, NAIROBI, Kenya, Mar 29 – The High Court has temporarily stopped the hearing of a Sh1.2 billion fraud case against a High Court judge and three others.
Justice Joyce Khaminwa on Monday suspended the proceedings of the case which was set to be heard beginning Tuesday before Senior Principal Magistrate Lucy Nyambura.
Justice Khaminwa halted the proceedings pending a ruling on April 20 on an application filed by lawyer Edward Muriu Kamau who is challenging charges of conspiring to defraud the National Social Security Fund of the cash.
The advocate is accused of allegedly defrauding NSSF by making an offer for the purchase of five plots adjacent to the Laico Regency Hotel on July 7, 2008 on behalf of M/S Delta Resources Ltd at Sh1.3 billion.
Mr Muriu urged the High Court to quash the proceedings against him saying the charges against him do not disclose an offence. He accused the Attorney General of abusing the court process by attempting to criminalise a commercial transaction which could be resolved through arbitration.
“Pursuing an advocate who was acting for a party to the transaction is an abuse of the court process and the court should discontinue this,\’\’ he said. The lawyer argued that he cannot be criminalised on behalf of a company that declined to complete a contract.
The advocate is disputing allegations that jointly with Justice Juma Chitembwe, former NSSF Managing Trustee Rachel Lumbasyo and lawyer Stephen Kipkenda conspired to defraud the fund the monies through the sale of the plots.
It is alleged that they transferred and registered the plots belonging to NSSF to Kipkenda Lilan & Co Advocates law firm for services that were not adequately rendered.
He maintained that he did not in any way benefit from the process.
However, the AG through Deputy Director of Public Prosecutions Oriri Onyango and Kenya Anti Corruption Commission urged the court to dismiss the application.
The respondents asked Justice Khaminwa to let the trial court determine whether the applicant committed an offence.
NSSF is said to have lost millions of shillings in its attempt to cancel the titles. Mr Muriu avers that the transaction was a commercial and civil dispute between NSSF and Delta Resources Ltd and his role was limited to advising his firm’s client as an advocate.
He says parties went to arbitration to resolve the dispute and agreed between themselves on the terms of settlement of the matter. The applicant claims that NSSF did not lose anything in the transaction and was indeed the net gainer as they got back their proprieties.
He says that he was not responsible to NSSF and cannot be charged for failure to comply with directives of its Board of Trustees.