Blog Page 136

TOBIKO WANTS ALADWA ANDKURIA BOND CANCELLED.

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Deputy Pirector of  Public prosecution Dr Leonard Maingi who is seeking bond cancellation against former Nairobi Mayor George Aladwa and Gatundu South MP Moses Kuria.

BY SAM ALFAN.

Director of Public Prosecution Keriako Tobiko has applied to the high court seeking bond cancellation against former Nairobi Mayor George Aladwa and Gatundu South MP Moses Kuria.

DPP through Deputy director of public prosecution Dr Leonard Maingi, says that  the two politicians have  continued to engage in  hate speech in violation of  conditions given them when they were separately released on bond.

Dr Maingi says that it against the order ot the court issued by the trial court, that  the prosecution seeks cancellation  of the bond terms  issued to the two politicians.

Justice Grace Ngenye of criminal division, was informed by the defence lawyer Dr John Khaminwa who represent Aladwa, that the application by the DPP was served late on them and sought more time  to respond

The court fixed the hearing of DPP’s application against Aladwa on January 6 while Kuria’s case will be heard on January 19.
Aladwa was charged with incitement to violence. He was released on bond of Sh 3 million with an alternative cash bail of Sh 500,000.

During the plea taking Nairobi Chief Magistrate Daniel Ogembo dismissed an application by the DPP seeking to have Mr aladwa detained till the case is heard and determined.

The prosecution asked the court to deny him bond on the grounds that there is an increased in hate speech and incitement cases in the country.

Dr Maingi told the court that even stringent bond terms had not deterred politicians such as Gatundu South MP Moses Kuria from making inflammatory remarks. He also cited Kiambu Governor William Kabogo’s remarks that he had the money to defend himself in court.

The prosecutor said Mr Aladwa uttered words indicating it was desirable to bring death to certain Kenyans and “in calling for the death of Kenyans, he challenged the existence of an open and democratic society”.

In Kuria’s case the DPP says that after being warned by the court when he was charged  he proceeded to  post in his face book words that  could lead to incitement to violence.

Dr Maingi says that on January 2015 he posted content to his Facebook page referring the bible verse Genesis 17.14 which refers to cultural practice on circumcision

The case will be a heard on January 20 for further directions..

SONKO WANTS KIDERO RETAINED IN A DEFAMATION SUIT.

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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 rubbles strips along Thika road.

BY SAM ALFAN.
Nairobi Senator Mike Mbuvi Sonko has opposed a bid by Nairobi Governor Evans KIdero seeking to be removed from a suit in which he’s sued by the senator for allegedly making defamatory statements that linked him with drug peddling.

Sonko through his lawyer Danson Mungata opposed Kidero application saying the governor was attempting to escape liability through technicalities.

“Nairobi governor Evans Kidero is attempting to escape liability through technicalities yet he uttered the offensive words linking Senator Sonko to drugs using his ambulances” Said Lawyer Mungatana.

Kidero through Prof Tom Ojienda made an application before Justice Njuguna seeking to be removed from the proceedings claiming that the star newspaper misquoted him.

Nairobi Senator Mike Mbuvi Sonko moved to court and sued Nairobi Governor Evans Kidero and the Star Newspaper for allegedly making defamatory statements against him depicting him as a drug peddler.

Justice Njuguna said that he will deliver aruling will be on 3rd March 2016.

Prior to the filing of the suit, the senator had given governor Kidero seven days to tender apology over statements he made at public gathering in June 22.2015.

Sonko says that the governor has engaged in smear campaign against him by issuing defamatory statements, which are considered to be scandalous and malicious.

The governor was quoted saying that the senator is a drug peddler who is using his ambulances and hearses to supply drugs to the slums, which allegation have continued to disparage his reputation and has caused him to be shunned by friends.

Sonko runs a rescue team operating under name “Sonko Rescue Team” meant to assist the needy in the society and manage disaster in times of crisis, saying that associating him with crime is unethical.
The allegations by the governor have a far reaching detrimental effect on the senator, who is a public officer.

The senator through his lawyer Danson Mungatana, says that his charitable organization has started incurring huge loses as some of contracts for provision of services to the poor have been cancelled.

The lawyer will be asking the court to issue injunction the governor to desist from making similar utterances against the senator.

The governor is said to have uttered the defamatory statements while addressing a public gathering in Mathare area Nairobi County on June 22 and same was published in the Star newspaper.

The article was carried with headline” Kidero says Sonko is a drug peddler”.

Kidero to know the fate of his application on 3of March 2016.

KIAMBU COUNTY FINANCE ACT REMAINS OPERATIONAL.

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Council of Governors lawyer Peter Wanyama leaving Milimani law courts after high court suspended an order stopping the operalization of the Kiambu County Finance Act 2015.

BY SAM ALFAN.
High court has suspended an order stopping the operalization of the Kiambu County Finance Act 2015.

The County is snow free to collect taxes from the local residents to enable it render services.
Justice George Odunga lifted the order he had earlier given in an application by Jamofastar Welfare Association, stopping coming to effect the new finance Act l 2015.

The judge was informed by the County lawyer Peter Wenyama, that members of the Welfare Association withheld material facts when they sought to stop the finance Act.

“There was completely non- disclosure of material facts by the Members of the association about the new finance Act 2015″ lawyer Wanyama said.

Mr Wenyama, told the court that County government can’t collect any revenue for services provisions to its residents, due to the halting order.

He said that Jamofastar intentionally mislead te court through non- disclosure in order to obtain stay of the operation of the finance Act.

” It untrue that Kiambu residents were not informed of the existence of finance Act, saying that there was an advert in local daily carrying the same message” he said.

The advert, he said was to solicit views from members of the public for the inclusion in the Finance Bill and the same message was posted at County’s website.

Mr Wenyama submitted that the same applicant the Jamofastar Association also send their memorandum expressing their views.
He told the judge that the consultation was done the sub county level, saying the 2013 and 2015 Finance Bill are totally unrelated.

The court heard that each Finance Act lapses at end of the respective year and can’t be used to levy taxes in the subsequent year.

The court directed the matter ne heard in January 19.

RETIRE AT THE AGE OF 70YEARS, COURT ORDERS DCJ RAWAL.

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benchA five-judge bench led by presiding judge, Justices Richard Mwongo, Weldon Korir, Christine Meoli, Hedwig Ong’udi and Charles Kariuki who ruled Deputy Chief Justice Kalpana Rawal will retire at the constitutional age of 70.

BY SAM ALFAN.
Deputy Chief Justice Kalpana Rawal has lost his bid to block her retirement age after High court ruled she will retire at the constitutional age of 70.

A five-judge bench of Justices Richard Mwongo, Weldon Korir, Christine Meoli, Hedwig Ong’udi and Charles Kariuki ruled that Justice Rawal was bound to abide by the 2010 constitution when she took an oath of office.

The judges said Rawal took oath of office under the current Constitution which sets the retirement of judges at 70 years.

“You cannot take marriage vows and claim to be single. You cannot therefore turn around and impugn the very same Constitution you swore allegiance to,” The judges said.

The judges have however faulted the Judicial Service Commission for issuing retirement notices, ruling that it was the job of the head of the Judiciary to issue such notices.
“Rawal must respect the oath of office she took for the same was not a child play. It was constitutional estoppel” said the bench.
The court said JSC’s executorial powers are to discipline and train.
Rawal’s lawyer Kioko Kilukumi told the court that they will to file notice of Appeal Monday morning.

He says they will seek conservatory orders blocking Rawal’s removal pending determination of appeal or until they can make same application before Court of Appeal.

Kilukumi said they need conservatory orders because the Christmas vacation begins on December 18 to January 13 and that Rawal will turn 70, two days after the end of the vacation period.

They said that since the constitution pegs the retirement of the Chief Justice at 70 years, the holder of the position of the Deputy Chief Justice cannot be allowed to retire under a different age requirement because it will be perpetuating an illegality.

Nonetheless, the judges said the Judicial Service Commission (JSC) erred in going ahead to advertise her position saying due process was not followed.

“We therefore quash the decision to advertise the position of the Deputy Chief Justice (DCJ) and direct the Judiciary to issue fresh notices of retirement because the one that the JSC did was done without authority,” adding “The JSC and the Judiciary are two distinct organs and therefore it was wrong for the JSC to make a decision requiring that judges who have attained the age of 70 years should not preside over cases.”

The JSC had advertised the recruitment of her successor in September. She will be retired on January 16, 2016.

PRIVATIZATION OF SUGAR FACTORIES SUSPENDED TO AWAIT COURT CASE OUTCOME.

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Transitional Authority through lawyer Steve Mogaka who filed the case seeking orders to halt the intended privatization of sugar companies leaving Milimani law courts.

BY SAM ALFAN.
High court has suspended the intended privatization of five sugar factories, pending the hearing and determination of a judicial review application challenging invitation for expression of interest.

Justice George Odunga, said until the hearing by all parties the application filed the Transitional Authority is heard there will no further advertisement inviting investors to place their expression of interest.

The judge directed that the application be served on Privatization Commission and attorney general and the matter be heard by all parties on January 19.

The Transitional Authority through lawyer Steve Mogaka, moved to court seeking orders to halt the intended privatization of Nzoia Sugar, South Nyanza, Chemeli. Muhoroni and Miwani sugar companies, saying the advertisement seeking invitation to forward expression of interest was premature.

The lawyer told the court that the advertisement placed by Privatization Commission which appeared in the local daily news papers of December 8 inviting strategic partners to invest in the five sugar factories lacked merits and is waste of public funds.

He said that the advertisement is in breach of section 35 of the Transition to devolved Government Act and the same should stopped to allow proper procedures to be followed.

Mr Mogaka submitted that the impugned acts violate Article 35 of the constitution which require any public entity to furnish any information before seeking request for expression of interest

“The process of invitation for expression of interest is procedurally and substantively in violation of express provision of the law” he said.

He said that Transition Authority has not been provided with information by the commission to enable it performs its statutory duty before invitation is carried out.

The court heard that any further expenditure which includes more advertising or invitation for expression of interest will be a waste of public funds.

Mr Mogaka said that, its better to protect prospective investors from wasting their funds the Privatization Commission has withheld information regarding, intended privatization of the five sugar companies.

He said that at the hearing of the substantive application, the court will be asked to quash, prohibit and compel the commission not advertise for expression of interest regarding the five sugar companies.

COURT ALLOWS WITHDRAWAL OF TATU CITY CASE FILED BY ITS DIRECTORS.

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Former Central Bank Governor Nashon Nyaga with his lawyer Nelson Havi leaving Milimani law court on December 3, 2015.
BY SAM ALFAN.
The court of appeal has upheld the decision of the superior court to allow the withdraw of civil suits filed by law firm of Havi and company advocates on behalf of two investment company, Tatu City and Kofinaf limited.

Appellate judges Erastus Githinji, Marha Koome and G.B. M Kariuki found and held that law firm of Havi and company advocates had no authority to file civil suits against seven directors of investment companies.

The judges disallowed the application by Nelson Havi purportedly filed by Tatu City, Kofinaf limited, former Central Bank Governor Nashon Nyaga and Vimal Shah against majority shareholders of Tatu City Investment Company.

The appellate judges said that having shown that by the resolution of board of directors dated September 16 kick out law firm Havi and company advocates and appointed Ahmednasir Abdullahi to represent the two companies.

They said that civil suits which were withdrawn by the high court order and endorsed by the deputy registrar, were filed in contravention of the resolution of Tatu City and Kofinaf board directors.

Havi he said to have filed suits against the seven directors after the resolution of Tatu Cityand Kofinaf confirming that he was not authorized to act on their behalf.

The two major holding companies of the controversial Sh240billion Tatu City project bowed out of the four-year legal wrangling between the warring foreign and local partners.
Commercial Division gave greenlight to the parent company, Tatu City Ltd and its main local subsidiary Kofinaf Ltd, to withdraw from the dispute pitting the foreign majority shareholders against their local minority partners.

The court’s deputy registrar approved an application by Senior Counsel Ahmednassir Abdullahi seeking the withdrawal of the two firms from the civil suits involving ownership of huge land holdings in Kiambu County that form the backbone of the ambitious project.

On September 16, all the directors of the two companies participated in a board meeting at the project site’s Tatu House to discuss circumstances that have created bad blood among them, resulting in the filing of a plethora of cases that have over-shadowed the development of the huge tracts of land.
The foreign shareholders accused their local partners, led by former Central Bank of Kenya (CBK) Governor Nahashon Nyaga and industrialist Vimal Shah of attempting to alienate and transfer more than 2,000 acres of land belonging to the companies.
But the two investors claim they have been side-stepped in the management and financing of the mega-project and have demanded a forensic audit of accounts.

The hearing of the dispute remains suspended after Commercial Court Judge Eric Ogolla declined to disqualify himself amid unsubstantiated claims of bribery and impropriety.

In a related development, international audit firm, Pricewaterhousecoopers, recently declined an assignment to scrutinize loan facilities advanced to the companies for the purchase of land following the fall-out between the parties.

The Directorate of Criminal Investigations (CID) has been investigating Nyagah over allegations that he used close relatives and cronies to irregularly transfer shares worth Sh 5.3billion in a grand conspiracy to defraud the parent company. The sleuths have recommended the prosecution of Nyagah and five other people.

Nyagah has been granted temporary conservatory orders stopping his arrest pending the outcome of his petition challenging the validity of the investigations.

Similarly, two lawyers, Nelson Havi and Michael Osundwa, have secured court orders stopping their prosecution involving changes in the in the shareholding and directorship of one of the firm’s subsidiaries, Purple Saturn Properties, that is connected with Nyagah.

In their petition, Havi and Osundwa said they were instructed by Purple Saturn, between February 24 and March 3, to change its ownership and management and duly informed the Registrar of Companies about the restructuring of the firm.

The proposed charge against the two lawyers alleges they conspired to defraud Kofinaf Company Ltd of its Sh5billion shares through Purple Saturn Properties Ltd.The offence was allegedly committed between June 13 and August 3.

SGR PROJECT STUMBLES ON YET ANOTHER LEGAL HUDDLE.

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Activist Okiya Omtatah Okoiti who has filed a petition challenging the procurement and construction of the Nairobi – Naivasha phase of Standard Gauge Railway.

BY SAM ALFAN.
Activist Okiya Omtatah Okoiti has filed a petition seeking to stop the procurement and construction of the Nairobi – Naivasha phase of Standard Gauge Railway.

Mr Omtatah says that the award of the lucrative tender to China Road and Construction Corporation was irregular and made in violation of the procurement regulation which require public advertisement to invite other competitive entities.

He seeks an order against Cabinet Secretary Ministry of Transport and Infrastructure and the Kenya Railway Corporation from signing documents to award the construction work to the Chinese company.

” The application and petition has filed raise substantive issues of law relating to fight against corruption in public procurement in government offices the sovereignty of the people and supremacy of the constitution must be protected” he says.

The CS, Kenya Railaway Corporation and the National Treasury are said to have contracted the Chinese firm to carry out the construction of Nairobi- Naivasha SGR phase without following procurement procedures.

When the matter came up for hearing before te head of constitutional and Human Right division head Justice Isaac Lenaola, he directed the petitioner to serve his application upon the CS transport, Kenya Railway Corporation and CS national Treasury and same be heard on January 14, 2016.

The judge said that issues raised by the petitioner can only be properly addressed when all respondents in the case have responded to application.

CJ WANTS MORE LAW STUDENTS TO TAKE UP LEGAL JOURNALISM.

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Chief Justice Dr Willy Mutunga speaking at a law student’s fete held at Strathmore University, where he was attending The Platform Magazine’s C.B Madan awards on Wednesday 9, 2015.
BY THOMAS KARIUKI
@thomaskariuki

Chief Justice Dr Willy Mutunga has urged law students to support and take up legal journalism.
He says that such initiatives will help nurture a patriotic culture of people’s courts.

However the CJ noted that woeful reporting on court decisions as well as reporting court proceedings is a great challenge.

“In most instances journalists emphasize on who has won and who has lost in a case. What is important in most of the cases that reach the superior courts are the principles laid down beyond the immediate interest of parties litigating,” Dr Mutunga said.

CJ Mutunga was speaking at a law students fete held at Strathmore University, where he was attending The Platform Magazine’s C.B Madan awards.

He said that objective reporting will anchor public participation in judicial processes, and speaks for the need to deal with the ‘brown envelope syndrome’ in the media. (A situation where cartels influence various stories in media outlets through bribery)
Dr Mutunga also suggested that there be a court reporting guild that will ensure “professionalism and independence of journalists from media owners who exert undue influence on journalists.”

“Probably, this can be developed to a level where we would have annual practicing certificates issued to those engaged in court reporting that ensures a regulatory regime that upholds minimum standards of ethics and competence,” he said.
Retired Judge John Michael Khamoni received the 2015 C.B Madan Award.
Recalling the struggle to award the judge in 1999, CJ Mutunga noted that after Kenya Law Society nominated Judge Khamoni for its award of distinguished service in the administration of justice the then Chief Justice the late Z. Chesoni directed as follows.

“Your said letter is returned herewith. The law society is not qualified to assess or evaluate the judges’ performance of their judicial duties. You are requested to note that in future the judiciary will not entertain any approach to issues which ignore protocol,” he said.

In light of that direction all the other judges boycotted the LSK award ceremony and Judge Khamoni was ordered not to receive the award.

CJ Mutunga said that a new era is here and there is a transforming judiciary which appreciates the dedication to serve Kenyans.

LSK thus presented the award of 1999 to Rtd Judge Khamoni whom the CJ said was the face and gait of justice before the 2010 constitution decreed and breathed in new values into the judiciary.

RETIRED JUDGE AWARD 16YEARS AGO FINALLY FETED.

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Senior Counsel Paul Muite handing over the award to Retired Judge, Justice John Michael Khamoni during the 2015 C.B Madan Award at Strathmore University, where he was attending The Platform Magazine’s C.B Madan awards.
BY SAM ALFAN.
Retired High Court Judge John Michael Khamoni has finally been awarded the prestigious award meant to immortalize the distinguished career of the late Chief Justice C.B. Madan.
The cold war of yesterday-years between the administration of the late Chief Justice Zaccheaus Chesoni and the Law Society of Kenya (LSK) was laid bare at the Strathmore University School of Law when Senior Counsel Paul Muite presented Khamoni the engraved silver platter for distinguished service during the third C.B. Madan award and memorial lecture.
Chief Justice Willy Mutunga said Justice Khamoni deserved this year’s award since he epitomized the late Justice Madan’s humility, modesty, humane nature and “a great missionary of justice.”Dr Mutunga personally apologized to Justice Khamoni “for being a victim of judicial mornachy.”
“Justice Khamoni has been the face and gait of justice long before the 2010 Constitution decreed and breathed in new values into the Judiciary,” Dr Mutunga said.
On March1, 1999, the then LSK Secretary George Kegoro had communicated to the Judiciary the decision of the LSK Council to decorate Justice Khamoni on March 20, 1999, during the inaugural ceremony at the Inter-Continental Hotel in Nairobi. The late Chesoni reportedly summoned all Judges and told them to boycott all LSK functions and warned Justice Khamoni against attending the ceremony.
One week later, on March 8, 1999, the former acting Senior Executive Officer in charge of Protocol, K.W.J. arap Towett, rebuffed the offer and returned the letter.
Towett said the LSK was not qualified to assess or evaluate the performance of Judges in their judicial duties. He warned that the judiciary would not entertain any approach to issues that ignored protocol, recalled LSK chief executive Apollo Mboya to an attentive audience.

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Surprisingly, this was followed by another letter dated March 11, 1999 from Supreme Court Judge Philip Tunoi, who then chaired the Judicial Training Committee, informing former LSK Chairman and now Senior Counsel Nzamba Kitonga that Justice Chesoni and the Judiciary could not, regrettably, participate in a training session on Alternative Dispute Resolution organized by the LSK in conjunction with the Canadian Bar Association.
On March 12, 1999, Kitonga wrote to the late Chesoni, through the then Chief Court Administrator and now High Court Judge William Ouko, explaining that the C.B. Madan award was conferred in recognition of ideals reflected in public litigation-focused as opposed to master-servant judgments. Further, it was meant to enhance a principled relationship between the Bar and the Bench, he had said.
When Dr Gibson Kamau Kuria replaced Kitonga, he wrote to Khamoni on March 25, 1999, to inform him that he had been honored with the award during LSK’s Annual Dinner held on March 20, 1999. Veteran lawyer Stephen Mwenesi had delivered the statement in support of the induction of the late Justice Madan to LSK’s Roll of Honor.

TATU CITY OPPOSES BID TO REKINDLE CASES AGAINST IS FORMER DIRECTORS.

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Embattled former Central Bank of Kenya Nashon Nyaga leaving Milimani law courts who together with other minority shareholders seeking to reinstate civil suits filed against its directors.
BY SAM ALFAN.

Tatu City and Kofinaf Company limited opposed an application by minority shareholders, seeking to reinstate civil suits filed against its directors.

Senior counsel Ahmednasir Abdullahi, told the court that former Central Bank of Kenya Nashon Nyaga and Industrialist Vimal Shah who are minority shareholders did not seek authority from majority directors to institute proceedings, that have now been terminated by the court.

He said that the two companies could have not sued its directors, saying that its same companies that applied to have suits withdrawn.

Mr Ahmednasir said that upon the suits having been endorsed by deputy registrar has withdrawn the remedy that Nyaga and Vimal had was to appeal against the decision to terminate the proceedings.

The same appeal should have been done within seven days of the decision of the deputy registrar, which was not done

Mr Ahmednasir told the court that there is no prejudice suffered by the minority shareholders by having the applications withdrawn.
He said that the high court has no jurisdiction to entertain the application by the minority shareholders

However, the minority shareholders are at liberty to challenge the decision by international investors of Tatu City Ltd and its main local subsidiary, Kofinaf Ltd, to exclude them from the management and control of the project.

Justice Eric Ogolla had acknowledged that the court’s deputy registrar had approved the October 22 application by Ahmednassir seeking the withdrawal of the two firms from the civil suits that have derailed the development of huge tracts of land in Kiambu County.

The aggrieved local partners, led by former Central Bank of Kenya (CBK) Governor Nahashon Nyagah and industrialist Vimal Shah, have opposed the move by the foreign investors to pull out of the civil suits, on the basis that the four-year legal wrangles cannot be resolved without the participation of the parent companies.

Nyagah and Vimal, who are represented by Richard Otieno Kwach and Nelson Havi, told Justice Charles Kariuki, that the withdraw of the suit was unlawful.

The bone of contention is the September 16 board meeting in which all the directors of the two companies discussed circumstances that have created bad blood amongst them, resulting in the filing of a plethora of cases that have over-shadowed the development of the project.

The foreign shareholders have accused their local partners of attempting to alienate and transfer more than 2,000 acres of land belonging to the companies. But Nyagah and Vimal claim they have been side-stepped in the management and financing of the mega-project and have demanded a forensic audit of accounts.

In a related development, international audit firm, Pricewaterhousecoopers, recently declined an assignment to scrutinize loan facilities advanced to the companies for the purchase of land following the fall-out between the parties.

The Directorate of Criminal Investigations (CID) has been investigating Nyagah over allegations that he used close relatives and cronies to irregularly transfer shares worth Sh 5.3billion in a grand conspiracy to defraud the parent company. The sleuths have recommended the prosecution of Nyagah and five other people.

Nyagah has been granted temporary conservatory orders stopping his arrest pending the outcome of his petition challenging the validity of the investigations.

Justice Kariuki will make a ruling on February 26 as to whether to grant the application by minority shareholders to reinstate the suits.