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COURT ORDERS AGENCY TO UNFREEZE SONKO BANK ACCOUNTS IMMEDIATELY.

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BY SAM ALFAN.

A Nairobi Court has ordered Asset Recovery Agency to unfreeze frozen Nairobi Governor banks accounts.

Milimani Chief Magistrate Martha Mutuku dismissed ARA application saying move by the agency to continuing using an order illegal that lapsed on December 23,2019 to freeze Governor Mike Sonko bank accounts was done on bad faith by the agency.

“The application by the Governor is allowed and the agency are directed to unfreeze the respective accounts and earlier application by the asset recovery is hereby dismissed”, ruled Mutuku.

She said that some of the bank accounts does not even belong to Governor himself but to the people alleged to be associated with him and the continued freezing of the said bank accounts is prejudicial to Governor and others.

The court further said that it was great violation of Sonko’s rights by the agency for proceeding to rely on a lapsed order that has no basis in law.

The Magistrate n that the agency was granted a period of 14 days with an option to extend these orders from December 23 ,2019 pursuant to inter parties hearing but for whatever reason the agency did not seek for the orders to be extended as required by the law.

“The orders lapsed automatically by December 23,2019 and as such the agency had no legal basis to rely on the said order as they didn’t not seek further orders from the court or seek nor didn’t they seek for the said money to be preserved”, ruled Mutuku.

The court said the agency didn’t not honor the order to appear for inter parties hearing on December 23.

The accounts were frozen in late December but Sonko has challenged the orders, which also allowed the agency to look at his statements of accounts, account opening statements, cash and cheque deposit slip, withdrawals and RTGS from January 2017 to date.

The magistrate allowed ARA 14 days to investigate the accounts together with those of two other persons and companies, both of who are facing graft charges together with Sonko in the Sh 350 million garbage tender case.

Among the banks which the accounts were frozen are KCB Group, Diamond Trust Bank, DTB, I&M Bank, Sidian Bank, National Bank of Kenya, Bank of Africa, Equity Bank, Co-operative Bank and Credit Bank.

During the hearing the court heard that there was no shred of evidence to warrant the freezing of Nairobi Governor Mike Mbuvi Sonko’s accounts, which had been flagged off over claims of money laundering.

The Governor through his lawyer Harrison Kinyanjui informed the Milimani Chief Magistrate Martha Mutuku that Asset Recovery Agency continues to freeze the Governor’s accounts including mortgage accounts despite the expiry of exparte court orders obtained by the Assets Recovery Agency last year.

The bank itself expressly requested the Court to unfreeze the mortgage accounts. Governor Sonko is still servicing the said mortgage account.

“The orders that the assets recovery agency had obtained exparte on the December 11,2019, before magistrate Electer Rianyi
had a life of 14 days only.” Said Kinyajui.

Lawyer Kinyanjui further told the court that the ex Parte Orders obtained by the Asset Recovery Agency expired on December 27 last year and they did not make any application to extend the orders as required.

“These orders were never extended after they lapsed on the December 27,2019. The Asset Recovery never made an application to renew or revive them. Consequently,the default position is that the account stand unfrozen.” Lawyer Kinyanjui told the court.

The court also heard that there was a bundle of statements of accounts numbering 500 pages and none of which bore any evidence of a transaction of a criminal nature or constituting money laundering.

The lawyer added that there was no evidence tabled by the agency investigating officer Corporal Isaac Mwaura to prove beyond reasonable doubts that the Governor’s accounts have a penny of corruptly obtained money as alleged at all.

“Even after ARA obtained the statement of accounts from all these banks it was not able to pinpoint a single shilling that has been flagged off as constituting proceeds of crime or money laundering. There was a bundle of statements of accounts numbering 500 pages. None of which bore any evidence of a transaction of a criminal nature or constituting money laundering.” Kinyanjui told the court.

He said that the court ought to have indicated in the order granting the warrants as opposed to the usual practice of granting the warrants in generalized orders that appear to give an open cheque to the police officers.

He said despite the agency not citing any bank accounts in its application dated December 10,2019, that would be the subject of such a ” freeze order” as was obtained exparte , the said CPL Isaac Nakitare in his replying affidavit dated January 7,2020 cites specific bank accounts that belong to the Governor which he accessed using the unlawful order.

DCI BOSS GEORGE KINOTI WADES INTO NAKURU SUCCESSION SAGA AS HE INVESTIGATES WOMAN OVER MISSING WOMAN.

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Director of Criminal Investigation George Kinoti.

BY SAM ALFAN.

Director of Criminal Investigation George Kinoti has stopped a Nakuru High Court from issuing orders in favour of a prime suspect being investigated of missing Kenya citizen of Belgium origin believed to be dead.

According to documents filed in court seeking two weeks to continue holding the suspect Lucy Waithera Njuguna who was arrested on Saturday in Nakuru county, the DCI has stopped the Nakuru court to issue any order in respect to the estate of the missing Dysseleer Mireille losaipa alias wa Samburu.

This is after Waithera had filed before Nakuru High Court succession civil case No. 40 of 2019 which DCI has stopped any orders to be issued until investigations are done and concluded to establish the whereabouts of the missing Dysseleer.

According to the affidavit, the suspect was arrested on Saturday February 1 at her Milimani residence in Nakuru with Dysseleer’s assorted bank cards and copy of death certificate No. 1600281.

But Waithera’s lawyer Cliff Ombetta said the investigating officer was not sincere and all the assertions in the affidavit are all allegations.

“She has been in custody incommunicado They don’t need her in visiting all those places they want to visit.She does not work at Jomo Kenyatta International Airport, Immigration, phone companies, Indian government,”says Ombeta

Ombetta added that the witnesses are not mentioned so she cannot interfere with them and she has not tried to abscond or mess with investigations.

She was also in possession of Dysseleer’s original passport with immigration stamps indicating that the he had traveled to India on December 12,2018 and came to Kenya on June 30,2019. Waithera alleged that she had visited the missing Dysseleer at Janaupuri Bhagat hospital where Dysseleer had been admitted since December 2018.

Preliminary investigation from the immigration department have so far established that neither Dysseleer or Waithera traveled to India from as alleged .

Detective told the court the suspect from the onset of investigations has been changing her assertions day by day and at one time alleging that Dysseleer died in a hospital in India and cremated at Kariokor crematorium.

“All these allegations have been disapproved as it has since been established that the missing person ( Dysseleer) didn’t leave the country as alleged. Kariokor and Langata crematorium have equally no records of ever cremating the missing Dysseleer”, the officer told the court.

According investigating officer attached to DCI homicide division Oliver Nabonwe, Waithera furnished the missing person’s advocate practicing under the name of Hari Gakinya & CO. advocates with a death certificate No. 1600281 showing that Dysseleer died on July 15,2019 at M.P Shah hospital in Nairobi.

The death certificate was used to file a succession case No. 40/2019 at Nakukuru high court in respect of Dysseleer’s estate where Waithera is one of the beneficiaries.

The death certificate has been confirmed to be fake by the state department of civil registration services and M.P Shah through medical director has attested that Dysseleer was neither treated nor passed on their facility.

Court rule on whether to detain Lucy Waithera Njuguna to allow detectives conduct investigation over a missing Kenya citizen of Belgium origin believed to be dead.

Nabonwe, Waithera is being investigated over the missing of Dysseleer Mireille losaipa alias wa Samburu who according to the investigating officer believe to be dead as enshrined under section 386(1)(d) of the criminal procedure code.

Dysseleer was domiciled in Nakuru before his disappearance in early 2019 at her residence at Blankets estate of Mwariki area in Nakuru East Sub-county in Nakuru County.

“In the Month of March 2019, immediately after Dysseleer’s disappearance Waithera and her accomplices who are still at large leased the missing person’s residence to Avipro East Africa and started earning rental proceeds”, said Nabonwe.

TROUBLE BREWS IN WAJIR OVER 26.1 MILLION CORRUPTION CASE.

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BY SAM ALFAN

Wajir Governor Mohamed Abdi Mohamud has been ordered to appear in court on Monday next week after the DPP made a request to arrest and bring him in court.

The governor is listed as a witness in a sh 26.1 million corruption case facing three senior county officials and a bank manager.

Chief Magistrate Teresia Murigi issued the fresh summons after Governor Mohamud failed to honour three previous summons.

The DPP has sought a warrant of arrest against him after he failed to turn up in court without giving any reasons.

Governor Mohamud is expected to give his evidence following completion of investigations by the EACC in Wajir county corruption case.

The Governor’s evidence is treated as evidence in-chief.

The case is pegged on unprocedural withdrawal of money from the Wajir County government imprest accounts to a tune of Sh 26. 1 million and the same misappropriated.

The accused persons are out on Sh2 million bond each with a surety of a similar amount.

In February last year, Bank account of Daayo Construction and General suppliers were frozen pending investigation into purchase of two motor vehicle for Wajir Governor Mohamed Abdi.

High Court ordered the said company account at Kenya Commercial Bank Wajir branch be frozen for six months pending investigation on alleged misappropriation of money meant for purchase of two motor vehicles for Wajir Governor at a cost of 26 million.

The court also ordered account of Fine Trust Construction Limited at Kenya Commercial Bank Wajir branch frozen for six months.  12 million paid for the purchase of governor vehicle was transferred to the company.

Justice Hedwig Ong’undi further ordered Toyota Land cruiser  VX 8 LC 200 SERIES KCQ 004U should not be disposed of in any manner whatsoever for six months.

The Judge further ordered the said Governor’s Toyota Land cruiser  VX 8 LC 200 SERIES KCQ 004U be immediately placed in the custody of Ethics and Anti-Corruption Commission for inspection and valuation pending conclusion of the investigations.

This is after EACC moved to the high court Anti-Corruption court seeking orders to prohibit Daayo Construction & General Suppliers Ltd and Fine Trust Construction Co. Ltd from disposing,  wasting, dealing or transferring money in the Kenya commercial bank Wajir branch for period of six months.

The agency also applied for Cosmos Cars Limited barred from disposing,  wasting, dealing or transferring Toyota Land cruiser  VX 8 LC 200 SERIES KCQ 004U.

According to affidavit by investigating officer Eric Otieno, he said they are investigating allegations that 26 million public funds intended to purchase two vehicles for Wajir Governor were misappropriated.

KENYA AT LIBERTY TO PROTECT ITS BORDERS BEFORE THE ICJ-THE HIGH COURT DECLARES.

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BY SAM ALFAN.

The High Court has sanctioned Kenya’s participation in its maritime boundary dispute with neighbouring Somalia and rejected a petition by 20 civil rights activists to bow out of the international Court of Justice (ICJ).

The three-Judge constitutional court ruled on Friday (January 31) that the Attorney-General’s arguments before the international judicial forum will secure public interest and defend Kenya’s sovereignty.

“The AG’s participation in the proceedings will accord an opportunity to demonstrate to the ICJ Kenya’s impediment in the implementation of its decision in the event the dispute is decided in favour of Somalia. How else is the ICJ expected to know that any alteration to the territorial boundaries of Kenya must be backed by a popular referendum,” Justices Kanyi Kimondo, Robert Limo and Anthony Mrima reasoned in their unanimous judgment.

They acknowledged that Kenya has already entered an appearance before the Hague-based court and raised two preliminary objections that were dismissed in a judgment delivered on February 2, 1997. However, Kenya was bound by the court’s decision in line with Article 94 of the United Nations Charter and the domestication of international treaties and covenants.

The constitutional court observed that the decision of the ICJ, by a majority vote of Judges, was final with no recourse to review or appeal. “We readily find and hold that the jurisdiction of the High Court, as a municipal court, does not extent to the ICJ,” the three Judges pointed out when they declined to entertain the petition.

Kenya’s National Assembly had discussed the dispute and made resolutions following a joint motion sponsored by the Leaders of the Majority and Minority on August 6, last year. “We observe that the National Assembly, as the legislative arm of the Government, is seized of the dispute. It is clear from the resolutions that the National Assembly called upon the Executive to undertake diplomatic and, if necessary, military action to defend Kenya’s territorial integrity,” Justices Kimondo, Limo and Mrima said.

They went on “We find that the issues emerging from the amended petition would be more effectively resolved by diplomatic , legislative, policy and other Executive interventions rather than by a constitutional intervention.”

The court made its findings following rival arguments by lawyer Kibe Mungai, representing the aggrieved civil rights activists and lawyer Paul Nyamodi for three key State agencies. The activists were seeking conservatory orders declined by Justice Weldon Korir on July 11, last year seeking to suspend Kenya’s appearance before the international judicial forum.

Kibe had argued there was no justification for Kenya’s involvement in the maritime dispute with her neighbor because it breached constitutional principles governing its sovereignty and independence. Further, Kenya was at liberty to reject any international judicial interventions that were prejudicial to its citizenry, he had said.

On the other hand, Nyamodi explained that the State Law Office, the Foreign Affairs ministry and the Kenya International Boundaries Office “have been making steps whose ultimate aim is the protection of Kenya’s territorial integrity and political independence as a constitutional democracy.”

Nyamodi had relied on an elaborate sworn statement by Solicitor-General Kennedy Ogeto who said the State was justified to fully participate in the boundary dispute at the ICJ in line with its obligations to international treaties and covenants.

“The petitioners have not demonstrated any illegalities arising from Kenya’s participation in the dispute. They are assuming an unfavourable outcome by the ICJ. Some disputes are resolved by political interventions. Kenya will participate responsibly before the ICJ,” Nyamodi had submitted.

In his lengthy response, Ogeto had said the Government shared concerns raised by the 20 citizens that the ICJ should not have asserted jurisdiction to adjudicate the dispute but was categorical that “the proposed practical option of Kenya withdrawing from the case before the ICJ is untenable at this point in time.”

He had asserted that the participation of top government officials in the dispute was not a manifest violation of any of Kenya’s internal rules of fundamental importance. There was no basis for accusations that they have surrendered Kenya’s sovereignty to the ICJ and other entities, or acting in violation of the Constitution, he had pointed out.

In their petition, the citizens, led by renowned civil rights crusader Kiriro wa Ngugi, had protested that the Attorney General, the Foreign Affairs Cabinet Secretary and the Kenya International Boundaries Office should not be allowed to “meekly escort Kenya into an international judicial slaughter-house.”

In the event Kenya lost the case, they claimed, it would be virtually land-locked with an extremely minimized access to the Indian Ocean. Somalia and multi-national oil corporations had conspired since 2014 to lay claim on Kenya’s maritime zone, they said in the petition.

KNCCI NOW WANTS MAGISTRATE INVESTIGATED OVER CONTROVERSIAL ORDER.

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BY SAM ALFAN.

The Kenya National Chamber of Commerce and Industry (KNCCI) President Richard Ngatia has petitioned for the removal of a magistrate over the handling of an election dispute involving the chamber.

In a petition filed before the Judicial Service Commission (JSC), Ngatia seeks the removal of Milimani Senior Resident Magistrate Maryanne Murage for alleged gross misconduct.

Ngatia wants the magistrate removed for giving an order stopping KNNCI from conducting the election of a chairperson of Women in Business Committee. The election was slated for January 24 at a city hotel.

He wants the magistrate to be investigated to ascertain whether she failed to discharge her duties in the interests of justice and was not impartial in discharging her duties, when she issued the order.

Further, Ngatia accused the magistrate of granting an order stopping the elections to replace Mary Nyachae. The case was set to be heard on February 4, 2020 but it was later overturned by the High Court.

Ngatia the court never took into account the preparations that had been put in place for the meeting and the elections including the travel arrangements for the delegates and their accommodations. He said the chamber had already made a deposit for the hotel booking.

He claims that from the onset, the dispute was not commercial in nature and the matter ought not to have been commenced before the commercial court. He said the magistrate did not have the jurisdiction to issue the orders.

“The court failed to ask the applicant to provide any security for the imminent costs incurred by the chamber in preparation for the said elections given that it was just three days to the elections and despite the advertisement having been done on January 13, 2020 the applicant chose to move to court just few days to the actual elections “, Ngatia says in the letter.

Ngatia argues that despite the foregoing, the magistrate went ahead to allocate herself the matter for inter parties hearing which obviously demonstrate personal interest in the matter.

He wants the JSC to find Murage guilty of misconduct and that she had personal interest in the matter and therefore there was a conflict of interest.

However the orders were set aside last Friday by Judge Msagha Mbogholi and allowed KNCCI president Richard Ngatia to conduct fresh elections.

DPP TOLD TO STICK TO PROSECUTION AS LAWYER SEEKS TO BAR HIM FROM COMMENTING IN BABU’S CASE.

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BY SAM ALFAN.

City lawyer has reminded the Director of Public Prosecution Noordin Haji that there is no that law that requires judges and magistrates to give him rulings and judgements to approve before they read it in court.

Lawyer Danstan Omari speaking outside the high court building shortly after filing two applications seeking to bar the DPP from commenting on his client, Embakasi Member of Parliament Babu Owino’s case and reviewing his bond terms, reminded Haji that his duty is prosecution.

There is no where in law that judgement or ruling must be given to the DPP to approve before it is read.” Said Omari

Lawyer Omari was reacting to a statement made by the DPP questioning the ruling by the magistrate saying he has never heard of such a ruling where the accused is paying bail in installments.

The lawyer said the DPP needs to be briefly told that what the Magistrate did was a novel decision payments of bond in terms in installment.

The same should be taken up by other courts and supported by other Kenyans instead of people being jailed for failure to raise heavy fines.

He questioned whether the DPP was  preparing ground to start arresting judicial officers who have made decision that offends him after he questioned the chief Magistrate ruling insinuating it was illegal.

He reminded Haji that a decision of a judge or magistrate cannot be declared illegal and he can only appeal the decision.

He added that the congestion we have in our prison is because people are supposed to pay the fines instantly which they can’t afford due to their financial challenges.

The lawyer said the DPP gave a very terrible statement indicating that all his life he has never seen or heard a judgment or ruling such as the one that come out from Babu Owino’s case.

“The DPP’s role is prosecution and therefore if he himself has never heard such a ruling , it does not make that ruling an illegality. Precedence for the benefit of citizens of this country , precedence are set by judges who will always judge and Magistrates will give new decision that have never existed.” Said Omari.


His statement was echoed by the countries top criminal lawyer Cliff Ombetta who said DPP Haji has never been in any court.

Ombetta accused Haji of playing to the public gallery and prosecuting cases through the media instead of producing evidence in court.

“The DPP is an attack dog without a master. Anytime he wants to bully the judiciary,  he first goes public in a whinny manner to complain on anything and how he has put a lot of effort yet is being frustrated by the judiciary. He thereafter goes for any applications hoping that his cries would get favour from the public(in cover of public interest) and at the same time scare judicial officers.” said lawyer Ombetta.

He said that the latest trend is to arrest them or deface them or complain to the JSC.

“This man is wasting his talent in that office. He should be in Hollywood”, Added Ombetta.

BABU OWINO SEEKS TO STOP DPP PUBLICIZING HIS CASE.

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He wants DPP restrain the DPP from making public comments on media stations, social media.

There is no where in law that judgement or ruling must be given to the DPP to approve before they are read.

BY SAM ALFAN.

Embakasi East Member of Parliament has moved to court seeking to restrain the DPP from making public comments on media stations, social media or any other form of public communication in relation to his case.

MP Paul Babiu Owino wants the DPP not to make any comments pending the hearing and determination of his case.

Through lawyers Danstan Omari, Duncan Okatch and Cliff Ombeta the MP argues that Haji is heard publicly, viciously attacking and delving into the merits of the ruling as rendered by Chief Magistrate Francis Andayi and as such prejudicing the applicant’s constitutional right of being presumed innocent until proven otherwise.

Lawyer Omari dismissed Director of Public Prosecution Noordin Haji statement protesting Chief Magistrate Francis Andayi ruling.

Omari reminded the DPP that no law requiring judges and magistrates to give him rulings and judgments before reading them.

“There is no where in law that judgement or ruling must be given to the DPP to approve before they are read.” Omari said.

Babu accuses Haji of being an inciter of the public in total disregard of his rights and the tenets of law and procedure when dissatisfied with the decision of the court.

Babu was admitted to bail of Sh 10 million to be paid in installments within three months, a ruling which the DPP says he has never heard of and would ‘revisit’.

“The DPP is clearly litigating the case in public yet this court is properly seized  of the matter and as such the same seeks to embarrass and ridicule the honourable court in the eyes of the public.” The MP argues.

According to his application under certificate of urgency, Haji’s actions are said to amount to a public persecution of Babu instead of the constitutional mandate of prosecution.

It is his argument that the DPP’s utterances jeopardises not only his constitutional rights but also the integrity of the court as an institution that is mandated  to protect the Rule of law and natural justice.

He wants the court to exercise its discretion in revision of the ruling by the Chief Magistrate Francis Andayi made on January, 27,2020 wherein the said Magistrate found that the prosecution had established that there were compelling reasons to deny the accused person bail or bond. 

“The Court be pleased to review the terms set by the Court to be favorable and reasonable in line with the doctrine of presumption of innocence and thus also grant an option of bond.”Urged Babu.

He said the court failed to appreciate that there are no compelling reasons to deny the accused person bail or bond and instead factored in and / misapplied such factors and aspects in arriving at such a finding.

The MP said the Court failed to uphold the constitutional doctrine of presumption of innocence in its ruling and bail terms and shifted the burden of proof to the accused person in its determination of whether or not compelling reasons existed.

He added that reasons advanced by the prosecution were not sufficient to deny the accused bail or bound.

” In the interest of justice and fairness the Court do admit the Kenya Magistrates and Judges Association as an interested party as grave concerns have been raised by the Respondent that seek to interfere with the discretion of Magistrates and to an extent judges when dealing with such applications and thus a direct attack on the independence of the Judiciary as a whole.”Added Owino.

MUTHAMA OUT OF THE HOOK OVER INCITEMENT CHARGES.

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Former Machakos Senator Johnston Muthama .

BY SAM ALFAN.

High Court on Wednesday  stopped further prosecution of former Machakos Senator Johnstone Muthama on hate speech charges after declaring penal code on incitement to violence unconstitutional.


In a judgement by Justices Jessie Lesiit, Luka Kimaru and John Mativo issued an order prohibiting the director of public prosecutions Noordin Haji from further prosecuting Muthama on the basis of the charge sheet presented to court.

The judges said that the section shifts the legal and evidential burden of proof to the accused person before the prosecution has discharged its legal burden of proof of establishing  its case in a criminal trial thereby violating the provisions of Article 25(c) , 49(1) (a) (ii) and (iii) , (b) , (d) and Article 50 (2) (a) , (i) and (I) of the constitution.

“That section 96 of the penal code is unconstitutional to the extent that it shifts the legal and evidential burden of proof to an accused person before the prosecution has discharged its legal burden of proof of establishing its case in a criminal trial, thereby violating certain provisions of the constitution,”held the judges.

The court further recommended that the Attorney General Kihara Kariuku prepares a bill to be presented to parliament with a view of remedying the deficiency in section 96 of the penal code so that it is amended to conform with the Constitution as stipulated in section 7 of the sixth schedule to the constitution. 

The judges directed that the AG should do so within a period of one year so that the purport and intent of the impugned provisions is maintained.

The judges said the competency of the charge sheet is matter for the trial court.
“Section 96 (a) of the penal code shifts both the legal burden and the evidential burden of proof to an accused person even before the prosecution has discharged its legal burden of proof,”noted the Judges.

The function and effect of the said section is to relieve the prosecution of the burden of proving all the elements of the offence with which the accused is charged. 

The provision shifts and evidential burden of prove to the accused person thereby infringing the presumption of innocence which is entrenched in article 50 of the constitution.

The bench said that the section is not only in conflict with article 50 of the Constitution but also offends the long established rule of the common law on the burden of proof that “it is always for the prosecution to prove the guilt of the accused person and that the proof must be beyond a reasonable doubts.”

Lawyer John Khaminwa submitted that it does and as a consequence it has no validity under the constitution because it infringes section 50 of the Constitution which guarantee an accused person a fair trial and presumption of innocence before and during the course of trial. 

He also argued that the provision offends an arrested person’s right to remain silent as provided for in the law.
Khaminwa further had argued that the police and the DPP applied the law in a selective and discriminatory manner in making the decision to investigate and charge Muthama. 

KNCCI CHAIR PETITIONS JSC FOR REMOVAL OF JUDGE MSAGHA MBOGHOLI.

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BY SAM ALFAN.

The chairperson of the Women in Business Committee at Kenya National Chamber of Commerce and Industry Mary Nyachae has petitioned the removal of a judge for alleged gross misconduct.

In a petition to Judicial Service Commission (JSC), Nyachae wants High Court Judge Msagha Mbogholi removed after he lifted an order barring the elections which were to be conducted on January 24.

The orders had been issued by Milimani Commercial Senior Resident Magistrate Maryanne Murage.

Through his lawyer Danstan Omari, Nyachae said the court had stopped KNCCI from conducting the election of a chairperson of Women in Business Committee. She wants the judge to be investigated to ascertain any benefit he may have received for taking a deliberate legal misdirection.

KNCCI filed an urgent application and successfully suspended the orders, paving the way for the election, to replace Nyachae.

She claimed that the judge did not even certify the matter as urgent before proceeding to grant the substantive order.

According to the petition, the conduct of the Judge do not only bespeak of grave incompetence but is also suspicious and suspect of ill will, shrewdness and high handedness from the said justice who understandably lacked legal authority to direct as he did.

“It is common ground amongst practitioners in Kenya that all urgent applications filed under a certificate of urgency are filed before noon and thereafter presented before the duty judge for directions on the same day and it is common knowledge that applications filed past noon are heard or are, as practice entertained by a judicial officer the day after and directions issued thereafter”, adds petitioner.

Nyachae argue that the application, having been paid for at 14:47 hours on January 23, 2020, it is impossible that the said Judge would reasonably have entertained it ex-parte on the 23rd January, 2020.

She claimed that the judge entertained an application filed past noon and proceeded to grant very disturbing orders that are contemptuous to the judicial authority granted to the Honourable Magistrate by the Constitution.

“This misbehavior by the Learned Judge reasonably births suspicion about his conduct and his faithfulness to his oath of office and grant of the order by the Learned Justice through a miscellaneous application other than an appeal or review by the trial court demonstrate gross misconduct and unfathomable misbehavior from the judge.” claims Nyachae.

She say the conduct of the judge as shown above, went against all known principles of judicial independence and conduct.

“A Judge shall exercise the judicial authority independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.” said Nyachae.

She also adds that the judge being intellectually dishonest and selectively applying the law, so as to avoid the outcome borne by a fair application of the law, the named judge breached all known principles of judicial independence and Clauses 4 and 5 of the Judicial Code of Conduct and Ethics.

JKIA-WESTLANDS EXPRESSWAY RUNS INTO HEADWINDS AS MAN SEEKS TO STOP CONSTRUCTION.

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BY SAM ALFAN.

Bunge la Mwananchi has moved to court seeking to stop implementation and construction of the Jomo Kenyatta Airport-Westlands express way.

Through it’s President Henry Shitanda, the association seeks to stop the construction of the said highway pending the hearing and determination of the case.

In the court documents filed in court, he further seeks an order to prohibit the Kenya National Highways Authority and the Attorney General from undertaking or implementing the construction of the highway until they conduct public participation.

Further, the association claims that the public should be involved in the said project per the Public Finance Management Act among others.

Shitanda is also seeking an order to compel Kenha and AG to conduct public participation and involve the people on the intended implementation and construction of the express way.

He claims on October 16, 2019, President Uhuru Kenyatta in conjunction with Kenha presided over the launch of the JKIA express highway.

“The design, negotiations, structures and planning was done in secrecy and the poly decision to establish or formulate the aforesaid designs or the said express way was as well done and formulated in secrecy in an opaque manner and without the involvement of the members of the public of any other Persian. To be affected by the intended construction,” says Shitanda.

He argues that there was no such notice, publication or dissemination of information relating to the said project was ever made to the members of the public and the project as it stands offends the constitutional values and principles of public participation and the involvement of the people in financial matters.

Shitanda claim that on November 21, last year through his lawyer wrote to KeNHA and attorney general enquiring about the project and requested them to conduct public participation and to involve the people on the same.

He wants the court to intervene at this early stage of the project to secure the usage and expenditure of public resources.

Last year Supreme Court ruled that public participation must be real and illusory.

“It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation,” the Judges stated.

The court added, “As a constitutional principle under Article 10(2) of the constitution, public participation applies to all aspect of governance.”

The judges said that lack of prescribed legal framework for public participation is no excuse for not conducting public participation, the onus is on the public entity to give effects to the constitutional principle using reasonable means.

They added that public participation is not an abstract notion, it must be purposive and meaningful and public participation must be accompanied by reasonable notice and reasonable opportunity and reasonableness will be determined on a case to case basis.

The five judges added that public relation is not necessarily a process consisting  of oral hearing, written submissions can also be made and the fact that someone was not heard is not enough to annual the process.