23 May 2012

Kenya: Kosgey Moves to Halt Abuse of Office Case

Former Industrialisation minister Henry Kosgey yesterday faulted the prosecution of creating a criminal offence out of a regulation that gave him the discretion while he served as the minister. Arguing for the quashing of the criminal charge against him, the Tindiret MP told Justice Nicholas Ombija that the offence was absurd because the regulations were made by the Minister. Through his lawyer Julius Kemboy, the MP said the regulation- in the Standards Act- does not provide for consequence in case of breach.

The MP has been accused of failing to seek the advise of the National Standard Council in the importation of overage vehicles. But his lawyer told the court that the regulation does not say whether the failure to seek the advice of the council will create an offence punishable in law.

He added that if the intention of Parliament was to create an offence in the event that the Minister does not follow the regulation, a provision to that effect will have been placed. "It is an abuse on the part of the respondent (prosecution) to formulate a criminal offence out of a regulation, which is discretional," said Kemboy. He added that any perceived criminal charge based on regulations is ill-advised.

The Tindiret MP has been charged with abuse of office after he allegedly allowed the importation if 113 over-age vehicles. The case stalled last year after Justice Ombija issued interim orders stopping the trial after special prosecutor's Patrick Kiage's contract was questioned. But a week ago, the parties in the case consented to the withdrawal of the challenge against Kiage to conduct the prosecution. The DPP's office also abandoned an application seeking the disqualification of Justice Ombija from the case.

In response to the application seeking the quashing of the charges, the prosecution through state counsel Edwin Okello said the issue as to whether the trial was proper will be determined by the magistrate hearing the case. He said the case was about the legality of a decision made by the former Minister. He urged the court to send the case back to the trial magistrate, where Kosgey had been put on his defence. Justice Ombija will give his ruling on June 28.

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