Month: January 2015

NEW TOUGH SECURITY LAW TO REMAIN SUSPENDED.

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Senior counsel James Orengo for Coalition for Reforms and Democracy (CORD) at Supreme Court where the Appellate court declined to reinstate the eight suspended clauses on the controversial Security Amendment Act 2014 that is meant to curb rising insecurity unleashed by terrorism.
BY SAM ALFAN.
Government has suffered a major blow after the Appellate court declined to reinstate eight suspended clauses of the controversial Security Laws.
Appellate judges Daniel Musinga, Patrick Kiage and Agnes Murgor ruled on Friday that Attorney-General Githu Muigai had not proved that the suspension of the clauses had created a vacuum in fighting terrorism.
“We decline to grant the orders sought by the applicant and dismiss the application dated 6th January, 2015. We make no order as to costs.” Said the judges.
Attorney General Prof. Githu Muigai had appealed against suspension of the clauses claiming Justice George Odunga had erred in his judgment to suspend the laws.
“Whether by granting the conservatory orders the learned judge of the High Court erred in law and in fact in his interpretation of Article 23 of the Constitution” said Prof. Githu in his appeal.The case will now be heard by a five judge bench that was constituted by the chief justice.
In the appeal that had been filed by the attorney general, the court heard that high court judge George Odunga erred in law when he issued orders staying the implementation of the eight security bill clauses.
The AG had claimed that that the judge failed to consider the terrorist threats the country was facing and which the new law was meant to address.
However in its ruling the appellate court led by Judge Daniel Musinga said there was no vacuum in law and therefore dismissed the appeal by the Ag.Court of appeal ruled that the appeal by the AG had no merit.
Among the issues that were raised before the court was whether Judge George Odunga erred in law and if he had the jurisdiction to suspend the clauses as a single judge among others. The court suspended clauses 12, 16, 26, 29, 48, 56, 58 and 64 pending hearing of the case filed by the Coalition for Reforms and Democracy and human rights lobbyists.
Justice George Odunga ruled that sections of the new Act raised questions of human rights violations.
Attorney General Githu Muigai challenged the suspension of eight clauses of the controversial Security Amendment Act 2014 that is meant to curb rising insecurity unleashed by terrorism..
AG filed a notice appeal against the January 2 decision by High Court Judge George Odunga following petitions by the Coalition for Reforms and Democracy (Cord) and the Kenya National Commission on Human Rights (KNCHR).
In his application, the Attorney General argues the high court does not have power to suspend legislation that has been lawfully sanctioned by the National Assembly and asserted to by the President without justifiable reasons. The law can only invalidated by a three-Judge constitutional bench appointed by the Chief Justice upon receiving valid grounds regarding the short-comings or excesses of the law, he said.
President Uhuru Kenyatta signed into law the controversial legislation on December 19 following unprecedented mayhem in the House. Parliament enjoys exclusive power to enact laws that are presumed to be lawful and the High Court can only intervene when there is evidence of interference with freedoms and liberties protected by the Constitution, Prof. Githu says.
The Attorney General claimed the new law does not violate the fundamental rights and freedoms enshrined in the Bill of Rights but opposition groups have condemned the tough regulations, among which allow security agents to hold suspects without charge for up to 90 days.
Todys ruling has left the fate of the tough controversial security bill under the hands of five judge bench appointed by chief justice Willy Mutunga to hear the petition filed by Coalition for Reform and Democracy (CORD) challenging Security laws (amendment) Act 2014 in the next 12 days.
Presiding Judge Isaac Lenaola said the matter will be heard on January 28, 29 and 30.
The bench consists presiding judge Isaac Lenaola,Mumbi Ngugi, Hilary Chemitei, Hedwig Ongu’di and Louis Onguto.
The bench should be able to deliver the judgment on or before February 13, 2015.

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P.L.O LUMUMBA ORDERED TO APPEAR IN COURT OVER CONTEMPT.

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The director of Kenya School of Law Professor P.L.O Lumumba who has been summoned to appear in court to show cause why they should not send to jail for disobeying a court order.
BY SAM ALFAN.

High court has summoned the director of Kenya School of Law Professor P.L.O Lumumba and Secretary Council of Legal Education Professor Kulundu Bitonye to appear in court to show cause why they should not send to jail for disobeying a court order required them to admit six students to the institution.
Justice George Odunga issued the orders, after the applicants informed the court that they had not been admitted has court ordered on April 4. Last year
Juliet Wanjiru Njoroge, Vincent Omondi Owuor, Solomon Wachira Ngari, Anthony Eregae Elaini, Elibeth Nanjenro Were and Kelvin Akonya were discontinued their advocates training programme for the academic year 2014/2015.
The aggrieved students through their lawyer Steve Nzaku immediately moved to court seeking orders to quash the decision by the management of the school to revoke their admission letters.
Justice Odunga granted their application and issued orders quashing the decision to expel them.
” The applicants were no longer students of the University but were students of the school provisionally in my view by the said admission they had acquired some rights and were therefore entitled to be treated fairly” judge said.
The order requiring the director of the school and the secretary of legal council were served personally on them on April 7, but they never acted has ordered by the court.
Justice Odunga said that court orders are not made in vain and are meant to be complied; saying that person disobeying the same must face the consequence of the law.
The judge said in his ruling that he was surprised at the interpretation of the court order by the two eminent professors of law who are in-charge of the Kenya School of Law an institution of higher learning tasked with the training of lawyers in the country.
He said that the court can not comprehend why the secretary whose in-charge of preparing guidelines for the conduct of such training could disobey the court order.
The two are expected to appear in person in court on February 3 for the contempt proceedings against them.

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NTV,KTN AND CITIZEN STOPPED FROM AIRING ADVERTS AIMED AT DISSUADING VIEWERS FROM PURCHASING GOTV AND STAR TIMES DECODERS.

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The three major media house who has been restrained by the court from airing advertisement advising their viewers against acquiring Star Times and Gotv set top boxes to continue accessing local content in digital
BY SAM ALFAN
High court has issued temporary orders restraining the, three major Media houses from airing advertisement advising their viewers against acquiring Star Times and Gotv set top boxes to continue accessing local content in digital quality as reality on analogue switch off continues to manifest in Nairobi and its environs.
Justice Alfred Mabeya ordered Royal Media Services, Nation Media Group and Standard Group to stop airing or publishing information to the effect that GOTV is carrying their content without their consent and thereby infringing on their copyright.
The three media houses were also barred from publishing any defamatory statements against, GOtv whether on their television stations or by ‘whatsoever means published
The three media houses have been in protracted court battles which has occasioned the delay in digital migration until the government decided it was going ahead to implement the switchover anyway.
They have accused GOtv and Star times of carrying their channels illegally and have cautioned viewers from purchasing their set top boxes. It has been reported that they want Kenyans to wait for their own decoders which they are bringing under the Africa Digital Network consortium.
However, GOtv in a statement to the press said it carried the three media houses channels under the stipulation of the Kenya Communications Amendment Act.
It claimed all premium TV providers are obligated by the regulator the Communications authority of Kenya to carry local channels.
“It has come to our attention that four (4) Free-To-Air stations namely Citizen, KTN, NTV and QTV are currently running an infomercial on their platforms specifically advising consumers against purchasing GOtv set top boxes for carrying their content without consent,” reads part of the statement.
In a press statement issued by GOtv General Manager Felix Kyengo on Sunday, He assured Kenyans that the company is operating within the confines of the laws of Kenya.
“GOtv Kenya has been and continues to air the content of the above mentioned four stations, amongst others, pursuant to a ‘must carry’ obligation imposed by Regulation 14 (2) (b) of the Kenya Information and Communications (Broadcasting) Regulations 2009, whose objective is to ensure that the public has access to information “ statement state.
GOtv offers 11 local TV channels and more than 70 additional channels including pay TV and Free to Air Channels on DVB-T2 technology.
It has been authorized by the Communications Authority of Kenya; it was the first provider in Kenya to launch DVB-T2 technology over three years ago.
The case will be heard on February 2.

COURT BLOCKS SRC FROM REVIEWING TA STAFFS NEW CONTRACTUAL TERMS.

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Industrial court Judge Nduma Nderi in court (3)

Industrial Court Judge, Justice Nduma Nderi who has blocked Salaries and Remuneration Commission from reviewing contractual terms of employees of Transition Authority.

BY SAM ALFAN.
Industrial Court has restrained Salaries and Remuneration Commission from reviewing contractual terms of employees of Transition Authority.
Justice Nduma Nderi said that pending the hearing of the application filed by the Authority there should be no interference of the intended increment of salaries of the applicant.
The Transition Authority moved to court after it learned that the Salaries regulatory body had written a letter to Ministry of Devolution and Planning, The National Treasury and the office of Controller of Budget declining the said increment of salaries of the employee of the Authority.
Lawyer George Murugu Muthui for the petitioner told the court that the commission has advice the ministry of Planning and Devolution not pay its employees their contractual remuneration, saying that the national treasury and the controller of budget are likely to adopt the same decision if the same is not halted.
He further argued that,the Authority is in real danger of facing multiple suits by its employees if the decision of the commission is not acted in time.
“The applicant will be faced with mass employee exit which shall render it incapable of discharging its duties” said lawyer Muthui
Justice Nderi said that failure and inability of the Authority to discharge its duties will impact the public as it affects the running of both the national and county government during the transition period.
The court heard that the salary structure recommended by the commission was issued almost a year after the applicant’s board approved and adopted a salary structure and proceeded to recruit its staff.
The commission’s recommendation as proposed is irregular and irrational and has drastically reduced the salary of the applicant’s staff which is in absolute violation of their legitimate expectation.
The judge directed the applicant to serve all the respondents and the matter set for hearing by all parties on February 19.

TRACK-IT FORMER R MD LOSES BID TO STRUCK OFF HIS NAME FROM INTERPOL LIST OF WANTED CRIMINALS.

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Former managing director of Track IT Shehzad Tejani brother-in-law Karim Lalani with his lawyers outside Milimani law courts in Nairobi after high court to have his name removed from the international police (Interpol) list wanted criminals has been dismissed.

BY SAM ALFAN.
The case by a former managing director of security surveillance firm Track-It, Shezad Tejani, to have his name delisted from the international police (Interpol) list of runaway criminals has been dismissed.
Justice Mumbi Ngugi dismissed the businessman’s application, saying that the court can’t police from executing their work.
The judge said that it’s the criminal court which is right place where the accused can adduce evidence and a determination is made by a presiding magistrate.
The trader sought to have his name deleted from the international police (Interpol’s) list of runaway criminals.
Mr Tejani through his brother-in-law Karim Lalani, moved to court in a bid to stop Interpol from arresting him on grounds of obtaining goods through false pretences and issuing bad cheques.
The former MD says he has been holed up in Dubai since 2010 when Interpol listed him as a wanted fugitive on its website.
“He is unable to bring this petition in his own name as he has been in Dubai since 2010, and is domiciled there. Since the publishing of the red alert, Mr Tejani has been unable to travel to Kenya. He is listed
as a wanted fugitive for reasons he is neither aware of nor responsible for,” said Mr Lalani in his petition.
Track-its business was in 2009 hit by bad publicity following claims that tracking devices that it fitted on people’s vehicles were fake.
The firm’s management at the time attributed the bad press to business rivalry.
Mr Lalani has accused Interpol of refusing to furnish his lawyers with proper information as to why Mr Tejani is listed as a wanted man.
In correspondence with the international policing agency, the former MD was informed that he is wanted for obtaining goods through false pretences and issuing bad cheques.
“Interpol replied to one of our letters in which they said the complainant in the matter he is wanted for is Amin Mulji, and that they had been warranted by the Director of Public Prosecutions to list
him as a wanted fugitive,” said Mr Lalani.
Upon requesting particulars on the red alert, he added, Interpol referred him to the investigating officer at Central Police Station, and that they have been unable to get any more information.
“Our advocates wrote to the officer in charge of investigations at Central Police Station in April, but to this day they have not shown any authorization from the DPP to warrant the issuance of the red
alert against Mr Tejani,” added Mr Lalani.
The court ordered the fugitive to pay cost of the suit.

MOSES KURIA TRIAL OVER HATE SPEECH REMARKS TO PROCEED.

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Gutundu south Member of Parliament Moses Kuria leaving Milimani law courts yesterday after Nairobi magistrate court gave them duration of one month to complete negotiations or commence the case over hate remarks he made on social media.
BY SAM ALFAN.
The hate speech case against Gatundu South MP Moses Kuria will proceed to trial following the collapse of out-of-court settlement.
This comes few hours after Nairobi Senior Magistrate Enock Cherono has given National Cohesion and Integration Commission and Gutundu south Member of Parliament a duration of one month to complete negotiations or commence the case over hate remarks he made on social media.
This is after the Gatundu South legislator Moses Kuria appeared in Chief Magistrate court to give details on the progress they made towards the reconciliation process with National Cohesion and Integration Commission.
However Moses Kuria is still on the hook after National Cohesion and Integration Commission, one of the complainants, accused Kuria of failing to show remorse.
“While the commission believes that the accused is innocent until proven guilty as well as freedom of expression as guaranteed under Article 33 of the Constitution of Kenya 2010, the Commission regretfully observed that the honourable Kurai has not exhibited a conciliatory demeanor in his social media accounts.
NCIC chairman Francis ole Kaparo said while the conciliation process has been in progress, Kuria has continued to post material on his social media accounts that in the opinion of the commission may cause disharmony and are in contradiction of the spirit of conciliation,” NCIC chairman Francis ole Kaparo said.
Barely hours after he made a public apology for posting hate remarks on his Facebook page, Gatundu South MP Moses Kuria was at it again, his sensational statement this time referring to the Bible.
He referred to Genesis 17:14 which says: “And the uncircumcised man child whose flesh of his foreskin is not circumcised, that soul shall be cut off from his people; he hath broken my covenant.
The MP was charged with incitement, hate speech and causing ethnic contempt in Facebook messages allegedly posted on May 16.
Trial Senior Principal Magistrate Enock Cheorno, said that the court has noted the progress made so far and directed that the matter be mentioned on February 17 for further directions.
In July last year, the DPP wrote to the NCIC to review if statements made by Mr Kuria regarding the killings in Lamu constituted hate speech.
The MP is being charged with incitement, hate speech and causing ethnic contempt in Facebook messages allegedly posted on May 16 this year.
LSK had said the Facebook posts were intended to incite the public to violence against a specific community.
Prosecutors said that on May 16, he posted a message on the page with the intent to stir up ethnic hatred between the Kikuyu, Luo and Somali communities.
The post read: “I think it is only a matter of time before Kenyans start violence against PERCEIVED (sic) terrorists, their sympathizers, their financiers and those issuing travel advisories without intelligence. I am not sure I will not be one of those Kenyans. When you touch Gikomba the nerve center of our economic enterprise, you really cross the line. Brace yourself. Choices have consequences.”
The recommendation to prosecute Mr Kuria was made by the National Cohesion and Integration Commission after complaints by the Law Society of Kenya.
In a statement red to the press on Friday, Kaparo said Kuria’s fate now lies with the court..NCIC recommended that the court, through the Director of Public Prosecutions, pursue the case fully.
“The only logical thing to do is for us to withdraw and let the court continue with the case to the logical conclusion,” Kaparo said.
A spot check on Kuria’s Facebook account by the Star showed that Bible verse Genesis 17:14 was his last post.
NCIC alleged that the additional inflammatory posts had been deleted.
Kaparo revealed that it was the NCIC that pursued the case of 22-year-old Moi University student Allan Wadi who was sentenced to two years in prison for hate speech and undermining authority.
The manner in which Wadi’s case was handled has been the subject of public debate, many accusing NCIC of partiality.
The matter to be mention on 17 of February to update the court proposed reconciliation.

DEREGISTRATION OF PNU UNCONSTITUTIONAL, POLITICAL PARTIES TRIBUNAL RULES,

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Party National Unity lawyer Steve Mogaka with party chairman John Kamama talking to journalist outside Milimani law courts after the political parties tribunal declared the registrar of political parties to deregister Party National Unity unconstitutional.

BY SAM ALFAN.
Political Parties Tribunal has declared unconstitutional the decision to deregister the former President Mwai Kibaki’s Party National Unity.
The tribunal found that the decision by the Registrar of Political parties was arrived at without giving the aggrieved party an opportunity to defend itself.
Chairman Kyalo Mbobu, said that the registrar erred in law by communicating to the attorney general to wind up PNU, without first giving the political party due notice of deregistration
The Party’s lawyer Steve Mogaka told the tribunal that the registrar ought to have given PNU an opportunity to exhaust its right to appeal.
Lawyer Mogaka further told the tribunal during the hearing that the decision by the registrar of Political Parties Lucy Ndungu has set on motion the process of winding and dissolution of the Party
He submitted to that the registrar of political parties has never served any document to show non compliance as claimed in the gazette notice announcing deregistration.
The alleged non compliance notice for failure to make returns as required by law has never been communicated to PNU offices, the lawyer said
Mr Mogaka argued that if any correspondents from the office of the registrar of political parties have been sent to PNU none has reached or they have been using wrong address.
He submitted the winding up and dissolution if affected will amount to be unlawful exercise.
Mr Kyalo and his members Mr Chacha Odera, James Atema and Rve Jessie Muturia ordered the registrar to pay cost of the suit.
Former President Mwai Kibaki’s Party moved to Court to block its deregistration arguing that the Registrar of Political Parties did not accord it an audience prior to its closure.
Lawyer Steve Mogaka filed a case on behalf of the party, its secretary general John Okemwa Anunda and John Kamama Mbugua, challenging the gazette notice published by Lucy Ndung’u which brought to an end the seven year existence of the party.
PNU wanted the High Court to quash the gazette notice issued by Registrar of Political Parties Lucy Ndung’u.
Political parties’ tribunal issued temporary orders suspending the registrars’ gazette notice that’s alleged to deregister the former president Party.
PNU’s closure followed its failure to submit its financial accounts to the Auditor General within three months after the close of the financial year for an audit, in contradiction of section 31 (2) of the Political Parties Act.
The party has said in its suit filings that the Registrar had not given it a chance to explain why the accounts had not been submitted to the Auditor General.
Correspondence from the Registrar, PNU claims, had been sent to two strangers, K.K Ndumino and Isaac Rutere, who allegedly acted on behalf of the party without its knowledge.
Mr Ndumino has allegedly responded to the registrar’s letters while Mr Rutere has been accused of receiving the said letters on behalf of the party.
“The Registrar has been misrouting its correspondence to PNU with the result that the party has been kept unaware of intended action by the Registrar. Besides Mr Ndumino, Mr Rutere has been collecting mail from the Registrar and is equally a stranger to PNU,” said Mr Mogaka.
PNU has said that the documents needed went missing under the reign of the old officials led by Gideon Konchellah.
After they allegedly locked the party’s offices, the new officials had to seek a break in order to access the required documents, a move that was in vain.
“PNU had to obtain a break in order in an endeavor to access its records to file the returns. Upon breaking into PNU’s offices, the documents found were not useful for filing the required returns,” said John Anunda, the party’s secretary general.
Lady Justice Mumbi Ngugi certified the matter urgent, but declined to grant PNU any orders until the matter is heard before her tomorrow. PNU has enjoined Attorney General Githu Muigai in the suit.
PNU has undergone difficulty since former chairman George Saitoti died in 2012.
Its financial difficulties rose to the fore after its disqualification from the political parties’ funding owing to an agreement it signed with The National Alliance (TNA) in the run up to last year’s General Election in which it was not to field any individual candidates in the polls.
Majority of its members also crossed over to President Uhuru Kenyatta’s TNA.
The tribunal decision comes on a time when the United Republican Party (URP) and The National Alliance (TNA) party has merged to form the Jubilee Alliance Party of which the first candidate will vie for the Kajiado Central constituency seat.
TNA secretary general Onyango Oloo and URP SG Fred Muteti said during a press briefing that they have formalized registration of the new vehicle for future Jubilee coalition candidates.
A statement by Elgeyo-Marakwet Senator Kipchumba Murkomen posted on his Twitter account said that the merger is a commitment of unifying the country as part of the Jubilee vision for the country.
“We have decided to form one outfit Jubilee Alliance Party which is a show of our commitment to national unity and consolidation of our democratic gains. It will be good going forward to have two or three national parties like many progressive democracies. I hope our competitors will follow suit,” Murkomen said.
Jubilee leaders have on several occasions hinted at plans to dissolve their political parties and form one outfit ahead of the 2017 polls.