PUBLIC SERVICE COMMISSION

PETITION NO. OF 2016

IN THE MATTER OF ARTICLES 73 AND158 OF THE
CONSTITUTION, SECTION 31 OF THE PUBLIC SERVICE
COMMISSION ACT NO. 13 OF 2012AND THE PUBLIC
OFFICER ETHICS ACT NO. 7 OF 2007
IN THE MATTER OF THE REMOVAL OF KERIAKO TOBIKO
FROM OFFICE OF DIRECTOR OF PUBLIC PROSECUTIONS
NELSON HAVI.
.PETITIONER
-VERSUSKERIAKO
...RESPONDENT

TOBIKO.

SUPPORTING AFFIDAVIT
I, NELSON HAVI of Post Office Box Number 38422 - 00623,
Nairobi and residing in Nairobi, within the Republic of Kenya
hereby solemnly swear and state as follows:1. I am the Petitioner herein. I have full knowledge and
information concerning this matter.
2. I have seen, read, been explained to by my Advocates, Havi&
Company and understood the contents of the Petition herein. I
swear this Affidavit in support of the Petition.
3. I am an Advocate of the High Court of Kenya practising in the
name and style of Havi & Company Advocates.
4. I petition for the removal of Mr. Keriako Tobiko from the office of
the Director of Public Prosecutions (DPP), on behalf of the
general public and on my own behalf.
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5. Mr. Tobikos removal is sought on the grounds of noncompliance with Chapter Six of The Constitution of Kenya, 2010
and gross misconduct or misbehaviour. The removal is sought
under Article 158 of The Constitution of Kenya, 2010.
6. I will in this Petition, set out the constitutional duties and
powers of the holder of the office of the DPP and also the
holders requirements in respect to leadership and integrity
under The Constitution. Further, I will examine the
circumstances surrounding the appointment of Mr. Tobiko as
the DPP; the existence of a cartel of impunity controlling him;
demonstrate his repetition in several cases amongst many, of
the very same violations which put his appointment into
question; and finally, indicate why the same warrants his
removal.
Powers and Duties of the DPP
7. Article 157 (4) of the Constitution empower the DPP to direct
the Inspector-General of the National Police Service (IG) to
investigate any information or allegations of criminal conduct.
8. Under Sub-Article (6) the DPP may institute and undertake
criminal proceedings, take over and continue any such criminal
proceedings instituted or undertaken by another person or
authority, with the permission of the person or authority and
discontinue any such criminal proceedings before delivery of
judgment.
9. Under Sub-Article (9) the DPPs powers may be exercised in
person or by subordinate officers acting in accordance with
general or special instructions.
10. Under Sub-Article (10) the DPP is mandated to act without
the consent of any person or authority in the commencement
of criminal proceedings and the exercise of his or her powers or
functions. The DPP shall not be under the direction or control
of any person or authority.
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11. Sub-Article (11) obliges the DPP to have regard to the public
interest, the interests of the administration of justice and the
need to prevent any abuse of the legal process in the exercise
of his powers.
Leadership and Integrity of the DPP
12. The DPP is a State Officer as defined in Article 260 of the
Constitution. The holder of the office of the DPP is therefore,
amenable to the responsibilities of leadership and integrity
spelt out in Article 73 of The Constitution.
13. Under Sub-Article (1), the DPPs authority is a public trust, to
be exercised in a manner that is consistent with the purposes
and objects of The Constitution, demonstrate respect for the
people, brings honour to the nation and dignity to the office
and promotes public confidence in the integrity of the office.
The authority rests on the holder of the office of the DPP, the
responsibility to serve the people, rather than the power to rule
them.
14. Sub-Article (2) sets out the guiding principles of leadership
and integrity. Selection on the basis of personal integrity,
competence and suitability, or election in free and fair elections
is the first one. Objectivity and impartiality in decision making
and in ensuring that decisions are not influenced by nepotism,
favouritism and improper motives or corrupt practices is the
second. Third is selfless service based solely on the public
interest, demonstrated by honesty in the execution of public
duties and the declaration of any personal interest that may
conflict with public duties. Fourth is accountability to the public
for decisions and actions. Lastly, is discipline and commitment
in service to the people.
Circumstances leading to the appointment of Mr. Tobiko
as the DPP

15. The office of the DPP was established by Article 157 (1) of
the Constitution. Sub-Article (2) requires that the DPP be
nominated and, with the approval of the National Assembly,
appointed by H. E., the President. Under Sub-Article (3) the
qualifications for appointment for the DPP are the same as
those for the appointment of a Judge of the High Court.
16. The recruitment panel led by Mr. Francis Atwoli
recommended to the H. E., the President and the Prime
Minister, the nomination of Mr. Tobiko as DPP. Subsequently,
Mr. Tobikos name was forwarded to the National Assembly on
the 18th day of May, 2011 for approval. Thereafter, the
Constitutional Implementation Oversight Committee (CIOC)
was mandated by the National Assembly to vet Mr. Tobiko. The
CIOC as constituted by the National Assembly comprised of 27
members.
The CIOCs chairperson was Hon. Hussein
Mohammed Abdikadir (MP) whilst the Vice-Chairperson was
Hon. Mille Odhiambo Mabona (MP).
17. The National Assembly Report for the 7 th day of June, 2011
indicates that there was a push to ensure the expeditious
vetting and approval of Mr. Tobiko. The National Assembly
Report for the 8th day of June, 2011 indicates that Hon.
Abdikadir sought more time for the CIOC to table its report to
the House.
18. As at the 14th day of June, 2011 the CIOCs Report on Mr.
Tobiko was ready. There was a tie on votes in favour and
against the approval of Mr. Tobiko at eleven (11) for and eleven
(11) against, with one (1) abstention. The majority decision of
the CIOC was that Mr. Tobikos approval be subjected to further
investigations on outstanding issues raised during his vetting.
The minority objection to the further investigations was
registered by two (2) members only.
19. Four fundamental issues regarding Mr. Tobikos character,
integrity, and impartiality were raised during his vetting by the
CIOC. It is those four issues that the CIOC recommended be
further investigated before his approval by the House.
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20. The first issue related to the complaint by the late Justice
Moijo Ole Keuiwa. Mr. Tobiko was accused of interfering with
and frustrating the prosecution of his former client, Mr.
Livingstone Kunini Ole Ntutu, in Nairobi Chief Magistrate Court
Criminal Case No. 2157 of 2003, Republic -vs- Livingstone
Kunini Ole Ntutu and Onyambu. The alleged interference led to
the acquittal of the accused on account of the prosecutions
failure or refusal to produce a key witness.
21. The second issue was a complaint that whilst acting for the
Ole Ntutu family in High Court Succession Case No. 1263 of
2000, Mr. Tobiko had attested the signature of a minor on a
consent form and misrepresented the minor as an adult.
22. Third, Mr Tobiko was accused of soliciting for a bribe from Mr.
Sammy K. Kirui. Mr. Tobiko was accused of threatening and
subsequently enhancing the criminal charges against Mr. Kirui
on account of Mr. Kiruis refusal to pay the claimed bribe.
23. The fourth issue related to Mr. Tobikos past poor
performance record. Mr. Philip Murgor had complained that Mr.
Tobiko was beholden to the elite and had not initiated any
serious reforms in the office of the DPP.
24. The COICs Report reached the House for consideration on
the 15th day of June, 2011, with the recommendation that those
four issues be investigated further before his approval is
reconsidered by the House.
25. The National Assembly Official Report for the 15 th day of
June, 2011 indicates that there was consensus that some of the
issues raised against Mr. Tobiko could only be investigated by
the Police, as the House was not competent to conduct the
requisite investigations.
26. However, in a sudden unexplained turn of events, members
allied to Mr. Tobikos pastoralists group, minorities and
community elites led by Hon. William Ole Ntimama and Hon.
5

Mohammed Affey cheered on by Hon. Abdikadir, approved the

appointment of Mr. Tobiko.
27.
No vote was taken on the purported approval or reasons
given why the approval could not await further investigations
as strongly recommended on the floor of the House by Hon.
Martha Karua and the late Hon. MutulaKilonzo, amongst others.
28. The ensuing public outrage resultant from the failure to
undertake the recommended further investigations on the
pending four issues was evident in media reports for the period
commencing the 7th day of June, 2011 to the 16th day of June,
2011.
29. The following documents housed in file A are produced in
evidence of the matters set out hereinabove:a. National Assembly Official Report for the 7 th day of June,
2011;
b. National Assembly Official Report for the 8 th day of June,
2011;
c. The CIOCs Report on Judicial Nominees dated the 14 th day of
June, 2011;
d. Notice of Motion for the adoption of CIOCs Report on Judicial
Nominees dated the 14th day of June, 2011;
e. National Assembly Official Report dated the 15 th day of June,
2011;
f. Daily Nation of the 7th day of June, 2011;
g. Daily Nation of the 7th day of June, 2011; and,
h. Daily Nation of the 15th day of June, 2011.
Appointment challenged in Court
30. Mr. Tobikos appointment was challenged in Court, in
Constitutional Petition No. 101 of 2011.
Mr. Tobiko was
represented in the Petition by Hon. Paul Kibugi Muite and Mr.
Erick Kyalo Mutua amongst others. Mr. Mutua would later be
elected Chairman of the Law Society of Kenya (LSK). The
6

Petition was heard by Justices J. W. Mwera, M. Warsame and P.

M. Mwilu.
31. The Petition was dismissed on the 25 th day of May, 2012.
The Court held that the issues raised against Mr. Tobiko could
not be considered by the Court once he was substantively
appointed. It was consequently held that his appointment as
the DPP and that his appointment could only be challenged in
the manner set out under Article 158 of The Constitution.
32. The following documents housed in file B are produced in
evidence of the matters set out hereinabove:a. Proceedings in Petition No. 101 of 2011; and,
b. Judgment dated the 25th day of May, 2012 in Petition No. 101
of 2011.
Emergence of a cartel of impunity
33. Mr. Tobiko assumed office as the DPP notwithstanding the
baggage on his integrity, to use the words of Hon. Karua and
the late Hon. Kilonzo. He owed his appointment to several
individuals who had assisted his at the COIC, the National
Assembly and in the legal profession.
34. The first key person in Mr. Tobikos appointer was Hon.
Abdikadir who chaired the COIC, and eloquently and gallantly
convinced the House, to approve Mr. Tobikos appointment
notwithstanding the COICs recommendation that Mr. Tobiko be
further investigated on the four outstanding issues raised
against him at the COIC and raised before the House.
35. It is noteworthy that Hon. Abdikadir was elected Member of
Parliament on a Safina ticket, whose party leader was and still
is Hon. Muite. Hon. Abdikadir held and continues to hold
positions of great influence in Government, which his partner
Mr. Ahmednasir would invoke when appropriate, to achieve his
goals.
7

36. The second person was Hon. Muite. Hon. Muite would later
be appointed on several matters to act for the Judicial Service
Commission (JSC), the DPP, the EACC and the LSK.
37. The third person was Mr. Abdullahi Ahmednasir Maalim. Mr.
Ahmednasir was a former Chairman of the LSK and had just
been elected and approve by the House, as the LSK
representative to the JSC. Mr. Ahmednasir was a partner of Hon.
Abdikadir and had been vetted by the latters COIC.
38. Mr. Ahmednasir would be very influential in the appointment
of the Chief Justice, the Deputy Chief Justice and the Registrar
of the Judiciary as well as all Supreme Court Judges and many
Court of Appeal and High Court Judges. He would also, be
appointed on several matters to act for the JSC, the EACC and
the LSK.
39. The fourth person was Mr. Mutua. Mr. Mutua would be
appointment as member of the Advisory Board in the office of
the DPP.
40. The fifth person was Hon. Ntimama, who had drummed up
support of the House to approve Mr. Tobikos appointment.
Hon. Ntimama holds sway in the political and community affairs
of the Masaai.
41. With the above structure in place, Mr. Tobiko would find
himself willingly or unwillingly taking decisions and exercising
the powers of the DPP under the directions of Messrs.
Ahmednasir, Mutua and Hon. Muite as well as Hon. Ntimama.
42. Mr. Tobiko would also, take decisions favourable to
individuals related to or associated with his backers aforesaid.
A cartel of impunity had been put in place. Several cases
handled by the cartel will attest to this fact. The missing link
was the Directorate of Criminal Investigations (DCI), who the
cartel had failed to take control of.
Malili Ranch Limited
8

43. On the 10th day of March, 2014, the DCI recommended to the
DPP, the prosecution of Messrs. Erick KyaloMutua, Peter
MutuaKanyi, Julius MaweuKilonzo and KamothoWaiganjo
together with Hon. Johnstone Muthama for several offences
relating to the loss of a collosal amount of money by Malili
Ranch Limited (Malili) and the Government of Kenya. A
further recommendation to that effect was made by the DCI to
the DPP on 22nd day of April, 2014.
44. Hon. Muthama challenged the intended prosecution in
Petition No. 203 of 2014. The Petition was filed in Court on the
30th day of April, 2014. Mr. Tobiko appointed his personal
Advocate in Petition No. 101 of 2011, Hon Muite, to represent
the DPP, the DCI and the IG in the matter.
45. The appointment was justified on the claim that Mr. Tobiko
was conflicted, on account of the fact that Mr. Mutua sits in the
DPPs Advisory Board. Mr. Tobiko did not disclose that the real
and actual conflict was that Mr. Mutua was his Advocate in
Petition No. 101 of 2011.
46. It was claimed that Hon. Muites services were procured after
the DPPs Tender Committees sitting of the 9 th day of May,
2014 which awarded the tender for the provision of legal
services of a Senior Counsel to Hon. Muite. There is no
indication whatsoever that Mr. Tobiko had in the process of
procuring Hon. Muites services, declared that the former is his
Advocate and that the key suspect, Mr. Mutua is also his
Advocate.
47. Mr. Tobikos failure to disclose the Advocate-Client
relationship between Hon. Muite and Mr. Mutua on one hand,
and himself on the other hand, did not promote public
confidence in the integrity of the office of the DPP. Mr. Tobikos
actions also demonstrated lack of objectivity and impartiality in
decision making process, and in ensuring that decisions are not
influenced by favouritism and other improper motives or
corrupt practices.
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48. Mr. Tobikos actions did not demonstrate selfless service

based solely on the public interest, demonstrated by honesty
within the execution of public duties and the declaration of any
personal interest that would conflict with public duties. Mr.
Tobikos action therefore, brought dishonour to the nation and
the dignity of the office of the DPP.
49. Hon. Muite would end up later acting for the DPP in Petition
No. 203 of 2014 and JR No. 333 of 2014 filed by Messrs. David
NdoloNgiali, James KitukuMunguti and LeornardKyaniKitua, to
challenge their intended prosecution even, before his official
appointment and gazettement on the 26th day of August, 2014.
50. Hon. Muites appointment was challenged in JR No. 424 of
2014 on grounds other than those arising out of conflict of
interest set out hereinabove. Mr. Tobiko did not disclose to the
Court, the fact that Hon. Muite and Mr. Mutua are his personal
Advocates.
A grave miscarriage of justice would unfold
subsequent to the actions of Messrs. Tobiko, Mutua and Hon.
Muite.
51. The following documents housed in file C are produced in
evidence of the matters set out hereinabove:a. Letter dated the 10th day of March, 2014 from the DCI to the
DPP;
b. Letter dated the 22nd day of April, 2014 from the DCI to the
DPP;
c. Petition dated the 29th day of April, 2014 in Petition No. 203
of 2014;
d. Notice of Appointment of Advocate dated the 19 th day of May
2014 in JR No. 203 of 2014 by Hon. Muite;
e. Further Affidavit sworn on the 3 rd day of October, 2014 by Mr.
David NdoloNgilai and filed in JR No. 333 of 2014;
f. Notice of Motion dated the 8 th day of October, 2014 and filed
in JR No. 333 of 2014; and,
g. Further Affidavit sworn on the 10th day of November, 2014 by
Mr. GitongaMurunga and filed in JR No. 333 of 2014.
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52. Hon. Muite sprung into action to execute a pre-arranged

assignment to save Mr. Tobikos other Advocate, Mr. Mutua. On
the 26th day of August, 2014 when the challenge on his
appointment to act for the DPP was pending in Court, Hon.
Muite wrote to Mr. Tobiko stating in part, as follows:The further investigations are now complete
and I have fully reviewed the evidence at the
meetings with State Counsel Ondimu of your
office
and
investigators
from
C.
I.
D.
Headquarters and from the Ethics and AntiCorruption Commission.
53. From nowhere, and without any constitutional authority, Hon.
Muite is indicated to have conducted criminal investigations.
He claims to have involved the Ethics and Anti-Corruption
Commission on the alleged investigations. Details of those
investigations are not elaborated, or evidence and findings in
respect thereof availed.
54. That notwithstanding, Hon. Muite makes a recommendation,
subject to Mr. Tobikos concurrence, that Dr.BitangeNdemo,
Messrs. ZablonMabea, Ronald Musengi and the directors of
Malili be charged with several offences. The fate of these
individuals was sealed.
55. In another unexplained turn of events, Messrs. Mutua and
Waiganjo were exonerated from prosecution. The two, together
with Messrs. Peter Kalua and Peter MutuaKanyi were lined up as
prosecution witnesses, with the closing remark by Hon. Muite
that:Because their evidence as per the statements
which they have voluntary given is crucial to
securing convictions of those being charged.
56. Hon. Muite executed a well-choreographed plan that would
have caused a huge public uproar had it been executed by Mr.
11

Tobiko himself.
Hon. Muite, who is Mr. Tobikos personal
Advocate, enabled Mr. Tobiko to assist Mr. Mutua another of his
Advocate, to escape criminal prosecution despite overwhelming
evidence to warrant his prosecution as established by the DCI.
57. It is no wonder therefore, that in his letter to Hon. Muite
dated the 28th day of August, 2014, Mr. Tobiko satisfactorily
stated thus:I have considered the matter in light of your
recommendations and in exercise of my powers
in the Constitution direct that prosecution should
ensue as per the Charge sheet.
58. Mr. Tobikos unlawful and unconstitutional actions would lead
to a continuous cold war between him and the Director of
Criminal Investigations, Mr. Ndegwa Muhoro.
59. Mr. Tobiko would on a later date, enlist the services of Mr.
Ahmednasir to wage a smear campaign against Mr. Muhoro,
whenever the latter would refuse to tow the cartels line on any
high profile criminal investigation. An invitation to the public
will disclose many such cases involving Messrs. Tobiko and
Ahmednasir.
60. In the meantime, Mr. Musengi, whose prosecution was
engineered by Messrs. Tobiko, Mutua and Hon. Muite for a
cover-up, filed Petition No. 436 of 2014 challenging his
intended prosecution on the Malili matter. Mr. Musengis key
ground was that there was no recommendation from the DCI
for his prosecution and that Mr. Tobiko had in his letter of the
24th day of January, 2011, indicated that Mr. Musengi was
innocent and directed that no further police action be taken on
him.
61. The following documents housed in file D are produced in
evidence of the matters set out hereinabove:-

12

a. Letter dated the 26th day of August, 2014 from P. K. Muite to

Mr. Tobiko;
b. Letter dated the 28th day of August, 2014; and,
c. Judgment dated the 7th day of October, 2015 in Petition No.
436 of 2014.
62. The prosecution of the real culprits in the Malili case was
compromised and the real culprits exonerated. Substantial
state resources were and will be utilized in pursuing the small
fish in the matter together with some big fish who have
been framed by Messrs. Tobiko, Mutua and Hon. Muite in an
elaborate scheme intended to disregard the public interest, the
interests of the administration of justice and the need to
prevent and avoid abuse of the legal process.
Misc. Criminal Appln. No. 144 of 2015, Republic -vsStephen Ole NtutuKanyinge, Patrick Kuturet Ole Ntutu,
Moitalel Ole Kenta, Johana Ngeno and KoreiLemein
63. The current Governor of Narok is Hon. Samuel Tunai and
Hon. Stephen Ole Ntutu is the Senator. Hon. Tunais election
was widely supported by the Ole Ntutu family which is very
influential in Narok County. A fall out arose when Hon. Tunai
intensified a crackdown on land grabbing in the Mara which
involved the Ole Ntutu family. Hon. Ntimama and Hon. Ole
Ntutu commenced a county-wide campaign of inciting the
masses.
64. The intention was to have Hon. Tunai slow down his
crackdown and/or leave office. The controversy degenerated
to a violent confrontation outside the offices of Hon. Tunai on
the 22nd day of December, 2014.
Hon. Ole Ntutu, Hon.
JohanahNgeno, Hon. Patrick Ntutu and Hon. Moitalel Ole Kenta
were arrested and charged in Court on the 29 th day of January,
2015 after investigations by the DCI, recommending their
prosecution.
65. The DPP applied for the four to be detained for seven days.
The four were arraigned before Hon. E. Cherono (SPM) on the
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29th day of January, 2015. Messrs. Karori and Ondimu (State

Counsel) appeared in Court for the DPP.
The four were
represented by Mr. NzambaGitonga and Martin Kamwaro as
well as Hon. James Orengo and Hon. Peter Kaluma.
66. Mr. Gitonga applied for the release of the four on cash bail.
The defence was later joined by Mr. Muite who was put on
record.
67. Messrs. Karori and Ondimu prosecuted the DPPs application.
The defence team responded and the DPPs team was about to
reply.
68. From nowhere, Mr. Tobiko entered the Court room and took
over the matter from Messrs. Karori and Ondimu stating that
his office would abandon the application earlier filed. Mr. Tobiko
unconditionally agreed to the release of the four. The Court
and everyone in Court was shocked by Mr. Tobikos actions.
69. Intimidated, Messrs. Karori and Ondimu sat back and let their
boss take over the matter. The decision by the Court to set the
four free unconditionally was inevitable. In his Ruling, Hon.
Cherono noted in part, as follows:Before the State could reply to the submissions
by the counsel for the respondents, the Deputy
Public Prosecutor Mr. Keriako Tobiko rose up and
sought to shed some light on the issues before
hand. The Director of Public Prosecutions stated
that the position by the State is not to oppose
the release of the respondents on bail but that
they require them to appear before the
investigating officers at CID Muthaiga once a
week for two weeks.
In view of the new matters, this Court therefore
makes the following orders.

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70. The matter came up in Court on the 13 th day of February,

2015, 30th day of March, 2015 and 21st day of May, 2015 with
Hon. Muite appearing for the four. In a strange turn of events,
Mr. Tobiko dropped the criminal charges.
71. With the above action, Mr. Tobiko and Hon. Muite had
managed to frustrate the prosecution of Hon. Stephen Ole
Ntutu and Hon. Patrick Ole Ntutu, his former clients in
Succession Cause No. 1263 of 2000 and key allies of Hon. Ole
Ntimama, who in June, 2011 was instrumental in securing the
approval of Mr. Tobiko for appointment as the DPP. Mr. Tobiko
repeated the very same mistake of conflict of interest and
favouritism that he had been accused of in the handling of
Nairobi Chief Magistrate Court Criminal Case No. 2157 of 2003.
72. The conduct of Mr. Tobiko is made worse by the fact that the
four were represented by Mr. Tobikos personal Advocate, Hon.
Muite, who on another matter concerning Malili, was a
prosecutor appointed by Mr. Tobiko. No case of failure to have
regard to the public interest, the interests of the administration
of justice and the need to prevent and avoid abuse of the legal
process could be more clear than this one.
73. Mr. Tobikos actions also demonstrated lack of dignity for the
office of the DPP. His actions did not promote public confidence
in the dignity of the office of the DPP. Mr. Tobiko lacked
objectivity and impartiality and was influenced by nepotism,
favouritism and other improper motive in his decision.
74. Mr. Tobiko was not honest in the execution of public duties
and failed to declare and allowed his personal interests to
conflict with his public duties. The fact that Mr. Tobiko had
acted in the manner set hereinabove was correctly noted in the
media.
75. Mr. Tobiko went further to abuse the legal process and the
powers of his office. He procured the arrest and prosecution of
game rangers who had stood firm to prevent the four from
breaking into the offices of Hon. Tunai.
15

76. The charges were strangely, pressed by the Independent

Policing Oversight Authority (IPOA), which has no oversight
over game rangers. As a result, the prosecution of Mr. Tobikos
former clients for serious criminal offences was frustrated and
scuttled and in its place, innocent game rangers prosecuted
and persecuted.
77. The following documents housed in file E are produced in
evidence of the matters set out hereinabove:a.
b.
c.
d.
e.
f.
g.
h.

Charge Sheet dated the 28th day of January, 2015;

Statement of PC Norman M. Mwakawa;
Statement of CI BenardAseba;
Statement of Mr. Kantau ole Nkuruma;
Statement of Mr. Namerok ole Dikir;
Statement of CI Peterson Njiru;
Statement of PC ZaddockWafula;
Notice of Motion dated the 29 th day of January, 2015 filed in
Misc. Criminal Appln. No. 144 of 2015;
i. Corum for the 29th day of January, 2015 in Misc. Criminal
Appln. No. 144 of 2015;
j. Proceedings in Misc. Criminal Appln. No. 144 of 2015;
k. Extract from Kenya Today of the 30th day of January, 2015;
l. Extract from Standard Digital of the 30 th day of March 2015;
m.
Extract from Capital News of the 20th day of May, 2015;
n. Extract from Standard Digital of the 21 st day of May, 2015;
o. The Standard of the 22nd day of May, 2015;
p. Charge Sheet dated the 25th day of August, 2015; and,
q. Extract from The Nairobi Law Monthly of July, 2015.

16

Purple Saturn Properties Limited

78. Purple Saturn Properties Limited (Purple Saturn) is a public
limited liability company. The company is fully owned by
Kenyan citizens. All its directors are also Kenyans. Purple
Saturn is the registered owner of property Land Reference
Number 11288 (original No. 6772/3) (Property). The Property
was purchased from Kofinaf Company Limited (Kofinaf) on the
4th day of July, 2013 for Kshs.748,839,000.00 and transferred to
Purple Saturn on the 29th day of July, 2013.
79. On the 27th day of March, 2015, Purple Saturn learnt of an
attempt by Anjarwalla& Khanna Advocates (A & K) to register
certain documents to alter the shareholding and directorship of
the company. The documents were alleged to have been
executed by the directors of Purple Saturn.
80. The documents were intended to complete the fraudulent
sale of the shares in Purple Saturn and of the Property to
Daykio Plantations Limited (Daykio), a company associated
with Mr. Titus Muya of Family Bank Limited. Mr. Muyas two
children falsely presented themselves before the Registrar of
Companies on the 27th day of March, 2015 as directors of
Purple Saturn in the documents relied upon by A & K.
81. The persons behind the fraudulent attempted sale and
transfer of the shares and Property were Messrs. Robert James
Reid and Stephen Armstrong Jennings. Mr. Reid had executed
an agreement dated the 10th day of December, 2014 with
Daykio, for the sale and transfer of the shares and the Property.
82. Mr. Muya executed the agreement on behalf of Daykio. In
turn, two of Mr. Muyas children executed a charge dated the
30th day of March, 2015 over the Property, fraudulently
misrepresenting that they were directors of Purple Saturn.
83. On the 12th day of May, 2015, Messrs. Reid and Jennings filed
H.c.c.c. No. 230 of 2015 to compel the past and current
17

shareholders of Purple Saturn, their Advocates and Company

Secretary together with Mr. Nahashon Ngige Nyagah to perform
the fraudulent agreement for sale dated the 10 th day of
December, 2014.
84. The two relied upon 15 documents which they claimed the
past shareholders and directors of Purple Saturn had signed,
acknowledging a trust in favour of Mr. Reid and Jennings and
their claimed off-shore companies, over the shares in Purple
Saturn and the Property.
85. On the 14th day of May, 2015, Purple Saturn submitted the
15 documents to the DCI for forensic examination. A report
made on the 13th day of June, 2015 by the DCI confirmed that
the signatures on the 15 documents were all forgeries. On the
19th day of June, 2015, Purple Saturn lodged a criminal
complaint with the DCI against A & K, Mr. Muyas children and
Mr. Reid amongst others.
86. Forensic investigations were carried on by the DCI, this time
by another examiner, with emphasis on the documents lodged
by A & K with the Registrar of Companies on the 27 th day of
March, 2015. Two reports made in that regard on the 28 th day
of July, 2015 and on the 17 th day of September, 2015 confirmed
that the signatures were indeed forgeries.
87. Investigations concluded by the DCI disclosed several
offences against Messrs Reid, Jennings, Alexei Perelman, Simon
Kinyanjui Wamui and Ms. Margaret WanjiruMwangi.
88. Messrs. Reid and Jennings were summoned by the DCI to
record their statements in the month of July, 2015. They
refused to record statements. Instead, the two under the
representation of Messrs. Evans Monari and Ahmednasir, acting
with Messrs. Ezekiel WangaMasake (CI) and Joseph Ngisa (OC
IB) originated a complaint on the 3 rd day of August, 2015,
against the past and current shareholders and directors of
Purple Saturn, its Advocates and Mr. Nyagah. This action was
18

intended to supress the earlier complaint against Messrs. Reid,

Jennings and their accomplices.
89. The new complaint was signed by Mr. Jennings and came
ready with a purported forensic report dated the 9 th day of July,
2015 by Mr. Emmanuel Kenga, a civilian. The report purported
to contradict the two reports by the DCI dated the 13 th day of
June, 2015 and the 28th day of July, 2015 which had disclosed
criminal culpability on the part of Messrs. Reid, Jennings and
their accomplices.
90. Mr. Jennings complaint came ready with specific charges
drafted against the suspects. The DCIs role as contemplated
by Mr. Jennings was to endorse the charges for action by the
DPP. The complaint was copied to the DPP.
91. Messrs. Wanga and Ngisa hurriedly undertook their parallel
investigations, at a lightning speed, citing instructions from
above, to complete and charge the suspects by the 24 th day of
August 2015.
92. Indeed, by the 24th day of August, 2015, the two had
compiled a report to the DCI which they demanded should be
forwarded to the DPP. This action prompted the suspects in the
complaint dated the 3rd day of August, 2015 to seek legal
action to protect their threatened prosecution.
93. On the 17th day of September, 2015 Mr. Ahmednasir wrote to
the DPP, complaining about what he claimed was a delay by
the DCI to forward the file to the DPP for prosecution of the
suspects. Mr. Ahmednasir alleged that the DCI had been
compromised by Mr. Nyagah to frustrate criminal investigations
against him. Mr. Ahmednasirs letter was copied to the Cabinet
Secretary - Ministry of Interior and Coordination of National
Government, the IG, IPOA and the DCI.
94. Media reports indicated that on the 25 th day of September,
2015, the IG wrote to the DCI, requesting an update on the
complaint referred to in Mr. Ahmednasirs letter.
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95. On the 7th day of October, 2015, the DCI forwarded a report
in respect of the complaint by Mr. Jennings and the earlier one
by Purple Saturn, to the IG, notifying him that the files in
respect of the two complaints had been forwarded to the DPP
on the 25th day of September, 2015 for advice on a number of
legal issues, whose answer would enable the DCI reach a
conclusion on who was culpable.
96. Media reports indicate that the DPP did not respond to the
DCIs request and has not responded to the same to date, a
period of about 6 months.
97. In the meantime, Mr. Abdullahi embarked on an extensive
media campaign, to malign the suspects in the complaint by
Mr. Jennings, their Advocates as well as Mr. Muhoro. Mr Muhoro
was accused of shielding the suspects.
98. The campaign commenced on the 26 th day of September,
2015 with a defamatory article in the Saturday Nation titled
Muhoro accused of protecting Nyaga in Tatu City
Scandal. Mr. Ahmednasir took the smear campaign to his
magazine, The Nairobi Law Monthly of October, 2015.
99. The accusations went under the title The Curious case of
the three fraudsters of Tatu City, why exactly are
Nyagah and his lawyer Havi untouchable, even as the
DCI recommends they be charged in massive fraud
scheme?
Has their political elitism rendered them
completely immune to the rule of law? And how closely
involved are Nyagahs business partner Vimal Shah and
Steve Mwagiru.
100. Another hard hitting article was published in The Nairobi Law
Monthly of March, 2016. It was titled Ndegwa Muhoro:
Unblushing Director of Criminal Impunity. Grave
accusations of interference in the investigations were made
against Mr. Muhoro. Mr. Ahmednasir did not stop there.
20

101. On the 7th day of August, 2016, Mr. Ahmednasir wrote to the
DPP, claiming that Mr. Muhoro had been bribed and
compromised with Kshs.50,000,000.00 and an offer for 300
acres of land to interfere with the investigations.
102. Mr. Ahmednasir misrepresented that Mr. Muhoro had
commenced parallel investigations on the request of Purple
Saturn and Mr. Nyagah, to suppress Mr. Jennings complaint.
103. The truth of the matter however, was that Purple Saturn was
the first to lodge its complaint with the DCI on the 19 th day of
June, 2015, months before Mr. Jennings lodged his on the 3 rd
day of August, 2015.
104. The letter indicated that Mr. Ahmednasir was aware that
certain State Counsel in the DPPs office had finalized the
appraisal of the two files. That the appraisal had disclosed that
Messrs. Reid, Jennings and their accomplices were criminally
liable and that Mr. Nyagah and the suspects mentioned in Mr.
Jennings complaint were innocent.
105. Mr. Ahmednasir directed the DPP to order investigations
against Mr. Muhoro on the alleged complaint of bribery and
corruption.
He further directed the DPP to suspend the
appraisal by his State counsel and order fresh investigations.
106. The letter by Mr. Ahmednasir was copied to H. E., the
President, other Senior State Officers and a host of diplomats.
It was clear that Mr. Ahmednasir was drumming up support
from all corners, to change the course of the investigations and
recommendations for the prosecution of his clients Messrs.
Reid, Jennings and their accomplices.
107. Notable amongst those to whom the letter was copied was
the Secretary/Chief Executive Officer, Ethics & Anti-Corruption
Commission, Mr. Halake D. Waqo and the Chief Justice. Mr.
Ahmednasir was mobilising his cartel of impunity into action.

21

108. Mr. Tobiko responded on the 9th day of March, 2016. He told
Mr. Ahmednasir that indeed the two files are presently
before me for my personal perusal and appropriate
directions. This statement confirmed that Mr. Tobiko had
before him the appraisal by his State Counsel in the manner
stated byMr. Ahmednasir.
109. Mr. Ahmednasir was told that claims of impropriety made
against the DPPs State Counsel were without basis. Mr. Tobiko
told Mr. Ahmednasir that Further, and with tremendous
respect, it is not for you to direct this office on how it
should do its work.
110. Indeed, that was the correct position in law. However, it
would appear that this letter was meant for public relations
purposes only. Mr. Tobiko would in a few days later, do exactly
what Mr. Ahmednasir had directed.
111. In the meantime, Mr. Ahmednasir went to the media on the
7th day of March, 2016. He appeared in the K24 news cast and
repeated the spurious claims in his letter of the 7 th day of
March, 2016. On the 10th day of March, 2016, his claims were
published by the People Daily with the headline title
Ahmednasir, Muhoro clash over Ksh.50m bribe claim.
Lawyer claims top sleuth was promised 300-acre Tatu
City plot but DCI trashes allegations, says counsel has
penchant for stepping on others toes to win fame.
112. A similar claim was made in the Sunday Nation of the 13 th
day of March, 2016 with the title Greed, deceit and a web
of underhand deals, the sad story of Tatu City. Credible
informers in the media have stated that Mr. Ahmednasir
personally procured the publication of the alarming articles in
the local dailies.
113. In the midst of all this, Mr. Tobiko was engaging in another
war with Mr. Muhoro. Mr. Tobiko wrote to Mr. Waqo. In the
letter, Mr. Tobiko called Mr. Muhoro a suspect, in words not very
different from those used by Mr. Ahmednasir.
22

114. Mr. Tobiko purported to lay blame on the DCI for his (Mr.
Tobikos) failure to deal with the issues forwarded to him for
advice on the 25th day of September, 2015. The closing
paragraphs of Mr. Tobikos letter confirmed that he was acting
on the directions of Mr, Ahmednasir. He said as follows:5. As a way forward, I would suggest that this
matter be discussed in full in the next
meeting of the MAT and a team be
constituted under the MAT framework to relook at the two files.
6.

From my end, I shall appoint a new team of

prosecutors to review and re-evaluate the
files once they have been submitted.

115. With the stroke of his pen, Mr. Tobiko took the matter out of
his control and placed it upon Mr. Waqo, who is Mr.
Ahmednasirs client, for consideration. It was a replay of the
Malili case scheme.
116. Mr. Tobiko changed his mind and took a decision
diametrically opposed to what he was supposed to do and in
clear departure from his response of the 9 th day of March, 2016
to Mr. Ahmednasir.
117. It was not lost to the public as to who Mr. Tobiko was
pleasing. Mr. Ahmednasir was the first person to disclose the
existence of Mr. Tobikos letter of the 15 th day of March, 2016.
He tweeted it with the following statements in praise of Mr.
Tobiko:DPP Tobiko sets a very high standard of
transparency and accountability and I say bravo.
I strongly commend the professional manner DPP
Tobiko SC has handled my clients complaint
23

against Muhoro
ordered.

and

the

Investigation

he

118. Mr. Ahmednasir speedily ensured that the contents of Mr.

Tobikos letter and its implications were published in the Daily
Nation of the 18th day of March, 2016, with the sensational title
DCI boss on the spot over Sh5bn Tatu land.
119. On the 21st day of March, 2016, I wrote the DPP, setting out
my complaint on how Mr. Ahmednasir was interfering in the
investigations and the appraisal of the same by the DPP.
120. The letter was published in the Standard of the 22 nd day of
March, 2016. To date, the DPP has not responded to the letter
of the 21st day of March, 2016.
121. In the meantime, Mr. Ahmednasir has continued to execute a
media war which I believe is fuelled by Mr. Tobiko, to create the
erroneous impression that Mr. Muhoro has been compromised
and is behind the issues complained of in Mr. Ahmednasirs
letter of the 7th day of March, 2016.
122. The smear campaign was intensified in The Nairobi Law
Monthly of the 21st day of March, 2016, with the title Muhoro:
DPP
negligent,
to
blame
for
slow
pace
of
investigations. The entire article dwelt on the claims made
by Mr. Ahmednasir and Mr. Tobiko.
123. The delay by Mr. Tobiko to address the legal issues forwarded
to him by the DCI on the 25 th day of September, 2015 or
disclose the appraisal for prosecution of Mr. Ahmednasirs client
lying on his desk, suggests that he needed to be propped into
action, a scenario which if read together with his actions on the
15th day of March, 2016 will cause anxiety on all affected
parties and create doubt on his propriety in the handling of the
entire issue.
124. As a result of the above adverse situation, there appears to
be a breakdown of communication and breach of protocol
24

between the offices of the DPP and the DCI, occasioned and/or
engineered by Mr. Ahmednasir. The focus on the real issue has
been lost completely.
125. In the circumstances, the past and present shareholders of
Purple Saturn, their Advocates and Mr. Nyagah are the losers.
The public is also, the casualty as it is clear that Mr. Tobiko
wants to alter the course of investigations to favour the
directions of Mr. Ahmednasir. He has done so before as
demonstrated in the Malili and the Ole Ntutu cases.
126. Mr. Ahmednasirs tentacles have spread deep into the
administrative systems, a fact that could explain why Mr. Tobiko
has succumbed to his directions. This tactic is not new. Mr.
Ahmednasir has employed it many times to intimidate the
current Attorney General to succumb to his demands.
127. He has not succeeded to do so on account of the firm
professional and integrity foundations of the holder of the
office. However, similar attempts by Mr. Ahmednasir succeeded
in the removal of key officers at EACC and the protection of
some, who we have indicated above are not only beholden to
Mr. Ahmednasir but are his clients. See the extracts from The
Nairobi Law Monthly of June, 2014, April, 2015 and March, 2016
where Mr. Ahmednasir has used his magazine to execute his
devious and unlawful scheme.
128. The following documents housed in file F are produced in
evidence of the matters set out hereinabove:a. Form CR 12 dated the 18th day of May, 2016 for Purple
Saturn;
b. Agreement for sale dated the 4 th day of July, 2013 between
Kofinaf and Purple Saturn;
c. Transfer dated the 4th day of July, 2013 between Kofinaf and
Purple Saturn;
d. Extract of Grant No. I. R.19513 For property Land Reference
Number 11288 (org. No. 6772/3);
25

e. Bundle of documents lodged by A & K with the Registrar of

Companies on the 27th day of March, 2015;
f. Agreement for sale dated the 10th day of December, 2014
between Galba Mining Limited and Daykio;
g. Charge dated the 30th day of March, 2015 amongst others,
Purple Saturn and The Co-operative Bank of Kenya Limited;
h. Forensic Document Examiners Report dated the 13 th day of
June, 2015 by the DCI;
i. Letter dated the 19th day of June, 2015 from Purple Saturn to
the DCI;
j. Forensic Document Examiners Report dated the 28 th day of
July, 2015 by the DCI;
k. Forensic Document Examiners Report dated the 17 th day of
September, 2015 by the DCI;
l. Report by the DCI on the Complaint dated the 19 th day of
June, 2015 by Purple Saturn;
m.
Letter dated the 3rd day of August, 2015 by Mr. Jennings
to the DCI and copied to the DPP;
n. Report dated the 24th day of August, 2015 by Mr. Ngisa;
o. Letter dated the 17th day of September, 2015 by Mr.
Ahmednasir to Mr. Tobiko;
p. Letter dated the 25th day of September, 2015 by the IG to
the DPP;
q. Extract from Saturday Nation of the 26 th day of September,
2015;
r. Form CR 12 dated the 30th day of March, 2016 for Al-Nur
Media Africa Limited;
s. Extract from The Nairobi Law Monthly of October, 2015;
t. Extract from The Nairobi Law Monthly of March, 2015;
u. Letter dated the 7th day of March, 2016 from Mr. Ahmednasir
to Mr. Tobiko;
v. Letter dated the 9th day of March, 2016 from Mr. Tobiko to Mr.
Ahmednasir;
w. Extract from People Daily of the 10th day of March, 2016;
x. Extract from the Saturday Nation of the 13 th day of March,
2016;
y. Letter dated the 15th day of March, 2016 from Mr. Tobiko to
Mr. Halake D. Waqo;
z. Tweets by Mr. Ahmednasir;
26

aa.
Extract from the Daily Nation of the 18 th day of March,
2016;
bb.
Letter dated the 21st day of March, 2016 from Mr.
Nelson Havi to the DPP;
cc.
Extract from the Standard of the 22nd day of March,
2016;
dd.
Extract from The Nairobi Law Monthly of the 21 st day of
March, 2016; and,
ee.
Extract from the People Daily of the 1 st day of April,
2016.
Conclusion
129. It is my humble submission that Mr. Tobikos handling of the
three matters amongst many, demonstrates gross misconduct
or misbehaviour on his part.
130. Mr. Tobiko has proved beyond reasonable doubt that his
behaviour, on the four issues for which he ought to have been
investigated on prior to approval, has not changed. He has, to
say the least, seriously deteriorated from the suspect position
he was in, in June, 2011 when he was appointed DPP.
131. I request that you consider and find meritorious this Petition
and recommend to H. E., the President, the suspension of Mr.
Tobiko from the office of DPP and the formation of a Tribunal for
his removal.
132. I swear this Affidavit in support of the Petition and Notice of
Motion and pray that the orders sought therein be granted.
133. What is deponed to hereinabove is true and correct to the
best of my knowledge and belief save as to matters deponed to
on information sources whereof have been disclosed and
matters deponed to on belief whereupon grounds have been
given.
SWORN by the said NELSON HAVI
)
27

at Nairobi this 5thday of April, 2016

BEFORE ME
)
)
)
COMMISSIONER FOR OATHS )

)
)

DRAWN & FILED BY:HAVI & COMPANY

ADVOCATES
PARK OFFICE SUITES, 3RD FLOOR, SUITE NO. 4
PARKLANDS ROAD, OPP. PARKLANDS POST OFFICE
P.O. BOX 38422-00623
NAIROBI
(REF: HA/MS/007/016)
TEL. NO: +254 20 2416057
EMAIL: nhavi@haviandcompany.com

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TO BE SERVED UPON:PUBLIC SERVICE COMMISSION

HARAMBEE HOUSE
HARAMBEE AVENUE
P.O. BOX 30095-00100
NAIROBI
KERIAKO TOBIKO
C/O NSSF BUILDING
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P.O. BOX 30701-00100
NAIROBI

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