Director of Public Prosecution Noordin Haji has failed in his quest to eject National Lands Commission boss Mohammed Swazuri from office.
Lady Justice Hedwig Ong’udi ruled that the DPP had not provided any evidence to warrant locking out Swazuri from office given that he has not breached the terms of his bond granted when he was charged with abuse of office.
“The court directed that he should not interfere with witnesses at his office and no evidence has been placed to suggest he breached that condition to warrant locking him out of office. Doing that will be disastrous and unjustified,” ruled Ong’udi.
She added that if the DPP was not satisfied with the decision to allow the NLC chairman back to office, the best remedy is to move to the Court of Appeal instead of seeking a review at the High Court.
The DPP had through state prosecutors Alexander Muteti and Victor Owiti wanted the court to suspend its order that allowed Prof Swazuri to access his office arguing that NLC commissioners do not enjoy immunity from prosecution and must step aside once facing a criminal prosecution.
Prof Swazuri was charged in August with abuse of office 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.
The trial magistrate had released him on a cash bail of Sh3.5 million with a condition that he cannot go back to his office pending the outcome of the case.
However, Justice Ong’udi reversed the magistrate’s condition and allowed Prof Swazuri to resume office, ruling that locking him out of office through tough bail conditions amounted to removing him from office through the back door.
But Mr Muteti argued that the judge’s decision will allow the NLC chairman to interfere with witnesses and wanted him stopped again from accessing the office until the DPP seeks redress at the Court of Appeal.
Prof Swazuri opposed the application arguing that it was time barred given that he had already resumed office on November 2.
According to the NLC chair, restraining him from accessing his office will occasion disservice and hardship to members of the public who require his services.
He added that he only has less than three months to the end of his term in February next year, and that locking him out will make it impossible to prepare a report for a smooth transition once a new commission is constituted.
Prof Swazuri reiterated that being a constitutional office holder, there is a clear process of removing him from office and that the criminal case is not a basis to lock him out.