A complaint has been lodged with the Judicial Service Commission (JSC) by Eveready Security Guards Company Ltd against Judge Edgar Kagoni with regard to alleged land fraud by Esteem Energy.
In the letter received by office of the ombudsman and JSC, Lucy Wachira, the proprietor of Eveready wants the commission to remove from office the judge for having issued an eviction order that was allegedly based on forged documents by Hassan Issak, the director of Esteem Energy.
Below is the text of the complaint:
On 22nd September 1997, througn the Company, we ourchased the lad known as LR No. 209/5924 (the Prenises) in South B, Nairobi and obtainea certificate of lease. A copy of that lease is annexed and marked as LW1. The company, which provides security service in the form of security personnel based its operations at the premises until 5th September 2022 when we were served with a court order by Esteem Energy Limited demanding that we vacate the premises. The Court Order is annexec: as LW2.
The Court Order had been issued by Honourable Edgar Kagoni of the Milimani Commercial Court.
Upon receipt. of the Court order and our eviction from the premises, we instructed the law firm of Kamau Kuria and Company Advocates to enter appearance on our behalf and file the relevant documents in response to the suit.
Details of Judicial Misconduct, Bias and Outright Carelessness
Honourable Edgar Kagoni violated his oath of office and made roughshod of established legal and judicial principles while handling the Notice of Motion and the pleadings of the Plaintiff Esteem Energy Limited, as follows:
1. PLAINT FILED SUPPORTED BY A VERIFYING AFFIDAVIT THAT WAS NOT COMMISSIONED.
The Plaint dated 13th July 2022 and filed by the firm of Ashioya, Mogire and Nkatha advocates was a nullity as it was supported by a verifying affidavit that was not commissioned by a commissioner of oaths. We annex this plaint and affidavit as LW3.
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It is a requirement of Order 4 rules (2), (3) and (4) of the Civil Procedure Rules that every Plaint be accompanied by a Verifying Affidavit verifying the averments in the Plaint in accordance to the rules provided therein. Rule 6 further provides that the court may of its own motion or on the application by the plaintiff or the defendant order to be struck out any plaint or counterclaim which does not comply with sub-rule (2) (3), (4) and (5) of this rule.
Contrary to the above provisions, the Court proceeded to issue adverse orders on the 26th day of July 2016 against Eveready Security Guards Company Limited, based on documents that were clearly afoul of the rules.
2. NOTICE OF MOTION FILED WITH A SUPPORTING AFFIDAVIT THAT WAS NOT COMMISSIONED
The notice of motion filed by esteem energy dated 13th July 2022 was invalid for being supported by a supporting affidavit that had not been commissioned by a commissioner of oaths contrary to the mandatory provisions of Section 5 of the Oaths and Statutory Declarations Act (Cap 15.) Laws of Kenya.
In the file perusal carried out on the 6ih of September, 2022, our Advocates on record discovered that the file also contained a notice of motion application upon which the orders were issued. In support of that notice of motion was a supporting affidavit of Hassan Ibrahim Issak dated 13th July 2023 which was signed by the deponent but it was not stamped by the Commissioner of Oaths.
The affidavit cannot therefore be said to have been sworn and it amounts to a mere statement. The annexures contained in the affidavit have no force of law and cannot be relied upon.
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we annex this Notice of motion and Affidavit as LW4.
3. AMENDMENT OF THE COURT’S RECORD WITHOUT LEAVE OF COURT
As I have been able to demonstrate, the Plaint and affidavits in the Court file as at 6th September, 2022 were not stamped by a commissioner of oaths.
Upon the entry of our Advocates, the firm of firm of Ashioya, Mogire and Nkatha Advocates found a way to amend the Court file and introduce stamped documents. These very documents were then served upon our Advocates.
The Court in Jacob Thoya lha v Independent Electoral & Boundaries Commission & 2 others 20171 eKLR while clealing witn the case of replacement of court filings held that “Now, in my understanding, once parties file documents, the copy they tender to court to form part of the court record cease to be owned by them but by the court. They are hence not at liberty to deal with such papers as they deem fit without recourse to court.
Therefore, even in ordinary litigation the law provides how to deal with a deficiency in a pleading. It is by an amendment either with the leave of the count or without the leave before pleadings close.”
Through an act of connivance, corruption or outright thuggery, the pleadings which were void for failing to adhere to the Oaths and Statutory Declarations Act were avietly withdrawn from the file and replaced with stamped copies.
There is no application on the system or in the file seeking such prayers and no indication that the same was granted.
The Judiciary has now moved away from the physical filing of documents, and an audit of the system will reveal what happened.
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As the JSC chair, you are clothed with constitutional authority to investigate this matter and get to the bottom of it. The days of judicial officers conniving with parties before them to alter the course of their matters in their favor were dealt a death blow by the Constitution of Kenya, 2010.
Indeed, judicial authority is derived from the people, and the Courts exercise it as custodians on behalf of the people. Judicial officers like Honourable Edgar Kagoni are under a duty to be guided by the principles in Article 159(2) of the Constitution.
The failure of Hon. Edgar Kagoni to show fidelity to the law has had adverse far-reaching effects on us. We have been evicted from a property we acquired through hard work and sweat. We are unable to run our operations.
We lost many vital documents in the eviction, suffered huge losses, and have unjustifiably been denied possession of our land and offices.
Today, I hope that even though I am a small person in this Country, the wheels of justice will turn in my favor, and the JSC shall carry out its constitutional duty to determine the culpability of Hon. Edgar Kagoni.