Mombasa County Speaker Harub Ebrahim Kharti has asked the Court of Appeal to compel Coast Regional Coordinator Nelson Marwa to apologise and compensate him for linking him to narcotics.
The Speaker has asked the appellate court to overturn a High Court judgement by Justice Njoki Mwangi that declared that Marwa cannot be cited in his individual capacity for an activity conducted while performing official functions.
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On January 13 last year Mr Kharti sued Mr Marwa for defamation following his (speaker) dramatic arrest.
The administrator was sued for telling journalists that the speaker was linked to drugs and illegal gun possession. After two days in police custody he was released and filed a suit against Marwa.
The state through the Attorney General entered a defence arguing the Coast Regional Coordinator could neither attend court or be cited for legal liability in person for acts performed in the course of his government duties. The defamation suit is still pending before the High Court.
Kharti’s arrest sparked a war of words between Mombasa Governor Hassan Ali Joho, Mvita MP Abdulswamad Nassir, former Kisauni MP Rashid Bedzimba and Marwa. The three were briefly held by police at the Coast police headquarters when they went to demand the speaker’s release.
And on Thursday, Kharti asked the Court of Appeal to overturn Justice Mwangi’s arguing that it was erroneous and bad in law.
He disagreed with the judges conclusion that it was difficult to determine whether Marwa acted in good or bad faith over the alleged remarks on Kharti.
Lawyer Mohamed Balala told Appellant judges Wanjiru Karanja, Al Nassir Visram and Martha Koome that his client wants the Regional Coordinator to apologise and compensate him for defamation.
“I beg you to allow the appeal relying on the submissions filed before the court,” said Balala.
The Attorney General through Wachira Guyo told the Court of Appeal that Marwa had made the utterances while on official duty.
“I urge the court to find that the suit before it is a non starter and that the Regional Coordinator was on duty while making those remarks and enjoys indemnity,” said Guyo.
In his affidavit yesterday Kharti said Marwa defamed him in a bid to settle scores with Joho.
“My finding is that an application to have the defendants name struck out from the suit is well merited,” said Mwangi in her judgement that also directed the replacement of Marwa’s name with the AG.
Senior Assistant Director of Prosecution Alexander Muteti dismissed the appeal terming it frivolous and lacking merit. He said striking out Marwa’s name did not prejudice the appellant in any way
“This appeal is misconceived and has no justifiable course to get the Court of Appeal’s intervention,” said Muteti.
The appellate court will rule on January 31.
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