The High Court has ordered Ethics and Anti-Corruption Commission (EACC) to investigate lawyer Danstan Omari, his client Ann Wambui Ndung’u and police officers implicated in a Sh2 million alleged extortion scheme from two Nigerian nationals.
Justice Nixon Sifuna of the Milimani Anti-corruption directed the anti-graft body to record statements from two foreigners – Richard Tsado Bala and Lot Ziko Tsado – who are directors of a merchant health supplements company, Vital Quest International.
The two had complained against Omari, his client Wambui and Directorate of Criminal Investigations (DCI) detectives of extortion.
“I direct the Director of the EACC forthwith to take statements from the applicants (Tsado and Ziko) and thoroughly investigate and take action on the extortion allegations that the applicants have in this. Application made against the DCI officers who have been handling the Applicant, including the allegations regarding of the Sh2 million paid by the applicants,” the Judge ordered.
Justice Sifuna made the orders despite opposition from Omari, and wondered why the DCI only casually responded to the serious and weighty allegations against them.
He has also barred the police from arresting the two Nigerians and granted them each Sh300,000 anticipatory bail.
The ruling by Judge Sifuna paints a dramatic picture of how the officers from the DCI have in the pretext of investigating the two Nigerians and their company used one of the company’s local directors Ann Wambui Ndung’u to extort from them Sh2 million.
In a damning application and affidavit filed in court, the two foreigners state that the officers demanded the Sh2 million from them in a bid not to charge with the offence of engaging in a business in the country without a work permit.
Interestingly, the DCI and Wambui are now claiming that the money was lawyer Omari’s legal fees.
However, the two foreign investors say that Omari’s agreed legal fees was Sh50,000 but he went ahead to instruct them to pay the Sh2 million bribe to his account.
“The applicants have in their application stated that Omari’s agreed legal fees was a mere Sh50,000. They have further stated that the said Sh2 million was on Omari’s instructions paid by Electronic Money Transfer, in three tranches, with each tranche going to a different person/Bank Account,” Justice Sifuna stated in the ruling.
According to the ruling, the money was to go to Omari’s bank account; the second one to the bank account of one Ms Matina Swiga, an Advocate in Omari’s law firm; and the third one to the bank Account of another person.
To support their averments, the foreigners annexed to their affidavits filed in court, a huge bundle of documents comprising emails, letters, phone text messages as well as a bank statement of account from the Diamond Trust Bank, T-Mall Branch in the name of Vital Quest International Limited detailing how the alleged extortion scheme was orchestrated.
The judge noted that Wambui, through lawyer Omari denied those allegations.
Sifuna was however shocked by DCI’s casual manner of responding to the serious allegations and affidavits filed by the Nigerians.
“Interestingly despite the applicants damning allegations and Affidavits, the DCI casually responded to the application by way of mere grounds of opposition hence have not answered the questions and issues raised by the applications. Which are serious and weighty,” the judge noted.
Justice Sifuna however declined a plea by Omari to have the court only determine the issue of anticipatory bail sought by the foreigners.
“I disagree with Omari’s submission that this Court should in determining this Application, limit itself only to the facts relating to bail. This Court is not persuaded that it should proceed mechanically, blindly and naively, as to confine itself to facts relating only to bail, and close its eyes and ears to other relevant and/or connected facts stated in the Application and the responses,” he ruled.
“A court, unlike a dog on a leash, has, in arriving at a just and legally sufficient determination, the right to consider all the relevant matters and facts pleaded or proffered by the parties in the pleadings,” he further explained.
The judge noted that the extortion allegations by the investors touch on the integrity of the entire investigations and the Court will neither keep its hands off such actions, nor shut its eyes and ears to that.
He added that the court disregarding those allegations will encourage impunity.
“The DCI being a public institution, the actions of its officers and staff should be subjected to scrutiny and need to be objective, professional, civil and just. It should be accountable for the actions and omissions of such officers,” Justice Sifuna stated.
While ordering the Director of EACC to record statements and probe the matter, Judge Sifuna held that DCI officers cannot hide under the veil of ‘investigations’ to extort non-nationals.
“It does not matter that the subjects are foreign nationals who, as lawyer Danstan Omari has argued, have no work permits. That is no licence for the DCI or other state operatives to treat them unfairly and/or extort them. Protection by law is not confined to Kenyan nationals only. It is to all that enter Kenyan borders or reside within Kenya, irrespective of the legality of their presence in Kenya,” the judge ruled.
He held that foreigners should neither be harassed or extorted.
Consequently, Sifuna ordered the investigations be immediately commenced in the matter and action taken on those implicated in the extortion of the foreigners and his order be served on the Director DCI as well as the EACC.
The case will be mentioned on February 6, 2024 for directions before the Presiding Judge Kanyi Kimondo.
