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Suspended CSs Ngilu, Kamau challenge legal status of EACC in graft cases

COUNTIES
By Fred Makana | July 23rd 2015

The war against corruption could be dealt a fatal blow following constitutional issues raised on the integrity of the Ethics and Anti-Corruption Commission (EACC).

And yesterday the criminal case against suspended Cabinet Secretary Michael Kamau was suspended by the anti-corruption court.

Kamau’s lawyers Paul Muite and Edward Oonge told the court the High Court had found there were valid constitutional issues touching on the integrity of EACC.

And suspended Lands Cabinet Secretary Charity Ngilu through her lawyer Kioko Kilukumi also moved to the High Court to challenge the constitutionality of EACCand her prosecution over the Sh8 billion land in Karen.

Kilukumi says EACC is not legally constituted and lacks the legal and constitutional mandate to conduct investigations and recommend prosecutions.

The criminal case against suspended Cabinet Secretary Michael Kamau has been temporarily stopped by an anti-corruption court.

Kamau's case was stopped yesterday as suspended Lands Cabinet Secretary Charity Ngilu also moved to the High Court to challenge her prosecution over the Sh8 billion land in Karen.

The Transport Cabinet Secretary's case was stopped following a case that was lodged by his lawyers Paul Muite and Edward Oonge at the High Court against the Ethics and Anti-Corruption Commission (EACC). The lawyers told the court yesterday that the High Court had found there were valid constitutional issues touching on the integrity of EACC.

They told Chief Magistrate Lawrence Mugambi that the application had been argued and the ruling will be made on October 16. They said the court is likely to stay the proceedings before the trial court.

The magistrate's court directed that the hearing proceed on October 26, after the communication from the High Court.

Ngilu, through lawyer Kioko Kilukumi, is challenging the constitutionality of the commission and Criminal Investigations Department to investigate and recommend her prosecution.

She argued that her prosecution is an abuse of the court process because investigations into the acquisition of 134.4 acres she is alleged to have obstructed ultimately resulted in the charges against her co-petitioners in the suit.

She wants High Court judge Mumbi Ngugi to temporarily stop her prosecution before the magistrate's court, pending hearing and determination of her application.

Her co-petitioners in the suit are suspended senior Ministry of Lands officials Sarah Mwenda (Chief Land Registrar), Geoffrey Birundu (Deputy Chief Land Registrar), Polly Gitimu (Senior Deputy Director of Survey), Mark Wanderi (Registrar of Titles), Macmillan Mutiso and James Mbaluka.

EACC, the DPP and Milimani Chief Magistrate's court have been listed as respondents in the suit while Josphat Konzolo and Telesource Ltd are named as interested parties.

Kilukumi says EACC is not constitutionally, legally and properly constituted and lacks the legal and constitutional mandate to conduct investigations and recommend prosecutions.

"The land, which is the subject of the alleged offence is private land and not public land hence it does not fall within the jurisdiction of the EACC to investigate," he told the judge and urged her to certify the matter as urgent.

The judge directed Ngilu's lawyers to serve the respondents and appear before her on July 28 for inter-partes hearing.

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