Prosecutor in Kosgey abuse case says he is validly appointed

By Judy Ogutu

Special Prosecutor Patrick Kiage now says an application by a former minister challenging his legal authority to prosecute is an afterthought which is aimed at delaying the hearing of the abuse of office case the former minister faces.

Kiage who maintains he is employed as a public officer, civil servant and State Counsel on contractual terms, claims that former Industrialisation minister Henry Kosgey "is out to scuttle the conclusion of the case."

Last week, Kosgey, who is also Tinderet Member of Parliament (MP), lodged a case challenging the abuse of office charges against him.

The former minister wants the charges quashed on grounds that Kiage has no legal authority to prosecute him as he was only appointed Special Prosecutor for one year and the term expired in February 2008.

Kiage, who has been allowed into the matter as an interested party has made a professional undertaking not to pursue further proceedings in the abuse of office case against Kosgey until September 22, 2011.

The prosecutor wants the application thrown out with costs as it is "bereft of merit."

In a sworn statement in response to the suit, Kiage admits that it is true he was appointed Special Public Prosecutor and his appointment followed an interview with the Public Service Commission (PSC).

He says that he believes that as part of the State Law establishment, there was no legal or other requirement for the gazettement by the Attorney General (AG). Kiage also says by a letter dated February 5, 2009, the Solicitor General advised him that the PSC had indeed renewed his contract for two years with effect from February 15, 2009 up to and including February 14, 2011.

Further, he says he has been serving on contractual terms as an officer of the Department of Public Prosecutions and having been appointed by PSC, he does not need any Act or instrument to validate his employment and conduct of prosecutions.

Contract renewed

"I am currently serving yet another two-year contract renewed by the PSC from February 15, 2011 to February 14, 2013 as advised by the Solicitor General vide his letter to me dated February 23, 2011," he argues.

Kosgey, through lawyers Fred Ngatia and Kioko Kilukumi had argued that Kiage’s appointment was made by Attorney General (AG) Amos Wako under Section 85 (1) of the Criminal Procedure Act. "In addition thereto, the Director of Public Prosecution (DPP) who has been appointed under Article 157 of the Constitution has not gazetted the said Kiage as a Special Prosecutor and as a Prosecutor," he states in the papers filed in court.

Kosgey is seeking for orders stopping the hearing of the abuse of office case before the Chief Magistrate’s Court in Nairobi pending hearing and determination of the suit. It is alleged Kosgey used his office to improperly exempt individuals and companies importing the vehicles that did not meet Kenya Standards Code of Practice for Inspection of Road Vehicles.

The case will be heard on September 22.