CBK boss loses bid to strike out report in graft case
11 June 2014, 15:03
Nairobi - Central Bank Governor Njuguna Ndungu lost a bid to have the Ethics and Anti Corruption Commision EACC be compelled to produce communication with the Chief Justice over a report published in a local paper.
The embattled governor had alleged that the April 23 media report would have subjected him to an unfair hearing in a case that seeks to stop his prosecution over allegations that he was involved in the irregular award of a Sh1.2 billion tender to install a modern security system at CBK.
And therefore demanded that he be allowed to sue the media house and the Ethics and Anti-Corruption Commission and have the agency ordered to produce copies of communication exchanged between the EACC and Dr Willy Mutunga; information which he claimed was published without his knowledge yet his case was on-going.
But High Court judge George Odunga ruled that no evidence had been produced to show that indeed the requested correspondences were in possession of the EACC or the media house that published the report.
While dismissing Prof Ndungu’s request, Justice Odunga also said that the CBK boss should have tabled evidence to show how the sorted information was a threat.
“Prof Ndung’u should have shown evidence that the information is in possession of EACC and he needs it for protection, the proof should explain why the information should not have been disclosed,” said the judge.
The judge advised that the media house should have been joined in the case to at least prove that the alleged report was indeed an article of its publication.
“There has been no attempt to prove that it was the Daily Nation that reported the matter, in my view at least the publishers could have been joined in the case only for the cause of determining an interlocutory matter, the reporter should have been called to shed light,” said Justice Odunga.
The judge explained that media has an international special freedom of expression and has a major bearing on public’s access to information as well as responsibility to accurate reporting.
Justice Odunga at the same time faulted the Attorney General for not elaborating on laws which allow non-disclosure of the kind of information sought by Prof Ndung’u saying that there was no justification for denial of the information as there has been no investigations carried out as per the Economics Crimes Act.
As soon as the judge dismissed the request the EACC, the Director of Public Prosecution and the AG demanded for an early and faster hearing date in the case which the CBK boss is challenging his prosecution.
Prof Ndungu’s lawyers Donald Kipkorir and Cecil Miller Junior pleaded for more time to consult on whether to enjoin the media house in the suit but the EACC, DPP and AG uniformly opposed this saying it is an attempt to delay the corruption case against the CBK boss who has been temporarily barred from being arrested over the procurement flaws allegations in the tender award.
The hearing of the case will be on June 23.
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