Senator Catherine Mumma loses bid to quash court orders in Sh900K battle with EACC
The Senate Devolution Committee Chairperson Catherine Mumma has lost a bid to set aside a magistrate court decision to lock out her defence statements in close to a Sh1 million recovery suit pitting her and the Ethics and Anti-Corruption Commission (EACC).
The nominated senator wanted the High Court Commercial Division to reverse the ruling dated May 15, 2014, in which Chief Magistrate Lucy Gicheha declined her prayer to have her witness statements admitted as evidence in the case that involves Sh903,000 she allegedly acquired illegally.
The anti-corruption agency sued Mumma in 2005 seeking to recover the amount, saying that she was overpaid as allowances in a task force which was appointed to look into the HIV/AIDS pandemic in Kenya in 2001.
The commission petitioned the court after National Aids Control Council sought to recover more than Sh500,000 Mumma is alleged to have received when she served as joint Secretary of the task force.
It is said that she was paid Sh903,000 in allowances while she was entitled to Sh357,000. Mumma is said to have made a claim that she worked for 180 days for which she was paid.
After the commencement of the case by the commission in 2005, the court granted allowed Mumma to file her witness statement but she failed to do so for a period of five years.
She later sought to have her late defence statement admitted in court.
But Magistrate Gicheha on September 15, 2020, declined her request.
Mumma, dissatisfied with the decision of Gicheha, lodged an appeal before the High Court where she argued that the magistrate subjected her to injustice and subverted her right to a fair hearing.
She also stated that the magistrate erred in holding that her request to file the witness statement late was inordinate.
Mumma said that the magistrate disregarded the fact that the request was necessitated by EACC raising no objection on the date of the defence hearing.
But Justice Asenath Ongeri dismissed the appeal saying that was an inordinate delay by Mumma in seeking to review and side with the magistrate's orders.
"Mumma had been granted extension of time on December 11, 2014, but did not file any statement until May 15, 2018, when the trial court refused to extend time. Equity does not assist the indolent but comes to the aid of the vigilante," Ongeri stated.
The judge also found that at the time Mumma was seeking to set aside and review the order of the trial court, EACC had testified and closed its case.
"Mumma did not make an attempt to set aside the magistrate's order before the close of the EACC case. I agree with the trial court that the commission would not be in a position to close examine her on the issues raised in the statements. Setting aside the ruling would occasion injustice to the Commission, " the judge ruled.
The judge also found that the appeal by Mumma was not properly before the High Court because she did not seek permission to file the same.
"There is nothing on record to show that she sought leave to appeal the ruling delivered on September 15, 2020. The record shows that she was not in court when the ruling was delivered.
" I, therefore, find that the appeal is incompetent and l according dismiss it with cost to the Commission," Justice Ongeri ruled.
The judge directed the file be remitted back to the trial court for the hearing on the recovery suit to proceed to its logical conclusion.
In opposing Mumma's appeal, the commission said that having delayed for five years she was guilty of laches and court of equity can not aid her
"It is apparent that Mumma by her conduct waived her right to file any witnesses statements or documents. She was guilty of inordinate delay in bringing the application and interest of justice cases should be concluded without unreasonable delay," the commission informed the judge.
It added that failure to comply with pre-trial orders could not be attributed to the alleged long absence of Mumma because she was not permanently in Kenya.