Appeals Court Judge linked to Tob Cohen's murder awarded Sh2.5 million

Court of Appeal Judge Sankale Ole Kantai was arrested by DCI following the death of businessman Tob Cohen. [File, Standard]

The High Court has put on the spot former Director of Criminal Investigation (DCI) George Kinoti over the arrest of Court of Appeal Judge Sankale Ole Kantai following the death of businessman Tob Cohen.

In his judgment, Justice Chacha Mwita said the DCI violated the Constitution by arresting the judge, confiscating his mobile phone and subsequently going on a smear campaign.

 The Judge said the data extracted from the phone cannot be used against the judge. He also permanently barred the State from pursuing him over the same claims.

In his judgment, read by High Court Judge Roselyn Aburili, the now Court of Appeal Judge observed that the investigator who had been directed to sign an affidavit against Justice Kantai subsequently disowned it and claimed that Kinoti had required him to sign a one-page document which he did not know what it was about.

“It was malicious; it was also made in bad faith with the intention of causing embarrassment, humiliation and maximum reputation damage. The respondent’s actions violated the rights of the petitioner to dignity, privacy and caused considerable damage to the petitioner’s character,” said Justice Aburili.

For the violations, the court awarded Justice Kantai Sh2.5 million.

READ: Court stops Cohen's sister from seeking removal of judge over tycoon's murder

In court, the DPP said that after a review of the evidence file handed to his office by the Directorate of Criminal Investigations (DCI), there were gaps that created

Senior Assistant DPP Victor Mule swore an affidavit on behalf of the DPP.

According to Mule, the then Kinoti-led agency had initially submitted two files and wanted Sarah Cohen, the businessman’s widow, to be charged alongside the judge.

He said that the ODPP returned the file to the agency, recommending that they seal the gaps he had identified within 14 days before a conclusive decision could be made.  The ODPP returned the file on March 17, 2020.

The DPP further stated that the DCI did not return the file as had been directed despite several reminders to do so.

He stated that he opted to use the evidence submitted to him after the DCI, on December 2, 2020, said it had covered all the areas that were required.

The prosecutor told the court that after reviewing the file, the evidence gathered by the DCI amounted to suspicions and assumptions but had nothing to place the judge in the murder plot.

“ It was evident that no inference of guilt could be drawn against the petitioner herein as the circumstantial evidence did not satisfy the requisite requirement and consequently, the same could not form the basis of preferring criminal charges against the petitioner,” argued Muli.

 Mule’s reply was in response to an affidavit which had been filed in the name of Senior Assistant Inspector General of Police John Gachomo. The document claimed that DCI had evidence against the senior judge, but the DPP, alongside judges and lawyers, allegedly conspired to protect him.

It also read that Kantai allegedly constantly communicated with Cohen’s widow, Sarah Wairimu Cohen, six hours after the businessman was murdered.

“One of the communication calls between the petitioner and Sarah Wairimu Kamotho lasted six minutes. The late Tob Cohen was murdered about six hours after this suspicious communication,” it read in part.

However, in the course of the case, Gachomo took an about-turn and disowned the document, throwing Kinoti under the bus.

In his fresh affidavit filed in court, Gachomo, who was the Director of the Investigations Bureau at DCI headquarters, said Kinoti duped him into signing an affidavit to implicate Justice Kantai for Cohen’s murder.

"I can confirm that the contents of the affidavit dated September 27, 2021, are neither based on facts nor documents from the file held by my office. The contents of the said affidavit are false and therefore retract, deny any knowledge and could not have been uttered by myself,” he stated.

The top investigator told the court that Kinoti had only given him a one-page document and directed him to sign. At the time, Gachomo claimed that his boss told him that the affidavit was urgent and that the office of the Attorney General would file the same in court.

"I complied with the directive by signing the one-page document on the understanding that the contents of the affidavit would be the official facts and documents held in the investigations file in respect of the matter," Gachomo said.

 The Office of the Attorney General filed the affidavit, he said, adding that it was only after he saw some of the contents in the media that he requested his boss to provide him with a copy of the filed documents.

ALSO READ: Judge sues police over 'humiliating, dramatic arrest'

He said he was shocked by some of the details in the filed documents.

The DPP said although DCI claimed that the judge edited the widow’s statement, the evidence they produced did not show correspondence between him and her. According to him, the DCI produced an email which had no attachment.

On the transfer of shares, the DPP argued that the documents by DCI showed that the inquiry arose out of an incident report by Wairimu. Again, he argued, there was no evidence to show that the judge forged the notification of directors’ and secretaries’ resolution dated July 15, 1999.

 The DPP also stated that DCI did not prove that Wairimu’s trip to Kisumu was to escape arrest through the help of the judge. According to him, this was based on suspicion which had no tangible evidence.

At the same time, the DPP disputes that Gachomo was in the team of investigators who probed the case. He said that the team involved was Chief Inspector Maxwell Otieno, Clement Mwangi, Ole Sina and Teresia Thirikwa. According to him, Thirikwa only attended a meeting to discuss the on April 13 last year. Ole Sina, on the other hand, did not attend any meetings.

 He stated that Otieno was transferred to Trans Nzoia, but the police did not inform him that there were any changes in the investigating team.

Mule further said he informed then Attorney General Kihara Kairuki about the officer, adding that his affidavit was meant to injure the DPP’s reputation.

The DPP had indicated that independent investigators ought to have been called to investigate the case. According to him, if DCI agreed to it, the file should have been handed to foreign investigators to assist in a joint investigation exercise.