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KINOTI PLEADS WITH APPELLATE COURT TO SUSPEND BARRING POLICE FROM DRAFTING OR SIGNING CHARGE SHEETS.

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Director of Criminal Investigations George Kinoti with Director of Public Prosecution Noordin Haji./FILE PHOTO.

BY SAM ALFAN.

Director of Criminal Investigations (DCI) George Kinoti wants Hugh Court decision barring the police from drafting, signing and presenting charge sheets for criminal prosecutions suspended, pending appeal.

Kinoti says the decision by Judge Anthony Mrima has far-reaching consequences in the criminal justice system.

The DCI boss says the conduct and determination of numerous criminal cases have been thrown into legal uncertainty adversely affecting the entire criminal justice system.

He said the judgment should be suspended, as the consequences are irreparable.

Attorney General Kihara Kariuki, Inspector General of Police Hillary Mutyambai have also supported the application by Kinoti for the appellate court to suspend the High Court decision.

“Unless a conservatory order staying the execution of the judgement and orders of the superior court of May 23,2022 in Nairobi Constitution petition No E495 of 2021 is granted pending the hearing and determination of the substantive appeal , the appeal if successful, will be rendered nugatory”, says DCI Kinoti.

They argue that it would be in the greater public interest to suspend the execution of the the said decision and orders pending hearing and determination of the pending appeal.

Mutymbai said the stalemate occasioned by the said judgement is a threat to the national security in that people who have committed criminal offences cannot be urgently charged in court.

He says thousands of investigated cases affected by Mrima’s judgement and court should take judicial notice that the country is in an electioneering period.

The police boss added that the entire security apparatus and criminal justice system are supposed to be effective and this cannot be achieved with the legal uncertainty occasioned by the said judgement.

“The applicant and the general public will suffer prejudice if orders sought are not granted for the same are sought in public interest and stability of a country is dependent on a robust criminal justice system and this has been compromised by the legal uncertainty brought about by the said judgement”, IG Mutymbai told the appellate court.

The IG further argues that if the decision and orders of the superior court are not suspended pending the determination of the intended appeal, the same may be rendered nugatory as the grave and adverse implications of the decision of the court will have taken effect.

HAVI NOW TAKES OVER CBC CASE AFTER INITIAL PETITIONER WITHDRAW FROM THE MATTER.

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Lawyers Nelson Havi and Esther Ang'awa.

BY SAM ALFAN.

The High Court has allowed former Law Society of Kenya President Nelson Havi to take over a case seeking to block the government from further implementation of Competency Based Curriculum (CBC).

A three judge bench of Hedwig Ongodi, Anthony Mrima and Anthony Ndung’u allowed the substitution of Havi from lawyer Esther Ang’awa.

The court directed that all pleadings, proceedings and all documents filed be amended to indicate Havi as the petitioner.

Ang’awa sued the Ministry of Education complaining that the new curriculum was burdening parents.

She later withdrew from the case saying she has been negatively profiled by the government and state agencies. The lawyer claimed that negative sentiments by state agencies will prejudice her and the education of her child.

The judges said the impact of the petition goes beyond the Ang’awa and it was only fair and just that the substitution sought be allowed to pave way for a determination of the weighty issues raised in the petition and which are of great public interest.

“We find that the substitution of the petitioner (Esther Ang’awa) with applicant (Nelson Havi) in this matter would serve the interest of justice in line with the constitutional principles and objectives as set out in this analysis,” ruled judges.

They added that furthermore, Ang’awa’s interest is in line with Article 3(1) of the constitution which obliges every person to defend the constitution and Article 22(2)(c) which grant her locus standi in the matter.

The judges perceived that Ang’awa was not championing the personal rights of her child only and orders sought evidently involved great public interest.

Havi had applied to be substituted as the petitioner after Ang’awa informed the court that she was no longer interested in pursuing the case.

The petition has also sued Kenya Institute of Curriculum Development, Kenya examination Council and Teachers Service Commission as parties in the case.

It seeks to stop the government from further implementing the curriculum arguing that its rollout was unlawful.

The petition states that the Ministry of Education rolled out a curriculum for basic education purporting to phase out and replace the 8-4-4 system through sessional papers and policy instead of legislation.

According to the petition, no identifiable document or instrument upon which the CBC curriculum can be traced as one developed in the manner set out in section 73 and 74 of the Basic Education Act NO. 14 2013 as read together with section 4 of the KICD Act.

Further, the case states that the government has undertaken the unlawful action enumerated by publishing learning materials without any curriculum having been developed in accordance with the constitution.

The petition also contends that the CBC curriculum has sought to impose an economic burden of procuring course books, learning material among other school items.

SOUTH AFRICAN WHO SUED META FOR POOR WORK ENVIRONMENT WANTS HIS WITNESSES PROTECTED.

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Chief Executive Officer of Meta, Mark Elliot Zuckerberg

BY SAM ALFAN.

A South African man who has sued Facebook owners over a toxic work environment now wants all non-disclosure agreements signed by moderators engaged by a Kenyan company on its behalf quashed.

Daniel Motaung wants the agreement signed between them as Samasource Kenya declared null and void to the extent that they prevent the moderators from giving evidence in court or participating in the petition.

It is his argument that all the non-disclosure deeds signed by any former Facebook content moderators engaged through Samasource Kenya are illegal to the extent that they prevent the former content moderators from giving evidence in court.

The South African says the court should expunge any information that may identify his intended witnesses from the Court`s public record and allow his intended witnesses to use pseudonyms in pleadings and when testifying                                                                                                        

“Court be pleased to issue an order allowing the Petitioner`s intended witnesses to give oral testimony, if it will be required through image and voice distortion or alteration devices”, he seeks.

Motaung also wants the court to lift the confidentiality veil so that any former moderator who is willing to participate in the petition, does so freely.

He also wants to be allowed to furnish court with proof that he intended witnesses are persons who qualify as witnesses under The Evidence Act and that such proof be expunged from the court record.

The former content moderator who resigned in January says unless orders sought are granted there is an imminent risk of the court acting without jurisdiction.

He further wants an order restraining and barring the respondents by themselves, their employees, their agents, their servants, assigns, successors or anyone acting under their authority, direction, control or instruction from, whether by words or action, making any threats whatsoever to any current or former Facebook Content Moderator and dissuade that content moderator from joining or continuing in the Petition either as litigant or witness.

“Court be pleased to issue an order  barring the respondents either by themselves, their employees, their agents, their servants, assigns,  successors or anyone acting under their authority, direction, control or instruction from taking any adverse action against the Petitioner, any litigants, witnesses and experts witnesses in this Petition,” he adds.

According to the court`s documents, the lives and safety of current and former Facebook content moderator will be endangered if there identity are made public. Some of the witnesses are currently engaged through Samasource.

“The identity of any intended witnesses must be kept private at all times in order for the petitioner to be able to properly to present his case and protection of the identities of the intended witnesses will maximize and improve the quality of the intended witnesses’ evidence as they will be free to provide all relevant evidence without fear of retaliation “, argues Matuong.

He further claims that there is sufficient evidence of retaliation and adverse action being taken by Samasource, Meta Platforms Inc and Meta Platforms Ireland ltd against whistle-blowers and without court protection the intended witnesses will suffer the same.

Motuang adds that there is reason to believe Samasource, Meta Platforms Inc and Meta Platforms Ireland ltd will retaliate against the current and former Facebook content moderators should they come forward as witnesses in the case. The current Facebook content moderators fear they will lose their jobs if they testify without court protection.

He adds that NDAs and the non-disparagemts Deeds that Samasource, Meta Platforms Inc and Meta Platforms Ireland ltd have made with both former and current moderators signed are unconscionable and unconstitutional as they are unlawfully restricting them from advocating for their human rights by testifying in the case.

DCI BOSS DISMISSES POLITICIANS WHO BELITTLE POLICE OFFICERS.

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ICT Cabinet Secretary Joe Mucheru with Director of Criminal Investigations (DCI) George Kinoti.

BY SAM ALFAN.

The Director of Criminal Investigations (DCI) George Kinoti General has told off politicians who belittle police officers based on their academic qualifications.

The DCI boss termed the recent verbal attacks on police officers as misplaced, wondering why those making fun of police officers who provide security to them.

The DCI chief added that police officers should be congratulated for being emotionally strong, when provoked under such circumstances, while they continued providing their services dutifully.

Kinoti made during the launch for training of 20 million citizens on digital skills, at a function presided over by the Cabinet Secretary for ICT Joe Mucheru, at a city hotel.

He lauded the initiative by the ICT ministry saying it was timely, in the increasingly globalized world that we live in today.

The DCI Chief noted that the Directorate had digitized most of its services and embraced modern day technology in solving crimes, by employing Forensic science in investigation of cases.

This he said had led to the expeditious resolution of crime puzzles that would have hitherto taken long to resolve, placing the Directorate as per with established investigative agencies across the world.

Kinoti said that the Directorate had developed the required human resource capacity including experts in Chemistry, Biology, Medicine, and Mathematics among other scientific fields who are the leading brains behind the improved performance of the Directorate.

GOSPEL SINGER KIGAME NOW WANTS TO BLOCK IEBC FROM PROCESSING PRESIDENTIAL CANDIDATES UNLESS HIS NAME IS INCLUDED.

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Evangelist Reuben Kigame who is seeking to block Independent Electoral and Boundaries Commission (IEBC) from clearing other presidential candidates.

BY SAM ALFAN.

Evangelist Reuben Kigame has moved to court to block the Independent Electoral and Boundaries Commission (IEBC) from clearing four presidential candidates for the forthcoming polls unless he is included in the list of contenders.

In a petition filed before the High Court, Kigame wants to bar IEBC chairman Wafula Chebukati from processing the papers of the four presidential candidates who have already been given the greenlight to contest the top seat. 

The four who have been cleared include Azimio La Umoja candidate Raila Odinga, Kenya Kwanza aspirant William Ruto, George Wajackoyah and David Mwaure.

Kigame and scores of others were blocked after failing to meet the conditions placed by the electoral body.

The gospel artist, however, says he was unfairly blocked yet he is a person with disability. He now wants the high court to compel Chebukati to accept his documents in the Presidential check list.

“Unless this Court intervenes by exercising its sacred and primary duty under Article 23 the Respondents will continue to violate this Constitution and the rights and fundamental freedoms of the Petitioner”, adds Kigame.

It is his argument that the commission violated his constitutional rights as enshrined in the Constitution and the electoral body should clear him for the next level by being included in the presidential ballot on grounds of affirmative action that would promote inclusiveness.

He said on May 23 in the company of other Presidential candidates attended the pre nomination by the IEBC at the Bomas of Kenya in which the meeting, the chairman of the commission gave them an extension of two days to table signatures, ID copies of at least 2,000 voters of the majority counties.

He adds that Article 56(a) of the Constitution which provides for the rights of minorities and marginalized groups requires that the State put in place affirmative action programs designed to ensure that minorities and marginalized groups participate and are represented in governance and other spheres of life. 

“As a person living with a disability, the Petitioner falls into the category of minorities and as such is entitled to the rights provided for herein. The Respondents’ blatant disregard of his rights and arbitrary denial of an opportunity to exercise this right grossly violates his constitutionally protected right. 

Article 137 of the Constitution provides for the qualifications and disqualifications for election as president which require that the candidate be a citizen by birth, be qualified to stand for election as a member of Parliament, is nominated by a political party or is an independent candidate and is nominated by not fewer than two thousand voters from each of a majority of the counties.

He contends that he met all qualifications set out and yet Chebukati barred him from proceeding with his bid on scanty grounds that he did not comply but failed to explain exactly how he did not comply and has since refused to engage or respond to the Petitioner’s queries on the same.  

“Under Section 11 of the Persons with disabilities Act, the Government is mandated to take steps to the maximum of its available resources with a view to achieving the full realization of the rights of persons with disabilities and this further buttresses the Petitioner’s rights as expounded above and the obligation by the government to ensure that his rights are protected and upheld”, adds Kigame.

Kigame initially presented the required documents on the May 23, 2022 and was awarded a two-day extension to regularize his documents to comply with the regulations. He then resubmitted them on the May 25 when he was told that his documents required some binding and other clerical work for presentation and was given a further extension to comply with the same. 

He reappeared on May 29, 2022 as directed by Chebukati’s officer and wished to submit the now compliant documents and he was however denied access and an audience to the IEBC despite waiting for eight hours and was instead served with a non- compliance letter on email from Chebukati.

This letter did not disclose details as to how he had not complied thus pointing that this denial is arbitrary and a violation of his constitutional and statutory entitlements as outlined.

KENHA BOARD CHAIR DEFENDS HIS APPOINTMENT.

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Kenya National Highway Authority (KeNHA) Chairperson Eng Wangai Ndirangu.

BY SAM ALFAN.

Kenya National Highways Authority (KeNHA) board chairman Wangai Ndirangu has defended his appointment saying it was done in accordance with the law.

Ndirangu wants a case filed by a lobby group dismissed because it is not motivated by public but selfish individual interest and an afterthought.

In reply to a petition filed by Sheria Mtaani, Ndirangu argues that the case has no basis as it is not premised on any allegation of denial, violation or threatened violation of the bill of rights.

“The applicant has not demonstrated any prejudice that it will suffer if the orders sought are not granted,” reads court papers.

According to Ndirangu, the case was filed by a selfish individual interests and it is an afterthought, mischievous, discriminatory against him and an abuse of the court process.

“That the appointment of the Interested Party (Ndirangu) by the President of Kenya, as the Board Chairman of Kenha, was done in compliance with the provisions of Section 5(1)(a) and 5(2) of the Kenya Roads Act No. 2 of 2007,”  claimed Kenha in court documents.

The lobby group moved to court seeking the removal of Ndirangu from office.

RELIEF FOR SONKO AS COURT LIFT ORDERS BARRING HIM FROM CONTESTING FOR MOMBASA GOVERNOR.

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Former Nairobi Governor Mike Sonko who is Wiper Party Mombasa Gubernatorial candidate speaking at Milimani Law Courts building in Nairobi./PHOTO BY S.A.N.

BY SAM ALFAN.

Former Nairobi Governor Mike Mbuvi Sonko has been handed a political lifeline after the High Court lifted orders barring them from contesting in the forthcoming polls.

A three judge bench lifted orders barring the Independent Electoral and Boundaries Commission from clearing them to vie, over claims that they had been impeached.

Justices David Majanja, Chacha Mwita and Mugure Thande ruled that that issue of eligibility was core subject for determination in the consolidated petitions and the parties ought to be given an opportunity to be heard before orders of that nature were issued.

 “The orders denied the IEBC the constitutional mandate to discharge its duty which included deciding whether to accept or decline at the nomination stage. The process is governed by clear constitutional statutory provisions,” ruled the Bench.

The three Judge Bench led by Justice Majanja noted the orders were issued ex-parte and the bench had jurisdiction to review, vary or set them aside.

The bench was formed by Chief Justice Martha Koome, last week on Tuesday to determine cases concerning whether or not candidates with pending integrity should be cleared to vie.

The eight consolidated petitions were filed in various courts challenging the suitability of Mombasa gubernatorial aspirant Mike Sonko Mbuvi impeached by the Senate while serving as Nairobi county boss.

Kiambu Senatorial aspirant Karungo wa Thang’wa was also benefited from the order

Thang’wa is seeking to be the Kiambu senator on an UDA party ticket. IEBC was barred from clearing him on May 25.

In yesterday’s ruling, the court noted it will make a final determination on the issues raised in the consolidated petitions.

The ex-party orders had been issued barring IEBC from receiving, considering and evaluating from, from Sonko and vie for the restraining IEBC from publishing in the Kenyan Gazette Sonko as a candidate pending hearing and determination of the case.

In Mombasa court the orders were issued restraining IEBC from processing Mike Sonko’s to vie for Mombasa Gubernatorial elections pending hearing and determination.

Opinion polls indicates Sonko stands the best chance to be the next Mombasa Governor.

ACTIVIST NOW WANTS UHURU TO INTERVENE AND KICKSTART REMOVAL OF DPP HAJI.

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Director of Public Prosecution Noordin Haji who activist Charles Rubia wants compelled to resign by President Uhuru Kenyatta.

BY SAM ALFAN.

An activist has written to the President Uhuru Kenyatta for his intervention and compel Director of Public Prosecution Noordin Haji to resign or step aside from office.

Charles Rubia wants the DPP directed to resign from the office and investigations conducted on the issues that will be brought to President’s attention.

He claims that DPP Haji has failed to provide leadership to the institution he has been tasked to lead and has failed to give directions to capable prosecutors on the way forward.

“Notwithstanding, it is imperative and necessary that the President does intercede like greased lightning for the sake of all Kenyans who are now looking up to the president to uphold their fundamental rights and freedoms, the rule of law, justice and public interest in the fullness of time,” Rubia says in the letter.

He adds that several letters and petitions and numerous calls for action to administrative bodies and relevant commissions have been made against Haji.

“Establishing enumerating and illustrating countless grounds that would ideally prima facie warrant the removal of the Director of Public Prosecution from the office of the Director of Public Prosecution in accordance with Article 158 of the Constitution of Kenya, 2010,” he adds.

He says a quick walk along the corridors of justice within the court corridors you will no longer see the vibrant and smiling prosecutors we once knew and regarded highly and whispers can be heard of their frustrations, they cannot make quick decisions for fear of repercussions, transfers, interdictions without justification and senior prosecutors have been sidelined to handle serious matters thus serious lack of membership.

He claimed that DPP Haji has never stepped in a court of law to prosecute and unlike his predecessors, he is yet to appear before any court within Kenya.

“Haji has been busy and preoccupied by embarking on launching various guidelines solely without proper stakeholders’ consultation causing unnecessary disharmony within criminal justice shareholders,” he said.

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LAWYER WANTS MALALA BLOCKED FROM CONTESTING THE KAKAMEGA GUBERNATORIAL SEAT.

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Kakamega resident Fred Muka addressing the press outside Milimani Law Courts building.

BY IRENE ONYANGO.

A Kakamega resident has moved to court seeking to block Kakamega Senator Cleophas Malala from contesting the gubernatorial seat in the forthcoming polls over claims that he does not possess a university degree.

Lawyer Fred Muka claims in court papers that Malala’s academic papers are questionable. The lawyer says that the senator, who wants to contest the Kakamega governor’s seat on an ANC party ticket, never graduated from United States international University (USIU).

He alleges that Malala’s degree certificate has gained notoriety displaying patent disparities, inconsistencies, irregularities and contradiction that he graduated from USIU in the year 2011 while his degree certificate was printed in the year 2019.

According to him, the eight year period between the date of graduation and issuance of the degree is questionable because ordinarily the date on a degree certificate is the day a person graduates from an institution.

“A cursory glance at the graduation list of USIU for the year 2011 shows that Malala herein did not feature among the graduates for Bachelor of Science in information systems and technology neither did his name feature in the graduation list of 2019,” he said in the petition.

Muka also claims that Malala’s KCSE certificate from Friends School Kamusinga displays a different code from that of the official code of Kenya National Examination Council.

Muka says he is apprehensive that the certificates showcased by the senator may be falsified documents and that the Independent Electoral and Boundaries Commission (IEBC) may clear him to vie for the gubernatorial position while relying on a misleading information which is an illegality and a direct breach of the constitution and the law.

CJ SAYS JUDICIARY IS READY TO HANDLE ELECTION PETITIONS.

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Chief Justice Martha Koome.

BY SAM ALFAN.

Chief Justice Martha Koome has said the Judiciary is prepared to handle hundreds of election petitions that will be filed after the August 9 General Election.

Justice Koome said any party aggrieved by actions or decisions relating to the electoral process should rest assured that courts have put in place mechanisms that guarantee competent, fair, transparent and expeditious resolution of cases.

“I urge all duty bearers, all Kenyans, the political class and the media to work together to make the 2022 general elections, a free, fair and peaceful elections. It is only by working together that we will protect the right to vote which is one of the most fundamental, and cherished, principles of our democracy,” the CJ said.

The CJ said despite the budgetary constraints that the Judiciary continues to face, courts will do all it can to ensure that it mobilizes the required resources to achieve the set goals.

She added that implementing the Judiciary’s Election Preparedness Work Plan optimally requires finances.

The CJ said judges have been actively engaging other agencies in the government including the National Treasury to ensure adequate resourcing of the Judiciary to undertake its EDR role optimally.

She thanked the development partners that have engaged directly with the Committee and expressed willingness to partner with the JCE in the implementation of the Work Plan. We are grateful that the Development Partners have continued to have faith in the Judiciary and have come forward to support our plans.

“I thank IFES and the Foreign, Commonwealth and Development Office (formerly DFID), Electoral Law and Governance Institute for Africa (ELGIA), International Commission of Jurists, Kenyan Section (ICJ – K) and Attorney General Alliance Africa (AGA-Africa) which are already onboard as partners to the JCE”, she added.

Koome added that they have supported various Stakeholders Meeting and revision of the Committee’s Strategic Plan as well as some of the EDR Trainings. I thank them for their willingness and readiness to work with the Judiciary and welcome their hand of support.

Justice Koome added that this is now time for consolidation of the gains and lessons from the previous two election cycles.

“The IEBC as the body vested with the mandate of conducting elections has clear guidance on the standards to adhere to and parameters within which to manage the elections given the Judiciary’s interpretation of the Constitution and electoral laws in the past electoral cycles and it is therefore our expectation that the lessons from the past judicial decisions are being considered by the IEBC as it prepares to conduct the elections,” she said. 

The Supreme Court’s nullification of the 2017 presidential election and the Court was categorical that it nullified the election because the IEBC did not conduct the presidential election in conformity with the Constitution and electoral law.

“The Supreme Court did not find any evidence of misconduct by the candidates but instead saw in evidence, a systemic institutional problem. More specifically, IEBC failed to ensure that the process of “transmission and declaration of results” of the presidential election was verifiable as stipulated by the Constitution,” she added. 

Justice Koome said the top court specified that IEBC while discharging its constitutional mandate must always conform to the Constitution and electoral law by ensuring that all requisite processes are simple, accurate, verifiable, secure, accountable and transparent.

She said the judiciary’s expectation is that the IEBC is consciously working to ensure its processes meet the demands of the principles of the electoral system as elaborated in Articles 81 and 86 of the Constitution.

Judges, she added, also expect IEBC to have worked or to be working with stakeholders to consolidate the progress made in integration of technology to manage Election Day activities and management of results and there should be clear steps to address some of the challenges in integration of technology in voter identification and transmission of results.

“These will help address some of the challenges identified in the last two election cycles. We are hopeful that any electoral law reforms, including review of the Elections (General) Regulations, takes into account the opinions expressed by the courts on the need for all electoral laws and regulations to conform with and promote the constitutional standards on electoral integrity and accountability,” added CJ.