Month: June 2015

GOVERNMENT ORDERED TO PAY TEACHERS SALARY INCREMENT OF 50-60%.

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TEACHERS  WIN COURT CASE (2)

Kenya National Union of Teachers (KNUT) officials (left to right) Albanus Mutisya, secretary general Wilson Sossion and chairman Mudzo Nzili together with members of the union sing the solidarity song outside Milimani commercial court after Justice Nduma Nderi ordered the government to pay teachers a basic salary increment of 50-60 per cent.

BY SAM ALFAN.

Employment and Labour Relations Court has ordered the government to pay teachers a basic salary increment of 50-60 per cent.
“The court has upon careful consideration of the evidence before it found that the basic salary of teachers of between 50 to 60 percent for four years meets the wage review criteria set out herein before in this judgment and the court award the teachers accordingly. This award in reality translates to an annual award of between 12.5- 15%,” Said justice Nduma in his judgment.
Judge Nderi said he was optimistic that the decision would end the regular teachers’ strikes and bring order between TSC and the unions.
Judge Nduma Nderi also confirmed the allowances that had been offered to teachers by the Teachers Service Commission, including leave, house and commuter allowances.
“In line with the circular issued by the SRC July 4 2014, the Collective Bargaining agreement containing the 50 to 60 percent pay increase is effective from July 1 2013 and the same will expire on June 30 2017,” he stated.
He further decreed that the Teachers Service Commission (TSC) is the only body mandated to undertake a job evaluation of teachers, with the Salaries and Remuneration Commission (SRC) offering an advisory opinion.
“TSC is the employer of teachers and is the only body with the mandate to carry out a job evaluation of all teachers. Yes, the commission can receive advice from SRC but it is not bound to such advice. However TSC is not bound by the decision by the SRC to wait for a job evaluation exercise,” he ruled.
He advised TSC that it had abdicated its core mandate of determining teachers’ salaries as claimed by the Kenya National Union of Teachers (KNUT) and the Kenya Union of Post Primary Education Teachers (KUPPET) in their suit papers.
Justice Nderi further ruled that the Collective Bargaining Agreement should be registered between TSC and teachers’ unions within 30 days.
However, his Kenya Post-Primary Education Teachers (Kuppet) colleague Akello Misori insisted the ruling was not the end of teachers’ struggle for better packages.
“The allowances and increases already awarded to the teachers by TSC with effect from July 1, 2015 which include house allowance, leave allowance and hardship allowance, advance for motor vehicle purchase, mortgage facilities are hereby confirmed as awarded by the court and the items to be reflected on the Collective Bargaining Agreement for the period July 1, 2013 to June 30, 2017,” he stated.
The bitterly contested pay increase for teachers goes back to 1994, when the late Ambrose Adongo was Secretary General of The Kenya National Union of Teachers (KNUT).
The judgment, settled the long-running pay row the court has been arbitrating since January when parties agreed to the Judiciary’s intervention to end a nationwide teachers’ strike.
“The Economic Secretary told the court that government has consistently budgeted for a four percent basic salary increase for all public officers including teachers to cater for the loss of money value also known as inflation increase. It is common knowledge that the last negotiated salary increase to the teachers was in 1997,” Justice Nderi stated.
The unions had demanded a 300 percent salary raise alongside a raft of allowances which they wanted met before they could call off their strike.
Following many meetings with the government, the unions scaled down their demands to 150 percent and noted that the allowances would come after a salary hike.
They further maintained that an increase on basic salary was mandatory as it would set the pace for a CBA but TSC had stated that only Sh9.3 billion was available to enhance teachers’ allowances.
TSC had stated that the money was to cater for housing, commuting, and hardship and leave allowances under the offer. Other allowances proposed by TSC were special schools and units allowances which were to be pegged on a flat rate of Sh10, 000 while the current rates ranges from Sh1, 669 to Sh10, 908.
The land landmark judgment may not head the pay raise in education sector after the government through education cabinet secretary Jacob Kaimenyi has said.
Kaimenyi said this ministry will seek to comply with the ruling but if not satisfied will appeal.
“Do not celebrate yet, government will appeal the ruling because we cannot pay what we do not have and you cannot force us,” Kaimenyi said when he appeared before Members of Parliament on Tuesday.
The CS spoke hours after the Labour Court ordered that salary increment of 50-60 per cent with immediate effect.

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PARLIAMENT GIVEN 40 DAYS TO INTRODUCE GENDER BILLS.

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1 THIRD GENDER RULE JUDGEMENT (2)(1)
Lawyers Stephen Mwenesi and Judy Thongori (left) accompanied by activist Ann Njogu (centre),together with 2 thirds gender rule activist talk to the media outside Milimani law courts on Friday 26 June,2015.
BY SAM ALFAN.
Attorney General and the Commission for Implementation of Constitution were on Friday given 40 days to enact laws on the gender rule.
Justice Mumbi Ngugi said the actions of the two office holders of not meeting the August 17 deadline is a threat to the constitution.
The new constitution promulgated on August 27, 2010, espouses the rights of women as being equal in law to men.
Women are entitled to enjoy equal opportunities in the political, social and economic spheres.
The law obligates the government to develop and pass policies and laws, including affirmative action programmes and policies to address the past discrimination that women have faced within five years.
Ngugi said AG Githu Muigai and CIC chairman Charles Nyachae have failed to prepare the necessary laws for the two-third rule as ordered by the Supreme Court on December 12, 2012.
“The AG has a constitutional duty to prepare relevant bills on the issue and forward it to CIC,” she said.
Kenya Women Parliamentary Association (Kewopa), the legislators has been enjoined on a suit filed by a women’s lobby group.
This is after Kandara Member of Parliament Alice Wahome made an oral application before Justice Mumbi Ngugi seeking the women parliamentary organization to be enjoined on the matter.
Attorney General and the Commission for the Implementation of the Constitution (CIC) were directed to respond to the allegations that they have failed to provide legal framework in implementation of two-thirds gender rule.
Justice Mumbi Ngugi sitting in Milimani, Nairobi,directed them to file the response within five days of which the petitioners Centre for Rights Education and Awareness (CREAW) to respond to that reply in two days.
The non-governmental organization had accused Attorney General Githu Muigai of failing to provide relevant legal framework for the implementation of the two-thirds gender rule as stipulated in the constitution.
The Lobby group is seeking orders directing the AG and the Commission for the Implementation of the Constitution (CIC) to prepare the relevant Bill for tabling in Parliament as provided for in articles 27(8) and 81(8) of the Constitution.
Female MPs have vowed to fight a Constitutional Amendment Bill that seeks to postpone the implementation of one-third gender rule in the House as provided in the Constitution.
Under the auspices of Kenya Women Parliamentary Association (Kewopa), the legislators want the National Assembly’s Justice and Legal Affairs committee chairman Samuel Chepkonga to withdraw the Bill that seeks to push back the implementation of the deadline for realizing the gender rule, which falls due on August 27.
The lobby group moved to the High Court Constitutional Division challenging Parliament’s
failure to enact the two thirds gender rule as per a Supreme Court’s directive issued three years ago.
Centre for Rights of Education and Awareness (CREAW) through lawyers Judy Thongori and Wangeci Wahome, claimed that on December 11, 2012, the Supreme Court directed Parliament to make requisite legislative interventions by August 27 to realize this principle.
The lobby sued the Attorney General and the Commission on the Implementation of the Constitution.
The lobby argued that the law requires that before Parliament discharges this obligation, the sued parties ought to prepare the relevant bills for tabling before the house as to enable the enactment of the legislation within the specified period.
But the lobby claimed that the AG and CIC have declined to prepare the relevant bills for tabling before Parliament hence they are threatening to violate the said constitutional provisions.
“It is just, equitable and necessary that this court intervenes and in a timely manner make appropriate orders to compel the AG and CIC to perform their functions so as to avoid imminent violation of the Constitution,” Ms Thongori said.
According to CREAW’s CEO Anne Njogu, the lobby has a right to sue over the matter since it is a fundamental freedom in the Bill of Right which has been denied.
“A demand letter and a notice of intention to sue has been issued to the AG and CIC to do so but they have either been sluggish or have out rightly refused to honor the terms of the requests made, I verily believe that
considering the processes of enactment of laws from Bills where there are necessary constitutional amendments, there is a threat of violation,” Ms Njogu said.
CREAW alleged that the state is required to take legislative as well as other measures in ensuring that affirmative action programmer and policies are designed to compensate any individual or groups for past discrimination.
CREAW also alleged that the Constitution demands that the state should implement the rule that prohibits more than two thirds of the members of elective or appointed public bodies to be of the same gender.
The top Court had directed that the gender rule representation taking effect in the Senate and the National Assembly whilst the matter was allegedly referred to them as ‘hard gender quota’.
Following the directive, Parliament was required to legislate measures to ensure compliance with the gender equity rule in both Houses.
The lobby is therefore seeking a declaration that the sued parties have neglected to act in accordance with the Supreme Court directive hence they have violated their obligations.
They further seek a declaration that the refusal is a threat to a violation and want the AG and CIC to be compelled to prepare the relevant Bills for tabling before Parliament in order to implement the two third gender rules as per the ruling.
High Court judge Mumbi Ngugi certified the matter as urgent, set it for inter party hearing on Friday May 8 and directed the sued parties to respond.
“The Constitution requires that as a precursor to Parliament discharging the obligation, the first (AG) and the second ( CIC) respondents ought to prepare the relevant bills for tabling before Parliament as soon as reasonably practicable to enable Parliament to enact the legislation within the period specified,” said lawyer Judy Thongori who represented the lobby group.
Through its Executive Director Ann Njogu, (CREAW) further wants the court to declare that the AG and CIC have failed to prepare the bills and a further declaration that their actions are a violation of the Constitution.
Njogu maintained that the two institutions have gone against a decision by the Supreme Court, which had given an advisory opinion on December 11, 2012 calling for the introduction of legislation to ensure compliance with the gender equity rule.
The two-thirds gender rule states that not more than two-thirds of members of elective or appointive organizations should be of the same.
In the suit, Centre for Rights of Education and Awareness had sued the AG and CIC for not implementing the 30 per cent gender rule as directed by the Supreme Court three years ago.
Muigai in the petition argued that there is no guarantee that the number of nominated persons from the lists provided by political parties will ensure that the gender quota is realized

UNFREEZE KIAMBA ACCOUNT COURT ORDERS EACC..

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FREEZING ACCOUNT CASE RULING-LAWYER PHILIP NYACHOTI (2)(1)
Kiamba’s lawyer Philip Nyachoti leaves Milimani law courts after court ordered the unfreezing of more than Sh400 million in assets belonging to a suspended Nairobi government official ON Friday 25 June, 2015.
BY SAM ALFAN.
A judge on Thursaday ordered the unfreezing of more than Sh400 million in assets belonging to a suspended Nairobi government official.
Justice Mbogholi Msagah lifted the order blocking the accounts of suspended City Hall chief finance officer Jimmy Kiamba.
The Ethics and Anti-Corruption Commission had obtained orders freezing Kiamba’s accounts as they investigate him over alleged graft.
“Suspicion alone is not evidence that the money was ill-gotten,” Msangah said.
“There is no justification to extend the orders by another six months.”
EACC lawyer David Ruto immediately sought to appeal against the decision.
Kiamba had pleaded not guilty to any corrupt dealings. He is out on Sh2 million bails.
The frozen assets include four apartments in Kilimani, a town house in Kileleshwa two maisonettes in South C.
Kiamba also owns six cars and eight plots in Muthaiga, Mavoko and Machakos.
Apart from local accounts at CFC Stanbic Harambee Avenue, he had foreign accounts with transactions of more than Sh400 million between January and November 2014.
One CFC Stanbic account had Sh10.3 million and the second Sh4.1 million when they were frozen.
During the hearing last week, Ruto said EACC suspect Kiamba enriched himself with public money.
He said since investigations are still going on, the court should continue granting them an order to freeze the accounts.
The first order was granted last November 11.
However, Kiamba’s lawyer Philip Nyachoti opposed the extension.
He said since the first order was granted, his client has not been served. Nyachoti said the EACC is malicious as the suit is meant to “crucify” Kiamba in the belief he acquired the property fraudulently.
The lawyer said the property was acquired through hard work and registered under Jimise Limited and his wife Tracy Musau.
Suspended Nairobi County Chief Finance Officer James Kiamba, whose accounts were frozen over alleged corruption, has objected to the extension of orders blocking him from accessing his millions.
Mr Kiamba said the Ethics and Anti-Corruption Commission (EACC) had not given any evidence linking him to fraud.
The commission, however, said the assets had been preserved in the national interest because there were still doubts over the way the millions of shillings and other assets were acquired.
The commission said it was important to ascertain that there were no corrupt deals involved in acquiring the wealth.
The anti-corruption agency’s lawyer, David Ruto, said Kiamba cannot claim to be starving when he enjoys rental income that he collects.

NGILU SUFFERS BLOW AS SHE PLEADS NOT GUILTY OVER KAREN LAND PROBE.

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accused

Suspended land cabinet secretary Charity Ngilu when she appeared before Anti-Corruption court to face charge of obstructing of investigations on Karen land probe.
BY SAM ALFAN.
Suspended Land’s Cabinet Secretary Charity Ngilu’s suffered a major blow after her application to seeking her trial separately from her co-accused persons was rejected by the Anti-corruption Magistrate court.
Anti-corruption Senior Principal Magistrate Lawrence Mugambi dismissed the application stating that there was clear inter linkages to the other charges the other accused persons were facing as the main source was Karen land and all the purported charges allegedly happened at Ardhi house where Ngilu was the Land’s Cabinet Secretary.
Mugambi also dismissed Ngilu’s assertion that she will suffer embarrassment if she is charged alongside the ministry officials saying her charge was not scandalous.
“The defense counsels raised the issue of malice by the prosecution but no evidence was provided in the court. I find no merit in the application and therefore dismiss it,” said Mugambi in his ruling.
Ngilu had appeared in court last Friday but failed to take plea after her lawyers led by Paul Muite made application for the CS trial to be heard separately and expidiously.
Her lawyers Paul Muite and Kioko Kilukumi had argued that the one count Ngilu was facing was not related to the other charges the other eight accused persons were facing.
Muite had requested the court for a separate trial with a separate charge sheet claiming the charge was a stand-alone charge adding that the eight other counts were not related to that of Ngilu.

NGILU CHARGED (3)

“The charge Ngilu is facing is malicious as Ethic and Anti-Corruption Commission have not recommended any charges against her in regard to anti-corruption and economic act, she is just facing the charge of obstructing persons acting under EACC,” he had said.
He had argued that subjecting Ngilu to a prolonged trial in regard to seven count would be violating her constitutional rights.
Kioko Kilukumi had reiterated Muite’ statement saying that the charge will embarrass the suspended CS as it will take time and financially affect Ngilu who wants her name cleared.
He said that separating the cases will mean expeditious hearing for her trial besides saving judicial time and resources.
However Mugambi dismissed the claim stating that the issue of a prolonged trial was a role that all the advocates should play in ensuring the case was a speedy one.
Mugambi also dismissed an application by Jos Konzolo and Telesource to stay criminal proceedings against them due to an ongoing civil suit over the ownership of the Karen land.
The magistrate ruled that he lacks jurisdiction to entertain the application saying only the High Court can determine it.
Ngilu was finally charged with obstructing EACC officials during the probe on the Karen land. She denied the charges saying that she could not have obstructed the investigations because she is the one who wrote to the Ethics and Anti-Corruption Commission to investigate the matter.
The other seven co-accused persons also denied the charges of illegally transferring Karen land and trying to conceal it.
The case will be mentioned on July 13 to determine whether the prosecution had supplied the defense counsels with witness statements and documentary evidence they wish to rely on during the trial.

GARISSA GOVERNOR FACES POSSIBLE ARREST DPP OKAYS GRAFT CHARGES

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DPP Keriako Tobiko has upheld the graft charges by EACC against Garissa Governor Nadhif Jama.
DPP Keriako Tobiko has upheld the graft charges by EACC against Garissa Governor Nadhif Jama.

By SSN Reporter
The Director of Public Prosecution (DPP) has Okayed the charges against Garissa Governor Nadhif Jama Adan and seven others with various criminal offences regarding the alleged irregular lease of ambulance services.
Jama is facing possible arrest after the recommendations by Kenya’s top anti-graft body; the Ethics and Anti-corruption Commission (EACC) were accepted by DPP Keriako Tobiko.
In the latest release from Tobiko’s docket, Siaya Senator got off the prosecutors hook after DPP concurred with recommendations that the investigations file be closed for lack of evidence of criminal culpability.
Orengo has been under probe in an alleged corruption on a parcel of land registered as L.R. 1870/1/217.
Also, the National Water Conservation and Pipeline Corporation Managing Director, Evans Ngibuini was whisked away by the DPP against the allegations of irregular procurement of structural cabling of the NWCPC headquarter office block.
Ngibuini was also cleared off allegations of hiring unqualified staff into the National water Conservation Corporation.

GOVERNORS TO ACCOUNT ON PUBLIC FUNDS USE BEFORE SENATORS.

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COUNCIL OF GOVERNORS PETITION (4)
Lawyer Peter Wanyama (left), for Council of Governors together with Amanya Cohen (right) and Lawyer Winfred Nyamu for Machakos governor Alfred Mutua leaving Milimani law courts after court ruled it was proper and legal for the county chiefs to appear before the Senate Public Accounts Committee to respond to questions over mismanaged county finances.
BY SAM ALFAN.
Senator’s wins court battle to summon governors to answer questions on public management after three judge bench rules in their favor.
The five judge bench led by presiding Judge, Justices Isaac Lenaola, Mumbi Ngugi and George Odunga ruled that it was proper and legal for the county chiefs to appear before the Senate Public Accounts Committee to respond to questions over mismanaged county finances.
The judges held that Article 96 of the Constitution gives authority to the Senate to undertake an oversight function.
Governors had argued through their lawyer Peter Wanyama that the Senate could not personally summon them to appear before it to answer queries on use of county finances.
They had contended that the Senate was limited to oversight institutions which manage national revenue allocated to counties like the Treasury.
“The move by the Senate to summon us is total disregard of the procedure and requirements of public finance management under the Public Finance Management Act 2012,” the Governors argued.
However, the judges declared that the Senate does not have the sole constitutional powers to direct the National Treasury and Controller of Budget not to release funds to counties without following the provisions of Article 225 of the constitution.
The court said that stoppage of funds to a county public entity can only be done by following the provisions of article 225 of the constitution.
The Council of Governors believes that the Senate can only exercise its powers under Article 125 of the Constitution to scrutinize county financial and other records for purposes of making a determination with regard to impeachment
The petition concerns the constitutionality of summons dated 12 August last year issued to certain County Governors by the Senate through its seasonal committee on county public accounts and investments.
The summoned governors namely Isaac Ruto of Bomet County William Kabogo of Kiambu County, Mwangi wa Iria of Muranga County and Jack Ranguma of Kismuu County were to appear before the said committee on August 26 last year to allegedly answer questions on county financial management as raised in the report of the Auditor General for the financial year 2012/13.
In their petition, the petitioners questioned the constitutionality of the said witness summons and the constitutional power and authority of the senate to pass a resolution directing the controller of budget not to authorize withdrawals of public funds until satisfactory powers are provided by the petitioners to the audit queries.
According to the petitioners, the summons contravened article 226 (2) of the constitution which provides that the accounting officer of a county public entity is accountable to the county assembly for its financial management. They claim that in summoning the County governors, the senate is usurping powers of county assemblies and in any event that county governors are not
The judge declared that it is proper, legal and constitutional for Members of the executive committee responsible for finance to appear before the Senate or any of its committee to answer on county government finances and to generally provide information that helps the Senate to undertake its oversight functions as stipulated in article 96 of the constitution.
He also declared that the senate does not have sole constitutional powers to direct the National Treasury and Controller of Budget not to release funds to counties without following the provisions of article 225 of the constitution..
He issued a declaration that stoppage of funds to a county public entity can only be done by following the provisions of article 225 of the constitution.
An order to quash the resolution of the senate issued on August 2 2014 that purports to direct the National Treasury and the Controller of Budget not to release funds to Kiambu, Bomnet Kisumu and Murang’a Counties.
He dismissed a declaration which stated that the senate cannot summon governors to personally appear before it to answer questions on County government finances in total disregard of the procedure and requirements of public finance management that is stipulated by the Public Finance Management Act 2012.
He also dismissed a declaration that stated the senate cannot summon an accounting officer of the county government to answer questions on county financial management at the first instance.
He said it must fist allow the oversight and legislative mechanisms at the County level to be concluded given that these governments are functional distinct and are based on the principle of separation of powers.
He also dismissed a declaration that the senate’s power is limited to oversight over national agencies which manage national revenue allocated to counties such as the National Treasury.
The petitioners challenged the resolution made by the Senate and have submitted that it did not have any constitutional power to order the CS, National Treasury and the Controller of Budget not to authorize withdrawal of funds to the named counties.
The judge held that the senate cannot therefore act in disregard of the constitution and at the same time claim to exercise powers under the same constitution.
The judges held that it is clearly within the powers of the Cabinet Secretary to stop transfer of funds to county entities for the reasons stated under section 93 and 94 of the Public finance Management Act.
He can however only do so with the approval of Parliament as can be seen from the provisions of section 97 (2).
In this instant petition, it is the senate that initiated the stoppage of withdrawal of funds and directed the Cabinet Secretary to stop the said withdrawal.
He said the Senate has no powers to direct the CS to stop the transfer of funds allegedly while exercising its oversight role.
He said the grounds for doing so are also clear and one of them is not refusal by Governors to honor summons by senate. He said stoppage of withdrawal of funds is certainly not one of the ways that the court enforced the attendance of witnesses neither should the Senate purport to have such powers.
“It is our finding that the resolution of the senate directed at the Cabinet Secretary for finance and the controller of budget was not founded in law and cannot stand,”
He said it’s crystal clear that the senate has the mandate to receive the financial statements of a county government as well as the audit report of the auditor general.
It was petitioner’s contention that the senator’s roles are limited to making recommendations of the improvement of government public finances and we agree with the petitioners to that extent.
Petitioners council of governors, Alfred Mutua, Patrick Khaemba, Ahmed Mohamed, Wycliffe oparanya, James Onwae and Martin Wambora sued the senate.
Governor has vowed to appeal the three judge bench through their lawyer Peter Wanyama.

CIVIL SUIT MISPLACED, PLEADS KARUME ESTATE TRUSTEES.

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Njenga Karume property case (2)
Lawyer George Oraro, for Kurume Property Trustees, before Justice Alfred Mabeya, where he argued that the case was not properly at Milimani law court son Wednesday 24, June 2015.
BY SAM ALFAN.
Trustees of mulch-billionaire Njenga Karume on Wednesday said a civil suit against them by his children is misplaced.
Senior counsel George Oraro who is acting for the trust headed by Ngugi Waireri yesterday told High Court judge Alfred Mabeya that there was an ongoing succession suit at the Family Division which should be concluded first.
The courts Family Division handle’s succession or family matters while Civil Division hears cases that involve claims for property, debt or damages.
The suit in the Family Division is before justice Lydia Achode in which the three challenge their father’s will.
Making submission before the judge, Oraro said the suit which has been filed at the Civil Division is an abuse of court as the children should have waited for the Family Division to give out its judgment.
“The suit seeks to waste courts time as there is a succession suit filed in 2014 pending at the Family Division,” he said.
The lawyer said Lucy Karume, Samuel Karume and Albert Karume used facts from the affidavits of the trustees in the Family Division to build up their current case in the Civil Division.
The children accuse Waireri, Mary Nduta and Ngugi Gatabaki of interfering with Pizza Garden in Westland’s, Nairobi which is among the late Defence minister empire. Pizza Garden has a reputation of preparing finger licking pizza’s made from a traditional brick oven.
They accuse the trustees of operating in an opaque manner, neglecting them and failing to pay school fees and medical bills for Karume’s grandchildren.
Lawyer Peter Munge for the children yesterday said the trustees have never provided the beneficiaries with any books of accounts since Karume passed on.
He said the trustees have been conniving to lock out the children from the estate by operating in an opaque manner.
Munge said the children wanted the trustees barred from managing the estate as they have been operating in secrecy.
“The trustees have not conducted themselves as expected. The reason the beneficiaries moved to this court is because they want the estate preserved before they are removed,” Munge said.
He said the children have never seen a copy of the will drawn by Karume as they were only taken through a TV presentation.
The judge will give out a ruling within 60 days.