Transfer of CBK boss case faulted
What you need to know:
- Anti-graft agency questions why suit seeking to stop Prof Njuguna Ndung’u’s arrest was moved from one judge to another without explanation
- EACC head has written to Chief Justice saying transfer of Central Bank boss Njuguna Ndungu’s case from one judge to another was suspicious.
The Ethics and Anti-Corruption Commission has protested the way in which a hearing in February around its intended prosecution of Central Bank governor Njuguna Ndung’u was moved at the last minute from one judge to another.
The anti-graft body wrote soon after to Chief Justice Willy Mutunga questioning why the file for an application by Prof Ndung’u seeking to stop his arrest and prosecution for abuse of office was withdrawn from Lady Justice Mumbi Ngugi and handed to Mr Justice David Majanja without explanation.
Dr Mutunga explained that the matter had been moved to a different judge through a an error by a court clerk.
According to the online version of the Cause List, the document that outlines the cases that would be heard by various judges, Judge Ngugi was meant to hear the matter in the presence of both parties at 9am on February 14. However, a hard copy cause list was supplied to the courts showing that the matter was before Judge Majanja.
The abrupt switch, the Nation has established, angered the EACC, which wrote a protest letter to the Chief Justice.
“We wish to register with you our dissatisfaction with how the matter was handled on February 14, 2014,” the commission wrote in a letter dated March 3.
Prof Ndung’u had on February 13 filed a petition seeking to stop the commission from charging him in relation to the tender for installing an Integrated Security System at the Central Bank of Kenya.
He also applied under a certificate of urgency for “conservatory” orders to stop his arrest and prosecution pending the hearing and determination of his petition.
Justice Ngugi certified the application as urgent and directed Prof Ndung’u to serve the anti-corruption watchdog and three others, ahead of a hearing of both parties on February 14.
“As per the online version of the cause list, the matter was listed before Lady Justice Ngugi,” the EACC argued in its letter to Dr Mutunga. “However, on reaching the court, our representative was informed by the advocate for the petitioner that the matter was before Mr Justice Majanja.”
According to the documents, Mr Justice Majanja issued conservatory orders pending the hearing and determination of the “petition without hearing the parties”. He then directed that the matter be mentioned before Justice Ngugi on March 12.
“The practice as we know it is that the judge who certifies a matter urgent becomes seized of it unless of course he/she is not in court,” the EACC protest letter said. “That the cause list was changed removing the matter from Lady Justice Ngugi to Justice Majanja is suspect.”
The commission said it had decided to notify the Dr Mutunga of the matter because it was in charge of enforcing integrity.
“The purpose of this letter is to draw your attention to this incidence which the commission finds most disturbing,” said the letter signed by Mr Halakhe Waqo, the commission’s secretary.
On March 14, the EACC again wrote to Dr Mutunga, acknowledging his letter and two others from the said judges. In the letter, the commission questioned an explanation given by Dr Mutunga and sought further clarification after it was informed that the case had been switched “mistakenly”.
“It is not clear to us how the matter was mistakenly listed before Justice Ngugi,” the EACC said in Mr Waqo’s letter.
He said the matter had been properly before Lady Justice Ngugi. “Whereas we will allow the matter to rest, you may need to establish the mistake the clerk had in mind,” it said.
