The High Court in Malindi has suspended criminal charges against embattled Mombasa Principal Magistrate, Edgar Kagoni, in a case linking him to heroin theft worth Sh30 million.
The magistrate was under fire over the loss of narcotic exhibits in a case that had been brought before him.
The Directorate of Criminal Investigation, Director of Public Prosecution and the Attorney General had launched the case accusing Kagoni of masterminding the disappearance of heroin which were exhibits in a case against drug lords operating at the coast region.
In his ruling delivered on Tuesday, Malindi Resident Judge, Justice Nyakundi said that the magistrate was performing his judicial functions concerning the case where the accused person was sentenced adding that he did not find sufficient grounds to warrant criminal prosecution against the magistrate.
Reuben Nyakundi, at the same time, ordered the government to pay Mr. Kagoni Sh. 2 million in damages for infringing on his rights by wrongly arresting and prosecuting him.
The Principal Magistrate also dismissed three petitions relating to the matter that had been filed by Court Assistant, Onesmus Momanyi, Court Executive Assistant, Abdalla Awadh, and another Court staff member, Lawrence Thoya.
“I find no prima facie evidence to guarantee criminal prosecution against the Magistrate,” he said.
The Judge indicated that the State violated the Magistrate’s right to liberty when the police arrested him under the presumption that he had committed a crime and allowed Kagoni’s application to stop his prosecution.
“I have carefully looked at the issue involving the second, third and fourth petitioners and their functions fall under the public function of the ministerial function and I disallow their petitions,” he said.
The Law Society of Kenya and the Kenya Judges and Magistrates Association had been enjoined in the case as interested parties.
During the hearing of the petitions, Prosecuting Counsel, Alexander Muteti, had argued that Kagoni overstepped his constitutional independence and was therefore liable to criminal prosecution under the law.
“Article 168 of the Constitution protects judicial officers from liability in a suit of judicial consent, such protection is purely from the action done in good faith,” he said.
Kagoni, through lawyer Nelson Havi, had argued that the decision to press charges against him was meant to embarrass and intimidate him.
According to lawyer Nelson Havi, the charges leveled against the magistrate were misplaced given that he had already heard and delivered judgment on the narcotics case by the time the drugs disappeared.
“My client delivered judgment in which he convicted the suspected drug trafficker, handing him a 30-year jail term, a judgment that has not been appealed against to date,” Havi said.
Havi added that it was inconceivable that after delivering such a harsh sentence, the Magistrate would connive to have the same exhibits stolen from the Court stores.
