Court Review: Ahmednasir's Sh200m demand, detention of ex-PC

 

From the Kenyan Attorney General's office being sued at the Arusha-based East African Court of Justice to the Nakuru High Court ruling that the law limiting speech is unconstitutional, here is what has been happening in the corridors of justice:

Ahmednasir ropes AG in stand-off with Supreme Court; seeks Sh200m damages

The stand-off between Senior Counsel Ahmednasir Abdullahi and the Supreme Court is still on and this week, the lawyer roped in the Attorney General.

He moved to the East African Court of Justice (EACJ) seeking Sh200 million in damages over the ban to appear before the apex court.

In his petition, Ahmednasir wants the EACJ to issue an order directing AG Justin Muturi to reverse the pronouncement made by the Supreme Court that barred him from appearing before it.

Ahmednassir says the Sh200 million damages he is seeking are fees that he lost for cases he had conducted before the Supreme Court.

In January this year, the Apex court in a letter by Registrar Letizia Wachira barred Ahmednasir and employees of his law firm from filing cases before it over what it termed as incessant attacks.

"In view of the foregoing, it is the decision of this court, that henceforth and from the date of this communication, you shall have no audience before the Court, either by yourself, through an employee of your law firm, or any other person holding brief for you," the statement read in part.

It is this decision that the SC is challenging at the Arusha-based court.

City Lawyer to part with Sh25.9m in Cemetery Scandal

The Milimani Anti-Corruption Court ordered a city lawyer to pay back Sh25.9 million he is said to have obtained following the fraudulent sale of land.

Judge Esther Maina also ordered him to pay the costs of the suit to the Ethics and Anti-Corruption Commission (EACC) and interest at court rates from 2009, when he received it.

EACC had sued City Lawyer Alphonce Munene Mutinda for fraudulently selling the land intended to be used as a public cemetery, to the City Council for Sh283.2 million.

It said he represented the land's purported vendor as his lawyer despite knowing that his client did not bid or participate in the tender with the Council.

It added that he had received the money as payment knowing that he was not entitled to the same.

"Among other recipients of the funds aforesaid was the defendant (Mutunga) who was paid the sum of Sh25.9 million over and above his legal fees as the lawyer acting for the purported vendor in the said fraudulent transaction," the court was told.

Justice Sifuna declines to recuse himself from Tanui case

A month, after he made a precedent on the withdrawal of cases by the Office of the Director of Public Prosecutions, Justice Nixon Sifuna, declined to bow out the case.

He refused to recuse himself from hearing an application filed by the ODPP that seeks to review orders blocking it from withdrawing the Sh30 million graft case facing former Kenya Pipeline Company boss Charles Tanui and two others.

In his ruling on Thursday, the Milimani Law Courts Judge said issues of bias on the court must be reasonable and not speculative.

"A judicial officer presiding in a case will have no difficulty recusing himself where he knows or it is sufficiently demonstrated that he is biased, likely to be biased or unlikely to be impartial," Sifuna said.

The DPP was opposed to the matter being handled by the Judge claiming he previously dismissed a similar application arising from the same criminal case.

The DPP was also opposed to the Judge handling the case because of the numerous times he has pronounced himself regarding their practice of withdrawing cases in court.

Former PC Chelogoi detained in Sh1.35 billion land case

On Thursday, the Milimani Chief Magistrates Court detained former PC Davis Chelogo in Sh1.35bn land case.

Chelogoi had previously failed to honour court summons, despite four previous warrants of arrest being issued against him.

The court had directed him to appear before it on Thursday morning for plea-taking but failed to show up.

Principal magistrate Dolphina Alego issued another arrest warrant before Chelogoi finally appeared in court.

He pleaded not guilty to six counts of fraud, conspiracy to defraud and forgery.

His lawyer Tom Ojienda requested for lenient bond terms saying Chelogoi was not a flight risk.

This was however opposed by the state as did lawyers representing the complainant Ashok Shah who claims his land was forcefully taken away.

The ruling on the former PC's bond application will be issued on Monday.

Court rules law limiting freedom of speech unconstitutional

The High Court in Nakuru has declared Section 77 (1) and (3) of the Penal Code unconstitutional.

Delivering the judgment on Monday, Justice Samwel Muhochi said the section is over-broad and vague adding that it limits the right to freedom of expression without clarity as to the purpose and intent.

"A Declaration is hereby issued that, section 77 (1) and (3)(a), (b), (c), (d), (e), (f), and (g) of the Penal Code, Cap 63 is unconstitutional," he ruled.

Justice Muhochi added that the enforcement of the Section and its provision against any member of the public is unconstitutional.

The judgment stemmed from a petition filed before the court by the Katiba Institute, Law Society of Kenya, ICJ, Bloggers Association, KUJ, and KHRC among others.

They argued that Section 77 of the Penal Code had no place in a modern democratic state like Kenya, saying that it is of a colonial legacy that limits freedom of expression through the vaguely worded offence of "subversion".

The petitioners told the court that "subversion" is an antiquated way of suppressing and penalising the expression of political dissent.

They said this amounted to a violation of the right to freedom of expression under international law.

by SHARON MWENDE