Revealed: How graft courts block justice

More than 130 corruption cases are pending in the courts, effectively bringing to a halt the fight against sleaze, the Nation has learnt.

Among the cases are those involving Cabinet minister William Ruto, MPs John Mututho and Zakayo Cheruiyot as well those against Goldenberg architect Kamlesh Pattni who is accused of defrauding the public of more than Sh5 billion.

A list of corruption cases and their status seen by the Nation shows that 132 of them are stuck in the courts.

In most of the cases, the suspects have gone to the constitutional court to complain that the charges are a violation of the Constitution.

When such complaints, called constitutional references, are filed, the original case is stopped until they are resolved.

Rules flouted

Judiciary regulations require constitutional references to be heard and determined within 45 days, a rule that the Judiciary has flouted left, right and centre, allowing corruption suspects to hold up cases almost indefinitely.

Judges will be on vacation between April 2 and April 21 for Easter holiday. There will only be a duty judge at High Court and Court of Appeal. Later in the year the judges will be taking a long summer vacation.

Attorney General Amos Wako filed a notice of appeal in a case in which the High Court granted orders to quash certain findings and recommendations in the Goldenberg Report and the AG from instituting criminal charges against Internal Security minister George Saitoti over the Goldenberg Affair.

The AG also sought extension of time from the Court of Appeal to lodge the memorandum and record of appeal, but the date of hearing is still being awaited. Pending before the Court of Appeal, waiting to be heard.

Mr Ruto together with Baringo Central MP Sammy Mwaita, former President Moi’s aide Joshua Kulei and five others are facing abuse of office charges involving Sh282 million.

Upon being charged, the accused filed a constitutional reference in the High Court and criminal proceedings in the lower court were stopped in accordance the Chief Justice rules at the time.

New CJ rules are now in force, which do not require a case to stop once a constitutional complaint is filed by the suspect.

The AG asked the court to throw out Mr Ruto’s complaint and send the case back to court for trial. The constitutional court refused to do so and date of hearing was set for April 22 last year.

On the hearing date, Mr Justice Nyamu disqualified himself from hearing the case and sent it back to Chief Justice Evan Gicheru to appoint other judges to hear it and set a date.

Both parties have written to the Registrar of the High Court for a mention date before the CJ. No mention dates have been fixed to date.

In another case, Mr Kulei has challenged a notice issued by the State graft watchdog to declare his wealth. Mr Kulei’s petition was heard in October last year. Further hearing is set for March 18 and March 19.

Mr Cheruiyot, a former Internal Security PS’s abuse of office involves a US$4,744, 444 (Sh370 million) Anglo Leasing Forensic Laboratory case. The MP filed a constitutional application in 2005 and was referred to the High Court.

The case was stopped so that his constitutional complaint could be heard first. Pending before Anti-Corruption Court.

Naivasha MP John Mututho has been charged with forgery and uttering false documents. The case that involves Sh40 million and Sh60 million paid by Kenyatta National Hospital was to be heard on February 24, 25 and February 26.

Mr Pattni is facing several cases including a bribery one involving Sh50, 000, and conspiracy to defraud Sh5.8 billion from the Kenya Government. The second matter is pending before Nairobi chief magistrate Gilbert Mutembei.

Former permanent secretary Sylvester Mwaliko is also facing an abuse of office case involving an Anglo leasing contract worth 31,390,000 euros (Sh3,139,000,000). Pending before anti-corruption court.

Decision by CJ

Former Pyrethrum Board of Kenya managing director Joshua Kiptoon Chebot’s abuse of office case involving Sh150 million is awaiting a decision by the CJ when it should be mentioned.

Former Kenya Sugar Authority MD Francis Chahonyo is facing two charges, one involving Sh55 million when he served at the sugar body and another of Sh50 million when he was Postmaster-General.

Mr Chahonyo filed constitutional application in the High Court and obtained orders suspending hearing of criminal cases until his complaint is heard.

According to the Kenya Anti-Corruption Commission, hearing of the cases has stalled due to stay pending hearing of constitutional reference.

Former National Hospital Insurance Fund MD Ibrahim Hussein also filed a constitutional application in a Sh519 million abuse of office case involving him. The application has since been withdrawn to enable the start of the criminal case.

Mr William Kipruto arap Chelashaw, a former Kenya Tea Development Authority MD is facing an abuse of office charge involving Sh50 million.

The AG has also applied for a certified copy of ruling and proceedings to consider filing an appeal in a case in which former Kenya Seed Company managing director Nathaniel Tum was acquitted over irregular privatisation of the firm.

A case of theft and obtaining by pretences involving former MP Paul Muite is awaiting the CJ’s directions.

Prime Minister Raila Odinga and Justice, National Cohesion and Constitutional Affairs Minister Martha Karua have blamed the courts for the slow pace in concluding corruption-related cases.

“The courts are a big impediment to the fight against corruption,” said Mr Odinga at the weekend.

Ms Karua blamed the Judiciary, the AG and sloppy investigations.

“We have self-inflicted paralysis in our institutions, and that is the biggest impediment to the war against corruption,” she said during an interview.

The Justice minister blamed the courts for failing to apply the rules gazetted by Chief Justice Evan Gicheru in 2006 that were to speed up the conclusion of corruption cases where suspects had filed constitutional complaints.

She said where courts have delayed in concluding cases, the office of the AG has not followed it up with appeals.

The Justice minister further said some investigations by the police had fallen short of the required standards.

High Court Registrar Justice Lydia Achode blamed the problem of delays on a shortage of judges.

She said the ratio of judges to the population was very low. There are 45 judges serving more than 35 million Kenyans.

There was a problem too, she said, when suspects filed constitutional applications which greatly contributed to the delays.

Most constitutional applications are heard by a panel of judges, assigned by the CJ. The problem is, such judges have other cases, said Lady Justice Achode. This, she said, hindered quick disposal of corruption cases.

By Eric Shimoli, Lucas Barasa, Bernard Namunane and Jillo Kadida