Suspended cabinet secretary Charity Ngilu with her lawyer Kioko Kilukumi at Milimani law courts following the lead counsel Paul Muite as he makes an application seeking chief justice Willy Mutunga to constitute a three judge bench to hear her case challenging her prosecution over the controversial Karen land in which she was charged for obstruction of evidence on the matter on Tuesday 28 July, 2015.
BY SAM ALFAN.
A petition filed by suspended Cabinet Secretary Lands Charity Ngilu has been referred to the Chief Justice Dr Willy Mutunga to appoint a bench to determine constitutional issues rose against the Ethics and Anti Corruption Commission to recommend her prosecution.
Justice Mumbi Ngugi, said that CS has raised constitutional issues similar to his counterpart Engineer Michael Kamau who as well challenged the integrity and legality of the EACC to have them charged over corruption and abuse of office.
The judge said the court will request the CJ to consider the two petitions heard together since they all raise issues with EACC.
Justice Mumbi directed lawyers Paul Muite, Kioko Kilukumi who are representing Ngilu to file their written submissions within a period of 14 days to allow EACC and the office of director of public prosecution to do same and the matter be mentioned on September 17to confirm compliance.
Ngilu says in her petition that the EACC is not constitutionally, legally and properly constituted and accordingly lacks the legal and constitutional mandate to conduct investigation and recommend for her prosecution.
She says that her prosecution is designed and intended to give forensic advantage to a specific party in a civil dispute pending before the high court where parties are fighting over Karen land which is a private property.
The said suit land which she is accused of preventing investigation is private property that doesn’t fall within the jurisdiction of EACC to investigate.
The CS argue that the land the subject matter of the offences facing her is currently at the centre of a court dispute pending before environment and land court that is between private parties claiming ownership of the property.
Ngilu through her lawyers argue that the decision to prosecute her was not taken independently as envisaged in the constitution. Saying that the same is colored by the directive issued by the President.
Muite says that impartial analysis of the prosecution evidence leads to the conclusion that no releasable prosecutor acting independently, competently and professionally could have arrived the decision to prosecute her.
He said at the hearing of the petition, the petitioner will demonstrate that the allegation involving the Karen land were not part of the EACC report to the President.
Justice Mumbi Ngugi heard that the petitioner will be at the hearing of the application seek an order to quash and prohibit the criminal case brought against her.