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Top judges whose conduct was found wanting as ‘mtukufu’ era faded

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BENSON WAMBUGU

By BENSON WAMBUGU
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Though President Daniel arap Moi ruined many people’s careers, four retired Appellate Court judges are unlikely mourners of his death.

Justices Riaga Omollo, Samuel Bosire, Emmanuel O’Kubasu and Joseph Nyamu – who rose to become Court of Appeal judges during the Kanu regime – had their careers cut short in 2012.

This was by the Judges and Magistrates Vetting Board, chaired by Sharad Rao.

The board accused Justice Omollo of being the common denominator in key cases at the Court of Appeal fixed to serve State interests.

He was also accused of overturning High Court rulings and directing petitions by opposition leaders Mwai Kibaki and Kenneth Matiba to serve Moi directly with election petition papers in the 1992 and 1997.

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Justice Omollo disallowed the petition signed by Ms Edith Matiba as her husband could not write following a stroke he suffered while in detention.

The judge denied being a poodle of anyone and told the board that he earned his promotions by merit.

Unlike his three colleagues, Mr Nyamu was appointed a High Court judge by President Moi in December 2002, just days before the latter handed power to Mr Mwai Kibaki.

Before his appointment, Justice Nyamu had been a partner in a legal firm in Nairobi.

Decisions made by justice Nyamu as the head of the Constitutional and Judicial Review division on Kenya’s two mega scandals – Goldenberg and Anglo Leasing – returned to haunt him during the vetting.

He ordered Prof George Saitoti’s name expunged from the report of a judicial inquiry into the Goldenberg scandal following a recommendation by the commission headed by Appellate judge Bosire that the former Finance Minister be prosecuted.

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Prof Saitoti was said to have played a big role in the payments of billions of shillings to Goldenberg architect Kamlesh Pattni.

Justice Nyamu argued that the money paid to Pattni had been approved by Parliament.

He also sat on a bench that declared the Kadhi Court unconstitutional.

He moved to court seeking to compel the board to review the decision but lost.

One of the reasons cited by the board which saw justice Bosire dismissed was his decision, as chairman of the Goldenberg inquiry, to ignore a court order compelling the commission to interview those adversely mentioned in the scandal – Moi, Saitoti and former intelligence chief James Kanyotu.

“Bosire did not seek to challenge the order on appeal. He simply treated it as if it was not binding and ignored it,” the board said.

The judge argued that it was difficult to enforce the order, adding that the number of those mentioned was as high as 1,500.

Incidentally, the order was from Justice Nyamu, then a High Court judge and which Justice Bosire, then a Court of Appeal judge found hard to enforce.

Justice Emmanuel O’Kubasu was dismissed on claims of lack of integrity and fairness.

He had been accused of having been hosted in a London hotel by a man whose brother had a case before him, and that he had presided over a case of a businessman who was close to him.

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Humphrey Kariuki’s trial yet to kick off 7 months later » Capital News

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, NAIROBI, Kenya Feb 27 –  Businessman Humphrey Kariuki’s tax-related cases failed to take off yet again Wednesday, after the prosecution failed to supply all documents required in the trial.

Defence lawyers Kioko Kilukumi and Cecil Miller, who are acting for Kariuki in the matter, complained that they are unable to adequately prepare their client’s defence following the continued delay in supply of witness statements, supporting documents and exhibits.

“One year after investigations begun and seven months after taking plea, the Director of Public Prosecutions (DPP) has not supplied us with all the witness statements and exhibits,” defence lawyer Kioko Kilukumi told Chief Magistrate Francis Andayi.

Kilukumi told the court that he wrote to the DPP in January seeking to be supplied with statements and exhibits to enable him prepare for the pretrial.

Kilukumi said there was a lot of fanfare when the suspects were charged but the DPP has failed in his duties to avail evidence in the multibillion tax evasion case and was giving documents piece meal.

The lawyers said they were called to the DCI office two days ago and given statements of 29 witnesses out of 37. Witness statements of 8 witnesses were missing.

Kilukumi stated the inventory shows that there are 37 witnesses among them unnamed bank officials. Kilukumi says there is indication that witnesses from National Bank and Equity Bank were to testify but their details and witness statements were not supplied so there is no way they can prepare the defence of their clients. Some of the 160 documentary exhibits in the case had also not been provided.

He wondered how the defence will go about preparing for the defence of the accused persons without full disclosure of the prosecution’s case.

“Kariuki is an international businessman and any delay in prosecuting the case means his businesses are being destroyed,‘’ Kilukumi said.

The magistrate heard that the seven months which the DPP has delayed in supplying evidence to the defence is enough time to have heard and concluded the case. Kilukumi urged the court that the delay of months was a clear violation of the accused person’s rights under Article 50(2)(e) of the constitution to a fair trial conducted without unreasonable delay.

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Other lawyers also protested the delay in supply of crucial documents with Mannases Mwangi for Africa Spirits Limited saying that since a year ago when the factory was closed, over 500 employees have not worked and as such they were suffering due to the delay in the matter.

He asked the court to bring to a halt the issues of evidence.

The court has directed DPP to convene a joint pretrial conference where all the evidence was pre-arranged and availed to Defence counsel and any issues sorted out. This was against the background that some of the counsels have not received any of the documents.

Lawyer Rubeena Dar also informed the court that there was not one single original document that had been sighted in her review that was used to form the basis of the charges facing the accused persons and she said in the absence of such the case is as good as dead.

Ben Nzacho said they have not been given a single sheet of documents or witness statements.

Counsel took issue with the lack of numbering of the voluminous documents and said this would impact a smooth trial. The inspection of exhibits by the Defence teams was also identified as an outstanding issue.

The court found that the matter was not at all ready for pre-trial and it was as if the accused persons had just taken plea.

The court has directed that the defence counsels write to the DCI and DPP and indicate documents and witnesses statements that they have not been served with in the next seven days. Thereafter the DPP is required to respond in writing to the lawyers on the evidence within 2 weeks.

A case conference will then be convened by the DPP to iron out any remaining issues.

The matter will be mentioned on May 21st to confirm compliance by the DPP.


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Chinese Embassy confirms more flights to land in Kenya – Nairobi News

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The Chinese Embassy has confirmed that there will be more flights arriving at the Jomo Kenyatta International Airport over the coming weeks amidst concerns of the Coronavirus (COVID-19) outbreak.

This comes despite the Kenyan government’s refusal to evacuate Kenyans stuck in China due to the Coronavirus outbreak, Chinese citizens continue arriving in droves unhindered.

The Embassy released a statement on Wednesday confirming that the China Southern Airlines resumed flights from Guangzhou to Nairobi.

The airline’s flights are now reduced to once a week until March 25, 2020.

According to the Chinese Embassy, they notified the Ministry of Health in advance, and that all passengers on board were screened, cleared and advised to self-quarantine for 14 days.

While the statement is not clear on what the 14-day self-quarantine entails, the Embassy said that they have provided information to the Ministry for monitoring.

The Ministry of Health issued a travel advisory to all Kenyans against visiting countries experiencing mass infections.

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“Kenyans are advised against non-essential travel to countries experiencing the outbreak. This is in view of expanding geographical of the outbreak across the world,” the statement read in part.

Kenyans were also urged to maintain hygiene and avoid contact with persons exhibiting suspicious symptoms like fever, cough, difficulty in breathing and sneezing.

With the global number of those diagnosed with the illness is estimated at 80,000, Kenya is exposing her people to adversity of an unknown magnitude.

While reports indicate that Covid-19 numbers have stabilised in China, there is no telling what the virus could do in countries that are vulnerable due to poor healthcare systems.

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Court halts transfer of teachers from North-Eastern

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SAM KIPLAGAT

By SAM KIPLAGAT
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The Employment and Labour Relations Court has issued a temporary order barring the transfer of teachers from Wajir, Mandera and Garissa counties.

In a ruling issued on Tuesday, Justice Hellen Wasilwa also directed the Teachers Service Commission (TSC), its CEO Nancy Macharia and the Attorney General to file their responses within seven days.

In a case filed by advocate Hussein Yarrow, the court heard that TSC had transferred non-local teachers in the three counties, a move he termed as discriminatory and unconstitutional.

Mr Yarrow said TSC should have considered the best interest of the children before moving the teachers. He added that the mass transfers have affected areas which did not experience terror attacks.

According to Mr Yarrow, the attack that led to TSC’s move happened in a far-flung border area in Garissa County and it was unreasonable to move teachers in other areas which have not been affected.

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“The transfers have occasioned untold suffering to school children and has brought the education sector to a standstill,” he said, adding that the reasons for the move are exaggerated because there are other non-local professionals working in other sectors such as health.

TSC started transferring teachers following an attack in Kamuthe area, Garissa County where three non-local teachers were targeted and killed.

Speaking in Parliament, Ms Macharia said 42 teachers have been killed in similar attacks since 2014.

Justice Wasilwa directed that the matter be mentioned on March 12.

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