NAIROBI, Kenya, Jul 14 – The Central Organisation of Trade Unions (COTU) Secretary General Francis Atwoli has written to Chief Justice Willy Mutunga to complain about the ruling that threw out his Sh500 million defamation case against suspended Labour CS Kazungu Kambi and three MPs.
In a statement, Atwoli described the ruling by Justice Alfred Mabeya as shocking and a miscarriage of justice as the evidence was clear that he had been defamed.
He indicated that such action undermined public confidence by encouraging impunity and now wants the Chief Justice, the Judicial Service Commission (JSC) and the office of the Ombudsman to investigate the conduct of Justice Mabeya.
“The Hon Judge has in his ruling stated that the identity of the top six COTU (K) officials is not known. This is despite the fact that the said six officials having expressly identified themselves as such in the pleadings and worse still, none of the defendants raised any issues at all with their identity and capacity. The Hon Judge went off target and introduced extraneous matters not raised or argued before him and used this as a basis to determine the application before him,” he stated.
“The Hon. Judge in part of the ruling acknowledged that Mr Francis Atwoli had been expressly named by the 2nd Respondent, Hon Moses Kuria despite the fact that Hon Kuria did not file any response to the case even though he was served by advertisement as ordered by the court. The Hon. Judge did not even address this issue at all in his ruling.”
Atwoli pointed out that the Judge determined the application by taking refuge in an unnecessary technicality.
“The judge acted in contravention of one of the key tenets of the Constitution of Kenya 2010, Article 159(2) d requires courts to administer justice without undue regard to procedural technicalities. A case in point is how the judge refused on a pure procedural technicality to have played in court the attached video footage of the reckless utterances which footage amply shows who of the defendants said what,” he said.
He stated that In effect, the judge refused to see the evidence right before his eyes in determining this application.
He explained that this resulted in a total miscarriage of justice since the judge turned a blind eye to irrefutable evidence right before him only to turn around and to hold that the applicants did not supply him with sufficient evidence.
In his ruling, the judge had pointed out that Atwoli had not proved that Kambi, MPs Moses Kuria, Francis Waititu and Alice Ng’ang’a defamed him by linking him to the murder of Kabete MP George Muchai.
The judge had further ordered the COTU officials to pay Kambi, who was represented by lawyer Philip Nyachoti, and the three MPs the cost of defending the petition.
The suit was filed by Atwoli, COTU chairman Rajab Mwondi, Treasurer Rebecca Nyathogora, deputy treasurer Washington Adongo, trustees Francis Wangara and Joseph Nyabiya.
The officials claimed that Kambi and the MPs uttered the words “the six COTU officials are responsible for Hon Muchai’s death, we want to see them in handcuffs for Muchai’s murder,” during the late Kabete MP’s burial.
The officials argued that Kambi and the MPs made no effort to verify the statements when they knew that investigations into the murder of Muchai were under way, and that they should have made the statements with police instead of going public.