Wednesday, September 12th, 2018
The Environment and Land Court has issued temporary orders stopping any physical activities on land where Alliance hotels, owned by the late veteran politician Kenneth Matiba, stands in the South Coast.
Alliance Hotels Ltd and Alliance Nominees Ltd, which are associated with the late politician, are challenging a decision by the National Land Commission to revoke titles to three parcels of land.
The two companies, which have also sued the Registrar of Lands, Kwale, and eight other people, want the court to issue an injunction restraining the respondents from trespassing or dealing in any way with the properties pending hearing and determination of their (companies) application.
They are also seeking an order suspending all suits or proceedings involving the parcels of land filed at any court, tribunal or statutory body.
On Wednesday, Justice Anne Omolo also restrained all parties from selling or leasing the properties pending the hearing of the application, or further orders of the court.
According to the companies, by way of communication received from NLC, they were advised that pursuant to a hearing held on December 14, 2016, the land agency made a determination that they had acquired the properties illegally.
They argue that NLC ordered the cancellation of their titles to the properties which was directed to the Registrar of Lands, Kwale, with eight residents being the ultimate beneficiaries of the titles to be issued.
SERVED WITH NOTICES
“The petitioners are surprised by this turn of events, especially noting that they were never served with notices or in any way involved in the hearings conducted by the NLC despite the proceedings touching on properties registered to them,” the application by the companies reads in part.
The petitioners also claim that they were being advised by locals neighbouring the properties that they (properties) were covertly advertised for sale.
Justice Omollo also directed the respondents to file their responses to the application within the next 21 days. The application has been fixed for hearing on October 23.
The Sh20 billion Shimoni Port project on the sea border of Kenya and Tanzania border will be undertaken through a public-private partnership (PPP).
The fishing port of Shimoni is one of the 11 small facilities, Kenya Ports Authority (KPA) wants to develop countrywide in an ambitious multibillion shillings programme.
This revelation by KPA on Wednesday has attracted divergent views from players, with those supporting it saying it would promote trade.
“We want to make Shimoni Port a fishing port so we will build a multi-purpose berth that will incorporate fishing and handle other cargo.
“We will also do cold storage facilities at Shimoni and value addition facilities, including those for fish processing. That, however, will be done under PPP arrangement,” said acting KPA managing director Daniel Manduku yesterday, in an exclusive interview with the Nation.
He added: “KPA and a private entity will engage in the joint venture for the Shimoni port.”
Dr Manduku said the port in Kwale is supposed to be a fishing port and will be upgraded to handle other imports.
And reacting to KPA’s plans, Kenya International Freight and Warehousing Association (KIFWA) national chairman William Ojonyo said devolving the authority’s services “is a good idea.”
“But that should not be a solution to the problems today. Devolving will definitely make business easier and better, but the problems of today must be dealt with as such, without thinking of taking cargo elsewhere,” said Mr Ojonyo.
Mr Ojonyo blamed the current cargo problems at the port of Mombasa on inefficiency caused by agencies like Kenya Revenue Authority.
SIGN OF DEVELOPMENT
Dock Workers Union secretary general Simon Sang welcomed the new port saying it was a sign of development.
“In developed countries, there are many ports that push up the impact of their economies,” said Mr Sang.
The move will reduce cargo congestion both at the port of Mombasa and the Nairobi Inland Container Depot, he added.
“Efficiency starts with adequate space, because the biggest challenges we have at Mombasa port and ICD is that we had never had enough space to be able to arrange containers,” said Mr Sang.
Dr Manduku outlined a number of expansion programmes that will cost the organisation billions of shillings.
The programme is meant to make the parastatal remain competitive by expanding its physical properties found in key strategic areas for trade.
He said a contract for the building of the Sh40 billion Kipevu Oil Terminal (KOT) has been awarded to China Communication Construction Company and work is to start.
The new modern terminal will have the capacity to handle four vessels of up to 100,000 DWT (Dead Weight Tonne), with a Liquid Petroleum Gas (LPG) line.
“We are soon embarking on the construction of Kipevu Oil Terminal for the discharge of fuel to the tanks owned by Kenya Pipeline Corporation and other oil companies. The project will cost about USD400 million (Sh40 billion),” he said.
The taxman is looking to seize and auction property owned by a firm associated with controversial businessman Kamlesh Pattni to recover unpaid levies of Sh2.2 billion.
Already, the Kenya Revenue Authority (KRA) has hired Keysian Auctioneers to attach office furniture and fittings owned by the Pattni-associated Diplomatic Duty Free Limited over taxes of Sh784 million and penalties amounting to Sh1.459 billion.
Court records now show that auctioneers walked into a 2,137 square foot duty-free shop on the first floor of Jomo Kenyatta International Airport’s Wing B and secured several office furniture and fittings despite protests from the employees, who claimed that the agents had seized assets of a different company.
Keysian Auctioneers was to make Sh88.3 million from the seizure and auction of Diplomatic Duty Free’s assets.
The duty-free shop raided by Keysian Auctioneers on July 9 was under the name Suzan General Trading JLT, which is also associated with Mr Pattni. A day later, Suzan General wrote a protest letter to KRA demanding release of its property, with a threat to sue.
Keysian Auctioneers in the inventory stated that it was given permission to attach assets owned by Diplomatic Duty Free or any company related to it.
The documents Suzan General has filed in court do not indicate whether the taxman listed it as Diplomatic Duty Free’s sister company.
A week later, Suzan General moved to court arguing that the taxman’s seizure was a ploy to force it into paying taxes owed by a separate firm — Diplomatic Duty Free.
High Court judge Pauline Nyamweya issued a temporary order barring KRA and Keysian Auctioneers — from auctioning Suzan General’s goods.
The taxman is yet to respond to Suzan General’s suit. Justice Nyamweya granted KRA time to correct a few errors in its replying affidavit.
The judge has ordered Suzan General and KRA to appear before her on October 9 for further directions. “None of the goods and chattels purportedly secured and left at Suzan General’s premises are owned by Diplomatic Duty Free Limited,” the firm’s general manager Asif Abbas says. Suzan General is a United Arab Emirates-registered firm. It obtained authority to operate in Kenya as a foreign company on March 30, 2010, just three months after being incorporated.
While it is associated with Mr Pattni, the only listed shareholder, as per documents filed in court, is Marwa Investment Limited. Marwa Investment owns 300 shares each valued at 1000 Dirham (Sh27,488).
Keysian was yet to carry out a valuation of the goods seized. The auctioneer however noted in the inventory that a warrant of attachment was served on a Suzan General employee only identified as Mr Mugo, who refused to sign the document.
Diplomatic Duty Free ran duty-free shops at JKIA until 2013 when the Kenya Airports Authority repossessed the space and advertised tenders. The taxes KRA is demanding date back to 2013, some of which relate to alcoholic drinks Diplomatic Duty Free had in its stores before being evicted from JKIA.
KRA debt enforcement manager Asha K Salim wrote to Diplomatic Duty Free on July 9, demanding payment of the taxes and penalties, failure to which would lead to enforcement. The taxman first demanded taxes from Diplomatic Duty Free in October 2013, the court documents show.
The Ministry of Agriculture has dismissed claims that a huge chunk of the funds allocated for the procurement of grain meant for the Strategic Food Reserve (SFR) was used to buy maize from Uganda and Tanzania.
The ministry further denied claims that the bigger portion of the maize procured by the National Cereals and Produce Board (NCPB) was brought in from the two neighbouring countries.
“Claims that a large consignment of maize procured by the NCPB was imported from Uganda and Tanzania, are, at best, rumours. As a ministry, we did an audit and there was no evidence of importation of the grain from the two countries,” the Ministry’s Chief Administrative Secretary (CAS), Mr Kello Harsama, told a committee of the Senate on Wednesday. The Senate Select Committee is investigating the crisis facing the maize sub-sector.
The CAS made the revelation even as the committee was told that the government, under the maize subsidy programme and replenishment of the SFR in 2017, procured 10.5 million, 90kg bags of maize.
This was against the government’s approved quantity of 12.6 million bags. During last year’s harvest, the government offered Sh3,200 for a 90kg bag of maize.
This motivated both farmers and traders who opted to take their maize to NCPB.
However, the ministry was not able to absorb all the maize offered by the farmers, culminating in some malpractices that saw some unscrupulous traders use all means to sell their commodity to NCPB.
The CAS said investigations had established that it was the local traders who took advantage of the good prices offered by the state to buy from the farmers and sell to the NCPB.
The committee is probing the crisis reported in the procurement of maize and which has left genuine farmers still waiting to be paid Sh3.5 billion for deliveries made since last year. It is further trying to establish why traders were paid for the deliveries estimated to be Sh8 billion at the expense of the farmers.
“While a majority of the suppliers were traders, we have established that they bought the commodity from the genuine farmers and resold it to NCPB,” said Mr Harsama.
He added: “There are farmers who rightly or wrongly felt that NCPB always delays their payments. It takes 6 to 7 months to pay farmers after delivery. Farmers want quick money because of the many pressing problems that is why they sold to the traders nearly all their maize.”
The CAS had appeared before the committee alongside the Principal Secretary for Agriculture and Research Hamadi Boga, acting NCPB managing director Albin Sang and the Agricultural Finance Corporation (AFC) head of operations, Ms Millicent Omukaga.
His assertion was received with scepticism by the committee which reminded him of reports of a huge consignment of maize which had entered the country through the Suam border point in Trans Nzoia during the end of last year.
Both the Council of Governors (CoG) and the Agriculture CEC from Trans Nzoia have separately appeared before the committee and said the maize that NCPB procured was imported, prejudicing the interests of the local farmers.
Trans Nzoia Senator Michael Mbito questioned the assertion, accusing the CAS of diverting attention from the failures the government had visited upon the farmers, noting that it is the traders who had saved the situation for the poor farmers by buying the maize.
A landmark ruling in the Court of Appeal in New Zealand has for the first time recognised the existence of a new “public interest defence to defamation claims” arising from mass publications — which gives journalists more room to handle stories and extra immunity from possible suits.
Previously, the only recognised privileged information was what was contained in court and parliamentary proceedings and public interest was not taken as a defence to defamation.
Specialists in media law have lauded it as one of the “most significant decisions in defamation law for many, many decades”.
The court held that the qualified privilege as previously recognised in the Lange V Atkinson, an established case law on qualified privilege and whose authority was previously cited in defamation cases in Kenya, has now been set aside.
“The new defence is not confined to parliamentarians or political issues, but extends to all matters of public concern,” the New Zealand court ruled in a case now referred as Durie Anor V Gardiner and Anor.
Building on new developments in the English and Canadian laws, the New Zealand court has concluded that time has come to strike a new balance between the right to protection of reputation and the right to freedom of expression by recognising the existence of a new defence wider than that in the Lange v Atkinson decisions.
“The new defence requires the subject matter of the publication to be of public interest, and the communication to be responsible. Both are to be determined by the judge,” a statement from the court on the landmark decision said.
This new defence “is available to all who publish material in any medium, and is not part of the rubric of qualified privilege”.
Kenya has, of late, been struggling to redefine the laws of defamation and extend the frontier of freedom of expression while also protecting the public interest and rights to reputation.
In 2017, Justice John Mativo declared criminal defamation offence as “unconstitutional (and) not reasonably justifiable in a democratic society.”
“Criminal sanctions on speech ought to be reserved for the most serious cases,” he said referring to propaganda for war; incitement to violence; hate speech; and advocacy of hatred, which are not protected.
The media in Kenya has often been forced to pay hefty fines as a result of libel suits filed by public officials following a trend set during the last days of Kanu rule when Cabinet minister Nicholas Biwott was awarded Sh67.5 million from four cases he had sued a number of individuals and firms, among them a British pathologist, and two bookshops.
The High Court in 2016 awarded Justice Alnasir Visram Sh26 million in a libel suit against The Standard newspaper.
News organisations have usually relied on a House of Lords ruling in the Reynolds case which had sought to protect “responsible journalism” against hefty libel fines, even if they cannot prove the truth of what they have published.
Before the Reynolds case in October 1999, newspapers in UK were being forced, even when they had carried accurate reports, to pay damages if they could not prove what was published was true.
The Reynold’s case gave newspapers some protection, especially in Europe, if they published information that the public was entitled to know, although it never protected malice.
The electoral commission on Wednesday used the dismissal of 90 per cent of the 300 election petitions as an indication of a well-managed 2017 poll despite the annulment of the presidential election.
The Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati told a post-poll evaluation forum that the agency had done a good job.
“The commission did well, and we are proud of what we did. Out of the 14,523 candidates we had, only 25 of the 300 that were dissatisfied with the way we conducted the polls succeeded in the courts,” said Mr Chebukati at the Sarova Panafric Hotel, where the IEBC is holding a two-day national post-election evaluation meeting.
A total of 388 petitions were filed in courts after the election, most of them given traction by the historic decision by the Supreme Court to invalidate the re-election of President Uhuru Kenyatta citing “illegalities, and irregularities”.
Of the 388 cases, 88 were those challenging the nomination of various candidates by parties to different seats.
Of the 209 appeals at the Supreme Court, Court of Appeal and the High Court, at least 56 per cent of them had been dismissed by July 27, when the Judiciary released its latest logs of the petitions.
And while the petitions increased in number in 2017 from the 188 lodged in the previous General Election, the rate of success declined, with 24 of the 2013 poll cases allowed against 115 that were dismissed, 17 that were withdrawn, and 31 struck out on technical grounds.
On Wednesday, Mr Chebukati asked Parliament and the Treasury to ensure a continuous funding of the commission, saying lump sum release of funds very close to the elections was ineffective.
ESTABLISH IEBC FUND
“The election cycle never ends, and we have activities that should be funded throughout the time,” Mr Chebukati said, calling for the establishment of the IEBC Fund”
Speaking at the forum, National Assembly Justice and Legal Affairs Committee chairman William Cheptumo described the lack of quorum to conduct plenary at the IEBC as issue that should be fixed.
Four of the seven commissioners left their jobs at the commission leaving only Mr Chebukati, Mr Boya Molu, and Prof Abdi Guliye at work
The family of Sharon Otieno, the slain Rongo University student will today bury the baby she would have delivered in two months, even as they called on President Uhuru Kenyatta to ensure justice for their daughter.
On Wednesday, they said they lacked words to express their agony over her gruesome death.
With many unanswered questions about her death, the pain and shock of losing their first-born child is palpable.
Witnessing the post-mortem on their daughter at the Rachuonyo level four hospital last week haunts them.
“This is too much for us to bear. Why did they have to slaughter her like that? I want to know why Sharon was killed,” says Sharon’s mother, Ms Melida Auma.
“It is my humble request to President Uhuru to look into this issue so that the truth is known,” said Ms Auma.
“It has been hard for us. Very hard indeed. We have gone through a lot since Sharon disappeared. We want this matter put to rest. We want peace but this will be possible only after her killers are exposed and charged,” said the mother of four.
She had hoped her daughter, a second year medical records and information student at Rongo University, wouldcomplete her course, join the health sector and help her siblings, the last of whom is a girl in Standard Five.
When the Nation visited their Magare village home in Homa Bay County, there was little going on. At the far end near the entrance were a group of men constructing a semi-permanent structure.
“We have had many visitors here since Sharon’s death. Your death has brought them. But we are tired of this issue and leave it to God and the State. We can only plead for justice for you, my beloved child,” says Ms Otieno’s mother, as if directly addressing her.
Her father, Mr Douglas Otieno, says little, overcome by emotions. All he wants is justice for his daughter and her unborn baby.
“Why did they have to kill an innocent child? Why?” he asks, walking away. “Look at me,” he says, when he returns after a while, “I cannot even attend the court proceedings in Nairobi because I cannot afford the fare. Being unable to see how the case unfolds just adds to my grief.”
TREATED WITH DIGNITY
“Even animals are treated with … dignity in death,” says Ms Otieno’s grandmother, Ms Rosemary Nyargiambandi
She says they are ready to do what it takes in their quest for justice for their daughter.
“We will even push these mountains. What is wrong with you people? Why even kill an innocent child? Justimagine if Sharon were your daughter, would you have done the same thing?” she asks her granddaughter’s unknown killers.
Ugandan security forces have rejected an attempt by Kenyan authorities to raise a flag on the disputed Migingo Island, in the latest incident that could indicate that the long-drawn conflict is far from over.
The Ugandans pulled down a Kenyan flag that had been hoisted on the fishing island in Lake Victoria, despite an initial agreement for joint policing of the one-acre piece of rock surrounded by fish-rich water.
“They pulled down the flag and warned the Kenyan police deployed on the island against making such attempts again,” said Migingo beach management unit chairman, Mr John Obunge. Although the island is being co-manned by Kenyan and Ugandan security forces, only the Ugandan flag is allowed to fly.
To avoid a potential clash, the Kenyan security forces backed down after the aggressive Ugandan officers pulled down the flag and removed the post. But Kenyan fishermen taunted the Ugandans for disrespecting the Kenyan flag.
Migori county police commandant Mr Joseph Nthenge described the situation as calm soon after the incident. “The flag was hoisted by other civil servants and not the police,” he said. Mr Obunge and other fishermen, however, disputed this saying that it was the police who put up the flag.
“Our officers argued that the flag must always be hoisted at a police post but the Ugandans would not listen to them,” said the beach boss.
The Ugandan contingent on the island is larger in size than the Kenyan one. Last week, Nyatike MP Tom Odege accused the national government of continuously paying lip service to the Migingo ownership row.
He said the dispute pitting Kenya and Uganda has dragged on since 2004 yet the Government “appears not interested in resolving this matter permanently”.
“It is sad that arbitrary arrests and intimidation continues to be visited upon Kenyan fishermen in Lake Victoria despite persistent calls from leaders to have the matter resolved,” said Mr Odege.
He noted that former President Mwai Kibaki failed to conclude the matter and “it appears President Uhuru Kenyatta may also exit office in 2022 without putting this dispute to rest”.
“The Ugandan security forces continue to arrest our people who are doing business on the island. President Kenyatta must revisit this matter with his Ugandan counterpart Yoweri Museveni because he swore to protect all the Kenyan boundaries in his capacity as the commander-in-chief,” said Mr Odege.
Senate Minority Leader James Orengo said the Migingo row should be taken to the International Court of Justice (ICJ) for arbitration. The Siaya Senator said all colonial maps showed that the island belonged to Kenya.
“The dispute has become an embarrassment to us and we must resolve it now using the goodwill created by the handshake between our two top leaders,” noted Mr Orengo. He said the international court has in the past handled territorial disputes of similar nature between other countries.
The government will start imposing instant fines on minor traffic offences in the next 30 days, Interior Cabinet Secretary, Fred Matiang’i said on Wednesday.
Dr Matiang’i said the rules would enhance convenience in the judicial process and reduce the number of inmates in prisons.
“There are currently 6,000 to 7,000 people on remand for traffic offences and each of them may be consuming Sh6,000 which to me does not make economic sense,” Dr Matiang’i said.
IMPLEMENTING NEW RULES
The CS announced that together with his counterparts; Joe Mucheru (ICT) and James Macharia (Transport and Infrastructure), they had formed a taskforce that will come up with the best framework for implementing the new rules.
The taskforce, which will be chaired by principal secretary in the Ministry of Transport, Esther Koimett, will lead consultations with the Judiciary, the National Transport Safety Authority (NTSA), and the offices of the Attorney-General and Solicitor-General to see to it that the new regulations take effect as planned.
“These rules make economic sense since most of the traffic offenders held in remand end up paying fines less than the amount the government spends to sustain them,” Dr Matiang’i said at the Kenya School of Government where he officiated the opening of the Inspector-General’s Conference.
The move by the Central Bank of Kenya to punish banks that handled cash looted from the National Youth Service will greatly boost the war against corruption.
Indeed, the only regret is that it is coming too late in the day when very many crimes have been committed, which the banks would have stopped.
Nevertheless, it sends a strong message that handling stolen cash or abetting activities of looters is not only illegal, but very costly.
CBK has fined five banks — Standard Chartered, KCB, Equity, Cooperative and Diamond Trust — Sh392.5 million for their failing to report dubious dealings, contrary to the law that obliges them to alert the regulator whenever they detect suspect transactions within their systems.
It is paradoxical that the banks never raised the alarm over the suspicious movement of NYS cash yet, ordinarily, they ask tough questions whenever they see huge transfers.
In the initial scandal at NYS in 2016, when Sh791 million was lost, some banks were reported to have allowed huge cash withdrawals without question, in contravention of banking rules and regulations.
In such cases, they cannot extricate themselves from culpability — they were clearly aware and complicit, which is quite absurd because of the trust the public bestows upon them.
Corruption is executed through a large network of individuals and institutions. Tackling it requires concerted and coordinated effort by state agencies, private sector institutions, the Judiciary and the Legislature. All play diverse roles in promoting the rule of law and a lapse by any of them creates a window for graft and theft.
Banks are particularly integral in the fight because they predominantly handle money. Cash transfers are made through them, except in the exceptional case of black market operations. And they are always smart enough to discover any irregular business.
So, they have no excuse for not reporting to CBK when some individuals or firms conduct cash transfers that seem out of the ordinary.
All the mega scandals have been aided in one way or the other by the banks. And the cost of graft is enormous.
Going forward, the Central Bank must intensify surveillance on commercial banks’ operations and those found to flout the rules heavily penalised.
In this regard, investigators should routinely expose banks that are used by the looters and the corrupt to transfer cash.
The argument is that the fight against graft must extend to all institutions and respective regulators are obliged to enforce penalties whenever players in their sectors transgress.