Blog Page 334

GOVERNOR KIDERO WANTS TO STOP MUMIAS PROBE.

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Nairobi Governor Evans Kidero.
BY NT REPORTER.

Nairobi Governor Evans Kidero has moved to court seeking to stop the Capital Market Authority from investigating his personal bank accounts during his tenure at Mumias Sugar Company.

Kidero alleges that the investigations by Capital Market Authority and DPP constitutes nothing but intimidation , political harassment using government agencies to humiliate and degrade him in the eyes of general public in violation of his rights.

He claims that the move is likely to depolarize him in the eyes of his voters.

Further he contends that there’s an order in another case stopping the investigations of his personal bank accounts which the respondents are parties to.

He claims that the respondents have violated the capital market Act and constitution in investigations of his personal bank accounts.

In a certificate of urgency the governor argues that unless the court stays the illegal investigations, he is going to suffer a violation of his constitutional rights.

PRESIDENT’S KIN SEEKS COMPENSATION OVER LAND.

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Kenya Commercial Bank (KCB).
 BY SAM ALFAN.

A company owned by a relative of President Uhuru Kenyatta is seeking compensation of Sh2.3 billion from the Kenya Commercial Bank (KCB) for breach of contract.

Lawyer Philip Nyachoti told three judges of the appeal court Justice Milton Makhandia, Justice Kathurima M’Inoti and Stephen Gatembu that  Benjoh Amalgamated Ltd is demanding to be paid the money over alleged breaches committed by the bank.

KCB has appealed against a decision of Justice Joyce Khaminwa (now deceased) that the bank manufactured a statement of account in respect of Benjoh when it demanded a payment of over Sh70million.

The bank had advanced a loan to Benjoh in 1989 to finance a flower project in Nyandarua County.

Benjoh which has been litigating since then says the bank failed to complete the loan terms leading to the collapse of the flower project.

The bank moved to auction the property of Benjoh leading to a lithargy of suits which ended up in the selling of Muiri Coffee Estate owned by a former assistant minister Gengi Muigai.

Muiri had secured Sh11.5milion for Benjoh from the bank.

Both Capt Kung’u and Mr Muigai are relatives to President Uhuru Kenyatta.

The late judge (joyce khamiwa) had in a ruling established that KCB did not maintain a proper record of accounts for Benjoh and that the monies it was seeking were fraudulent.

When the bank failed to get repaid by Benjoh it auctioned Muiri Coffee Estate.

The farm was bought by Bidii Kenya Limited.

Bidii has not been able to move into the farm thereby resulting to filing a case to compel Muiri quit the farm.

KCB has appealed against Justice Khaminwa’s judgement who said it is not known how the bank arrived at the amount of Sh70 million it is demaning from Benjoh.

The judge said the bank statement produced before her by the bank are forgeries.

Three appeals pitting KCB , Benjoh , Muiri and Bidii Kenya Limited which all stem from the sell of  Muiri Estate valued over Sh760 million have been consolidated.

Benjoh says it did not know how much money was disbursed to suppliers of the flower project and how much cash was advanced to it.

In her ruling the deceased judge wondered how the interest of Sh3.4 million jumped to Sh44million within eight months.

KCB had asked the late judge to dismiss the case by Benjoh seeking the accounts, saying the issue had been revisited in 18 previous cases.

Benjoh says the amount demanded by the bank between Mey 9,1996 and May 9,2006 was Sh143,844,249.59.

Benjoh is asking the court of appeal to dismiss appeal by KCB.

The appeal did not proceed since one of the judges disqualified himself.

FBI AGENT SAYS PRESENT WITNESS WAS A SUSPECT.

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A federation bureau of investigations (FBI) officer Mario Garcia Tariche testifying before a Nairobi court.
BY SAM ALFAN.

A federal bureau of investigations (FBI) officer  has revealed in Nairobi court that one of the key suspects in the Anglo-leasing scam case has been converted into a state witness.

Mario  Garcia  Tariche told the court that Brandley Birkfield, who had been charged alongside Deepak Kamani , Rashmi Kamani and their father Chamanlal, is now a state witness in the Anglo-leasing case.

The court heard that Birkfield has been converted into a state witness “ to give damning evidence against some of the accused persons in the dock.”

Birkfield a director of Infotalent ltd which has been sued over the Anglo-leasing scandal is  state witness.

Tariche who flew into the country from Washington on Monday to testify against the Kamani’s , former senior civil servants  Joseph Magari , David Onyonka and Dave Mwangi said he witnessed  Birkfield record a statement in June 2015 at Florida , Miami  in the United States of America (USA).

Tariche said he accompanied Birkfield to the office of the Attorney where two officers from the EACC had flown to record his statement.

He said that Birkfield was questioned by the lead investigator Julius Muraya who was accompanied by John Kiilu.

Tariche who was led in his evidence in chief by two senior state prosecutors Victor Mule and Nicholas Mutuku and cross-examined by defence lawyer Ahmednassir Abdullahi.

“Did you know that Birkfield has a criminal record in USA and that he was convicted,”  Abdullahi asked Tariche

“No am not aware,” the FBI officer answered

“Do  you also know that by the time Birkfield was being converted to a state witness to testify against some of the accused herein an International warrant of arrest had been issued against him,”  Abdullahi asked the witness.

The witness said he was not aware of the  warrant and that Interpol were looking for him.

He further said that he was not aware Birkfield was charged before the Kenyan Courts.

The accused persons have been charged with a conspiracy to defraud the government Euros 59,688, 250 through a suppliers financing agreement for computerization  of security, law and order system.

Infotalent is a foreign company which entered into a contract with the government of Kenya and is alleged to have been paid Euros 59.6 million in relation to police E-cops security contract in 2003 and 2004 financial year.

The case was adjourned to November 20, 2017.

JUDGES SHOULD BE PUNISHED IF THEY COMMIT OFFENCES, COURT RULES.

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High Court Judge John Mativo /PHOTO BY S. A. N.
BY SAM ALFAN.
Judges and Magistrates should be prosecuted if they commit criminal offences during the pendency of their work.
This prosecution can be done to guard against erosion of Judiciary independence.
“I am satisfied that a judicial officer cannot be held to be under any civil liability for actions done in the course of judicial duties provided they are done in good faith. However, the provisions of Section 6 of the Judicature Act and Article 60 (5) of the Constitution do not cover criminal liability,” Justice John Mativo ruled.
The justification for immunity of judicial officers, he said where it exists, cannot be to protect judicial officers from criminal prosecution but only from false accusations that are leveled against them in order to exert pressure on them.
He said that a contrary interpretation will have the inescapable effect of conferring an extra-constitutional immunity on judicial officers.
“Where an impropriety has been committed in the nature of criminal conduct which may include violations of the law, breach of court rules, abuse of office or interfering with the flow of justice, then, such immunity cannot stand,” The Judge pointed out.
Justice Mativo gave the Director of Criminal Prosecutions the greenlight to proceed with the seven-year old case against former Kisumu Principal Magistrate Abdulkadir El-Kindy and eight other people over the alleged fraudulent transfer of 9,394 acres of land worth Sh2.3billion belonging to Miwani Sugar Mills to a shell company known as Crossley Holdings Ltd.
El-Kindy, who had served as the Deputy Registrar of the High Court, had allegedly signed court documents related to a civil suit involving the property between May 21, 2007 and January 30, 2008.
The Judge said that the former magistrate, who was investigated by the Ethics and Anti-Corruption Commission (EACC), did not demonstrate that his right to fair trial had been compromised and that the police acted maliciously by instituting the charges of conspiracy to defraud and abuse of office.
“Clearly, Judges, like any other person, should be punished for any crimes they commit, be they general offences , for example causing a car accident in a state of drunkenness or specific crimes related to judicial functions like taking bribes or handing down favourable judgments or interfering with the administration of justice for which alone they swore to uphold.
Judicial officers are bound by the Constitution and the laws of the land and must live and uphold the spirit of the law.
It would be a sad day for the administration of justice if those charged with the responsibility of interpreting the law and upholding the rule of law are to be perceived as the ones breaking the law.

NYS DRAGON THREATENS TO FINISH FORMER PS MANGITI.

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Former Devolution Permanent Secretary Peter Mangiti.

BY SAM ALFAN

The NYS dragon has yet again refused to let Former Devolution PS Peter Mangiti off the hook.
The High Court declined to stop ex-PS Mangiti prosecution over NYS scandal.
Justice Hedwig Ong’udi dismissed his application saying that it would not be proper for her to get to know and evaluate the evidence, as to do so would be going beyond her jurisdiction in judicial review.
“It is only the trial court upon hearing the witnesses that will determine whether there was any conspiracy and if so, whether Mangiti was involved or not,”Ong’udi ruled.
In the application, Mangiti argued that his role in the procurement process was limited to appointing of the ministerial Tendering Committee and signing the contracts awarding the tenders.
The respondents who included the DPP, EACC however submitted that after receiving and independently analyzing the evidence for sufficiency to charge Mangiti found it plausible to charge him.
“The applicant had not demonstrated how the decision to charge him had violated any of the provisions of the constitution or any other written law or rule of natural justice, “argued DPP.

BREWER WANTS NAKUMATT TO CLOSE SHOP.

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Nakumatt supermarket.

Nakumatt supermarket.

BY SAM ALFAN.

A top tea brewer wants Nakumatt Supermarket to close shops over a Sh60 million debt.

Gold Crown Beverages says the sh60 million debt has remained unpaid since January last year.

They claim that Nakumatt supermarket has committed various bankruptcy offences within the last 2 years before they filed the petition.

“The debt amount owed to the petitioner by Nakumatt is within the prescribed insolvency level in accordance with the Insolvency Act, 2015,” Gold Crown says.

The tea brewer wants Nakumatt liquidated under the provisions of the Insolvency Act 2015.

Gold Crown argues that they have made repeated requests to the company for the payment or part payment of the debt but Nakumatt has failed, neglected and or refused to pay the debt.

High Court Deputy Registrar has directed Gold Crown to advertise its petition to the public before the liquidation proceedings can continue.

Proceedings resume September 17 for further directions.

RINGERA RECOLLECTS BOTCHED ATTEMPT TO PROBE ANGLO LEASING SCANDAL.

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Former Anti-Corruption boss and former court appeal Judge Aron Ringera testifying in the Anglo leasing case on Monday July 24,2017/PHOTO BY S.A.N.

Former Anti-Corruption boss and former court appeal Judge Aron Ringera testifying in the Anglo leasing case on Monday July 24,2017/PHOTO BY S.A.N.

BY SAM ALFAN.

Kenya sought international mutual legal assistance over Anglo leasing case investigations, court heard on Monday.

Former Anti-corruption boss and former court appeal Judge Aron Ringera told the trial court that during his tenure he wrote to United State of America, Switzerland, United Kingdom and The Netherlands seeking legal assistance to investigate the international aspect of the Anglo leasing fiasco.

He told the court he gave power of attorney to Dr Marc Henzelin of Switzerland Lalive law firm which was to file criminal complaints in Switzerland on behalf of Kenya.

The retired Judge testified that the high court decision had initially ruled EACC had no jurisdiction to seek international legal assistance and this paralyzed all the overseas investigations carried by the commission.

“I didn’t receive mutual legal assistance from various legal assistance teams despite willingness by various authorities after The High Court in Kenya ruled EACC had no authority to seek mutual legal assistance and if it has received any it should not be used” Ringera told the court.

The former Anti-corruption boss said attorney general who was the prosecutor directed the commission not to forward any files to him until they completed the overseas investigations.

However he told the court before his exit from the commission he received one file and a disc from Swiss authorities which they from the AG.

Asked whether he was aware of the content in the file and the disc, he said he didn’t open or read them since there was high court decision that was pending appeal but marked them as “INVESTIGATION PENDING THE APPEAL”.

The retired judge told the court he did not complete any investigation during his tenure and no one could have completed since there was high court ruling that barred them to seek international legal assistance.

“I didn’t complete investigation on any file and no one could complete it from anywhere in the world due to high court challenges” said the retired judge.

Business mogul Deepak Kamani, his father Chamanlal Kamani and Brother Rashmi Kamani were charged with five counts of conspiracy to commit an economic crime and fraudulent acquisition of public resources totalling Sh10.4 billion for services not provided.

The offences, committed between July 2003 and June 2004 also enlist three companies said to have benefited from huge payments to Anglo Leasing contracts designed to provide modernized security surveillance systems for the police force.

The charges were a culmination of long running investigations and run-ins between the Ethics and Anti-Corruption Commission and the Kamani brothers which led to several cases at the High Court.

In the first charge, Deepak, Rashmi and Chamanlal were conspiring with senior government officials to defraud the public of Sh4 billion.

“Between October 2003 and April 2004 in Nairobi, you conspired with others not before court to commit an economic crime by engaging in a scheme to defraud the government Euros 40 million (Sh4 billion) through a contract for modernization of police security equipment and accessories project,” read the charge.

On April 14, 2004, the three alongside Apex Finance Corporation were said to have acquired a further Euros 1.2 million (Sh121.2 million) from the Ministry of Finance on the pretext that they were able to provide the security equipment for the police service.

The second file had Deepak, Rashmi and Infotalent Ltd being charged with conspiring to steal over Sh6 billion through an agreement for computerization of security systems for the Kenya police through a project code named E-Cops.

In the other count, Deepak, Rashmi and Infotalent Ltd were said to have fraudulently received on January 12, 2004, Euros 1.8 million (Sh180.5 million) into the company account held with HSBC Republic Bank of Switzerland without delivery of financing services.

The final account alleged that they received Euros 3.5 million (Sh353.5 million) into their bank account in Switzerland without delivery of services.

They all denied the charges with Deepak and Rashmi being released on a cash bail of Sh4 million each while their father was released on a cash bail of Sh2 million.

Hearing proceeds tomorrow.

SENATORIAL HOPEFUL SHEM OCHUODHO IN THE DOCK OVER ALLEGED GRAFT.

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Former Kenya Pipeline Company Managing Director and Homabay senatorial candidate Dr Shem Odongo Ochuodho.

BY SAM ALFAN.

Former Kenya Pipeline Company Managing Director and Homabay senatorial candidate Dr Shem Odongo Ochuodho have been charged With conspiring to defraud the company over shs 800 million.

It is alleged that on diverse dates between May 2003 and July 2004 in Nairobi Ochuodho jointly with other board member’s conspired to defraud Kenya Pipeline Company Limited (KPC) Kshs, 827, 564, 608,20 by entering into a refinancing arrangement which required KPC to pay Triple A Capital Limited Credit charges amounting to Kshs, 827, 564,608,20 on account of Triple Capital Limited paying KPC’s international Creditors  amounts owed by KPC , whereas Triple A Capital Limited had no money to pay the said creditors.

Those charged alongside him are the chairman of the board directors of KPC and Directors of Triple A Capital Limited Maurice Dantas ,John Gichia  Macharia and Janice Theresia Wanjiku Kiarie alias Terry Wijenje.

Dr Shem Odongo and Maurice Dantas are accused being employed by Public service as Managing Director and Chairman of the board directors of Kenya Pipeline Company respectively and whose functions concerned the administration of public property  jointly and fraudulently instructed the standard chartered Bank of Kenya to pay Triple A Capital limited Kshs, 1,250,577, 549 from KPC ‘s account purporting it to be a refund on account of Triple A Capital limited having paid  a similar sum to KPC’s International Creditor, Export Development Canada (EDC) yet no such payment had been made by Triple A Capital limited and on behalf of KPC to EDC.

They are also accused on 28, December 2003 jointly fraudulently instructed the the standard Chartered Bank Kenya limited to pay Triple A Capital limited Kshs, 397, 699,893 from KPC’s account purporting it to be refund on Triple A Capital limited.

He I’d also charged with misuse of public office by improperly conferring  a benefit of Kshs 99,045,774 on Triple A capital by signing a Deed of assignment of debt on behalf of Kenya Pipeline Company limited.

The former Triple A Directors  John Gichia Macharia , Janice Theresia Wanjiku Kiarie alias  Terry Wijenje and Triple A Capital limited are faxing charge of fraudulent acquisition of public property

They are accused on 31 of December 2003 in Nairobi being Directors of Triple A Company Limited, jointly fraudulently acquired a public property Kshs, 1,691,791 ,968 by purporting that they had paid a debts owed by Kenya Pipeline Company (KPC) to its creditors , Export Development Canada (EDC) and Japan Bank for International Cooperation (JBIC) under a refinance agreement, yet no such payment had been made by Triple A Capital limited on behalf of KPC to EDC and JBIC.

He pleaded not guilty before the Anti-Corruption senior principle magistrate Lawrence Mugambi.

He was released on a cash bail of 2million.

The corruption case will be mentioned on 13 of August for further directions.

MANUAL BACK-UP SYSTEM TO BE USED IN THE AUGUST POLLS, COURT RULES.

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High Court three judge bench Justice Alfred Mabeya, George Kimondo (center) and Hedwing Ong’udi who ruled use of manual backup system to be used during the August 8 election on Friday July 21.2017/PHOTO BY S. A. N.

BY SAM ALFAN.

NASA fears on the systems to be used during election are unfounded, court overturns case seeking exclusive use of electronic system.

The High Court has okayed the use of a manual backup system during the August 8 election.

It dismissed a case by the opposition NASA to have IEBC use exclusively electronic system.

The court ruled that the impact in case the exclusive electronic system fails would throw the entire elections into jeopardy and imperil the democracy of the people of Kenya.

“The court therefore finds that it would not be feasible to declare that the elections to be held on the 8th of August 2017 be exclusively electronic, “ruled the judges.

The court further ruled that regulations 69 and 83 of the Elections Regulations 2012 amounted to complementary mechanism envisaged by the constitution.

Regarding public participation, the three judge bench dismissed allegations that there was no public participation and ruled that the law was approved by the parliament which represents Kenyans.

Court also dismissed submissions to have the elections postponed if the systems fails.

The ruling was read by justice George Kimondo , Hedwing Ong’udi and Alfred Mabeya.

In the suit, NASA alleged that IEBC had failed to put in place the complementary system, consult relevant stakeholders or even engage the public to come up with the said system.

The opposition  said using the manual system was a scheme to rig the elections, and it would boycott the elections if the manual system was forced on them.

COURT OF APPEAL SHUT DOWN PRESIDENTIAL BALLOT PAPERS FIASCO.

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Court of Appeal Judges from left to right Jamila Mohammed,Anashir Visram,Erastus Githinji,Roselyn Nambuye and Otieno Odek who overturned High Court decision by three judge which terminated tender awarded to Al Ghurair company to print Presidential ballot papers at the Supreme court on Thursday,July 20 2017/PHOTO BY S. A. N.
BY SAM ALFAN.

Appellate Court has shut down the printing of presidential ballot papers fiasco between Independent Electoral and Boundaries Commission (IEBC) and opposition NASA.

IEBC recorded a landmark victory after the second highest court in the land five Court of Appeal judges unanimously quashed a High Court ruling on fresh procurement of presidential ballot papers and allowing printing by Dubai-based printing firm, Al Ghurair.

In their ruling, Justices Erastus Githinji, Roselyn Nambuye, Visram Alnasir, Jamilla Muhammed and Otieno Odek said that the Court erred in granting orders without regard to public participation and procurement timelines.

“The High Court exercise its discretion wrongly without regard to the constitutional timelines within which the general Election , Presidential election included must be held” court observed.

It is also found that the High Court erred in adjudging the timelines for procurement of the ballots to be operations opposed to statutory in nature .

The Independent Electoral and Boundaries Commission (IEBC) had appealed nullification of the tender.

High Court judges Joel Ngugi, George Odunga, and John Mativo had made a finding that the commission failed to engage in public participation while awarding the tender.

They had directed IEBC to start the process afresh and come up with a framework for ensuring public participation.

They said that the commission, as an independent body, should have engaged all presidential candidates in the decision leading to the choice of Al Ghurair printing  & Publishing through direct procurement.

They, however, declined to cancel the printing of the other ballots for the Member of County Assembly, Member of the National Assembly, senator and governor slots because there was no dispute concerning them.

In their ruling, the judges said the commission had failed to ensure public participation in awarding the tender to Al Ghurair as required by the law.

“It is necessary to ensure that election systems are free, fair and transparent. The systems should be secure and results announced promptly.

Appropriate structures should be put in place to avoid electoral malpractice,” they ruled. The judges also rejected an application by IEBC lawyers led by Fred Ngatia for a stay of execution pending appeal on Monday saying those aggrieved by the ruling can seek redress in the Court of Appeal.

They argued that it is not impossible for IEBC to start the process again in order to conduct free, fair and credible election.

The judges, however, dismissed claims by the opposition National Super Alliance (Nasa) that the firm met President Uhuru Kenyatta and could thus have influenced the award of the tender.

“We have not seen any evidence that there was a meeting between the President and the officials of Al-Ghurair, newspapers cuttings are insufficient to be used as evidence in a matter and therefore the allegations by Nasa that there was a meeting between president and Al-Ghurair is below threshold,” they said.

During the hearing the Dubai based firm denied links with President Uhuru Kenyatta.

Al-Ghurai Printing and Publishing LLC through its managing director Ganapathy Lakshmanan says that as of now IEBC has received 50 percent of the required paper on 22 June this year adding that the electoral commission will further receive the outstanding papers by 1st week of July 2017.

“It is noteworthy that 80 percent of the governor elections ballots and 25 percent of women representatives are completed by the time of swearing this affidavit. The production process for the materials has therefore started in earnest,” says Ganapathy Lakshmanan

NASA lawyer Paul Mwangi has hinted at challenging the decision at the Supreme Court.
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