, NAIROBI, Kenya, Feb 21 – National Police Service (NPS) Inspector General Joseph Boinnet and Directorate of Criminal Investigations (DCI) chief George Kinoti have moved to Court of Appeal seeking the suspension of a contempt order issued against them last week.
In the notice of motion filed on Friday, Boinnet and Kinoti argued that Justice Luka Kimaru who made the ruling on Thursday last week violated their rights to fair administrative action and hearing since the judge failed to accord them an opportunity to defend themselves.
“I was found to have committed contempt of court, a criminal offence without any hearing whatsoever contrary to Article 47 of the Constitution, Fair Administrative Act and the common law rules of natural justice,” the duo said in separate but corresponding affidavits filed on February 16.
“Under Article 50 (2) of the Constitution, being a person facing a criminal charge of contempt of court, I was entitled to be presumed innocent, until the contrary was proved and to be promptly informed by the trial court that I am entitled to legal representation of my own choice,” the two affidavits read.
Boinnet and Kinoti said they were “apprehensive of being removed from office in view of the decision of the High Court unless the decision is suspended and/or stayed pending the lodging, hearing, and determination of the intended appeal.”
Justice Kimaru had on February 7 directed the two to swear affidavits explaining why they should not be punished for failing produce in court deported self-proclaimed National Resistance Movement general Miguna Miguna for his release.
They were also directed to appear in court on February 15 but failed. They cited a scheduled National Security Council meeting as the reason they could not personally appear in court.
During a sitting on February 7, the court learnt through State Counsel Duncan Ondimu that Miguna had actually been deported on February 6; the day Justice Kimaru had ordered Boinnet and Kinoti to surrender him to the court.
They later told the court in affidavits filed on February 9 that Miguna had actually been set free before he was rearrested by immigration officials.
“I was informed by my officers that the applicant (Miguna) was released vide OB/6/2/18,” Kinoti stated in his affidavit.
In a separate affidavit, however, Department of Immigration Director, Gordon Kihalangwa, said he instructed his officers to arrest Miguna following a deportation order issued by Interior Cabinet Secretary Fred Matiangi.
Kihalangwa equally denied being in contempt of court saying he was not aware of an order issued by Justice Kimaru since the Department of Immigration was not a party to court proceedings which resulted in the issuance of the order.
In a detailed account, Kihalangwa explained that he had, upon perusing an immigration file related to Miguna, come to the realization that the Kenyan passport he held was illegally issued.
It is based on the findings that Kihalangwa made that CS Matiangi issued Miguna’s deportation order, the affidavit by the immigration chief disclosed.
“The applicant (Miguna) was arrested within the precincts of Inland Container Depot, in Embakasi, and taken to the Jomo Kenyatta International Airport for purposes of deportation and did board KLM Airline Flight Number KL0566 to Toronto Canada via Amsterdam,” Kihalangwa stated.
Other than finding Boinnet and Kinoti to have acted in contempt of the court, Justice Kimaru in his February 15 ruling nullified Miguna deportation on grounds that it was undertaken in contempt of existing orders.
The judge gave the two police bosses an opportunity to purge their contempt, further requiring them to make a written undertaking within seven days to comply and give effect to court orders.
“This court will not convict the third and second respondent (Boinnet and Kinoti) but will give them an opportunity to assist the court in purging the contempt of the orders of the court that they’ve been found by this court to have committed,” Justice Kimaru ruled.
He explained imposing a fine on the two or committing them to prison “may not serve the ends of justice in the particular circumstances of this case.”
The judge said the circumstances under which police surrendered Miguna to immigration officials for deportation were a clear demonstration of collusion to defeat the ends of justice.
“The second and third respondents were acting in coordination with the Director of Immigration. The decision to take the applicant (Miguna) to Inland Container Depot Police Station at Embakasi instead of producing him before the court was with a view to facilitating the Director of Immigration to have his (Miguna) custody,” he stated.
“It was not by chance that immigration officials ‘found’ the applicant at the precincts of the said police station. This was planned. It was also in contempt of the orders of this court,” Justice Kimaru added.
The immigration department was directed to surrender Miguna’s Kenyan passport to the court within seven days.