State counsels are on the spot following the sentencing of the Director of Criminal Investigations George Kinoti to four months in jail for contempt of court.
Mr Kinoti was being represented by lawyers from the Office of the Director of Public Prosecutions (ODPP) until July 22, when he dropped them and asked Attorney-General Paul Kihara Kariuki to fight for him.
The AG appointed state counsel Wanjiku Mwangi, but she lost the case after the November 18 orders that have put Mr Kinoti at risk of losing his liberty for allegedly failing to release businessman Jimi Wanjigi’s guns.
Businessman Jimi Wanjigi.
The AG later hired lawyer Cecil Miller to work with Ms Mwangi in seeking a review and setting aside of the ruling. But the pair subsequently lost yesterday after Justice Anthony Mrima dismissed their application.
Mr Miller and Ms Mwangi said they had new evidence that had not been availed to court. Had the said evidence been disclosed, the court would have reached a different finding in citing and sentencing Mr Kinoti for contempt, they argued.
Lawyer Cecil Miller.
New evidence
The said new evidence was to the effect that Mr Wanjigi’s guns are not in custody of the DCI but the Firearms Licensing Board, an autonomous body that deals with firearms held by civilians.
Another argument was that Mr Kinoti was a wrong party to the case and that the orders made against him on June 21, 2019, directing him to release the firearms, were erroneous.
But the court dismissed the application on the basis that there was no new and compelling evidence to allow the review or setting aside of the ruling, meaning the warrant of arrest issued against Mr Kinoti remains in force.
It was also noted that the state did not appeal against the 2019 orders and judgment rendered by Justice Chacha Mwita, which is the foundation of the current tribulations facing Mr Kinoti. The February 11 ruling that cited Mr Kinoti in contempt was also not challenged.
On the AG’s argument that the firearms are not in custody of Mr Kinoti, Justice Mrima ruled that the trial court’s judgment had dealt with the issue and it had been found that the weapons are in hands of the DCI.
He said in the trial court’s judgement it is noted that Chief Inspector Joseph Gichuki testified how in October 2017 the police raided Mr Wanjigi’s Muthaiga home and searched the house.
Five pistols
A gun recovered from Jimi Wanjigi’s home in Muthaiga.
They recovered five pistols, two assault rifles and 646 rounds of ammunition. The officer said an inventory was prepared and signed by the police as well as Mr Wanjigi’s lawyer.
Justice Mrima said there was no evidence to demonstrate the movement of the weapons from the police to the board. Hence, he declined the AG’s contention that there was a misjoinder of Mr Kinoti to the dispute.
Justice Anthony Mrima.
“The applicant has not tendered evidence to show the firearms were moved from the DCI to the Board. The trial court’s judgment has not been set aside, appealed or reviewed. The issue (of who has the firearms) is res judicata (the issues raised were determined in another case by the court),” said Justice Mrima.
The judge ruled in favour of Mr Wanjigi’s contention that communication in government is always done in writing and there was no letter to support AG’s submission that the guns were with the board.
On AG’s further argument that Mr Wanjigi cannot be authorised to own guns because his firearm licence was revoked by the Firearms Licensing Board in 2018, the judge found that the board’s decision was quashed by the court in a Judicial Review case.
In that case it was found that the revocation of the licences was in bad faith. It had been found that the government’s concern that the firearms in possession of Mr Wanjigi are dangerous, would not make sense.
This is because the firearms certificates were issued by the same people who were now contending that the same firearms they licensed are dangerous. Justice Mrima stated that there was neither new evidence on the licence revocation nor an appeal against the court’s decision to overturn the same.
The judge also rejected the AG’s contention that the review application should be allowed because it was filed on time.
Justice Mrima found that Mr Kinoti was cited in contempt on February 11 while the sentencing was done on November 18, this year. He questioned the nine-month delay in filing of the review application.
Review application
“In the review application one of the orders sought is setting aside the court’s decision made in February. The review application was filed on November 22, 2021 after the sentencing, nine months later. Am not sure the application would have been filed if not for the sentencing. The applicant did not even explain the delay at all,” said the judge.
After yesterday’s ruling, the AG’s lawyers informed the court that they had managed to get a letter from the Firearms Board, asking Mr Wanjigi to collect his weapons.
The letter is dated November 26 and is by the board’s chairman, Mr Daniel Semei. Mr Miller said the letter was the missing link on the contention that the weapons are not in possession of Mr Kinoti.
“The board confirmed what we were arguing and it has even told the petitioner to go ahead and collect his firearms. That particular further evidence fell in our hands after we appeared in court last week. The relevant government agency has complied. We want the court to know that the contempt is purged and petitioners know where to collect the firearms,” Mr Miller said.
The court, however, told them that they knew what to do with the said evidence in view of the court’s ruling. BY DAILY NATION