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COTU BOSS ATWOLI LOSES PRIVATE PROSECUTION BID.

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COTU Secretary-General Francis Atwoli testifying at Milimani Law Court in the case in which former COTU official are accused of defrauding the worker’s (FILE PHOTO).

BY SAM ALFAN.

A Nairobi Court has dismissed an application by Cotu Secretary General Francis Atwoli seeking to institute private prosecution against six people over the development of the controversial Sh5.3 billion Tassia II settlement scheme.

Chief Magistrate Daniel Ogembo dismissed the application on the basis that it lacked merit.

Cotu wanted to institute criminal proceedings against former NSSF acting managing trustee Richard Langat, trustee chairman Adan Daud, Finance secretary Mutua Kilaka and PS Ali Ismail

According to the Magistrate, the court must be convinced that the proceedings are necessary before such orders can be granted.

He absolved the office of the Director of Public Prosecution and the Ethics and Anti-corruption Commission saying the two agencies had acted within the law in closing the file against the six.

“It is not in dispute the complainant lodged a complaint with EACC and DPP. Both agencies acted on the evidence presented against the six and after satisfying themselves that there was no evidence of criminal culpability by the trustees recommended the file to be closed,” the magistrate said.

He said there was no proof that the two agencies acted unlawfully when they closed the files.

Atwoli had also sought to privately prosecute Mr Mutemi Nzetu and Mr Gideon Kioko who are members of the tender committee that approved the Tassia project.

He claimed that the board irregularly approved the Tassia II development for Sh5.3 billion. He also alleged that China Jiangxi International is the contractor which was in violation of basic procurement rules and regulations.

He claimed that DPP failed to consider the circumstances in which the tender was awarded and approved on the same day when he exonerated the board and the management staff.

In the ruling however, the magistrate faulted Atwoli for failing to table evidence to prove their clearance was fraudulent.

POLICE TO CONTINUE HOLDING SUDANESE TRADER.

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Businessman Hassan Babakar Osman with his lawyer Cliff Ombeta before Milimani senior Resident magistrate Helen Onkwani who detained him for 15 days to allow police completes investigations.

BY SAM ALFAN.

A Nairobi court has allowed police to continue holding a Sudanese businessman suspected of impersonating Saudi Arabian Prince for 15 days to allow police complete investigations.

Milimani senior Resident magistrate Helen Onkwani allowed the application by the police to continue holding Hassan Babakar Osman who is also suspected of facilitating the recruitment of youth to join terrorist groups.

On Monday, prosecution through Corporal Cyrus Ikade of Anti-Terrorism Police Unit swore an affidavit in court seeking custodial orders since the suspect was arrested on Sunday at his house in Muthaiga North area Nairobi County and they needed more time to complete investigations.

The court was informed that police wants to investigate how the suspect forged a letter of Attorney purporting to have been vested powers by the prince of Saudi Arabian to transact business in Kenya on his behalf.

Prosecution further said that Osman is wanted by the Saudi Arabian government for purpose of instituting charges of using the said forge letter of Attorney for obtain and swindling money from the public.

The court papers shows that Intelligence report so far received by investigators indicates that the suspect is an associate  to unknown ISIS and ISIL recruiters in and outside the country.

“I have information that the respondent has been using the proceeds received from money laundering acts to facilitate the recruitment of youths to join terrorist groups,” said corporal Ikade.

The police while seeking more time told the court they want to establish how the suspect Osman obtained Somalia Republic Passport while his nationality is known to be of Sudanese.

Police also claim that they need to contact the Sudan, Somalia and Saudi Arabian embassies to confirm nationality and the authenticity of the said passport and the letter of Attorney.

The court heard that during a search at the suspect house police recovered several portraits of the Saudi Arabia Prince which they believe he has been impersonating himself to be a prince using the same.

Ikade asked the court to detain Osman for 20 days at Muthaiga police station since if released from custody he may jeopardize police efforts to arrest his associates who are at large.

He also told the court that the suspect is a flight risk in that his permanent domicile is not yet known hence escape from the court jurisdiction before investigations are concluded.

But the suspect through his lawyer Cliff Ombeta opposed the prosecution attempt to have his client detained saying that they have not given compelling reasons to warrant Osman’s detention.

The lawyer also said that the police action influenced by the suspects business rivals so as to scare away his client in order to abandon 100 acres of land he owns in Kilifi County

 

 

COURT ORDERS DEVOLUTION CS TO COMMENCE THE PUBLIC BENEFITS AUTHORITY.

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Devolution Secretary Mwangi Kiunjuri who high court has been ordered to ensure the Public Benefit Organization Act 2013 is put on gazette within 14 days,

By Kurian Musa

High court Judge Joseph Onguto ordered the Devolution Secretary to ensure the Public Benefit Organization Act 2013 is put on gazette within two weeks.

Justice Onguto directed CS Mwangi Kiunjuri after the Trusted Society of Human Rights Alliance filed a case in court. The Civil organization told the court that the Act would enable the formations, operations and growth of Public Benefits Organizations. The Act provides for the establishment of regulatory framework within which such organizations can conduct their affairs.

In the application, Trusted Society argued that the Cabinet Secretary’s failure to set a commencement date was illegal. They explained that the Act was passed by Parliament in 2012 and should have been gazette as required by law.

The CS is on the spot because the Act may be cited as the Public Benefits Organizations Act, 2013 and shall come into operation on such date as the Cabinet Secretary may, by notice in the Gazette.

The PBO Act sets the stage for voluntary self-regulation. This will allow PBOs to determine standards, certifications and adherence to a professional code of conduct.

The Act if implemented, it shall enhance co-operation between PBO’s, government, Private Sector, and development partners. It believed that the new Act will facilitate a constructive and principled collaboration between public benefit organizations, the Government, business, donors and other actors in order to advance public interest.

There was a proposal to amend the Act but the court said on Monday that it was illegal to do so before it is enforced.

The Civil society is the greatest beneficiary since the law will generally strengthen civil society, promote social welfare and improve the conditions and quality of life for the people of Kenya.

Public benefit organizations does not include trade union, political party, religious organization, a society within the meaning of the Societies Act, co-operative society, community based organization and micro-finance institution.

However, an international non-governmental organization may register as a public benefit organization.

Once commenced, CS Kiunjuri will be expected to appoint the Public Benefit Organizations Regulatory Authority as will be established under section 34.

 

LAW FIRMS ACTING FOR FORMER IMPERIAL BANK LIMITED DIRECTORS CANNOT PROCEED.

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Former Imperial Bank Limited depositors following court proceedings of the Imperial bank suit at Milimani law courts on Thursday October 27, 2016.

BY SAM ALFAN.

It has emerged that the law firms acting for former Imperial Bank Limited directors cannot proceed in the matter.

According to lawyer Philip Murgor, IBL says the participation of Ahmednassir Abdikadir and company advocates, Njoroge Nani Mungai of Muriu Mungai and Co Advocates, and Coulson Harney Advocates will be prejudicial to their case.

Senior Advocate Murgor argues that the three law firms acting for the bank’s former director in a Sh42 billion fraud cases should be prohibited from participating in the proceedings.

Law firm of Ahmednassir Abdikadir appears for the estate of Abdulmalek JanMohamed and Janco Investments Limited. And Coulson Harney and Njoroge Nani have acted on behalf of 10 former directors of the bank.

The Imperial Bank mounted the contest saying there would be an injury in case Coulson Harney is allowed to proceed. The firm is said to have been involved in IBL’s restructuring, and cannot therefore act for its embattled former directors.

“The said three firms of advocate’s being legal advisers of IBL, and during the period in which the fraud occurred, are privy to the IBL’s confidential information, which they may now utilise against the bank,” Murgor argued in an affidavit filed at the Milimani commercial court.

He says the concerned advocates are potential or actual witnesses, and hence cannot act as advocates, “more particularly as advocates against their former client – the bank”.

According to the court documents, Coulson Harney applied to join the bank’s panel of lawyers on December 10, 2013, where it was appointed and undertook several assignments.

These include a secret ‘Project Crown’, which involved the restructuring of the bank to create a new holding company known as Imperial Securities Ltd.

On the other hand, the firm of Muriu Mungai and Co advocates is listed in IBL’s audit report and financial statements for 2006-14 as its legal advisers, the period when the massive fraud at the bank occurred.

Murgor argues the participation of the three firms in the proceedings is prejudicial.

IBL has argued that Coulson Harney and Ahmednassir have in their responses continued to annex as exhibits documents that are exclusively meant to be in the custody of IBL, namely CBK’s bank supervision reports.

“The forensic investigations conducted by FTI Consulting over the financial irregularities at Imperial Bank of Kenya has revealed multiple breaches of fiduciary duty on the part of the defendants leading to a massive, complex, long-running and well-orchestrated fraud,” reads the document.

 

THARAKA NITHI SENATE ASPIRANT CHARGED.

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Tharaka Nithi senate aspirant Francis Kiambi alias Matanka kiambi with Mary Waigwe Muthoni_who are Directors of Patiala Distillers Kenya limited based Embakas before Nairobi Magistrate Daniel Ogembo where they denied charges of being in possession of unaccustomed goods valued at about Sh 9.6 Million on Thursday October 27, 2016 (PHOTO BY SAM).

BY SAM ALFAN.

A Senatorial political Aspirant for Tharaka Nithi was yesterday charged of being in possession of unaccustomed goods valued at about Sh 9.6 Million.

Francis Kiambi alias Matanka kiambi was charged alongside Mary Waigwe Muthoni_ Director of Patiala Distillers Kenya limited based Embakasi, Nairobi.

The two are said that on the 18 day of October 2016 at Salford Godowns, within their firm were found in possession of 50 litres of Extra Neutral Spirit with dutiable value of Kshs 10,150,000.

The commodity was from Spectre International Ltd, a family business of Raila Odinga Family. It is clear, the firm is not sued.

Police charge sheet record shows they were using motor vehicle Registration No. KBR 554H/ZD8522 Mercedes Axor Truck.

The politician denied the charges and ordered to pay 300.000 cash bail and personal bond of 2million. This leaves his political aspirations in disarray if found guilty and a possibility of being locked out of the race due to chapter six of the Constitution on ethics and Integrity.

Three drivers and seven loaders were also in a Nairobi court. They were charged with diverting 100,000 litres of ethanol destined to Mwanza in Tanzania.

Police record say they were evading to pay duty worth over Sh 19.3.

Salim Ogennche, Joseph Thimwa, Gabriel Njue, Patrick Wanyoike, Danson Maina, Mourice Wanyareenja, Johnson Og'eechi, John Gathare, Hillary Kiprop and Alex Odera took plea before Milimani chief magistrate Daniel Ogembo
Salim Ogennche, Joseph Thimwa, Gabriel Njue, Patrick Wanyoike, Danson Maina, Mourice Wanyareenja, Johnson Og’eechi, John Gathare, Hillary Kiprop and Alex Odera took plea before Milimani chief magistrate Daniel Ogembo. However, they denied the two counts of diverting goods on transit.

The magistrate ordered they be detained in police custody for four days to enable police complete investigations into the offences against them. The accused were arrested on Tuesday evening.

The prosecutor charged them jointly with the senate aspirant that they were with others not before court, when they diverted export goods.

The goods in question are 50,000 litres of Extra Neutral spirit which was loaded in a Scania truck that was destined to Mwanza,Tanzania.

The syndicated commodity was from Kenya Spectre international Ltd with a dutiable value of about Sh. 9.6 Million.

Another 50,000 litres of extra neutral spirit was ferried in a Marcedes Axor truck that was destined to Mwanza, Tanzania from Spectre international Ltd with dutiable value of Sh 9.6 M.

The case will go on in February, 2017.

FORMER CBK GOVERNOR LOSES DEFAMATION SUIT AGAINST TATU CITY INVESTORS.

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Former Central Bank of Kenya (CBK) Governor, Nahason Nyagah with his sister Jane Wambui  Gacoka leaving Milimani law Courts building(FILE PHOTO).

BY SAM ALFAN.

Former Central Bank of Kenya (CBK) Governor, Nahason Nyagah, has suffered a major blow after losing a bid to block two foreign investors in the controversial Sh240billion Tatu City project from defaming him.

Justice Mbogholi threw out Nyagah’s application for injunction on the basis that the acrimonious fall-out between the foreign and local partners over ownership and capital investments in relation to properties belonging to Tatu City and Kofinaf  Ltd could not be properly adjudicated in a piece-meal manner.

Nyagah had asserted that Stephen Armstrong Jennings and Preston Mendenhall had engineered a smear campaign by falsely and maliciously accusing him of fraud, forgery and corruption in the transfer of more than 2,000 acres of rich farmland worth Sh5.3billion in Kiambu County.

The International investors claim their Kenyan minority shareholders had attempted to alienate and sell the land to third parties-through Purple Saturn Properties Ltd-in a deliberate attempt to swindle them before the ownership dispute is heard and concluded. They have already secured conservatory orders preserving the disputed properties.

The Judge said Jennings and Mendenhall, who are represented by Senior Counsel Ahmednassir Abdullahi, had pleaded justification and the court could not issue an interlocutory injunction upon Nyagah’s untested affidavit evidence.

“Moreover, the freedoms of opinion, expression and the media under Articles 32, 33 and 34 of the Constitution are fundamental rights, and although they are not absolute, they will not be lightly curtailed,” Justice Mbogholi observed.

“At this preliminary stage, I do not find any justification for issuing the interim injunction sought and I decline to do so. Nyagah has not demonstrated a prima facie case with a probability of success. The notice of motion dated September 14, 2015 is hereby dismissed with costs,” the Judge ruled.

 

ORDERS TO FREEZE IMPERIAL BANK ASSETS TO WAIT, COURT SAYS.

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Imperial Bank Limited depositor’s stage demo outside imperial bank headquarters in Nairobi.

BY SAM ALFAN.

A judge declined for a second time to grant orders freezing the assets of the embattled Imperial bank directors saying they will have to be heard first before a determination are made on whether to grant the orders.

High Court Judge Francis Tuiyot said that the nature of issues raised by all the parties in the case require that they be heard before the court can exercise its mind on the request seeking freeze orders.

“This court has weighed heavily on the matter. It’s clear that a decision on whether interim should be given till I hear merits of application from all sides” said judge.

Imperial Bank Ltd (IBL) which is under receivership, Kenya Deposit Insurance Corporation (KDIC) and Central Bank of Kenya (CBK) had early this month lodged a fresh suit against the bank’s former directors alleging they orchestrated fraud which led to massive loses.

IBL, KDIC and CBK through lawyer Phillip Murgor want the directors compelled to refund Sh45 billion and to be audited, tracked, and all the shares and assets they own in connection with the bank after September 15, 2015 frozen.

“We submit that the orders freezing the assets should be granted so as to preserve them. There is a high likelihood that they may be moved out of the jurisdiction of this court if orders are not granted thereby defeating our case,” lawyer Murgor said.

The directors through their lawyers however opposed the request for grant of interim orders saying they want to be heard before orders are granted.

Mr Justice Tuiyot also said that the estate of the late Abdulmalek Janmohamed, former IBL’s managing director, will have to participate in the case to the very end despite their application that they be removed on grounds that they are an unnecessary party in the case.

“We are already defending another suit filed by IBL under receivership and we therefore don’t need to be in this case,” lawyer Ahmednasir Abdullahi had argued.

The judge however directed all the lawyers to agree on the way forward regarding a claim raised by lawyer Murgor that some of the lawyers who are representing the directors and shareholders, have engaged in conflict of interest given that some are also listed as IBL legal advisors.

Lawyer Murgor wants them to stop participating in the cases.

The parties were directed to file their court papers.

The case will be heard on October 26.

 

IMPERIAL BANK FIASCO.

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Imperial Bank Limited depositor’s stage demo outside imperial bank headquarters in Nairobi to express frustration one year since the Bank was placed under receivership by Central Bank of Kenya on Thursday, October 13, 2016.

BY SAM ALFAN.

Details are emerging that Kenya Deposit Insurance Corporation (KDIC) has now written to Imperial Bank’s non- executive directors and shareholders’ representatives informing them that its Sh45 billion asset freeze application in court will not rely on the forensic audit conducted by FTI Consulting.

Philip Murgor representing KDIC in a response  to the directors lawyer Andrew Wandabwa, stated that their case is built around the evidence found in the bank’s annual reports and financial statements.

“The September 30th 2016 application has not in any way referred to an ‘Investigation Report’ by FTI Consulting, not placed reliance on any such report,” Murgor in the KDIC response to the
directors said.

Wandabwa on the other hand had requested KDIC to provide the directors with the forensic audit
extensively attributed in the asset freeze suits.

In his request to KDIC on October 11th, Wandabwa asserts: “As we Endeavour to draft and file our replying affidavit it is clear that the affidavit filed in support of your client’s notice of motion dated 30th September, 2016 heavily relies on investigation reports by FTI Consulting.

Therefore in order for us to respond appropriately to the claims leveled against our client it will be imperative for us to peruse all FTI Consulting investigations reports and documents relied upon in the said report as well as the terms of reference used to engage FTI Consulting in the investigation.”

The FTI forensic audit which could be the most expensive audit ever done in the history of Kenya’s investigation has never been made public.

The bank directors have filed an application seeking to compel KDIC to make public all FTI Consulting forensic audit reports touching on the bank post
receivership.

Last week Imperial Bank Limited’s non-directors demanded that Kenya Deposit Insurance Corporation (KDIC) and Central Bank of Kenya (CBK) be compelled to make all report by FTI Consulting Limited public.

This comes as depositors’ staged demo at imperial bank Headquarter in Nairobi to express frustration they have undergone for a year since the closure of the bank by CBK.

They are seeking orders compelling KDIC and CBK to make public the report by an international forensic audit investigation firm appointed by the CBK to carry out “a detailed and in-depth forensic audit on the purported fraud committed on the Bank.”

They alleged the FTI Consulting Report and the substratum of the case rest on various allegations and findings allegedly contained in the Report, which KDIC and CBK have not produced to substantiate their allegations.

FTI Consulting was initially engaged by the bank managers to conduct in-depth investigations into the affairs of the bank. FTI Consulting thereafter submitted an initial investigation report and the same did not allude to the fraud, negligence and/ or generally the findings as alluded to by KDIC and CBK.

“The allegations made by KDIC and CBK are therefore unsupported and unfounded,” said the directors in court papers.

They said that KDIC and CBK’s application having been certified as urgent, they (former Imperial bank directors) have proceeded to file their responses. However, the vague, general and unsupported allegations contained within the case filed by CBK and KDIC have prejudiced them.

“This has made it difficult for us to aptly respond to the said allegations, by reason of which it is necessary for the Court to give directions on this issue,” said the directors.

They want the orders they are seeking granted to enable the court to have before it all such material as is necessary for a fair, just and expeditious hearing and disposal of the case.

 

 

BISHOP IN THE DOCK OVER THEFT.

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James Karimi Karubiu accused of stealing a motor vehicle belonging to Mandera Member of parliament Adan Mohamed Nooru at Milimani law court on Friday October 14,2016 (PHOTO BY S.N).

BY SAM ALFAN.

A bishop has pleaded not guilty to stealing a motor vehicle belonging to Mandera Member of parliament Adan Mohamed Nooru.

James Karimi Karubiu is alleged to have committed the offense on August 29, 2010 in Nairobi’s CBD.

The prosecution said the bishop stole a green Range Rover Green valued at Sh1.8 million shillings. His prosecution had dragged for years because the complainant had thought he will pay.

The accused faces two other criminal counts of issuing a bad cheque to the said lawmaker with knowledge that the account had insufficient funds.

Karubiu appeared before Nairobi chief magistrate Daniel Ogemba today, October 14, 2016, and was released on a Sh100, 000 cash bail.

An agreement had been entered in the year 2010 between Mr Mohammed and the clergyman for the sale of Green Range Rover KAP 239D.

The MP made a complaint to the flying squad Nairobi Unit on August 11, this year, whereby the suspect was summoned by the investigating officer but he refused to appear.

Investigating officers started investigating the said bank account belonging to Mr Karimi and found it had insufficient funds at the time he was issuing the cheques.

The accused is facing another criminal case according to courts record.

KENYA AIRWAYS PILOT STRIKE STOPPED.

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Kenya Airways jet at Jomo Kenyatta International Airport in Nairobi.

BY SAM ALFAN.

Kenya Airways pilots have been stopped from proceeding with their planned strike next week even as the airline files a contempt of court application against the pilots’ association officials.

Employment and Labour Court Judge Nduma Nderi yesterday granted orders stopping the Kenya Airline Pilots Association (KALPA), from proceeding with a strike to push for the resignation of the National carrier’s Chairman, Ambassador Dennis Awori, and chief executive Mbuvi Ngunze.

Lawyer Geoffrey Obura argued that Kapla has violated a consent entered in court on June 2, where they undertook not to call a strike.

“The strike notice and the reasons given are both in contempt of the court order. The resignation of Ambassador Awori and Mr Ngunze, as demanded by Kalpa, are not acts within the control of the airline,” explained lawyer Obura.

He said Kenya Airways has service contracts worldwide which any industrial action will adversely affect occasioning inevitable financial losses.

Meanwhile, in the contempt of court application, Kenya Airways is seeking to have Kapla’s Paul Gichinga (secretary general), Njoroge Murimi (chairman), and Timothy Njoroge (vice chairman) jailed for six months for violating the June 2, consent.

The consent provided that Kapla agreed to withdraw the strike, Kenya Airways was not to take any action against Kapla members for participating in the strike of April 28, 2016 and that in the event of default by either party, the aggrieved party was at liberty to move the court for appropriate orders.

The lawyer was directed to serve Kalpa with the court papers.

The contempt of court application will be heard on October 26, while the application challenging last week’s strike notice will be heard on November 2.

 

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