By Nyakundi Nyamboga

It is 14 months ago today since High Court first barred wife of a suspect in Rwanda genocide from benefiting from the family’s rental houses in Kilimani, Nairobi.

The order, made pursuant to an application by the State, was to remain in force until International Criminal Tribunal for Rwanda (ICT-R) determines fate of fugitive Felicien Kabuga.

Mr Kabuga, a wealthy and influential businessman born in 1935, was President of the National Defence Fund, Rwanda.

Under President Juvenal Habyarimana ‘s rule, political and financial power in Rwanda was consolidated within a tight circle, the core of which was the extended family of the President.

Kabuga was a prominent member of this group by reason of marriage of two of his daughters to two sons of President Habyarimana.

Kabuga’s wife, Mrs Mukazitoni Josephine, chose to challenge court order that effectively barred her from collecting rental income from the property and allowed the court Registrar to do so. She filed a notice last July to object to proceedings that gave rise to the order of May 12, last year. This ruling relates to the preliminary objection.

Through two defence attorneys of the ICT-R at Arusha, messrs Kennedy Ogetto and Otachi Omanwa, Mukazitoni opposed the proceedings on eight grounds, which the court reduced to three broad grounds: that Kenyan courts did not have jurisdiction to make such orders, proceedings at ICT-R had nothing to do with her and that the application as framed was incompetent. Mukazitoni’s lawyers and Director of Public Prosecution for the State made lengthy submissions in relation to the issues, during the hearing of the preliminary objection.

In a nutshell, the State said it moved to preserve Kabuga’s rental houses popularly known as "Spanish Villas" to satisfy a request by ICT-R.

Director of Public Prosecutions Keriako Tobiko told Justice Apondi some resolutions of UN Security Council obligated the country to co-operate with ICT-R. The country was further called upon to intensify co-operation in arrest and detention of Kabuga.

He argued UN Security Council resolutions had the force of law in Kenya as international customary law, which he said was part of common law that would be implemented by the courts invoking the Judicature Act, Cap 8, Laws of Kenya.

On their part, Mukazitoni’s defence attorneys argued resolutions of the Security Council do not have the force of law in Kenya and could not form the basis of or legally support the application.

The Kenyan court was not an agent of the ICT-R or a chamber of the ICT-R.

The State’s application described as a "miscellaneous criminal application", was incompetent because it was based on non-existent criminal proceedings.

No criminal case has been filed in Kenya against Kabuga and or members of his family.

In a 14-page ruling, Justice Muga Apondi observed: "This court is grateful to the in-depth research that counsel for both parties made, which resulted in quoting several authorities".

He went on to say that despite the fact Mukazitoni’s counsel had submitted extensively on the issue of jurisdiction, High Court had unlimited and original jurisdiction to deal with the matter because the property is situated in Nairobi, is registered under Kenyan law and managed by a local company.

There is no dispute that the rental income has been in the past deposited in a bank in Kenya.

Since the property was in joint names, "her title and interest are interwoven with that of her dear husband". He held that the cause of action is against the entire property.

The Judge agreed with Mr Tobiko that UN resolutions require member states to co-operate fully with ICT-R.

The judge dismissed the preliminary objection saying his orders of May last year would remain in force until further notice.

He also directed that pending applications be consolidated and heard on a date convenient to all counsel.