Month: April 2014
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.
By SAM ALFAN
An Iranian was today ordered to pay Sh500,000 fine or spend one year in jail after he pleaded guilty of being in possession of a forged Israeli passport. Ashkan Douzande Madhi alias Dani was jailed on his admission of guilt by Acting Chief Magistrate Daniel Ochenja after he was arrested on Monday at Jomo Kenyatta International Airport as he planned to leave the country for Israel.
Immigration officer Justin Maranga informed court that Madhi was denied departure from JKIA to Tel Aviv after immigration officials suspected that he was traveling on a counterfeit Israeli passport.
According to the immigration officer the accused person presented the fake passport to immigration officers who became suspicious about its features and upon interrogation he was unable to explain how he managed to have the fake passport instead he produced an Iranian passport which was later confirmed to be genuine by Iranian embassy.
But Maranga, warned the court that Kenya had become a safe haven for perpetrators of transnational crimes including terrorism and drug trafficking.
“Though the accused is a first-time offender the offence of concealing identity has become rampant of late. It still remains unclear as to why the accused was hiding his identity,” Maranga said.
Maranga told the court that it was the duty of all agencies to be sensitive to the security of the country and desist from being used by criminals to advance their activities. He asked the court to take into consideration the numerous attacks the country has been subjected to in the past.
Through an interpreter the accused said he was remorseful and asked the court not to hand him harsh sentence being a first-time offender.
While passing the judgment, Ochenja said the court took into consideration the country’s national security and the spate of violence that has rocked the country. He directed the accused to be repatriated back to Iran upon payment of the fine or completion of his jail term.
By SAM ALFAN.
Three employees of a Nairobi-based company were today arraigned in a Nairobi court to answer charges of defrauding the company over Sh 218 Million. Wilson Ndungu Kamomoe, Mohamed Nasir Khalifa and Josphat Okeo Kegengo appeared before acting Chief Magistrate Daniel Ochenja
They are accused that on diverse dates between July 22 last year and February 8 at Pembe Flour Mills factory along Lunga Lunga road within Nairobi, jointly with others not before court fraudulently conspired to defraud the company Sh 218,665,038 by false pretences.
Court was also told that the accused on the said dates at Barclays Bank, Enterprise road branch jointly with others not before court stole Sh 218,665,038 the property of Pembe Flour Mills Limited. However the accused pleaded not guilty to the offence.
Attempts by the accused’s lawyer Cliff Ombeta to have his client released on lenient bond terms became futile after the magistrate slapped the accused with a bond of Sh 10 Million and one surety each or cash bail of Sh 7 Million failure to which the three are to remain in custody.
The magistrate also summoned the auditor of Pembe Flour Mills and the investigations officer to shed light on allegations that the second accused was forced to write an affidavit against his wishes. He directed the case to be mentioned on April 30 with hearing slated for July 2.
Meanwhile a man appeared before the same court accused of conspiring to defraud a forex bureau Sh 28 million. Ezekiel Osugo Angwenyi was charged that on some unknown date in 2011 within Nairobi county, jointly with others not before court conspired by deceit to defraud Hassan Abdi Gullet and Aden Mohammed of $ 300,000 by falsely pretending that he was in a position to offer cash deposit facilities in their Ukay Centre Forex Bureau.
He however pleaded not guilty to the charges and was directed by the magistrate to deposit bond of Sh 500,000 or cash bail of Sh 300,000. Hearing of the case is set for June 4 with a mention on April 3.
By SAM ALFAN.
The High court has declared that the Judicial Service commission is a constitutional body that is not subject to control of the national assembly or any other departmental of the government.
Five judge benches said that the attempt by the National Assembly through committee of justice and Legal Affairs to summon JSC six commissioners was unlawful and arbitrary.
The judges Justice Richard Mwongo, Mumbi Ngugi, Christine Meoli, Chermetei and Hellen Omondi, said the purported petition filed by Riungu Mugambi which sought to punish members of the JSC was an encroachment on the independence of the judiciary
The court ruled that tribunal appointed by the President to investigate members of the JSC was null and void because parliament deliberated on matters touching on the judiciary and forwarded the resolution to the head of state when there were orders from court stopping any discussion concerning the JSC.
The six members of the JSC to be investigated are Ahmednasir Abdullahi, Dr Samuel Kobia, Prof Christine Mango, Justice Mohamed Warsame, Ms Emily Ominde and Ms Florence Mwangangi.
“Neither can its Departmental Committees established under the Standing Orders in the lawful discharge of its Constitutional mandate under Article 172 of the Constitution do so,” Principal judge Richard Mwongo said while delivering the decision of the bench.
Parliament had declined to be party to the court proceedings that culminated in a finding that was a proper Petitioner that the Speaker of the National Assembly was properly enjoined in the proceedings.
And that in the circumstances of the case, the President can be bound by Court orders arising from proceedings to which he was not a party.
The bench of five led by Principal judge Richard Mwongo ruled that the high court has jurisdiction in relation to acts of other arms of government.
“Judicial intervention by the High Court is not a violation of the doctrine of separation of powers insofar as the Court is performing its solemn duty under Constitution in inquiring into alleged constitutional violations or contraventions,” Judge Mwongo said in their verdict.
The decision of court held that Parliament’s constitutional powers of oversight do not amount to a right to subjugate, micromanage, control or direct the JSC.
The judges declared that the National Assembly through the Departmental Committee on Justice and Legal Affairs is not entitled to supervise and sit on appeal on the decisions of the Judicial Service Commission when the Commission is discharging its lawful mandate under the Constitution.
“Oversight connotes the constitutional imperative aimed at the enhancement of democracy and the rule of law through upholding and protecting the financial and administrative independence of constitutional commissions,” said Mumbi reading the judgment.
High court also quashed the proceedings before the Committee on Justice and Legal Affairs seeking the removal of members of the Judicial Service Commission.
“The resolution of the National Assembly to transmit the Petition to the President in defiance of a Court order is null and void and is hereby quashed,” Judge Mwongo said.
The judges held a view that Parliament should consider the establishment of a committee within Parliament dedicated to the oversight of all the independent offices and commissions.
The appointment of the Justice (Rtd) Aaron Gitonga Ringera, Jennifer Shamalla, Ambrose Otieno Weda and Mutua Kilaka by the President as members of the Tribunal to investigate the six JSC Commissioners under Special Gazette Notice No. 15094 was declared quashed.
By SAM ALFAN
Nairobi businessman Mohan Galot who is in the centreof family feud got a temporary reprieve after a magistrate’s court directed his defence team to seek clarity from the high court on whether he should be charged with forgery or not.
Senior Principal Magistrate Joseph Karanja gave the orders after lawyer Kibe Mugai served the court orders issued by Justice Mumbi Ngugi on March 12 remain in place until the accused and claimant appear before the high court for further directions.
The magistrate said after going through the proceedings of the high court he realized there was need for the two parties to liase with the high court for clarity on the orders. He said the high court orders which barred the respondents in the case from arresting Mr. Galot until the matter is heard and determined remain in place.
Last week Mr Galot declined to take his plea after his defence team tabled in court a high court order stopping his prosecution in relation to ownership of company in dispute.
Through his lawyer Kibe Mungai the businessman informed the court that the summons to appear in court were against the high court directive which sought to stop the prosecution and police from taking any action against the businessman until the High Court matter is settled. Mungai told court that the high court order restrained the complainants from arresting or summoning Mr Galot in relation to the companies linked to the case.
He faulted the prosecution and police for issuing summons in total disregard of the high court order.