DPP, EACC, AG urge High Court to strike out magistrate's bid to block arrest over Sh150,000 bribe saga

The Director of Public Prosecutions (DPP), Attorney General (AG)  and the Ethics and Anti-Corruption Commission EACC) have urged the High Court to strike out a case filed by Kangema Principal Magistrate Martin Kinyua, who seeks to block arrest and prosecution over Sh 150,000 bribe saga.

In their separate submissions before Justice Richard Mwongo, the two claimed that Kinyua is trying to evade his day to face the law without providing evidence that his rights have been violated.

The DPP through prosecutors Duncan Ondimu, Eliphas Ombati and Abdisalam Bore, argues that the magistrate had failed to appear before court to answer to charges twice while knowing he was required to do so.

Ondimu, was of the view that Kinyua should have raised his concerns before the trial court. He further questioned the move to file the case miles away from Nairobi. According to him, the court in Embu has no supervisory powers over courts and a case being filed in the capital city.

“That the suit is incompetent for want of jurisdiction and competence and ought to be dismissed with costs, including costs personally payable by Counsel for the Petitioner for instituting an untenable claim and in a Court that lacks supervisory jurisdiction over the Milimani Anti-Corruption Court,” argued Ondimu, adding that the move to file the case was meant to unfairly curtail DPP’s powers to decide which criminal cases to prosecute.

On the other hand, EACC argued that Kinyua does not deny being investigated and arrested. The commission asserted that it did its work, forwarded the investigation file to the DPP, who then ordered the magistrate’s arrest.

It asserted that Kinyua should put effort into controverting its evidence before the trial court, adding that the case was allegedly meant to short-circuit the criminal case before it is heard.

“ Kenya's criminal justice system does not determine criminal liability through jury trials but through independent courts exercising judicial authority under the Constitution. The constitutional presumption of innocence is safeguarded by the independence and impartiality of the trial court and is not displaced merely because information concerning an arrest or ongoing investigations is communicated to the public by a constitutional commission acting in the discharge of its statutory mandate,” EACC’s lead investigator Kipkirui Yegon replied.

The Attorney General, Dorcas Oduor while backing the DPP and EACC argued that although Kinyua raised concern that he was suspended by the Judicial Service Commission simultaneously with the arrest, the disciplinary process and criminal one ought to continue as they seek to enforce Chapter Six of the Constitution.

Kinyua moved to the court claiming that his arrest and suspension had allegedly been publicized to the public, which allegedly painted him as guilty. He further alleged that he was condemned unheard.

Kinyua urged the court to block any re-arrest or prosecution. He accused the DPP and EACC of allegedly ruining his 20-year career in the judiciary.

“ The actions of the respondent and most specifically those of the first respondent to publicize the investigations process before establishing a solid case against the applicant is not only malicious on their part but a total violation of the applicant’s constitutional right that needs this court intervention,” his lawyer Alex Kamuri argued.

Kinyua sought a gag, saying that he had been allegedly unfairly subjected to shame.

“The said publication and media publicity has caused the applicant irreparable damages in terms of his reputation and public standing; if not stopped will continue tarnishing his name and causing unprecedented pain. The applicant has been exposed to intense ridicule and embarrassment by the actions of the respondents, which are predicated on unsubstantiated allegations and nd without the applicant being accorded a chance to be heard,” Kimuri added.