Month: February 2014

HIGH COURT DECLARES WAITITU UNFIT TO HOLD PUBLIC OFFICE.

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Businessman Benson Ritho perusing court document as he leaves Milimani Law Court.

By SAM ALFAN

Former Embakasi Mp Ferdinand Waititu today lost his quest to head the Athi Water Services board after the High court quashed his appointment.

 Judge Mumbi Ngugi said Environment, Water and Natural Resources Cabinet Secretary (CS) Judy Wakhungu erred by failing to follow the principal of governance in appointing Waititu. Subsequently, the judge directed CS to commence appointment of the chairman of water services board paying due regard to personal character and integrity of the appointee.

“The CS is under duty and obligation to ensure the person appointed is of integrity,” said Judge Mumbi.
She declared in her judgment that the Wakhungu failed to consider Waititu’s personal character and integrity when making the appointment. “The controversial appointment was unconstitutional, null
and void,” read the judgment.
Wakhungu, the judge noted, is under duty to exercise powers of the water act when making any appointments to the water services board.

Waititu was appointed in Gazette Notice No. 115 dated January 10, 2014 serve for a period of three years.

Ritho argued that Waititu lacked personal integrity, competence and is not suitable to hold the post as demanded by the constitutional
threshold.

The judge however conquered with the averments made by Ritho saying there are serious unresolved issues by Waititu which Wakhungu did not consider when making the appointment.

“Wakhungu failed to act in accordance with constitution and fell below the standards of the constitution. No inquiry was also made on suitability and character of Waititu a responsibility that is vested on the Cabinet Secretary,” she said.

Ngugi added that the Cabinet Secretary should have put in place a mechanism that would have allowed public participation.

Lawyer Harrison Kinyanjui said they would appeal the decision saying Ritho based his entire claim on
spurious allegations of fraud for which Waititu has never been convicted.

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HIGH COURT DECLINES TO STOP ODM ELECTIONS.

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(file photo)

Orange Democratic Movement (ODM) party leader Raila Odinga addressing delegate at Kasarani Sports Gymnasium last year.

By SAM ALFAN

A Nairobi High Court have declined to halt the Orange Democratic Movement (ODM) party elections slated for tomorrow at Kasarani Safari com Stadium.

Six Kaspul Kapondo delegates had moved to court this evening to stop the elections on grounds that their names had been omitted from the party list.

Aggrey Omondi,Evans Harold Ndege,Jeremiah Omuga Oriango, Peter Odhiambo, Jacinta Anyango Olare and Zachary Asedo had under a certificate of urgency urged the court to suspend the National Delegate Convection as their democratic right to participate in electing new party natioanl office bearers had been violated.

However, High Court David Majanja dismissed their an application saying they had not exhausted the party dispute resolution mechanism.

Judge Majanja said the six ought to have registered their complainant with the party tribunal before moving to court.

The election to be held at Kasarani Sports Gymnasium where all the 26 positions from that of the Party Leader downwards will be contested will be a litmus test for the party

During the two-day event, some 3,200 delegates will deliberate on various matters of importance to the party and thereafter take part in the most important exercise which is the election of the national office bearers.The term of the current national officials of ODM came to an end in last month.

Ababu Namwamba is eying the secretary general slot.Namwamba’s line-up has Joho as its favorite candidate for the deputy party Leader position, Mr Nanok (chairman), Mr Simon Ogari (treasurer), Ms Roza Buyu (organizing secretary) and Suleiman Ndori (deputy organizing secretary).

Namwamba’s team will face off with Dr Agens Zani’s supporters who are fronting Funyula MP Paul Otuoma for chairman and Kakamega governor Wycliffe Oparanya as deputy party leader.

Party Leader Raila Odinga faces a herculean task of ensuring that the party gets a strong leadership that represents the face of Kenya. With 91 MP’s, 11 Senators and 16 Governors, spread in all parts of the country, there are those who feel the national leadership of the party should be evenly distributed across the country,

 

RUTO WANT THE AWARD AGAINST THE IDP SET ASIDE.

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Deputy President William Ruto lawyer Kioko Kilukumi and Abbas Esmail leaves a court room at Milimani Law Court.

By SAM ALFAN

Deputy President William Ruto has not paid the sum of Sh 5 million to Eldoret farmer has ordered by the high court judge Justice Rose Ougo last year.
In a replying affidavit to the application by the deputy president seeking stay of the execution of the judgement of the court, Mr Adrian Gilbert Muteshi says that he was entitled to vacant possession of the suit property and payment of the money as compensation which has not been done.
Mr Muteshi says that the deputy president has either refused or neglected to comply with the orders of the court, but he has instead filed notice of appeal to challenge a part of the judgment, saying the move is meant deny him fruits of the judgment and yet he maliciously occupied his land for a period of 5 years.
In the appeal Ruto only questions the court order requiring him to pay Sh 5 million compensation and  costs, saying its not clear whether the appeal will succeed and how long it take before its determined.
The deputy president was faulted by the court by failing to provide evidence of a sale agreements prove is allegation of being the bone fide purchaser.
The matter will be placed before Justice Ougo on 3 March 20014 for the determination as to whether stay will issue to stop the execution of the judgment.

FOUR JUDGES REMOVED FROM JUDICIARY ACCUSES LSK.

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By SAM ALFAN

Four judges who were sacked by the Judges and magistrate vetting board have unleashed scathing attack on the Law Society of Kenya of trying to delay the hearing of their judicial review applications lodged in the high court challenging their removal from judiciary.
The judges Justice   Jeanne Gachache, Riara Omolo Samwel Bosire and Joseph Nyamu have asked the Supreme Court to dismiss the application by the LSK and order the matter referred back to the high court for hearing.
They through their lawyers Stephen Mwenesi and Ocheing Oduor told Justice ( Dr) Smoklin Wanjala and  Njoki Ndungu, that  there is  no competent appeal that has been filed by LSK in which the supreme court is being asked to consolidate with the appeal filed by the office of the attorney general.
LSK had lost attempt to have  the judicial review applications filed by the judges dismissed on grounds that the high court lacked jurisdiction to  hear the applications  challenging the decision of the  Judges and magistrate vetting board, their application was also dismissed by  the court of appeal

The lawyers told the court, asked the two bench judges to make a finding as to who is the attorney representing since the vetting board has an advocate representing it.

 They further urged the court to also issue an order to investigate the board whose mandate has expired and it has continued to carry out the vetting contrary to provision of the law.

 The courts will its ruling on notice to parties.

IEBC OFFICIAL SAYS FAULTY EQUIPMENT WAS NEVER TESTED.

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By SAM ALFAN

The complex voter registration and identification equipment used during the March 4 General Election were never tested before use, a trial court heard today.

Director of ICT at the Independent Electoral and Boundaries Commission, Dismas Ong’ondi, said he blew the whistle on the probability of acquiring faulty equipment before it was tested. He had demanded to know when the kits would be tested and the scope of the investigation.

Mr Ong’ondi said the success of the project depended on the date by which Face Technologies which won the tender would deliver fully-configured devices to each polling station.

He said he received memo dated January 3 2012 from the Deputy Secretary in charge of support services saying that the joint technical team between IEBC and Face Technologies had proposed a factory test. He said that on January 7, last year the deputy secretary appointed two ICT officers Stephen Ngeno and Stephen Ikileng for the factory test that was to be conducted in China.

“I was never consulted about the appointment of the two and to the best of my knowledge the visit to China for factory test was never conducted.” Mr Ong’ondi said.

He was testifying in the case in which IEBC CEO James Oswago, deputy commission secretary, support services Wilson Kiprotich Shollei, director of finance and procurement Edward Kenga Karisa and procurement manager Willy Gachanga Kamanga are accused of failure to comply with procurement laws contrary to the Anti-Corruption and Economic Crimes Act 2003 and abuse of office. They have all denied the charges in which the commission allegedly lost over Sh1.3 billion.

Mr Ong’ondi told Senior Principal Magistrate Doreen Mulekyo that he warned the commission that it was carrying out too many critical activities that made the realization of the Electronic Voter Identification Devices (EVIDs) project risky.

He added that, after Face Technologies embarked on the project he raised alarm that the model by the company differed from what they were supposed to supply. He told the commission that the February 9, 2013 deadline proposed by the South-African based company was not enough for testing and configuration of the BVR kits.

“We also desired a device that could sustain network capability for future use,” he said. He recommended to the commission to terminate the tender before any contract was signed.

Mr Ong’ondi, the first prosecution witness, had earlier told court that IEBC conducted a pilot project on the use of that the kits that covered 18 out of 210 constituencies in 2010.

He said the commission held an open day in October 2011 in which prospective suppliers were invited. “This survey was to enable IEBC to identify available technology so as to find the most appropriate for the commission’s needs. We visited a number of election bodies across the world to try and learn the type of technology and experience they were using in their own elections,” he said.

He said after the tender was advertised prospective bidders purchased the document by the end of the deadline on May 10, 2012. However the deadline was extended at the request of the bidders to allow them sufficient time to submit their bids.

The IEBC continued to receive requests from bidders for clarification and additional information which, according to the witness, compelled the commission to cancel the tender notice on May 17, 2012.

When asked by State Counsel Mungai Warui whether there was any adjustment to the original tender he said the adjustments were meant to address some of the clarifications that bidders had sought.

He said the commission held a pre-bidding conference on June 14 2012 at Nairobi Safari Club and 15 IEBC officials attended. In addition he said 21 prospective bidders attended the conference and later Face Technologies won the tender for the supply of BVR kits.

He warned the commission risked running out of time if the bids were not evaluated on time.

 “These devices were not off-the-shelf commodities that could be obtained in large quantities on a short notice. The evaluation required a lot of time to examine the bid and qualifications,” He said.

 He said the successful bidder would take three to four months to supply the devices.

 

PS IRINGO IN TROUBLE FOR FAILURE TO HONOUR COURT ORDERS.

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By SAM ALFAN

The High Court has extended orders requiring the Inspector General of police to arrest Principal Secretary Ministry of interior and Co-ordination of National Government, Mr Mutea Iringo, and produce him in court to be cited for contempt.

Justice George Odunga said that no proper reasons have been given to the court for Iringo’s failure to explain his absence.

 The PS was supposed to have appeared in court on 11 February 2014 to show cause why action should not be taken against him for failing to honor the court judgment in which a Tanzanian national, James Alfred Koroso, was awarded Sh31 million as damages arising from malicious prosecution by the state.

Mr Kosoro was arrested in Taveta by police charged in Kiambu Chief Magistrate’s court with the offence of robbery with violence in 1993. He was, however, acquitted and later filed a civil suit in 1996 claiming damages and for malicious prosecution.

He was awarded Sh21 million compensation in 2008 by Justice Jackton Ojwang but has never received any payment.

The matter will be mentioned on 12 March when the court will decide what action to take.

SENATE BARRED FROM SUMMONING GOVERNORS OVER FINANCE QUERIES.

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Senior Counsel Ahmednassir Abdullahi and lawyers Issa Mansour and Peter Wanyama peruse documents before the High Court allowed their application to suspend the Senate’s decision to summon nine Governors to answer audit queries on county finances.

SAM ALFAN

High Court Judge Mumbi Ngugi has issued temporary injunction restraining the senate from summoning nine Governors to appear before it to answer questions on County Government Finance.

The NGO International Legal Consultancy Group moved to court challenging the decision by the senate to summon nine Governors to appear before it and produce various documents pertaining to the financial management within their counties.

Court also suspended the summons dated 8 February 2014 issued by the senate against nine Governors and County Executive Committee members to appear before it.

While delivering her ruling today the Judge said that the powers of the senate are limited

“The court appreciates that the senate has an important role to play in the implementation of the constitution ,particularly so with the regard to devolved government,However,just like all other organs, it is bound by the constitution, and it cannot arrogate to itself powers, it does not been given by the constitution”

She further added that it wasn’t right for the senate to be involved in matters of county Assembly Public Finance Management. Justice Ngugi also admonished the senators for inculcating a culture of breaking court orders.

The petitioner claims that summoning the county Governors and demanding that they produce certain documents, the senate is in breach of Article 226(2) which provides

“The accounting officer of a national public entity is accountable to the National Assembly for it financial Management, and the accounting officer of a County Assembly for its Financial Management”

The Judge also noted that the senate deemed it necessary to appear before the court to deal with the contentions made by the petitioners despite being served.

The matter was referred to the Chief Justice to constitute a bench of uneven number of Judges to hear and determined the suit.