Cohen sister turns heat on judge over Kinoti jailing

Tob Cohen’s sister Gabriel van Straten now wants Justice Anthony Mrima to recuse himself from hearing a petition in which judge Sankale ole Kantai is seeking to stop his prosecution for the murder of the Dutch businessman.

Straten has cited Mrima’s sentencing of DCI boss George Kinoti to four months in prison as a reason for the judge to disqualify himself from hearing the matter. Kinoti is a party in the petition.

Straten says Kinoti is yet to surrender himself to prison authorities to serve his jail term, a move that will adversely affect objectivity throughout the hearing.

“There is reasonable apprehension that this court may feel disturbed by the second respondent (Kinoti’s) refusal to bow down to the authority of the court and for that reason loses its objectivity throughout the momentous hearing,” Straten says in her application.

Justice Mrima sentenced Kinoti to jail on November 18 for contempt of court. The DCI boss failed to heed a court order directing that he returns guns that were seized from Jimi Wanjigi’s home in 2017 to the businessman.

Kinoti’s attempts to have the sentence set aside flopped. He had claimed the court jailed the wrong person as he was not the custodian of firearms.

Wanjigi had maintained that his firearms are in the custody of the DCI boss and not the Firearm Licensing Board.

"No evidence was tendered to show Kinoti transmitted the firearms to the board. Lack of that shows the firearms are still in his custody. This application is dismissed and orders I made on November 18 continue to be in force," Justice Mrima said on November 29.

According to Straten, the shadowboxing between the court and Kinoti might force the judge to become subjective.

“There is a high likelihood that this court may be tempted to act subjectively especially because of its ruined relationship with the second respondent and thus may affect the interested parties who could suffer grave injustice due to the power push and shadowboxing between the court and the second respondent,” she says.

Straten, who is also the executrix of Cohen’s will, says the petition is of national interest and that the impartiality and independence of the judicial officer handling the same should not be brought into question.

In the petition, Court of Appeal judge Kantai ole Sankale wants to stop his prosecution for Cohen’s murder. Cohen’s decomposing body was found in a septic tank in his compound in Nairobi weeks after he was murdered.

His wife Sarah Wairimu is among those charged with the murder.

Detectives say Justice Sankale fully participated in the killing as he was in constant communication with the accused during the time the offence was allegedly committed.

But the appellate judge is challenging his prosecution after the Office of the Director of Public Prosecutions cleared him.

The DCI has contested that decision by the ODPP not to charge the judge.

“The office of the DPP can only terminate criminal proceedings instituted by his office and not criminal investigations being undertaken by the DCI,” the directorate of criminal investigations said in court papers.

Straten was last month allowed by Justice Mrima to be enjoined in the case. She argued that the matter before court affects them as a family. She said it was important that the family be made part of the proceedings.

She said the family was concerned about the controversy in the court proceedings and unless the court entertained her application and gave the appropriate directions, the victims' voices would be unlawfully muzzled.

Other interested parties are the DPP, Grace Nginda Ita, Sarah Wairimu and Peter Karanja.

On Tuesday when the matter came up before Justice Mrima, all the petitions relating to or involving the death of Cohen were consolidated as was directed by Justice Hedwig Ong’udi on December 2.

Justice Mrima will give directions on Thursday, December 9.

Edited by D Tarus