Mombasa Principal Magistrate Edgar Kagoni has faulted the decision by the Director of Public Prosecutions (DPP) to prefer charges against him in relation to the loss of exhibits in a case he presided over, saying it was an attack on judicial independence.
In his petition at the High Court through his lawyers Nelson Havi and Elisha Ongoya, Mr Kagoni said that the DPP cannot seek to challenge the doctrine of the independence of the judiciary or a judicial officer.
“The harm to the public interest if the prosecution is not stopped is too much to comprehend,” submitted Mr Ongoya, adding that the prosecution is collaterally attacking the decision of the magistrate by preferring charges against him in Nairobi.
The DPP has preferred a charge of obstruction with intent to defeat justice and aiding and abetting trafficking in narcotics against the magistrate.
Mr Kagoni has not taken a plea, as the High Court issued conservatory orders temporarily stopping the DPP from charging him.
The exhibits alleged to have been lost included 10 kilogrammes of heroin valued at Sh30 million and Sh600,000 in cash.
Mr Havi told the court that there has been no appeal by the DPP against the decision of Mr Kagoni in the case he presided over. He further argued that exhibits are kept by a storekeeper. Mr Havi said that the alleged lost money was not the proceeds of crime.
Mr Kagoni is seeking to have the recommendation of the Directorate of Criminal Investigations to the DPP and the consequential decision to charge him quashed.
He is also seeking a declaration that the act of the DCI to investigate, arrest and his pre-arraignment detention because of judicial orders and directions he made in the course of his judicial duties is a violation of the Constitution.
The magistrate is also seeking an order to prohibit any magistrate’s court from taking plea or any further criminal proceedings arising from the recommendations of the DCI to the DPP charge him.
Three judicial officials, Abdalla Awadh, Onesmus Momanyi and Lawrence Thoya, who have also been charged with the loss of the exhibits, also want the court to quash the charges.