Thursday, August 11, 2011

Why Wako blunder may give Kosgey lifeline

By Lucianne LimoA contractual blunder by Attorney General Amos Wako who retires this month could undermine the State’s abuse of office case against Tinderet MP Henry Kosgey.
This came out in a court application by the former Industrialisation minister’s defence team, challenging the legal authority of Special Prosecutor Patrick Kiage to prosecute him.
Tinderet MP Henry Kosgey.
According to the documents filed in the High Court to support Kosgey’s constitutional case, his lawyers Fred Ngatia and Kioko Kilukumi, Kiage prosecuted the case against their client long after his contract expired. Worse still, the AG on whose behalf he prosecuted the case, neither renewed his contract nor substituted him with an officer with a running contract.

The lawyers argued Kiage was appointed Special Prosecutor in February 2007 and the contract expired on February 14, 2008. "Consequently, Mr Patrick Kiage however, had no legal authority to prosecute the applicant (Kosgey). Accordingly, the prosecution carried out by Kiage was conducted by a person who had no legal authority and is a nullity in law," Kosgey’s lawyers argue.
It is Kosgey’s contention Wako appointed Kiage for a period of one year, and no further term was gazetted, therefore if the court rules in his favour, the whole proceedings at the magistrate’s court could become a nullity.
Even more interesting, if the ruling goes Kosgey’s way, other cases handled by Kiage on behalf of the State after February 14, 2008, could also be susceptible to collapse if challenged afresh, especially those for which rulings have been delivered.
Kosgey argues that Kiage’s appointment was made under Section 85 (1) of the Criminal Procedure Act. "In addition thereto, the Director of Public Prosecutions (DPP) who has been appointed under Article 157 of the Constitution, has not gazetted the said Kiage as a special prosecutor or as a prosecutor," Kosgey’s team argue in the papers filed in court.
Public service
Consequently, he sought orders stopping the hearing of the abuse of office case before the Chief Magistrate’s Court in Nairobi, pending hearing and determination of the suit.
The cases Kiage has handled include the one in which Nambale MP Chris Okemo and former Kenya Power and Lighting Managing Director Samuel Gichuru are resisting extradition to UK to face fraud charges.
He also handled the one in which former Kenya Medical Research Institute (Kemri) director Davy Koech is accused of stealing Sh420 million from Kemri Pension Fund.
In a sworn statement in support of the case, Kosgey says the AG was obligated by Section 85(1) to publish the appointment of a public prosecutor in The Kenya Gazette.
He says Kiage, in his application for a practicing certificate for this year to the Law Society of Kenya, affirmed that his workstation was "Kiage and Company Advocates, Uniafric House Nairobi".
National interest
Kosgey says it appears to him Kiage is in full time legal practice and is equally in public service, without his appointment having been gazetted as required by the Criminal Procedure Act.
The former minister is alleged to have allowed three individuals and three companies to import 113 vehicles that were more than eight-years-old.
It is alleged he used his office to improperly exempt individuals and companies importing the vehicles that did not meet Kenya Standards Code of Practice for Inspection of Road Vehicles.
Further, Kosgey contended the criminal charges against him were founded on regulations made under the Standards Act, which confers a discretion upon a minister on advice of National Standards Council (NSC) to exempt imports from the order where the minister is satisfied that it is in national interest.
He argues during his tenure as minister there were no guidelines NSC guidelines, which the council could use to advise the minister.
On July 29, Nairobi Principal Magistrate, Elijah Obaga put Kosgey on his defence after concluding he had a case to answer. This was after the prosecution, led by Kiage, closed its case after calling 21 witnesses and produced 78 exhibits to support the case.
Kiage said Kosgey failed to seek the advice of NSC as required, and also to indicate the national interest in the alleged exemptions.
On his part, the Tinderet MP had told the magistrate that the prosecution had failed to prove its case against him.
His advocates, Julius Kemboy and Allan Kosgey made submissions saying the prosecution had failed to call as witnesses some three individuals he is alleged to have granted exemptions in relation to overage vehicles. "Those persons were not called as witnesses. We do not have benefit of their evidence if any, that they received from the minister. If allegation is that benefit given to these persons were vehicles, they (prosecution) have in their evidence confirmed to court seven motor vehicles were released by Kenya Revenue Authority (KRA)," he said.
Error of judgement
In the case before High Court, the former minister is also seeking orders quashing the proceedings before the magistrate’s court. He has named the DPP and the Chief’s Magistrate Court as respondents.
In addition, Kosgey wants the High Court to issue orders prohibiting the two respondents from proceeding with or further hearing of the case against him.
He argues that if his prosecution amounts to an abuse of court process, the High Court has powers and duty to prevent this travesty.
"The first respondent (DPP) abdicated the prosecutorial responsibility to a person who was not appointed in accordance with the law. The first respondent must bear the responsibility of the error of judgement or abdication of statutory responsibility," the MP argues.
The former minister says in the circumstances, orders to quash the proceedings and also prohibit the magistrate’s court from proceeding with the hearing "are most efficacious".
Lower court
"No other remedy exists which is determinative of the violations which have occurred with the knowledge, express or implied, of the respondents," the Tinderet MP argues.
Wednesday, Kosgey’s advocates appeared before High Court Judge, Justice Nicholas Ombijah to argue Kiage lacked the legal authority to prosecute their client.
Ombija ruled the urgency in the case was evident and called for the file from the lower court saying he must study all the complaints.
He directed the case to be heard inter-parties Friday.

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