New details emerge over simmering row between Kinoti and Haji
The clash on Tuesday between the Directorate of Criminal Investigations (DCI) and the Office of the Director of Public Prosecutions (ODPP) which forced a magistrate to unconditionally release Kenya Ports Authority boss Daniel Manduku was a culmination of a simmering supremacy contest between the two offices.
Manduku and the Kenya Revenue Authority (KRA) Commissioner for Customs and Border Control Kevin Safari were arrested on Monday evening and were the following day presented in court to face fraud charges but were set free as the ODPP said there was no file.
When the two appeared in court, a baffled prosecutor told the magistrate Kennedy Cheruiyot that Noordin Haji’s office was not aware of the charges since the file had not been forwarded to him.
This was despite the fact that both the DCI boss George Kinoti and Haji had addressed a joint press conference where Kinoti said the KPA file had been forwarded.
“We wonder why the duo are in court since we have not received the police file or instructions from the DPP that the two are being charged,” said the prosecutor.
This prompted Manduku’s lawyer, Dunstan Omari, to quip: “Since the DPP and DCI are not on the same page over the prosecution of the two and are fighting each other let these citizens be released as what is unfolding before this court today has massive implications on the roles of the two entities.”
Charge sheet
Manduku was produced in court alongside other co-accused persons but his name was not listed in the charge sheet produced by Gituathi Njoroge, an investigating officer who appeared for the DCI in court.
Cheruiyot had to intervene by saying he had no court file to record the proceedings in the matter.
Lawyers appearing for the KPA boss led by LSK President Nelson Havi told the court that there was a big misunderstanding between the offices of the DPP and DCI, urging Haji and Kinoti to sort out their mess.
They accused detectives of stonewalling access to Manduku, who was held at the Kamukunji Police Station without access to his family and lawyers.
Prior to Manduku’s arrest on Monday, the DCI had also been accusing ODPP of failing to prosecute him over investigations in the possible loss of Sh6 billion at the authority over the past one year.
The amount in question is inclusive of some Sh2.5 billion that investigators believe might have been lost in the ongoing rehabilitation of the Kisumu Port.
Currently, there are more than 100 cases that have been submitted by the Investigations Bureau (IB) at the DCI headquarters to the ODPP for perusal and advice.
Article 157 of the Constitution gives DPP State powers of prosecution to institute and undertake criminal proceedings against any person before any court and also take over and continue any criminal proceedings instituted by another authority.
The DPP may also discontinue a case at any stage before judgment is delivered.
However, in exercising such powers the DPP is expected to have regard to public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
One of the cases at the heart of strained relations between Haji and Kinoti is the files on Mombasa county, which were submitted over two years ago and there has been no response yet.
Another file that is said to be stuck at the ODPP is that of Malindi MP Aisha Jumwa.
The MP, her family members and close associates were accused of having received about Sh100 million of the Sh500 million under investigation from the National Constituencies Development Fund (NCDF).
Records from DCI also indicate the cases involving a Nyahururu magistrate, Tatu City, Blue Shield Insurance, Kenya Ports Authority, Masai Mara University funds embezzlement, extortion case of blogger Cyprian Nyakundi and Kenya Pipeline Corporation Mombasa line are all pending in Haji’s office.
Also stalled is a case involving former Finance CEC at Garissa county Idris Mukhtar, who was shot in his car at the parking of a restaurant near the Kileleshwa mosque, Nairobi, after 8pm prayers on August 18, 2018. He was shot in the head and left for dead.
Garissa Governor Ali Korane was arrested and questioned for hours in connection with the attempted murder of the county executive and released.
Mukhtar’s father, Dr. Aden Mukhtar and Salah Yakub Farah, who served in the Garissa executive committee at the same time as Mukhtar, claimed the motive of the shooting must have been a case that was to be filed to challenge the governor’s academic qualifications. To date, the file is said to be pending at the ODPP.
The DPP hails from Garissa county where his father Mohammed Yusuf Haji is the are Senator.
But yesterday, Haji denied claims of sitting on files forwarded by the DCI for direction. He, instead blamed the media of “manufacturing the clash.”
The DPP said his office was carrying out its duties diligently and professionally, adding that there were facts to vindicate his office.
“I challenge anyone with any of the cases to table them. As far as I am concerned I have executed my duties and mandate in accordance with the law,” he said.
He, however, declined to comment on the Manduku and Garissa cases, dismissing our journalist to report “whatever you have in mind.”
In the Tatu City, the DCI was investigating allegations of fraudulent transfer of shares and change of directorship of Purple Saturn Properties, the firm at the centre of Tatu City’s ownership legal battles.
In the Nyahuru incident, Kinoti had recommended the prosecution of the magistrate Ocharo Momanyi, for allegedly “misusing discretionary powers” to force the release into the market of a sugar consignment deemed unfit by the Kenya Bureau of Standards.
The row was about a consignment impounded from Mugo Wholesale and Supermarket located in Nyahururu — and which Kebs says failed “all tests” in a report dated August 1, 2018.
Police had charged the owner of the consignment, Moses Kigo, in a Nyahururu court but the accused was acquitted on four counts and put on defence on three counts.
The ODPP has, however, indicated that they handle thousand of cases and have a conviction rate of about 90 per cent, with a 29.4 conclusion percentage rates.
Lawyer Philip Murgor yesterday said there was obviously a big problem, especially in the manner in which the investigations were conducted and publicised.
“Investigations are supposed to be discreet, confidential and dignified. Some of these complaints may not be true and it is risky publicising an allegation that may turn out to be untrue,” he said.
He said everyone has the right to be presumed innocent until proven guilty and blamed the DCI for failing to respect this critical legal principle.
“Kinoti’s approach to his work shows that he does not understand, or believe in, the principle of presumption of innocence,” he added.
The lawyer cautioned Kinoti against being the investigator, prosecutor, judge and executor.
