Drama unfolded Wednesday at the High Court in Kitui when the county government disowned a letter reportedly written by their attorney warning against revoking the trading licence of Mt Kenya Wholesalers.
The letter addressed to the Chief Officer for Health and Sanitation, Dr Richard Muthoka, had advised against closing the warehouses without giving the trader “prior and adequate notice of the nature and reasons for the proposed action”.
The county's legal officer, Ms Rachel Osendo, warned that the arbitrary closure of the stores and revocation of the trading license without due process would expose the county government to the risk of judicial action.
“We would like to draw your attention to Article 47 of the Constitution which provides that “Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair,” Ms Osendo wrote in the letter tabled before Justice Lillian Mutende.
The letter, which generated heated exchanges between lawyers representing both parties, further cited the Fair Administrative Act, 2015, which provides that every person has a right to be given written reasons for any administrative actions taken against them.
But lawyers for the county government disowned the letter, questioning its authenticity and the identity of the author.
Two county officials said the letter was signed by an unknown person.
“No such office exists within the structure of the county government of Kitui or within the office of the county secretary and the letter amounts to hearsay and cannot be adduced as evidence before court” read the affidavit.
Lawyer Saili Malonza appearing for the county government argued that only the county secretary can issue directions or communicate any policy to the county executive officers.
This prompted lawyers for Mt Kenya Wholesalers to ask the court to summon the two county officials for cross examination over their claims that Ms Osendo was a stranger to the county government.
Lawyer Ndegwa Njiru for the trader told the court that the replying affidavit contained falsehoods and the allegations would further expose their client to criminal trial for lying under oath.
“The two officials therefore out to avail themselves for cross examination to enable the court to ascertain whether they are guilty of perjury” said Mr Njiru.
Justice Mutende ordered the two chief officers to appear before the duty judge in Makueni on September 5th to be cross examined on whether they lied in their affidavit on the authenticity of that letter by Ms Osendo.
The county health department closed the warehouses early this month after the proprietor Simon Mwangi was arrested by police over allegations of selling contaminated sugar.
A notice of closure, signed by Dr Muthoka, stated that the warehouse had failed to comply with the ministry's sanitation standards where they lacked proper ventilation for handling foodstuffs as well of toilets for workers.
The closure prompted the proprietor Mr Mwangi to seek court redress claiming that the closure of his warehouse was engineered by his business rivals in a desperate attempt to eliminate competition in Kitui.