Kenya Ports Authority (KPA) Managing Director Daniel Manduku suffered a setback after his application seeking temporary orders stopping his arrest and prosecution based on recommendations of an investigation was dismissed.
Dr Manduku wanted temporary orders restraining the Director of Public Prosecutions (DPP), Inspector-General of Police and the Directorate of Criminal Investigations from arresting and charging him pending the hearing and determination of his petition.
However, the KPA boss got a temporary reprieve after Justice Eric Ogola directed that he deposits Sh500,000 cash bail pending his arrest should it happen during the hearing of his petition.
“Every Kenyan should be arrested with dignity. He fears his arrest is imminent, I’m persuaded to release him on bond or bail pending arrest,” Justice Ogola said at the High Court in Mombasa.
The cash bail that Dr Manduku is expected to deposit within the next two days will last until such a time when he appears in court to face charges, should they be preferred.
Justice Ogola also prohibited the police and the DPP from releasing to the media any adverse reports against Dr Manduku.
The judge further ruled investigations relating to corruption are not limited to the Ethics and Anti-Corruption Commission (EACC) and that police can investigate and have their file handed over to the DPP.
“Investigations by the Directorate of Criminal Investigations (DCI) and recommendations cannot be faulted as having not been carried out by EACC,” the judge said.
He further ruled that there has not been any violation of the petitioner’s right because he had been invited to record statements to give his account. “At this stage, the respondents carried out investigations in a fair manner. The petitioner failed to demonstrate any rights affected by the respondents.”
The court termed the application by Dr Manduku speculative and apprehensive of the DPP’s actions.
Dr Manduku also sought interim orders restraining the respondents from issuing adverse, inaccurate or unwarranted media statements against him until the petition is heard and determined.
Through prosecutors Alexander Muteti, David Fedha and Victor Owiti, the DPP termed the application by Dr Manduku premature as the decision to charge him has not been made.
Mr Muteti, a senior assistant DPP, argued that DCI recommendations on investigations are not binding to the DPP, hence any proposed charges against Dr Manduku are speculative.
According to the prosecution, the decision to charge will be made by the DPP and that, through Dr Manduku’s application, the court was being asked to usurp the powers of the prosecution.
Through Senior Counsel James Orengo (Siaya Senator) and lawyers Julie Soweto and Nelson Havi, Dr Manduku argued that charges against him as proposed are not based on any factual foundation.
Mr Orengo argued that there is no denial by the DPP that they received a report and that the proposed charges against Dr Manduku are a violation of the Constitution and statutory provisions of the Office of the DPP Act.
“Our client has a right to be given opportunity to respond to accusations,” Mr Orengo argued.
He added that the IG and the DCI have usurped the authority and mandate of the EACC by purporting to investigate corruption-related crimes.
In his petition, Dr Manduku wants to stop the DPP from instituting any charges against him based on investigations report and recommendations of the Directorate of Criminal Investigations.
The investigations relate to revitalisation of the Kisumu Port, construction of Makongeni goods shed and construction of concrete barriers for various ports around the country.
Meanwhile, the High Court has ordered the DPP to file a formal application within the next seven days seeking to have Mr Orengo barred from representing Dr Manduku.
Justice Eric Ogola dismissed an oral application made by Mr Muteti seeking to bar Mr Orengo from representing Dr Manduku, citing conflict of interest.
Justice Ogola said there is a need for a formal application to be made by the DPP to enable Mr Orengo to respond.
Mr Muteti argued that it is untenable to allow legislators to represent people in court, yet they play oversight roles on State officers.
The DPP’s application comes barely a week after President Kenyatta, in his address to the State during Jamhuri day celebrations, said it is against the Leadership and Integrity Act for State and public officers to engage in private practice at the time their services are required for the nation.
The President directed Attorney-General Kihara Kariuki to speed up the submission to Cabinet for approval and transmission to Parliament for consideration the Conflict of Interest Bill.
Mr Muteti argued that conflict of interest, whether personal or public, is discernible [and] a State officer must be excluded from performing other functions.
On his part, Mr Orengo said there is a procedure in Parliament on how to deal with conflict of interest.
“Standing orders take into consideration provisions of the Constitution. As it is, there is no complaint made to Parliamentary Service Commission or the Speaker that they have breached provisions of the Constitution,” he said.