Magistrate's bid to stop Sh2bn land case flops

A magistrate accused of irregularly acquiring 9,394 acres of land belonging to Miwani Sugar Company and valued at Sh2.32 billion has lost a fourth bid to stop his prosecution.

Mr Abdulkadir Athman Salim Elkindy, together with directors of Crossley Holdings Ltd and an advocate will now face criminal charges for conspiracy and acquisition of public land.

Justice Kathurima M’Inoti dismissed Mr Elkindy’s latest application to stay the lower court’s proceedings on Friday, in effect opening the hearing of the trial against him.

“I am persuaded by the Ethics and Anti-Corruption Commission’s contention that Mr Elkindy’s application is a strategy to delay the resolution of the pending trial, which has stalled for seven years through orders of prohibition,” Justice M’Inoti said.

The EACC recommended the arrest and prosecution of Mr Elkindy, a principal magistrate based in Kisumu, in 2010 alongside the directors of Crossley Holdings and a lawyer.

ABUSE OF POWER

The magistrate is said to have presided over sham proceedings in favour of Crossley to acquire the land of the troubled miller through public auction.

The three were charged in a Kisumu court with conspiracy to acquire public property but obtained orders staying the case.

The EACC appealed the decision and the High Court set aside the ruling in 2012.

The accused first obtained a stay through Justice Abida Ali Aroni but the decision was overturned by Appellate judges who said EACC was within its mandate when it investigated and made recommendations for the prosecution of Mr Elkindy and Crossley Holdings directors.

Further, the three Judges – Festus Azangalala, Gatembu Kairu and Sankale ole Kantai – ruled that the Director of Public Prosecutions (DPP) had powers to charge the suspects over acquisition of public property.

SHAM PROCEEDINGS

The prosecution said the magistrate and co-accused conspired to fraudulently transfer the land from Miwani Sugar, in which the public, through the government, holds 49 per cent shares of the company that is now a shell.

He also reportedly entered a ruling against the miller in favour of Crossley without evidence of service of summons.

The judge concurred with EACC’s submissions that the magistrate was out to delay his prosecution.

Mr Elkindy is accused of presiding over sham proceedings by acting without jurisdiction and purporting to extend the validity of summons to enter appearance 14 years after filing of the suit.

The prosecution also accused the magistrate of purporting to grant orders for removal of restrictions on the land title and purporting to grant orders divesting Miwani Sugar of the property and transferring the same to Crossley Holdings.

IMMUNITY

After they were arraigned for plea taking, the magistrate and co-accused moved to the High Court seeking orders of prohibition to stop their prosecution and which were consequently granted.

However, the Director of Public Prosecutions and EACC had the decision overturned at the Appeals Court.

Aggrieved, the magistrate rushed to Nairobi where he filed a fresh constitutional petition to challenge his prosecution on grounds that his privileges and immunity as a judicial officer were being violated.

But Justice John Mativo dismissed the case on July 25, 2017 saying the constitution grants immunity to judicial officers only when they are acting in good faith.

Dissatisfied by Justice Mativo’s ruling, Mr Elkindy lodged yet another appeal seeking to stay the criminal proceedings, dismissed by Justice M’Inoti on Friday.