A magistrate has been arrested over allegations that he mishandled the drug trafficking trial of a Tanzanian jailed on June 12 for 30 years.
Director of Public Prosecution (DPP) Noordin Haji claims he has evidence that Mombasa Principal Magistrate Kagoni Edgar Matsigulu mishandled exhibits in the trial of Hussein Masoud Eid Bakari.
Yesterday, Port police boss Patrick Lobolia said the magistrate, who was arrested in his house at 4am, was being held at the station.
‘’The magistrate is with us. His lawyer Jared Magolo has come and he had a brief meeting with him as we await further directions,” the police boss said.
Hussein’s dramatic arrest at Regency Park Hotel in Mombasa on March 15 last year with two others -- Hussein Masood and Osman Hamisi Tunje -- led to an equally spectacular trial in which evidence was adduced by the defense showing that the officer who arrested the trio also paid their hotel bill.
Hussein was charged with drug-trafficking and possession of heroin, but was found guilty only on the possession charge.
During the trial, it was reported that Chief Inspector Jack Achila, a prosecution witness, cleared the suspects’ bill for room 413, allegedly, because they had not paid for their upkeep there.
But lawyers Magolo and Vincent Omolo for the detained magistrate have questioned the rationale for the arrest, saying some of the allegations by the DPP on the matter are legally untenable.
Significantly, the investigation leading to the magistrate’s arrest and impending indictment was initiated by a fellow magistrate -- Chief Magistrate Evans Makori -- on August 8, according to a statement by the DPP.
Haji also alleges that subsequent investigation established that Kagoni obstructed or defeated the course of justice besides aiding the commission of an offence through alleged “acts of omission and commission.”
A statement from the DPP yesterday claimed Kagoni caused the loss of 10.002 kilogrammes of heroin seized from the convict after allegedly failing to make a determination on an oral application by an investigator, a Corporal Mjomba, who had, according to the DPP, sought to place the exhibits under police custody.
Sensitive matter
“The magistrate instead allowed the court assistant Onesmus Momanyi (who was also arrested yesterday) to take control of the produced exhibits on December 4, 2018… yet the register of exhibits shows they were taken to the exhibit store on December 5, 2018 instead,” the DPP says.
Haji says the State had intended that because of the “sensitivity of the matter” it was better or safer to store the exhibits with the police instead of the court.
Additionally, according to the DPP, the magistrate, despite convicting Hussein, ordered that Sh600,000 seized from the accused be returned to him.
According to the DPP, this order violated Sections 36 and 78 of the Narcotics and Psychotropic Substances (Control) Act that required the magistrate to forfeit the money to the state upon the suspect’s conviction.
Also arrested yesterday were Momanyi, a court assistant, Abdalla Awadh Abubakar, who is charge of exhibits at the Mombasa law courts, and Lawrence Thoya Bayan, a support staff member of the same court.
The DPP claims these three stole the narcotics valued at Sh30,066,000 and Sh600,000 in cash from the exhibits store.
Adequate evidence
Haji says the cash (Sh600,000) and 10.002 kilogrammes of narcotics was discovered missing from the exhibits store “on diverse dates between the June 28 and July 26, 2019 which led the chief magistrate lodging a complaint and requesting the DCI to institute investigations in order to establish persons culpable.”
Yesterday, the DPP said he had gathered adequate evidence to sustain charges against the three.
But lawyers questioned some of the claims made by the DPP. Magolo said he was in court throughout the trial and never heard the alleged application by Corporal Mjomba.
He said because Mjomba was a state witness, there was no way he could also make the alleged application.
He suggested that “may be he (Mjomba) forgot to make the application through the prosecutor and is now trying to shift blame to the magistrate.”
The lawyer also said it was neither criminal nor irregular for the Sh600,000 to be returned to the convict unless there was evidence it was proceeds of the crime for which he had been convicted.
