A bid by a company associated with Deputy President Rigathi Gachagua to have a lawyer and a city businessman charged with conspiracy to defraud it of Ksh1.6 billion land situated in Embakasi, Nairobi has flopped.
This is after Milimani Chief Magistrate Lucas Onyina stopped the criminal prosecution of lawyer Moses Abongo Owour and Ohas Otieno, a director of Columbus 2000 Limited which is battling with Gachagua's firm Wamunyoro Investment Limited over the ownership of the multi-billion property.
Wamunyoro Investment Limited is owned by Gachagua and his wife Dorcas who are listed as witnesses in the criminal case drawn against Owour and Otieno.
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Declining to have Owour and Otieno answer to seven charges of land fraud, Onyina said no prejudice will be suffered if the plea is deferred.
The magistrate allowed an objection by Owour and Otieno through lawyers Elisha Ongoya, Apollo Mboya and Ezekiel Munyua to have the duo prosecuted saying it was a move by Gachagua to frustrate the hearing of a High Court case in the ownership of the land in dispute.
"In order to be fair to both sides l allow the plea deferral until June 29. I issued a summon to Bernard Abere Ogechi the second accused person to attend court. Owour and Otieno are hereby freed on a personal bond of Ksh1 million without a surety," Onyina ruled.
The defence had vehemently opposed the Directorate of Public Prosecution's move to charge the Owour and Otieno saying the move was unconstitutional and a violation of their rights.
They accused Gachagua of intimidating, frustrating and attempting to silence the lawyer and Otieno not to testify in the case scheduled for next week.
Owour was arrested at the Milimani Law Courts basement cells on Friday morning when he went to seek instructions from Otieno who has been arrested and was scheduled to take plea before Chief Magistrate Lucas Onyina.
To his surprise, Owour was informed by police at the court's basement cells that his name is also appearing in the charge against his client Otieno and Abere who is at large.
"The Deputy President is interested in adjourning the case next week. To get that adjournment by locking up and intimidating the advocates for the parties, in that case, is a classic teaching aide for abuse of the court process," defence lawyers Elisha Ongoya and Appolo Mboya said.
The lawyers accused Gachagua of trying to interfere with the case in which a company associated with him is claiming ownership of land in dispute.
"Do not allow Deputy President Gachagua to use this court to frustrate the High Court listed for hearing on June 21 and 22, 2023, before Milimani Environment And Lands Court," Ongoya said.
Gachagua listed as witness
Gachagua is listed as the sole witness in the High Court case for Wamunyoro Investment Limited while Otieno is a witness in the same case. Both parties are expected to prove ownership of the Ksh1.5 billion case.
Presenting a letter to the court, Ongoya said Deputy President Gachagua has been summoned to appear in court to testify in the land court to prove ownership of the land parcel in dispute.
In the letter dated June 16 to the law firm of Owour and the Attorney General's office, Philip Nyachoti says Gachagua who is the only witness will not be able to attend court.
" As you are aware the High Court matter Wamunyoro Investment Limited Vs John Michael Ohas and two others fixed for hearing on June 21 and 22, 2023, our client's sole witness is His Excellency the Deputy President (Gachagua) will be engaged in unavoidable officials duties on the two days," Nyachoti say in the letter.
Therefore Nyachoti told Owour and the AG that Gachagua will not be available to attend court to testify in support of the ownership of the property by his company Wamunyoro Investment Limited.
Seeking plea deferral for seven days in the case where Owour, Ohas Otieno and Bernard Abere Ogechi are charged with conspiracy to defraud Wamunyoro Investment Limited of the said parcel of land LR number 209/12077 IR No. 90923 worth Ksh1.5 billion.
The defence lawyer protested the manner in which Owour was arrested when went to see his client Ohas at the Milimani Law Courts basement cells on Friday morning.
"The arrest of Owour is a move to frustrate the hearing of the high court case by the Deputy President," Ongoya said.
"This is the highest level of Judiciary proceedings interference by the executive. The arrest is clear frustration of the administration of justice. How can a lawyer going to see his client to seek instructions ahead of plea taking be arrested and arraigned together."
He said that arrest and advocate Owour is a violation of his constitutional rights and misapplication of the law by the plea.
The defence lawyer asked the court to frown at the manner in which police have been "misused" in arresting Owour.
The prosecutor Anderson Gikunda opposed the deferral of the plea saying there is no stay from the High Court.
He added that the charges before the court are as well not defective and the accused should be called up to plead
