Month: May 2015

DPP WITHDRAWS FRON CHARGING FOUR NAROK LEADERS.

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Narok Senator Stephen Ntutu, MPs, Moitalel Kenta, Senator Tutu brother Patrick Ntuntu, Johana Ngeno and Korei Lomein at Milimani law Courts Nairobi on Thursday, May 21, 2015.
BY SMART NEWS TEAM
Director of public prosecutions have withdrawn charges against Four Narok elected leaders who had been charged of incitement.
One person died during Narok town protests in which police officers are being investigated by the Independent Police Oversight Authority (IPOA). The security officers are said to have used excessive force on mwananchi.
The DPP’S office through Prosecutor Daniel Karori expressed before Principal Magistrate Kipchumba Cheruyiot that evidence in the investigation file does not meet the threshold to sustain the criminal charges.
“I have instructions from the DPP that the evidence contained in the investigation file taken in its totality does not meet the threshold to justify a criminal prosecution against the respondents,’ prosecutor Daniel Karuri said.
Senator Ntutu, his brother who is Narok West MP Patrick Ntutu, Narok North MP Moitalel Ole Kenta, Narok South MP Korei Lemein, and Johanna Ngeno from Emmurua Dikkirr were accused of incitement leading to violence.
The four leaders led by Senator Stephen Ole Ntutu are being grilled to adduce evidence over the death that occurred during the protests.
Narok residents were in a march to the governor’s office to present a petition indicting him with corruption when they met live bullets from police officers; however, the leaders say they have reasons to believe that private guns were used.
Demonstrations thronged Narok town with clamour to oust Governor Samuel Tunai over corruption allegations that led to serious injuries and death.
It is on the said IPOA investigations that the office of the DPP has asked the court to withdraw the charges since the leaders are key witnesses in the inquest.
Initially, the DPP sought to charge them with murder following the deadly shooting of a protester during the demonstrations but the charge was dropped after more violence rocked the county.

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BUSINESSMAN TONY GACHOKA RELEASED ON BAIL.

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Political analyst Tonny Gachoka and his lawyer Edwin Sifuna at Employment and Labour Relations Magistrate Court in Nairobi after he presented himself to court following warrant of arrest issued by Magistrate after he failed to honor summons.

BY SMART SAM NEWS TEAM
High Court Wednesday gave directions to top Television host to conclude contempt proceedings bedeviling him at a magistrate’s court.
The Award Winning journalist had contested that the lower court had no jurisdiction to hear contempt proceedings leveled against him.
Seniour resident margistrate Maisy Chesang had issued arrest warrant against them for failing to appear in the court.
However, Justice Weldon Korir of Nairobi’s Mililani High Court Constitutional division said, “Though the applicants have an arguable case, they should appear before the presiding magistrate on June 5 and clear with her. Court orders must be respected.”
Korir pointed out that though Koinange and political adviser Tony Gachoka have an arguable case, the two should clear with the subordinate court which they aggrieved it.
The duos are through veteran lawyer and publisher of the Magazine “PLATFORM” Gitobu Imanyara, told the court they were not served with summons.
Imanyara said his clients could not be served with court orders due to recent rains which caused most parts of Nairobi to flood. On Tuesday, Koinange was arrested in his Kitusuru home.
Appearing separately before Senior Principal Magistrate Linus Kassan, the duos were charged for apparently discussing a subject which is subject to court’s jurisdiction.
Later on, they were released on a cash bail of Sh100, 000 and Sh50, 000 respectively. Gachoka presented himself before Kassan Tuesday afternoon.
Popular Jeff Koinange Live #jkl TV talk Show is mentioned in court records to be the platform where the alleged defamatory statements against Kwacha Group of Companies were uttered.
Jimi Wanjigi is a director of the group of companies playing an active part in the Nairobi Stock Exchange including Carbacid Investments Ltd which enjoys a near-monopoly in the supply of carbon dioxide for the beverage industry in East Africa.
The company has also stakes in East Africa Cables which manufactures electric cables, Kenya Airways, Paper house, Total (Kenya) and Barclays Bank.

The company directors, Messrs.’ Jimi Wanjigi and Sani Mbui Wanjigi told court that the accused ignored orders of the court not to discuss the company in the Kenya Television Network owned by the Standard Group.

PAY FORMER EMPLOYEES SH22MILLION, KMC ORDERED.

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Lawyer Patrick Lutta for former employees who were irregularly dismissed in 2011 at Milimani Law Courts after court awarded his clients Sh 22 million.
BY SAM ALFAN.
Former senior employees of the struggling Kenya Meat Commission were on Tuesday awarded Sh20.3 million for wrongful dismissal.
Former Internal Auditor Peter Mwangangi, Livestock manager Patrick Ekodere and Accountant Benjamin Kituku were awarded Sh9, 897,096, Sh5, 589,381, Sh4, 906,488 respectively.
Employment and Labour Relations Court, Nairobi, said the dismissal by KMC was unfair as labour laws were not followed.
The judge upheld the submission of the claimant’s lawyer Patrick Lutta to the effect that the termination of their employment was substantially and procedurally unfair to due failure by the board of the commission to prove that the same was for a valid reason affected in terms of a fair procedure.
“The admitted omission by the board denied it opportunity to establish a valid reason existed for the termination of the employment of three claimants” the judge said.
Justice Nduma said that the board has demonstrated by Mr Lutta for the claimants did not try at all to grant the three the opportunity to be heard and was unrepentant in that regard by saying that internal procedures permitted the deviation.
“The respondent blatantly admitted that it did not have to observe provisions of the employment act and that it did not therefore issue the claimants with a notice to show cause nor give them a hearing,” the judge said in the judgment delivered by judge Hellen Wasilwa.
He said KMC was unrepentant in giving the three an opportunity to be heard blaming it on the internal procedures of the corporation.
“I have variously stated this position in numerous cases and employers are advised to follow guidance by courts rather than regret later as often happens,” Nderi said.
He said it is good that employers invest in acquainting themselves in regard with the employment act than err and regret later.
In the suit, Mwangangi said he was employed on September 30, 2008 as an accountant for a period of three years.
He said on October 1 the same year, he was promoted to the position of a Chief Accountant due to dedication to work.
He said on July 12, 2011, his employment was terminated by the board on grounds that he failed to manage, control and account for most of KMC finances.
“Audited accounts for financial year 2010 were found clean thereby vindicating my good performance as the chief accountant,” Mwangangi said.
Ekodere was dismissed on July 12 on grounds of under performance, ineptitude and incompetence.
But in his defence, he said the accusations were unfounded as his contract had been renewed based on his good performance and therefore the termination was malicious.
“The alleged grounds were unfounded as I was not given an opportunity to defend myself,” Ekodere said.
Kituku in his defence said he was accused by the board of under performance, inability to manage and failure to provide the board with data relating to the operations of KMC while there was no documented evidence.

KALONZO MAY SUE NMG FOR LINKING HIM WITH 50M PAYMENT TO NYS.

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Wiper democratic Movement Kalonzo Musyoka who has issued a demand notice to sue Nation Media Group over an article published by Business Daily.
BY SAM ALFAN.
Wiper democratic Movement party leader Kalonzo Musyoka has issued a demand notice to sue Nation Media Group over an article published by Business Daily linking him with advance payment of Sh 50 million by Kenya Ports Authority to the National Youth Service.
In demand letter written by her lawyer Kethi Kilonzo, he says that the defamatory words were published in sensational and malicious manner without any regard for their substance.
The said article was published on April 2015 and the alleged advance payment by KAA was made when he was vice president and minister for Home Affairs.
The money was for the construction of an airstrip in his rural home and the writer of the article a tribute the information to auditor general report.
According to the article KAA reached an agreement with the NYS for the construction of the Tselkuru Airstrip in November 2012 , but the parties did not formulate the deal through the signing of an memorandum of understanding has required by law.
Kethi says that his client was not involved in the initiation, implementation or payment for the alleged project.
“My client was not involved in any payments of Sh 50 million that the article alleged was made” she says.
She points out that there is no such airstrip at rural home of the wiper leader as contained in the story that was carried in the front page and running to page four of the business paper.
The lawyer says that his client is held in high esteem in regard to National Leadership in East Africa Community and globally, the-written ought to have counter checked to establish the factual position before hand over the story for publication.
The article was published and distributed with sole intention of falsely and maliciously connecting Kalonzo with an audit report that does not contain information from those alleged to have been involved in the transaction, says the lawyer.
The said defamatory meant that Kalonzo is corrupt and that he abuse his office he held in private gain.
The article in its practical meaning implies that Wiper Leader was involved in irregular use of public funds by making the said payment of Sh 50 million.
Kethi further says that by publishing the article his client has been exposed to public scandal, ridicule, contempt loss of reputation and high standing amongst his colleagues and potential clients.
The lawyer has given NMG fourteen days to publish a suitable, categorical and equally conspicuous apology failure to which she institute legal proceedings against the media house.

JEFF KOINAGE CHEATS JAIL IN DEFAMATION CASE.

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TV show personality Jeff Koinange,Nicholas maraaro and his lawyer Edwin Sifuna chatting as they waited for ruling to be delivered which ruled Koinange to be released on a cash bill of Sh 100,000.
BY SAM ALFAN.
Seasoned TV show personality Jeff Koinange on Tuesday escaped jail by a whisker after the court released him on a cash bail of Sh100, 000.
Mr Koinange is facing contempt of court charges for failing to appear in person before the Chief Magistrate’s Court in a defamation suit filed by tycoon Jimi Wanjigi. The talk-show host was arrested yesterday morning outside his Nairobi home, five days after a warrant for his arrest was issued.
Resident magistrate Maisy Chesang ordered last Thursday that Mr Koinange be arrested alongside businessman Tony Gachoka after they failed to attend a defamation suit. Acting Chief Magistrate Linus Kassan held that the cash bail is sufficient to guarantee Mr Koinange’s presence in future proceedings.
However, the arrest warrant against political adviser Tony Gachoka is still in force who together with Koinange allegedly committed court contempt in KTN’s JKL show.
Senior Principal Magistrate Linus Kassan released Koinange at 3pm after being held for more than seven hours at Milimani Law Courts, Upper Hill, and Nairobi.
Though Koinange was not thrown into the cells, he was held at the prosecutions chambers after being arrested while leaving his Kitsuri home in the city.
“If someone can be arrested four days after a warrant is issued, that person can be termed as a flight risk. Having considered all arguments I order that Mr Koinange be released on Sh100,000 cash bail,” Mr Kassan ruled.
Kassan said since Koinange was arrested four days after the warrant was issued, it would be unfair to jail for the court contempt while he has filed another suit at the High Court challenging their arrest.
“Since there is a judicial review suit at the High Court, the contemnor is released on a cash bail of Sh100, 000 before he appears on the presiding magistrate on May 25,” he said.
He warned Koinange to respect the court saying though he is a public figure everybody must respect it.
Lawyer Nicholas Nyamai had earlier told the court that they wanted to arrest Koinange on May 14 as he was conducting JKL show at Intercontinental Hotel but he protested on the live broadcast that court bailiffs wanted to arrest him thwarting their efforts.
“After the announcement, we had to back-off and Koinange has been playing hide and seek since then,” the lawyer said.
On Wednesday, Justice Weldon Korir of the High Court will hear a case in which Koinange and Gachoka are questioning the jurisdiction of SRM Maisy Chesang who issued a warrant of arrest against the duo.
Both Jeff and Gachoka want the High Court to quash an arrest warrant issued against them for failing to appear for the hearing of a defamation suit filed by tycoon Jimmy Wanjigi.
Mr Koinange and Mr Gachoka have filed a suit seeking to stop their arrest arguing that the Chief Magistrate’s Court issued the order unlawfully as it does not have the authority to hear and determine contempt of court cases. The two also claim they were never furnished with the court summons.
Senior Resident Magistrate Maisy Chesang ordered for their arrest last Thursday after they failed to appear in person for the hearing of a suit Mr Wanjigi filed against them. Mr Koinange and Mr Gachoka now say they risk being jailed over an irregularly issued court order and without a fair hearing.
“The Chief Magistrate’s court lacks jurisdiction to try, determine and punish for contempt. Ms Chesang issued the order on the face of record before court that Mr Koinange and Mr Gachoka had never been served with any court order,” the two said.
Mr Wanjigi had earlier sued Mr Koinange and Mr Gachoka in the lower court for allegedly linking his firm-Kwacha Group of Companies-to the Anglo-Leasing scandal that saw taxpayers lose over Sh50 billion in irregular contracts awarded by the government.
Mr Koinange and Mr Wanjigi are alleged to have uttered the defamatory statements in two different episodes-on May 15 last year and on March 12 and 13 this year.
The tycoon, his brother Sani and Kwacha are the complainants in the civil case before Ms Chesang. They claim Mr Koinange and Mr Gachoka used defamatory remarks against them in a talk show hosted on a local TV station.
They hold that Mr Koinange and Mr Gachoka do not deserve the court’s audience on the arrest order as they have on several occasions in the past frustrated the hearing of the suit before Ms Chesang
The two allegedly discussed a defamation case which is in court against the Standard Media Group in which Koinange and Gachoka allegedly linked Jimi to the Sh56 billion scandal of Anglo-Leasing during the JKL show aired on March 12.
The scandal hit former President Kibaki’s first days in power.
The orders to arrest Koinange and Gachoka were issued after the two allegedly discussed Kwacha Group of Companies in which Jimi is a director despite having been served with orders.
The judge on Monday ordered the two to serve the Attorney General in their defamation case with tycoon Jimi Wanjigi.
The judge also ordered Koinange and Gachoka to serve Chesang.

KETER AND SONIA TO BE CHARGED ON WEDNESDAY AFTER HIGH COURT DECLINED TO STOP THEIR PROSECUTION.

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Lawyer Okongo Omogeni and nominated MP Sonia Birdi leaving Milimani law courts after High Court declined to bl;ck their arrested and prosecution.They will be charged tomorrow before a Naivasha courts.
BY SAM ALFAN.
Nandi Hills MP Alfred Keter and nominated MP Sonia Birdi are expected to be arraigned in court and face charges before a Naivasha Magistrates Court on Wednesday morning.
This was after Justice Mumbi Ngugi declined to grant orders sought by an application seeking to stop their prosecution.
In her decision, Ngugi said Keter and Birdi had not raised sufficient grounds to stop their indictment.
“There is nothing sufficient that would grant the interim orders sought by the petitioners. Consequently the court declines to grant the odds sought,’’ she ruled.
Justice Ngugi allowed the application by EACC and the Director of CID which have recommended their prosecution.
The two investigating agencies told the court that the two MPs have already been registered in a chief magistrate’s Court in Naivasha.
“The petitioners should not be given interim orders at this stage as they are seeking to deter a due process from taking place,” justice Ngugi heard.
Keter and Birdi moved to court five days ago asking the court to direct that they had not committed an offence that necessitates their arrest and charges in court.
Yesterday High Court has directed the Director of Public Prosecutions (DPP) Keriako Tobiko to respond to a petition by Nandi Hills MP Alfred Keter and nominated MP Sonia Birdi who are seeking court protection over intended arrest with 24hrs.
Justice Mumbi Ngugi said in order for the court to make a decision on the orders sought by Keter and Birdi the DPP’s response to their application was crucial since he is the government’s prosecuting agent.
The judge stated that due to urgency of the application the matter needed to be heard Tuesday since the petitioners were likely to be charged on Wednesday.
Keter and Birdi’s lawyer Okongo Omogeni told the court that if the application was not determined as soon as possible it could be overtaken by events and constitutional issues raised will not get a fair hearing. The two legislators Keter and Sonia moved to court last week seeking orders to block officers from Ethics and Anti Corruption Commission from arresting them over alleged corruption.
The two state officers want to the court to make a finding, which they have not committed an offence to warrant their arrest and arraigning in court.
Their lawyer Okongo Omogeni, told Justice Mumbi Ngugi that EACC is acting outside its power the MPS can only be charged under Anti- Corruption and Economic Crimes (ACEC) Act for suspected to have engaged in corruption.
Senior Counsel Omogeni submitted that EACC has maliciously and without legal basis sought to arrest the legislators and arraign them in court.
He told the court that the petitioners have not committed crimes under ACEC Act nor have they been investigated for any corruption related charge on economic crime..
The court heard that the petitioners can only be disciplined under the leadership and integrity which can be instituted by Parliament.
“It’s only parliament through the Speaker of the National Assembly who has the power to institute disciplinary proceedings against the petitioners” Omogeni told the court.
Justice Mumbi heard that the intended prosecution is merely political and discriminatory in nature which is meant to embarrass them.
Further the judge directed that if the petitioners are summoned by either EACC or police they should present themselves to record statements.
The two MPs are accused of assaulting public officers at the Gilgil Weighbridge in January this year, although they maintain they were simply exposing the corruption menace that is prevalent in weighbridges across the country.
In a video clip that went viral on social media, Keter and Birdi are seen to be engaged in an altercation with officials manning the Gilgil station, with insults hurled as Keter demands for the release of a lorry that had been detained.
“We will reverse the law… who is the owner of this company?” he is heard asking the officials there. “We are waiting to hear from whom? …Jesus Christ to call you?” Keter is heard shouting.
Following the circulation of the video, the Department of Criminal Investigations and the Ethics and Anti-Corruption Commission instigated a probe into the conduct of the two, eventually submitting that action be taken on them over the fiasco.
In his submission Omogeni told the Court that EACC was overstepping its mandate as Members of Parliament could only be charged under the Anti- Corruption and Economic Crimes (ACEC) Act if suspected of having engaged in corruption or corrupt activities.
“EACC has maliciously and without legal basis sought to arrest the legislators and arraign them in court,” said Omogeni.
He insisted the petitioners had not committed crimes under ACEC Act nor had they been investigated for any corruption related charge on economic crime and could only face action under the leadership and integrity Act instituted by Parliament.
“It’s only Parliament through the Speaker of the National Assembly who has the power to institute disciplinary proceedings against the petitioners” Omogeni told the court.
The leadership and Integrity Act states that legislators can be removed from office for demeaning the office they hold, compromising public interest in favor of a personal interest and also having a conflict of interest between public and official duties.
The matter will be heard tomorrow before Justice Mumbi Ngugi for further directions.

JEFF KOINANGE AND GACHOKA WANT COURT TO QUASH WARRANT OF ARREST ISSUED AGAINST THEM.

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Seasoned journalist Jeff Koinange who is seeking High Court to quash an arrest warrant issued against them for failing to appear for the hearing of a defamation suit filed by tycoon Jimmy Wanjigi. .
BY SAM ALFAN.
Seasoned journalist Jeff Koinange and controversial businessman Tony Gachoka want the High Court to quash an arrest warrant issued against them for failing to appear for the hearing of a defamation suit filed by tycoon Jimmy Wanjigi.
Mr Koinange and Mr Gachoka have filed a suit seeking to stop their arrest arguing that the Chief Magistrate’s Court issued the order unlawfully as it does not have the authority to hear and determine contempt of court cases. The two also claim they were never furnished with the court summons.
Senior Resident Magistrate Maisy Chesang ordered for their arrest last Thursday after they failed to appear in person for the hearing of a suit Mr Wanjigi filed against them. Mr Koinange and Mr Gachoka now say they risk being jailed over an irregularly issued court order and without a fair hearing.
“The Chief Magistrate’s court lacks jurisdiction to try, determine and punish for contempt. Ms Chesang issued the order on the face of record before court that Mr Koinange and Mr Gachoka had never been served with any court order,” the two said.
Mr Wanjigi had earlier sued Mr Koinange and Mr Gachoka in the lower court for allegedly linking his firm-Kwacha Group of Companies-to the Anglo-Leasing scandal that saw taxpayers lose over Sh50 billion in irregular contracts awarded by the government.
Mr Koinange and Mr Wanjigi are alleged to have uttered the defamatory statements in two different episodes-on May 15 last year and on March 12 and 13 this year.
The tycoon, his brother Sani and Kwacha are the complainants in the civil case before Ms Chesang. They claim Mr Koinange and Mr Gachoka used defamatory remarks against them in a talk show hosted on a local TV station.
They hold that Mr Koinange and Mr Gachoka do not deserve the court’s audience on the arrest order as they have on several occasions in the past frustrated the hearing of the suit before Ms Chesang.