Month: May 2014

MUNYA SECURES HIS POST.

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Senior counsel Okongo Omogeni, Prof Tom Ojienda and Meru governor Peter Munya at consulting inside a court room at Supreme Court.

BY SAM ALFAN.

THE Supreme Court has handed back Meru County Governor Peter Munya his seat.
The highest court in the land set aside the judgment of Court of Appeal sitting in Nyeri which nullified the election of Munya as governor of Meru County.
In a judgment presided over by the President of Supreme Court Justice Dr. Willy Mutunga found that the Court of Appeal erred in law in dismissing the decision of the superior court which upheld the election of Munya.
The judges justice Kalpana Rawal, Philip Tunoi, Jackton Ojwang, Ibrahim Mohamed, Smokin Wanjala and Njoki Ndung’u jointly said the appeal court did not address itself on the issue raised by Dickson Mwendwa as was argued at the high court during the election petition.
The court found and held that the appellate court dwelt on issues of technicalities rather than addressing itself to matter of law so as to give a determination to the appeal that was before them.
The judges concurred with submission of Lawyer Okongo Omogeni that indeed the Court of Appeal erred by addressing themselves on issues of facts as opposed to the law.
“The Court of Appeal ought not to have ventured into issues of scrutiny, recount and irregularities as the same was the mandate of the trial court which heard the petition,” read the judgment.
The judges said Mwendwa ought to have proved that there were irregularities, bribery and corruption that occurred during the March 4 elections so as to give the court opportunity to determine the petition as per the law established.
They noted that the allegation of scrutiny was not supported by any evidence or proof by way of affidavit and it was incumbent upon the trial judge to determine whether to admit the application or decline.
“The admission of the application of scrutiny of votes is not automatic, it is discretion of the trial judge,” the court held.
The judges further found that the appellate court in dismissing the election of Munya looked at the difference of vote casted as being minimal but did not give reasons if the recount would be conducted in seven polling stations would have change the gubernatorial outcome.
The court also found that it was upon the petitioner in the high court to have brought evidence to show that the excess vote casted in certain polling station than the number of registered voters.
In the consequence, the Supreme Court found that Munya was validly elected and quashed the judgment of the Court of Appeal and upheld the decision of election petition court.

OLE NTIMAMA SUES NAROK COUNTY GOVERNMENT OVER LUCRATIVE TENDER AWARD.

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Former cabinet minister William Ole Ntimama in a courtroom in milimani law court Nairobi.(file photo).

BY SAM ALFAN.

 

Former cabinet minister William Ole Ntimama has taken to court Narok County Governor over the award of lucrative tender for the collection of revenue without involvement of public participation.
Mr Ntimma and two residents from the county filed the application under certificate of urgency seeking an order to halt KAPS Kenya limited from implementing the private partnership with county government.
He says that county assembly was not consulted or approved the tender award so as to ensure that procurement procedures were followed as required by law.
The applicants through their lawyer Omwanza Ombati told Justice David Majanja that there was violation of the procurement requirement and as result 300 County staff have been sacked and other 250 stand the risk of losing their jobs
”The are staff who were employed by the previous county council to collect revenue on its behalf and now been sacked due to new partnership with KAPS and the County Government” he said
The lawyer told the court that the applicants have made attempts to been supplied with tender documents and other information concerning the award but none has been availed.
He submitted that the court should exercise its discretion and issue order compelling the governor to supply the document and information as required by law.
The documents and information requested is a signal of fair administration action of good governance, transparent and accountability as provided in the statue under articles 10, 21 and 47 of the constitution of 2010
He said if the documents are not released to the applicant forthwith their rights to access to information will be infringed.
Mr Omwanza said that initially the private company was awarded the tender to collect revenue on behalf of the county government in Maasai Mara National reserve, but same has extended to cover Entire County without participation of the county assembly.
The applicants the court heard have sought an order to stop the private company from collecting revenue regular parking motor vehicles, clamping of motor within the county, further it be halted from management of revenue collection in the Mara Triangle and Maasai Mara National Reserve, until the court makes a determination of the petition.
The court directed the application be served upon the county government and the matter be heard on 4 June 2014 inter parties.

 

CITY COUNTY BLOCKED FROM DEMOLISHING PRESBYTERIAN CHURCH IN KAREN.

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Nairobi Senator Mike Sonko with former Kamukunji Mp Simon Mbugua leaving the Milimani Law Courts on Thursday May 29, 2014 after he obtained a court order restraining the Nairobi County government from demolishing houses belonging to the Presbyterian foundation.

BY SAM ALFAN.

Nairobi senator Mike Sonko has obtained orders restraining county government from demolishing the premises of Houses belonging to Presbyterian foundation located at Karen area Nairobi.
Justice George Odunga said pending the hearing and determination of the suit before the court the county government should not interfere with premises which are the subject of the court matter.
The judge said the Church organization moved to court after the county government descended to the property and started demolishing the Houses; it took the intervention of Nairobi city county senator Mike Sonko to have the exercise halted.
Justice Odunga allowed Church to file judicial review proceedings seeking orders to quash the decision of the council to interfere with suit land.
He further directed that the applicant to bring proceedings to compel the city county government desist from harassing the owners of the houses until the matter before court is heard and a decision made by the court.
The court directed that the substantive motion be filed within fourteen days and parties appears in court on 12 June 2014 for further directions
Nairobi City county council demolishes Karen P.C.E.A church AGAIN! Weeks after a previous demolition of the same structures. Nairobi Senator Mike ‘Sonko’ raised dust after the previous demolition. .
A section of the leaders including Nairobi Senator Mike Sonko and Dagoretti South MP David Waweru are now claiming that the disputed land has been grabbed and illegally sold at ksh.300 million.
The church, located in the heart of Karen had its structures demolished allegedly by the Nairobi County Government on Wednesday
According to Rev. Paul Kariuki, County Government askari’s stormed the church Wednesday at 1pm and demolished structures estimated to cost Ksh 5M
Sonko and Waweru who visited the demolished churches condemned the demolitions saying the disputed land was being eyed by some individuals.
The disputed land is about one acre and is located in the leafy suburbs of Nairobi.
Sonko and Waweru have now vowed to take legal action against those behind the demolition.
Church officials insist that PCEA has owned the Karen land for the past 12 years and that it has valid documents to prove its ownership.

 

JSC BLOCKED FROM RETIRING TWO JUDGES PREMATURELY.

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Lawyer, Fred Ngatia for Justices Philip Tunoi of the Supreme Court and David Onyancha of high court during one of the court session(FILE PHOTO).

BY SAM ALFAN.

High Court has issued temporarily orders restraining the Judicial Service Commission from forcefully retiring two Judges until the matter is heard and determined.
Justice George Odunga restrained JSC from sending Justices Philip Tunoi of the Supreme Court and David Onyancha of high court home.
The two moved to Court yesterday through their lawyer Fred Ngatia seeking to nullify a Judicial Service Commission circular that set their retirement age at 70.

They accused the JSC of issuing a directive those conflicts with the constitutionally-set retirement age of 74 for judges.
Justice Odunga said that the move by the JSC is Unconstitutional and raises serious Issues which require further Investigation by the Court.
Their lawyer, Fred Ngatia, told the court that there are two conflicting constitutional requirements on the retirement age of judges.
On May 24, 2011, the JSC informed judges that the retirement age was 74.
However, in another circular dated May 27 the commission stated that the retirement age of all judges are 70.
“The letter dated April 28 from the judiciary was delivered to me by a subordinate member of the judiciary that I should retire on June 3,” says Tunoi in his affidavit.
In his submission yesterday, Ngatia said the two circulars are contradictory and impossible to reconcile.
“It is due to such conflicting decisions that it is now necessary for this court to adjudicate which decision is in accord with the law,” said lawyer, Fred Ngatia.
Ngatia said since the two judges were hired under the old constitution, which gave the retirement age as 74, they should be allowed to continue serving as agreed by the JSC in 2011.
The two are seeking several orders among them a declaration that the date of retirement is when they attain the age of 74.
They also want the court to declare that the age of the judges who were in service as at the promulgation of the 2010 constitution is 74.
The matter will be heard on June.

 

TWO JUDGES INSIST THEY RETIRE AT AGE OF 74.

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Lawyer Fred Ngatia for Justice Philip Tunoi and David Onyancha who has received letters of retirement notices asking them to vacate office on their 70th birthday.

 

BY SAM ALFAN

 

TWO senior judges have moved to court challenging their retirement age as it has been directed by the Judicial Service Commission.
Supreme court Judge Philip Tunoi and David Onyancha of high court has sued JSC and judiciary and want the court to issue orders restraining respondent from forcing them to retire at the early age instead of retiring at the age of 74 years per the constitution.

High Court judge George Odunga is expected to decide whether to allow them to continue serving pending the determination of the case.
Their lawyer, Fred Ngatia, urged the court to issue a conservatory order prohibiting the JSC or the judiciary from retiring Tunoi and Onyancha during their term in office.
Ngatia said there are two conflicting constitutional requirements on the retirement age of judges.

The two are protesting the letters they were served with by JSC asking them to vacate office on their 70th birthday.

They are arguing that, the retirement age of the judges who were in service as at the promulgation of the 2010 constitution is the age of 74 years.

Judicial Service Commission served judges Philip Tunoi, John Mwera and David Onyancha with retirement notices asking them to vacate office on their 70th birthday.

However reports say that some judges have been asked to retire at 74, which is being considered as double standards by the JSC.

70 is the retirement age of judges under the new constitution, but the old constitution allowed judges to serve until their 74th birthday.

The 38 judges who are facing early retirement want the JSC to allow them to continue serving until they reach 74 as agreed in 2011.

They have been ordered to retire in a controversial decision that has sparked protests against the Judicial Service Commission (JSC).

Already, three senior judges have received letters informing them that they are to retire after reaching the age of 70, as required by the new Constitution.

However, some of them argue that since they were hired under the old Constitution, which gave the retirement age as 74, they should be allowed to continue serving as agreed by the JSC in 2011. They say officials have ignored JSC’s own recommendations and are now humiliating them.
They have cited what they say is obvious double standards on the matter. At least one judge has protested at the manner in which the JSC is handling the matter, saying a junior worker asked him to provide a copy of his national identity card and other sensitive personal documents.

“I feel I have been mistreated, especially when the letter demanding retirement is brought by a junior member of the subordinate staff who also demanded a copy of my identity card, medical card and a copy of past pay slips among other documents.” Justice Tunoi told one of the local newspapers.

Justices Tunoi and Onyancha have now fulfilled their threatened to sue JSC, chaired by Chief Justice Willy Mutunga.

Their lawyers, Ngatia & Associates, say in a letter dated May 14 that the retirement notices are “predicated upon a fundamental error of law.”

They demanded a response within three days. “In the event that we do not hear from you within the stipulated period, we shall regrettably be constrained to institute court proceedings,” they said.

Justice George Odunga Directed the to appear before tomorrow at 2:30.

 

ACTIVIST LOSES BID TO STOP KENYA-CHINA RAIL WAY.

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Human right activist Okiya Omtatah adressing press confrence in Nairobi.

 

By SAM ALFAN.

 

High Court has dismissed an application by two activists seeking to stop execution of an agreement between Kenya and China for the construction of a railway.
Justice David Majanja also disqualified himself from hearing the matter and directed the matter to be mention on before principal judge of high court for further direction and orders.

He said the notice of motion was dated May 13, 2014 was abuse of court process and it must be struck out.
“In view of the position I have taken in this matter, I decline to deliver the ruling in respect of the applications to strike out the petition and I hereby set aside all the proceedings made in respect of the pending Notices of Motion and the 1st respondent’s preliminary objection. “ Said the ruling.
The two moved to court to block the construction of 1.3 trillion of standard gauge railway
Omtatah and Nyakina also wanted the Attorney-General be directed to produce a copy of the multibillion financial agreement of the Standard Gauge Railway signed between the Government of Kenya and Exports and Import (EXIM) Bank of China.y project that was endorsed by president Uhuru Kenya
They argued that, the agreement between the government and Exim Bank of China to finance the Mombasa-Malava the Standard Gauge Railway project should be stopped by court until questions raised about it are fully addressed.
Mr Okiya Omtatah and Mr Wycliffe Gisebe claimed that, the government is acting in bad faith by going ahead to sign the contract, despite the concerns that have been raised, including court cases challenging construction of the railway.
Activists also wanted an order compelling Attorney-General Githu Muigai to produce a copy of the financial agreement signed between Kenya and China for public scrutiny before the project is allowed to proceed.
The two accused the AG, the Kenya Railways Corporation and the Public Procurement Oversight Authority of being in contempt of court by allowing the signing of the contract while aware of the existence of court cases in which they are parties.
“In the premise, the said financial agreement between Kenya and the Exim Bank of China undermines the rule of law and should be stopped for violating the Constitution and the principles of good governance,” Mr Omtatah says.
Kenyans are bound to suffer if details of the contract are not made public and the government goes ahead with the construction of the railway connecting Kenya, South Sudan, Uganda and Rwanda.
Chinese Prime Minister Li Keqiang last week led a delegation to Kenya for the signing of the agreement, which has faced several hurdles since its inception.
It was among several projects the government signed with the Chinese premier on President Kenyatta’s first visit to China.

 

SUPREME COURT ORDERS BY ELECTION IN MATHARE.

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Nairobi women representative Rachael shebesh with Embattled mathare member of parliament George Wanjohi leaving supreme court on Friday supreme court judges ordered by election in mathare.

By SAM ALFAN

Supreme Court orders for a by election in Mathare after it nullifies the Election of George Wanjohi saying that the Certificate that was issued to him was in clear disregard of Election Act.
He had moved to the to challenge a ruling by the Court of Appeal which nullified his election.
He was declared winner by IEBC soon after ODM’S Stephen Kariuki had been declared Member of Parliament for Mathare IEBC gave to certificates for Mathare MP Seat and later revoked certificate it
gave to Kariuki.
Supreme Court judges criticized the IEBC for undermining democracy and ordered it to compensate Mr. Stephen Kariuki who had initially been declared the winner in the March 4 polls before an election official recalled his certificate and issued it instead to his opponent.
Six judges led by the deputy president of the Supreme Court Lady Justice Kalpana Rawal upheld the ruling of the Court of Appeal that had declared Mr Wanjohi’s win invalid.
The judges said IEBC committed a mistake by recalling and cancelling Mr Kariuki’s certificate. They added that IEBC’s mandate ceased with the announcement of the results and the handing over of the certificate and in case a dispute arose it should have been ironed out in court.
“The recall of the certificate which was issued with accompanying publicity and in the glare of voters only served to undermine the legitimacy of the electoral process in the eyes of the voters and was contrary to the law,” Justice Jackton Ojwang’ said.
They said it was difficult to know who won and annulled both certificates that were issued to the two politicians.
The judges said they would not uphold Mr Wanjohi’s win as “the court should not be seen as to substitute MPs without giving the electorate a chance to decide who they want to be their leader to be…to do so would undermine democracy and the constitution.”
“There was a clear violation of the law akin to repressive action when a returning officer who had no power to recall the certificate issued to Mr Kariuki cancelled it on grounds that it had been issued in error.”Justice Njoki Ndung’u said
The judge said it was expected that the IEBC would conduct polls with accuracy and fairness and not arrogate itself roles that it did not have.
She said it would have been prudent that the commission conducted a recount in the presence of the electorate before issuing a new certificate.
The judges said the returning officer had no mandate to recall the certificate as he became irrelevant the moment the results were announced.
A by election had is set for June 3 if there will be no changes for extension of election date by electoral body. Lawyer Nelson Havi said his client has been lady for a by election.