Lawyer Kethi Kilonzo with Former Wajir South Member of Parliament Mahamud Muhumed Sirat outside Milimani law courts after trial Magistrate directed that the application for stay of proceedings and plea taking be argued on Monday 12.
BY SAM ALFAN.
Former Wajir South Member of Parliament Mahamud Muhumed Sirat has gone to court of appeal to challenge the decision to have him charged over his citizenship status.
Lawyer Kethi Kilonzo told Chief Magistrate Lucy Mbugua that intended prosecution of Sirat should be stayed pending the determination by the court of appeal.
She said that since an appeal has be en lodged at appeal court, the accused shroud not be allowed to take plea has directed by the high court judge Justice Grace Ngenye Machaira.
This is after the former Wajir South legislator appeared before a Nairobi Magistrate court seeking to stop his criminal proceedings pending the directive from the appeal court.
Nairobi Chief Magistrate Lucy Mbugua granted him near hearing dates saying that the court has a jurisdiction to hear that application.
Mahamud Muhumed Sirat had earlier been summoned to court to answer a criminal charge over allegations he is not a Kenyan citizen.
The two counts were filed by the Immigration Department on February 9, 2010.He made an application through his lawyer Kethi Kilonzo to differ his plea.
The prosecution rejected his application on the grounds that there was an order from the High Court directing him to take plea at the Magistrate court.
Lawyer Kilonzo in response said Muhumed had made an informal application on the same after that Judgment.
Prosecutor Dancun Ondimu said that the accused failed to file a formal application after the judgment. “It is not true that we did not file a formal application because we filed after the judgement, we are also awaiting court of appeal’s direction on the same,” said Kethi.
The former MP had raised an objection to the charge sheet. Lady Justice Ngenye Macharia directed him to take plea on April 23, 2015 where he moved to the Court of appeal.
Muhumed was dissatisfied with the directive and filed a notice of Appeal seeking orders for stay of proceedings before the magistrate court.
“We pray that this court stays its proceedings and the plea taking till the application before the Court of appeal is determined,” said Kethi.
State counsel Dancun Ondimu raised an objection to the application claiming that the court lacked jurisdiction to stay the proceedings.
“The accused should take plea as directed by the high court because we have not yet received the alleged application from the court of appeal,” said Ondimu.
According to him, the High court had directed the accused take plea at the magistrate’s court after it dismissed the application for stay of the proceedings.
He said that this was a multiplicity of applications as there is similar application at the court of appeal and it is an extremely old matter.
Kethi said that it is not the first time that the court has granted them stay saying that it had all jurisdictions.
She added that the prosecution was not genuine when they said that there is no application at the high court as it was made informally after the judgment.
She therefore requested the court to differ a plea pending the direction on the application before the court of appeal.
The five-year old citizenship criminal case against immediate former Wajir South Member of Parliament, Mahamud Muhumed Sirat, was re-opened afresh after the High Court decision that directed Sirat to take plea.
The politician was required to present himself before the Nairobi Chief Magistrate on May 4 and plead to the two-count indictment that was first filed by the Immigration department on February 9, 2010.
High Court Judge Grace Ngenye-Macharia on Thursday ruled that all immigration cases filed before the new Constitution took effect on August 27, 2010 were valid and must proceed to their logical conclusion.
She threw out Sirat’s appeal challenging the decision made by former Nairobi Chief Magistrate, Gilbert Mutembei-on February 9, 2011-blocking his bid to block his prosecution. Sirat received a reprieve on February 16, 2011, when the High Court indefinitely suspended his criminal trial on February16, 2011.
The Immigration Department had filed the case against the former MP alleging that he was Australian but he declined to plead, arguing he was a Kenyan and not an alien. Sirat had protested that the case was meant to stop him from pursuing an election petition he had lodged against his political rival Abdirahman Ali Hassan.
Sirat, who had vied for the seat on an ODM-Kenya ticket, successfully petitioned the election of Hassan (Kanu) and won the by-election held in mid-October 2010.
Sirat had been charged with knowingly misleading Immigration officer William Okello that he was eligible for a Kenyan passport by failing to disclose that he was Australian. The alleged offence was committed on November 29, 2006 at Nyayo House in Nairobi.
The second count alleged that Sirat was found unlawfully present on Kenya at Nairobi South “C” Estate on May 25, 2008 without a valid pass or permit allowing him to be in the country.
The Judge reasoned that the charges preferred against Sirat were not inconsistent with the Constitution and the politician was presumed innocent until proven guilty. “It is only in a criminal trial that it shall be established whether Sirat legally acquired his national Identity Card. It is the outcome of the criminal proceedings that shall determine whether or not be was genuinely registered as a Kenyan citizen,” she said.
Justice Ngenye-Macharia recalled that Sirat had secured High Court orders on October 9, 2009 quashing a deportation order issued by former Immigration minister, the late Otieno Kajwang, on May 23, 2008, which described the former parliamentarian as a prohibited immigrant and a threat to national security.
The Judge observed that the court had held that it was unlawful for the former minister to have issued the deportation order before confirming how Sirat had acquired Kenyan citizenship in the first place.
“Effectively, evidence must be adduced in respect of whether Sirat gave misleading information leading to his acquisition of Kenyan citizenship,” she pointed out.
The trial Magistrate directed that the application for stay of proceedings and plea taking be argued on Monday 12.