Magistrates not above the law, says DPP as he seeks to charge Kagoni

The trial of Mombasa Principal Magistrate Edgar Kagoni over loss of exhibits worth Sh30 million in a case he presided over hangs in balance after the Director of Public Prosecution countered a petition seeking to block his prosecution.

The DPP, together with the Attorney-General represented by Senior Assistant DPP Alexander Muteti, Mr Edwin Okelo, Reinson Igonga and litigation counsel Emmanuel Makuto, told Malindi Resident Judge Ruben Nyakundi that “judicial officers are not above the law.”

They were responding to a petition where Mr Kagoni has faulted the decision by the DPP to prefer charges against him in relation to the loss of exhibits, saying it is an attack on judicial independence.

In his petition at the High Court through his lawyers Nelson Havi and Elisha Ongoya, among others, Mr Kagoni said that the DPP cannot seek to challenge the doctrine of the independence of the Judiciary or a judicial officer.

INTERESTED PARTIES

The case has also attracted the Law Society of Kenya (LSK) and the Kenya Judges and Magistrates Association (KJMA), who have been enjoined as interested parties.

The DPP has already preferred a charge of obstruction with intent to defeat justice and aiding and abetting trafficking in narcotics against the magistrate.

Mr Kagoni has not taken a plea as the High Court issued conservatory orders temporarily stopping the DPP from charging him until hearing and determination of the petition.

In his submissions, Mr Muteti defended the DPP’s move to prosecute the magistrate according to Article 3 of the Constitution, arguing that every State officer has an obligation to respect, uphold and defend the Constitution.

ALL ARE BOUND BY LAW

"Any attempt to demand judicial independence, in this case, must be approached by the principle that we are all bound by the law and independence of the judiciary should be scrutinised from decisional independence devoid of any criminal element," he said.

Mr Muteti said in an event where a judicial officer oversteps institutional independence, it becomes a criminal offense and should be dealt with in accordance with the law.

"Article 160 of the Constitution calls upon all judicial officers, in exercising judicial independence, to be subject to this Constitution and the law," he said.

IN GOOD FAITH

While using a number of authorities, Mr Muteti argued that although Article 168 of the Constitution protects judicial officers from liability in suit of judicial consent, such protection is purely from action done in good faith.

"So that when a decision by a judge or magistrate is called to question, the first test is good faith," he said, adding that anything flowing from the independence of the judiciary must meet the public interest.

Mr Okelo said they have enough evidence to institute charges against the magistrate whom allegedly failed to record proceedings when an application was made on December 4, 2018.

MISSING EVIDENCE

He said drugs and the money might have disappeared from the court stores between December 4, 2018 and July this year.

However, there arose a heated debate on whether to indulge into detail of the matter or leave it to the trial court after the petitioner questioned the charge sheet as prepared by the prosecution.

EMBARRASSING CHARGES

On his part, Mr Kagoni, who is out on Sh20,000 cash bail, argues that the charges pressed against him by the DPP are meant to embarrass and intimidate him.

Mr Havi told the court that the drugs are said to have disappeared between June 28 and July 26.

"Kagoni delivered his judgment on June 11, where he convicted the drug trafficker to 30-year imprisonment and ordered the Sh600,000 returned to the suspect’s lawyer," he said.

Mr Havi said there was no appeal against Mr Kagoni’s judgment and the charges are misplaced since he had already heard and pronounced the judgment of the narcotic drug case by the time the drugs disappeared.

JUDICIAL IMMUNITY

His sentiments were echoed by Mr Ongoya who said judicial officer is absolutely immune from criminal or civil suit as per Justice John Mativo ruling in petition 181 of 2016, Abdulkadir Athman Salim vs the DPP.

"Arresting him and taking him to another magistrate to say you were wrong to deliver the judgment is ridiculous and misuse of power. The DPP did not appeal against the judgment but said you are so wrong and I will arrest and take you to another magistrate to tell you were wrong,"

he said.

Mr Kagoni is seeking to have the recommendation of the Directorate of Criminal Investigations to the DPP and the consequential decision to charge him quashed.

VIOLATION

He 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.

The magistrate is also seeking an order to prohibit any magistrate’s court from taking plea or any further criminal proceedings arising from the recommendations of the DCI to the DPP charge him.

Three judicial officials, Abdalla Awadh, Onesmus Momanyi and Lawrence Thoya, who have also been charged with the loss of the exhibits, also want the court to quash the charges.

The ruling will be issued on November 15 this year.