Month: February 2015

MATATU WELFARE ASSOCIATION CHALLENGES USE OF CASHLESS SYSTEM IN COURT.

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Matatu Welfare Association lawyer Henry Kurauka who had filed application filed under certificate Urgency challenge the decision of the Cabinet Secretary for Transport Engineer Michael Kamau to demand the of use Cash lite fare system.
BY SAM ALFAN
Matatu Welfare Association has moved to court to challenge the decision of the Cabinet Secretary for Transport Engineer Michael Kamau to demand the of use Cash lite fare system.
The application filed under certificate urgency seek to prevent the minister, Principal Secretary for transport, National Transport and Safety Authority, the director of motor vehicle inspection Unit and
Kenya bureau of stands from imposing the new system on their operations.
The association through their lawyer Henry Kurauka, says the demand by the respondents has caused most matatu close down due inability to purchase the gadgets.
“Most of the members of the association’s TLB licenses are due to expire on 28 February and the government have put unreasonable pre-condition for renewal of the same despite numerous request to extend the period to comply” the lawyer argues.
There is real danger that most of the operator will not be in business from March 1 unless the court issue restraining order against the pre-condition set out by the minister.
Mr Kurauka argue that due to the condition over 3,800 PSV vehicles are out of service since the month of December 2014 and January 2105 because the operators are unable to meet criteria set out by the government.
The lawyer in the suit papers says that over 500,000 jobs will be lost if the decision of CS is implemented.
In the application that is supported by the affidavit of the association national chairman Mr Dickson Mbugua, points out that the cash lite system has no value addition to road safety and fitness of PSV the same should be delinked from motor vehicle inspection and TLB
licensing has pre-condition.
” The applicant sate that they are not opposed to use of the new system but the same should be applied in tandem with cash for the time being until the challenges are addressed “says Mr Mbugua.
It has been witnessed that due to lack of preparedness and challenges the respondents have postponed the implementation of cash lite fare system on numerous occasion.
Mr Kurauka argue in the application that Kenya Bureau of Stands was involved in appraisals, testing of the digital speed governors which were being sold by eleven firms which the NTSA suspended, saying that the government caused the matatu operators to incur big losses.

MUCHAI MURDER SUSPECT REMANDED FOR 14DAYS.

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Slain Kabete Member of Parliament murder suspect Simon Wambugu at Milimani law court.
BY SAM ALFAN.
Simon Wambugu who is accused alongside other six for the murder of the slain Kabete Mp George Muchai has claimed police tortured him to “extract a confession.”
Lawyer Kamati Shamara told the court today that Simon Wambugu had “serious injuries on his private parts” and needed urgent medical attention.
He asked the court to order that he be treated by a private doctor at his own cost.
Police investigating the tragic death of former Kabete Member of parliament George Muchai are yet to make a decision on criminal charges to be preferred against the seven suspects, the court has been told.
State prosecutor Daneil Karori, told the court that the team investigating team are still piecing evidence before a determination is made.
Resident Magistrate Miriam Mugure heard that the investigations are complex in which more time is required police to have the suspects in their custody.
Karori while applying for the extension of time against Simon Mbugua Gichanga who was first arrested in connection with killing of Muchai, two body guards and a driver, said the investigating team wants the suspect for a period of 14 days.
He sought that the suspect be remanded at Central police station and he be produced in court on March 10 together with six who are being held over Muchai incident.
Mr Kakhamati Shamalla who appeared for the suspect, told the court that his client has been tortured, saying that the court should issue an order to have him taken to hospital for treatment.
The lawyer said police have denied access to the suspect which move has violated his constitutional rights has provided by law.
The trial magistrate declined to grand bond the suspect on grounds that he might abscond given the magnitude of the charges likely to be preferred against him.
She ordered that he taken to Kenyatta National Hospital or alternatively he be treated by a private a doctor and medical report be brought to court at the met ion of the case.

NAIROBI COUNTY GOVERNMENT GIVEN ONE WEEK TO RESPOND TO SH1.5BN LAND CASE.

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Cortec Mining Company Director Businessman Jacob Juma at Milimani law court who filed an application seeking to revoke a title deed held by Renton Company limited on Monday Feb 23 2015.
BY SAM ALFAN.
Nairobi county government has seven days to reply to claims of corruption involving the transfer of a
Sh1.5 billion public utility plot to areal estate firm alleged to have grabbed 665 hectares of land in Ruai.
Lady Justice Mumbi Ngugi ordered Governor Evans’s Kidero’s leadership and directors of Renton Company Limited to file their replies to the petition by city tycoon and Erad Constructions owner Jacob Juma.
This is after city tycoon and and Cortec mining company boss Jacob Juma filed the application in high court seeking to revoke a title deed held by Renton Company limited.
Justice Weldon Korir said that application filed by businessman Jacob Juma o Monday was so urgent and the two respondents including attorney general, National land commission and Ethics and anti-corruption commission to file response to allow the matter to be heard inter-parties on 26 February 2015.
This is after Nairobi business man has sued Renton Company Limited which is alleged to have acquired 1600 acres of land worth 1.5 billion shillings in Ruai illegally.
Mr Juma in his application that suit land was allocated former Nairobi City Council by the government in 1996 for purposes development of sewer treatment plant and other facilities as part of implementation of Nairobi Metropolitan Growth Strategy of 1973.
He says that NCC upon receiving the grant in respect of the suit land it was transferred to Renton company limited the same day, saying there fraud on the part of the council officials and the company purported to have purchased it.
“The suit land was registered in favor of NCC on 12 April 1996 at 9.30 and transferred to Renton limited at 10.25 same day i n a manner that was manifest with corruption, fraud and breach of Constitution” the petitioner says.
The applicant seeks the court to investigate whether Sh 18,200,000 said to have been paid as stump duty was indeed received by the government.
Mr Juma says that NCC having only registered the grant in its favor for fifty-five minutes could not have complied with special condition for the transfer the said suit land.
The applicant will be asking the court to issue an injunction restraining further ruse of the suit land by the directors of the company pending the hearing and determination of the case.
The judge directed that matter be heard before Justice Mumbi Ngugi of the constitutional court
The hearing of the case has been scheduled for March 6 at the High Court in Nairobi.

HIGH COURT NULLIFIES SEVEN CLAUSES OF THE CONTROVERSIAL SECURITY BILL.

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Siaya Senator James Orengo and his Bugoma counterpart Moses Wetangula addressing the press outside Milimani law courts building in Nairobi after High court nullified several sections of the Security Laws Amendment Act
BY SAM ALFAN.

High court has nullified several sections of the Security Laws Amendment Act declaring them unconstitutional.
Presiding judge Justices Isaac Lenaola, Mumbi Ngugi, Hedwig Ong’udi, Hillary Chemitei and Louis Onguto annulled sections 12, 16, 20, 26, 34, 48 and 95 of the law.
Among the sections suspended were those giving power to the National Intelligence Service to carry out special operations on terrorism suspects and penalties for media houses for publishing materials deemed to either encourage or induce terrorist attacks..
If the judges find the law unconstitutional, they can declare it null and void or strike out sections that they interpret as violating the Constitution.
Eight clauses in the security laws had already been suspended by Justice George Odunga on January 2, when he heard the urgent application by the Coalition for Reforms and Democracy (Cord) and the Kenya National Commission on Human Rights (KNCHR).
Cord and KNCHR contested more than 20 clauses in the Act that they argued were unconstitutional.
They faulted the chaotic way in which the law was passed lack of public participation and failure to involve the Senate in discussing the Bill before it was passed.
President Uhuru Kenyatta on Friday signed into law the Security Laws (Amendment) Act 2014.
The law was passed in Parliament during a chaotic special sitting of the National Assembly.
In an address from State House soon after signing the law, the President said there is nothing in the new law that contradicts the Bill of Rights or the Constitution.
President Kenyatta said all concerns raised by different stakeholders were addressed through amendments.
He thanked the National Assembly for passing the Bill despite what he called the “deplorable conduct of a few individuals”, who he said were oblivious of the security threats facing the country.
He urged Kenyans to take time to read and understand the new law.He said new the law gives security actors a firm institutional framework for dealing with terrorism.
“This law gives our security actors a firm institutional framework for coherent cooperation and synergy within the national counter-terrorism centre.
The five judge bench on Friday last week postponed the judgement saying that they needed time to fine tune their decision over the weekend before making it public.
Justice Isaac Lenaola, Mumbi Ngugi, Hilary Chemitei, Hedwig Ongu’di and Louis Onguto told the parties in the suit, that the judgment is not ready.
The bench consequently extended the interim orders suspending the 8 clause as ordered by Justice George Odunga
The court is expected to determine issues raised by Coalition for Reform and Democracy (CORD) challenging the Security laws.
The governments through attorney general and the office of the director of public prosecution have maintained that the laws were properly passed by parliament.
During the hearing CORD through James Orengo submitted that the controversial security laws amendment bill was passed unprocedurally and without public participation.
Orengo told the bench presided by Judge Isaac Lenaola and Mumbi Ngugi, Hilary Chemitei, Hedwig Ongu’di and Louis Onguto heard that the Speaker of the National Assembly Justin Muturi was partisan in the chaotic debate that resulted in the passage of the bill last December.
“The speaker of the national assembly contravened the constitution by failing to refer the Bill to senate so as the two speakers could have made a determination as required by law,” said Orengo.
Orengo argued that public participation was restricted because the time allocated was inadequate and committee meetings were held at odd hours in contravention with the constitution.
“There was no debate in the House as witnessed by the public, the amendment bill was rushed and speeded without giving public participation,” Orengo added.
The Bill sought to amend several provisions of the public order Act (cap5), penal code, extradition,criminal procedure code, registration of persons, evidence, firearms rent restriction Acts among others undermine and violate the constitution.
The court heard the Bill contains several offensive provision namely Section 4,5,12,16,25,26,29,34,48,56,58 and 64 Security Law (Amendment)Act 2014 of the security thus it breached the constitution.
The five judge bench heard that the law passed contravened the constitution and the same cannot be presumed to be good law.
They heard that the amendment contains offensive provisions and affect lives of Kenyans if the same is allowed to come into operational.
The Bill sought to amend several provisions of the public order Act (cap5), penal code, extradition, criminal procedure code, registration of persons, evidence, firearms rent restriction Acts among others undermine and violate the constitution.
The court heard that the debate was rushed and hastened and the Bill was steamrolled and speed in the assembly thus violating the principle that the minority must have their say even if the majorities have their way because of the tyranny of numbers enjoyed by one side of the house.
Court of Appeal dismissed an application by AG seeking to stop the suspended and operation of eight sections of the anti-terrorism law.
The new regulation relating to arresting a person and withholding him or her for period of 90 days without explanation should not be applied.
The appellate court held that the was no vacuum in the constitution that would stop the government from enforcing the law in regard to the section suspended by Judge George Odunga.
Judge Odunga found that new regulation relating to limiting number of refugees to the county is discriminative in nature and inconsistence to international instruments and treaties to which Kenya is signatory.
the Judge upheld the position of United Nations Refugee Convention and Protocol that relates to protection and non-discrimination of refugees should be allowed to seek asylum without necessarily limiting their numbers as it in the case under new laws.
National Intelligence Services will not interfere with the privacy of individuals as proposed under the new Act, the court said this new amendment needs to be investigated and determination made.
The court further put on hold the anti-terrorism Act, saying the way in which the provisions are framed is too broad and imprecise and may be abused and recklessly applied beyond mischief as its expected.
According to Orengo the Bill 2014 was published in a special gazette supplement No 163 under the hand od Chairman on Administration and national Security Asman Kamama.
The Clerk of the National Assembly on December 10 published in the local dallies an advertisement intended to be an invitation to the public to present their memoranda on the proposed Bill.
“The notice was in violation of express provision of the constitution and in particular Article 10(2)(a) and 118(1) (b) of the constitution as it did not afford the people any meaningful opportunity to participate in the bill by giving a notice the same day the purported public participation was to commence” read the petition.
“Under Article 132(2)(a)(c) and (e) the head of state has an obligation and duty to respect, uphold and safeguard the constitution promote and enhance the unity of the nation and to ensure the protection of human rights and fundamental freedom and the rule of law.

BUSINESSMAN JACOB JUMA LAYS CLAIMS OF 665 HECTARES OF LAND IN RUAI.

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Cortec Mining Company Director Businessman Jacob Juma at Milimani law court who filed an application seeking to revoke a title deed held by Renton Company limited.

BY SAM ALFAN.
Nairobi County Government and controversial company alleged to have grabbed 665 hectares of land in Ruai have been given two days to respond to the application seeking to revoke a title deed held by Renton Company limited.
Justice Weldon Korir said that application filed by businessman Jacob Juma is so urgent and the two respondents including attorney general, National land commission and Ethics and anti-corruption commission to file response to allow the matter to be heard inter-parties on 26 February 2015.
This is after Nairobi business man has sued Renton Company Limited which is alleged to have acquired 1600 acres of land worth 1.5 billion shillings in Ruai illegally.
Mr Juma in his application that suit land was allocated former Nairobi City Council by the government in 1996 for purposes development of sewer treatment plant and other facilities as part of implementation of Nairobi Metropolitan Growth Strategy of 1973.
He says that NCC upon receiving the grant in respect of the suit land it was transferred to Renton company limited the same day, saying there fraud on the part of the council officials and the company purported to have purchased it.
“The suit land was registered in favor of NCC on 12 April 1996 at 9.30 and transferred to Renton limited at 10.25 same day i n a manner that was manifest with corruption, fraud and breach of Constitution” the petitioner says.
The applicant seeks the court to investigate whether Sh 18,200,000 said to have been paid as stump duty was indeed received by the government.
Mr Juma says that NCC having only registered the grant in its favor for fifty-five minutes could not have complied with special condition for the transfer the said suit land.
The applicant will be asking the court to issue an injunction restraining further ruse of the suit land by the directors of the company pending the hearing and determination of the case.
The judge directed that matter be heard before Justice Mumbi Ngugi of the constitutional court

MACHAKOS AND MAKUENI LAND OWNERS DEMAND MORE CASH.

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51 land owners in Kajiado and Makueni counties lawyer Kethi Kilonzo outside Milimani law courts.File photo.
BY SAM ALFAN.
51 land owners in Kajiado and Makueni counties where the Standard Gauge Railway intents to pass want the Government to undertake a lawful inquiry into land acquisition as well as take into consideration their participation into the process failure to which they will institute judicial proceedings in 14 days.
They have written to the lands cabinet secretary, National Land Commission chair, the AG and the Kenya Railways Corporation Chair through their advocate Kethi Kilonzo that they have been declared landless after the government only compensated them for buildings developed on their land.
They claim SGR project facilitators are making payments for their land to different and unknown persons. And that the government did not publish any notice on compulsory acquisition of their land and failed to relocate them.

COUNTIES MUST STICK TO BUDGET CEILINGS-COURT.

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Members of County Assemblies (MCAs) Lawyer Tom Ojienda (centre) with Kilifi county assembly speaker Jimmy Kahindi (left) and his Mandera counterpart Abdi Kadir at Milimani courts on Thursday 24/07/2014.
BY SAM ALFAN.
The case by 47 county assemblies where the petitioners were seeking the court to quash county budgetary allocation ceilings set by Salaries and Remuneration Commission has been dismissed. Whilst rendering his verdict justice Isaac Lenaola reiterated that the SRC was not bound by the Constitution to seek information and representations from the County Government before making its recommendations on budget ceilings.
The 47 County assemblies through their lawyer professor Tom Ojienda hmoved to the high court last year challenging the decision by the Commission on Revenue Allocation (CRA) to reduce their budgetary
They claimed that this breached their constitutional rights. However Lenaola ruled on the contrary saying that even if the SRC had put ceilings that action does not violate the law.
Adding that it is core responsibility of the SRC to recommend the manner in which the National Revenue is to be shared between the two levels of Government and among the Counties and such recommendation may include prescribing ceilings.
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.