Month: August 2015

ARREST OF GAME WARDERS LIFTED.

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ARREST WARRANT ON NAROK WARDENS LIFTED (1)

Two Narok county government Wildlife Services wardens Moses Kuiyoni (right) and Samuel Kishoyan, at Milimani law courts where they appeared before senior principal Magistrate Martha Mutuku after the court had issued arrest warrants in relation to the shooting of demonstrator issued on June 30th.The court lifted the warrant pending taking of plea on Wednesday next week on Friday 18 August, 2015..
.BY SAM ALFAN.
Nairobi court has lifted a warrant of arrest against two Game warders linked with the shooting dead of a protester during demonstration against the Narok County Governor seven months ago.
Senior principal magistrate Martha Mutuku said that arrest warrant issued against Moses Kuiyoni and Samwel Kishoyan , but directed that they appear before Capitol Hill police station on Monday 31 for purposes of recording statements.
The two suspects through their lawyer Okongo Omogeni they told the court that they have presented themselves to court after running that a warrant of arrest had been issued.
Omogeni told trial magistrate, that it’s in good faith that the suspects have appeared in court and its upon the court to exercise its discretion and lift the warrant.
The court directed that the matter be mentioned on September 2 .
Last month while releasing Narok Senator Stephen Ole Ntutu and four MPs who are under investigations over chaotic demonstrations late January 2015 warned them to desist from taking part in any demonstration.
Earlier the DPP dropped incitement to violence charges against Senator Ntutu and four MPs Johana Ngeno (EmurwaDikir), Moitalel Kenta (Narok North), Korei Lemein (Narok South) and Patrick Ntutu (Narok West).
The five were discharged after the DPP found no evidence to prosecute them.
The DPP urged the court to release the five suspects on bond saying he had received information that chaos had erupted in Narok the same morning as residents protested the arrest of the politicians.
During the protests, one person was injured while businesses remained closed as angry youths barricaded roads leading to Narok Town.

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SACKING OF SECONDARY SCHOOL HEAD STOPPED.

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SACKING OF UHURU SEC PRINCIPAL STOPPED (2)
Lawyer John Swaka leave Milimani law courts after he obtained orders restraining city county director of education from sacking the principal of Uhuru secondary school principal Andrew Obanga on Friday 18 August,2015..
BY SAM ALFAN.
Nairobi City County Director of Education has been restrained from sacking a secondary school principal in the county.
Justice George Odunga issued the orders halting the Director from removing Andrew O. Obanga as the principal of Uhuru Secondary School and replacing him with his deputy
The restraining order will remain in place pending hearing and determination of the suit.
School’s Board of management through lawyer John Swaka filed the application, saying that the Director has overstepped his mandate by verbally firing Obanga and replacing him with his deputy Duncan Juma.
Lawyer told the court that the director’s action to remove Mr Obanga from his position and replacing him with his deputy will destabilize and paralyze the smooth learning at the school
The move the court heard was done arbitrary, unfair and contrary to the law.
Mr Sakwa told the court that the board it was apprehensive the illegal removal of the principal will paralyze learning in the institution and may lead to students’ unrest when school reopens next week.
“The institution stands to suffer irreparable loss if the decision to remove the principal is upheld more so because he was overseeing the resolution of a land dispute involving an 18 acre piece of land belonging to the school”.
According to the board, powers to fire and hire is bestowed on the Teachers Service Commission Under the constitution.
The judge directed that the matter be heard on September 3

COURT FREEZES EMBATTLED PASTOR NG’ANG’A ACCOUNT.

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PASTOR-NGANGA-COURT-CUEmbattled preacher of Neno Evengalism pastor James Ng’ang’a before a limuru court.                                                                                                                          BY SAM ALFAN.

Its another trouble for embattled preacher of Neno Evangelism James Ng’ang’a after the city businessman slapped him with another suit.                 This is after high Court froze the accounts of the embattled preacher after businessman Geoffrey Ndung’u sued the Evangelist, accusing him of swindling him of Sh2.3 million.

According to documents filed in court, Ndung’u says he moved the funds from his account to one of Neno’s in April of 2012 after receiving prayers from Ng’ang’a for mental problems.

Ndung’u says he was on medication for a psychotic break when he transferred the funds and was therefore not in his right mind.

He says efforts by himself and his family to have the funds returned to them have borne no fruit, leading to the suit.

In his replying affidavit, Ng’ang’a denied any knowledge of the funds being transferred into his church’s account but argues that in the event they were, it was received as a gift and gifts are not refundable.

“If such money was deposited in the church’s account, it was deposited without coercion, inducement and was an absolute gift,” the affidavit reads.

The case is slated for mention on September 22.

Ng’ang’a has in the past few weeks made headlines after being accused of causing the death of Mercy Njeri by dangerous driving.

He is out on a Sh500,000 cash bail and on Wednesday got some form of reprieve when the court refused to order a DNA sample from him.
He has challenged the charge and the associated charges of conspiring to defeat justice and providing false information to a public officer in the High Court.

It’s alleged that on July 26, while driving a Range Rover, he collided with a car which Njeri was driving.

He has also been charged with fleeing the scene of the accident.

On August 20, Ng’ang’a formally denied the charges before Senior Resident Magistrate Timothy ole Tanchu at the Limuru Law Courts.
The State counsel had sought to have Ng’ang’a compelled to undergo DNA testing in a bid to match a blood sample taken from the driver’s seat of the Range Rover to him.

Ng’ang’a has denied being behind the wheel of the car when the accident occurred.

SOCIAL DEVELOPMENT FUND ACT CONTESTED IN COURT.

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City lawyer Soyianka Lempaa at Milimani law courts after he filed an application seeking to stop the implementation of the new CDF regulation Act, which if passed by Senate and Parliament will place the previous act under the County Women Representatives.
BY SAM ALFAN.
A lobby group has filed a petition to the High court to challenge the legality of the Affirmative Action Social Development Fund Act 2015.
The Institute for Social Accountability through lawyer Lempaa Suyiaka , says the Public Finance Management (AASDF) regulations 2015 is unconstitutional has it is aimed at complementing the CDF Act which declared illegal by the court.
The institute through lawyer Lempaa Suyiaka , told high court judge George Odunga that the new Regulations establishes institutions similar to the ones declared unconstitutional on February 20 2015 under the CDF Act saying there exist ulterior motives behind the new regulations.
“ The object and purpose of the regulations is to complement the CDF Act by allowing the 47 women members of parliament to control funds designated for executive functions and which in character are to be administered in the manner that the CDF is administered” said the lawyer .
In order to safeguard public funds the court should consider that are illegal frame work in new regulations.
He wants the court to halt the Treasury CS from releasing monies to any institution created under the Fund pending hearing and determination of the application for judicial review
He says if the application is not heard urgently, the 47 county women representatives will expend public money on unconstitutional purpose and in violation of the rule of law when proper structures, activities and institutions have not been in place.
The lawyer further seeks orders against AASFD board and the Affirmative Action Development County committee from transacting any business until the matter is determined by the court
He says the regulations are unconstitutional as they offend the principal of public finance, division and separation of powers.
According to the lobby group, Parliament has set aside Sh 2,030,000,000 in the financial year 2024/12015.
“I have diligently searched parliamentary and other public records and I have been unable to find any record that the regulations were approved by either the national assembly or the Senate “he says.
He wants a declaration be issued that anybody established by the new regulations is illegal as it is created without the authority of the law and in violation of the constitution.

CJ TO APPOINT BENCH TO HEAR SUIT CHALLENGING THIRD GENDER RULE.

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Lawyer Stephen Mwanza Gachie for the human rights activist Solomon Gachira ,Audrey Mbugua (center) and human rights activist Solomon Gachira who filed a suit seeking orders to restrain the Attorney General from implementing of two thirds gender rule until the transgender are included leaving Milimani law courts after court directed the matter to be placed before CJ to appoint a bench.31 July,2015.

BY SAM ALFAN.
High court has directed the suit filed by activists Peter Solomon Gichira to stop the implementation of two thirds gender rule until the transgender are included in the directive to be placed before the Chief Justice to appoint a bench to hear the petition.
Justice Odunga the matters raised in the matter are serious constitutional and fundamental issues that needs to be addressed by a bench of three or uneven number of judges.
“This matter is weighty and has implications of law that can be adjudicated by a single judge but the three best placed to make the determination” said Odunga
Peter Solomon Gichira wants the Court to declare that the Two Thirds Gender Rule does not necessarily refer to men and women but includes ‘others’.
In his suit Papers, Gichira argues that the constitution does not define gender as just woman and man but includes hermaphrodites or a third gender.
“It is as a result of the contrived understanding of the term Gender to only mean men and women that a lot of people who could collectively be in the Third Gender Group have ended up being denied enjoyments of their rights as protected in the constitution,” he said.
Gichira added that gender identity disorder is not a disability of any form but in which there is a disparity between a people’s assigned sex and expressed gender identity.
He wants the two gender rule to consider transgender people who haven’t been recognized, yet live in the society.
The two-thirds gender rule is a constitutional requirement stating that no more than two thirds of elective and appointive bodies are composed of the same gender.
Gichira claims that the allocation of the 47 County Seats to Women representatives was on the misconstrued conception that only women are eligible and weak to compete with men in the electoral field.
“A few people should not be left out because they are not seen as male or female but with equal priority with others,” he added.
He said the transgender have suffered severe prejudice and marginalization and their general standing and it was time for their recognition.
Through his Lawyer Gachie Mwanza, Gichira claimed that the National Assembly will move to speed to beat the August 2015 deadline imposed by the court which was in contravention of the rights of the transgender.
“Unless the application is heard and determined, the people for who, the Petition is brought will suffer utmost prejudice and will be locked out from accessing their rights,” said his lawyer Gachie Mwanza.
Gichira Wants the State to make the necessary legal amendments to the constitution for allocation of special seats both Elective and Appointive positions.
Earlier High Court Judge Mumbi Ngugi directed the matter to be placed before Justice Weldon Korir for further directions.
Audrey Mbugua as a interested party on a suit filed by activists Peter Solomon Gichira to stop the implementation of two thirds gender rule until the transgender are included in the directive.
This after Audrey through her lawyer Colbert Ojiambo successfully applied through an oral application that Audrey be enjoined in the suit in which human rights activist Solomon Gachira have filed seeking orders to restrain the A.G from implementing the gender rule as earlier given by the court.
Justice Weldon Korir allowed the application by Audrey and directed the AG to file his response within 21 days.
Justice Korir declined to issues any orders saying the orders sought by the human rights activist Solomon Gachira cannot be granted at this stage.
He told his lawyer the matters raised in the matter are serious and he’s considering to place the matter before the Chief Justice to appoint the three judge bench so the issues of gender can be solved once for long.
Both Attorney General and human rights activist Solomon Gachira did not oppose the application but AG opposing the issuing of any order restraining him from implementing Justice Mumbi Ngugi directive dated June 26 the AG, senate and national assembly are under immense pressure to implement the one third to two third gender representation principle in the national assembly and the senate before August 27.
Earlier Nairobi based civil activist Okiya Omtatah has filed an application seeking to stop the execution a judgment on the two third gender rule.
Omtatah wants the court to suspend the orders of Justice Ngugi Mumbi directing compliance of Supreme Court’s advisory opinion.
He says that advisory opinion by the Supreme Court was an error which could lead to amending the constitution to allow the application of principles of the one third to two third gender representations in the national assembly and the senate.
He argues that the constitution of Kenya 2010 was enacted in the historical context in which provisions implementing the requirement for proportional gender representation which existed in the Bomas and Wako and several harmonized drafts were removed before the constitution was ratified.
Omtatatah submits that with that removal the issue of gender representation became a political and not judicial issue, sayi9ng the court had no jurisdiction to order AG and CIC to comply with Supreme Court advisory opinion on gender balance.
“The court of law has no capacity or jurisdiction to order the re-introduction into the constitution the provisions which the sovereign people themselves rejected” he says
He says the following the advisory opinion and the order of Justice Mumbi dated June 26 the AG, senate and national assembly are under immense pressure to implement the one third to two third gender representation principle in the national assembly and the senate before August 27.
The move taken by the AG, senate and national assembly requires the amendment of the constitution to remove to the political interest which violates the supreme law.
The application by the activist will be placed a duty judge this afternoon for orders and directions.
AG and CIC were taken to court over failure to table the relevant Bills to facilitate the implementation of the two thirds gender rule
The Centre for Rights Education and Awareness (CREAW) filed an urgent application seeking order to compel the AG and CIC to act as required by the constitution
According to CREW as it told the court the constitution requires that as a precursor to parliament discharging the obligation, first (AG) and (CIC)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,” the organization through lawyer Judy Thongori stated. Creaw through its executive director Ann Njogu further wanted the court
to declare that the AG and CIC have failed in preparing the bills and a further declaration that their actions are a threat and in violation of the constitution.
“Article 27(8) of the constitution demands that in addition to the measures contemplated in clause (6), the state shall take legislative and other measures to implement the principle that not more than two
thirds of the members of elective or appointed bodies shall be of the same gender,” she pointed out.

SONKO WANTS THIKA ROAD FREE OF BUMPS.

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Nairobi Senator Mike Sonko who has moved to court seeking orders to compel CS Infrastructure and Transport and Kenya National Highway Authority be compelled to remove bumps and rubble’s strips along Thika road leaves Milimani law courts.
BY SAM ALFAN.
Nairobi Senator Mike Sonko has moved to the court seeking orders to compel CS Infrastructure and Transport and Kenya National Highway Authority be compelled to remove bumps and rubble’s strips along Thika road
The senator says, that bumps and rubble’s located at the superhighway at the specific points which are identified as Survey of Kenya are the main cause of traffic jam along the busy road.
Today when the matter came up for hearing, the senator’s lawyer Harrison Kinyanjui, told the court that the congestion complaints of is not capable of being demonstrated on paper by way of affidavit evidence.
He told Justice George Odunga, that the bumps and rubble’s strips also spotted at Homeland, Kenya Breweries points; they must be made in such way to pave way for pedestrian to use footbridges along the highway.
The lawyer wants the court to visit the complaint pints for it make a determination on bumps and rubble’s strips which should be removed forthwith.
Mr Kinyanjui submitted that the CS, KNHA, Nairobi County Kenya Roads Boards and AG having not replied to the application for judicial review, the court should issue an order directing the removal of the bumps and rubble’s strips.
The court heard that the senator will at full hearing of the application demonstrate that he is not merely lodging proceedings for the sake of it, but to the intent that a just and fair decision for the benefit of highway user.
” Upon the court assessing for itself on two points then its discretion can exercised based on actual facts is fully verified by the court as opposed to deciding the matter without the benefit of such evidence” he said.
Kinyanjui said the impact of rubble’s trips and bumps can verify at around between 6.30 and 6.30 in the morning in the weekdays.
The court will make a ruling on September 2to determine whether to issue the orders sought by the applicant.

19 GOR MAHIA FANS CHARGED WITH ASSAULTS.

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GOR MAHIA FANS CHARGED (4)
Some of 19 Gor Mahia fans at Milimani law courts when they appeared before principal magistrate Martha Mutuku charged with 3 counts of going armed in public and creating disturbance, in relation to last weekend’s chaos at Nyayo National stadium during the match between Gor-Mahia and AFC leopards on Tuesday 25 August, 2015.
BY SAM ALFAN.
Nineteen Gor Mahia fans have been charged before the Nairobi Magistrate court with three counts.
They are accused of going armed with stones in public, creating disturbance in relation and assaults to the last weekend’s chaos at Nyayo National Stadium during the match between Gor Mahia and AFC Leopards.
They pleaded not guilty and they were released on a bond of 50.000 with surety of the same amounts. But they were denied cash bail pending a probation report.
The fourteen accused who is 16 year old was released on a free bond with guardian undertaking to produce him in court wherever needed he will be needed in court.
Court further directed the guardian to produce documents before the court showing that the 16 year old student will be in school when the trial will be in progress.
This morning they appeared before Nairobi senior magistrate Martha Mutuku but failed to plead to the charges after their lawyer, Jack Odhiambo, objected to their prosecution.
He said his clients were held in custody for more than 24 hours before being brought to court.
They are facing charges of being armed in public, creating disturbance and assault.
The football match was stopped in the 64th minute and was called off Sunday after officials failed to restore normalcy.
The chaos started after the referee awarded Gor a penalty after a Leopards player handled the ball in the box.
The suspects were arrested following a clash that led to the cancellation of the match between Gor Mahia and AFC Leopards on Sunday.
The matter will be mentioned on 8 of September for further directions.