The Director of Public Prosecutions has been temporarily stopped from charging Mombasa Principal Magistrate Edgar Kagoni with any charges in relation to alleged loss of exhibits among them heroin valued at Sh30 million in a case he presided over.
Sitting at the High Court in Mombasa, Justice Reuben Nyakundi issued the orders following applications by Mr Kagoni and the Kenya Magistrates Judges Association.
“This case has merited the threshold of granting interim orders against charging the petitioner,” said Justice Nyakundi on Monday.
Justice Nyakundi further directed that Mr Kagoni be released on a Sh100,000 bond with a surety of similar amount or an alternative of Sh20,000 cash bail ‘wherever he is being held’.
On Saturday, the DPP in a press statement communicated the decision to charge Mr Kagoni with the offence of obstruction to defeat justice and aiding the commission of an offence.
The DPP also directed that three judicial officers be charged with stealing by a person in public service in relation to the heroin.
Through a team of lawyers led by Mr Nelson Havi and Mr Vincent Omollo, Mr Kagoni argued that the independence of the judicial officer is guaranteed by the constitution.
“The intended prosecution of the petitioner in respect of a matter he handled as a judicial officer is a violation of the constitution,” argued Mr Havi.
He further argued that the magistrate was likely to plead to the charges in respect to a matter where the constitution has said there can be no criminal or civil liability.
Mr Omollo also told the court that though the petition has been filed by Mr Kagoni, it goes beyond him since judicial officers may make decisions which are not ‘palatable’ to the DPP.
He argued that the DPP can appeal or review decisions by judicial officers but not to arrest and charge the judicial officers.
“We hope the intention of the DPP is not to intimidate members of the judiciary,” said Mr Omollo adding that there will be no prejudice if the orders are given.
Through lawyers Shadrack Wambui and Brian Okoko, KMJA argued that there is no legal or factual justification upon which Mr Kagoni should be charged for the theft of exhibits and that the misguided move by the DPP is meant to harass and intimidate him.
“The DPP seems keen on punishing Mr Kagoni for previously disallowing an application made on behalf of the republic thus the decision is made in bad faith and in brazen violation of public interest and the magistrate’s exercise of authority done in lawful performance of judicial function,” KMJA says in the application.
In his petition, Mr Kagoni argues that his decision to decline a request by the prosecution to have the police retain the produced exhibits has never been appealed nor has an application for revision been made at the High Court.
The magistrate is seeking to have the recommendation of the Directorate of Criminal Investigations to the DPP and consequential decision to charge him quashed.
Mr Kagoni 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.
Justice Nyakundi who consolidated the petitions by Mr Kagoni and KMJA directed that the respondents be served with suit papers for hearing of the applications on Thursday.
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