By Sam Alfan.
A city lawyer has won a reprieve after the High Court quashed plans to charge him in connection with a Sh1 billion parcel of land allegedly belonging to former deputy President Rigathi Gachagua.
The court quashed the proceedings brought against lawyer Moses Owour, who was arrested alongside his client, a former land official Michael Ohas, James Othieno Ohas and Benard Ogechi.
The lawyer was arrested On 16 June 2023, at the Milimani law court and taken to the basement cells as he represented Ohas in the ownership dispute.
Justice Chacha Mwita (now court of appeal judge) quashed the entire proceedings brought against the lawyer and his clients.
The court further prohibited Directorate of Criminal Investigations (DCI) and Director of Public Prosecutions (DPP) from arresting and or prosecuting them over matters arising from the disputed land.
The court further said investigations into the alleged forgery of documents was interfering with a matter pending before the Environment and Land court, which was seized of tyr matter.
Justice Mwita said the decision to arrest and purport to charge and prosecute the lawyer was a threat to his fundamental rights and freedoms guaranteed under articles 47 and 50(1) (2) of the Constitution.
The court stated that the decision to arrest lawyer Owour in court and purport to prosecute him while performing professional duties was unfair, unreasonable, irrational, and amounted to abuse of power and criminal justice system.
“Considering the material placed before this court, the Constitution and the law, the conclusion I come to, is that there was no basis for arresting lawyer Owour within the court precincts with a view to prosecuting him given that he was discharging professional duties as opposed to having deliberately committed a criminal offence,” found Justice Mwita.
In a 78 page judgement, Justice Mwita ruled that police officers’ conduct was unlawful and reproachable in the circumstances of this case mores, in the manner they arrested the lawyer and purported to prosecute him.
He said DPP could not support police actions without appearing to compromising Owour’s clients’ right to a fair trial given that the issue of ownership of the land was before the ELC for determination.
However, the judge decline to award him damages for the violation of his rights and freedoms.
“I am not persuaded that compensation is justified. There is no evidence that lawyer Owour had been prosecuted. There was only an attempt to charge him and no more. There would therefore be no basis or justification for awarding compensation in the circumstances of this petition,” ruled the judge.
Justice Mwita noted that that although section 193A of the Criminal Procedure Code permits concurrent civil and criminal proceedings arising from the same set of facts, this should be allowed where criminal proceedings will not result into prejudice to one of the parties to the civil proceedings.
“In the circumstances of this petition, the issue of who owns the suit property was at the centre of the dispute before the ELC and that court would have to determine if the documents were fraudulent; how the property was acquired and any relevant issue regarding the ownership of that property,” said the judge.
The judge added that labelling the documents forged when the ELC is seized of the matter and was yet to pronounce itself on the ownership of that property, prosecuting the criminal case would be prejudicial to one side and may appear to favour another side thereby surreptitiously aiding one of the parties to the dispute.
“This court is satisfied that the police did not
comply with its mandate to discharge their functions subject to the constitutional safeguards of human rights and fundamental freedoms,” said the judge.
The court said the DPP also failed to comply with the principles in article 157(11) of the Constitution so that the exercise of his powers and discretion should be done in a manner that has regard to public interest, interests of administration of justice and prevents and avoids abuse of the legal process.
The lawyer said he was not informed of the charges he was to face during the arrest or furnished with a charge or record a statement.
He said he only became aware of the charges preferred against him after his advocates obtained a copy of the charge Slsheet from the prosecutor, just before taking plea.
The charges stated he forged a document contrary to section 357(a) of the Penal Code.
He was also accused of uttering a false document contrary to section 353 read with section 349 of the Penal Code.
The petitioners stated that the documents, the subject of the charges against the lawyer related to the two suits before the ELC.
All the documents to which the charges related were supporting documents filed by lawyer Owour, on behalf of Ohas and his company Columbus Two Thousand limited, in his capacity as an Advocate of the High Court of Kenya.
