MOMBASA, Kenya, Sep 12 – The hearing of a petition in which Mombasa Principal Magistrate Edgar Kagoni is seeking to stop his prosecution over the alleged mishandling of Sh30 million heroin exhibits has been adjourned to Tuesday, September 17.
The petition will be heard before a Malindi Court, Mombasa High Court Judge Reuben Nyakundi directed on Thursday.
Nyakundi had on Monday issued conservatory orders against the Director of Public Prosecution staying the intended prosecution of Kagoni with criminal charges.
He extended the orders during Thursday’s sitting until the petition is fully heard and determined.
Kagoni, who is out on Sh20,000 cash bail or Sh100,000 bond of a similar surety, argues that the charges pressed against him by the DPP and Directorate of Criminal Investigations (DCI) are meant to embarrass and intimidate him.
He is accused by the DCI of mishandling the 10 kilograms of heroin and Sh600,000 found from a drug trafficker, Hussein Massoud Eid.
The drugs and the money are said to have disappeared from the court stores.
However, according to Nelson Havi, the lead lawyer for Kagoni, the drugs are said to have disappeared between June 28 and July 26.
Havi said Kagoni delivered his judgment on June 11, where he convicted the drug trafficker to a 30-year imprisonment and ordered the Sh600,000 returned to the suspect’s lawyer.
“On June 12, the second day after delivering his judgment. The petitioner (Kagoni) made an order that the drugs be destroyed. The case was closed. The drugs are said to have disappeared on June 28, which are several weeks after the petitioner made his order and delivered the judgment,” said Havi.
Havi said there was no appeal against Kagoni’s judgement.
“For the respondent (DPP) to say that the magistrate errored in his judgment, where is an appeal or order of revision against the judgment,” said Havi.
He said the charges being pressed by DPP, that Kagoni should be charged for obstruction of justice and aiding of drug trafficking are misplaced, because Kagoni had already heard the case and pronounced his judgment by the time the drugs disappeared.
Lawyer Elisha Ongoya said the Penal Code, the Constitution of Kenya 2010 and the Judicature Act protects a judicial officer against any fault made during a case.
“A judicial officer is ring-fenced. They cannot be prosecuted for orders they have made, cannot be faulted, or charged for any decision made in court. Immunity of judicial officers is absolute,” Ongoya argued.
He faulted the prosecution which he accused of “dragging” his client from Mombasa to Nairobi for him to be charged with for a judgment he made in an open court.
“In this country, there is a history of attacks on judiciary, but I must say this is the most direct and shameless attack on the judiciary. This case is about judicial independence,” said Ongoya.
Next week, the case will proceed with submissions from the Law Society of Kenya, who have been enjoined as interested parties. The DPP will be accorded an opportunity to respond to issues raised by the petitioner.