Court quashes charges against magistrate Kagoni over loss of heroin

Thursday December 05 2019

The High Court has quashed criminal charges against Mombasa Principal Magistrate Edgar Kagoni over loss of a heroin exhibit worth Sh30 million in a case he presided over.

Malindi Resident Judge Reuben Nyakundi has also ordered the respondents in the petition to pay the magistrate Sh2 million as damages for infringing his rights.

The respondents in the case were the Directorate of Criminal Investigations (DCI), the Director of Public Prosecution (DPP) and the Attorney-General.

The Law Society of Kenya (LSK) and the Kenya Judges and Magistrates Association (KJMA) had been listed as interested parties in the case.


Justice Nyakundi noted that the magistrate performed his duty in the case.


He also said Mr Nyakundi's right to liberty during his arrest, under the presumption he had committed a crime, was violated.

The court also noted that the DPP's prosecution of the magistrate, based on a case in which he sentenced an accused person, was unconstitutional and an attempt at undermining judicial independence and the immunity of judicial officers.

“The respondent had the right to appeal on findings or even apply for judicial review. I find no prima facie evidence to guarantee criminal prosecution against the magistrate in view to the criminal proceedings case," he ruled.


However, Justice Nyakundi dismissed three other petitions related to the same matter, filed by court assistant Onesmus Momanyi, court executive assistant Abdallah Awadh and court staff Lawrence Thoya.

Although he allowed Mr Kagoni’s petition on grounds of judicial function, he dismissed the other three saying the parties performed ministerial functions in relation to the loss of narcotics.

“I have carefully looked at the issue involving the second, third and fourth petitioners. Their functions fall under the public function of the ministerial function so I disallow their petitions,” he said.


The DPP, who said he would appeal against the ruling, had argued that every State officer has an obligation to respect, uphold and defend the Constitution.

Assistant DPP Alexander Muteti told the court that when a judicial officer oversteps institutional independence, a criminal offence is committed and should be dealt with according to the law.

Mr Muteti said that although Article 168 of the Constitution protects judicial officers from liability in a suit of judicial consent, such protection is purely from actions done in good faith.


Mr Kagoni, who had been released on a cash bail of Sh20,000, had argued that the charges the DPP raised were meant to embarrass and intimidate him.

Through lawyer Nelson Havi, he told the court that it was believed the drugs went missing between June 28 and July 26.

"Kagoni delivered his judgment on June 11, where he convicted the drug trafficker to 30-year imprisonment and ordered the Sh600,000 returned to the suspect’s lawyer," Mr Havi said.

Noting there was no appeal against Mr Kagoni’s judgment, he said the charges were misplaced.