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Police raid Ojienda’s Muthaiga office as lawyers protest

Saturday December 29 2018

Tom Ojienda

Senior Counsel Tom Ojienda was arrested by detectives from the Directorate of Criminal Investigations on Friday, December 28, 2018. PHOTO | FILE | NATION MEDIA GROUP 

WALTER MENYA
By WALTER MENYA
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Detectives Saturday descended on Prof Tom Ojienda’s private office at Muthaiga Golf View Office Suites as they sought to gather evidence with which to charge the lawyer.

The court order by a senior magistrate’s court at JKIA (MISC. CRIM. APP. No. 54 of 2018) allows investigators from the DCI, led by Chief Inspector Patrick Maloba to “enter the premises/dwelling house inhabited (whether temporary or permanently) and/or controlled by the respondent … to search, have access, seize, remove and carry away the respondent’s documents needed for the purpose of investigations.”

COMMUNICATION

The order also directs Prof Ojienda to allow access to electronic files but they cannot carry away the devices on which the files are stored. But the raid at Prof Ojienda’s office has been criticised by his lawyers who said the warrant and the execution of it was illegal.

“It (the warrant) was issued Friday by a magistrate’s court at JKIA. It is a magistrate’s court, yes, but in our understanding it was specially created to deal with travellers who are arrested with narcotics and traffickers. For them to go and obtain a search warrant from an anti-narcotics court to search his office and house in a matter not related to narcotics, it shows that they are not being forthright,” lawyer Harun Ndubi for Prof Ojienda told the Sunday Nation. According to Mr Ndubi, there is also a problem with the execution.

“They are executing it on a Saturday yet the law doesn’t allow even landlords to execute a warrant on a tenant on weekends and public holidays. Moreover, lawyers’ offices are privileged because of advocate-client confidentiality,” he said. However, Mr Ndubi said Prof Ojienda decided to comply and co-operate with them.

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The order allows the DCI to look through Prof Ojienda’s electronic communication as well as the hard copy files. As the search warrant was being executed, the lawyers also protested at the failure by investigators to formally inform Prof Ojienda of the offence for his arrest.

“Let alone asking him to record a statement, they have not formally told him what it is they are investigating or why he has been arrested and even the court order does not state the offence that is being investigated,” said Mr Ndubi.

CRIMINAL TRIAL

According to Mr Ndubi, it was outrageous for the DPP to issue a statement that he has received a file from the DCI and satisfied himself that there is sufficient evidence to commence a criminal trial yet they are still investigating.

“A day after that statement was issued they are investigating. What happens if they find from Ojienda’s office that there was no evidence against him? The DPP cannot be acting at the behest of other people. He is violating the constitution in particular the provisions that require him to avoid abuse of legal process. Also, this thing about Friday arrests, it may excite a few feeble minds but it is completely out of order to arrest people before you complete investigations and even give them an opportunity to respond to those allegations at the point of investigations,” said Mr Ndubi.

Another argument that Ojienda lawyers could be planning to raise in court on Monday is that Mumias Sugar Company, which was supposedly defrauded, has not complained.

“You cannot have investigators coming to rummage through clients’ files yet there is no complaint. Mumias Sugar is a private company with 80 per cent shareholding by private entities and individuals and only 20 per cent owned by the government. It has not complained against Ojienda,” the lawyer said.