Firm to proceed with rail construction after lifting of suspension

Kenya Railways has won its bid to lift a suspension on the construction of the standard gauge railway on a piece of land in Mombasa.

The suspension, lifted on Friday, was issued by the Environment and Land Court in June pending the hearing of a case in which Kenya Railways was accused of not compensating Africa Gas and Oil and Miritini Free Port for land the railway is supposed to pass through.

Justice Asike Makhandia of the Court of Appeal allowed Kenya Railways (KR) and China Roads and Bridge Corporation (CRBC) to continue constructing on the land, overturning an earlier ruling by the lower court requiring the two corporations to pay Sh2 billion.

China Roads and Bridge Corporation has been contracted by Kenya Railways to construct the SGR.

“We are ultimately satisfied that China Road and Kenya Railways have met the conditions for a stay of execution,” Justice Makhandia said in his ruling.

“In a number of cases this court has stated that when confronted by an application such as this one before us, it must weigh the respective hardship that each party stands to suffer, and the issue is not merely the ability of a party to pay or not to pay a particular sum of money,” he added.

The land in question, which measures 41.2 hectares, had been the subject of an inquiry at public hearings in Mombasa that were conducted by the National Land Commission (NLC).

The Commission then awarded Africa Gas and Oil Ltd Sh159 million as compensation for the land and Sh360 million for interruption of business.

Trouble, however, began after African Gas and Oil Company went to court saying they had not yet been compensated and that CRBC had already moved their equipment to the site.

UHURU’S PROJECT

Soon after, Miritini Free Port did the same, saying the government compulsorily acquired their 91-hectare piece of land but has not compensated them. The land is valued at Sh1.4 billion.

The Attorney-General, NLC and CRBC were also enjoined in the suit as respondents.

Justice Anne Omollo, sitting at the Land Court in Mombasa, halted the construction only allowing CRBC to move to the site to secure their machinery.

The respondents were required to deposit Sh519 million and Sh1.4 billion awarded to the petitioners in an escrow account.

However, KR, through its lawyer Cecil Miller, argued that the order of stay was occasioning massive daily losses of Sh37,600,000 on account of idle equipment and a workforce of 1,600 personnel, yet 70 per cent of the works on the property were already completed.

Mr Miller added that while the petitioner’s claim was for compensation of the property, the orders served no legal purpose towards the enforcement of the petitioner’s claims.

“The orders as oppressive do not serve any public interest as huge amounts of public funds had already been spent on the project including consultancies, mobilisation of human resources and plant and machinery.

“They are delaying the project and are likely to induce breach of contract which will result in high penalties, huge financial losses,” he submitted.

If the claims made by the corporation in its defence are true, then it means taxpayers will have footed an extra Sh5 billion for the construction of the Sh327 billion project, which has already been dogged by claims of over pricing of land acquisition.

MORE MONEY

President Uhuru Kenyatta, who is relying on the project to be one of Jubilee government’s key successes, has perpetually said it is on course and the phase between Mombasa and Nairobi will be completed by June next year.

This will be just two months to election.

It was thought that the case by Africa Gas and Oil and Miritini Free Port would trigger a domino effect down the line as more aggrieved property owners line up cases against the contractor, the land commission, and the Attorney-General.

So far, other than the two firms, none other had come forth.

On Monday, Transport Cabinet Secretary James Macharia said the government will spend an extra Sh49 billion for electrification of the railway.

This article was published by the SUNDAY NATION on November 27, 2016

This brave little girl is about to finish the fight

NAIROBI, Kenya, Nov 3 – In July 2015, Baby Bhakita was five months, two weeks old. Her life looked dull. Her parents were worried to the point of hopelessness for a daughter with a complex heart condition.

baby-bhakita-now

Her doctor had said she had only six months to live – meaning that at the time we met her, she had only two weeks to live if she didn’t get a heart surgery for her fragile condition.

“We were told she would first turn blue because organs would collapse and then she would die,” her terrified mother Terry told Capital News as she wept.

READ: You can save baby Bhakita, but it must be in 10 days

People from within and outside Kenya overwhelmingly and positively responded to Baby Bhakita’s appeal and raised the Sh1.5 million required for her surgery in India.

One year and several months have passed since then.

Capital FM News on Wednesday decided to check on Baby Bhakita.

She is now one year, eight months old.

Despite her delicate heart condition, Bhakita is a bubbly and an outgoing child.

“Like you can see, she is growing normally because of the medication she has been taking. She has all the teeth -12 of them, she is walking, she is eating, I think she is growing like any other normal child,” her mum explained.

Bhakita was quite playful during the interview. She mostly played with her mum’s phone playing song after song.

At some point she was even dancing to one of the songs.

According to her mum, Bhakita has been on medication prescribed when she went to India in July last year.

READ: Baby Bhakita finally en-route to India for surgery

Though she hoped Bhakita would undergo the surgery in July 2015 when they went to India for the first time, doctors prescribed medicine to shrink pressure on her heart for the next one year and also give her time to acquire at least 10 kgs.

“After attaining these 10 kgs, she will now not add anymore kilos because of thyroid imbalance until she undergoes the surgery. Right now her growth is stagnated,” she explained.

Thyroid refers to ‘a large ductless gland in the neck that secretes hormones regulating growth and development through the rate of metabolism’.

At the age of four months, doctors discovered that Bhakita had one heart valve instead of two; meaning that clean and dirty blood mixes in the heart, a situation that tires lungs and can consequently lead to breathing complications.

She was referred to India since the operation could not be done in Kenya.

When Capital News was introduced to Terry by a well-wisher, Betsy Warui, she had given up because together with her husband, they knew they could not raise the Sh1.5 million required.

One year after, Terry still appreciates the help her family got.

She struggled hard to hold her tears back as severally thanked people for making it possible for Bhakita to get treatment in India.

“I take this opportunity to thank you for supporting Baby Bhakita, all people in and outside Kenya. Cecil Miller of Miller Foundation Kenya, I thank Capital FM, I thank you for your financial support and for your prayers.”

“Through your support we are able to take Bhakita to India. As we take Baby Bhakita to India again for the first surgery, it’s not easy to have your child undergo a surgery – I request you — the same God you prayed last time, please continue praying for us again as we go for the surgery.”

Bhakita’s mum was also happy to share the news that she finally got a job and together with her husband and with the help they got last year, they can support her treatment for the remaining stages supported also by her insurance cover with the Teachers’ Service Commission (TSC).

Former CBK governor has a case to answer, says Tobiko

There is enough evidence to charge former Central Bank of Kenya Governor Njuguna Ndung’u over a disputed Sh1.2 billion tender.

Director of Public Prosecutions Keriako Tobiko in his submissions filed before Court of Appeal judges Wanjiru Karanja and Daniel Musinga said he was satisfied with the evidence before him showing Prof Ndung’u used his office to pull strings in favour of Horsebridge Networks, an Information Technology firm. “It (evidence) can sustain charges against him.”

Also, Court of Appeal Judge Lady Justice Agnes Murgor withdrew herself from hearing the appeal. She disqualified herself in what she termed as conflict of interest, having acted for the CBK when she was in private practice. “I acted for the Central Bank of Kenya when I was in private practice and cannot therefore sit in an appeal case touching on the bank. I therefore withdraw myself from hearing the case,” said Murgor.

Prof Ndung’u through lawyer Cecil Miller did not oppose the judge’s withdrawal but requested that another judge be appointed immediately to enable expeditious hearing of the appeal.

Keriako in his submission told the court that CBK did not appeal against the decision by Public Procurement Administrative Review Board (PPARB), a decision that led to Horsebridge getting the lucrative tender.

The DPP in his written submission claimed Njuguna turned a deaf ear to the advice given to him by CBK external lawyers, CBK’s own legal services division and other officials including the Deputy Governor to appeal the PPARB decision.

“The DPP was therefore satisfied on the evidence that the appellant (Ndung’u) used his office to improperly favour Horsebridge in terms of section 46 of ACECA and accordingly directed that the governor be charged with abuse of office,” the court papers read in part.

“The DPP’s decision was based on sufficient evidence to charge the appellant and was not actuated by any extraneous consideration and did not violate the appellant’s fundamental freedoms and rights and neither was it done in a manner likely to amount to abuse of Court process or breach of natural justice.”

However, in a rejoinder, Prof Ndung’u told the court he was a victim of a vicious witch-hunt. He told the Court of Appeal that he did nothing wrong to warrant prosecution over claims of abuse of office.

Prof Njuguna in his submissions said that even if CBK had appealed against the board’s decision, there was no guarantee that the High Court would have set it aside. He said that although CBK was the procuring entity, PPARB gave the tender to the lowest bidder and the losers never raised any alarm over the whole process or challenged the same in court.

Court of Appeal judges also heard that Ndung’u’s hands were tied by High Court order that forced CBK to sign the deal with Horsebridge.

“The best suited persons to challenge the award of the contract to Horsebridge were the other entities that had participated in the tender process. None of them complained about the award to Horsebridge since the contract had been awarded to the lowest bidder,” Ndung’u’s papers read.

They continued: “Central Bank of Kenya did not have reason to challenge the same. If Central Bank of Kenya challenged the award made to the lowest bidder, this would have amounted to bad faith on its part.” The former governor’s stand before the Court of Appeal was that the legal opinion by the external lawyers was then in conflict with the factual position.

He said the opinion was unsustainable.

This article was published by THE STANDARD on Sep 29, 2016

Judge pulls out of ex CBK boss Ndungu’s case

A judge has disqualified herself from a case where former Central Bank of Kenya (CBK) Governor Prof Njuguna Ndungu is urging the Court of Appeal to block the Director of Public Prosecutions from prosecuting him in the Sh1.2 billion security tender award for the bank.

Lady Justice Agnes Murgor disqualified herself saying “she acted for the CBK when she was in private practise and cannot therefore sit in appeal in the case concerning it.”

Lawyer Cecil Miller for Prof Ndung’u did not oppose Justice Murgor recusing herself but asked the matter be allocated an early hearing date.

Justice Murgor was sitting with Justice Wanjiru Karanja and Justice Daniel Musinga when appeal suffered the hurdle.

Prof Ndung’u who picked Miller to represent him is challenging the decision of the Director of Public Prosecution (DPP) Keriako Tobiko to charge him in the Sh1.2 billion security tender award for the bank.

Mr Miller took over the case from lawyer Donald Kipkorir who was representing the former top banker when the case was being heard at the High Court.

The case was adjourned again on July 28 when it was called for hearing before Justices Kantai ole Sankale , Jamila Mohamed and Philomena Mwilu, Miller then told the court “ I have just received instructions and need time to acquaint and familiarize myself with the legal issues.”

He said he needed time file his submissions in answer to the issues raised by the DPP.

The judges allowed Miller’s request and directed him to file submissions within ten days.

The court also allowed the Ethics an Anti-Corruption Commission to respond to the issues raised by Miller within seven days.

Professor Ndungu filed an appeal after his application for judicial review seeking to bar his prosecution was dismissed by the High Court.

Justice George Odunga dismissed the application challenging the criminal trial and consequently allowed DPP and EACC to prosecute him over the tender award.

The judge said that it’s the trial court, that was best placed to determine the allegation and that Professor Ndungu will be given humble time to defend himself.

“I am therefore not convinced there is sufficient reason to stop the impending prosecution. He will be given a fair chance to defend himself at the trial,“ Justice Odunga said.

Professor Ndungu was not satisfied with the judgement of the superior court and he filed an appeal seeking to have the impending trial a nullity.

This article was published by CAPITAL FM NEWS on September 28, 2016

Kenya Railways moves to court to reverse SGR ruling

Kenya Railways Corporation has moved to court seeking the reversal of orders issued by the Mombasa High Court to halt part of the construction of the standard gauge railway.

Through lawyer Cecil Miller (pictured), the company said the public interest outweighs that of private owners.

“The learned judge erred in law and in fact by granting the conditional conservatory orders without appreciating the amount of time taken for disbursement of funds by the National Treasury,” he said.