Kinoti, Haji supremacy war resurfaces over Cohen trial
The bad blood between the Directorate of Criminal Investigations (DCI) and Office of Director of Public Prosecutions (ODPP) over the handling of criminal cases has returned to haunt a planned probe and subsequent arrest of a top judge over the murder of Dutch businessman Tob Cohen.
While DCI boss George Kinoti insists there is sufficient evidence to sustain a criminal charge against Court of Appeal judge Sankale ole Kantai, DPP Noordin Haji maintains that evidence gathered by the former is insufficient to sustain any trial. Kinoti has been pushing for the arrest and prosecution of the judge with murder and forgery of documents.
According to Kinoti, Kantai is a person of interest in Cohen’s murder case as he is alleged to have actively participated in the planning and cover up of the heinous act.
In a lengthy affidavit filed in court on Monday, Kinoti faults the DPP for terminating the case against Justice Kantai last year.
The DCI claimed the judge is linked to the murder by helping his mistress Sarah Wairimu Kamotho, who is also Cohen’s wife to plan and cover up the death.
Kinoti through John Gachomo, a senior assistant Inspector General of Police, accused Haji, of illegally terminating investigations against the Appellate judge, who was cleared of any wrong-doing in August.
“The DPP can only terminate criminal proceedings instituted by his office and not criminal investigations being undertaken by DCI while exercising its constitutional mandate,” court papers read.
Perpetuating injustice
Gachomo claimed the ODPP is yet to communicate to the DCI what evidence was lacking in the investigation file to inform the decision to drop charges against the judge.
The DCI now claims that the judge, who was supposed to be charged on February 24, 2020 remains scot-free because he is enjoying the protection from the DPP.
Kinoti claims the letters by the DPP absolving the judge of any role in the Dutch’s murder is an abuse of office and in contravention of the law.
He adds that the actions by the DPP is perpetuating injustice to the late Cohen family.
“The Judge has not demonstrated what criteria was used by the DPP to clear him from the murder charges,” says the DCI.
Gachomo states that the DPP while writing the said letter to the Judge informing him of the decision to drop the charges appears not to have appreciated Cohen’s right to life and rights of victims of the Cohen murder that gained international publicity.
The DPP is said to have written two letters dated June 9 and August 10, 2021 indicating that there was no sufficient evidence to support the charges against the judge.
In August, days after DPP dropped charges against him, Justice Kantai sued Inspector General of Police Hillary Mutyambai and Kinoti for allegedly maligning his name by linking him to the murder.
In a petition filed at the Milimani Law Courts, the judge said his arrest brought him shame and was injurious to his reputation.
The judge, who reported to the DCI a total of 12 times since his arrest in 2020 said several of his constitutional rights were violated in the process; he was deprived of his freedom without a just cause, his privacy was invaded without his consent and his dignity was violated.
“I should not have been arrested in the first place if the respondents did not have any evidence connecting me to Cohen’s murder,” he said in his court papers.
Apart from seeking payment in general damages, the judge also sought to have police prohibited from unnecessarily arresting him again, and a permanent injunction issued against them from using any information they gleaned from his phone records.
But the DCI responded to the case through Gachomo detailing the reasons why they arrested and interrogated him, before making him record various statements over the murder.
And when the top crime buster filed a damning affidavit, detailing how the Judge is linked to the murder, Justice Kantai lodged a fresh application on Monday stopping the IG and DCl from re-arresting him.
However, in a surprise turn of events, the High Court issued restraining orders barring the IG and DCI from prosecuting the judge pending the hearing and determination of the case and pegged everything on the consent of the DPP.
“Pending hearing and determination of the application interpartes, a temporary injunction is issued restraining the respondents’ from re-arresting the petitioner and charging him in court on matters arising from the murder investigations of Cohen without the express and written permission of the DPP,” ordered Justice Antony Mrima on Tuesday, reigniting the fierce rivalry between the two constitutional offices.
Temporary injunction
While issuing the order, the judge noted that he had perused through the two letters by Haji dated June 9 and August 10 this year indicating that there was no sufficient evidence to prosecute the judge.
“The entire content of the said affidavit of John Gachomo is predicated on matters that the DPP has fulsomely considered and rendered a decision on.
In the scheme of things, the petition has a legitimate expectation that he won’t be arrested and harassed again by the DCI,” Justice Kantai’s advocate Peter Wanyama had told the court.
But in response to Justice Kantai’s affidavit, Kinoti notes that his functions are well defined under section 35 of the National Police Service Act No 11A of 2011 pursuant to the constitution.
According to the DCI, since this was and still is an active investigation which has not been determined for criminal prosecution proceedings, the suspect ought to have complained to the investigating officer in respect to the murder case. The case will be heard on November 23, 2021.
