Court bars Orengo from representing ex-KPA MD Manduku

The High Court has barred Siaya Senator James Orengo from representing former Kenya Ports Authority managing director Dr Daniel Manduku on account of conflict of interest.

Justice Eric Ogola court ruled that there exists a perception of conflict of interest in Senior Counsel Orengo, as a state officer, representing Dr Manduku.

The decision is likely to lock out Members of Parliament, who are lawyers, from representing public officers who have been charged with corruption.

“State officers must avoid conflict of interest and appearance of the same,” said Justice Ogola who noted that state officers (MPs) oversight public officers.

The ruling by Justice Ogola followed an application by the Director of Public Prosecutions seeking to bar Senior Counsel Orengo --or any other state officer-- from representing Dr Manduku in his (Dr Manduku’s) petition.

In his petition, Dr Manduku seeks to stop the DPP from instituting any charges against him based on an investigations report and recommendations of the Directorate of Criminal Investigations.

Justice Ogola said that if Dr Manduku is summoned by the Senate, Senior Counsel Orengo will be present as a senator and even if he recuses himself, a perception of conflict of interest would have been created.

“The petitioner (Dr Manduku) is at liberty to engage services of another advocate other than Senior Counsel Orengo,” ruled Justice Ogola.

Justice Ogola also noted should the senate summon Dr Manduku, Senior Counsel Orengo will be sitting as a decision-maker (in the Senate) and a lawyer in the same case.

Entitled to an advocate

The court said that the application by the DPP was not speculative and that Dr Manduku is entitled to an advocate of his choice and that there is no derogation to the right but public interest outweighs it.

“Dr Manduku has no right to be represented by a person who can summon him in Parliament,” ruled Justice Ogola.

He added that state officers who are lawyers ought to operate within the law and the constitution.

In his application, the DPP wanted the court to find that the continued appearance of Senior Counsel Orengo or any other state officer in the petition by Dr Manduku is against the letter and spirit of Chapter Six of the Constitution.

Senior Assistant DPP Alexander Muteti also wanted an order issued to Dr Manduku to engage any other lawyer who is not a state officer to represent him.

Mr Muteti argued that Mr Orengo is the elected Senator for Siaya County thus a full-time state officer who is required in law not to engage in any other gainful employment.

“Though the respondent (Senior Counsel Orengo) is entitled to practise law, such practice should not conflict with the public interest that he is under duty to protect,” argued Mr Muteti.

Mr Muteti added that Dr Manduku, who was the MD of a state corporation funded by the taxpayer, was accountable to the public in a manner he deployed and utilised public funds thus he was answerable to parliamentary committees that oversight public accounts and investments.

Oversight of state officers 

He further argued Mr Orengo holds the office of the Leader of Minority in the Senate and under the constitution, the Senate participates in the oversight of state officers by considering and determining any resolution to remove the President or the Deputy President.

“The executive branch of government to which KPA falls is thus over-sighted by both Houses of Parliament,” argued Mr Muteti who prosecuted the application alongside Prosecution Counsel Chrissy Mwenda.

In an affidavit to support the application, Prosecution Counsel Wakio Mwamburi said it cannot be that Members of Parliament appear in courts to stop lawful processes of investigations and prosecutions in the interest of their clients while sacrificing public interest.

But lawyer Orengo, in his replying affidavit, said that the Advocates Act, the Law Society of Kenya Act together with rules and regulations, guide the practice of law in the country and have not barred a sitting MP, who is also an advocate, from practising law.

“I represent the first interested party (Dr Manduku) in my capacity as an advocate and an officer of this court in accordance with section 55 of the Advocates Act,” argued Senior Counsel Orengo.

He argued that the application by the DPP was driven by ulterior motives as it had not demonstrated how his representation of Dr Manduku is in conflict of interest with his role as a senator.

Mr Orengo further said that he had not participated in any parliamentary debate or parliamentary committee proceedings concerning Dr Manduku.

He argued that the DPP sought to bar his representation of Dr Manduku based on his status as a legislator, which is in contravention of Article 27 of the constitution that prohibits discrimination on any ground.

The petition will be mentioned on May 11.

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