A suspended minister facing abuse of office charges got a reprieve Thursday after the High Court stopped his prosecution in a magistrate’s court.
Justice Nicholas Ombija ruled that former Industrialisation minister Henry Kosgey was being prosecuted illegally by a special public prosecutor whose contract had expired.
Justice Ombija granted Mr Kosgey the permission to initiate a judicial review of his prosecution and ordered that the case pending before an anti-corruption court should not proceed until his petition is heard and determined.
“Given the submission presented by Mr Kosgey, I am persuaded that he has established a case against the special prosecutor and order that the proceedings in a magistrate court be stayed,” ruled judge Ombija.
The judge also ordered that Mr Kosgey deposit Sh1 million within seven days as security for the abuse of office charges in the magistrate court.
If Mr Kosgey successfully argues against Patrick Kiage’s appointment during the hearing of the judicial review, he could be left off the hook and criminal charges against him declared null and void.
The Tinderet MP was charged with 11 counts of abuse of office . It was alleged that he used his office to improperly confer a benefit to various individuals and companies by exempting a total of 113 units of motor vehicles imported from the application of Kenya Standards Code of Practice for road vehicles.
According to the code of practice KS1515:2000, the government outlawed the importation of vehicles which are over 8 years old except those of government interest, vehicles for the diplomatic corps or those brought by returning citizens.
He denied the charges, maintaining that he acted within the law and questioned the merit of the charges, arguing that his predecessors applied the same law but were not prosecuted.
However, senior principle magistrate Elijah Obaga ruled that Mr Kosgey had a case to answer over the charges and put him on his defence.
Mr Kosgey then filed an application in the High Court seeking to stop the criminal proceedings until the legality of a special public prosecutor is established.
The suspended minister wanted the court to allow him file a judicial review challenging the authority of Mr Patrick Kiage whose term expired before the criminal charges were brought against him.
Through lawyers Fred Ngatia and Kioko Kilukumi, the Tinderet MP argued that under section 85 of the criminal procedure Act, any appointment of a special public prosecutor can only be done and gazetted by the Attorney General.
They told Justice Ombija that the one year term Mr Kiage was gazetted to serve as special prosecutor expired in February 2008 and he was never reappointed through a gazette notice as required by law.
They submitted that any person conducting prosecution has no power in law to hold himself as public prosecutor without an appointment, adding that in the event this happens, the legal consequence is that the proceedings shall be declared null and void.
Justice Ombija upheld the Tinderet MP’s arguments, saying that the question of whether Mr Kiage was duly appointed was a matter that could only be determined during the hearing of a judicial review.
“It is only through a judicial review that will answer if Mr Kiage’s contract was not gazetted and whether he could exercise powers conferred to him by the AG after the promulgation of the new Constitution,” said Justice Ombija.
He also ruled that claims by Mr Kosgey that the prosecutor had violated the Public Officer’s Ethics Act by engaging in private legal practice will be determined during the full hearing of the petition.
The ruling against Mr Kiage is likely to open a flood gate of similar applications by various individuals whom he has prosecuted within the period it is claimed his contract had expired.
Among the notable individuals he has prosecuted is former KEMRI boss Dr Davy Koech who has been following the case keenly.
