DETAILS ON THE REMOVAL OF AGNES KAGURE KARIUKI FROM LIST OF CANDIDATES FOR OFFICE OF DEPUTY GOVERNOR, NAIROBI CITY COUNTY.
On Wednesday 22nd August, 2018 Nairobi Governor Mike Sonko announced he had narrowed to four women hopefuls to fill the post of his Deputy Governor. Governor Sonko remains committed to give women leadership a chance in the city by appointing a qualified and competent Lady Deputy Governor.
Even after naming the four contenders as Agnes Kagure, Bishop Margaret Wanjiru, Karen Nyamu and Jane Weru, Governor Sonko made it clear that he was going to hold serious consultations on the four before settling on the final candidate to avoid the County Assembly rejecting his next nominee again.
As per article 174 of the Constitution, promotion of democratic and accountable exercise of power is the top object of devolution. In this regard, those elected or appointed to devolved offices like Deputy Governor must have the capacity, integrity and character to guarantee accountable exercise of power.
At the same time, Article 181 provides that a Governor (and/or Deputy Governor) may be removed, among others, for gross violation of the Constitution or any other law, if there are serious reasons for believing the Governor (or DG) has committed a crime or for abuse of office or gross misconduct.
As promised, after the disclosure of the names of the four possible candidates for Nairobi Deputy Governor, Governor Sonko has continued to engage in rigorous consultations to ascertain their suitability for the job or otherwise. In fact, the consultations and due diligence are still ongoing.
However, even at this early stage, the Governor has come to the considered conviction and conclusion that one Agnes Kagure Kariuki is not fit for nomination to the esteemed office of the Deputy Governor of Nairobi County or at least her nomination may drag the County into unnecessary controversy.
This conclusion has been informed by preliminary review of Agnes Kagureâ€™s education credentials, her litigation history and the various outstanding allegations against her in the public domain. First is the matter of the authenticity of Agnes Kagureâ€™s undergraduate degree.
There have been numerous allegations made in mainstream and social media that Kagure does not have a valid degree, a compulsory requirement for nomination to the office of Deputy Governor. It has also been alleged that the degree certificate Kagure claims to have from Thailand was obtained by forgery.
The Constitution above stated that â€śserious reasons for believing one has committed a crimeâ€ť are a ground for impeachment meaning the crime need not have been proven or conviction obtained to suffice. Agnes Kagure has not effectively cleared the air as to the authenticity of her academic degree.
In addition to that, serious land grabbing allegations have been leveled against Agnes Kagure especially in pending cases against her which although civil in nature involve allegations of fraud and forgery on her part. Nairobi County Government remains committed to walk the talk against land grabbing by all.
Even as Kagure is entitled to presumption of innocence until proven guilty, Chapter 6 of the Constitution places a higher threshold on who qualifies for appointment to public office. Article 73(2) requires nominees to state office be selected â€śon the basis of personal integrity, competence and suitabilityâ€ť
Further, under Article 75 a State Officer (or nominee) ought to behave in public and official life, in private life, or in association with other persons, in a manner that avoids (a) any conflict between personal interests and public or official duties; (b) compromising any public or official interest in favour of a personal interest; or (c) demeaning the office the officer holds.
Clearly, these provisions of the Constitution which guide the standard of integrity of state officers do not envisage nomination or appointment of a person who has the potential for conflict of interest or to compromise their official interests in favour of personal interests or to demean their office.
In turn, the appointing authority is enjoined to exercise caution to nominate only the candidate(s) whose current and past interests may not conflict with his/her office or tend to demean the state office s/he is nominated to hold.
In the case of Agnes Kagure, there is a current case pending in court which the Environment and Land Court has found there is a prima facie case and issued an injunction against her as defendant in favour of the Plaintiff who has sued her alongside Nairobi City County.
The case involves a plot in Nairobiâ€™s Umoja Inner Core known as Nairobi Block 83/1903 which one Joel Munene claims to be the legal owner having bought it from one Erastus Nyaga Timothy; who bought it from the original owner known as Silas Mugo Kithenji.
At the same time, Kagure has sworn an affidavit dated 31/7/2017 where she claims that she bought plot number A28-Umoja Innercore Section III from Joseph Chege Muturi on 15/9/2016. She says that she was issued a certificate of lease over this parcel of land.
However, Mr. Karisa Iha, former Director of Legal Affairs at the Nairobi City County Government has sworn an affidavit dated 6/4/2017 on behalf of the Nairobi County Government who are defendants in the case affirming that Joel Munene is the registered owner according to the county records.
Justice K. Bor ruling on application for injunction in the case Joel Munyoki Munene vs. Agnes Kagure Kariuki, Environment and Land Court at Nairobi Case No. 65 of 2017 on 5th December, 2017 found thus:
â€śThe Court has looked at the lease annexed by the Agnes Kariuki Kagure (1st Defendant) to her replying affidavit which is shown to have been executed by the mayor and town clerk in November, 2016. By that date the City Council of Nairobi had ceased to exist by operation of law after the county Governments came into being following the promulgation of the 2010 Constitution.â€ť
The ruling continues â€śThe question as to how the 1st Defendant acquired the Suit Property will have to be determined at the full trial. The court is satisfied that the Plaintiff has demonstrated that he has a prima facie case against the 1st Defendant.
Even as the matter is sub judice, it suffices to note that the nature of allegations against Agnes Kagure in that case and on whose basis the Environment and Land Court gave an injunction against her are weighty and would be ground for impeachment if she were already Nairobi Deputy Governor.
Joel Munyoki Munene is a Nairobi Resident who deserves an equal playing ground in seeking justice for his claim in court. Nominating Agnes Kagure as Deputy Governor of Nairobi County both of whom Mr. Munene has sued and proved a prima facie in effort to recover his land would be mockery of justice.
In addition, Agnes Kagure has also been accused of owning a Karen land illegally in another pending case where the owners claim she acquired it with forged papers. However, according to Ms. Kagure, she bought the land in question from the late Roger Bryan Robson for Sh100 million in November 2011.
The property in question is a 5.2-acre property on Ushirika Road, Karen. In March 2011, Leonard Omwenga, Meshack Masese and Sammy Lotasa went to court to claim the said land, alleging they had lived on it since 1995. They alleged Robson had left the country that year and never returned.
After that attempt failed, two other claimants, Martin Waluchio and Friedrich Pietz, lodged their own claim. Pietz claimed he bought the land in 1994 for Sh30 million. They could not explain why they had waited 12 years to transfer the land. Their claim was dismissed.
Agnes Kagure too laid claim on the land saying she bought it from Robson for Sh100 million in 2011. She alleges that she paid in cash which would be a clear contravention of Central Bank of Kenya regulations that demand that any transaction above Sh1 million must be paid through a bank transfer.
There are allegations that Agnes Kagure currently occupies the said property in violation of a court order dated July 2015 for maintenance of the status quo, pending the hearing and determination of the case. It is even alleged she has built a perimeter wall and some structures.
Although Agnes claims to have bought the property on November 18, 2011 the transfer was not effected until November 6, 2014, a whole three years later. The conveyance agreement, drawn in 2011, was not stamped until 2014 and there are no records for the payment of stamp duty.
According to Activist Boniface Mwangi in a widely circulated social media post, a â€śtransferâ€ť of the property could also not have been effected in favour of Agnes Kagure for the land because the title deed to the property was still charged to Habib Bank for a loan of an unspecified amount issued to Robson.
Further, Mr. Mwangi alleges that the KRA PIN number that Agnes used in the sale agreement doesnâ€™t exist and a search with the Kenya Revenue Authority database drew a blank. This raises the question whether Agnes Kagure paid stamp duty for the transfer of the property.
Further, Mr. Mwangi states that Mr. Robsonâ€™s alleged photo, used in the alleged sale agreement is likely a fake because while at the time of the alleged purchase Robson was 68 years old, the picture on file is that of an unidentified young white man.
In spite of the gravity of the Mr. Boniface Mwangiâ€™s allegations against Agnes Kagure detailed above, she has neither sued him for defamation nor sought the assistance of social media platforms for retraction. Kagure has also not offered alternative facts since the dossier was published in May 2018.
As such, given the information is in the public domain, it cannot be ignored in gauging the personal integrity and suitability of Agnes Kagure for nomination to the esteemed office of Deputy Governor of Nairobi City County.
Although these are mere allegations yet to be proven in a court of law, recent events point to the need to leave no stone unturned in determining the suitability of any individual for nomination to public office. The pending prosecution of Deputy Chief Justice Philomena Mwilu comes to mind.
There is need to ensure the next nominee to the office of Deputy Governor of Nairobi City County is above reproach and will not face embarrassing challenges on her integrity, character and suitability especially during vetting at the County Assembly as may result in recall or refusal of her name.
Thus, upon considering the above facts and in particular:-
(i) The numerous unanswered questions raised as to the validity of Agnes Kagureâ€™s degree and allegations of forgery surrounding the same;
(ii) The case in court against her filed by one Joel Munene which has potential for conflict of interest and where she has sworn an affidavit claiming to have a title for land signed by mayor and town clerk in November, 2016;
(iii) The Nairobi County Government which is also a defendant in the Joel Munene case has filed documents conflicting with allegations of Agnes Kagure as to ownership of contested land;
(iv) The allegations that she bought land in November 2011 and paid in cash against Central Bank Regulations that any payments above Ksh. 1 Million be done by bank transfer; and
(v) The allegations that she used a non-existent KRA PIN number in the sale agreement and thus may possibly have evaded paying stamp duty;
It is clear beyond doubt that Agnes Kagure Kariuki falls short of the threshold established under the Constitution for nomination or appointment to hold a public office until she clears her name of the allegations leveled against her which may have to await the determination of the cases pending in court.
In view of that, the best cause of action is to drop the name of Agnes Kagure Kariuki from the list of the potential nominees for Office of Nairobi City County Deputy Governor to avoid potential of conflict of interest or demeaning the office or challenges as to her personal integrity, competence and suitability.
In effect, the name of Agnes Kagure Kariuki is dropped from the list of the candidates for Nairobi Deputy Governor. At the same time, consultations continue as to whom amongst the remaining three candidates, namely, Bishop Margaret Wanjiru, Karen Nyamu and Jane Weru is the best fit for the office.
The Governor urges Nairobi City County Residents to continue being patient even as he consults on who is the best candidate to help implement the mandate to fix Nairobi. H.E. the Governor remains committed to assuring best service delivery to all Nairobi Residents at all cost!