Month: April 2014
By SAM ALFAN
The Supreme Court has given Garissa County Governor temporary reprieve after it extended an order halting his removal from office in view of the judgment of the court of appeal which found him invalidly elected.
Justice Philip Tunoi and Njoki Ndundu said that pending their decision to be delivered on May 9, the execution of the appellate court’s judgment should remain in abeyance
. The embattled governor Nathif Jama Adam through his lawyer Ahmednasir told the court that the judgment of the court of appeal had loopholes which is incapable of being executed against him and same should be set aside
The court heard the appeal court exceeded its jurisdiction and addressed itself on issues which were not raised by two voters who challenged the election of the governor.
The lawyer submitted that the Supreme Court has power to direct what the appeal court ought to do when handling the election related matters
He asked the court to issue a conservatory order halting the judgment of the appellate court until the appeal before them is heard and determined.
Mr. Ahmednassir said that his client ought to remain in office discharge his duties until the highest court in land makes its decision on the appeal which has been triggered by the appeal court.
The court will endeavor to consider the submission by the lawyer representing the aggrieved governor.
By SAM ALFAN.
A wheat supplier and two senior staff members of a milling company were today charged with stealing over Sh 218 Million from the company out of which Sh 1.2 Million was recovered.
The three Wilson Ndungu Kamomoe, Mohamed Nasir Khalifa and Josphat Okeo Kegengo appeared before acting Chief Magistrate Daniel Ochenja where the second accused alleged that the company’s auditor and police tricked him to withdraw Sh 1, 27,000 from his account.
However the investigating officer Corporal Joseph Mucheru of CID headquarters informed the court that amount is being held by police as evidence. “Upon recovery the accused swore an affidavit before a commissioner of oaths that is why the amount was handed over to the police and it will be used as an exhibit onces trial begins,” Said Mucheru.
Kamomoe, Khalifa and Kegengo were accused that on diverse dates between July 22 last year and February 8 at Pembe Flour Mills factory along Lunga Lunga Road within Nairobi County jointly with others not before court fraudulently conspired to defraud the company Sh 218,665,038 by false pretences.
They also faced a second count of stealing contrary to section 268(1) as read with section 275 of the penal code where it was alleged that on the said dates at Barclays Bank Enterprise road branch jointly with others not before court they stole Sh 218,665,038 the property of Pembe Flour Mills Limited.
However the accused denied all the charges leveled against them and were directed by the magistrate to deposit cash bail of Sh 7 million or bond of Sh 10 million to secure their freedom. He directed the case to be heard on July 2.
Meanwhile a bank teller has been charged with stealing Sh 11 million from Imperial Bank. Noah Randy Omullo appeared before Resident Magistrate P.M Mugure accused that on or before December 10 last year at unknown place jointly with others not before court they conspired to steal Sh 11, 500,00 property of Imperial Bank. Omullo was further accused that on the said date at the bank’s Upperhill branch being an employee of Imperial Bank as a teller he stole Sh 11,500,000 which came into his possession by virtue of his employment.
He however denied the charges and was ordered by the magistrate to deposit cash bail of Sh 2 million. The case will be mentioned on June 5.
Trade workers union boss Francis Atwoli during the last year labour day in Nairobi.
By SAM ALFAN
The high court has issued orders restraining Federation of public service trade unions of Kenya pusetu from interfering with Labor Day celebrations organized by its rival Central organization of trade union.
Industrial court judge Monica Mbaru issued the restrain orders yesterday after COTU said PUSETU has threatened to interfere with the lab our day celebrations which may cause violence .
The orders issued further blocks Pusetu from causing any breach of peace on Thursday May 1
Justice Mbaru certified the matter as urgent and directed Cotu to serve Pusetu with the restraining orders and other court documents. The case will be heard on May
In its documents, Cotu says it has taken over 1 year to prepare for the may 1 celebration. And the same not be disrupted by constitutional body or group.
COTU’s lawyer Judith Guserwa told the court that all workers have prepared to take part in the celebration without interference from any quarters.
Telkom Kenya limited
By SAM ALFAN
The Industrial court has issued further orders restraining Telkom Kenya limited from selling its assets that are spread all over the country until an award of Sh 3.2 billion is paid to former employees as ordered by the high court.
The former workers sought an injunction to stop Telkom Kenya limited from transferring its properties to a third party while their claim has not been paid.
The employees through their lawyer Antony Oluoch told Justice Monica Mbaru, that whereas there injunctive orders against former state corporation its imperative the same be extended to the current applicant
The court of appeal has upheld the judgment of the high court to the effect the former employer should pay them has ordered by the superior court
Three court appeal judges Justice Roseline Nambuye. Daniel Musinga and William Ouko have said in their judgment that Telkom Kenya limited did not give sufficient reason to warranty the appeal to allow the matter referred to the supreme court for interpretation
They said and held the appeal in which former state corporation was ordered to pay the retrenched workers Sh 3.2 billion.
” the amount they are claiming is colossal sum which does qualify the matter. to considered as one of great public importance in which the supreme court will not asked to give advisory opinion” they said
The former employees were retrenched in 206 because the company was carrying out restructuring and staff rationalization program me which was carried out in two phases
The company offered different packages for the two categories of workers and paid them differently
They were aggrieved with decision of the company and moved to court, the high court directed the company them severance sum and a Golden Handshake.
Communication Commission of Kenya (CCK)
By SAM ALFAN
The high court has declined a bid by the Communication Commission of Kenya (CCK) to strike out an application by Media Owners Association over issuance of licenses.
Justice Isaac Lenaola said he could not dismiss the application by MOA because it raises important issues that need to be determined by the court.
CCK had asked the judge to reject a petition filed by MOA and Magic Radio Limited arguing that the issues before court had been dealt with in another court.
But justice Lenaola directed the matter to go for full hearing saying it would be unfair and unjust to shut out parties from submitting on serious issues on grounds that they had been determined by another court.
MOA moved to court after CCK invited broadcasters to apply for licences under the newly formed Regulatory framework.
CCK gave broadcasters a deadline of November 15 2011 to confirm compliance.
MOA contention is that CCK is not the body envisaged under article 34 of section 5 of the constitution because it lacks independence.
The association says the body’s board of Directors as established under the Kenya Communication Act of 1998 lacks autonomy as it consists appointees of the President and the Minister in charge of communication.
The appointees include Principal Secretaries in the ministries responsible of communication, Finance, internal security as well as information and broadcasting.
MOA says the panel can not be fair and want the court to declare that its right under article 34 of the constitution have been infringed and threatened with violation.
By SAM ALFAN.
The court has ordered three terror suspects in the Pangani attack to remain in police custody for ten days to allow police complete investigations to the incident.
Senior Principal Magistrate Edda Agade allowed the application by Corporal Cyrus Ikade on grounds that police are still investigating the incidents that claimed the life of two police officers during the explosion.
The court said that the matter is sensitive and attaches on state security and police should be given more to complete investigation.
In an affidavit sworn by the officer, says that the accused Ahmed Dugal Ali, Abdiaziz Bulle Ali and Mohamed Abdullahi Falir are be believed to be members of Al-Shabbab group.
He says that the first accused Dugal Ali is the owner of the motor vehicle which was used during the Pangani police station explosion in which to two terror suspects also died.
The officer further deposed that the second and third accused persons Bulle Ali and Abdullahi Falir are close associates of the terrorists who died during the attack, saying that police are still pursuing their accomplice.
The suspects are dangerous to the security of the state and the public in general, the officer says in his affidavit.
The presiding Magistrate ordered the suspects be remanded at Muthaiga police for a period of ten days and they be produced in court on May 12.
By SAM ALFAN.
President Uhuru Kenyatta has disowned a case filed by embattled journalist Walter Barasa on withdrawal of charges against him and his deputy at the International Criminal Court.
The President, through lawyer Kennedy Ogeto says he was improperly enjoined and listed in the suit, as he was not consulted and wants to be distanced with the case.
Barasa, who is fighting extradition to the ICC, moved to court last December seeking orders to quash Uhuru ,Ruto, and journalist Joshua Arap Sang’s trial on grounds that they are constitutionally invalid, null and void.
Uhuru however, says in his grounds of opposition against the case that he has been improperly enjoined in the suit and faults the Eldoret based scribe for failing to consult him before dragging his name to court.
He says Barasa’s petition should proceed and the court makes its informed decision without his participation.
“The first interested party has been improperly enjoined in this petition and his name should be struck out” read parts of the document filed by lawyer Kennedy Ogeto on behalf of the president.
Ruto, has also distanced himself from Barasa’s case.
He too says that he does not want to be involved in any way because he is ready to face his accusers at The Hague.
The deputy president told court last month that he has decided out of his own volition to attend and participate in the ICC trials to establish his innocence.
Barasa argues through lawyer Kibe Mungai, in the case being handled by a three-judge of Isaac Lenaola, Mumbi Ngugi and George Odunga that the Rome Statute was not in force in Kenya when the post-election violence occurred between December 3, 2007 and February 28, 2008.
Kibe says the crimes against humanity preferred against the three Kenyans on account of Article 5 of the Rome Statute were not recognized under Kenyan law or under Section 77 (8) of the defunct constitution during the bloody mayhem that left over 1000 people dead.
Machakos Senator, Johnston Muthama and his lawyer John Khaminwa leaving Milimani Law Court after the hearing of a case where he has sued Machakos County government over supply of water to Kitui county.
BY SAM ALFAN.
The dispute over the ambitious Sh2.5billion water project pitting residents of two counties in Lower Eastern failed to kick off today after the warring parties disagreed on the mode of resolving the matter.
Machakos Senator Johnston Muthama has already pronounced he is willing for arbitration to thrash out the contentious issues raised by the residents of Machakos and Kitui residents. Thecase was initially filed by Muthama as a civil case.
The dispute took a twist when the matter was mentioned before the Deputy Registrar of the High Court. .W. Nyambu, and the parties failed to mutually agree on whether to frame the contentious issues for determination.
Nyambu was compelled to pull out of the case and directed that the file be placed before High Courtt Judge George Odunga to give further directions. Subsequently, Justice Odunga told the parties to appear before the presiding Judge of the Judicial Review division, Justice Weldon Korir on May 2 for further directions..
However, the court was told that the contract is 75 percent complete and the people of machakos are complaining over the supply of water to their county.
The senator moved to court to oppose a sh 2.5 billion water project to Kitui county.
Mr. Muthama sued the board and enjoined the Kitui County government as respondents, accusing them of pumping water from the Masinga Dam to Kitui while “denying” Machakos residents the benefit yet they should have been the immediate beneficiaries.
“We do not seem to be making any progress…we need an urgent decision; a binding order or a ruling by a judge as the project has now stalled and expenses are accumulating, the people of Machakos are still suffering from perennial water shortages,” said lawyer John Khaminwa.
According to him, Mr. Muthama’s interest in the matter is from a leader’s point of view and if the matter is not sorted out quickly some individuals may take the law into their own hands.
Dr Khaminwa said the situation amounts to unjust enrichment, unfair treatment and lack of equity.
A lawyer representing the board said the claims that the residents of Machakos are being denied water were untrue as it will come out during the proceedings.
Judge Odunga directed the matter be placed before Korir on May 2 for further orders and direction.
Justice George Kimondo. Mumbi Ngugi left and George Odunga right who has been appointed by Chief Justice Dr Willy Mutunga to hear application by Olive communication over laptop tender.
By SAM ALFAN.
Chief Justice Dr Willy Mutunga has appointed a three-judge bench to hear an application by Olive Communication PVT.
Olive Communication PVT moved to court seeking judicial review of the decision to cancel the award of the laptop tender and its subsequent exclusion from a new bidding process.
The three judge bench will consist presiding judge, Justice Kanyi Kimondo, Justice Mumbi Ngugi and George Odunga.
.The high court issued order stopping the award of the multi billion lucrative tender for the supply of Laptops, pending the hearing of application filed by Olive Telecommunication PVT limited challenging the decision of the review board to annul the award.
Justice Weldon Korir on 19 of March halted the move by the Public Procurement, administrative review board, saying that the application has substantive issues which the court is being asked to make a finding.
He said the application under certificate brought by city lawyer Mohamed Nyaoga, Guto Mogere and Mohamednasir is extremely urgent ought to be heard during the vacation and the same be disposed off.
The judge pointed out that the application and co-companies are international organization whose confidence must be bestowed to encourage other foreign investors.
A section of MP’s hvowed to table a censure motion in Parliament against the Education Cabinet Secretary, Jacob Kaimenyi over the ‘botched’ laptop project.
Education Cabinet Secretary Jacob Kaimenyi said he will not resign over the school laptops tender row.
On March 11, 2014, the Public Procurement Administrative Review Board cancelled award of the tender to olive Ltd and ordered a new tendering process with express directions that Olive should not participate in it.
The CJ’s order constituting the bench is dated April 1, 2014.
By SAM ALFAN
THE high court yesterday suspended a decision by the Garissa County Government sacking members of the county’s public service board.
Justice David Majanja has also transferred the case to the Industrial court .
The members moved to court seeking orders to quash the decision of County Assembly removing them from office, arguing that it is unlawful.
The board, through its Chairman Harun Yusuf argued that the action of the county was in bad faith.
Lawyer Stephen Mogaka, representing the members argues that the county has acted in contravention of the constitution and the court should intervene.
” The County Government Act establishes the county public service board under section 57 as body corporate with power to work in the county” argued Mogaka.
He said that the removal of the members by the assembly was done in excess of its mandate and therefore unlawful and unconstitutional.
The court heard that the members were removed from office without being accorded an opportunity to defend themselves, which is contrary to the provisions of Article 50 of the constitution.