Kosgey seeks to block graft suit
A former minister wants a criminal case against him stopped until the legality of a special public prosecutor is established.
Suspended Industrialisation minister Henry Kosgey wants the court to allow him file a judicial review challenging the authority of Mr Patrick Kiage, whose term expired before abuse of office charges were brought against him.
If granted leave and he successfully argues against Mr Kiage’s appointment, the MP could be let off the hook and criminal charges against him declared null and void.
Through lawyers Fred Ngatia and Kioko Kilukumi, the Tinderet MP argues that under section 85 of the Criminal Procedure Act, any appointment of a special public prosecutor can only be done and gazetted by the Attorney-General.
According to Mr Ngatia, the one-year term Mr Kiage was gazetted to serve as special prosecutor expired in February 2008 and was never renewed through a gazette notice as required by law.
“Upon expiry of that term, no other appointment has been made under the hand of the AG. Mr Kiage has conducted the criminal trial of Mr Kosgey illegally because any subsequent extension of his contract was not gazetted,” said Mr Ngatia.
He said that any person conducting prosecution has no power in law to hold himself as public prosecutor without an appointment, adding that in the event this happens, the legal consequence is that the proceedings shall be declared null and void.
Mr Ngatia dismissed the defence submitted by Mr Kiage that he is a public servant as lacking in merit and insincere since he is a senior partner at a private law firm and a lecturer at Catholic University.
In any event, Mr Ngatia submitted, Mr Kiage should be punished for engaging in other activities contrary to his appointment, which stated that he should not be involved in other gainful employment.
However, Mr Kiage defended himself, saying he was appointed to a unit within the AG’s office hence there was no need to make another gazette notice upon the expiry and renewal of his term.
He explained that his term has been renewed twice until February 2013 and that at the time he begun prosecuting Mr Kosgey, he was duly appointed as a special public prosecutor by the Public Service Commission.
Mr Kosgey moved to the High Court to challenge the legal authority of Mr Kiage to prosecute him after an anti-corruption court ruled that he has a case to answer over abuse of office charges. (READ: Court rules Kosgey has case to answer)
The suspended minister is accused of using his office to improperly confer a benefit to various individuals and companies by exempting a total of 113 units of motor vehicles imported from the application of a rule that outlaws importation of overage vehicles.
The Tinderet MP has denied the charges, maintaining that he acted within the law. The hearing of the application challenging Mr Kiage’s authority to prosecute him will continue on September 27.
