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LAWYER KENNEDY OGETO NOMINATION CHALLENGED.

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Lawyer Ken Ogeto leaving high court. /FILE PHOTO.

BY NT CORRESPONDENT.

Activist Okiya Omtata on has moved to court seeking to suspend the nomination of Kennedy Ogeto as the solicitor general.

In the petition, he has again name president Uhuru Kenyatta as a respondent.

Omatta in the petition says that there was no public participation and therefore the president violated the law.

“Article 10(2)(a) which categorically provides that the national values and principles of governance include the rule of law, democracy, and participation of the people, “reads the petition.

He claims that by purporting to handpick and appoint Ogeto as solicitor general without him being first identified and recommended by the public service commission through a competitive and merit-based recruitment.

Omtata wants the court to restrain Uhuru, Public Service Commission, Ag and the speaker of National assembly from effecting the nomination of Ogeto.

He is further seeking for an order to stop the speaker of National Assembly from accepting Ogeto’s name for purposes of vetting.

In the petition, Omtatah says that the president is bound by the constitution and other laws of Kenya and has no capacity to act beyond or outside the law. He says Uhuru must uphold the provision and the spirit of constitution and statute.

‘It is of utmost importance that the impugned decision of president Uhuru Kenyatta are suspended to protect constitutionalism and the rule of law, the interest of the public and to protect these proceedings for being rendered nugatory,” argues Omtatah.

Omtatah also says that the court has a duty and the jurisdiction to stop the blatant disregard of the rule of law.

Further, he says unless his case is heard urgently and determined he and other Kenyans will suffer great loss as the constitution and the rule of law will continue to be violated and threatened.

On Tuesday the president made two more changes by appointing Kennedy Ogeto as the solicitor general and Njee Muturi shifting Deputy Chief of staff at the state house.

“I have also today nominated Kennedy Ogeto as Solicitor General and appointed Njee Muturi as Deputy Chief of Staff,” President Kenyatta said.

JUDGES AND MAGISTRATE BODY JOINS WAR AGAINST COURT ORDERS VIOLATION.

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The Secretary General of Kenya magistrates and Judges Association Derrick Kuto (centre) accompanied by (left to right) president of the association Jacqueline Kamau,Vice secretary general Muktan Sarat,vice president Everlyne Olwande and Treasurer Benmark Ekhubi address the media at the association offices at Milimani Law Courts on Friday February 16,2018/ PHOTO BY S.A.N.

BY SAM ALFAN.

The Kenya Magistrate’s and Judges Association ((KMJA) has joined the war against violation and failure to obey court orders by state institutions and condemned the recent attacks to the judicial officers and disobedience of court orders by politicians and senior civil servants.

The Association’s Secretary General Derrick Kuto accused politicians of targeting the Chief

Justice David Maraga and other judges in connection with the discharge of their duties.

“Every Judge, Magistrate or Kadhi subscribes to an oath of office to uphold the rule of law and protect the constitution Occasionally parties that come to court may be dissatisfied with decisions rendered by judicial officers. Parties have recourse in law in such circumstances.

It is therefore in bad faith for a litigant to target individual judges and Magistrates in the discharge of their duty”, he said.

Justice Jacqueline Kamau the (KMJA) president also faulted the political class for disobeying court orders.” Disobedience of Court orders will lead to total chaos.

The 2007 Post Election Violence occurred because people had no faith in the Judiciary “, she said.The association called upon Kenyans to support the Judiciary in its quest to defend the constitution.

“As KMJA we believe in the independence of the Judiciary even as we appreciate the interdependence and respect amongst the three arms of government.

The President Jacqueline Kamau added that there is no need of issuing orders that are not complied with.

“We call upon all Kenyans to support the Judiciary even as we appreciate the interdependence and respect amongst the three arms of Government,” said Kamau.

KMJA said the Judiciary even as the rule of law, steadfastly defend the Constitution of Kenya and diligently dispense justice without fear or favor.

They added that it is in bad faith for a litigant to target individual Judges, Magistrates or Kadhis in the discharge of their duties.

“It is, therefore, a matter of grave concern when court orders are disobeyed,” said Kuto.

The association has in various events condemned attacks on judiciary.

 

GIVE ME BACK MY KNUT SG JOB, SOSSION ASKS COURT.

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KNUT ex-Secretary General and nominated MP Wilson Sossion.

BY SAM ALFAN.

KNUT ex-Secretary General Wilson Sossion, now nominated MP wants his union boss seat back.

He told a Nairobi court that Teachers Service Commission TSC decision to remove him is driven malice, improper motives, and bad faith and are aimed at achieving vindictiveness and vengeance due to the firmness and position he took fighting for teachers welfare.

In an application filed at the Milimani law courts, Mr Sossion says that the decision by TSC is illegal and unprocedural.

He now wants the court to suspend it pending hearing and determination of the suit.

“The chief executive Officer /Secretary of TSC in her decision of 17th January, 2018 acted in violation of the rules of natural justice,”reads court documents.

Mr Sossion further holds that the power to terminate a teacher is regulated in law and that regulation is informed by the rules of justice and fairness.

The decision by TSC, he says is actuated by malice, improper motives, and bad faith and is aimed at achieving vindictiveness and vengeance due to the firmness and position generally taken by him in pursuance of the union mandate.

He says that he was entitled to a one month notice in writing or paying one month salary in lieu of notice.

He argues that the offence he allegedly committed warranting the drastic action by TSC is not one among those provided for under regulation 141 and 187 of the Code of Regulation for Teachers.

In a letter from TSC Chief Executive Officer Ms Nancy Macharia, the commission terminated Sossion and others as a teachers with effect from January 15, 2018.

“It has been noted that you were nominated as a Member of Parliament yet the Commission has not received your resignation or retirement letter,” the commission wrote.

 

MIGUNA MIGUNA CANNOT COME BACK TO KENYA YET, STATE SWEARS TO OVERTURN JUDGE DECISION.

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High Judge Luka Kimaru who a ruling on Miguna Miguna.

BY SAM ALFAN.

The government will seek redress at a higher court in Justice Luka Kimaru’s ruling on Miguna Miguna.

The judge declared lawyer Miguna Miguna’s deportation illegal.

The government’s position is that every procedure and law was followed before Miguna was deported to his country of origin-Canada.

In a letter sent to newsrooms by Interior PS Karanja Kibicho, the government said it respects the decision to overturn the deportation but they do not agree with it.

Judge Luka Kimaru ruled that the declaration by Interior minister Fred Matiang’i was null and void.

“The desicion by the director of Immigration is illegal. Inspector General and DCI acted together with Gordon to defeat the orders of this court.” ruled the judge.

He directed Immigration director Gordon Kihalagwa to surrender Miguna’s passports to court within seven days.

Miguna was deported to Canada after his active involvement of NASA leader Raila Odinga’s swearing in now christened a mockery to the country on January 30.

In his signature slogan, Miguna mocked the government ‘come baby come’ one which he had also used to de-legitimise Odinga’s leadership.

Miguna, a lawyer said from Canada that he would be back and noted that his Kenyan citizenship cannot be revoked as he was born in the country.

He said police should have taken him to the courts as judges ordered instead of seizing his passports and driving him to the JKIA.

Justice Kimaru earlier ordered Kihalangwa to swear and file affidavits explaining circumstances under which Miguna was deported.

TELECOS OFFICIAL CHARGED WITH STEALING SH80 MILLION FROM CITY HOSPITAL.

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Paul Owuor Oming’o and Solomon Odeny before Nairobi Magistrate Court on Wednesday February 14,2018/PHOTO BY S.A.N.

BY NT REPORTER.

Two senior officials with Wananchi Telecom have been charged with the theft of Sh80 million from a city hospital.

Paul Owuor Oming’o and Solomon Odeny denied two charges of stealing Sh80,141,462 the property of Mater Misericordiae Hospital within a span of 11 years.

Defence lawyer John Ogada applied they be released on bond.

Oming’o a former accountant at the hospital and Odeny denied the charge before Senior Principal Magistrate Martha Mutuku.

She directed the accused to deposit a cash bail of Sh500,000 or an alternative bond surety of Sh2 million.

Ms Mutuku directed the case be mentioned on April 19 for confirmation of the hearing date in June 2018.

JUDGE AWARDS GRAFFITI ARTISTS 6.7 MILLION DOLLARS.

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A bus with graffiti in Nairobi city/PHOTO COURTESY.

BY ABAJOURNAL.

A federal judge in Brooklyn, New York, awarded statutory damages of $6.7 million to 21 graffiti artists in a suit that contended a building owner violated federal law when he painted over their artwork.

U.S. District Judge Frederic Block ruled Monday that 45 works of graffiti art on the 5Pointz warehouses in the borough of Queens were protected under the Visual Artists Rights Act because of their “recognized stature,” report the Washington Post and the New York Times.

Dean Nicyper, a Withers Bergman partner who specializes in art law, told the New York Times that the decision is the first to find that graffiti and graffiti artists were protected by VARA.

The Visual Artists Rights Act amends copyright law to give artists the right to attribution and integrity of their visual work. VARA says the right to integrity includes a right “to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.” The law also allows damages for distortion or mutilation of art work to the prejudice of the artist’s honor or reputation.

One exception provides that unremovable works of art incorporated on a building are not protected if the artist waives his or her rights in writing signed both by the artist and the building owner. In this case, there was no signed writing, Block said.

When works of art are removable, the artists are entitled to 90 days’ notice. Block did not provide such notice, though some art work was on doors, windows, plywood and siding, which could have easily been removed. Other art works could have been preserved by contractors and a conservator.

Statutory damages are capped at $150,000 for each art work for a willful violation of the law, though plaintiffs had the option of seeking actual damages instead.

The suit against the owner of the buildings, Gerald Wolkoff, had sought to stop him from tearing down the warehouses to build high-rise luxury condos. The artists had been allowed to paint the murals in a curated system overseen by a building tenant and artist, Jonathan Cohen. Short-term walls were for beginner artists and their work would be painted over from time to time, while long-term wall space was awarded based on competition among artists. Cohen had final say over the duration of all the art work.

Though Wolkoff didn’t sell the art, he indirectly profited when the value of his site increased from $40 million to $200 million, Block said. He also made hundreds of thousands of dollars by charging licensing fees to film at the site.

Pictures of the art work before its destruction are in an appendix that begins on page 52 of Block’s opinion.

In November 2013, the judge denied a request for a preliminary injunction and promised to issue an opinion eight days later. “Rather than wait for the court’s opinion,” Block said, “Wolkoff destroyed almost all of the plaintiffs’ paintings by whitewashing them during that eight-day interim.”

The white wash was “sloppy” and “half-hearted,” leaving the works “easily visible under thin layers of cheap, white paint,” Block said.

The case went before a jury, but the 21 artists waived their jury rights just before the summations. Block allowed jurors to rule in an advisory capacity. Jurors found the plaintiffs were entitled to damages for 36 out of 49 works of art and that Wolkoff acted willfully. Block went further and found liability for a total of 45 paintings.

Block said Wolkoff, has been “singularly unrepentant.” His “precipitous conduct . . . was an act of pure pique and revenge for the nerve of the plaintiffs to sue to attempt to prevent the destruction of their art,” Block said. “This was the epitome of willfulness.”

Wolkoff had testified the graffiti artists knew that the buildings showcasing their art would one day be torn down. Block said he believes Wolkoff “in the main testified truthfully,” but he was a difficult witness. “He was argumentative and prone to tangents and non-responsive answers,” Block said. “Eliciting coherent testimony was a chore and was only achieved after the court threatened to hold him in contempt.”

“Wolkoff’s recalcitrant behavior was consistent with the manner by which he testified in court,” Block said. “He was bent on doing it his way, and just as he ignored the artists’ rights he also ignored the many efforts the court painstakingly made to try to have him responsively answer the questions posed to him.”

RMS NO LONGER INTERESTED IN MUSCLING OUT WITH GOVERNMENT, WITHDRAWS CASE.

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Communication Authority of Kenya Lawyer Wambua Kilonzo making submissions before Justice Chacha Mwita.

BY SAM ALFAN.

Royal Media Services is no longer interested in pursuing a suit against the government.

It has thus withdrawn its case that challenged the recent Television shutdown by the government.

“Citizen has withdrawn its petition against the State for resumption of broadcast services. RMS contends the State has complied with Justice Mwitas Orders of 2nd February 2018. The judge has allowed the RMS petition to be withdrawn with no orders as to costs.” Said Wambua Kilonzo for CAK.

Lawyer Gibson Kamau Kuria told Justice Chacha Mwita that the company is no longer interested in pursuing the matter.

However, a similar petition filed by activist Okiya Omtatah will proceed as he said he still wants a full hearing.

KTN, NTV, Citizen and Inooro TV were switched off over Nasa leader Raila Odinga’s ‘swearing-in’ as the People’s President on January 30.

According to the government through CS Dr Fred Matiang’i, Nasa had planned a massacre and some media houses were aware and were actively involved thereby necessitating the shutdown.

The judge has allowed the RMS petition to be withdrawn with no orders as to costs.

‘SLASH THEM WITH PANGAS’ REMARK BY MP MOSES KURIA TO BE SETTLED OUT OF COURT.

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Gatundu South Member of Parliament Moses Kuria before a Nairobi Court.

BY NT CORRESPONDENT.

Gatundu South MP Moses Kuria now wants to be allowed to settle a hate speech case out of court.

The legislator asked the court for some time to pursue an out of court settlement with the National Cohesion and Integration Commission.

The government prosecutor told the court that Mr Kuria has written a letter to NCIC to have the matter settled out court and is awaiting feedback.

The matter was scheduled for hearing today and tomorrow.

“We have no objection to allow reconciliation out of court,” prosecution counsel told the court.

The court allowed time to the parties to settle the issue out of court.

In the matter, Mr Kuria allegedly incited youth in Nyeri in 2015, to attack and “slash” politicians opposed to National Youth Service projects in the county.

The ‘panga’ remarks, as they are commonly known, were captured and aired on national television and reported in the local dailies.

Proceedings resume March 14.

REMOVE PRESIDENT UHURU KENYATTA FROM SUIT, AG TELLS COURT.

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President Uhuru Kenyatta with Attorney General Prof Githu Muigai.

BY SAM ALFAN.

President Uhuru Kenyatta name should be struck out of court, AG tells court.

This move follows a challenge by rights crusader Okiya Omtatah who wants a decision creating the Office of Chief Administrative Secretary overturned.

According to the Attorney General, the President of Kenya cannot be sued as he enjoys presidential immunity and that the inclusion of the president is a clear misjoinder of party.

State Counsel Ms Gitiri Jennifer told court that Omtatah will not suffer any prejudice by the exclusion of President Uhuru Kenyatta as a respondents in the case.

Omtatah cited lack of public participation in the decision to include CAS in assisting Cabinet secretaries with their mandate.

POLICE RECOMMEND INDICTMENTS OF PM NETANYAHU.

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Israel Benjamin Netanyahu.

JERUSALEM (AP)

Israel Benjamin Netanyahu.sraeli police on Tuesday recommended that Benjamin Netanyahu be indicted on bribery and breach of trust charges in a pair of corruption cases, dealing an embarrassing blow to the embattled prime minister that is likely to fuel calls for him to step down.

Netanyahu angrily rejected the accusations, which included accepting nearly $300,000 in gifts from a pair of billionaires. He accused police of being on a witch hunt, vowed to remain in office and even seek re-election.

“I will continue to lead the state of Israel responsibly and loyally as long as you, the citizens of Israel choose me to lead you,” an ashen-faced Netanyahu said in a televised address. “I am sure that the truth will come to light. And I am sure that also in the next election that will take place on time I will win your trust again with God’s help.”

The recommendations marked a dramatic ending to a months-long investigation into allegations that Netanyahu accepted gifts from Hollywood mogul Arnon Milchan and Australian billionaire James Packer, and suspicions that Netanyahu offered to give preferential treatment to a newspaper publisher in exchange for favorable coverage.

The recommendations now go to Attorney General Avihai Mendelblit, who will review the material before deciding whether to file charges. Netanyahu can remain in office during that process, which could drag on for months.

But with a cloud hanging over his head, he could soon find himself facing calls to step aside. During similar circumstances a decade ago, Netanyahu, as opposition leader, urged then-Prime Minister Ehud Olmert to resign during a police investigation, saying a leader “sunk up to his neck in interrogations” could not govern properly.

Former Prime Minister Ehud Barak, a bitter rival of Netanyahu, called on him to suspend himself and for the coalition to appoint a replacement on Wednesday morning.

“The depth of corruption is horrifying,” Barak said. “This does not look like nothing. This looks like bribery.”

In a statement, police said there was sufficient evidence to indict Netanyahu in the first case, known as File 1000, for accepting bribes, fraud and breach of trust.

It said Netanyahu had accepted gifts valued at 750,000 shekels ($214,000) from Milchan, and 250,000 shekels (or $71,000) from Packer. The gifts from Milchan reportedly included expensive cigars and champagne.

Police said that in return, Netanyahu had operated on Milchan’s behalf on U.S. visa matters, legislating a tax break and connecting him with an Indian businessman. It said he also helped Milchan, an Israeli producer whose credits include “Pretty Woman,” ”12 Years a Slave” and “JFK,” in the Israeli media market.

In the second case, known as “File 2000,” Netanyahu reportedly was recorded asking Arnon Mozes, the publisher of the Yediot Ahronot daily, for positive coverage in exchange for reining in a free pro-Netanyahu daily that had cut into Yediot’s business.

Police said there was sufficient evidence to charge both Milchan and Mozes with bribery. There was no immediate comment from either man.

In his TV address, Netanyahu said that his entire three-decade political career, which included serving as Israel’s ambassador to the U.N., a stint at prime minister in the 1990s and a series of Cabinet posts, were meant only to serve the Israeli public.

He acknowledged aiding Milchan with his visa issues, but said Milchan had done much for Israel and noted that the late Shimon Peres, had also been close with Milchan.

He also said that over the years he had taken decisions that hurt Milchan’s business interests in Israel.

“How can allegations be taken seriously that in exchange for cigars I acted for Arnon Milchen’s benefit?” he said.

He said all the allegations over the years against him had one goal: “to topple me from government.”

He said past scandals had all “ended with nothing” and “this time as well they will end with nothing.”

As the police investigation gained steam in recent months, Netanyahu has claimed to be a victim of an overaggressive police force and a media witchhunt.

Netanyahu, who has been prime minister for nine straight years, and his family have become embroiled in a series of scandals in recent months.

Recordings recently emerged of his wife, Sara, screaming at an aide, while separate recordings emerged of his eldest son, Yair, on a drunken night out at a series of Tel Aviv strip clubs while traveling around in a taxpayer-funded government car with a government-funded bodyguard.

Netanyahu has said the scandals are all the work of media out to get him.