Month: April 2015
Former Limuru MP George Nyanja son Andrew Mbugua Nyanja with his lawyer Ian Maina (center) and his co-accused James Wakaba leaving Milimani law courts after they were acquitted over drug trafficking charges on 30 April,2015.
BY SAM ALFAN.
The Son of Former Limuru Member of Parliament George Nyanja has been acquitted acquitted over .drug trafficking charges.
Andrew nyanja was cleared by Milimani Anti-corruption Magistrate court Senior Principal Magistrate Peter Ndwiga who said the prosecution failed to prove that the accused was in the vehicle which was alleged to be carrying 480 Kgs of bang.
Andrew Mbugua Nyanja and his co-accused James Wakaba were freed in a case that they have been waiting for the judgment for the last six years.
The two were charged with trafficking over 480 kilogram of cannabis sativa (bhang) with an estimated value of Sh 960,000 in the year 2009.
In the judgement, Ndwiga said that Mbugua was not at the scene where the incident occurred and that he was at Meru County not in Kajiado.
“Prosecution case is full of doubts and inconsistencies and after considering all the records I have found out that the accused are not guilty,” he said.
He added that the court could not find the evidence that the materials were and it has found out that the general procedure for handling narcotic drugs was followed.
According to him, Wabaka was also a passenger in the said vehicle. After the ruling defense counsel Ian Maina said the case has taken decades in court and the Mbugua should be paid damages that he encountered.
“We want to sue for damages that the MP’S son has encountered, my client’s name was furnished once he was charged with the offense he did not commit,” he said.
Mbugua who is an International businessman thanked his Lawyer and family for their support. He also thanked the Magistrate where he said that he has trust with the Kenyan Judiciary.
“I want to thank my lawyer Mbugua for fighting hard to clear my name, I also thank my family and friends who have supported me in this battle, “he said.
Magistrate Ndwiga in his ruling said that the prosecution failed to prove their case and they did not table competent evidence against the accused.
The two were accused that on March 6, 2009 at Kajiado road block in Kajiado District of rift valley province, jointly were found trafficking by conveying a Narcotic Drug in a Toyota Motor vehicle.
His Lawyer Ian Maina has vowed to sue the State for malicious prosecution and causing mental torture and defamation.
Andrew thanked his lawyer Ian Maina for the great job he has done during this long period he was on trial
Jubilee Alliance Party candidate Ferdinand Waititu with his lawyer Harrison Kinyanjui leaving Milimani law courts after High court cleared him from contesting for the Kabete parliamentary seat in Monday’s by-election on Tuesday,23 April 2015.
BY SAM ALFAN.
High Court has dismissed a petition seeking to bar Jubilee Alliance Party candidate Ferdinand Waititu from contesting for the Kabete parliamentary seat in Monday’s by-election.
High Court Judge George Odunga has ruled that only the Independent Electoral and Boundaries Commission (IEBC) has authority to bar or clear candidates to contest in polls.
The applicant Benson Riitho Mureithi claims that Waititu lacks integrity to vie for the parliamentary seat as it has been held by the court in another case.
He says that a complaint was made to the Jubilee Party and the independent electoral and boundaries commission over the integrity and suitability of Waititu to run for the seat.
Mr Riitho argues that the compliant notwithstanding the returning officer has proceeded to issue the Jubilee candidate with clearing certificate to contrary.
He says that the action will make him suffer grossly and his constitutional right to secure, uphold and defend the statues shall be tremendously prejudiced if the court does not intervene.
He seeks an order to stop the by-election pending the hearing and determination of the petition.
The petitioner further has sought the court to order that the name of Waititu be excluded from the ballot box.
The respondent IBEC is bound by the constitution to perform its functions in accordance with the law and legislations.
Article 99 of the constitution provides that a a person is disqualified from being elected as a member of parliament if the person is found by law to have misused or abused a state office or contravened chapter 6 of the constitution.
Mr Riitho further says that the court having held that Waititu has integrity issues IBEC can not purport to clear him to view for a parliamentary seat.
Waititu was nominated to run for the Kabete parliamentary seat in Monday’s by-elections on a JAP ticket after the seat fell vacant following the death of area MP George Muchai.
The ruling follows a dismissal made last month of another petition filed by two voters last seeking to bar Waititu from running in the forthcoming Kabete mini-polls on grounds of integrity.
Geoffrey Mwaki and Joseph Njuguna had gone to court to compel IEBC to bar the former Embakasi MP from contesting under the JAP ticket on grounds that he did not meet the required threshold as stipulated in Chapter 6 of the Constitution of Kenya on Integrity and Leadership.
Other contestants in the by-elections are George Mungai (an Independent candidate), Paul Kariuki (People’s Party of Kenya), Wilson Karanja (ODM), John Wamagata (Safina), Kavore Kariuki (Narc Kenya), Kiriro Wa Ngugi (DP), Newton Njenga (National Vision Party), Isaiah Ndirangu (PDU).
Imenti Central MP Gideon Mwiti at Milimani law courts where he was charged with rape, intimidation and indecent assault on April 2, 2015.
BY SAM ALFAN.
Imenti Central Member of Parliament Gideon Mwiti has filed a petition at the High Court in Nairobi seeking orders bar two lawyers from participating as co-prosecutors in a case in which he’s alleged of raping former TV journalists in his wetlands office in Nairobi.
Through his lawyer Dr John Khaminwa, said if the two advocates are allowed to join the DPP as co-prosecutors in the case, his rights to a fair and free trial may be prejudiced as they are also listed as prosecution witnesses.
Among the lawyers who were representing the complainant in the case was Muciimi Wibaka and Harun Ndumbi, who has since been replaced by Ms Teresia Omondi.
“They are advocates of the High Court and have applied that they have instructions from the complainant to join in prosecutorial capacities against the applicant,” Dr Khaminwa said.
“The party mandated under the Constitution to prosecute on behalf of the state is the DPP, who has the power to delegate and also has duties to be in full control of prosecutions.
“The victim can only send a lawyer to watch and not acting as prosecutor”, the lawyer told Justice Weldon Korir.
Mwiti said there can be only one prosecutor from the office of the Director of Public Prosecutions.
The MP further told the court that the victim’s lawyers have allegedly tampered with evidence, arguing that this is likely to reduce the chances of a fair trial and that the lawyers had recorded statements as witnesses in the case.
“There is no provision in law that allows the respondents being advocates acting for the complainant to take the active role in the prosecution of the criminal case,” Dr Khaminwa said.
The MP told the court that he is likely to suffer prejudice if the two lawyers are allowed to continue playing an active role as prosecutors in the case before the chief magistrate.
He is also challenging the constitutionality of the Sexual Offences Act to the effect that a sentence for a conviction is determined as a minimum period, which he says is in contravention of the separation of powers as the Legislature has encroached on the powers of the Judiciary.
The lawyer said the MP wants conservatory orders granted against Wibaka and Ms Omondi from taking an active and direct role in the prosecution of the case slated to be heard on May 22. Mwiti has denied a charge of rape and witness intimidation.
Earlier Nairobi Chief Magistrate Lucy Mbugua declined to cancel bail terms for Imenti Central Member of Parliament Gideon Mwiti for allegedly interfering with investigations in a rape case against him.
This was after Prosecutors on Wednesday asked a court to cancel the bail issued to Imenti Central MP Gideon Mwiti for allegedly interfering with investigations in a rape case against him.
The prosecution told the court that Mr Mwiti had also been intimidating witnesses set to testify in the case.
Mr Mwiti is out on a Sh100, 000 bonds. He is facing three charges of raping, intimidating and assaulting a woman in his Nairobi office.
The MP is alleged to have committed the offences on March 21 at Tana Club on Woodvale Grove in Westland’s, Nairobi.
The MP and his co-accused, Dr David Muchiri, on Wednesday appeared in court, where they were charged afresh.
The accused doctor has however been granted a cash bail of Sh50, 000 with the case set to be mentioned on April 8.
The MP was released on a Sh100, 000 cash bail on Thursday last week after he was charged with rape, intimidation and indecent assault.
While requesting bail, Mwiti’s lawyers said he was suffering from diabetes and was not strong enough for police custody.
Mwiti is alleged to have forcibly made a married woman take an HIV test before assaulting and raping her nearly two weeks ago.
The doctor who allegedly conducted the forcible HIV test, Mwangi Muchiri, was arrested and was charged at the Kibera Law Courts earlier.
Mwiti was released on a cash bail of Sh100, 000 pending trial.Khaminwa told the court that his client was suffering from diabetes.
The magistrate then ruled that there was nothing on record to show that Mr Mwiti would abscond if granted bail.
She, however, noted that allegations that there had been attempts to interfere with investigations reflected poorly on him.
Justice Korir certified the petition as urgent and directed the party to serve the DPP and the two lawyers for a response before the petition is heard on May 5.
Gatundu South MP Moses Kuria with his lawyer Francis Munyoro outside Milimani law courts after court declined to cancel bail terms as sought by the DPP over an on line posting the latter said amounted to hate speech.
BY SAM ALFAN.
Nairobi Magistrate court has declined to cancel Gatundu South MP’s bail terms as sought by the DPP over an on line posting the latter said amounted to hate speech.
The MP who is charged with incitement to violence and ethnic hatred had allegedly breached the terms of his bond by posting further hate speech on his tweeter account alluding to the practice of non circumcision of the Luo community derogatorily, according to the DPP.
He has a case pending before the chief magistrate’s which will be heard on September 9 .
Mr Kuria is out on a bail of Sh 5 million.
The prosecution had obtained “gag orders” barring him from making further inflammatory comments on social media but shortly after he “posted a Biblical verse Gen 17 :14 which Magistrate Enock Cherono ruled that he was not in contempt of the court order .
The magistrate said that to make a finding that he had breached the bond terms and cancel the bail was to condemn the politician unheard as he is presumed innocent till proven otherwise and also the posting was within the margins of the statement under inquiry which is yet to be concluded.
He further said that bond may only be canceled if a suspect fails to turn up for trial unlike in Kuria’s case where he has religiously attended court including mentions.
Mr Tobiko, through Senior Deputy Director of Public Prosecution Nicodemus Maingi accused Kuria of breaching the terms of the Sh2 million bails.
The court had asked Kuria not to post more hate messages on his social media accounts and Maingi said the lawmaker had disrespected the order.
DPP Tobiko made the application before a Nairobi court after the National Cohesion and Integration Commission (NCIC) accused Mr Kuria of breaching an agreement for an out-of-court settlement.
The defense counsel, Francis Munyoro during the case hearing yesterday said the allegations made against Kuria are malicious and lacks basis.
Mr Kuria is out on Sh 2 million cash bail over hate speech allegations where he is being accused of Writing hate messages targeting the Luo community on his Facebook page even after he had agreed not to do so.
In his application the DPP through a Prosecution Counsel Nicodemus Maingi said Kuria had continued posting hate speech in the social media despite a public apology for previous similar offences and promises that he would desist from the same.
He added that Kuria had breached the bail terms which stated that if the accused person has breached an order his bail should be cancelled.
“It is not in the interest of justice or proper administration of justice for the accused person to repeat the same content that has got him in court,” he said.
The prosecution told the court that the accuser’s content was intended to incite against one ethnic group which was luo community.
Maingi added that Kuria had breached a court Order barring him from posting inciting messages on social media.
“The accused should not to engage in the same conduct that is subject matter of the charge sheet,” he said.
In response to prosecution application, Munyoro said that the accused closed down his social media accounts on January 15.
Munyoro said Kuria’s mistake was only quoting a bible verse of Genesis 14:7 and that should not lead to his bail cancellation.
Kuria’s Lawyer said there were ongoing reconciliation meetings between the complainants who were National Cohesion and Integration Commission (NCIC) and the Law Society of Kenya (LSK) and the accused to try to resolve the matter out of court following the public apology last year.
Anglo Leasing scandal suspects Rashmi Kamani, Deepak Kamani (center) and Senior Counsel Ahmednassir Abdullahi leavingMilimani Law Courts on April 24, 2015.
BY SAM ALFANM.
A Nairobi Anti-Corruption Magistrate court has ordered the release of passports belonging to Anglo Leasing scandal suspects Deepak and Rashmi Kamani.
Anti-corruption senior magistrate Doreen Mulekyo on Friday morning ruled Rashmi Kamani and his brother Deepak are at liberty to continue with their normal lives until such a time that they are proven guilty.
Mulekyo overruled the prosecution’s objection to the release of the travelling documents on the grounds that they had not demonstrated in their submission that the two accused presented themselves for trial without a warrant of arrest being issued against them.
“The apprehension by the state while understandable is nonetheless in my view unwarranted bearing in mind that the accused were not arraigned pursuant to a warrant of arrest ….. Notwithstanding that one of the accused persons has always been domiciled outside the jurisdiction,” Mulekyo ruled.
She said it was highly unlikely that the suspects would go against societal norms and expectations and abandon their aged father with whom they have been jointly charged.
“The accused persons’ travel documents may be released to them temporarily, pending commencement of the trial on July 20 to enable them (to) attend their domestic and business concerns,” the magistrate said.
Director of Public Prosecutions, Keriako Tobiko, has strongly opposed the release of passports belonging Anglo Leasing scandal suspects Deepak and Rashmi Kamani.
The DPP argued during the hearing of the application that, there were no compelling reasons advanced by two billionaire brothers to justify the variation of the conditions imposed on them to secure their release pending the hearing and outcome of the criminal case against them.
The two men were required to post Sh3million cash bail and to deposit their passports and other requisite travel documents by the Chief Magistrate in charge of the anti-corruption court, Doreen Mulekyo on March 5.
Senior assistant director of public prosecution, Nicholas Mutuku, said the Ethics and Anti- Corruption Commission (EACC) is actively investigating other controversial Anglo-leasing type contracts, in which companies associated with the two suspects were allegedly involved in fraudulent dealings. Once enough evidence is gathered by the agency, the firms are likely to be charged soon, he said.
Rashmi has given indication that he wants to visit his ailing wife in Dubai and the United Arab Emirates (UAE) while Depaak seeks to travel to India, Pakistan and China for business engagements.
The prosecution said there are no binding extradition treaties between Kenya and the designated countries the two men intend to visit. “Once they have left the jurisdiction of this court, there is no proper mechanism to ensure that the suspects will be available in the designated countries, making it difficult to access them in the event of imminent need,” Mutuku explained.
However, Senior Counsel Ahmednassir Abdullahi and lawyer Paul Nyamod protested there were no valid reasons advanced by the prosecution in opposing the applications, since the two suspects are Kenyans. They have been jointly charged with their ailing 84-year old father, Chamanlal Kamani.
The two lawyers said the suspects surrendered themselves to the court once the EACC charged them with the alleged offences and they were unlikely to unlikely to abscond. The countries they intended to visit were members of the United Nations, in which Kenya was an active member and signatory to its international treaties.
Earlier the two brothers had pleaded with anti-corruption court magistrate Peter Ndwiga to release the passports to facilitate “overseas travel during the Easter festivities”, but he declined.
Mr Ndwiga directed their lawyer, Paul Nyamodi, to make a formal application and allow Mr Tobiko to respond.
The Kamanis are among eight suspects, including former government officials, charged over the high-profile corruption case linked to international fraud companies.
The Kamanis have challenged their prosecution claiming that the case involved civil contractual agreements “that, in some instances, were part performed”.
They argue the criminal proceedings against them are an abuse of power by the Jubilee government for political reasons.
Last year they moved to court to stop the Kenyan government from releasing information to Swiss authorities in relation to the controversial Anglo Leasing contracts
The Kamanis wanted Attorney General Githu Muigai barred from acting on a request by the Swiss Federal Attorney for information about them relating to money laundering and dealings with companies implicated in the Anglo Leasing scandal.
They argued that the AG had publicly stated he would act on the request alleging that the three were involved in money laundering between 1999 and 2004 and could be extradited to Switzerland to face prosecution.
The Kamanis are linked to companies that were awarded 13 out of 18 Anglo Leasing security contracts.
The remaining five went to Sri Lankan businessman Anura Perera, who was recently paid Sh1.4 billion by the Jubilee government.
Vetting Board declared judges Emmanuel O’Kubasu, Samuel Bosire, Riaga Omollo and Joseph Nyamu unfit to serve the Kenyan judiciary.
BY SAM ALFAN.
The fate of eight High Court suspended Judges, who were found unfit to serve the Judiciary three years ago, was sealed on Friday when the High Court ruled it had no power to entertain their grievances.
A five-Judge bench led by Justice Isaac Lenaola confirmed the decision made by the Supreme Court on November 5, last year, which recommendations for their removal by the Vetting of Judges and Magistrates Board (VJMB) were final.
The only lawful option was to dismiss the petitions by three former Court of Appeal Judges, R.S.C. Omolo, Samuel Bosire and Joseph Nyamu and four High Court Judges Jeanne Gacheche, Mary Ang’awa, Muga Apondi and the late Joyce Khaminwa, who had protested violation of their fundamental rights, the court declared.
The other suspended Judges who had challenged their removal were Justices Emmanuel O’Kubasu, Leonard Njagi and Mary Murugi Mugo.
The bench, chaired by Justice Isaac Lenaola, agreed with Senior Counsel Paul Muite-for the Judicial Service Commission (JSC) and lawyer Charles Kanjama-for the Law Society of Kenya (LSK) that the High Court must obey executive declarations by the Supreme Court. It re-affirmed that the Supreme Court’s decision was binding and there were no contradictions or conflicts in two judgments regarding the role of VJMB in their removal.
Muite had argued that the tribunal’s recommendations had found the top judicial services unfit to serve and the court had the duty to protect tax-payers’ money since they continued enjoying salaries and other fringe benefits without working for it
But the suspended Judges had reiterated they could only be legally removed by the President and not through unlawful means. The President was their sole appointing authority and there existed constitutional machinery and safeguards to sack them, they had claimed.
Veteran lawyers John Khaminwa, Steve Mwenesi and Ochieng Oduol told a five-Judge bench that the tribunal’s findings that the Judges deserved to be shown the door have never been gazetted and there was no decree by the Supreme Court that could enforce their removal.
They told Justices Lenaola, George Odunga, Mumbi Ngugi, Pauline Nyamweya and William Musyoka that the Sharad Rao-led tribunal’s mandate was limited to interrogate the conduct of judicial officers since their appointment and the promulgation of the new Constitution. The Supreme Court’s decision that the board enjoyed exclusive power to handle the disciplinary cases with finality did not have the force of the law and was inconsistent with the Constitution, they said.
In their contested decision, Dr Mutunga, Deputy Chief Justice Kalpana Rawal and Justices Jacton Boma Ojwang, Philip Tunoi, Smokin Wanjala and Njoki Ndung’u had reiterated that the nine-member board enjoyed constitutional protection and the outcome of its vetting could not be challenged before any court of law.
They had overturned decisions made by a five-member High Court bench on october30, 2012 and by the five-member Court of Appeal bench on December 18, 2013, that the vetting board was a creature of Statute and its findings could be challenged before the High Court.
Lawyer Ken Ogeto for Kenya Pipeline Corporation Managing Director Charles Tanui.
BY SAM ALFAN.
A company that has sued Kenya Pipeline Corporation over a Sh43 billion pipeline construction from Mombasa to Nairobi wants the court to admit new evidence in the case.
Lawyer Paul Muite who is representing Ruhrpumpen Global Ltd told Justice Fred Ochieng at the High Court in Nairobi, that the court will have lowered its integrity if it declines the new set of evidence.
In the suit, Ruhrpumpen has sued Zakhem Construction Ltd and the managing director of KPC Charles Tanui for allegedly influencing the later in awarding a sub-contract to Japanese Ebara Corporation.
The contract involves the supply of booster and mainline pumps that will be fitted along the second pipeline from the port city to Nairobi to boost uptake. The tender was signed between Zakhem and KPC on July 1, 2014 to upgrade the pipeline between the two cities after beating 12 other bidders.
Ruhrpumpen argues that a decision to award the tender to Ebara will result in the loss of Sh391 million of public funds.
In court documents, it indicates that it quoted Sh1.4 billion while Ebara quoted Sh1.8bn. A third company Flowserve quoted Sh2.04 billion.
Muite said the court has come of age and the evidence should be admitted so that it gives a clear direction for the case.
“The court has the responsibility to protect its integrity by admitting the evidence,” the senior counsel argued.
In the new set of evidence, Ruhrpumpen indicates that the decision to award Ebara the sub-contract with an additional Sh391 to the tax payers will result in the delivery of a more expensive equipment of lesser efficiency.
The documents indicate that Ruhrpumpen’s booster and mainline pumps have 82.80 per cent pump efficiency, 96.00 per cent motor efficiency and has an energy usage of 17,477,430 kilowatt per hour (Kwh) annually compared to Ebara’s that have a pump efficiency of 78.5 per cent motor efficiency of 96.00 per cent and an energy usage of 18,434,793 annually.
“Unless the court intervenes the applicant will suffer extreme prejudice and the respondent`s decision will occasion great loss of public funds,” the documents say.
On Tuesday, KPC objected to new evidence saying the case is pending for a ruling and new evidence is not admissible.
Ogetoo and Otachi Company Advocates in the objection said the application by Ruhrpumpen is an abuse of court and should be struck out.
“The purported discovery of new evidence is not ground for opening a matter that is pending for ruling. The applicant should wait for the outcome of the ruling and take further steps as it may wish,” Ogeto said.
Ruling will be delivered on May 5.