Kenya Ports Authority Managing Director Daniel Manduku has been granted a free bond pending a ruling on his application seeking temporary orders to stop his arrest and prosecution based on police investigations and recommendations.
Justice Eric Ogola issued the order Monday after hearing submissions by Dr Manduku and the Director of Public Prosecutions (DPP).
Dr Manduku wants the temporary orders restraining the DPP, Inspector General of Police and the Directorate of Criminal Investigations from arresting and charging him pending the hearing and determination of his petition on December 17.
“The petitioner is released on free bond pending ruling herein should any arrest happen,” said Justice Ogola at Mombasa High Court.
Dr Manduku is also seeking interim orders restraining the respondents from issuing adverse, inaccurate or unwarranted media statements against him until the petition is heard and determined.
PANDORA’S BOX
Through prosecutors Alexander Muteti, David Fedha and Victor Owiti, the DPP termed Dr Manduku’s application premature, saying the decision to charge him had not been made.
Mr Muteti argued that DCI recommendations on investigations are not binding for the DPP and hence any proposed charges against Dr Manduku are mere proposals.
The decision to charge, the prosecutors argued, will finally be made by the DPP and that through Dr Manduku’s application, the court is being asked to usurp the powers of the prosecution.
Mr Muteti argued that if Dr Manduku’s application is allowed, it would open a “Pandora’s box where any suspect arrested will be rushing to court to claim that his rights have been threatened”.
“There is no threat against the applicant, the DCI wielded powers to arrest but he has not done so, let’s not impede a constitutionally sound process,” argued Mr Muteti.
POWERS USURPED
He further said it would not be in the public interest to stop the DPP from making his decision.
Mr Muteti argued that Dr Manduku has failed to show any aspect of irrationality on the part of the DPP or the DCI, saying the two offices restricted themselves to their constitutional mandate.
But through Senior Counsel James Orengo and lawyers Julie Soweto and Nelson Havi, Dr Manduku argued that the proposed charges against him are not based on fact.
Mr Orengo argued that the DPP has not denied that they received a report and that the proposed charges are a violation of the Constitution and the statutory provisions of the Office of the DPP Act.
“Our client has a right to be given an opportunity to respond to accusations,” argued Mr Orengo.
He added that the Inspector General and the DCI have usurped the authority and mandate of the Ethics and Anti-Corruption Commission by purporting to investigate corruption-related and economic crimes.
He also took issue with “excessive” media coverage, saying Dr Manduku has been investigated and prosecuted in the court of public opinion.