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Lawyers go after DPP in Mombasa magistrate drug mishandling case

By David Ochami and Joackim Bwana | September 13th 2019
Prosecution Counsels' Alexander Muteti and other prosecutors at the Mombasa High Court in Mombasa County. [Photo, Kelvin Karani]

The State prosecutor has come under attack for his handling of a case targeting Mombasa Principal Magistrate Edgar Kagoni.

Lawyers representing Mr Kagoni said yesterday the Director of Public Prosecution (DPP) Noordin Hajj was breaking the law by pursuing the case against Mr Kagoni.

The two lawyers - Elisha Ongoya and Nelson Havi - said judges and magistrates have a legal immunity that the DPP is not respecting.

They also argued that the DPP has not cited the laws that Kagoni has broken before prosecuting him.

Kagoni was arrested on Friday last week for allegedly mishandling a consignment of narcotics seized from a drug trafficking suspect Hussein Masoud Eid Bakari earlier this year.

The narcotics allegedly vanished from court  stores after Mr Hussein’s conviction, and the DPP is blaming Kagoni.

“The behaviour of the DPP in this matter is one that will require a sociological inquiry long after the matter is settled,” said Mr Ongoya.

He noted that the DPPs actions will make judicial officers cringe in fear that their rulings  could land them in prison.

Mr Havi said there was no evidence showing that the State made an application to have the narcotics seized from Hussein placed in police custody.

The lawyers also accuse the DPP and the Director of Criminal Investigation (DCI) of launching a criminal prosecution against a sitting magistrate out of "wounded pride".

They said the failed attempt to charge Deputy Chief Justice Philomena Mwilu must have hurt the egos of both of State officials and that is why they were targeting Kagoni.

The lawyers noted that unless the prosecution arm of the State is stopped on its tracks, the attack on judicial officers will continue.

Ongoya argued that the DPP’s decision to prosecute Kagoni for actions made in delivery of his constitutional mandate violated the Constitution.

He argued that, traditionally and according to the Constitution, magistrates should not suffer civil or criminal liabilities for actions undertaken in public interest.

Havi said the intended prosecution of the magistrate violated articles 2, 10, 157 and 160 of the Constitution.

He said it also violated other statutes including the Judicature Act, Penal Code and the Judicial Service Commission JSC Act.

He said it was troubling that although the DPP appeared aggrieved by some aspects of the ruling made by Kagoni in Hussein’s trial, he still has not found it suitable to appeal the ruling.

“The DPP did not appeal the ruling by the magistrate. Why is he now pursuing a criminal prosecution against him?” Havi asked.

The lawyer said that logically and constitutionally the magistrate could not be held accountable for the drug exhibits after concluding the trial.

He said that even if the magistrate made an error in failing to order a proper handling of the exhibits,  still it did not mean that he could be arrested.

Havi said the DPP has not cited any law when alleging that Kagoni aided in the trafficking of the narcotics.

The lawyer noted that in Kenyan practice, custody of exhibits is the preserve of the courts.

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