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BID BY KRA SEEKING ACTIVIST TO DEPOSIT SECURITY IN TAX SUIT FLOPS.

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Activist Okiya Omtatah leaving high court.
BY NT REPORTER.

Kenya Revenue Authority attempt to have activist Okiya Omtatah deposit security has failed.

The activist is challenging the proposed excise stamps on bottled water, juices, soda, nonalcoholics drinks, food supplements and cosmetics that are manufactured locally or imported products.

Justice John Mativo said that public interest litigation was meant to enforce constitutional rights and a requirement for security of costs would create an unnecessary barrier to aggrieved citizens.

Further the court directed the Kenya Revenue Authority (KRA) to file responses to the petition.

Justice Mativo also declined to lift conservatory orders suspending the new taxation regulation that was to take effect from November 1 this year.

“It is not enough to plead that a court order is causing hardship. It must be demonstrated that there are justifiable grounds to warrant the court to disturb its orders,” Justice Mativo said.

The learned judge extended the sanctions he imposed on October 30 pending the outcome of the dispute.

In the case Okiya is challenging the taxman’s decision, communicated in legal notices published on June 18 and September 5, 2013, creating the Excisable Goods Management System (EGMS) without public participation and sanction by the National Assembly.

Omtatah claims that the new system will illegally and unconstitutionally expose manufacturers, importers and consumers to the burden of meeting extra production costs.

“Contrary to the requirements of the Fair Administrative Action Act 2015, the EGMS was arbitrarily imposed without public participation involving all stakeholders, including, the affected manufacturers, importers, and consumers,” Omtatah said in his petition.

KRA’s directive was to come into effect from November 1.

In a notice in September KRA had indicated that all juice, bottled water, plastic bottled sodas, food supplements, energy drinks and cosmetics manufactures and importers will need to have the excise duty stickers on their products.

Currently an estimated 186 bottled water manufacturers and 28 soft drinks and juices manufacturers licensed by the authority pay tax.

OMAN CELEBRATES 47TH NATIONAL DAY.

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His Majesty Sultan Qaboos Bin Said All Said.

BY FOREIGN CORRESPONDENT.

Kenya and  the Sultanate of Oman enjoy cordial cultural, political and economic relations  which has brought major strides in all aspects of development.

Oman Ambassador to Kenya H.E Mr. Swaleh Suleiman Al-Harthy expressed the sentiments during  the occasion to mark the 47th National Day at a Nairobi Hotel.

T he chief guest Ambassador Tom Amollo who is the director of  political affairs at the Kenya’s Ministry of Foreign Affairs  express his deep gratitude to the Sultan of Oman  his majesty Qaboos bin Said Al-Said for his active  role and architect of the modern renaissance of Oman.

He praised the Sultan for fostering values of justice, equity which has gained the admiration of the  whole world.

CBK GIVEN GREENLIGHT TO PRINT NEW MONEY.

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BY SAM ALFAN.

The High court  has declined to stop the process of opening tenders for printing new Kenya currency which is set for today.

This means Central Bank of Kenya can now go ahead and open tenders for printing new design for Kenyan Currency.

Central Bank of Kenya has accused De La Rue for not disclosing all material and facts before the court.

It is grounds of opposition CBK says that the procurement process of currency banknotes commenced in the year 2014 following an advertisement for prequalification of suppliers for production on Banknote Origination Material and Currency printing services.

Lawyer Ochieng Oduol for CBK dismissed claims by De La Rue that the tender started in 2017.

Oduol told the court that De La Rue were not pre-qualified to tender nor invited to submit tenders or participate in the issued tender Number CBK37/2017-2018.

Oduol further submitted that the tender documents is a confidential document that is protected by section 67 of the public Procurement and Asset Disposal Act and therefore it cannot be disclosed except by an order of the court.

He claimed that the petitioners illegally obtained the tender Document in breach of the CBK right to privacy and the privacy of its communication with the pre-qualified tenders under Article 31 of the Constitution.

“The production of the Tender Document is in violation of sections 35 and 80 of the Evidence Act and is inadmissible as evidence in the present proceedings, “argues Oduol

The documents filed at the court CBK claim that the petitioners did not apply for pre-qualifications despite their knowledge of the same and therefore have no locus to challenge the procurement process.

CBK has asked the court to strike out the petition adding that the procurement process was fair, transparent, competitive and legal in accordance with the law.

“The respondents stands to fail to deliver on its constitutional mandate to Kenyan public, suffer serious and irreparable mandate to the Kenyan public, suffer losses, massive irreparable damage to the economy that cannot be atoned to in monetary terms,”reads court documents.

CBK says that the application filed before the court has been filed in gross abuse and that the currency printing tender process is security sensitive and strictly bound.

In the case Currency printing firms De LA Rue and De LA Rue Kenya EPZ Ltd moved to court challenging the Central Bank move of inviting tenders from foreign firms to print the new design Kenyan currency.

In the petition, they want the court to stop the tendering process pending determination of the case on grounds that the move will lead to irreparable harm to the local industry

They have accused the CBK of unlawfully restricting the tender process to foreign entities in violation of mandatory requirements guiding the procurement process.

They further argued that there is an increased national security risk in allowing the tender to proceed in its current form without due consideration given to the benefit of local production as well as destruction of the old notes.

De La Rue Kenya CEO, Ian Davies, argues that the law requires all public bodies including CBK to conduct a procurement process that is fair, equitable, transparent, and competitive and cost-effectiveness,” Davies said.

AG WANTS GOVERNOR PREVENTED FROM STOPPING ARREST.

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Taita Taveta Governor Granton Samboja who is seeking to stop his arrest and prosecution.
BY CORRESPONDENT.

Attorney General has asked the court to dismiss petition by Taita Taveta Governor Granton Samboja seeking to stop his arrest and prosecution over academic credentials forgery allegations.

AG together with  Inspector of General of the National Police Service in their grounds of opposition say that EACC has at all times acted within its respective constitutional and statutory mandate and the orders sought by Samboja are untenable as the petitioner has not sufficiently demonstrated with precision how the respondents has breached the constitution or any statute.

Further they say that  it within their  constitutional and legal mandate of to investigate and facilitate the prosecution of any acts of corruption, bribery , economic crimes violation of codes of ethics or other matters prescribed in the EACC act or any other law.

“This is not a proper case which the court ought to bring the anti-corruption proceedings to a halt since the petitioner will be afforded an opportunity to defend themselves, cross examine witnesses and adduce evidence in support of their case during trial and that’s the cause that the case ought to take.

Similarly they claim that Samboja’s attempt to seek courts help to halt or interfere with the lawful discharge of duties is in bad faith and meant to interfere with the legal bestowed upon the DPP.

“That the petition is misconceived, incompetent and bad in law and the orders sought by Granton Samboja are not tenable against the respondents,”

DPP is investigating Samboja on allegations that the governor does not possess the requisite academic qualifications and is suspected to have forged certificates and submitted false declaration during the 2017 General Election. The DPP argues that the investigations conducted by EACC are within their mandate and they have not violated any right of the governor.

Samboja has however maintained that he adhered to the law while vying for the electoral post as a candidate for the position of governor which he claims it indicated a clean bill of health from the electoral body as to his educational qualification.

He says that EACC actions are politically motivate and that there are external forces interfering with the investigations.

He wants the court to stop EACC and DPP stopped from investigating and prosecuting him over his academic qualifications.

RAILA BID FOR WAIGURU LIFESTYLE AUDIT DISMISSED.

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Kirinyaga Governor Ann Waiguru/FILE PHOTO.

BY NT CORRESPONDENT.

Blow to opposition  leader Raila Odinga after losing his bid to have  Kirinyaga Governor Anne Waiguru reveal her  lifestyle audit.

Justice Joseph Sergon dismissed the  application saying it lacked merit.

The learned judge said though the former Devolution CS has not responded fully to the queries demanded by Raila, the explanation she gave was satisfactory.

In the case Devolution Cabinet Secretary Ann Waiguru sued Cord Leader Raila Odinga through MohammedMuigai law firm over utterances in two public meetings linking her to the 791 million Shillings scandal at the National Youth Service (NYS).

Waiguru said that Odinga’s utterances over her alleged involvement in the scandal were false and defamatory and portrayed her as a common thief, an embezzler of public funds, corrupt in the extreme, a flagrant law breaker and unfit to hold public office.

Then, the former Prime Minister  released a dossier  alleging how   the state agency lost millions of shillings under the watch of the  former CS .

Raila, in the dossier claimed President Uhuru failed to include her name on the list of shame, which saw several senior government officials including CSs lose their jobs.

Immediately she filed the case, Raila asked a list of interrogatories,(questions) among them, Waiguru’s lifestyle audit.

She responded to the queries but Raila was not satisfied.

Raila had  sought among other issues her basic salary, allowances , a list of properties she owned including houses and cars and had also sought to find out how much they are worth.

The NASA leader thereafter filed another application accusing Waiguru of failing to respond to questions that would enable him defend the defamation suit.

The Kirinyaga Governor then accused Raila of fishing for evidence.

In the ruling, Justice Sergon said it cannot be said that Waiguru has outrightly refused to answer to the queries.

“I am satisfied the plaintiff respondent to the interrogatories in accordance with the provisions of section 22 (a) of the civil procedure act and Order 11 rules 3 Caps 2 of the civil procedure rules,” the Judge said.

He added that Waiguru had given reasons for not answering some of the demands, which she deemed unnecessary and irrelevant.

The Judge added that he was  satisfied that Waiguru responded to the interrogatories in accordance with the law.

In the case ,the Governor   wants Raila found liable as his assertions that she was aware of theft at the NYS meant she used her position to engage in corruption.

FORMER ASPIRANT CHARGED WITH IMPERSONATION.

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Patrick Ochieng Odipo before a Nairobi Anti-Corruption Court where he pleaded not guilty to impersonation charges.

BY NT REPORTER.

Amani Congress aspirant for Suna East constituency has been charged with impersonation.

It is alleged in the month of March 1994 Patrick Ochieng Odipo within the republic of Kenya , he presented to Kenya police Kenya Certificate of Secondary Education result slip from Sunghor Secondary School which had been issued to Ochieng Patrick of Index number 71028/001 by the Kenya National Examination Council and represented himself to be said Ochieng Patrick.

Odipo is also accused that 27 of June this year at EACC offices in Nairobi knowingly deceived Ethics and Anti-Corruption Commission investigators Pius Dhiwa and Jackline Makena that he had a Kenya Secondary Examination Certificate from Songhor Secondary School and Kenya Primary School Certificate from Middoti Primary school the fact he knew is force.

Similarly Odipo is accused of providing false information to EACC officers this year at the integrity centre in Nairobi.

Mr Odipo is also accused  of impersonation by presenting another person Secondary School Certificate to Presbyterian University of East Africa which was issued by Kenya National Examination Council to Ochieng Patrick.

Partrick faces three more charges.

He pleaded not guilty before Nairobi Anti-Corruption Senior Principal Magistrate Lawrence Mugambi .

He was released on a cash bail of of 300,000 shillings and a bond of 1 million shillings.

 

A NAIROBI HOSPITAL GIVEN SEVEN DAYS TO FURNISH LORD DELAMERE FAMILY WITH DECEASED SON TOM CHOLMONDERY MEDICAL RECORDS.

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M.P Shah Hospital Nairobi.

BY SAM ALFAN.

The family of Lord Delamere has been allowed to acquire medical records to ascertain the death of their kin Tom Cholmonderey.

M.P Shah Hospital should give those medical within seven days.

In a consent filed in court, Hugh George Cholmondeley, Fifth Baron of Lord Delamere has been appointed as the next of kin to the late Thomas Patrick Gilbert Cholmondeley for the purposes of the case he sued the hospital.

“Within 7 days from the date of filing this consent, the respondents do provide Lord Delamere with the requisite application for the release of a certified copy of the deceased medical report file,” reads the consent.

Following the consent high court judge Chacha Mwita agreed to withdraw the case.

Cholmondeley’s father had sued the hospital over failure to provide him with his late son’s health records has made him unable to administer the deceased’s estate which is at risk of wasting away.

Cholmondeley died on August 17, 2016 while undergoing treatment at the hospital after undergoing a hip replacement.

Among the documents the father wanted the hospital compelled to give him included the deceased’s medical history as recorded, pre-operative cause received, the operation and activities that took place in the operating theatre.

MP YUSUF RETAINS HIS KAMKUNJI SEAT AFTER HEATED CONTEST IN COURT.

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Kamukuji Member of Parliament Yusuf Hassan Abdi.

BY SAM ALFAN.

High Court has struck out petition challenging the victory of  Kamukuji Member of Parliament Yusuf Hassan Abdi.

This is after the petitioner Ibrahim Ahmed failed to deposit security of 500,000 shillings as required by the constitution.

The petitioner was also slapped with a cost of 2 million shillings.

“In view of fact that the parties had prepared for the hearing of the petition and the fact that the actual hearing did not take place, this court caps the costs to be paid to the respondents of 2,000,000 shillings,” ruled Judge Luka Kimaru

The requirement for the deposit of security for costs is mandatory as provided in the constitution. The court noted that the constitution does not give a petitioner who has not deposited the requisite security for costs leeway to choose when to pay the security for costs.

The petitioner had argued that he made an effort to pay the said deposit but was unware that the cheque that he had deposited had been returned for lack of funds in his account.

Judge Luka Kimaru however dismissed the explanation saying that it is not persuasive. The court noted that it was the petitioner duty- Ibrahim Ahmed duty to make sure that his account had sufficient funds.

“Requirement for the deposit for security of costs is a substantive legal requirement and is not a procedural technicality that this court can excuse or election time to enable compliance to be made,” reads the riling.

In the case area Member of Parliament had asked the court to dismiss the election petition saying that failure by the petitioner to make the deposit for security cost within the stipulated time of 10 days after the filing of the petition renders the petition fatally defective and unstainable.

STAREHE MP ‘JAGUAR’ DISMISSES ALLEGATIONS BY RIVAL.

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Starehe Member of Parliament Charles Kanyi Njagua swears before testifying in a petition challenging his victory on Thursday November 16,2017/PHOTO BY S.A.N.

BY SAM ALFAN.

I won fair and square, Starehe Member of Parliament Charles Kanyi Njagua has told the court.

Njagua also told the court that he won the election without manipulation as alleged by his bitter opponent Steve Mbogo.

While testifying in the election petition, Njagua told Justice Fred Ochieng  that the final votes tallied represented the will of Starehe voters.

The legislator disputed claims that voting went on in some polling stations when it was already dark despite the fact that that there was no light.

He also dismissed claims that some presiding officers were signing election forms before counting the votes.

He said that if there were any mistakes which he doubts there were, then they could be attributed to human errors.

Njagua said that the people voted him, he combed Starehe Constituency persuading voters to vote for him and that is how he emerged the winner with an overwhelming  majority.

Earlier, Mbogo had told the court that he was attacked and his agent stabbed.

He said he was denied entrance at some polling stations and claimed that there was massive ballot stuffing by Njagua.

He asked the court to order fresh elections for Starehe Parliamentary seat by IEBC.

Hearing continues Friday.

GOVERNOR SONKO THWART KIDERO BID TO JOIN PETITION CHALLENGING HIS VICTORY.

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Nairobi Governor Mike Mbuvi Sonko leaving high court after application by former governor Evan Kidero was dismissed with cost on Thursday November 16,2017/PHOTO BY S.A.N.
 
BY SAM ALFAN.

The High court has declined to enjoin former Nairobi Governor Evans Kidero in an election petition challenging the election of Mike Mbuvi Sonko.

Justice Msagha Mbogholi dismissed the application with costs saying it was misconceived and lacked merit and thus it cannot be allowed without resultant in justice to Sonko.

“There is a studious silence why the applicant did not take the opportunity provided by the law to file a petition within the directives set by law, he lost that chance and in my considered view the present application is an ingenious attempt to advance the course whose doors have been shut,” ruled the Judge.

Justice Mbogholi stated that to allow the application will amount to amending the law and the discretion of the court cannot come to his aid.

The Judge also noted that Kidero had admitted that he intends to call additional evidence including witnesses to support the allegations to challenge the election in the question.

“This goes outside what the petitions sets out and allowing the application will prejudice the overriding objective which this court is enjoined to uphold,” he said.

According to the Judge, participation of an interested party should not amount to introduction of new course all together.

He stated that the issues to be determined by the court will remain the issues presented by the principal parties or framed by the court from the pleadings and submissions from the interested parties.

According to the Judge, one of the principals for admissions of an interested party is that such a party must demonstrate that he or she has a stake in the matter before the court but the stake cannot take the form of an altogether a new issue to be introduced before the court.

“Any interested party who signals that he or she intends to steer the court towards the consideration of those new issues cannot therefore be allowed. The reasonable conclusion is that the application must fail and is accordingly dismissed with costs to the respondents to be agreed and if not to be taxed by the taxing master,” he ruled.

Kidero through lawyer Tom Ojienda wanted to be enjoined in the suit claiming that his aim to help the court to arrive to a better finding on the Nairobi gubernatorial elections that they were undertaken in accordance with the law.

The application was opposed by Sonko’s lawyers Cecil Miller and Harrison Kinyanjui and also IEBC.

Through his lawyers Harrison Kinyanjui and Cecil Miller, Governor Sonko told High Court Judge Msagha Mbogholi that the application is an afterthought and a backdoor application to challenge his election.

“Nothing stopped Kidero from filing the application or election petition within the prescribed time,” lawyer Kinyanjui said.

Lawyer Cecil Miller also questioned the motive behind ex-governor Kidero’s move to file the application 52 days after Sonko declaration which is outside the stipulated timelines to file election petitions.

The main petition will heard on 28, 29 and 30 November.