Director of Public Prosecutions (DPP) Noordin Haji has urged Mombasa High Court to dismiss a case filed by Kenya Judges and Magistrate Association (KJMA) seeking to stop prosecution of one of their own Magistrate Edgar Kagoni.
In his response to the petition on Thursday, the DPP wants the case thrown out on grounds that the association has failed to demonstrate how he has violated the right of Mombasa Principal Magistrate Edgar Kagoni by recommending his prosecution.
Further the DPP argues that the petition by the KJMA has been made in bad faith, frivolous, vexatious and lacks merit.
“The judicial immunity is only available to judicial officers for things done or omitted in good faith in lawful performance of judicial functions and is not therefore available to Mombasa magistrate for his conduct which has describe was criminal and without good faith, “says haji.
He adds that the petitioners have failed to demonstrate how he violated his powers by recommending the criminal charges against Kagoni.Documents filed in court states that the office of the DPP has a mandate to institute and undertake criminal against those whom he has sufficient factual and legal basis such as the magistrate in question.
Haji says that KMJA has not demonstrated in executing his mandate he acted without or in excess of his powers or acted maliciously.
He also says that the association made general allegation relating to the alleged violation and infringement of the magistrate.
According to the DPP, he reveals that Kagoni dismissed the application by investigating officer to have the 10 Kg drugs released back to the police for safe custody.
Instead, he allowed the court assistant Onesmus Miinda Momanyi to take control of the produced exhibits in the Sh 30 million heroin and the foreign currency worth Sh 600,000.
Haji says that the magistrate failed to make any written direction as to how or where to store the heroine and the fake currency.
The magistrate is said to have order the exhibits to be kept by the court after production.
“The failure by the magistrate to make any written direction as how or where to store the said exhibits and the resultant failure to comply with the requirement of the provisions of part of 67(f) and 68 (a) of the registry manual that requires court to give a propriety storage of exhibits was criminal in the nature and facilitate the theft of the exhibits, “says DPP.
