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Questions emerge over controversial gagging orders stopping arrest and questioning of high-profile suspects
Masolo Mabonga|Jun. 12, 2019
- Lawyer Tom Ojienda this week secured a court order stopping the arrest and questioning
of Nandi Governor.
-The advocate had himself secured similar odd orders last December after he was arrested
over suspected fraud.
-Lawyer Donald Kipkorir terms the recent order ‘useless’ saying it could not protect
Governor Sang legally.
-Others argue Judiciary has no powers to gag institutions from executing constitutional mandates
- Advocate Samwel Mohochi termed the orders strange, saying the situation calls for JSC’s
intervention
Fears over possible machinations within the Judiciary have resurfaced following this week’s issuance of contentious orders restraining the police from arresting and questioning Nandi Governor Stephen Sang
Some legal experts have questioned the weird order, with city lawyer Donald Kipkorir terming it the most useless anticipatory bail ever. He says it was legally flawed and could not protect Sang from arrest.
Also fuelling the conspiracy theories is the fact that the application was made by lawyer Tom Ojienda, who himself secured similar orders last December after he was accused of falsely obtaining money from Mumias Sugar Company.
Governor Sang was being sought by the police over the destruction of a disputed tea estate in hiscounty last weekend.
But Ojienda filed a petition citing threats against the Governor and contravention of provisions in Articles 40, 62 and 63 of the Constitution.
Eldoret High Court Judge, Justice Stephen Githinji, subsequently issued orders blocking the “charging, prosecuting, arresting, continued harassment, questioning, intimidating and apprehending” of the applicants over the matter.
The orders against the Inspector General of Police (IG), the Directorate of Criminal Investigations (DCI), the Director of Public Prosecutions (DPP) and the Attorney-General (AG) were also to shield Benard Kiplimo, a county executive, and all Nandi County employees from similar treatment.
Sang was, however, arrested and taken to Kisumu Central Police Station where he spent a night before he was taken to a Kisumu court and charged with malicious damage of property, incitement to violence and abuse of public office.
In court, a battery of lawyers made a futile attempt to block the prosecution from charging the Governor, arguing that allowing the prosecution to prefer the charges “results to defiling the Eldoret court order”.
But a firm Kisumu Resident Magistrate Beryl Omollo dismissed the defense’s assertions as lacking merit and had the Governor take plea before releasing him on a KSh 1 million bond.
According to Kipkorir, no court order can ever be issued to refrain police, DCI or DPP from arresting or charging all employees of Nandi County.
“This Order doesn’t protect Governor Sang .... Court Orders are in personam NOT in rem,” the advocate explained, meaning the orders could only be directed toward a particular person, and a group of people
Veteran advocate Samwel Mohochi termed the order strange, saying the situation calls for the
intervention of the Judicial Service Commission.
“Strange orders in deed granted ex-parte with no hearing date!!!! I think this calls for a JSC
inquiry,” he stated
There was public outcry when High Court Judge Justice Chacha Mwita stopped the criminal prosecution of Senior Counsel Ojienda in December, with President Uhuru Kenyatta, the DPP and the DCI protesting the apparent gagging of the investigative and prosecutorial arms of government.
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