Month: September 2015
Deputy Chief Justice Kalpana Rawal is rooting for homegrown solutions and more collaborative response when seeking sustainable security sector reforms and dealing with cross-border crimes in the region.
Speaking during the Africa Forum on Security Sector Reform at AU Commission in Addis Ababa, Ethiopia, this week, the DCJ said that incidents of insecurity and crime are assaults on the democratic fibre of the nation as well as the principles and values enshrined in the Constitution.
In her address titled “Sustainable Security Sector Reforms in Kenya: Reflections from the Judiciary,” Rawal noted that solutions for the sector reforms lie with victims of insecurity adding that tackling the problem will promote justice and the rule of law.
“Emphasis ought not to be the generation of norms and principles, for example, supranational institutions and apex courts, rather, the solutions for sustainable security sector reform lie with those who most acutely experience the ravages of insecurity,” Justice Rawal said.
She added: “Those without voice and without access who make up the vast majority of our continent’s peoples’ must be given a voice through processes such as this African Forum. Any sustainable and hence effective security sector reform can only be achieved with attention to grassroot dynamics and the local context.”
Saying that such forums were important since the security challenge is not only for a country, a region, or a continent but a global one, Rawal called on all the participants at the forum to foment concrete action on reform.
The DCJ said that beyond the traditional judicial function, a multi-sector engagement approach to security is essential to ensure the sustainability of reform.
She said that sustainable reforms require constitutional fidelity, multi-stakeholder cooperation, effective decentralisation of government functions, robust public and community engagement, and regional and international cooperation as well as an appreciation of increasingly important regional and global dynamics and institutions equipped to respond to the challenges these raise.
She however added that more needed to be done especially in regard to criminal and penal laws and the cooperation between municipal and regional juridical structures to enhance harmonisation and cooperation across the region.
The DCJ maintained that Judiciary remains the central institution in the achievement of sustainable reform since it is tasked with ensuring that no rights and fundamental freedoms are denied, violated, infringed or threatened
Political activist David Matsanga with Kalenjin council of elders lawyer William Arusei sharing a joke outside a courtroom at Milimani law court after the elders made an application to be enjoined as the interested party in a suit Matsanga is seeking high to compel justice Waki secret envelope be made public.
BY SAM ALFAN.
Kalenjin council of elders have moved to court seeking to be enjoined in a case filed to by an activist to compel Justice Philip Waki to reveal the contents of the secret envelope have urged the court to allow them to participate.
Matssanga through his lawyer Ngaruiya waithaka moved to court seeking high court to compel the appellate court judge, Justice Philip Waki report on the 2007/2008 post-election violence report made public.
The elders, under the umbrella of Myot Welfare Association, want to be enjoined as interested parties, in the case that was filed by activist David Matsanga.
Through lawyer William Arusei, the elders on Wednesday told Mr Justice Isaac Lenaola that the Waki report condemned the community without giving it a chance to be heard, hence their interest in the case.
The report the lawyer said, made various assertions against the community which have the effect of belittling, defaming and prejudicing the entire community.
The office of International Criminal Court Prosecutor Fatou B. Bensouda has replied to the High Court of Kenya request to participate in court proceedings filed by Ugandan Scholar David Nyekorach Matsanga through his lawyer Ngaruiya waithaka seeking to have the contents of the Waki envelope made public.
“Kenya High Court has no jurisdiction over my office or ICC as a whole” said Bensouda in her letter.
Bensouda through her letter to Kenya Ambassador to Netherlands Ms Rose Makena Muchiri says her office won’t and will not participate on High Court proceeding’s as requested through Chief Justice Willy Mutunga.
“My office won’t will not participating in High Court of Kenya proceedings” Bensouda says in her letter.
Bensouda used Emissary tactic to respond to the High court request under what is viewed as a way of avoiding to respond to the court directly that requested her office to participate to the proceedings.
The prosecutor claims that the office of the prosecutor enjoys immunity under both International and Kenyan law privileges and immunity.
“Immunity from legal process is similarly accorded to the court’s official and staff under Article 48 of Rome Statute and Article 9 A of the Kenya privileges and immunity Act”. Say Bensouda.
David Nyekorach Matsanga through his petition, he sought High court to issue an injunction to direct or compel the office of prosecutor of International court to take certain measures on the matter.
“The community was adversely mentioned in the report by the Commission of Inquiry into Post-Election Violence (CIPEV) which was chaired by Justice Philip Waki but their response, which is a requirement in law, was not sought before the report was published,” said lawyer Arusei.
He said the community should have been allowed to defend itself against the allegations made. According to the elders, unless the allegations are challenged, the past, present and future generations of the Kalenjin nation will suffer prejudice in Kenya and elsewhere.
The request has however been opposed by Attorney General through senior state counsel Njoroge Mwangi who said that the elders have not demonstrated the different contribution they will bring into the case which will not be addressed by the parties already in the case.
The court was also told that allowing the welfare association to participate will amount to duplication given that some of the issues they seek to raise, already form the substance of the case.
Mr Matsanga filed a petition to compel the government and the International Criminal Court to make public the contents of the Waki Report. He said that he has filed a case at The Hague-based court and needs the report to advance it.
The Waki report was presented to President Mwai Kibaki and Prime Minister Raila Odinga in October 2008.
The commission then gave an envelope containing the names of alleged perpetrators of the violence to Mr Kofi Annan, who brokered a power-sharing agreement between Mr Kibaki and Mr Odinga.
The names were finally handed over to Luis Moreno-Ocampo in early 2009, the then chief prosecutor at the ICC, after Parliament rejected an amendment Bill for a special tribunal to try the suspects.
A ruling will be delivered on October 30.
Some of the 16 current and former officials of Kihiu-Mwiri land buying company charged with murder of four director of the company in Kiambu and Murang’a counties at Milimani law courts on Wednesday 2 September, 2015.
BY SAM ALFAN.
Sixteen former and current directors of the controversial Muranga based Kihiu Mwiri land buying company have been charged with murder.
The officials however did not plead to the charges after the prosecution requested more time for the mental assessment report to be submitted in court.
The suspects had been taken to Mathare Mental Hospital to ascertain their sanity before pleading to charges against them.
High Court criminal division vacation Judge Jessie Lessit directed that that the plea to be deferred untilSeptember 21 awaiting mental assessment report and return of Judges from vacation.
Seven of the suspects have been in police custody for the last 28 days while the rest were arrested in the process of investigations.
State Counsel Catherine Mwaniki last week had made an application to detain seven of the 16 suspects for more 8 days to complete investigations.
She had said that more time was need for investigators to recover weapons believed to have been used in the murders and make more arrests.
Justice Nicholas Ombija gave the State until September 2 to either charge or release them.
The sixteen are accused of murdering Peter Kimani Kuria on May 10 at Kihiu Mwiri in Murang’a County.
They allegedly committed the offense jointly with others not before the court.
They are also accused of Murdering Paul Muhuhi Bernard on June 28 at Majengo Estate in Thika within Kiambu County.
The 16 are further accused of Murdering Josphat Kibe Nyoike on July 29 along Kihiu Mwiri in Murang’a County jointly with others who were not before the court.
The 16 suspects further faced a fourth count of murdering Zakary Chege Kiratu on July 29 along Kihiu Mwiri in Murang’a County.
Lawyers Evans Ondieki and Mbiyu Kariuki opposed the charges, accusing the police and prosecution of violating the Constitutional rights of the accused by holding them without charge for an extended period of time.
Justice Lessit however directed the counsels to submit their com plains in writing.
The 15 men will be detained at Industrial area Prisons while the one Lady at Lang’ata women prisons.
BY SAM ALFAN.
Three Game wardens linked with the killings of a protestor in Narok during demonstration against the Narok County Governor Samuel Tunai seven months ago have been charged.
Julius Dikirr was charged with the murder of Sikona Ole Muntet on January 26 at Narok County Government headquarters.
Warden Moses Kuiyoni faced a charge of attempted murder of Amos Kosion Losaloi by shooting him during the fracas.
Their co accused, Samuel Kishoyan was charged with causing grievous bodily harm to James Kimpila Ntempei on the same date.
The four denied four counts before Chief Magistrate Daniel Ogembo at the Milimani law court today morning.
Dikiri who separately appeared before high court judge Jesee Lessit did not plead to the murder charges.
The judge instead directed the prosecution to take him to Mathari mental hospital for mental assessment before he is arraigned in court on September 18 to formally plead to the murder charges.
Director of Public Prosecution made an application seeking to remand the accused until the matter is heard and determined due to security reasons.
The investigating officer Pauline Njoroge in a sworn affidavit states that investigation showed that the accused persons were culpable for the offences as started in the charge sheet.
DPP through Duncan Ondimu said the accused are facing serious offences and if released on bail they are likely to abscond bail and interfere with witnesses who are based in Narok.
“Based on the seriousness of the offence, the sentence to be passed if convicted and the evidence gathered so far ,there is a high likely of absconding by the accused hence them being flight risk” said in his affidavit.
He argued that the accused are licensed fire arm ho;lder and they are still employees of the Narok County Government where the crimes were committed and the witness in the case facing the accused are based in Narok county.
“The accused are based in Narok County and due to the nature of the employment of the accused, there is a high likehood of interfering with witness” said Pauline in her affidavit.
He said the witness in the cases suffered serious injuries which led to serious disability and they are vulnerable witness.
He further argued due to current prevailing volatile situation in Nairok County and considering public interest, bail should not be granted.
He also opposed the accused to be released on bail due to their own security and prevailing volatile situation in Narok County the accused security cannot be guaranteed.
However, the accused lawyer Kangai objected to DPP application saying the issues raised in the affidavit were speculative and the accused learnt about the arrest warrant through newspapers.
The suspects through their lawyer they told the court that they presented themselves to court after they learnt that a warrant of arrest had been issued against them.
Ogembo said he will deliver the ruling on Friday at 11 A.M whether to release the accused on bond or not.
On Friday last week 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.
Omogeni told trial magistrate, that it’s in good faith that the suspects have appeared in court and it’s upon the court to exercise its discretion and lift the warrant.
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.
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.
Lawyer Edna Arati (centre) leaves Milimani law courts accompanied by political activist Japhet Moroko,(left) and city politician Gitonga Wathanga, after hearing of an application seeking to have the parliament dissolved on the grounds that it have been unable to pass key constitutional bills before the August 27th deadline.
BY SAM ALFAN.
High court has declined to dissolve the parliament and directed the human activist to file and serve the petition to respondent.
Justice Mumbi Ngugi said she cannot issue expartie orders since she has not heard both sides.
Human rights activist wanted the court to dissolve parliament for failing to play it constitutional as it’s enshrined in constitution.
He argues that the decision by the parliament to extend the passing of the key constitutional bills by a year is unlawful.
Moroka want the current parliament dissolved and new parliament elected to allow it to enact the required legislation.
Moroka moved to court on Thursday to contest the decision by Parliament to extend the enactment of 28 Bills by twelve months.
Under a certificate of urgency, Japhet Muroko has accused the August House of unlawfully and procedurally doing so on August 25.
Consequently, the petitioner wants the decision by Parliament declared a nullity and the latter quashed by the High Court.
He has accused Attorney- General Githu Muigai of failing to legally advise the National Assembly that move is unlawful.
Muroko also contends that the A-G has neglected to consult with the Commission for Implementation of the Constitution (CIC) on the issue.
He now wants CIC compelled to prepare fresh bills in accordance to the 5th Schedule and Article 262 of the Constitution.
The activist insists that Article 261(1) does not allow Parliament to change titles of the Bills and ought to pass all legislation as specified without amending the Chapters.
And according to the petitioner, the current Parliament should be dissolved in accordance to Article 261(7) and a new Parliament allowed enacting the required legislation under article 261(8).
“ The High Court should declare that the National Assembly failed to enact all legislation as enumerated in the 5th schedule and in accordance to Article 261(1) and should therefore be dissolved forthwith,’’ he states.
He claims that the purported extended 28 Bills published by Commission for the Implementation of the Constitution and Parliament are not amongst the Bills enumerated in the 5th Schedule.
“The 28 bills extended by Parliament on the August 25 2015 are conspicuously missing in the 5th schedule,’’ Muroko claims.
Further, the petitioner wants CIC to furnish the High Court with all the Bills it timely prepared and forwarded for deliberation, reading and passing by the National Assembly.
In addition, he wants the provincial administration dissolved to enable Article 262(17) take effect under the constitution.
“District commissioners, division officers, chiefs and sub chiefs are stopped from conducting the functions not listed in the constitution,’’ he adds.
The matter is set to be heard on 8 of September for interparty.
The three Garissa County Executive officer from left to right: Idriss Muktar incharge of Trade docket, Muktar Burale (water) and Salah Yakub (Environment and Energy) who obtained orders restraining their sacking.
BY SAM ALFAN.
The embattled Garissa County Government governor Nathif Jama has suffered another major blow after the Employment and Labour Relations in Nairobi declined to vacate orders restraining him from sacking three county executive officers serving under his government.
Governor’s lawyer Ahmednasir Abdullahi made unsuccessful application seeking to vacate orders issued against the governor, arguing that the governor has powers to appoint and sack the county executive officers in his government.
Ahmednasir requested for clarification and subsequent vacation of the court order issued by Justice Wa makau.
However the vacation judge, lady justice Monica Mbaru extended the orders pending the hearing set for 21 September,Stating he should wait for 21st for argument and raiding of concerns.
The Employment and Labour Relations Court had earlier extended orders issued against Garissa County Government challenging court orders that called for their sacking from the County Executive officers..
“The order issued by Justice Nzioka Makau on 31 July preserving status quo ante be and hereby extended” said Justice Linette
Justice Linette Ndolo warned the county government against violating court orders issued against them.
Three Garissa County Executive Members through a lawyer Charles Kanjama filed an appeal challenging court orders that called for their sacking from the County Assembly.
Idris Aden Mukhtar, Mukhtar Bulale and Salah Yakub Falah filed the appeal seeking the reinstatement of interim orders issued by Employment and Labour relations Judge Nzioka Makau.
Justice Makau’s orders were set aside on July 27 by a ruling issued by Justice Hellen Wasilwa who said that three could not continue working for their employer, the County Government of Garissa, if there lacked an existing working relationship.
The three also want the Garissa Governor Nathif Jama ordered to appear in court to show because why he should not be cited for contempt and committed to prison for disobeying orders issued on July 27.
Mukhtar, Bulale and Falah also want any orders given to the Garissa Governor to restructure his ministries stayed until the appeal is heard and determined.
The three lost a bid to keep their jobs after the Employment and Labour Relations Court threw out orders reinstating them, a ruling they are now challenging in court.
They were dismissed from office in May this year but were later reinstated after the court ordered so.
Justice Wasilwa agreed with submissions tabled by the Jama led County Government stating that reinstating the three amounts to forcing an employee on an employer.
The County Government through lawyer Steven Mogaka challenged the orders issued reinstating the three arguing that they were issued exparte and the County did not get an opportunity to defend their stand.
The orders issued, Mogaka said, should not have been awarded at that stage without the court having listened to both sides.
“The court ought to have given the county government an opportunity to present its case against the three,” the lawyer said.
Mogaka told the court that the County had not acted in any malice when it made its decision to terminate the employment of the three.
He told the court that Muhktar and Falah were fired after they failed to satisfactorily explain a trip they took to Israel and Italy without authorization from the county.
Buale on the other hand, the court had heard, was fired for failing to explain the delay in establishing a water project proposed by the County.
Delay in commencing work on the water project, he said, is posing a health risk to the residents who are now forced to take muddy water.
He maintained that the court erred in issuing the orders before having listened to submissions from both parties in the matter.
” Reinstatement of an employee is a substantive remedy not temporary relief the law does not contemplate that reinstatement issues as a provisional measure it’s a remedy that should normally be granted upon the full hearing of the employer and employee ‘s case “he submitted.
Before the three were sacked, Mogaka said, they were accorded an opportunity to defend their actions and counter the allegations against them, which they failed to do.
“The county government has since restructured its ministries by reducing them from eleven to seven in a move aimed at reducing expenditures on the county finance,” he said emphasizing that the three have no position in the County Government.
The public, he further stated, have also been informed of the changed after a press statement was sent notifying of the changes.
The County, he said, has appointed Hajir Mohamed Dahiye, Mohamed Aden Noor, Abdihakim Sheikh Dayb, Halima Mohammed Haji, Ahmed Aden and Hubi Hussein as County Executives in charge of Agriculture, Water, Finance, Sports, Transport and Health respectively.
The matters to be heard on September 21 for inter parties and further directions.