Blog Page 455

MUGOYA COMPANY WOUND UP OVER DEBT CLAIMS.

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Justice Francis Gikonyo who ordered winding up Mugoya Construction and Engineering Company limited on accounts of its insolvent and inability to pay debts.
BYSAMALFAN.
High court has issued an order winding up Mugoya Construction and Engineering Company limited on accounts of its insolvent and inability to pay debts.
The petition to winding up the company was filed by city lawyer Gichuki Kingara who sought Sh 35,479, 350 being legal fees arising from the service he offered to the organization in 2009.
Justice Francis Gikonyo, said that company having failed to pay its lawyer there is good ground to winding up the company.
He said the judgment issued by the court remains unsettled, saying an attempt to review the same was declined by Justice Daniel Musinga now appellate judge.
” The decree remains unsettled and it has not been stayed the company is unable to pay debts as provided for under section 220 of the companies Act and it should be wound up” he said
Justice Gikonyo, further stated in his judgment that the MD (Mugoya) had been ordered to produce all books of accounts, tittles, log books, minutes books, bank statement, but declined.
The judge observed that there was a further order requiring him to explain how Sh 342, 000,000.00 received by his company from National Social Security Fund disappeared no explanation or documents were produced before court.
The court said that it has emerged that the company’s MD has been accused of transferring the company asserts to destinations which beyond the jurisdiction of the court.
“The company has been accused of hiding its attachable assets, refused to furnish security or produce books of accounts instead the company has engaged in delaying tactics” the judge said.
There is sense in which some impropriety may not be ruled out completely, saying Sh 14 million owed to Dew Security limited has not be denied or paid and no serious averment has come from company’s MD
Kingara’s law firm was instructed by company’s managing director James Mugoya Isabirye to act his behalf on a project worth over Sh 13, 608,000,000, the company failed to pay him on professional service rendered leading to litigation.

MARTHA KARUA SUES MOSES KURIA OVER ICC REMARKS.

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NARC Kenya party leader Martha Karua and Gatundu South  Member of Parliament Moses Kuria who has been sued for linking Ms Karua with Deputy President William Ruto criminal case before ICC.

BY THOMAS KARIUKI.

Gatundu South Member of Parliament Moses Kuria has been sued by Narc Kenya Party leader Martha Karua through his lawyer Senior Counsel Gitobu Imanyara over remarks he made in a political rally linking her to witness soliciting in order to fix the Deputy President at the ICC.

The Narc Kenya leader said that on the evening of Sunday, she was shocked to hear her name being adversely mentioned by the MP at a Prayer meeting held at Kapsikwony, Bungoma County.

Mr Kuria said that, he with others and Ms Karua were involved in drafting a letter that was sent to the International Criminal Court implicating the Deputy President for Crimes against Humanity.

She in response contacted her lawyer Gitobu Imanyara who was of the opinion that Mr Kuria’s words were defamatory, libelous and actionable. Similarly, she held a press conference at her NARC KENYA offices where she demanded an apology from the MP.

She said that instead of apologizing, Mr Kuria held a press conference at Parliament buildings where he reiterated the same words he had spoken at Kapsikwony.

“In addition, he stated that I met him together with others at Club Galileo in Westlands where we devised a scheme to recruit witnesses against the Deputy President for the case against him,” Ms Karua said.

Following the disputed General Elections of December 2007, the ensuing Post Election Violence in 2007/2008 and mediation efforts led by Mr. Kofi Annan, Ms Karua was appointed Justice and Constitutional Affairs minister.

She would, in her stature as minister for Justice and Constitutional Affairs, extensively interact with the various efforts and commissions involved in investigating the events of the Post-Election Violence, the Victims of the said Post Election violence as well as investigators from the International Criminal Court as Government of Kenya representative.

Ms Karua stated that Kuria’s statements have highly injured her reputation implying that she was not a diligent and trustworthy public servant as a Minister for Justice and Constitutional Affairs and that she was involved in bribing people to testify against the Deputy President.

“Unless the Defendant is compelled by this Honorable Court to cease from maligning my name and further injuring my reputation, I stand to suffer irreparable harm from his reckless and unwarranted attack on my integrity on grounds which he cannot substantiate,” the Narc Kenya chair said.

Lawyer Imanyara in the same light said that the words were calculated to paint the Ms Karua in negative light as the person behind the Criminal Case against the Deputy President, which words were scandalous, malicious, unwarranted and defamatory in the extreme.

He said that the words implied that Ms Karua had a corrupt interest in the ongoing cases at the ICC and had obtained corrupt benefits or advantages during her tenure as a Minister for Justice and Constitutional Affairs.

The lawyer also said that Mr Kuria implied that, “The plaintiff was a part of a criminal enterprise gang comprising of among others, the Defendant whose principal purpose was to interfere with the administration of justice at the ICC in breach of the Statute of the International Criminal Court and the Kenyan penal laws.”

Mr Imanyara also cautioned the court that pending the hearing and determination of the suit, Gatundu south MP should be restrained from issuing any statement on any media platform that pertains to the Applicant and her reputation, or in any manner from mentioning the Ms Karua’s name in any forum as would be defamatory, libelous and injurious to her reputation.

“Today I want to state it as it is. Whoever gets annoyed is his problem. When we had election violence in Kenya we had PNU and ODM. Each party was seeking victory. I was in PNU with MP Serut. All of us rushed to the ICC… I was part of the team that wrote a letter to the International Criminal Court and this was political theatrics and we need to tell Kenyans the truth…. I am ready to call on Martha Karua…come and tell us that this was only a political game…”

The matter was certified urgent and to be heard on 1 October for further direction.

 

MWIRARIA FIT TO FACE ANGLO LEASING TRIAL, COURT RULES.

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Former Finance minister David Mwiraria who has been summoned to appear in court on October 23 to face charges over the sh10 billion Anglo leasing scandals.
BY SAM ALFAN.
The Nairobi Anti-corruption court on Tuesday summoned former Finance minister David Mwiraria to appear in court on October 23 and answer to the charges related to over Sh 10billion Anglo Leasing scandal.
Principal Magistrate Felix Kombo issued the summons following application by prosecution led by Mr B. Mutuku that the former powerful cabinet minister and close confidant of retired president Mwai Kibaki is now well to plead to the charges against him.
He informed the court that the position of Director of Public Prosecutions (DPP) Keriako Tobiko is that Mwiraria should take plea, according to medical report he is now fit for plea taking.
However, the Magistrate allowed the prosecution request and issued summons against Mwiraria to appear in court for plea taking.
On June 26, 2015 the court directed that the ailing Mwiraria be tested by a government doctor to ascertain if he can be arraigned in court to face corruption charges related to Anglo Leasing saga.
The court requested for an independent report alongside that of his doctor Prof Peter Ndagwatha, which indicated that the minister is critically ill and therefore, not fit to be on the dock.
His lawyer Kioko Kilukumi, told the court that the former powerful minister is battling with cancer in hospital. “Mr Mwiraria is terminally ill. He has been having cancer for a long time and thus we
are suggesting that we mention the case in a month’s time to have a report from his doctors and those who will be appointed by the prosecution,” Kilukumi said.
The former minister is to face charges together with 13 other individuals for their role in the multi-scam, but he never appeared on grounds that he was in hospital.
He is jointly charged alongside businessman Deepak Kamani, his father Chamanlal Kamani and brother Rashmi Kamani,
The other accused persons included Kisii Senator Chris Obure, former Postmaster General Francis Chahonyo and former PSs Sammy Kyungu (Communication), Joseph Magari (Treasury) and Dave Mwangi (Internal Security) and David Onyonka, former head of debt management at the Treasury, and former Finance secretary Samuel Bundotich.
Mwiraria alone is faced with four counts of conspiracy to commit an economic crime and to defraud the government of Sh4.08 billion.
Another count reads that he is accused of engaging in a project without prior planning. He is also accused of allowing the financing of a project intended to upgrade police and other security systems
dubbed ‘E-Cops’ valued at Sh6.08 billion.

The former minister resigned from the finance docket in 2006 after he was adversely cited in a report on graft by the then adviser to former President Mwai Kibaki on ethics and integrity John Githongo.
The Kamani’s are named among companies that were awarded 13 out of 18 Anglo Leasing security contracts.
On Friday last week,the Kamini’s family who are facing criminal trial over the Anglo Leasing scandal, have lost bid to quash the anti corruption case
High court Judge Justice George Odunga, dismissed the application for judicial review on grounds that the applicants Kamni’s did not demonstrate to the court they will get fair trial.
The judge said allegation brought against them can only be determined by the trial court as the judicial review court cannot interfere with matter before the lower court if it has not been shown that justice will not be rendered to the applicants.
Justice Odunga further said from the evidence shown by the office of the DPP indicates that despite the fact that former AG Amos Wako gave an opinion over the contract it appears fraudulent acts happened during the execution of the contract.
He said that it’s for reason the government terminated the contracts, saying he is not the position to determine what exactly happened that is for the trial court which will receive evidence from the prosecution.
The judge further held that he cannot overturn the decision of the DPP to charge them without evidence being adduced
Justice Odunda said that. Deepak Kamani, his brother Rashmi Kamani and their father Chamanlal Kamani have denied having links with companies that were awarded the contracts.
It will upon the prosecution before the trial court to prove them wrong on their defence.
The companies listed as having benefited from the Sh18 billion contracts were Sound Day Corporation, Apex Finance Corporation, Anglo Leasing and Finance Limited, Infotalent Limited, Globetel Incorporated and Midland Finance and Securities Limited.

JUDGE KEEPS DISTANCE FROM MP MWITI MEDICAL REPORT.

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Imenti Central Gideon Mwiti at  Milimani law courts.

BY SAM ALFAN.

High court judge has refused to be drawn into a circus involving the MP for Imenti Central Gideon Mwiti over a medical report which was published in the media.
The information touched on a complainant alleged to have been raped by the legislator.
Justice Weldon Korir, said that the media should ensure that ethical standards are maintained while publishing such stories.
The decision by the judge arose from an application seeking a clarification how a medical report in the case found itself to the media and was widely published before being tabled in court.
The said report, according to lawyer Wilfred Nderitu who represents the victim in the rape case against the MP said it created an impression that the author had accessed the medical records of the victim.
Mr Nderitu told the upon reading the news item he raised concern seeking an explanation over how the confidential report was accessed and published beforehand.
“The article attempts to determine the criminal case outside the four corners of the judicial proceedings,” he said.
He also alleged that the article may have been written at the behest of “a person interested in the outcome of the case.”
Dr John Khamniwa who represents the MP opposed Mr Nderitus application saying that the constitution guarantees media freedom and dragging the court into press matters “amounts to engaging in extraneous exercise.”
Mr Mwiti’s rape trial was halted due to a petition he lodged in the high court challenging the indictment
Justice Korir sated that the courts cannot be swayed by reports appearing in the media saying the ruling and judgments depend on evidence placed before the courts.
He said being dragged into determining the authenticity and the veracity of the report would mean “holding lengthy proceedings in and attempt to establish sources of information and correctness of the same.”
“In order not to prejudice the parties’ right to take up this matter before the right forum I f for determination, i will withhold my opinion on the said article” Mr korir sated.
He said the parties in the case should rest assured that the decision will not be influenced by anything happening outside the litigation arena.
“For now it is important for this court to focus its attention on the judicial review application.

MEDIA GAGGED FROM DRAGGING KIDERO’S IN MUMIAS SUGAR CRISIS.

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Standard Media Group Lawyers Patrick Lutta at Milimani law courts after issued orders to resraining the Standard Media Group and Nation Media Group two from publishing stories linking Nairobi with the financial woes of the collapse of Mumias Sugar Company on Monday 21 September, 2105.
BY SAM ALFAN.
High court has barred to mainstream Media houses from further publishing any articles linking Nairobi Governor Evans Kidero to a report compiled by KPMG linking him with the financial woes of the collapse of Mumias Sugar Company.
In a suit filed at the High Court, Nairobi, Kidero defended his nine-year tenure at the helm of Mumias, saying he is not to blame for the current troubles facing the company.
Justice Alfred Mabeya said the two media houses may re-publish the articles once and if, the suit is determined in their favor.
This is after the Nairobi Governor moved to court through his lawyer Professor Tom OJienda seeking order to gag the two news outlet over the matter.
However, two mainstream media houses opposed the case saying the suit filed by Nairobi governor Evans Kidero to gag them should be dismissed.
Justice Mabeya said the constitutional right to freedom of expression has a limitation and that limitation is the respect for the reputation of others.
“A man is his reputation. Once reputation is lost, it cannot be regained. It is even worse when its destruction is repeated. No amount of damages in my view, unless the plaintiff expressly so indicates in his pleadings, is capable of restoring lost reputation,” he said.
Dr Kidero sought orders seeking to restrain the defendants from further publishing any article or material concerning him in relation to a report dated 8 July 2014 by KPMG regarding the affairs of Mumias Sugar Company
Mabeya stated that there was no evidence that the permission of KPMG had been obtained to publish the information in the draft report.
He also took into consideration that whilst Kidero is a public figure and that his actions both past and present must be put to scrutiny, the same should be scrutinized and published fairly.
He added that as a public figure, any falsehood as to his standing and integrity, considering chapter six of the constitution might have devastating effect on him as a person as well as his character.
“I am satisfied that in the circumstances of this case, the exercise of the right to freedom of expression by the defendants does not outweigh the private right to the reputation of Kidero,” he said
In the case, Kidero sued Standard Group Limited, Paul Wafula, Daniel Wesangula, Nation Media Group Limited and Remenya Gibendi.
He alleged that between 9 and 18 February this year, they maliciously, recklessly and without justification published or caused to be published articles concerning him in relation to the management of Mumias Sugar Company that were defamatory of him.
“The stories were premised on an unconcluded draft report dated December 18, 2014, which had a disclaimer clause that it was not for public use since they knew they had not given a chance to the people they mention to defend themselves,” he says in a sworn document.
It was the defendants contention that the articles were factual extracts from the KPMG report and that they gave the plaintiff an opportunity to comment.
During the hearing, Lawyers Patrick Lutta for the Standard and San Mohamed for the Nation said the KPMG report was obtained from Parliament indicating that it was in the public domain for Kenyans consumption.
Making their submissions, the two lawyers said the suit seeking to bar the two media houses from publishing stories concerning Mumias Sugar Company financial would be malicious as they only acted as a conveyor belt.
“The alleged KPMG defamatory materials complained of are extracts of documents in the public domain. The plaintiff’s private interests do not outweigh the public interest,” lawyer Lutta said.
Lutta said it will be a great disservice to the Kenyan public if the allegations against the company are not published since the public and the governments who are shareholders have a stake in it.
The suit, Kidero defended his nine-year tenure at the helm of Mumias, saying he is not to blame for the current troubles facing the company.
Kidero’s lawyer Professor Tom Ojienda said the forensic audit by KPMG showing massive losses at the company was carried out after Kidero had left the company and did not cover the years he was there.
“The stories were premised on an unconcluded draft report dated December 18, 2014, which had a disclaimer clause that it was not for public use since they knew they had not given a chance to the people they mention to defend themselves,” Ojienda said.

SDA CHURCH CENTRAL KENYA WRANGLES TO BE DETERMINED ON THURSDAY.

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SDA CHURCH CASE.

City Lawyer Moses Nyambega addressing the court during the hearing of a civil suit brought against officials of the central Kenya Conference by Geoffrey Asanyo and Charles Maranga at Milimani law courts on Monday 21 September, 2105.
BY SAM ALFAN.
High court will make a decision on September 24 over the Central Kenya Conference leadership wrangle.
Justice Roselyn Aburili said pending the decision of the court the order halting newly elected officials stopped from taking over the church management and function shall remain in force.
The court will consider t6he application by two church members Geoffrey Asanyo nad Dr Charles Maranga claiming some church ministers purported to hold election on 6 to 8 September 2105 at Karura SDA Church Nairobi without involvement of known delegates
The judge observed until all parties are heard the interim order issued on 11 September 2015 shall remain in-force until the inter parties hearing.
Justice Aburili said there will no prejudice suffered by the defendant, if the order is extended until September 24.
The two applicants Mr Asanyo and Dr Maranga, have submitted to the court that the said election was irregular and unlawful as current officials were not involved.
They said through their lawyer Moses Nyambega, that proper procedure was not when the elections were held.
He told the court that the current officials were elected on 30 March 2010 and their term will expire on 30 November 2015 that when elections are supposed to be conducted.
Consequently John Kiragu Jeremy of Central Kenya Association, Samuel Makori, Alfred Gitonga Makundu of East Africa Union Conference, Kennedy Maina, Japhet Ochorokodi and David Sande of West Kenya Conference, Blasious Raquri Alain, Jerome Habicha of East Central Africa Division cannot hold themselves has officials of Central Kenya Conferrer
Mr Nyambeya further submitted to the court that defendants lacks the legal capacity to call for election of the Central Kenya Conference and holding themselves as executive director, Secretary general and Treasurer respectively.

NO HOLIDAY FOR PRIVATE SCHOOL. COURT RULES.

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KENYA PRIVATE SCHOOLS ASSOCIATION GETS ORDERS TO CONTINUE LEARNING (2)

Kenya Private Schools Lawyer Muturi Kamande for Kenya Private Schools Association (Centre) accompanied by officials of the association Daniel Mwambu Mwamati (left) and CEO Peter Ndoro, after they obtained orders suspending the government directive to close private schools due to the on-going teachers strike in the public schools until their case is heard and determined on outside Milimani law courts on on Monday 21 September, 2105.
BY SAM ALFAN.
High courts have allowed go a head to private schools to continue with studies for the third term.
Justice Mumbi Ngugi stayed the circular issued by the Cabinet Secretary for Education calling for closer of all schools in the country due the ongoing teachers strike.
The judge said that private school have not been part to teachers strike, saying that their are parents and Teachers Service Commission.
Kenya Private Schools Association, through lawyer Muturi Kamande, told the court about two million both pupils and secondary school will suffer if they are not allowed to continues with their studies.
The lawyer told the court parent have already paid their fee in full for this term and ongoing teachers strike has nothing do with private schools
The court directed that the application be served upon the CS Education and attorney general and matter be heard inter parties on 24 September 2015

DPP LOSES BID TO CANCEL MP MOSES KURIA 2MILLION BAIL.

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MOSES KURIA CASE-DPP APPLICATION THROWN OUT (5)
Gatundu South Member of Parliament Moses Kuria at Milimani law court during the ruling on his bail cancellation by Director of public prosecution on Monday 21 September, 2105.
BY SAM ALFAN.
Gatundu South Member of Parliament Moses Kuria got a reprive after the court declined to cancel his Sh 2 bond.
Trial Magistrate Teresia Nyangena, said police ought to have charged Kuria with his second utterance he allegedly made in his constituency’
In dismissing the application by the DPP, seeking cancellation of the bond, she said if Kuria had committed an offence police should have charged
” Failure to indict him it appears there was no offence committed by the legislator” she said in her ruling.
The court found and held that DPP did not demonstrate by way of evidence the offence committed by Kuria
The court heard the MP having been released on cash of Sh 2 million on the charge of incitement, he has continued to spread hate speech and inciting members of the public.
The DPP had told the court that new circumstance have risen which calls for holding the MP in custody pending the hearing and determination of his criminal case.
He said wheres its the constitutional right of the accused to be accorded with bond, the same must be honored with the conditions attached to
Kuria had last month lost bid to bar media from the covering his criminal case.
The trial court ruled that the accused ought to have filed a formal application giving out all the facts showing how he has been tried and convicted by the media.
The court found and held that the accused stands innocent until proved guilty by the court after hearing evidence from the prosecution.
The magistrate said that the court does not pick evidence from the press in order to convict a suspect, saying that the media can only be barred where there vulnerable witness.
The media, the court said operates under the law, saying that the matter before the court touches on public interest.
The trial court proceeded to give a date for the hearing of the application by the office of the DPP seeking cancellation of cash bail of Sh 2 million given to the accused on grounds that he has continued to utter words that amount hate speech and incitement to violence.
” It’s upon the accused to lay proper foundation why he wants the press excluded from covering his criminal trial” he said.
The court has not be shown the complaint against biased reporting by the press or specified which news paper or TV station that has wronged him.

LEASE TUSSLE THREATENS FUTURE OF DEL MONTE COMPANY.

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LAWYER NJOROGE REGERU.-DELMONTE CASE (1)Lawyer Njoroge Rigeru for Del Monte company when he filed an application challenging threats by Kiambu and Murang’a county government not to renew their land leases for the land the company have been carrying pineapple farming in the two counties on Friday 18 September,2015.
BY SAM ALFAN.
Del monte Kenya Limited has sued the county government of Murang’a for declining to extend their leases on the pineapple plantation farm.
Del monte engages in the business of growing premium quality foods, fresh and processed pineapples and fruit juice beverages.
It is Kenya’s largest exporter of the above named products and is also a subsidiary of Fresh Del Monte Produce Inc, a company listed on the New York Stock Exchange with a listed value of about 2 billion US Dollars.
The company in its court documents says on October 1 2012, it made the requisite applications for extension of the terms of various leases to the relevant local authority in the county of Murang’a and Kiambu where the respective parcels of land are situated.
It says despite observing and complying with the statutory procedure, the two county governments have failed to issue the letters of ‘no objection’ for extension of the leasehold terms.
Instead, the county government of Murang’a as a pre-condition for issuing the letter of no objection ‘requested’ Del monte to demarcate and allocate to them at least 1500 acres along the Thika Kenol Highway for “public use”.
Delmonte says the ‘request’ is not only unconstitutional but is also blatantly illegal as the County Government of Murang’a (CGM) has no basis to make such demands on them.
Through Lawyer Njoroge Rigeru, Delmonte says the CGM through its officials has threatened its management severally to accede to the illegal and unconstitutional demands made by the said officials otherwise their leases will not be renewed.
“Failure to consider our application for extension of the terms of the leases is unreasonable, unfair and highly inefficient given the cyclical nature of our business, spanning over a period of three and a half years and therefore requiring advance planning,” it says.
It is alleged that the Senator of Murang’a County requested petitioner to donate 200 acres of land for private investors to put up a hospital and university.
Delmonte’s Managing Director Stergios gkaliamoustsas says in another meeting in the presence of the Governor, Senator and Speaker of county government of Murang’a at Sankara Hotel, he was informed that he should cede for the exchange of over and above 3000 acres of land for public use and if he did not agree to the request their letter of ‘No objection’ would not be released.
He says even when he applied afresh for the renewal and extension of the respective leases, CGM has delayed and frustrated the process by imposing unreasonable and unconstitutional demands on me.
The company now seeks to have the court issue an order restraining the CGM from demanding that the petitioner surrenders any part of its land or from imposing any unlawful demands as a pre-condition for issuance of letters of no objection for the extension of the leasehold terms in respect to nine parcels of land.
Delmonte says in 2014, it paid in excess of Shs 528 million as taxes to the Kenyan exchequer. The company has also invested in 8 nursery schools, 3 day care centers as well as 3 primary schools at the villages located within the farm.
It says in total, the pineapple farming cycle takes an average of three and a half years from planting of the first crop to uprooting of the crop and a fallow period before the next crop is planted.
It takes the fruits 18 to 20 months to mature after planting. After the first harvest, the plant produces another fruit 16 to 18 months later. Thereafter the plant is uprooted and the land left fallow for a period of 3 to 6 months. This is done in order to break the pest cycle.

The matter will be heard on 29th after the defendants have been served with the court papers

NACADA LOCKED OUT OF MIRAA CONTROL.

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Lawyer Henry Kurauka for Kenya Miraa Farmers and Traders Association.
BY SAM ALFAN.
National Agency for the Campaign Against Drug Abuse has been locked out from regulating Miraa chewing commonly witnessed amongst Embu and Meru communities, until suit brought against it is heard determined
Justice Isaac Lenaola said that order issued restraining NACADA is still in force, saying the attempt to limit time at which miraa should be chewed was considered unlawful when injunctive orders were issued.
The judge said the order will remain in force until 4 December 2015 when the matter will come for directions
Kenya Miraa Farmers and Traders Association through their lawyer Henry Kurauka, told the court that the action by Nacada to limit time was unlawful and will interfere with economic activity of the applicants.
The lawyer told the court that NACADA has purported to limit the time frame at which Miraa should be chewed.
He said the action is illegal and irrational as it affects the farmers and other consumers, saying that the organization has no legal mandate to issue such restriction.
Mr Kurauka said that Miraa consumers and farmers have been consuming Miraa for decades without any medical or any social adverse effect.
The court heard that there is no known medical problem that has been associated with consumption of the crop.
The decision by the Agency through its chief executive officer Dr William Okedi was arrived without consulting the farmers and should be considered as unlawful, the lawyer told the court.
The agency had announced that miraa could be only chewed from 5PM to 10PM which directive according to the traders and farmers is bad in law and will affect their social economic development