Respite for NLC Chairman Swazuri as he is allowed back in office

National Land Commission boss Muhammad Swazuri in the dock at Milimani Law court, Nairobi. [George Njunge/Standard]

National Lands Commission Chairman Mohammed Swazuri has been allowed back in office after more than two months in the cold.

Lady Justice Hedwig Ong’udi’s decision came as a big relief for the NLC chairman who will now resume duties. He will take over from Abigail Mbagaya who has been acting as the chairperson since Swazuri was charged on August 13 for causing the loss of Sh221 million belonging to Kenya Railways Corporation.

Justice Ong’udi ruled that it was wrong for anti-corruption court chief magistrate Lawrence Mugambi to lock out Dr Swazuri from office by issuing tough bail conditions that amounted to removing him from office through the back door.

“I am satisfied that the trial magistrate made a mistake and did not assess the practicality of its order that the chairman must seek permission before going to his office. I therefore set aside the magistrate’s conditions and allow him to access his office every day,” ruled Ong’udi.

She however directed the embattled NLC boss to make a written undertaking not to interfere or intimidate junior officers working with the commission who are listed as prosecution witnesses or any of the records at his office the prosecution intend to use as evidence.

Prof Swazuri was charged with several counts including abuse of office and breach of trust by using his position to facilitate the Sh221 million compensations to Dasahe Investment Limited, Keibukwo Investment Limited and Olomotit Estate Limited for land used to build the Standard Gauge Railway.

He was charged alongside Kenya Railways Corporation boss Atanas Maina, NLC officials Tom Chavangi, Salome Munubi, Francis Mugo, Victor Kariuki, Elijah Nyamu, John Mwaniki, Carolyne Kituyi, Peter Mburu, Gladys Muyanga, and Obadiah Wainaina.

Mr Mugambi had released him on a cash bail of Sh3.5 million with a condition that he cannot go back to his office unless he gets prior authorization from the Ethics and Anti-Corruption Commission and the NLC Chief executive officer.

A few days after the magistrate’s order, the NLC resolved to relieve Prof Swazuri of his duties and appointed Mbagaya to act as chairperson.

But through senior counsel Prof Tom Ojienda, Swazuri argued that it was wrong for NLC to replace him when had not been convicted or legally removed from office.

“The NLC vice-chairperson has purported to fill the vacancy created by the illegal order by the magistrate. The chairman cannot be removed in such manner, it is the reason why the bond terms must be reviewed to allow him back in office,” said Ojienda.

Justice Ong’udi agreed with the submissions saying that Prof Swazuri is a constitutional office holder who cannot be barred from accessing his office unless he is legally removed through the processes provided by constitution.

According to the judge, the magistrate should have considered relevant circumstances when issuing the conditions for bail without limiting his rights to access office.

“I wonder what would happen if EACC refused to grant him the authorisation to access his office. The conditions amounted to conflict of interest since they could not be issuing him with the permission on a daily basis,” ruled the judge.

She added that since investigations into the scandal had been concluded, there was no reason to deny Swazuri chance to discharge his duties by issuing the tough bail conditions.