The arrest of Prof Tom Ojienda marked an escalation of his long-running battles with a number of State agencies over tax issues, a motor vehicle assigned to him and his professional work.
Prof Ojienda was arrested on Friday afternoon as he was about to enter his home in Muthaiga, Nairobi. He spent the night at the Muthaiga Police Station.
The Law Society of Kenya (LSK), which he once headed, condemned his arrest and called on the Directorate of Criminal Investigations (DCI) and the Office of the Director of Public Prosecutions (ODPP) to release him on police bond.
“The frequent and rampant arrests of citizens on Friday evenings without due recourse to the constitutional rights guaranteed under Article 49(1)(f), which requires an arrested person to be brought before court as soon as possible and not later than 24 hours after arrest … is objectionable, in bad faith and contrary to Article 157 (11), which requires the DPP to prevent and avoid abuse of the legal process,” LSK President Allen Gichuhi said.
“Advocates are officers of the court and should be granted police bond, unless there are serious factors mitigating this. We do not consider the current matter as one that requires denial of police bond,” Mr Gichuhi added.
Before his arrest on Friday over “allegations of use of fake court proceedings, number and parties spread across the country … to obtain monies, as legal fees, from Mumias Sugar Company,” Prof Ojienda had had several run-ins with the Ethics and Anti-Corruption Commission (EACC), and the Kenya Revenue Authority (KRA).
Several court orders have been obtained barring KRA, EACC and DCI from investigating or arresting him. KRA was also ordered to issue him with a tax compliance certificate, a directive that has not been honoured to date. KRA has announced that it will appeal the order.
The Mumias case, which is the reason for his arrest, according to DPP Noordin Haji’s statement, also came up in 2015, when EACC wanted to scrutinise his bank accounts.
EACC was investigating an alleged irregular transfer to his firm of Sh280 million by former Mumias Sugar Company CEO Evans Kidero.
In the last two months or so, KRA, EACC and DCI have intensified their efforts to nail him. Just days before Christmas, the renowned lawyer and member of the Judicial Service Commission (JSC) obtained a court order barring EACC from arresting him over allegations of misusing a government vehicle assigned to him as a member of JSC.
Also, in November, KRA and DCI were barred from arresting Prof Ojienda over alleged unpaid taxes for 2009-2016.
Prof Ojienda has claimed that KRA is being used to fight political battles to stop him from defending his JSC seat in an election tentatively set for February 2019.
“It is apparent the respondents are out on a malicious excursion to ‘get me’ and to ensure that I am subjected to a flawed criminal process smeared with illegalities, bad faith and witch-hunt, with the sole intention of irredeemably tainting my reputation in the eyes of the public and lawyers,” Prof Ojienda said in court papers.
KRA had, in September 2016, served him with a notice demanding payment of Sh378 million in taxes.
As the nominations deadline for the forthcoming LSK election was approaching, Prof Ojienda obtained a court order directing KRA to issue him with a tax compliance certificate, failing which the court directed LSK to accept his nomination papers without the KRA clearance.
The male representative to JSC position attracted five applicants, namely Prof Ojienda, former chairman of Independent Police Oversight Authority board Mr Macharia Njeru, Mr Charles Ongoto, Mr Alex Gatundu and former Speaker of Kiambu County Assembly Gathii Irungu.
Amid claims of malice and dirty tricks, the race for the slot has become hotly contested, with powerful people in the executive interested in determining who gets the seat.
In his response to DPP Noordin Haji’s public statement regarding his arrest, Prof Ojienda again said the charges “sound like a big joke and reek of malice, bad faith and fly in the face of the fundamental duty of an advocate to receive instructions and charge fees from a client”.
“In terms of the intrigues that informed this process, the interest is on the recruitment of the next Chief Justice. There has been a deliberate process to ensure that commissioners perceived to be independent are replaced. In my view, the desperation becomes clear when you see the concerted efforts to lock me out of the race. It is so deliberate and blatant,” Prof Ojienda had told the Sunday Nation shortly before his arrest.
A number of lawyers have also accused the DPP and DCI of being used as pawns in a grandmaster’s chess game to stop Prof Ojienda from contesting the seat.
By Saturday afternoon, the DCI had not taken a statement from Prof Ojienda, according to his lawyer, Mr Nelson Havi: “It is, therefore, surprising how the DPP has arrived at a decision to charge him without hearing his side of the story. The whole of Friday afternoon when he was arrested they were just chatting with him.”
With Chief Justice David Maraga and Supreme Court colleague Jackton Ojwang’ set to retire in 2021 and 2020 respectively, the JSC is attracting people who want to play a role in determining who the next Chief Justice will be.
Besides recruiting successors to CJ Maraga and Justice Ojwang’, the JSC is also expected to start recruiting 11 Court of Appeal judges and 15 judges each for the High Court, the Environment Court and Employment and Labour Court.
Prof Ojienda is a darling of young lawyers, who are the majority in LSK.
With most of the young lawyers behind him and the benefit of incumbency, the election set for February is largely seen as his to lose.
He has been sponsoring activities for them, and a number of whom were also his students when he was a lecturer at Moi University’s School of Law.