DCI has mandate to probe Manduku, court now rules

Tuesday, December 17th, 2019 22:13 |
Senior Assistant Director of Pubic Prosecutions Alexander Muteti (centre) with Siaya Senator James Orengo (left) who is representing KPA managing director Daniel Manduku and Principal Litigation Counsel Office of the Attorney General Nguyo Wachira at the Mombasa Law Courts, yesterday. Photo/PD/BONFACE MSANGI

Monica Kagia

Embattled Kenya Port Authority (KPA) managing director Daniel Manduku yesterday suffered a major blow after a Mombasa court ruled that the Directorate of Criminal Investigations (DCI) has a mandate to investigate him in connection with a Sh2.7 billion procurement scandal.

Judge Eric Ogolla said “though corruption is a special crime, it is not the sole duty of the Ethics and Anti-Corruption Commission (EACC) to probe such matters and, therefore, the DCI may investigate anyone found to be engaged in corruption”.

 “It is the mandate of EACC to carry out probes on graft, it is the finding of this court that the National Police Service (NPS) and DCI have equal mandate to investigate and hand over reports to Director of Public Prosecutions (DPP) for prosecution and I so order,” the judge said.

Conflict of interest

 The move came hours after Ogolla had allowed Siaya Senator James Orengo to continue representing Manduku despite opposition from the DPP, who asked the court to bar Orengo on grounds of conflict of interest.

 In his ruling, Ogolla who dismissed the application as an “ambush” on the senator directed the DPP to make a formal application on the matter.

 Senior Assistant State Counsel Alexander Muteti argued that Orengo was a State officer and, therefore, was in conflict with the law because he was serving other interests apart from those he was elected to represent.

“A party has a right to counsel of their own choice but the right is not a defector, a conflict of interest where counsel interested to appear for some parties may have to be excluded from appearing for them,” Muteti argued.

 He told the court that Orengo should not be allowed to represent Manduku because this would be going against his oversight role over State officers.

“It will be absurd to allow State officers serving either in the National Assembly or Senate to appear in court to defend the same State offices they apply oversight roles on,” Muteti said.

 “Your Honour, MPs should choose whether they want to be in Parliament or in court representing those accused; we pray that this court finds it untenable to have MPs appear in court,” he added.

However, his application was opposed by Orengo who argued that the oral application by the DPP should not be entertained and instead should file a formal application in court.

The senator said the issue of conflict of interest is not an abstract concept and that it must be demonstrated by evidence.

He said that two courts have ventilated and ruled on the same issue and one of it was a constitute of a five-judge bench.

But despite the court allowing Orengo to continue representing Manduku, the judge declined to stop the DPP from arresting and prosecuting the MD, saying his application was “merely speculative” but granted him a Sh500,000 anticipatory bail in case he is arrested.

 Justice Ogolla said the DPP has not preferred any charges against the petitioner since the earlier application was made and, therefore, the court cannot interfere with his duties.

Justice Ogolla ruled that there has not been any indication of infringement of rights of the petitioner.

“The petitioner was only invited for recording of statement and it is prima facie evidence that the conduct of the investigations were fair and there was no gross conduct against the petitioner,” said the judge.

 He, however, barred the DPP, DCI and Inspector General of Police from sharing any information regarding the ongoing probe on Manduku in the media.

 “The petitioner should be treated as innocent until proven otherwise. There has been adverse media reports that have tarnished the petitioner’s name and the court has a right to protect him from such adverse media reports.

I, therefore, make an order that the respondents should not give any more reports regarding this case to the media,” ruled Ogolla.

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