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TATU CITY INVESTORS RISK 6 MONTHS JAIL.

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Stephen Jennings CEO Rendovon group(left),and Chris Barone Chief Operating officer Tatu City(right) at the Milimani law court on Wednesday August 10,2016.

BY SAM ALFAN

Tatu City investors risk a jail term of six months after they have been found guilty of contempt of court proceedings issued between March and June 2015.

Justice Francis Tuiyott found foreign investors of multi billions shillings worth real estate development project Stephen Jennings, Francis Holiday, Hans Bochum Horn, Frank Mosier and Christopher Baron were found guilty for disobeying orders issued last year that directed The PriceWaterHouse Cooper to conduct independent audit the offshore loan account of the Tatu City companies with 45 days.

“I find that the 1,2,3,5 and 7 defendants are guilty of disobeying and being in contempt of the orders made in respect to orders for audit” ruled the judge.

However,  the judge said he can’t commit them on jail because they were not served with the order.

“I direct Counsel for the parties herein to address me on which Firm should be appointed in place of PWC. This will enable court make further orders in regard to the order” ruled the judge.

The court was urged to ignore any allegations made against  Mr Reid as he is not a party before court.

Defendants argued that , the court orders lapsed on their first anniversary and could not therefore be disobeyed.

“I make no finding against Mr Robert Reid because at the time of making this decision, evidence that he had been served with the application for contempt was not readily available to me” ruled the judge.

Christopher Barron said orders issued on 6 March and April 28, 2015 and 12 June 2015 were made without jurisdiction. He cited shareholders agreement of 13 May 2010 in which it was allegedly agreed that any dispute , claim or matter a raising under or in connection with the agreement was subject to the exclusive jurisdiction of London court International Arbitration.

High court last year ordered the international audit firm PriceWaterHouse Coopers (PWC) to conduct independent in depth audit account  of the offshore loan of the Tatu City and Kofinaf Limited and to report it findings to the court within 45 days or reasonable period of time they found adequate to perform the audit.

“The audit upon completion, it should cover all issues relating to the company ,all facts and figures be laid on the auditors table by the parties to give full effect to the exercise ‘ To otherwise will render the audit exercise in futility” noted the judge.

He said Courts do not make orders in vain. The orders they make, unless reviewed, raised or set aside must be obeyed,” justice Francis Tuiyot ruled.

In support of the Notice of Motion for contempt Nahashon Ngige Nyaga (3 plaintiff) gave detailed evidence as to how the court orders in respect to the a audit were disobeyed or disregarded by the defendants, the judge said

“Despite the making of the Orders aforesaid,  the defendants, acting through Mr Robert James Reid. The person mandated by the defendants and directed by the court to liaise with the plaintiff(s) in the in depth audit, have completely frustrated and scuttled the commencement of the in-depth audit by intimidating.

PwC with the result that the letter of Engagement has not been signed on account of the said intimidation and further evidence to be adduced,” Nyaga sworn affidavit read.

He attached correspondences that reveal an attempt by the rival parties and PwC to agree on the modalities of the audit that had been ordered by court.

“Dear Robert,

As indicated in the correspondence from our counsel to counsel  for both plaintiffs and the Defendants in this matter dated 10 August 2015 (attached) , we were proceeding with the engagement on the basis of terms of reference presented to the court as Exhibit Hj and this is what is reflected in the engagement letter. “I think it would be helpful if you could indicate the specific areas in the engagement letter which you propose to be amended to address the concern  that you raise on the accuracy and objectivity of the intended review”  regard George Waweru’ (my emphasize).

Reid had held himself out as having the mandate of Jennings Frances Holliday, Hans Jochum Horn, Frank Mosier and Christopher Baron, the court heard.

“Indeed in the Court order of June 12 2015 Mr Reid is identified as liaison person of the defendants, justice Tuyoit said adding “that to that extent the actions or non actions of Mr Reid cannot be over looked.” the judge ruled.

The judge said there is now evidence that has not been controverted that Mr Reid did not respond to the concerns by PwC about the letter of Engagement, with the result that  the letter  of Engagement was not signed and the audit did not commence “as ordered and envisioned” by the court on March 6 2015 and June 12 2015 .

Justice Tuiyot said that further evidence that there was reluctance by Mr Reid to cooperate with PwC is seen in what Stephen Jennings, the first defendant said on September 162015 during the board of directors meeting of Tatu City limited and Kofinaf Company limited.

“If the defendants had no confidence in the firm PwC Kenya then they should have sought the removal from the audit by way of a review of court orders “the judge exclaimed.

He said that instead the foreigners stonewalled on the question of the Letter of Engagement and eventually on September 23 2105 PwC asked to be excused from the exercise and court granted the request.

The judge further said the evidence that there was reluctance by Mr Reid to cooperate with PWC is buttressed by what Mr Stephen Jennings said on 16 September 2015 during the board of director meeting of Tatu City and Kofinaf Company Limited.

“We are happy to work with any recognized International Audit firm in the world with exception of PWC Kenya ….we do not want to work with PWC Kenya” said Mr Jennings during the board meeting.

Proceedings to to proceed for further directions.

 

PNU EMBU PRIMARIES TO BE REPEATED.

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Denis Mungendi Njiru a Party of National Unity (PNU) from Embu County outside a courtroom at Milimani law courts building after high court decision ordered Embu County Party primaries be repeated within 48 hours.

BY SAM ALFAN.

High Court has upholds decision by Political Parties Disputes Tribunal ruling that Party of National Unity (PNU) Embu county primaries be repeated within 48 hours.

Justice Richard Mwongo agreed with the reasons that were issued by the tribunal saying that it has jurisdiction to hear and determine cases arising from nomination exercise.

Principal Judge .However stayed the decision till Monday noon to allow the parties appeal the said decision.

PNU moved to high court to challenge the tribunal ruling saying that the political parties tribunal did not have the requisite jurisdiction to entertain petition by the complainants given that the internal party dispute resolution mechanisms had not been exhausted as provided by the party constitution.

“The tribunal erred in law by failing to allow the relevant party organs to dispense off with the internal party resolution mechanisms first as provided by the party regulations thus running a parallel process to the party,” argued PNU

Under the memorandum of appeal filed before Principal Judge Richard Mwongo, PNU claimed the Tribunal erred in law and in fact by failing to appreciate that the respondents did not have the requisite capacity  to petition the tribunal on account of the fact they were not party members or candidates in the impugned nomination exercise.

The tribunal stopped PNU from issuing certificate to winners saying that the exercise was marred with irregularities and ordered for a repeat of the same.

PNU added that the tribunal erred in law and in fact by failing to appreciate the nomination irregularities alleged to have occurred on April 22nd 2017 had only occurred in a total of three wards which the exercise had been repeated on April 26th 2017.

MAENDELEO CHAP CHAP CONTEST IEBC DEADLINE.

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Maendeleo Chap Chap party and Machakos Governor Alfred Mutua receiving former Imenti Central Member Gitobu Imanyara who is vying for Imenti Central Member of Parliament.

BY POLITICS  DESK.

Maendeleo Chap Chap party has moved to court seeking a declaration that the deadline for the submissions of the membership list set by IEBC is unreasonable and hence a violation to the party.

In a certificate of urgency filed at the Milimani law court the party argues that amendments to the Election ACT 2011 by the introduction of the section 10 of the Election amendments Act 2017 amounts to violation of the freedom of association of any kind and the right to participate in the affairs of a political party.

“IEBC has violated the guiding principles on limitations to the enjoyment of fundamental rights and freedoms as provided under Article 24 of the constitution of Kenya, 2010,”states the petition.

The party further argues that the introduction of section 10 of Elections Amendments Act 2017, Maendeleo Chap Chap has been denied the right to recruit membership from aspirants to various positions.

High court judge Enoch Chacha Mwita directed the petition to be heard next week.

AG WANTS CASE ON ELECTION LAW EXPEDITED.

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Government Chief Legal Attorney General Githu Muigai /FILE PHOTO.

BY SAM ALFAN.

The Attorney General now wants the court of appeal to expeditiously hear and determine an appeal on election act which govern the conduct, transmission and declaration of presidential election results.

In a letter addressed to the court of appeal president –Justice Paul Kihara Kariuki, AG-Githu Muigai states that the appeal has a direct bearing in the coming general elections set for 8th of August this year and therefore requests that the appeal be heard urgently.

“It is without doubt that the forthcoming general elections constitute a matter of great public interest and therefore the same ought to be conducted in an atmosphere that is free of any legal or political controversy, “reads the letter.

The Independent Electoral and Boundaries Commission (IEBC) is challenging a recent High Court decision that presidential election results announced at the constituency level will be final.

The electoral commission argues that the three judge bench erred in law and in fact in disregarding all laws relating to the conduct of and declaration of presidential election result.

The IEBC also argues that granting returning officers power to declare presidential results is contrary to the provisions of the law and that matters presented in the case did not relate to validity of the conduct of presidential elections.

The ruling delivered early last month, makes the returning officers at the constituency level the final authority all election results including the presidential vote.

In the case UN special rapporteur Maina Kiai, and human rights activists Khelef Khalifa and Tirop Kitur argued that announcing results at the 290 constituencies reduced the possibility of them being altered at the national tallying center.

 

BRITISH JOURNALIST SHOOTS DOWN KENYA GOVERNMENT DECISION.

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Lawyer Kethi Kilonzo with British Journalist Hannan Lucy Elizabeth who will be issued with one year permit to work in Kenya after Kenya Citizen and Foreign Nationals Management agreed to issue a British Journalist be issued permit outside Milimani Law court in Nairobi /FILE PHOTO.

BY SAM ALFAN.

The high court has declared null and void a decision by the government to declare a British investor and journalist a prohibited immigrant for engaging in subversive activities has been nullified.

The court further directed the Immigration department to extend the foreigners work permit to enable Hannan Lucy Elizabeth finalize all pending applications including that of citizenship for a further two years

Justice Isaac Lenaola the October 16 2013 resolution to pronounce Hannan Lucy Elizabeth persona non granta saying it was irrational and improper.

The court ruled that the move by the State is an example of erratic, irrational and unlawful conduct as no evidence was adduced to show that Elizabeth is a threat to Kenya’s national interest.

Elizabeth is a financier in the film industry and closely works with non-governmental organizations.

She was involved in documenting the 2008 post-election violence and the disputed 2013 General Election.

In the case Hannah sued the government for making the pronouncement, refusing to renew her work permit and threatening to deport her despite meeting all legal requirements.

She argued that she had a legitimate expectation to continue staying in the country since she has been residing and working in Kenya as human rights journalist since 1988.

Elizabeth together with human rights activist Maina Kiai are the founders and directors of Inform Action Limited (IFA), Media Production Company.

In 2014, Kenya Citizen and Foreign Nationals Management have now agreed to issue a British Journalist with a work permit.
The department’s legal officer Mwende Gatabaki told Justice Isaac Lenaola, that the office was unable to understand the court’s orders requiring the issuance of work permit to Hannan Lucy Elizabeth.
She clarified that the journalist had applied for the permit but the committee charged with responsibility of approving the same had declined.
M’s Gatabaki said the office will consider issuing her with the document pending the determination of the petition before the court.
The admission by the Immigration office was caused by the contempt application and summons issued by the court requiring the attendance of the director general to show cause why action should be taken for disobedient of the court order.
Justice Lenaola had issued the order after the journalist’s lawyer Kethi Kilonzo told the court that the director general has not complied with the order of the court requiring him to issue the work permit to the foreigner resident in Kenya.
Kethi told the judge that the scribe cannot work or her children have been declined to go school without pass as result of refusal by the office director of migration to give the necessary documents.
She can neither travel nor work in Kenya despite the court order, saying that her apprehensive that she might be arrested and charged for being in the country without work.

TWO TERRORIST LINKED TO DANGEROUS MAGAFE HUMAN TRAFFICKING NETWORK RELEASED ON BAIL.

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Two terror suspects Ali Hussein Ali and Ibrahim Mukthtar Abashiekh accused of human trafficking before a Nairobi court where they pleaded not guilty on Wednesday May 03, 2017.

BY NT CRIME REPORTER.

 Two suspects linked to the Magafe human trafficking network has been charged with human trafficking before a Nairobi Count.

 Ali Hussein Ali and Ibrahim Mukthtar Abashiekh are accused of buying properties using money acquired through money laundering.

 It is alleged on diverse dates between November 1 2016 and April 27 2017 at Dahabshil money transfer Mombasa, they jointly acquired and used proceeds of crime namely human trafficking of persons amounting to USD 30000 from a Abdikadir known Magafe operative of human trafficking network and purchased motor vehicles KCJ 747Z AND KBL 852 C. 

 The two suspected who appeared before Nairobi Magistrate Francis Andayi pleaded not guilty to the charges and were released on a cash bail of 100,000 and a bond of 500,000.

“I have considered all issues raised by the prosecution in their affidavit while opposing bail and I find no compelling reasons to deny the accused bond.  I order them to deposit a cash bail of 100,000 and a bond of 500,000 fail to which they be remanded in custody until the case is heard and determined by the trial court” ordered Magistrate.

Director of Public Prosecution through prosecutor Celestine Oluoch opposed the release of the accused persons on bail arguing they were facing human trafficking charges which are serious offences. 

The transaction was traced to a money transfer outlet in Mombasa, the prosecution said.They used the money to buy vehicles KCJ 747Z and KBL 852C, a charge they both deny.

 The two business associates, police say, recently started a company whose source of funds is believed to be human trafficking.

 Police say in court documents that “it is a risky business where youth are lured to travel to Europe and are smuggled out of Somalia, Kenya and other East African nations to Sudan, then cross to Libya and while on transit to Libya they are waylaid into a trap of pirates called  Magafe who then take the youth  captive and demand ransom from their families.”

Detectives from their affidavit filed in court said, families of those in captive are then contacted by the Magafe asking for ransom for kin to be released.

 Ali Hussein Ali has a network in Kenya, South Sudan through which extortion is done, court heard on Wednesday.

The captives who manage to pay the ransom are allowed to cross the Mediterranean sea “…for those who do not manage to pay are forced to join the fighting in Libya and others sold into Syria and the Arab world as slaves and ISIS terrorists.

“The worst of it all is that human body harvesting is done unwillingly to the victims, and the human body parts are sold in China while victims are left to die,” police documents state.

The money is transferred after the captive(s) are given Libyan telephone numbers to communicate with their relatives.

Once in contact and the money is ready it is remitted through and received by one Abdikadir who is a cousin to Ali.

“They have since bought two motor vehicles and pieces of land along the Kenyan coast…” reads the statement.

Two anti-terrorism police officers listed as witness in the matter. The criminal case was fixed for hearing on 1 of August

TUSKYS SUPERMARKET CHARGED FOR SELLING COUNTERFEIT GOODS.

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Tuskys supermarket chain representative and branch Manager Paul Njuguna before a Nairobi court.
BY SAM ALFAN.

Tuskys supermarket chain has been dragged to court and charged for trading counterfeit goods.

It is alleged that on 20th January 2017,Tusker mattresses Limited (Tuskys) and Paul Njuguna in the course of trading was found to have in possession trade counterfeit goods namely WALH professional balding clippers(shaving machines) worth Ksh.121 thousand.

 The supermarket administrator and a branch manager appeared in court on behalf of the supermarket before a Nairobi Chief Magistrate Francis Andayi where they denied the allegations.

 They were both released on Ksh.50, 000 cash bail with an alternative bond of similar amount. case will be mentioned on 20th May 2017. 

IEBC APPEALS DECISION ON RETURNING OFFICERS’ PRESIDENTIAL TALLY.

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Three judge bench Weldon Korir, Justice Aggrey Muchelule (centre) and Chacha Mwita delivering a judgement on Friday March 7 ,2017 /PHOTO BY S.A.N.
BY SAM ALFAN.

The Independent and Electoral Boundaries Commission (IEBC) wants a decision by the high court  that ruled presidential election results declared by 290 constituency returning officers set aside.

Through lawyer Wambua Kilonzo IEBC wants orders by the learned judges of the high court justice Agreey Muchelule, Weldon Korir and Chacha Mwita dismissed.

 

IEBC argues that the judges misdirected themselves in finding the high court has jurisdiction with questions of the interpretation of the constitution in respect of the conduct of presidential elections.

 

“Judges erred in law and fact in holding that the matters presented in the petition before them did not relate to the validity of the conduct of presidential elections,” said Kilonzo.

 

The lawyer argues that high court judges erred in law and fact by failing to take into account the fact that chairman of commission had published a gazette notice No. 2629 dated March 16 2017 and published on March 17 2017 declaring that the decision of the president of the republic of Kenya shall be held on August 8 2017.

Last month High court ruled the presidential election results announced by the 290 constituency Returning Officers appointed by the Independent Electoral and Boundaries Commission (IEBC) are final and not subject to confirmation.

The caveat that the presidential election results at the constituency level are provisional and must be re-evaluated by the IEBC headquarters in Nairobi offends the Constitution since any aggrieved party is at liberty mount a challenge in the High Court through election petitions, the three-Judge bench announced in a landmark decision.

Sections 39 (2) and (3) of the Elections (General Regulations) Act 2012 were in conflict with Articles 86, 87 and 138 of the Constitution by purporting to exclude presidential poll results from those of Governors, Senators, Members of Parliament and Members of County Assemblies, Justices Aggrey Muchelule, Weldon Korir and Enock Chacha-Mwita.

Kiai’s lawyer Ben Sianya said the nullified sections had granted IEBC powers to confirm, audit or even verify presidential election results sent by a returning officer.

“We are happy with the High court ruling which declared that once the presidential results have been announced by a returning officer at the constituency level, that result will be final,” he said.

They said the IEBC leadership had no power to confirm, approve or alter the outcome of the presidential vote after the Returning Officers at the constituency level had tallied the ballots, declared the results and issued certificates for onward transmission to the national elections agency.

The law was clear that the presidential election results could only be challenged in the Supreme Court, the Judges observed.

The court pointed out that voting was conducted at polling stations across the country and presiding officers forwarded the results to the returning officers for final scrutiny.

The returning officers were required to keep all the documents in safe custody for three years in case they were needed in election petitions, the court observed.

By purporting to confirm the results, the Judges noted, the IEBC was usurping the role of returning officers and was in direct conflict with the powers bestowed on them by the Elections Act. Returning officers and presiding officers were appointees of the IEBC and enjoyed exclusive power to supervise and manage polls, they said.

The court dismissed arguments by the IEBC that it had no power to adjudicate the matter since only the Supreme Court had the mandate to handle presidential election petitions.

However, the Judges said the petition, lodged by United Nations Special Rappertoir on Human Rights Maina Kiai and activists Tirop Kitur and Khelef Khalifa, was seeking an interpretation of the Constitution.  

COURT NULLIFIES DECISION TO SUSPEND VETERAN SOCCER BOSS SAM NYAMWEYA.

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veteran soccer president Sam Nyamweya.

BY SAM ALFAN.

High Court has nullified a decision by Football Kenya Federation to suspend veteran soccer president Sam Nyamweya from football affairs for 10 years pending hearing and determination of the petition.

Justice Enock Chacha Mwita quashed the decision this morning after FKF failed to respond to Nyamweya’s application to quash FKF erroneous decision.

“The application dated dated 5 of April is hereby allowed” ordered the judge.

FKF told the court they were not ready to proceed with the application by Mr Nyamweya and sought to pursue the main petition. They said they will not oppose the application.

Former FKF boss Sam Nyamweya moved to court on April challenging his suspension from all football activities in Kenya for a period of 10 years.Mr Nyamweya argues that the decision by FKF to suspend him is unreasonable and irrational.

“The petitioner submits that he has been suspended by the respondents from all football activities for a period of 10 years despite not being a member of FKF,” court documents state.

Through his lawyer Wahome Nyagi, Nyamweya argues that he was not summoned or given any hearing by FKF adding that the decision to suspend him was in bad faith claiming that he is being targeted.

“The petitioner is being targeted having exercised his constitutional rights and filed a case against Nick Mwendwa   among others which is pending court, “claims Nyamweya.

He further argues that his suspension has brought his character and legacy as a respected and retired football administrators locally and international into disrepute and therefore the court should intervene.

He now wants the court conservatory orders be issued staying the decision by National Executive Committee pending hearing and determination of the case.

He argues that he has not been held culpable for any allegations by the respondents.

NICK Mwendwa and Robert Muthoni have been named as respondents in the case and have been sued as representatives of FKF.

The matter was fixed for hearing on 31 of July.

IG BOINNET PRAISE KENYANS AND POLICE FOR PEACEFUL PARTY PRIMARIES.

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National Police Service Spokesman George Kinoti during a interview with Nairobi TIMES in his office in Nairobi.
BY NEWS DESK.
Two people were killed and 63 arrested across the country for various electoral and penal code offences between April 13 and 27
This is according to the Inspector General of Police Joseph Boinnet.
In a statement through National Police Service Spokesman George Kinoti, IG urged Kenyans to remain peaceful as the country moves to general elections scheduled for August 8.
Mr Kinoti said on Friday that, a total of 24 cases were recorded in different counties during the period.
“Out of the two who were killed, one had been subjected to mob injustice after being accused of pick-pocketing during the NASA Rally,” Kinoti said.
Mr Kinoti said, the matter was reported after a confrontation between two rival aspirants along Juja Road.
The deceased was stabbed as he displayed posters for a candidate.
Nairobitimez.com can reveal a suspect accused of killing an agent of Starehe Member of Parliament Maina Kamanda was arraigned in court yesterday through miscellaneous application.
The court heard that the suspect, Daniel Kuria  Ngariu confronted a group of other young men who were pasting posters for Kamanda on walls of buildings along Juja Road at around 6.00 am on April 26 2017 and attacked one George Ndege.
The court further heard that Kuria was in a group that was pasting posters for Pangani MCA Peter Wahinya Njau.
“The group of attackers were alleged to be armed with pangas and knives at the time of the attack.During the attack George Ndege suffered injuries on the chest and lower jaw, another victim Peter Muchiri was cut on the right lower leg and as Ndege was fleeing from the attack crossing the other side of the road he was hit by an oncoming mini-bus Reg. no KBY 839G,” an affidavit sworn at the Mililani court by an investigating officer Sgt. Charles
“As the country moves to the other phases in the electoral calendar, the NPS urges members of the public to continue maintaining peace,” Mr Kinoti said, as he appealed to all political party contestants to voice their grievances through the established respective party channels.
He assured all Kenyans of the service’s commitment to providing Kenyans with a peaceful and secure environment to exercise their democratic rights of electing their leaders.
Yesterday High Court freed Bishop Margaret wanjiru on a cash bail of 100,000 shillings.
This is after she moved to the higher court under a certificate of urgency through his lawyer Kennedy Ochieng saying that the magistrate court erred in law by detaining her for five days in police custody.
Judge Ngenye Macharia directed that the application be served upon the DPP for inter party hearing on the 10th of May this year.
He was arrested during the Jubilee Party primaries and charged for malicious damages and creating disturbances.
He was detained for five days until high court intervened yesterday by reviewing the trial court decision.
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