Category: Justice

{A pastor at the Restoration and Bible Church, Edward Walyaula Namunga (40), and three others were yesterday arraigned at the Kisutu Resident Magistrates’ Court on unlawful presence in the country.}

The rest of the accused were Julie Kay Kasau (30), a Congolese; Neema Joseph Gachuma (38), a Tanzanian and a Pakistani, Ali Khan Muhammad (40). Before Senior Resident Magistrate Thomas Simba the accused pleaded guilty to all charges and were granted bail on the condition of availing two reliable sureties who will have to sign a bond of 5m/- each.

A prosecutor with the Immigration Department, Mr Novatus Mlay, informed the court that investigation into the matter has been completed and requested for another date to present the facts.

Reading out the charges, the prosecutor alleged that on April 15, this year, at Aggrey Street Kariakoo area within the city, Kasau being a citizen of the Democratic Republic of Congo was found in unlawful presence in the United Republic of Tanzania without a valid permit.

He also alleged that on the same occasion at the shop owned by Gachuma, Kasau was found engaging in occupation of selling goods at Aggrey Street, Kariakoo in the city without a valid permit allowing her to do so.

It was also alleged that on the same occasion at the shop of Gachuma being a citizen of Uganda, Namunga was found to have failed to comply with a lawful condition imposed on his residence permit Class C No 1019960 to work as a Pastor of Restoration Bible Church.

On the fourth count, at the same location and time, Gachuma being a citizen of Tanzania was found to have engaged Kasau in an occupation as a seller without a valid permit while knowing that she was not a resident and that doing so amounts to an offence. Magistrate Simba adjourned the case until today when the court will be furnished with the facts on the matter.

Meanwhile, a Pakistan National, Muhammad was arraigned before the same court for unlawful presence in the country.

Before Senior Resident Magistrate Hellen Riwa the accused pleaded guilty to the charge and was granted bail but failed to comply with the conditions.

A prosecutor with the Immigration Department, Mr Philip Mwambilizyi, informed the court that investigations into the matter had been completed but failed to proceed with the facts because the accused could neither understand Kiswahili nor English.

Mr Mwambilizyi requested the court to avail time so that they would secure a translator. Magistrate Riwa adjourned the case to April 21, this year when it will come up for mention and ordered the accused to be remanded in custody.

{The MP faced three counts of making a false document, fraud and forgery.}

Rangwe MP George Oner has been cleared of forgery and fraud charges that have haunted him for the past two years.

The ODM MP was embroiled in a vicious court battle with Nairobi businessman Benson Ritho Mureithi, who accused him of making alterations to part of a 50-acre parcel of land in Embakasi, Nairobi County, valued at approximately Sh1 billion, which was then subdivided and allegedly sold without the owner’s consent.

Resident Magistrate Edda Agade threw out the case for lack of evidence.

“It is my holding that the prosecution case fell short of the requirements of an arguable case as there is no evidence to support the claim that Mr Ogalo forged or made a false document, ” said Ms Agade.

The MP faced three counts of making a false document, fraud and forgery.

It was alleged that Mr Ogalo made a false document on or before March 6, 2008 with the intent to defraud Mr Ritho.

The alleged document was a cancellation charge for a parcel of land situated at Embakasi purported to have been a genuine document issued by the Kenya Revenue Authority’s Department of Domestic Taxes and signed by one John Orioro for the commissioner of Domestic Taxes.

The MP also faced the count of forging Mr Orioro’s signature, with the intent to defraud.

Mr Ritho, a businessman and an administrator of his father’s estate, claimed he had contracted Mr Ogalo as a consultant but he sold the plots without his consent.

{The Court of Appeal has ordered a businessman, Benedict Mkasa, who trades as Bema Enterprises, to pay over 122m/- to Univeler Tanzania Limited, following a dispute involving variation of commission after supply of goods.}

Justices Nathalia Kimaro, Katherine Oriyo and Ibrahim Juma ruled in favour of the company after allowing its appeal it had lodged to challenge the judgment given by then Judge of the High Court’s Commercial Division, Frederick Werema, on January 30, 2009.

“We hereby order the respondent (Bema Enterprises) to comply with the terms of the product distribution agreement and pay the appellant (Univeler Tanzania Limited) the sum of 122,316,459/- being the amount due as on January 31, 2007,” they ruled.

The justices noted after evaluation of evidence of the agreement between the parties, the counsel for the appellant, Bathwel Peter, was entitled to complain about the way the trial judge placed reliance on the consultant’s report to upgrade the commission from the aggregates of 5.5 per cent to 7.5 per cent. “We think, any variation of the commission must be mutually agreed.

It was, therefore, a misapprehension of evidence for the trial judge to conclude that the consultant report was sufficiently independent to objectively guide the variation of the commission,” they said.

Strictly speaking, the justices noted, under the law once parties have freely agreed on their contractual clauses, it would not be open for the courts to change those clauses which parties have agreed between themselves.

“It was up to the parties concerned to renegotiate and to freely rectify clauses which parties find to be onerous. It is not the role of the courts to re-draft clauses in agreements but to enforce those clauses where parties are in dispute,” they said.

The dispute surrounding the parties could be traced back to a distribution agreement by which the appellant appointed the respondent as its key distributor. The respondent has as a result agreed to distribute goods produced by the Unilever Tanzania to several retail shops, wholesale shops and supermarkets in designated zones in Dar es Salaam and Bagamoyo. Once the goods reached the designated outlets, it was the appellant who recommended the sale prices at those outlets.

In his role as the key distributor, the respondent was required to keep all the customers fully stocked with goods at all times. To ensure that the respondent received regular supplies of goods for the purposes of distribution, the appellant operated a system described as generator system which required the respondent to record input of its sales on a weekly basis.

Once the respondent records the input in the generator system, the appellant would immediately forward new supplies to the respondent to replenish the sold out goods. As consideration, the respondent was entitled to a commission of 5.5 per cent of the value of the products.

{Employment and Labour Relations Court Judge Nelson Abuodha granted the orders in an application filed by Shebby Sakwa.}

The NGOs’ Coordination Board has temporarily been stopped from dismissing or recruiting new members of staff.

Employment and Labour Relations Court Judge Nelson Abuodha granted the orders in an application filed by Shebby Sakwa, a former employee of the board who had been summary dismissed for alleged gross misconduct.

“Pending the hearing of this application inter-partes, the NGOs Coordination Board and its executive director are hereby stopped from dismissing, recruiting and replacing members of staff of the NGOs Coordination Board,” said Justice Abuodha.

Ms Sakwa, who worked as an administration assistant of the board, claimed her dismissal was malicious, adding that she was being victimised for questioning the academic qualifications of the NGO Co-ordination Board executive director, Fazul Mohamed.

Ms Sakwa, through lawyer Bemih Kanyonge, sought orders freezing recruitment after she claimed there were ongoing interviews with the aim of recruiting for the positions advertised, replacing anyone who had raised issues regarding Mr Fazul’s qualifications and management of the NGOs Coordination Board.

The lawyer claimed Mr Fazul carried out interviews to fill in positions including that of Ms Sakwa, as a reaction to her decision to file a petition before the Employment and Labour Relations Court challenging the legality of his appointment.

According to the lawyer, the NGOs board’s human resources manual is clear on dismissal and recruitment of members of staff and that some of the recruitments being done require the approval of the Board, but which were being conducted without such approval.

“There is also an ongoing freeze on employment of public and state offices and the same has not changed,” added lawyer Kanyonge.

Ms Sakwa has in court papers claimed that Mr Fazul forged his degree certificate to secure appointment as the executive director of the NGOs Coordination Board.

She is seeking, among other orders, a declaration that Mr Fazul is holding office illegally.

The case will be mentioned on April 19.

{Accordingly, we find that there was no failure on the part of the 2nd respondent to comply with section 11 of the PEA. }

(ii) Failure by 2nd respondent to compile a national voters’ register. The petitioner alleged that contrary to Article 61(1) (e) of the 1995 Constitution, sections 12 (f) and 18 of the Electoral Commission Act, the 2nd respondent abdicated its duty of properly compiling and securely maintaining the national voters’ register.

He further alleged that the 2nd respondent instead illegally and irregularly retired the duly compiled 2011 Voters’ Register and purported to create another one using data compiled by the Ministry of Internal Affairs for purposes of issuing National Identity Cards (National IDs).

The 2nd respondent contended that it properly compiled, revised and updated the National Voters’ Register in accordance with its constitutional and statutory duties. That all voters were duly and legally identified as being on the voters’ roll in accordance with the PEA.

The findings
We have carefully studied the provisions of Article 61(1)(e) of the Constitution and sections 12 (f) and 18 of the ECA which govern this issue. We have also carefully considered the affidavits and submissions of the parties and made the following findings:

(i) There was a National Voters’ Register which was compiled, updated, displayed and used by the Electoral Commission to conduct the 2016 presidential elections. We have noted that section 18(1) of the ECA obliges the 2nd respondent to “compile, maintain and update on a continuing basis a National Voters Register.”

(ii) The petitioner received a copy of the National Voters’ Register in his capacity as one of the presidential candidates.

(iii) The allegation that the 2nd respondent used data compiled by the Ministry of Internal Affairs is not correct. The data was compiled by the National Identification and Registration Authority, on whose Governing Board the 2nd respondent is a member.

(iii) The compilation of the National Voters’ Register was in compliance with the Article 61(1)(e) and section 18(1) of ECA and section 65(2) of the Registration of Persons Act, 2015 which states that: “The Electoral Commission may use the information contained in the register to compile, maintain, revise and update the Voters’ Register.”

(iv) That the 2nd respondent’s use of data compiled by the National Identification and Registration Authority to compile the National Voters’ Register did not in any way negate the independence of the 2nd respondent which is guaranteed under the Constitution.

(v) That the petitioner did not adduce any evidence of any person who had been disenfranchised by the 2nd respondent’s use of the new National Voters’ Register in the 2016 presidential elections.
Accordingly, we find that the 2nd respondent complied with the provisions of the Constitution, the Electoral Commission Act and the Registration of Persons Act.

(vi) Failure by the 2nd respondent to issue and use voters’ cards during the presidential election, resulting into the disenfranchisement of voters

The petitioner alleged that contrary to sections 30(4) and 35 of PEA, the 2nd respondent identified voters using the National ID issued by the National Identification and Registrations Authority instead of voters’ cards issued by the 2nd respondent.

The 2nd respondent admitted that voters’ cards were neither issued nor used during the last presidential elections. Relying on section 26 of the ECA, the 2nd respondent submitted that that section is not couched in mandatory terms to require them to print and issue a voter’s card for use at each election.

Further reliance was placed on section 66(2) (b) of the Registration of Persons Act, 2015, which requires the mandatory use of national IDs for identification of voters.

In light of the provisions of the law cited, we find that the 2nd respondent complied with the law when it used the National ID for identifying voters instead of the voter’s card.

(vii) Use of unreliable Biometric Voter Verification Machine (BVVK) and failure by the 2nd respondent to identify voters.

The petitioner alleged that contrary to section 35 (1) and (2) of the PEA, the 2nd respondent failed to identify voters by their respective voters’ cards but instead applied an unreliable, slow and suspect biometric identification machines, thereby denying legitimate registered voters their right to vote and creating room for persons not duly registered to vote.

Further that contrary to sections 30(4) of the PEA, voters were identified on polling day using the National Identity Cards instead of the voters’ cards. That as a result, eligible voters who did not register for the national identity cards were disenfranchised.