Month: July 2014

KALUMA: DISQUALIFICATION BY MAGISTRATE REJECTED.

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Homa Bay MP Peter Kaluma at Milimani Law court during the mention of his alleged land fraud case facing him on Wednesday 30/07/2014.

BY SAM ALFAN.

Milimani Chief Magistrate Hannah Ndung’u on Thursday declined to excuse herself from hearing the alleged land fraud case facing Homa Bay MP Peter Kaluma.This is after his defence Wednesday accused the magistrate of bias.
In her ruling, Chief Magistrate said there were no compelling reasons given by the defence in their application seeking her excusal from the matter apart to the alleged bias by the defence.
“Despite of my court taking the plea it doesn’t mean I will be the trial court”. Said the Magistrate in her ruling.
Kaluma on Wednesday asked Mrs Ndung’u to throw away the charges leveled against him saying the charges were defective.
The Homa Bay MP had appeared in court in the morning but declined to plead to nine counts of fraud in which he is accused of defrauding Deborah Achieng and Rene Johny Dierkx over a parcel of land situated in Karen, Nairobi.
State counsel Eddie Kadebe asked Kaluma to take his plea but he declined and through his lawyer he asked the court to make a determination since the prosecution had not tabled in court the High Court order issued by Justice Weldon Korir directing Kaluma to plead to the charges.
There was a heated exchange and altercation on Wednesday between the magistrate and Ndubi and at one time he asked the magistrate to record his submissions so that his protest can go on record.
Mrs Ndungu directed Kaluma to appear in court Wednesday in the afternoon to know whether he could plead to the charges or not.
In her ruling the magistrate directed Kaluma to plead to the nine counts of fraud charges but he declined.
Defence lawyer Harun Ndubi urged the magistrate to disqualify herself from the case accusing her of bias and ‘holding brief’ for the prosecution.
“It appears to the defence that the magistrate is clearly biased against the suspect despite our preliminary objection on the inadmissibility of the charges leveled against my client. The court cannot therefore proceed to give directions that seem to determine the outcome of this case.” Ndubi.

The lawyer further said that, “When the court demands that the suspect should take plea yet the defence has stated that the charge sheet has failed to have particular details then the court has failed to allow a fair trial and I ask the magistrate to disqualify herself from this matter,”
Ndubi said it was prejudicial for the magistrate to state that the MP had used his status to delay the case. Ndubi accused the prosecution of not supplying the defence with all the evidence that it seeks to rely on during trial. He said it was prejudicial for the chief magistrate to state that Kaluma has used his status to delay the case.
However the state counsel said the accused was at liberty to contest the effectiveness of the charges at any time once the accused takes his plea saying the ruling by the magistrate that the accused pleads to the charges was in good faith.
“It is still the prosecution’s position that the charges presented in court are correct and the averments by the defence lawyer are not properly before this court”. Said Ndubi.
The magistrate directed to appear in court on Monday for further directions.

IEBC ORDERED TO INCLUDE FORMER MP NAME IN MATHARE BY-ELECTION.

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Former Kasarani MP William Omondi with his supporters outside Milimani Law Court building after court ordered IEBC to include his name on the ballot for next week’s Mathare by-election.

BY SAM ALFAN.

High Court has ordered the Independent Electoral and Boundaries Commission to include the name of former Kasarani MP William Omondi on the ballot for next week’s Mathare by-election.
Justice Isaac Lenaola ruled that the IEBC had no grounds to lock out the former legislator from contesting the by-election scheduled for August 7.
The judge set aside IEBC’s decision to bar Omondi from vying on grounds that he is a life member of ODM.
ODM had complained that Omondi was a staunch member and when he made the application to vie as an independent candidate he had not resigned from the party.
The Independent Electoral and Boundaries Commission (IEBC) has faulted High Court ruling to include the name of former Kasarani MP William Omondi in the ballot for next week’s Mathare by-election.
IEBC said Justice Isaac Lenaola’s order is a testimony that the judiciary is unrealistic in some of its decisions.
IEBC Commissioner Thomas Letangule said the electoral body has clear timelines which must be observed adding that the orders will plunge the by-election into a serious crisis.
“The High Court is not realistic since as a commission, we have timelines which are set out by the law. One is left to wonder, does the high court know what is happening on the ground. This is an election and you cannot just issue orders that cause major setbacks on the timelines,” said Letang’ule .
The IEBC chief has said that the commission will hold a crisis meeting Thursday morning to agree in the way forward which may include either complying or appealing.
The former lawmaker is vying in the poll as an independent candidate.
The Mathare by-election scheduled for August 7

SONKO “IMPOSTER” CHARGED IN COURT.

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Joseph Gitau Njoki at Milimani Law Court where he was charged for impersonating Nairobi Senator Mike Mbovi Sonko on facebook page dubbed the Mike Sonko Foundation page on 30/07/2014.

BY SAM ALFAN.

Joseph Gitau Njoki was on Wednesday charged before a Nairobi Magistrate’s Court for impersonating Nairobi Senator Mike Mbuvi Sonko on facebook page dubbed the Mike Sonko Foundation page on 29th April 2013.
Njoki appeared before Senior Principal Magistrate Elena Nderitu where he was accused that on 11 July 2014 he posted a false message
, “This morning I have issued cheques worth Sh6.2 million to Kenyans who sent to me Sh1000 on my M-pesa line 0713004255. Keep on sending as I will continue giving out millions in support, to all my fans comment wisely to avoid to be banned on this page.”
Joseph Gitau Njoki on Wednesday denied three counts of fraud before a Nairobi Magistrate court.
The accused has been denied cash bail on the grounds that he absconded another case facing him and fled to South Africa in a separate criminal case pending at the Milimani Law Courts.
Court heard that on April 29, 2013, at an unknown place, with an intent to defraud, he falsely represented himself as Mike Sonko on a Facebook page he called “Mike Sonko Foundation.”
He was charged with improper use of a licensed telecommunication system, contrary to the Kenya Information and Telecommunications Act.
Njoki faced a further charge of obtaining money by false pretences.
The court heard that on April 11 while in Mombasa, jointly with others not before the court, he obtained Sh200, 000 from Gideon Macharia Maina by pretending he was capable of assisting him to buy a new Nissan matatu.
Although the suspect claimed he had TB and had not been taking drugs for the past seven days since his arrest, the prosecution asked the court not to release him as “his other file was still open when he was arrested in a new offence.”
The case will be Mentioned on august 4th and heard on August 26.

BLOGGER GRANTED SH 500,000 CASH BILL.

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Blogger Seth Odongo also known as Dikembe Disembe at Milimani Law Court on Monday 28/07/2014.

BY SAM ALFAN.

Nairobi Chief Magistrate’s court on Monday reversed the cash bail of the city based blogger Seth Odongo also known as Dikembe Disembe from Sh2.5 million to Sh500, 000.
This is after the application by Lawyer James Orengo managed to convince Principal Magistrate Helen Ndung’u to reverse the Friday court directive against the blogger.
Principal Magistrate Helen Ndung’u also reversed the bond terms which Odongo was ordered to execute by Chief Magistrate Elena Nderitu on Friday last week to secure his freedom as his trial goes on.
The Nairobi based blogger was directed to execute personal cash bill of Sh2 million to and a bond of 5million after he pleaded not guilty to charges of posting hate remarks on his Facebook page in relation to the Mpeketoni attacks in Lamu county that left over 100 people.
Lawyer James Orengo who was representing Odongo said that the initial cash bail and bond set were too high and prohibitive to civil liberties.
“Odongo is not a flight risk because he is still a student with Kenyatta University and therefore will not try to escape”. Said Orengo
Orengo pointed out that Odongo was not arrested but presented him for questioning and he’s a University student who can’t raise such amount.
Odongo was charged on Friday before the Nairobi Chief Magistrate Ellena Nderitu with intent to stir ethnic animosity between communities in Lamu.
The case will be mention on August 8 in advance of the trial that was listed for September 4.

INDUSTRIAL COURT EXTENDED ORDERS SUSPENDING KAMBI GAZETTE NOTICE.

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Activist Charles Omanga (centre)with his lawyer and Cotu boss Francis Atwoli lawyer Judy Kwishero leaving Milimani Law Court.

By SAM ALFAN,
Industrial court has extended its orders on the labour Cabinet Secretary Kazungu Kambi and COTU Secretary General Francis Atwoli dispute to August 5.
August 5 will be used to determine if the court has the jurisdiction to hear the case.The labour CS through his lawyer Ahmednasir Abdullahi want the court to struck out the application filed by Cotu boss Francis Atwoli seeking the court to quash the CS gazette notice retiring him from the NSSF board of trustees.
“We want to terminate this case and not to scuttle it”. Said lawyer Ahmednasir Abdullahi.Labour CS argued that the dispute surrounded NSSF board and not labor ministry and thus the case should be dropped.
“This court has no jurisdiction to hear this matter and this application need to be struck out with cost” Said lawyer Ahmednasir.Atwoli lawyer Judy Kwishero opposed lawyer Ahmednasir application seeking to struck out saying the application was filed through a notice of motion and it’s not supported by any supporting affidavit as its required by the law.
“The application is defective and it should be struck out and we are the one to murder his application instead of him murdering our application” said lawyer Judy Kwishero.
The Industrial court has suspended the Gazette Notice which revoked the appointment of Cotu boss Francis Atwoli and the Federation of Kenya employees Chair Jacklyn Mugo .
Justice Monica mbaru overturned the gazette notice until July 25 when the matter will be heard. This comes after two cases were filed under certificate of urgency in Court by Cotu boss Francis Atwoli and Human Rights activist.
The Battle between Cotu Secretary General and labor Cabinet Secretary Kazungu Kambi got its way to the courts after a Human Rights Activist early today on behalf of the public moved to Court seeking to Quash the Gazette notice the 18th of this month which revoked the appointment of Francis Atwoli and Jacklyn Mugo as Workers Representative from the NSSF board of Trustee.
In his suit Atwoli argues that labour cabinet secretary Kazungu kambi has no authority to revoke there appointments and termed Kambi move as unlawful and Unconstitutional.
He argued that the minister had no authority to retire any nominee appointed to the board by workers since the new NSSF Act provides that existing members are deemed to have been re-appointed for additional three years.
Labour Cabinet Secretary Kazungu Kambi applied to the Industrial Court to have the order reinstating COTU Secretary General Francis Atwoli to the National Social Security Fund (NSSF) Board set aside.
The Cabinet Secretary through lawyer Ahmednasir Abdullahi told Justice Monica Mbaru, that the Industrial Court lacks jurisdiction to suspend the gazette notice which retired Atwoli from the NSSF board.
He said that the order of suspension was issued contrary to the provisions of Article 162 (2) of the Constitution which takes away the power of the Industrial Court to interfere with functions of the Cabinet Secretary.
Justice Monica Mbaru will decide whether the industrial court has the jurisdiction to hear the application August 5.

TREASURY DIRECTED TO RELEASE PARTIAL BUDGET ESTIMATE TO COUNTIES.

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.Lawyer Tom Ojienda (left) with Kilifi county assembly speaker Jimmy Kahindi (right) at milimani courts and other representatives of county assemblies at Milimani Law courts.

BY SAM ALFAN.

County assemblies got a reprieve after the High Court ordered National treasury and Commission of Revenue Allocation to release 50% of the budget estimates to counties for the 2014/2015 financial year.
On Thursday 47 county assemblies moved to court seeking to quash the directive by the Commission of Revenue Allocation (CRA) and Controller of Budget limiting their extravagant expenses.
They have been given a temporary reprieve after Justice Isaac Lenaola directed National Treasury and CRA to release 50% of the budget estimates to counties for the 2014/2015 financial year.
Revenue Allocation, the Salaries and the Remuneration Commissions and the AG will have to file their responses against the case.
The MCAs want treasury to release funds without CRA setting caps on their budgets and allowances.
Majority of the Counties have failed to approve budgets in protest to the financial ceiling that has been set by the CRA and controller of budget limiting their extravagant expenses.
County assemblies’ claim that the operations of Counties have been paralyzed Members of County Assemblies (MCAs) on Thursday made good their threat to move to court over their 2014/15 budget stalemate with the Commission on Revenue Allocation (CRA) and Controller of Budget.
In a suit filed by Speakers of all 47 County Assemblies on behalf of their residents, the MCAs want the Controller of Budget compelled to implement the counties’ budgets for the 2014/15 fiscal year.
The assemblies say that circulars issued in April and July this year limiting their spending are against the spirit of the constitution.
The county assemblies are aggrieved by circulars sent to them by the Commission of Revenue Allocation and Controller of Budget in April and July 2014 directing county assembly speakers to enforce the mandatory ceiling to financial allocations for the financial year 2014/2015.
It is against this background that they appeared before Justice Isaac Lenaola who certified their case as urgent and ordered them to serve the respondents.
The MCAs want the court to quash the directive with Mandera County Speaker Abdi Kadir Sheikh saying that the budgetary ceilings are meant to derail devolution in the country.
According to them the County Assemblies in approving their own budgets are within the law and that CRA and the Salaries and Remuneration Commission (SRC) has no mandate to set caps on budgets and allowances.
The MCAs are specifically opposed to the budget restrictions on salaries, allowances, gratuity and mileage.
The budgetary limits were imposed following a report revealing that Members of the County Assemblies had spent 2 billion shillings on activities outside their mandate.
The case will be mentioned on the 29th of August before Justice Isaac Lenaola.

NACADA BOSS ACQUITTED OVER FRAUD CHARGES CASE AGAINST HIM.

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National Authority for Campaign against Alcohol and Drug Abuse Boss John Mututho before a parliamentary committee.(FILE PHOTO).

BY SAM ALFAN.

National Authority for Campaign against Alcohol and Drug Abuse boss John Mututho is a happy man after the court acquitted him of fraud charges.
The court entered a “not guilty verdict’ on him for the fraud charges he was facing.
The judgment brought to an end a protracted ten-year-old court battle where he was charged with fraud in 41.2 Million shillings tender to do with importation of beds, lockers and curtains for Kenyatta National Hospital.
An ecstatic mututho said it was a conspiracy to curtail his political career.
During the hearing Mututho said the fraud case in a tender for supply of medical equipment to Kenyatta National Hospital (KNH) was brought against him for campaigning against the Government during a constitutional referendum in 2005.
“I was with William Ruto (Deputy President), Uhuru Kenyatta (President) and Raila Odinga (former Prime Minister) in the same camp opposing the Government in the 2005 referendum,” Mututho said.
The former Naivasha MP was giving his defence after Nairobi Magistrate Elena Ndiritu earlier ruled that the prosecution had established a case against him. But Mututho said even the court had questioned how a corruption case was proceeding in the criminal court.

He said that KNH hit headlines about 20-30 years ago for lack of equipment and several challenges. “Several Government interventions were tried until World Bank heard the cry of Kenyans and decided to advance a loan to rehabilitate the hospital,” Mututho said adding that multinationals were also attracted to KNH’s aid among them was USAID, and the body was exempted from tax.
He continued: “All the contracts and jobs advertised under the rehabilitation programme were duty free. And the supply and delivery of 1,600 bedside lockers was advertised.
“For one to qualify for the contracts, a company had to follow due diligence and comply with several local statutes.”
The prosecution called a total of 15 witnesses and presented 35 documentary exhibits to prove the case that Mututho was allegedly involved in fraudulent activities.
KNH was supposed to make duty and VAT exemptions in the arrangements which did not happen. Mututho said the Auditor General gave the contract a clean bill of health.
Speaking shortly to court reporters after his acquittal at Milimani Law an ecstatic mututho said it was a conspiracy to curtail his political career.
He said he had directed his lawyer Cliff Ombeta to files a suit seeking the damages.