Kenya: Suspended Kwale Assembly Clerk Loses Bid to Stop Prosecution

Embattled Kwale County Assembly Clerk Hamisi Bweni Dzila has suffered a blow after a Mombasa court declined to stop his prosecution.

The High Court ruling has paved the way for the Director of Public Prosecutions Noordin Haji to begin prosecuting him over a criminal offence he allegedly committed three years ago.

The criminal offence relates to a false information he reported to the police over an alleged threats issued to his secretary Janet Mwania, by Procurement Officer John Kalu.

But he moved to the court to challenge his prosecution over this matter claiming that the charges have been trumped up, based on malice and brought in bad faith, with the intention of justifying his removal from office.

However, Mombasa Resident Judge Eric Ogola ruled that the petitioner availed no evidence to support claims that either the police or the DPP acted unreasonably.

The judge said that Mr Dzile has instead given a long and winding story about his disputes with the Kwale County Assembly, Mr Kalu and with the investigating agencies.

"These are legitimate issues but not for the determination by this Court. If every suspect were to run to the High Court to stop their impending prosecutions, no criminal prosecutions can take place. The constitutional court is not an investigative court and does not listen to criminal evidence so as to decide who should be prosecuted, and who should not," he said.

The judge further noted that the petition has failed to point out compelling constitutional rights abuse to warrant interference with the prosecutorial powers of the DPP.

Justice Ogola noted that it may as well be that the prosecution's case is weak, but it is important let that the same be dealt with in the criminal trial.

"At the end of the day every criminal trial amounts, at some level, to a violation of individual rights, but they cannot be stopped because the truth must be established. But ultimately unfounded criminal prosecutions are vindicated through trial," he said.

Mr Dzila claimed in the petition that the charges against him are mere desperate attempts by Kwale County Assembly Service Board (KCASB)to justify their intention to remove him from office.

"The Assembly Service Board actions are a violation of the constitution," said Mr Dzila ,adding they are discriminatory against him for performing functions of his office.

According to the clerk, the DPP failed to exercise his authority to direct the police to conduct proper investigations and that the OCS Kwale Police station failed to advice the investigation officer not to present the charges in court without a formal complaint by the alleged complainant.

In December last year, Industrial court reinstated Mr Dzila after the board terminated his appointment after a disagreement with the board over tender issues.

While terminating his appointment, the board accused him of authorizing and or approving payments from the assembly's account without the approval of the board.

The board also accused him of misrepresentation of information and records to the board, as well as refusal and or failure to subject himself to the attendance control system set by the assembly to check time-keeping and attendance.

He was also accused of insubordination to the board and absenteeism.

But Mr Dzila believes he antagonized the board, together with all its members, when he advised them that he could not authorize and or approve payments to a contractor of a project which was under investigations by the Ethics and Anti-Corruption Commission (EACC) without the commission's authority.

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