@DailyNation

Neither guilty nor innocent: Men who died before their cases were determined

5 months ago, 18 Jan 00:24

By: Sam Kiplagat

David Mwiraria. Wilfred Koinange. Eliphaz Riungu. James Kanyotu. Samuel Kivuitu. John Habel Nyamu. Kihara Muttu. At one time these individuals occupied public positions with immense power and influence. Some made remarkable contributions to Kenya’s development. But their careers ended in shame for their acts of omission and commission while in office. Some of them were removed from office as they approached retirement and faced criminal charges. Others went to court to seek justice after being hounded out of office but died almost at the point of bankruptcy, having used all their savings in legal fees before their cases were concluded. Their stories should make interesting reading to those occupying similar positions and provide useful lessons on what to do and what not to do in public office. FINANCE MINISTER Mwiraria’s last significant post was as Finance minister in President Mwai Kibaki’s administration, Dr Koinange was Permanent Secretary, Mr Riungu was Deputy Governor of the Central Bank while Mr Kanyotu was the Director of Directorate of Security Intelligence (“Special Branch”), what is today known as National Intelligence Service. They were all in trouble because of the Goldenberg and Anglo-Leasing scandals in the Moi and Kibaki regimes that cost Kenyas billions.  Mr Kivuitu, Mr Nyamu and Mr Muttu were at the Electoral Commission of Kenya (ECK) that was in charge of the disputed 2007 elections. Some 1,133 Kenyans were killed and more than 600,000 displaced from their homes after ECK declared Mr Kibaki the winner against ODM party challenger Raila Odinga who claimed the vote had been stolen. During Mwiraria’s funeral in April last year, leaders were united in calling for his name to be cleared.  “I agree with the leaders and truly know how the case affected  Mwiraria. All the leaders have said it here in church that Mwiraria was innocent,” President Uhuru Kenyatta said. Justice Luka Kimaru, a Judge of the High Court, however, says that when a person dies before a criminal case is concluded, the case abates. “Because of death, the accused person is neither guilty nor innocent. Guilt is personal, hence it cannot be transferred,” he explained. ECONOMIC CRIMES The judge added that in cases under the Anti-Corruption and Economic Crimes Act, where the court finds that there is need for restoration of recovered assets, the estate of the person who has died can be asked to pay back. Lawyer Lempaa Suiyanka agrees, saying efforts to clear persons posthumously amounts to nothing. “Those are just but political statements that have no legal basis,” he said. Mr Suiyanka argues that once a person facing criminal charges dies, so does the criminal liability. “That is why a person facing criminal charges has to attend court unless under special arrangements,” he said. Mr Suiyanka said that the criminal liability is not passed on to a family member unlike in civil liability or assets. “It is different in civil cases which now become an issue of succession,” he said. Mwiraria was among those who were facing charges in relation to the ...
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@DailyNation

Neither guilty nor innocent: Men who died before their cases were determined

5 months ago, 18 Jan 00:24

By: Sam Kiplagat
David Mwiraria. Wilfred Koinange. Eliphaz Riungu. James Kanyotu. Samuel Kivuitu. John Habel Nyamu. Kihara Muttu. At one time these individuals occupied public positions with immense power and influence. Some made remarkable contributions to Kenya’s development. But their careers ended in shame for their acts of omission and commission while in office. Some of them were removed from office as they approached retirement and faced criminal charges. Others went to court to seek justice after being hounded out of office but died almost at the point of bankruptcy, having used all their savings in legal fees before their cases were concluded. Their stories should make interesting reading to those occupying similar positions and provide useful lessons on what to do and what not to do in public office. FINANCE MINISTER Mwiraria’s last significant post was as Finance minister in President Mwai Kibaki’s administration, Dr Koinange was Permanent Secretary, Mr Riungu was Deputy Governor of the Central Bank while Mr Kanyotu was the Director of Directorate of Security Intelligence (“Special Branch”), what is today known as National Intelligence Service. They were all in trouble because of the Goldenberg and Anglo-Leasing scandals in the Moi and Kibaki regimes that cost Kenyas billions.  Mr Kivuitu, Mr Nyamu and Mr Muttu were at the Electoral Commission of Kenya (ECK) that was in charge of the disputed 2007 elections. Some 1,133 Kenyans were killed and more than 600,000 displaced from their homes after ECK declared Mr Kibaki the winner against ODM party challenger Raila Odinga who claimed the vote had been stolen. During Mwiraria’s funeral in April last year, leaders were united in calling for his name to be cleared.  “I agree with the leaders and truly know how the case affected  Mwiraria. All the leaders have said it here in church that Mwiraria was innocent,” President Uhuru Kenyatta said. Justice Luka Kimaru, a Judge of the High Court, however, says that when a person dies before a criminal case is concluded, the case abates. “Because of death, the accused person is neither guilty nor innocent. Guilt is personal, hence it cannot be transferred,” he explained. ECONOMIC CRIMES The judge added that in cases under the Anti-Corruption and Economic Crimes Act, where the court finds that there is need for restoration of recovered assets, the estate of the person who has died can be asked to pay back. Lawyer Lempaa Suiyanka agrees, saying efforts to clear persons posthumously amounts to nothing. “Those are just but political statements that have no legal basis,” he said. Mr Suiyanka argues that once a person facing criminal charges dies, so does the criminal liability. “That is why a person facing criminal charges has to attend court unless under special arrangements,” he said. Mr Suiyanka said that the criminal liability is not passed on to a family member unlike in civil liability or assets. “It is different in civil cases which now become an issue of succession,” he said. Mwiraria was among those who were facing charges in relation to the ...
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