The High Court has dismissed a request made by Attorney-General Kihara Kariuki to review and set aside the four-month imprisonment of Directorate of Criminal Investigations (DCI) boss George Kinoti for contempt.
While issuing the decision, Justice Anthony Mrima said there is no new or compelling evidence to allow the application, meaning the warrant of arrest issued against Mr Kinoti on November 18 remains in force.
"Review entails court making a departure on the earlier issue. The applicant relied on issue of discovery of new evidence that was not availed to the trial court and would have led court to reach a different finding," said the judge.
Mr Kinoti was sentenced for disobedience of orders dated June 21, 2019 to release seven firearms and ammunition belonging to businessman Jimi Wanjigi. The weapons were confiscated by police following a raid at his homes in 2017.
The said new evidence that the AG contended, but which was not availed to court, was that the firearms were not in the custody of the DCI but the Firearms Licensing Board, an autonomous state body that deals with guns held by civilians.
But Justice Mrima ruled that the trial court's judgment dealt with the issue concerning custody of the firearms and it had been found they were in custody of the DCI.
"The applicant has not tendered evidence to show the firearms were moved from the DCI to the Board. The trial court's judgment has not been set aside, appealed or reviewed. The issue (of who has the firearms) is res judicata (the issues raised were determined in another case by the court)," said Justice Mrima.
On the AG's argument that Wanjigi cannot be authorised to own guns because his firearm licence was revoked by the board in 2018, the judge found that the board's decision was quashed by the court in a Judicial Review case.
He stated that there was neither new evidence on the revocation nor an appeal to the court's decision.
Further, on the AG's argument that Wanjigi's guns are in the custody of the board and not the DCI, Justice Mrima said there was no evidence on how they were moved.
The court also rejected the AG's argument that the review application was filed on time.
Justice Mrima found that Kinoti was cited in contempt on February while the sentencing was done in November, this year. He thus questioned the nine-month delay.
"I'm not sure the application would have been filed if not for the sentencing. The applicant did not even explain the delay at all," said the judge.
Immediately after the ruling, the AG through private lawyer Cecil Miller informed court that they have managed to get a letter from the Firearms Board asking Wanjigi to collect his weapons.
The letter is dated November 26, 2021 and is signed by board chairman Daniel Semei. Lawyer Miller said the letter was the missing link on the contention that the weapons are not in possession of Kinoti