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DCJ Mwilu bows out of Sh43 million payout legal case

Deputy Chief Justice Philomena Mwilu has excused herself from the appeal lodged by businessman Geoffrey Asanyo contesting the dismissal of his Sh43million compensation for unlawful arrest and malicious prosecution in 2002.

Justice Mwilu, who is the vice-president of the Supreme Court, excluded herself from the case since Asanyo’s lawyer, Okong’o Omogeni, is among her defence team challenging her proposed prosecution over corruption allegations.

A five-judge High Court bench is handling Mwilu’s constitutional petition and will deliver its judgment on May 31.

Senior State Counsel Cliff Menge, representing the Attorney General, had applied for an adjournment on grounds that he had filed an urgent application before the Court of Appeal that was pending adjudication.

Justice Mwilu, sitting with Justices Ibrahim Mohamed, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola, postponed the hearing of the matter to await the appointment of a fresh bench.

Asanyo, along with his firms — Makana Motors, Multiple Sales Promoters and Wakam Enterprises — had sued the Attorney General, on behalf of the defunct Kenya Anti-Corruption Commission (Kaca), for unlawful arrest and prosecution.

He had been charged in 2002 with allegedly corruptly giving Sh180,000 to the former Town Clerk of the defunct Nairobi City Council, Zipporah Wandera, as an inducement for her to facilitate payments to Makana Motors Ltd.

Six years later, the Attorney General withdrew the charges under Section 87 (a) of the Criminal Procedure Code (CPC). Asanyo and his firms filed the suit in 2009 seeking special and general damages.

Retired High Court Judge David Onyancha, in a judgment delivered on May 21, 2014, awarded Asanyo and his firms a whopping Sh472 million compensation after finding that the Nakuru-based businessman was the brains and engine of his trading empire. Asanyo’s arrest, detention and prosecution was unjustified, malicious and adversely affected his liberty and reputation, he had said.

The Attorney General was dissatisfied with the judgment and filed an appeal but the parties engaged in negotiations seeking an amicable settlement of the matter. Later, Asanyo accepted an offer by the Attorney General for an all-inclusive amount of Sh42.8million and the parties filed in the Court of Appeal a written consent on September 18, 2015.

On November 20, last year, Supreme Court Judges Ibrahim, Jackton Ojwang, Wanjala, Ndung’u and Lenaola had directed the Court of Appeal to adopt the mutual agreement as a judgment of the court.

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