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AG DEFENDS DECISION TO RETIRE KAINDI.
Deputy Inspector General of police M’s Grace Kaindi. BY SAM ALFAN.
Attorney general Professor Githu Muigai has opposed the application by an activist seeking to quash the decision of President Uhuru Kenyatta retiring deputy inspector general of police M’s Grace Kaindi.
The Ag through senior Principal state counsel Mr Emmanual Bitta told the court, that retired officer has no contractual with National Police Service Commission in which she seeks protection from removal.
Mr Bitta told Justice Monica Mbaru of Employment and Labour Relations Court , that M’s Kaindi has reached her retirement age of 60 years.
He said the decision being sought to be quash has not been shown to the court, saying the application is defective and should be struck out
Mr Bitta, further said the applicant Mr Zachary Onsongo has not exhibited his locus standing to warrant the court to issue the order staying the decision of the President.
He submitted that at the hearing of the application, the court will be shown, that there is no privily of contract between the applicant, NPSC and AG.
The judge directed that the matter be heard on September 14 by all parties.
Mr Onsongo, says that the move by the head of state is unconstitutional, which calls for the court to protect the violation of the constitution.
The activist through his lawyer Oduor Jesse, told the court that the said transfer of Kaindi erodes the constitutional gains towards the empowerment of women..
The lawyer told the court that in effecting the transfer or retire the President usurped the powers of the national Police Service Commission as enshrined in the constitution
Mr Jesse argued Kaindi holds a constitutional office in which she was appointed on the basis of competitive process by NPSC.
He said the said transfer did not factor in the issue of gender as provided in the constitution.
The court that Kaindi has five years contract which expire on 2018, saying her retirement is violation of her contract of employment.
Kaindi was retired on 31 August 2015 and appointed ambassador whose st
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MAKUENI COUNTY GOVERNMENT FACES EMINENT DISSOLUTION.
Senior Counsel Mohammed Nyaoga who is also the chairman of Central bank of Kenya board hands over his commission report to president Uhuru Kenyatta at State house Mombasa. BY SAM ALFAN. Senior Counsel Mohammed Nyaoga led tribunal appointed by President Uhuru Kenyatta to probe the veracity of a petition filed by Makueni County residents has recommended suspension of the county government.
According to State House spokesperson Manoah Esipisu, the six member committee presented its report to President Kenyatta Thursday morning at State House, Mombasa.
The Nyaoga-led committee appointed on March 6, 2015 said its decision was based on the fact that majority of the residents were unhappy about the constant wrangles pitting Governor Kivutha Kibwana and Members of the County Assembly which needed to be resolved.
According to Section 123 (8) of the County Governments Act, if the President finds justifiable reasons for suspension he is expected to forward the report and recommendations to the Speaker of the Senate within seven days.
“The Speaker shall cause a motion for the suspension of the county government to be laid before the Senate within seven days and approval by Senate shall be by a resolution adopted in accordance with the provisions of Articles 122 and 123 of the Constitution,” the law further states.
Once the matter is brought to the Senate, Senators will vote on the motion which will require 24 votes to be passed.
“Upon approval by the Senate, the President shall, by notice in the Gazette, suspend the county government for a period not exceeding ninety days, or until the suspension is terminated earlier by the Senate in accordance with Article 192 (4) of the Constitution,” states the County Governments Act.
The law is however silent on what happens if the President does not find ‘justifiable reasons’ for suspension but according to commissioner at the Commission for the Implementation of the Constitution Kamotho Waiganjo if the President does not agree with the commission, which he insists is highly unlikely, the status quo remains.
“It must then mean that the journey ends there. The discretion for suspending a county government is under the President and he does that because the grounds have been reached. The law on this has only two options, either to suspend or not,” he said.
During the period of suspension the operations of the County Assembly will be discontinued but despite this, the Speaker and Members of the County Assembly will draw half of their benefits.
County Assembly committees shall also be dissolved during this period.
“All Bills introduced before the County Assembly and that have not received assent prior to suspension shall expire and shall be re-introduced as new bills upon the cessation of the suspension,” the law further states.
The President will also be required by law to nominate members to the interim county management board which shall then carry out all the functions of the Executive who during suspension, just like their counterparts in the assembly will receive half of their salaries.
Persons appointed to the board must be residents of the county, must have knowledge, expertise and reasonable experience in management of the security sector or management of the private or public sector.
The individual must have for the last five years not stood for elective office in the suspended county government, or been an officer or employee of the suspended county government and has not for the last five years been a member of a governing body of a political party.
In November last year, over 3,000 members of the public from Makueni pitched tent at Harambee House in a bid to present President Kenyatta with a petition to dissolve the county government which they accused of embezzling funds and not initiating any development.
They also complained that the constant wrangles were stalling activities in the county as several laws were yet to be considered.
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RAILA SUES DUALE FOR DEFARMATION
Former
BY SAM ALFAN.
Imediate Prime Minister Raila Odinga has sued Majority leader Aden Duale for defamation.
In suit papers filed at Milimani high court, Raila accuse Duale of linking him with collapse of Mumia Sugar Company.
He says that on 15 August 2015 Duale while in function at Burborwet secondary school in Belgut constituency in Kericho County he allegedly defamed the ODM Leader, by saying that the collapse of Mumia sugar company did start with Uhuru\s tenure.
” The collapse of Mumia sugar company did not start during Uhuru’s tenure, It began during that of former President Mwai Kibaki and former Prime minister Odinga, Raila famaily owes Mumia sugar company sh 40 million and we call western legislators to go to the former PM’s office and pick the cheque” Duale is said to have uttered.
Raila further says that on 18 August 2015 at a press conference at Parliament Buildings in Nairobi city County Duale accused the former PM has the lord of poverty to the Western people.
” We also want our friend Raila Odinga, the lord of poverty, to go to western Kenya, we want the people of Western Kenya to come in large numbers, but at the end of the day, he has two choices, he either gives the cheque to those people so that they can take their children to school, on behalf of his family and his companies, which is allowed in law, in civil litigation law, he and his a per-payment schedule that the people of Western Kenya and sugarcane farmers” Duale is alleged yo have said
The former PM through his lawyer Paul Mwangi, says that the said utterance were broadcast, televised nationally and the leading television stations in Kenya and within East Africa and published to the world at large through the internet.
He said words meant that he owed Mumia Sugar company Sh 40 million and that he had unlawfully refused to settle.
Raila says that after issuing demand letter to Duale, he exhibited malice by saying that,Me and my lawyers are ready to take my friend Raila for long legal battle, but should have used that money to pay his debts to farmers” he said in response to the demand letter.
At the hearing of the suit Raila will be asking the court to award him damages for defamation of character and further seek an injunction restraining Duale from making similar allegations.
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KIDERO TURNS HEATS ON KHALWALE’S LAWYER IN MUMIAS ROW.
Prof Tom Ojienda for Nairobi Governor Dr Evans Kidero leaving Milimani law courts on Wednesday September 3,20 BY THOMAS KARIUKI.
Nairobi Governor Dr Evans Kidero has now turned his guns on a senior counsel representing Kakamega Senator Dr Bonny Khalwale.
Dr Kidero argues that SC Ahmednasir Abdullahi, lead counsel for Dr Khalwale is the sole conciliator in an ongoing arbitration between Mumias Sugar Company and Mumias Outgrowers Company whose subject matter is valued at Sh3.7 billion.
“The plaintiff present case is likely to be prejudiced. This is because the arbitrator is likely to use the information acquired during arbitration proceedings to the disadvantage of the plaintiff,” Dr Kidero said.
Through his lawyer Prof Tom Ojienda, he said that Dr Khalwale’s defence is pegged on the documents and evidence in arbitration proceedings between Mumias Company and Mumias Outgrowers, Ahmednasir is likely to be called upon as a witness to testify concerning the present suit.
Dr Kidero sued Kakamega Senator for defamation on July 1 over his repeated utterances and publications made between June 26 and July 1 2015.
It is evident the defence has brought before the court the claim for Sh3.7 billion that the Outgrowers company is apparently seeking from the arbitration proceedings, Prof Ojienda said.
The money is alleged to have disappeared during the tenure of Dr Kidero in his tenure as the Managing Director of Mumias Sugar Company.
Dr Kidero accordingly opposed the move alleging that the senator is trying to make the plaintiff personally and veraciously liable for the management decisions that were made during his leadership as Mumias boss.
“Allowing SC Ahmednasir to act for Dr Khalwale would be a gross violation of advocate rules,”
“By purporting to want to lead the defendant in this suit whose defence is mainly pegged on the ongoing arbitration proceedings, Ahmednasir is obviously defying the rules regarding impartiality and independence of an arbitrator. His very expression of interest in this matter breaches the duties of an arbitrator,” Dr Kidero said.
Nairobi governor also said that the senior counsel is therefore precluded by his duties as an arbitrator from engaging in any conduct that brings his independence and impartiality into question.
“Pending the hearing and determination of the application dated July 1 2015, there be an order by this court barring Ahmednasir SC from acting as lead counsel for the defendant,” Prof Ojienda says.
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KONZOLO’S PLAN TO STOP PROSECUTION OPPOSED.
Muchanga Investment Limited lawyers Cecil Miller leaving Milimani law courts after the hearing of application seeking orders to stay the graft case against Konzolo.
BY SAM ALFAN.
Muchanga Investment Limited opposed application by former National Social Security Fund managing Trustee Josephat Konzolo seeking to halt criminal proceedings pending before anti- corruption court. The company through its lawyers Cecil Miller and Peter Wena has raised preliminary objection by Konzolo who has moved to the high court Environment and Land Court seeking orders to stay the graft case against him. When the case came for mention yesterday before justice Lucy Nyambura Gacheru, Mr Miller informed the court that he has already filed preliminary objection to the application. He said their objection is that Environment and Land Court being a specialized court under the constitution of Kenya does not have jurisdiction to entertain or determine of criminal proceedings commenced in Anti-Corruption case against Konzolo. In his brief submissions, Miller told the court that the supervisory jurisdiction of the High Court under the constitution and other statutory provisory and rules made .Also suspended CS Charity Ngilu has enjoined in the application as interested party in the case. She is being represented by lawyers Paul Muite and Kioko Kilukumi. However, the judge directed all parties involved to file and exchange written submissions within 10 days and return back to court on September 3, for highlighting of their submissions. In the application Konzolo through his company Telesource.com limited, said there are two pending matter before the High Court touching on the anti-corruption case relating to the dispute of ownership of the Sh 8 billion Karen land. He told the court through his lawyer Stephen Gikera, that since Environmental and Land division is yet to make a decision as who owns the suit land the subject matter of the criminal case that is set for hearing at anti- corruption court on November 3, 2015 should be stayed to await the outcome of High Court’s decision. In his earlier submissions Gikera said that there is also a pending petition by suspended CS Ngilu which has been referred to Chief Justice Willy Mutunga to appoint a bench to determine the constitutionality and legality of Ethics and Anti- Corruption Commission which made recommendation for his prosecution. He said that the two High Court divisions are likely to come up with conflicting decisions, saying already some officers from the ministry of Lands who have been charged have given evidence in the civil suit filed by Muchanga Investment who claim ownership of the suit land. “The director of public prosecutions has taken a position diametrically opposed to the stand taken by the Attorney General in the civil proceedings by recommending the prosecution of Mr Konzolo and his company,” Gikera submitted. The court heard that the actions of DPP to charge some of the defendants in the civil suit is clearly an abuse of the legal process which act is aimed at giving unfair advantage to one of the parties in both civil and constitutional cases. He urged the court to exercise its discretion and intervene by issuing orders staying the criminal case pending the hearing and determination of the application seeking to quash the matter before the anti- corruption court. Konzolo CS Ngilu and several senior officials from the ministry of Lands were arraigned in court facing charges of corruption and abuse office in relation to Karen land, saying that ownership of the suit property is the central issue pending before the civil court which was instituted long before the criminal case. September 15, saying that there will be no prejudice to be suffered by the DPP if the criminal case is stayed, pending determination of the matters before the high court. The court heard that the office of the AG has taken a position that the disputed Karen land according to available government records is registered in the name of the Telesource .com limited
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KAINDI REPLACEMENT CHALLENGED.
LawyerJessie Oduor for Zachary Onsongo submitting before Employment and Labour court lady Justice Monica Mbaru after he filed application court seeking orders to quash the decision of the President to retire and transfer former Deputy Inspector General of police Grace Kaindi.
BY SAM ALFAN.
Human Right Activist has moved to court seeking orders to quash the decision of the President to retire and transfer former Deputy Inspector General of police Grace Kaindi.
A petitioner has filed an application at the Employment and Labour court alleging that President Uhuru Kenyatta violated the constitution in replacing her.
Zachary Onsongo, says that the move by the head of state is unconstitutional, which calls the court to protect the violation of the constitution.
The activist through his lawyer Oduor Jesse, told the court that the said transfer of Kaindi erodes the constitutional gains towards the empowerment of women..
The lawyer told Justice Monica Mbaru, that in effecting the transfer or retire the President usurped the powers of the National Police Service Commission as enshrined in the constitution
Mr Jesse argued Kaindi holds a constitutional office in which she was appointed on the basis of competitive process by NPSC.
He said the said transfer did not factor in the issue of gender as provided in the constitution.
The court that Kaindi has five years contract which expire on 2018, saying her retirement is violation of her contract of employment.
The lawyer said that the Deputy Inspector-General of Police holds a constitutional office and was appointed on the basis of a competitive process by the National Police Service.
“By virtue of Constitutional provisions and the National Police Service Act, the deputy inspector general cannot be fired without following the due process of the law,” explained lawyer Jesse.
He added that the deputy inspector general has a five year contract which is to end in 2018.
Kaindi was retired on 31 August 2015 and appointed ambassador whose station was not disclosed.
The court certified the matter urgent and directed that the application by served upon NPSC and attorney general and same be heard tomorrow due the urgency.
President Uhuru Kenyatta yesterday replaced Deputy Inspector General of Police Grace Kaindi in a reshuffle.
The President appointed Joel Kitili, who has been the General Service Unit commandant, to act in her position.
“Kitili will serve with immediate effect, and until the substantive processing of appointment of the next Deputy IG takes place,” the President said.Kaindi has been appointed ambassador without portfolio.
The President also replaced National Counter Terrorism Centre director Isaac Ochieng, who has been appointed ambassador.
Uhuru replaced him with Martin Kimani, who was Kenya’s Permanent Representative to the UN Office.
Kaindi had been excluded from a Sh12 billion police equipment procurement and had earlier been offered a diplomat’s job before yesterday’s shuffle.
The Interior ministry is procuring the equipment through single-sourcing.
In June, National Police Service Commission chairman Johnston Kavuludi had said Kaindi will serve until January 2018.
Kavuludi, in a letter to Inspector General Joseph Boinnet, cancelled the initial letter dated December last year.
The letter directed Kaindi to go on three-month leave pending retirement. She turned 60 on July 25.
“Our letter of December 2014 giving notice for your retirement from October 2015 stands cancelled,” the letter from Kavuludi said then.
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TSC SEEKS SUPREME COURT TO REVIEW IT DECISION ON TEACHERS SALARY.
Kenya
National Teachers Union Chairman Mudzo Nzili and National Secretary General Wilson Sossion leaving Supreme court on Wenesday September 2 ,2015.
BY SAM ALFAN.
Teachers Service Commission (TSC) has moved to the highest court on the land seeking it to review it last week decision on Teachers payment.
This follows a directive from judges for the parties in the dispute to return to court next week.
TSC wants the Supreme Court to stop the adoption of a 50-60 per cent pay increase ordered by lower courts until its application seeking a review of the ruling is determined.
However, Supreme Court Judge Jackton Ojwang’ has directed the TSC to serve its court papers to the other parties in the case.
“I hereby order and direct that the application in question shall forthwith be served upon all the parties in the case,” said Justice Ojwang’.
The parties should then take a hearing date before the Registrar on Tuesday.
Supreme Court directed TSC to pay teachers their salaries as ordered by Employment and labour relation court judge Nduma Ndeli.
TSC lost it bid to stop the implementation of 50-60% salary increments for teachers before the appellate court that led the commission to rush to the Supreme Court where they suffered a major blow after Supreme Court dismissed their application.
KNUT has already announced countrywide strike, a move that will paralyzed the learning in public schools.
Treasury Cabinet Secretary said they don’t money to pay teachers’ salaries.
The Kenya National Union of Teachers has officially called for the commencement of the nationwide teachers’ strike saying teachers will not resume duty until the Government honors the court order that awarded teachers a 50-60% pay hike.
The union Secretary General Wilson Sossion says teachers will not negotiate with the Government over the court’s order as the Government has the capacity of paying teachers their pay hike.
The nationwide strike has officially commenced today with the Kenya National Union of Teachers saying there is no need to issue a strike notice to TSC as it is a continuation of what began last year.
The ongoing teachers strike entered its third day with no end in sight, and for teachers who have downed their tools the back and forth haggling for a salary rise is symptomatic of serious fundamental problems in the country.
The tussle between the teachers and the Government has left both parents and students especially those that are just about to sit for their national exams worried but KNUT says teachers will remain unmoved by their employers’ plea to resume classes as they only go back to work once their employer the Teachers Service Commission deposits money in teachers’ accounts.
KNUT National Chairman Mudzo Nzili says it is within their constitutional right to demand for a pay increment and will fight on to ensure teachers receive their increment.
According to the Giant teachers’ union they will not negotiate with the Government over the court’s order as the Government has the capacity of paying teachers their pay hike.
KNUT Secretary General Wilson Sossion says teachers do not need to sign performance contracts before getting a pay rise saying teachers’ performance is gauged every year through the national examination.
The official commencement of the nationwide teachers strike came even after the Supreme Court accepted an appeal by TSC challenging its ruling directing the commission to implement a 50 to 60% salary increase for teachers.
Supreme Court Judge Jackton Ojwang directed TSC to serve KNUT and KUPPET with the application it has file in court and directed the parties to appear before the court on next week Wednesday for hearing.
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FIRM LINKED TO FORMER CBK BOSS PROBED.
Lawyer Patrick Lutta for the two city lawyers who are being probed by criminal investigation officers at Milimani law courts.
BY SAM ALFAN.
Directorate of Criminal Investigations (DCI) is investigating offences allegedly committed by two city lawyers Nelson Havi and Michael Osundwa involving changes in the shareholding and directorship of Purple Saturn Properties, a firm connected to former Central Bank of Kenya (CBK) Governor Nahashon Nyagah.
Justice Ngugi was on Wednesday heard that criminal charges have however not been lodged against the lawyers.
The Office of the Director of Public Prosecutions (DPP), through Ashomosi Shitambasi, told the court that the matter is still under investigation and that any criminal charges will be preferred once the DCI has made its recommendations to the DPP.
The two lawyers have in a pre-emptive measure moved to court to challenge their prosecution after being invited to record statements.
Lawyer Patrick Lutta, appearing for the two lawyers, said the intended prosecution relates to a civil suit in which they acted in their professional capacity.
“Any proposed criminal charges will contravene their fundamental rights to a fair trial and administrative action and would amount to an abuse of the legal process,” Lutta said.
Lawyer Ahmednasir Abdullahi successfully applied for the enjoinment of the two complainants, Rendeavour Services Ltd and businessman Stephen Jennings, to participate as interested parties. He said he required 14 days to file a replying affidavit and grounds of objection.
In their petition, Havi and Osundwa said they were instructed by Purple Saturn, between February 24 and March 3, to change its ownership and management and duly informed the Registrar of Companies about the restructuring of the firm.
The lawyers are under investigation for conspiring to defraud Kofinaf Company Ltd of Sh5 billion worth of shares in Purple Saturn Properties Ltd. The offence was allegedly committed between June 13 and August 3.
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16 KIHIU MWIRI DIRECTORS CHARGED WITH MURDER OF FOUR FORMER OFFICIALS.
Some of the 16 current and former officials of Kihiu-Mwiri land buying company charged with murder of four director of the company in Kiambu and Murang’a counties at Milimani law courts on Wednesday 2 September, 2015.
BY SAM ALFAN.
Sixteen former and current directors of the controversial Muranga-based Kihiu Mwiri land buying company have been charged with the killing of former officials.
The officials however did not plead to the charges after the prosecution requested for more time to facilitate their mental assessment to determine whether they are fit to stand trial.
The accused persons will undergo psychiatrist examination at the Mathari Mental Hospital before they formally answer to the capital charges.
The accused are Joseph Thiongo, Henry Ngugi, Julius Kanyiri, John Njoroge, Harrison Kibande, Joseph Muchui, Bernard Murigi and Josephat Macharia.
Others facing charges are Mary Mugechi, Joseph Nyamu, Patrick Ikuu, Samuel Njeru, Peter Mburu, Peter Murigi, Zackaria Ngaruiya and John Kamau.
High Court Judge Jessie Lesiit postponed the plea taking to September 21. Seven of the suspects have been in police custody for the last 28 days while the rest were arrested last week.
Deputy Public Prosecutor Catherine Mwaniki last week had made an application to detain seven of the suspects for eight days to complete investigations.
She had said that more time was required for investigators to recover weapons believed to have been used in the killings.
Justice Nicholas Ombija had given the State until September 2 to either charge or release them.
The sixteen are accused of murdering Peter Kimani Kuria on May 10 at Kihiu Mwiri in Murang’a County. They allegedly committed the offense jointly with others not before the court.
They are also accused of murdering Paul Muhuhi Bernard on June 28 at Majengo Estate in Thika within Kiambu County.
The 16 are further accused of Murdering Josphat Kibe Nyoike and Zachary Chege Kiratu on July 29 along Kihiu Mwiri in Murang’a County jointly with others who were not before the court.
Lawyers Evans Ondieki and Kamau Mbiyu protested that the police of violating the constitutional rights of the accused persons by holding them without charge beyond the statutory 14 days allowed by law.
Justice Lesiit however directed the counsels to submit their complaints in writing.
The 15 men will be detained at Industrial Area Prison Remand while one woman Mary Mugechi,will be taken to Lang’ata Women Prison.
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