Detectives are questioning orders issued by Nyahururu-based magistrate Ocharo Momanyi who they are accusing of “misusing discretionary powers” to force the release into the market of a sugar consignment deemed unfit by the Kenya Bureau of Standards.
The row is about a consignment impounded from Mugo Wholesale and Supermarket located in Nyahururu — and which Kebs says failed “all tests” in a report dated August 1, 2018.
Police had charged the owner of the consignment, Mr Moses Kigo, in a Nyahururu court but the accused was acquitted on four counts and put on defence on three counts.
“Further on December 19, 2018, the court, in disregard to the suitability of the sugar that formed the basis of the charges, proceeded to issue release orders of the same,” says an internal police memo dated May 28, 2019.
According to the Standards Act, it is an offence to “sell any commodity or product that does not comply with relevant standards specifications.”
BIAS CLAIM
Shortly after the magistrate issued the order, police refused to hand back the sugar and instead moved it from a Nyahururu store leading to a stand-off between the magistrate and detectives.
A report signed by A.S. Omuga, the Director of Legal and Crime Affairs at the Directorate of Criminal Investigations (DCI), says the sugar was moved outside the jurisdiction of the Nyahururu Court “as we explored the possibility of challenging the decisions of the court that had not taken into consideration the interests of the public as far as their health which is of great concern”.
But the police investigating the matter were cited in court at the instigation of Mr Kigo and were found guilty of contempt of court for failing to release the sugar.
They were fined Sh100,000 each or in default serve five days in prison.
The DCI, dissatisfied with the ruling, went to the High Court in Nyahururu seeking a stay order — and requesting the removal of Mr Momanyi as the magistrate arguing that he “demonstrated bias” in handling the case.
At the High Court, detectives argued that the sugar was still required as an exhibit in the three counts in which Mr Mugo had been put on his defence.
Mr Mugo’s lawyers, on the other hand, argued that he had already been acquitted in the case touching on the sugar.
FIX
The detectives found themselves in a fix over the sugar after the High Court ruled it cannot revise or alter an order of acquittal.
The High Court also accused the DCI of introducing reports from Kebs and Government Chemist indicating that the sugar was unfit for human consumption after the sugar was produced in court.
“The reports are of no relevance to the decision of the court made by (the magistrate) and cannot be the basis for the application to have the court stay the release order,” High Court’s Justice R. Wendoh ruled. “The opinion found in the letters does not fault the decision of the court.”
On the prayer to have the magistrate removed from the case, the High Court said “acquitting one or convicting is a direct consequence of the magistrate’s work and … a right-thinking person cannot impute bad faith or bias on the magistrate for merely doing their work.”
‘HOSTILITY’
But now, the detectives say that both Kebs and the Director of Public Health at the Ministry of Health had noted that releasing of the sugar “was injurious to the health of the consumers”.
At the moment, as a result of the court order, the sugar is under the custody of the court.
The police say that the magistrate has “demonstrated hostility to the officers from the DCI Photographic Section who had mounted cameras ready to record the proceedings. He ordered them to shut the cameras and directed them that if they needed any part of the proceedings they should access the court file,” says a police report.
They now accuse the magistrate of “ordering for the release of the sugar, in order to intimidate the DCIO and his deputy who had earlier been cited for contempt”.
On May 28, 2019, Mr Momanyi ordered the release of the consignment to the accused and fixed Mr Mugo’s case for hearing — leading to yet another stand-off as police accuse the magistrate of disregarding public safety interest.