Lawyer Cecil Miller for Muchanga Investment and Kioko Kilukumi for Telesource limited consult after justice Nyambura Gacheru gave directions for hearing of a Preliminary Objection application seeking to Stop criminal charges against Josephart Konsolo and other senior lands ministry officials over Ksh 8 billion Karen land controversy pending at environment court on Wednesday 3rd September,2015.
BY SAM ALAN
Director of public prosecution Keriako Tobiko will at the hearing of multi billion shillings Karen Land oppose the application seeking to halt the criminal case facing former National Social Security Fund managing trustee Josphert Konzolo on grounds that Land and Environmental division lacks jurisdiction to entertain criminal matters.
DPP says that ELC division is specialized court established under the constitution does not have jurisdiction to hear an application seeking to stop criminal proceedings commenced before the Anti Corruption court.
Mr Ashitava Ashimosi who represents the DPP will demonstrate that the issue of jurisdiction has not been properly invoked before the ELC court and ought to be determined be determined first.
He says in the preliminary objection to the application by Konzolo through his company Telesource.com that the DPP has not been made a party to the suit and no orders are sought against him to halt the prosecution of the criminal trial.
Mr Ashimosi, says that the mandate of the DPP under article 157 of the constitution is to represent the government in criminal proceedings and prosecute criminal cases, saying the his office has no interest in ELC matters which falls under the mandate of the attorney general.
.The criminal charges being challenged by suspended SC Charity Ngilu before the high court and the anti- court has not been made a party to the proceedings whose file has been referred to the CJ to appoint a thee judge bench to hear the petition challenging the constitutionality and intercity of EACC to recommend her prosecution.
He says that the applicant has not demonstrated abrogation breach, infringement, violation of constitution provisions to warranty stay of proceeding before the anti- corruption court.
“In any event even if the court were to determine the matter on merit the applicant ha snot demonstrated a prima facie case and exceptional and unusual circumstances that unless stay is granted then he will suffer prejudice” he says.
The court has been shown how a disputed multi billion shillings property located at Karen area, Nairobi was sold to Horatius da Gama Rose.
City lawyer Cecil Miller has given a demonstration to the court, that Barclays bank was entrusted to transact over the sell of the 134 acres of land.
The bank he said was given the power to dispose off the suit land on behalf of Arnold Bradley who passed on 1973.
The records at the land ministry shows that land belonged to Mr Greatham Norman, saying its the government official document that can tell who are real owner of the land in dispute.
Mr Miller said that in 1921 the land in question has tittle according the document that was shown to the court during hearing of the case.
He has taken the court through the records dating back between 1921 to 1978 when the property was sold to Muchanga Investment limited owned by Horatius Dama Rose.
The lawyer has submitted to the court that the land has several documents which differ in their dates, but official document from the bank clearly shows that the property was owned by Mr Bradley who gave the authority to the banking institution to dispose it off on his behalf.
The property in dispute has been claimed by Mr Jos Konzolo, a widow, Habenga Holdings limited and six other people.
The hearing of the application by Telesource .com the preliminary objection by DPP and Muchanga investment will be heard on September 3 before Justice Lucy Gacheru