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Officer to lose property for ‘fixing’ the innocent

By Julius Chepkwony | November 17th 2020

 Acting Director of Administration in the State Department for Gender Affairs Joseph Motari when he appeared in court. [File, Standard]

Public servants maliciously inflicting injury and emotional distress to citizens will have no personal protection and immunity afforded by virtue of their office, a court has ruled.

Nakuru High Court Judge Joel Ngugi, in a ruling delivered last week, said such officials should expect consequences for their actions.

The judge made the ruling in a case where the Acting Director of Administration in the State Department for Gender Affairs Joseph Motari had been sued by six people following their acquittal. The six individuals had been accused of hindering the burial of a body.

“The court was reminding all public servants that their offices are clothed with public power to be exercised in accordance with the Constitution, the law and their oath of office. Public officers should not excitedly and maliciously exercise power at the behest of the politically powerful to harm those perceived to be on the wrong side of the political divide at a given political moment,” read the judgement in part.

Motari’s property is facing the auctioneers’ hammer following the ruling.

Kimunai ole Kimeiwa, Dan Ashitiva Daudi, Sylvester Kibet Totona, Musa Chemitei Kipkamba, Amos Kibet Konyaei, and Francis Mungai Thuo, through lawyer Kipkoech Ng’etich, instituted a civil suit in 2014 claiming that they were wrongly and maliciously prosecuted.

They wanted the court to declare that their rights had been violated and that they be compensated by the State for violation of their constitutional rights.

They sued Motari, District Criminal Investigations officer, principal secretary, Ministry of Interior Coordination of National Government and the Attorney General.

In their suit, they claimed that they were being used as “sacrificial lambs” and that the real target was then Rongai Member of Parliament Luka Kigen, who had differences with Motari. They claimed that the act of disinterment was actually done by the office of Motari and that their arrests were baseless.

They said Motari wanted them to falsely confess that it was Kigen who had disinterred the body and that they were only charged when they refused to do so.    

They were arrested on various dates between December 7 and 15, 2011, and charged under section 137 as read together with section 36 of the Penal Code.

At the time of their arrest, Motari served as the District Commissioner of Rongai.

The charge sheet said that on the nights of November 30, 2011, and December 1, 2011, at Banita Farm in Rongai District within Rift Valley Province, jointly with others not presented to the court, they unlawfully disinterred the body of Francis Mbuthia and removed it to Banita dispensary.

In their pleadings, the six said after they were arrested and held beyond the constitutionally-mandated period of 24 hours, they were eventually charged at the Chief Magistrate’s Court in Nakuru. They were later acquitted by the court on October 31, 2013, under section 210 of the Criminal Procedure Code.

The trial magistrate concluded that the prosecution had not established a prima facie case warranting the six to be put on their defence.

On January 16, 2019, the six were awarded Sh800,000 each. The court directed that the award should earn interest from the date of judgement. Motari was found culpable and asked to pay the six.

The award has since accumulated to Sh6,152,777.

The six individuals had sought orders by the court to allow them to attach Motari’s movable property.

Motari, on the other hand, sought a stay of warrants of attachment.

He filed an application against the six, claiming that he is a public officer and should not have been sued in his individual capacity.

The court noted that the Attorney General, in the case by Motari, attempted to litigate an issue that had been dealt with before court.

The court held that Motari was liable for his actions against the six.

“Such an official is, in the famous Torts-speak, on a frolic of his own. On such a frolic, he should expect consequences of his actions; consequences which are not inoculated by either the Constitution or a statutory law,” read the judgement.

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