A lawyer has lost bid to stop his prosecution over a collapsed Nairobi building owned by his client, with the High Court ruling that evidence against him must be tested at the trial court.
Justice Patricia Nyaundi dismissed lawyer Edward Mwaura's petition, which sought to quash his prosecution over alleged violations of building regulations following the collapse of a residential building in Mirema Nairobi. The property owner was Joseph Kambo, a co-petitioner in the Constitutional case.
The dispute began after a residential building under construction at Mirema Drive, Roysambu, collapsed on September 24, 2023. Mr Kambo said he owned three parcels linked to the development, approved by the former Nairobi Metropolitan Services on July 28, 2022.
Mr Mwaura said Mr Kambo instructed him to visit the site the following day to check legal and statutory compliance.
He said he identified himself to the county government officers as the owner’s advocate, but was arrested and charged at City Hall with a criminal case.
The charge was brought under section 67(1), read with section 67(3), of the Physical and Land Use Planning Act, 2019. No lives were lost when the residential building collapsed, according to the petitioners’ account outlined in the judgment.
The lawyer argued that the law targeted people responsible for unlawful development, not an advocate attending a site on a client’s instructions.
The petitioners alleged county officers threatened to hold Mr Mwaura personally responsible unless he produced Mr Kambo or gave information leading to his arrest.
Breach of county building by-laws
They said the prosecution was intended to pressure him into breaching client confidentiality and amounted to abuse of process.
They asked the High Court to quash the criminal case, bar further prosecution over the matter and declare the arrest unlawful. They also sought Sh3 million compensation for unlawful arrest and detention, Sh5 million for malicious prosecution and Sh1 million in exemplary damages.
The Nairobi County government disputed their account. In an affidavit, county official Michael Lumadede Agoya said approved plans allowed a nine-level apartment building, but the works allegedly departed from those plans and breached county building by-laws.
The county said the site had been sealed as a crime scene and the lawyer entered without authority or properly identifying himself. It said he was arrested as Mr Kambo’s agent, not simply as his lawyer.
The Director of Public Prosecutions also opposed the petition, saying the petitioners had not produced ownership documents proving Mr Kambo, rather than lawyer Mwaura, was the developer. The office said it acted within its constitutional mandate and the criminal case should proceed.
The court found that the petition adequately identified the constitutional rights allegedly violated and explained how they were infringed. But it said this did not establish grounds to halt the prosecution.
“The question whether the evidence supports the charges, and ultimately whether the first petitioner (Mwaura) is guilty or innocent, falls squarely within the mandate of the trial court,” Justice Nyaundi said.
"It is not the role of this court, in the exercise of its constitutional jurisdiction, to evaluate the sufficiency of the evidence or pronounce itself on the viability of the charges. To do so would amount to usurping the function of the trial court," said the judge.
Intervention was justified only where compelling evidence showed abuse of process or a constitutional violation. Finding no such basis, she dismissed the petition.
