A Nairobi lawyer who was to be arrested and prosecuted for trespassing in a parcel of land in Kajiado has got a reprieve following a court ruling.
Lawyer Alfred Nyandieka sued the DPP and Inspector General of Police in 2019 for issuing threats to have him arrested and charged after he visited his clients at their home to prepare them for defence hearing.
In a judgment delivered last Friday, Justice Chacha Mwita said there was no basis for attempting to arrest Nyandieka with a view to prosecuting him given that he was discharging professional duties as opposed to committing a crime.
The DCI officers’ conduct was unlawful and reproachable in the circumstances of the case. He, however, dismissed the lawyer’s prayer for damages, stating that he was not persuaded that he is justified in seeking such damages. There is no evidence that he was arrested or prosecuted.
“In the end, this petition succeeds and I make orders that a declaration is hereby issued that the intended arrest and arraignment of the petitioner in relation to his visiting his clients on parcel Number Kajiado/ Mailua/1226 as an advocate, is an infringement and affront to the petitioner’s right to represent his clients and prepare for their defence,” the judge ruled.
"An order of prohibition is hereby issued prohibiting the DPP and IG, together with their agents, from arresting and prosecuting the petitioner in relation to his visiting his clients as an advocate and counsel of the accused in criminal cases relating to the said parcel of land."
Nyandieka, through lawyer Steven Nzaku, said he was representing his client Penwel Nyamweya, who is charged with five others in a criminal case before a Mavoko court. He also held brief on several occasions for lawyers representing the other accused persons in the criminal proceedings.
The accused persons have been charged with five offences, including forgery, giving false information to a person employed in the public service, conspiracy to defraud and abuse of office. They are alleged to have conspired to defraud and forge a title dead of John Kariro for a parcel of land worth Sh15 million. Kariro had sold the land to George Mitei.
Nyandieka said he acted for the other suspects in the case in which Mitei is the main complainant. One of the accused persons, Kuya Nairina, said he had been living on the land with his family.
Nyandieka said he took up the case to represent the other accused persons after their lawyers failed to turn up.
"After taking up the matter upon my clients’ request, I was instructed to obtain necessary witness statements and evidence in preparation for the case. I took a taxi to Nairina’s home, did my interview and identified potential defence witnesses from his neighbours,” Nyandieka said.
He said he was shocked to learn that Nairina, the taxi driver and some of the intended witnesses were arrested and charged with trespass on the land.
On July 12, 2019, persons identified as corporal Okore from Central police station visited his office where they found his staff and purported to have an arrest warrant for trespassing the land where his clients reside.
“The actions by the respondents have thus occasioned me great torment, distress and mental psychological torture and interfered with my daily business as an advocate."
In defence, the DPP through David Nthiga, the investigating officer, said that Parcel No. Kajiado/Mailua/1226 was initially owned by John Kariro ole Nakukeja, who transferred it to Mitei, and that Nairina was allocated parcels adjacent to each other.
He further argued that investigations revealed that Nairina and others conspired to defraud John Kariro his parcel No. 1226 which led to the institution of a criminal case against him and others at Mavoko law courts which was still pending.
He added on April 30, 2014, the current owner of parcel No. 1226 reported that Nairina had forcibly entered and settled on his land.
Nthiga deposes that on April 14, 2019, the lawyer with others went onto the land and took several photographs using his cell phone and that held a meeting on the land as leader of the meeting but not as a bystander.
He argued that Nyandieka was inciting the people present. He deposes that his investigations were conducted in good faith and that the other persons who trespassed on the land have been charged already.
