo and lawyer Thomas Otieno Ngoe are charged with conspiracy to defraud after scamming the American to September 24th for hearing.

Ndolo and Ngoe are accused that on diverse dates between 3rd and 11th February 2023, through Equity Bank Account NO.1510278992209 held at Equity Bank Yaya Centre Branch Kilimani within Nairobi City County jointly with others not before court, conspired to commit a felony namely obtaining money by false pretense to wit USD 1,000,000 the property of Seth Adam Bernstein.

The court heard that the money was wired through an Equity Bank account, Yaya center branch, after the duo pretended that DSI Mining and Minerals Company Limited were in a position to pay custom duties for 3000 kilograms of gold to be shipped from Kenya to Dubai.

Ndolo is separately charged with making a mineral export permit, Reference No.EAC/22/92709141708/2022 dated 16th May 2022 with intent to defraud.

According to the charge sheet filed in court, on the 16th day of May 2022 at unknown place within the Republic of Kenya with intent to defraud, without lawful authority or excuse, Ndolo made a certain document namely Mineral Export Permit reference NO.EAC/22/92709141705/2022 dated 16th May 2022 purporting it to be a genuine Mineral Export Permit issued by East African Community Customs.

They are out on a cash bail of Sh1 million each, pending the trial.

WIDOW OF SLAIN PAKISTANI SCRIBE AWARDED SH10M COMPENSATION.

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Pakistani journalist Arshad Shariff./PHOTO BY COURTESY.

BY SAM ALFAN

The Government will cough out SH10M compensation for the brutal killing of Pakistani journalist Arshad Shariff.

Arshad had fled to Kenya on self-imposed exile two months before his tragic death at the hands of trigger-happy police officers who were allegedly pursuing car-jackers.

Arshad was shot dead twice on the head on the night of October 23,2022 in a Toyota Land Cruiser Reg.No.KDG 200M near Tinga Market a long Magadi Road in Kajiado County.

The police claimed they were trailing violent robbers who had reportedly stolen a Mercedes Benz Sprinter Reg No. KDJ 700F from Pangani in Nairobi.

High Court Judge Stella Mutuku has lambasted the police and government agencies for mishandling the investigation.

Justice Mutuku awarded the late journalist’s widow, Javera Sidique, in general damages amounting to SH10M, for the loss of her husband and violation of his fundamental rights and freedoms. “I’m alive to the fact that a lost life cannot be compensated in monetary terms nor is the pain and suffering the family must have gone through,” the Judge pointed out in her 45-page judgment.

The Judge directed the Independent Police Oversight Authority (IPOA) and the Directorate of Public Prosecutions (DPP) to furnish the widow with the complete investigation file and their recommendations for appropriate action.

“The use of lethal force against Arshad by shooting him on the head was arbitrary, unproportional, unlawful and unconstitutional,” Justice Mutuku observed.

She said the Inspector -General of Police, the National Police Service and IPOA violated the rights of the deceased and could not escape responsibility for failure to conduct “independent, prompt and effective investigations.”

The Judge recalled that the Inspector -General of Police had publicly admitted that two police officers had fatally wounded the journalist in a case of “mistaken identity” and expressed regret for the unfortunate incident. However, the trail of investigations and further action went cold, she noted.

The Judge said the widow was forced to file the constitutional petition one year after her husband’s shooting because no information was forthcoming or action taken against the perpetrators.

Further, letters sent to the IPOA Chairperson, the Secretary of the Commission on Administration of Justice and the DPP went unanswered.

Justice Mutuku said the deceased was a foreigner and the circumstances of his death discussed at high-levels involving the police, the Foreign Affairs ministry and the Pakistani High Commission. It was imprudent of the local authorities to keep the family of the deceased in the dark without updates of the investigations, she said.

MAN CHARGED WITH STEALING OVER SH100 MILLION FROM LENDER.

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Elias Kivuti Nyaga before Milimani Chief Magistrate court where he denied charges. /PHOTO BY IRENE ONYANGO.

IRENE ONYANGO.

A businessman has been charged with stealing over Sh100 million from Family Bank.

Elias Kivuti Nyaga appeared before Milimani Senior Principal Magistrate Gilbert Shikwe and denied the charge preferred against him.

Kivuti is alleged to have stolen Sh106.5 million from Family Bank, an offence he allegedly committed between July 1, 2019 and November 25, 2021.

The charge stated that he committed the offence jointly with others not before court.

The court further heard that in the course of stealing, Kivuti dishonestly received the money into his bank account, knowing or having reason to believe that the money was stolen or unlawfully obtained.

The court ordered him to deposit cash bail of Sh6 million to secure his release.

The matter will be mentioned on July 21 for directions on the hearing.

BLOW TO RUTO AS COURT HALTS TASKFORCE ON PUBLIC DEBT.

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President William Ruto.

BY SAM ALFAN.

President William Ruto suffered a blow on Monday after the High Court temporarily suspended a taskforce he appointed to audit public debt.

Justice Lawrence Mugambi granted temporary orders blocking the implementation of the gazette notice appointing the 11-member team, pending the determination of a petition filed by Dr Magare Gikenyi and Eliud Matindi.

“An interim order be and is hereby issued prohibiting the Respondents, either by themselves, anyone else acting at their behest, instructions directions or any other person whosoever, from discharging any function pursuant to duty pursuant to Executive order NO. 4 or Gazette Notice NO. 8261 Vol. CXXVI-No. 97 5th July 2024 establishing the Presidential Task Force on Forensic Audit of Public Debt,” ordered court.

The two petitioners challenged the taskforce arguing that it was usurping the mandate of the Auditor General.

“If this court does not stop the illegal actions and/omission done by the president or respondents then constitutional violations will continue against principals of good governance and public money will be lost with no probability of recovering the same,”says the petitioner. 

They argued that granting the prayers will preserve the integrity of the Constitution which they believe has been violated and is threatened with violation.

“It is in the interest of justice and the Constitution for the conservatory orders requested herein are granted to protect the Constitution from gross violation. This includes upholding the national values and principles of governance including the rule of law, good governance, accountability and transparency and protection of wastage of public funds,” says the petitioners. 

The two petitioners stated that public interest tilts in granting the order, pending the determination of the case.

“If this honourable court does not stop the illegal actions and omissions done by the President and or the respondents then constitutional violations will continue against principals of good governance and public money will be lost with no probability of recovering the same,” Dr Gikenyi said.

Dr Gikenyi and Mr Matindi pointed out that Article 229(4) specifically requires the Auditor-General to audit the public debt within six months after the end of each financial year.

They further said Article 226 provides that the accounts of all governments and state organs must be audited by the Auditor-General.

“The Petitioners have the right of access to this Honourable Court to safeguard their rights and those of other Kenyans, in the public interest, which are in serious danger of infringement,” the petition states.

LOBBIES WANT TEA DIRECTOR AT THE CENTER OF SEX SCANDAL DECLARED UNFIT TO HOLD PUBLIC OFFICE.

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BY SAM ALFAN.

Six lobby groups have moved to court seeking to declare a man at the center of sex scandal unfit to hold public office.

The lobby groups want John Chebochok, who was recently elected a director for Tegat/Toror Tea Factory, blocked from holding the position.

Last year, Chebochok was caught in a storm following an exposé by the BBC demanding sex from tea pickers, in abuse of his position and authority.

In the petition before the High Court in Kericho, the groups including Usikimye CBO, Wangu Kanja Foundation (k) Registered Trustees and Center for Rights Education and Awareness (CREW), also want the court to direct a probe into sexual exploitation in the tea industry.

Other organisations are OXFAM, the African Gender and Media Initiative Trust (GEM) registered trustees and Flone Initiative.

They lobby groups under certificate of urgency state that Chebochok is unfit to hold office and ineligible to contest for any public office.

Through lawyer Amazon Koech, the lobby groups seeks an order directing the Kenya National Human Rights and Equality Commission to investigate the systematic issues of sexual exploitation in the Tea Industry as per their mandate under Article 59 of the Constitution of Kenya. 

“A declaration the decision by Tegat Tea Factory Limited , Kenya Tea Development Agency, Tea Board of Kenya and Independent Electoral and Boundaries Commission (IEBC) to clear Chebochok to contest for the Director of Tegat/Toror Tea Factory and the election of the IEBC to the said position did not adhere to the standards, values and principles set out in Articles 10(2), 26, 28, and 73 of the Constitution and is therefore unconstitutional, illegal and therefore a nullity,” lobby groups urges court. 

They further seek the court to issue an injunction or conservatory order restraining the swearing of Chebochok into office as the Director of Tea Factory, Ainamoi Zone.

It is their plea that all candidates should meet the requirements under Chapter 6 of the Constitution.

“This is a Petition questioning the constitutionality of the clearance of Chebochok to contest for the Directorship of Tea Factory, Ainamoi Zone and election to the said position among other prayers a declaration that the  Chebochok’s previous conduct violates the Constitution of Kenya particularly, Article 10, 26, 28 and 73,” says the lobby groups. 

It is their argument that Chebochok’s previous conduct while holding a public office disqualifies from appointment or election to occupy any public office.

They argued that the conduct of Chebochok was totally reprehensible and ought not to be allowed to prevail but needs to be explicitly uncountenanced.

“This court should put an end to this lack of integrity in the public office,” says lobby groups through lawyer Koech. 

Chebochok was exposed on the 20th February 2023 by BBC News Africa in their documentary titled “Sex for Work: The True Cost of Our Tea BBC Africa Eye,”.

The documentary revealed that he sexually exploited women who worked and those who sought employment at Finlays Company. 

Koech said as shown on the BBC expose, Chebochok sexually exploited women who worked and those who sought employment at Finlays Company. 

“This gross misconduct not only tarnishes the reputation of the tea industry but also inflicts severe harm on the victims, whose wounds remain unhealed. That as a result of the 1ª Respondent sexually exploiting women working and those who sought employment at Finlays Company he infected some of his victims with HIV/AIDS therefore risking their lives and health. This conduct by the 1” Respondent is a violation of the victims right to health as provided under Article 43(1)(a) and their right to life as provided under Article 26 of the Constitution of Kenya, “says the lobby groups. 

 The organizations add that sexual exploitation and Chebochok’s conduct amount to a violation of the victims’ right to not to be discriminated on their sex as provided for under Article 27 (4) of the Constitution of Kenya. 

According to the lobby groups, the act of sexual exploitation of women violated the victims right to human dignity as provided for under Article 28 of the Constitution of Kenya.

“Similarly, the sexual exploitation conduct by the 1 Respondent to women working for Finlays company and those who sought for employment to work for Finlays company amounts to a sexual violence to the victims and is a violation of the women’s right not to be subjected to any form of violence as provided under Article 29(c) of the Constitution,” says the lobby groups in the court documents. 

Further the sexual exploitation of women, presenting fake academic documents to the KTDA, Tea Board of Kenya -IEBC in order to be cleared to constest for the Directorship position by Chebochok to is a violation of the national values and principles such as upholding human dignity, equity, social justice, human rights and non-discrimination as provided for under Article 10 and 73 of the Constitution. 60. 

“The victims have suffered permanent wounds and indignity, something the 4th respondent ought to and must answer and therefore at the very least it has to be interrogated whether in the light of the above, he is a person fit to hold a public office. “The nail needs to be hit right on the head”. Such a reprehensible conduct needs to be frowned upon and “buried or tossed out of the window” at the same time in a manner speaking to say that this shall not and will not be normalized because it makes a mockery of our Constitution and other laws and “was too bitter a pill”. 

 They argue that the clearance of John Chebochok by Tegat Tea Factory , KTDA , Tea Board of Kenya and IEBC to contest for the Director of Tea Factory, Ainamoi Zone and his election to the said position violates the national values and principles of governance provided for under Article 10 of the Constitution. 

These values and principles provide a foundation upon which Kenyans have determined that our democratic state shall be build; they are the intestinal fluid which nourishes the bill of rights and the Constitution. Thus when making appointments to public office, every selecting, appointing and nominating authority must take into account these values and principles.

“The 2nd-5th Respondents failed to uphold the above article in clearing John Chebochok to contest for the Directorship of Tea Factory, Ainamoi Zone since Chebochok as per the BBC expose shown above is a man with no personal integrity, his decision making. while in office are based on sexual favours he receives from women employees, ” State lobby groups in the petition.

Th petition is supported by Usikimye CBO co-founder Njeri Migwi.

Law Society of Kenya, Association for Grassroot Journalists Kenya, Katiba Institute, Advocates for Social Change-Kenya, Independent Medico-legal unit, National Gender and Equality commission and Kenya National Commission on Human rights have been named as interested party.

TV BLACKOUT ON BOTCHED 2018 RAILA CORONATION WAS JUSTIFIED-COURT.

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Lawyer Miguna Miguna with opposition leader Raila Odinga, MP Tom Kajwang and current Siaya Governor James Orengo at Uhurupark 2018. /PHOTO BY COURTESY.

BY SAM ALFAN.

The Government was justified to switch off live television coverage of the unlawful “inauguration” of Opposition Leader Raila Odinga as “The People’s President” in 2018, the High Court has ruled.

The massive public rally at Nairobi’s Uhuru Park, convened by Raila Odinga after losing the 2017 presidential election, had been outlawed as a security threat.

High Court Judge Anthony Mrima said the alleged installation of Raila as President through a public swearing-in ceremony was ” illegally, unlawful and unconstitutional.”

The Court noted that the Communications Authority of Kenya (CAK) had informed all media houses of the possible security risks in having live coverage of the Uhuru Park meeting. The request for the blackout was meant to maintain security, law and order, the Judge noted.

Justice Mrima threw out a petition lodged by the Law Society of Kenya (LSK),on behalf of Royal Media Services, Nation Media Group and Standard Group, claiming no reasons were given by the Government for the drastic action.

The three affected media houses had complained that the Government had interfered with their independence and liberties by violation of fundamental rights and freedoms under Article 47 of the Constitution.

But the Judge said the three aggrieved media houses, as responsible and law-abiding members of the media fraternity, had the obligation to respect, uphold and defend the Constitution.

The TV stations were expected to refrain from perpetuating an event that was meant to subvert and undermine the will of the people and threatened widespread civil unrest, the Judge said.

Justice Mrima pointed out that the TV stations owned by the three media houses, went out of their way to further activities that were specifically barred by the Constitution. The CAK acted within it’s statutory and constitutional mandate to ensure that the crusade by the media houses “was not permitted to flourish.”

“Having chosen not to obey the Constitution and the law, the TV stations willingly and intentionally exposed themselves to all legal perils, which included the shutdown of all broadcasts,” the court reasoned on the 20-page judgment.

The Judge recalled that former Internal Security Cabinet Secretary, Dr Fred Matiang’i, had explained that the shutdown was to facilitate full investigations into serious security breaches occasioned by the live broadcasts of the event.

The CAK Director in charge of licensing, Compliance and Standards, Christopher Kemei, had explained that all licences had been advised against live broadcasts of the meeting. Most stations had undertaken to comply, he said.

Justice Mrima recalled that the TV stations were allowed transmission in February 2018 following the court’s intervention.

However, he commended the government’s swift action to forestall “an illegality and unconstitutionality” by the Opposition Leader and his supporters.

POLICE WANT SCORES OF PROTESTORS ARRESTED DURING DEMOS DETAINED FOR THREE WEEKS.

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Severally protestors before Milimani Law ceremonial hall./PHOTO BY IRENE ONYANGO.

BY IRENE ONYANGO.

The Directorate of Criminal Investigations wants to be allowed to continue holding more than 180 protestors who were arrested on Tuesday during anti-Finance Bill demonstrations in Nairobi.

In an application before a Nairobi court, the police said they were yet to complete investigations against the 185 youths.

Inspector George Karanja said in a miscellaneous application that they are investigating allegations of malicious damage of properties, assaulting police officers and obstructing police officers in execution of their duties.

He asked the court to detain the suspects at Gigiri, Kilimani, Capitol Hill and Muthangari Police Stations for a period of 21 days as they conclude the investigations.

According to Karanja, the respondents with others mounted demonstrations agitating for the rejection of the Finance bill 2024/2025 and in the process, they turned chaotic.

He claimed that the demonstrators broke into shops and supermarkets within the Central Business District, assaulting police officers, and obstructing police officers from conducting their duties by barricading the road using wooden coffins. Others, he said stole from unsuspecting members of public.

“The respondents were arrested at the scenes of crime and fourteen coffins recovered and one Police Motor Vehicle registration number GKA 689V Nissan Xtrail was extensively damaged and several police officers injured with one officer suffering gunshot wounds by bullet fired by the protestors,” stated Karanja. 

The police further the Milimani Principal Magistrate Wandia Nyamu since the suspects were arrested at the CBD, they fear that the protesters are flight risk and might abscond court if released on cashbail.

Additionally,  Karanja stated that investigations into the firearm that was used to shoot one of the police officers during the demonstrations is ongoing and the same is yet to be recovered.

The prosters were represented by 17 members of the Law Society of Kenya led by the Vice President Mwaura Kabata.

The defense opposed the application stating that the odpp is seeking for 21 days at the expense of youths who were arrested conducting their democratic rights which is guaranteed under article 37 of the constitution on their right to demonstrate.

The defense further told the court that the whole country is aligned to the movement started by the youth, a movement that is intended to bring both accountability and transparency to the actions taken by the executive.

“The executive through the arm of the police has teamed up with the ODPP to deprive innocent youths of their liberty through the issue of a custodial detention that has already been settled by the high court,” stated Christine M Murithi, one of the advocates. 

The court heard that the prosters, after the arrest, were all kept in one room irrespective of their gender and age.

Among the protesters were; Kelly Kaiga, Darwin Onono, Kennedy Onyango, David Thuita, Stephen Munyao, Edu Kimani, Gabriel Githii, David Muindi, Roy Mwangi, Samwel Kepha, Alfred Ouma, Howard Ojengwa and Job Muraguri.

COURT ASKED TO COMPEL WETANG’ULA TO RE-CONVENE PARLIAMENT TO SUSPEND FINANCE BILL.

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National Assembly Speaker Moses Wetangula.

BY SAM ALFAN.

A petitioner has demanded the freezing of the controversial Finance Bill to allow it’s formal withdraw by Parliament.

Lawyer Kennedy Oduor Wanyanga is seeking orders to compel the Speaker of the National Assembly, Moses Wetangula, to re-convene the House to facilitate the formal withdrawal of the bill.

Wanyanga claims the contentious bill will take effect on July 11 and trigger further public outrage and demonstrations.

In his urgent application through lawyer Ochieng Oginga, Wanyanga says the legislative process under Article 115 of the Constitution is limited to 14 days upon which the President and the National Assembly must deal with the assent and referral of the bill.

The National Assembly, he says, abrogated and absconded it’s duty by going on recess during a critical moment in the financial year.

“The Financial Bill has created confusion and uncertainty resulting in public outcry for it’s withdrawal. There is urgent need for judicial intervention,” he said.

Wanyanga argued that Standing Orders of the National Assembly are in contravention of the Constitution because they have illegally sanctioned time-lines that are beyond the 14-day deadline. The National Assembly is expected to resume sittings on July 23.

Wanyanga recalled that Chief Justice Martha Koome publicly assured Kenyans on June 25 that the Judiciary will expedite all petitions regarding the controversial Finance Bill.

In his petition, Wanyanga is seeking a declaration that the bill shall not take effect 14 days after submission to President William Ruto. The National Assembly passed the bill on June 25 and forwarded it to the Head of State, who declined to sign it into law and referred it back for withdrawal.

Wanyanga has asked the court to invoke Article 23(3) of the Constitution to compel the Speaker of the National Assembly to re-convene the House to conclude the legislative process.

The petitioner is seeking a declaration that Standing Orders number 42(2) and(3) and 154(2) and (7) are unconstitutional and contrary to Articles 115,255,256 and 257 of the Constitution.

“The current state of affairs has occasioned uncertainty on the status of the Finance Bill. Under Article 115 of the Constitution, the Finance Bill shall automatically be deemed to have been assented to by the President after the lapse of 14 days from June 26 thus bypassing parliamentary consideration and due process,” Wanyanga explained in court papers.

AHMEDNASSIR ALLOWED TO CHALLENGE SUPREME COURT BAN.

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Chief Justice Martha Koome and Senior Counsel Ahmednasir Abdullahi.

BY SAM ALFAN.

The High Court has given the greenlight to Senior Counsel Ahmednassir Abdullahi to prosecute his constitutional petition against exclusion before the Supreme Court.

Justice Chacha Mwita says the High Court enjoys original jurisdiction to determine all grievances relating to infringement and violations of constitutional rights and freedoms.

All parties to constitutional petitions deserve to be heard on merits, he said.

The Judge reiterated it is a cardinal principle in the Constitution that complaints of violation of fundamental rights and freedoms must be ventilated and adjudicated upon.

The Law Society of Kenya (LSK) has challenged the indefinite ban pronounced by the Supreme Court on January 18, blocking Ahmednassir, his law firm and associates from making any appearance or representation before the court.

Justice Chacha Mwita dismissed a preliminary objection by the seven-member Supreme Court that it’s indefinite ban on Ahmednassir, his law firm and associates was final.

The Supreme Court, chaired by Chief Justice Martha Koome, wanted the petition dismissed on grounds that it enjoyed immunity under the Judicature Act and the Constitution.

The Supreme Court Judges had argued they cannot be sued for discharging their judicial duties. Further, orders given by courts of higher jurisdiction cannot be adjudicated downwards, they had claimed.

The apex court had claimed that hearing the case before the High Court would result in the subversion of the Constitution and create an absurdity and embarrassment to the judicial system in the country.

However, the LSK has maintained that the decision by the Supreme Court was against rules of natural justice since Ahmednassir was not afforded an opportunity to be heard. The action was unconstitutional, unreasonable and contrary to the law, LSK said in court papers.

In his ruling, Justice Chacha Mwita said the court will decide whether the action complained of and the issues raised by the Supreme Court are inconsistent with the provisions of the Constitution.

“My view is that the issues raised in the petition are not idle. They fall within the ambit of Article 23(1) and 165(3)(b) of the Constitution and, therefore, under the jurisdiction of this court. The court has to determine whether, indeed, constitutional rights and fundamental freedoms have been violated or threatened to be violated,” Justice Chacha Mwita said.

Ahmednassir, in his supporting affidavit, has protested that the pronouncement by the Supreme Court denying him audience was not a judicial decision but an administrative action. There were no judicial proceedings that preceded the punitive measure that must be quashed, he said.

Already, Ahmednassir has lodged an appeal before the Arusha-based East African Court of Justice that is pending hearing.

LOBBY GROUP DEMANDS FRESH POLLS FOR NATIONAL YOUTH COUNCIL.

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Activist Peter Agoro who has filed a case in the High Court seeking to compel Youth Council to conduct election.

BY SAM ALFAN.

A lobby group has sued the Government for failure to conduct elections for the National Youth Council.

Activist Peter Agoro and Youth Advocacy Africa claim the Council’s leadership has violated the constitutional rights and freedoms of youths.

They have petitioned the High Court to compel the Attorney -General to invoke Legal Notice Number 183 of 2021 to facilitate election of national office-bearers.

The Attorney -General should provide a detailed schedule for the proposed polls within a specific period determined by the court, the urgent application states.

Agoro and the lobby group have cried foul that the leadership of the Council is unlawful and unconstitutional and deserves to be removed from office. They want the group to be restrained from undertaking any further activities pending the outcome of the petition.

The activist claims the poll regulations were enacted to facilitate fair, transparent and democratic election of youth representatives to further their involvement in the socio-economic development of the country.

Agoro says regular elections are crucial for maintaining legitimacy and accountability of the Council and that it’s members present the needs and aspirations of youths. “The Council has failed to conduct elections in accordance with the 2021 regulations. This inaction has led to lack of proper representation of the youth,” he said in court papers.

Agoro said all efforts to address the impasse with the Attorney -General and relevant government authorities have met deaf ears. ” The continued delay in conducting elections denies the youth their right to representation and participation in national development. It undermines the democratic process and the Council’s credibility,” he said

The Council’s failure to conduct elections, he asserted, reflects lack of accountability and transparency, which are fundamental principles of governance enshrined under Article 10 and 232 of the Constitution.

“The delayed elections have led to lack of legitimate representation for youth in decision-making, which has resulted in massive frustrations evidenced by the nationwide protests led by young people,” Agoro pointed out.

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