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.

Prof Ndungu’s appeal in Sh1.2bn tender case set for September

Former Central Bank Governor Prof Njuguna Ndungu has appointed Cecil Miller to represent him in the Court of Appeal where he is challenging the decision by DPP to charge him over the award of Sh1.2 billion security tender for the bank.

Miller takes over from Donald Kipkorir who represented Prof Ndungu at the high court over the same matter.

When the case came up for hearing on Thursday before Justice Sankale Kantai, Justice Jamila Mohamed and Justice Philomena Mwilu, Miller told the court that he had just been instructed and needed time to file his submissions.
The court allowed his application for adjournment and directed he files his submissions within 10 days; DPP and EACC do so within seven days.

The bench further directed that the date for the hearing of the appeal be taken on priority basis in the month of September 2016.

Professor Ndungu moved to Court of Appeal after his application for judicial review was dismissed by the High Court.

Justice George Odunga dismissed the application challenging the criminal trial and consequently gave the EACC and DPP the green light to prosecute him.

The judge said that it’s the trial court, that is best placed to determine the allegation and that Professor Ndungu will be able to defend himself efficiently before the magistrate.

“I am therefore not convinced there is sufficient reason to stop the impending prosecution it is highly and likely that he will be accorded a fair trial,” he said.

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

Railway agency asks court to allow SGR construction to continue

The Kenya Railway Corporation (KR) has gone to court to overturn orders issued against the construction of a standard gauge railway at Miritini.
KR says the national government will lose Sh30 million per day if the orders remain in force. Lawyer Cecil Miller told judge Anne Omolo that since the day the orders were issued, the construction company, China Road and Bridge Construction, has been losing Sh30 million per day maintaining the equipment and other activities on site.
Miritini Free Port had gone to court to stop the construction of the railway on its land after the Government through the National Land Commission failed to pay the Sh1.4 billion in compensation fees it was awarded. “It is in the public interest that this order granted by this court be vacated to allow the construction of the railway to proceed so as to stop taxpayers from losing Sh30 million per day,” Mr Miller told the court.

He said KR had partnered with the construction firm to build the railway, and it had mobilised equipment on the plot and if the orders remained in force, some of the equipment would rust. Public interest “This order is against public interest because the money being lost belongs to the taxpayers,” he added.
China Road lawyer, Wamuti Ndegwa, denied claims that his client had disobeyed a court order and applied to have the company ordered to pay the losses the construction company was incurring every day. And the National Land Commission lawyer, Simon Mbuthia, submitted that Miritini Free Port owners had not been compensated because there was a dispute over the land, which was raised by the county government, which questioned the rightful owner of the land.

“Upon receipt of complaints from the County Government of Mombasa over the propriety, NLC conducted a review process to establish whether the petitioners are the legitimate owners of the suit land,” said Mr Mbuthia.

Mbuthia accused Miritini Free Port directors of failing to disclose to the court the true status of matter when they sought ex parte orders. He said since the court was now aware that there was a dispute over the rightful owner of the land, then the stay order the company was given should be vacated to allow NLC find out whether the company should be compensated.

Last week, Miritini Free Port lawyer Michael Oloo successfully applied for an injunction against the construction of the railway, complaining that his client rights had been violated by not compensating them.

This article was published by the STANDARD NEWSPAPER on Jul 8, 2016

Halted SGR construction costing taxpayers Sh37.9m daily

Kenya Railways is losing Sh37.9 million daily following the suspension of the construction of the Sh327 billion standard gauge railway on a piece of land in Mombasa, a court heard.

Through lawyer Cecil Miller, the corporation said the situation will continue to get worse should the court order stopping the construction remain.

“It is not in the public interest to sustain the orders, “Mr Miller told Mombasa Environment and Land Court Judge Ann Omollo.

According to the corporation, it has been losing 376,000 US dollars every day since the construction was suspended by the court on June 24. The loss is attributed to workers pay, expenses for running sites and for contracted supplies.

Mr Miller opposed the application by African Gas Oil Company Ltd to have the construction halted pending hearing and final determination the suit, arguing that the court should balance the rights of the petitioner and the public.

African Gas Oil Company stopped the rail construction on the strength that it’s yet to receive Sh519 million awarded to it by the National Land Commission as compensation for ceding the land for the mega project.

But transfer of the funds were stopped after African Gas Oil ownership of the land was questioned.

CONSTRUCTION STOPPED

Mr Miller added that the corporation and the government had entered into multiple contracts for the construction of SGR hence orders stopping the exercise will cause them to be in breach leading to penalties which the tax payers will have to take care of.

“The petitioners claim is compensation, all they want is money, there is no need for conservatory orders to be granted, they have a remedy in terms of money,” said Mr Miller.

Mr Miller further argued that 80 per cent of the construction of the SGR from Mombasa to Nairobi had already been completed hence stopping it is unjustified.

China Road and Bridge Corporation (K) Ltd who are constructing the SGR said the orders stopping the construction have been issued on a property acquired by the government and which does not belong to the company.

Through lawyer Wamuti Ndegwa, the contractor said the orders of the petition cannot enforce an award granted to company.

“The effect of the order is giving back the land with expensive installation (to the petitioner), even if the order is given it cannot help the petitioner get his claim,” said Mr Ndegwa.

Mr Ndegwa said the quality of the structures which have been put up continue to deteriorate since they need to be maintained and that materials at the construction site are being stolen.

He added that they are paying millions of shillings for machines which have been hired describing the loss as huge.

EVIDENCE OF DISPUTE

Lawyer Michael Oloo for African Gas Oil Company Ltd said his client is the registered proprietor and still has interest in the land.

“There is no evidence of dispute placed before you or an affidavit (over the land) said Mr Oloo.

Mr Oloo said since the awards for compensation were issued, his clients had written several letters to the respondents without getting any response.

He argued that argued that prior to the acquisition of the land by the government, the company wanted to put a ‘massive’ container freight terminal petitioners land and that there is no reason why the government has refused to pay compensation money.

In the petition, the company is seeking among others an injunction against Kenya Railways and the CRBC from carrying any construction works on the parcel of land until it is compensated in accordance with the law.

The Attorney General and the National Land Commission have also been named as respondents in the suit.

The court extended the interim orders suspending the construction of the SGR until it delivers its ruling on July 22.

Published by NAIROBI NEWS on Jul 8, 2016. (The article first appeared on the Business Daily)