Muchai loses first round in case seeking to freeze Cotu accounts

The Central Organisation of Trade Unions (Cotu) Deputy Secretary-General George Muchai has lost the first round of a legal tussle in which he is seeking the freezing of the giant workers union’s account over alleged financial impropriety.

The Industrial Court has dismissed Mr Muchai’s request to have his petition certified as raising a substantial question of law.

At the same time, Justice Nelson Abuodha refused to grant an onward referral of the case to the Chief Justice to appoint a bench of five judges to hear and determine it.

“I have reviewed the petition and it would seem to me to be making allegations of financial misappropriation thereby requiring the court to issue orders in the nature of freezing accounts held or associated with the ninth interested party (Cotu), a forensic audit of the accounts and possible prosecution of those found culpable,” Justice Abuodha said.

The judge said that it was now preferable that a court confronted with an application to refer a matter to the Chief Justice for appointing a bench “should lean against doing so in the interest of speedy administration of justice unless the matter sought to the panel raised a substantial question of law.”

“The proper test for determining whether a question of law is raised would be whether the issue is of general public importance and novel or open question in the sense that it has not been finally settled by a court of law or in a decision of the Supreme Court, “he said.

The judge added that Mr Muchai’s prayer to issue several injunctions as sought in the motion were “not novel or open issues that require empaneling of more than one judge bench.”

“It is in public domain that cases of huge financial scandals have been heard and determined by eminent judges alone without a referral to the Chief Justice,” the judge said.

He said Mr Muchai’s case had not made out a justifiable reason for a referral and dismissed it.

WANTED ACCOUNTS FROZEN

Mr Muchai moved to court on November 10, 2014, claiming that Cotu administrators were engaged in questionable financial dealings and wanted an order compelling the Kenya Commercial Bank, Barclays Bank of Kenya, Co-operative Bank of Kenya, and Eco Bank Kenya to freeze the union’s accounts until the case is heard and determined.

The first round loss now means that the court is left to determine other peripheral prayers including a request seeking the suspension of Cotu secretary-general Francis Atwoli, chairman Rajab Mwondi and trustees Rebecca Nyathogora, Francis Wangara, Joseph Nyabiya and Washington Adong, pending the hearing and determination of the petition.

“The sheer volume of paperwork and numerousness of parties and prayers sought do not qualify as substantial question of law to require a bench of more than one judge.

“In any event, whether the judge or several concurrent jurisdictions, their decision are only of persuasive authority and do not bind either,” justice Aboudha said.

He added: “From the foregoing, I reach the inevitable conclusion that the applicant has not made out a case to justify a referral to the CJ to constitute a five-judge bench and this prayer is hereby dismissed.”