Monday, November 30, 2015 Justice under threat as wealthy and key personalities use courts to block arrest

By MAZERA NDURYA
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Political analyst Mutahi Ngunyi (left) in a Nairobi court on October 12, 2015 where he was charged with four counts of ethnic contempt and hate speech. Mr Ngunyi moved to the High Court seeking temporary court orders to stop the DPP from charging him with hate speech. PHOTO | PAUL WAWERU | NATION MEDIA GROUP  

Summary

• The MP pulled a fast one when he moved to the High Court, seeking anticipatory bail to bar the police from arresting him.
• Last month, the quest to have criminal charges suspended paid off for sacked Lands Cabinet Secretary Charity Ngilu and former NSSF boss Jos Konzolo after Environment and Land Court Judge Lucy Gacheru put on hold proceedings in the magistrate court.
• The credibility of the Ethics and Anti-Corruption Commission to conduct investigations and recommend prosecution in corruption related issues has also come into focus as two sacked CSs sought to have their prosecution terminated.

Prominent people, mainly politicians, are rushing to court to delay or block charges against them in a new trend that raises questions about the dispensation of justice where the wealthy are concerned.

Armed with some of the finest lawyers money can get, a number of them have gone to court to avoid the agony of being held in custody and haggling over bail.

While others have received temporary relief as their criminal cases have stopped, pending determination of their petitions, most of them have suffered setbacks after their applications were dismissed.

Lawyers say it is within the law for one to move to court to stop their arrest.

Senior lawyer and Law Society of Kenya Council member James Mwamu argued that there are a number of reasons that inform such a decision.

“There is the principle that one is innocent until proven guilty. At times people go to court, especially when they feel that their arrests might be politically motivated,” said Mr Mwamu.

One of the most sensational cases that went viral on social media was that of Imenti Central MP Gideon Mwiti’s rape charges.

The MP pulled a fast one when he moved to the High Court, seeking anticipatory bail to bar the police from arresting him.

He even told Justice Grace Ngenye Macharia that he was willing to deposit money and pledged to abide by the directions. The Judge rejected his application.

He was charged and released on a Sh100,000 cash bail after denying raping, intimidating and assaulting a married woman on March 21.

In August, the High Court suspended his prosecution in the magistrate’s court.

Justice Weldon Korir granted him a reprieve after lawyers representing the complainant in a magistrate’s court protested against the publication of confidential information of a medical report in a newspaper.

While the MP’s lawyer John Khaminwa defended the report, Justice Korir, before halting the trial, said the case in which the MP is seeking to permanently stop the trial, had raised some weighty issues, “which might require to be determined by a full bench”.

SUSPENSION OF CHARGES
Last month, the quest to have criminal charges suspended paid off for sacked Lands Cabinet Secretary Charity Ngilu and former NSSF boss Jos Konzolo after Environment and Land Court Judge Lucy Gacheru put on hold proceedings in the magistrate court.

Her ruling was a relief to Mr Konzolo, Ms Ngilu, Ms Sara Njuhi Mwenda, Ms Pauline Wanjiku Gatimu, Mr Mark Muigai Wanderi, Mr Macmilan Mutinda Mutiso and Mr James Mbaluka, who are all facing charges related to the Karen land saga.

But even with the suspension, the eight are not off the hook yet, as Justice Gacheru added that the suspension of the trial has nothing to do with the merits of the criminal case.

The credibility of the Ethics and Anti-Corruption Commission to conduct investigations and recommend prosecution in corruption related issues has also come into focus as two sacked CSs sought to have their prosecution terminated.

Former Transport CS Michael Kamau and Ms Ngilu moved to the High Court to challenge their prosecution before the anti-corruption court on grounds that the commission did not act independently.

Mr Kamau was charged with abuse of office and flouting tender regulations while Ms Ngilu has been charged with obstructing justice.

Director of Public Prosecutions Keriako Tobiko has denied violating the Constitution in recommending charges against the two former ministers.

Mr Tobiko, has also defended President Uhuru Kenyatta against accusations that he illegally exerted pressure on the ethics commission.

Judges Mumbi Ngugi, George Odunga and Joseph Onguto adjourned the hearing to November 12 to allow the parties to file more documents.

HATE SPEECH CHARGES

For political analyst Mutahi Ngunyi, what started as a normal tweet targeting some communities, resulted in a dramatic exchange of a goat and drinks in a bid to end an alleged ethnic slur amicably, but the matter took a turn for the worst when the DPP said there was evidence to charge him.

Mr Ngunyi moved to the High Court seeking temporary court orders to stop the DPP from charging him with hate speech. He was released on bond as the case continues.

Perhaps the most dramatic case was that of former Nairobi Mayor George Aladwa, who was involved in a cat-and-mouse game with the police, but finally moved to the High Court seeking to stop incitement charges against him.

He allegedly made offensive remarks during a public rally on October 20, in Kibera. He was arrested by Flying Squad officers.

Although the High Court allowed him to file a petition to challenge his prosecution, the DPP succeeded in charging him with incitement.

Last Friday the prosecution asked the court to deny Mr Aladwa bond on grounds that there is an increase in hate speech and incitement cases.

Assistant DPP Leonard Maingi told the court that stringent bond terms had not deterred politicians such as Gatundu South MP Moses Kuria from making inflammatory remarks.

He also cited Kiambu Governor William Kabogo’s remarks that he had the money to defend himself in court.