Allowances earned 22 years ago haunt ODM elections chair
ODM elections board chairperson Catherine Mumma. A court blocked her from filing a witness statement in a case involving recovery of Sh903,000 by EACC.
ODM nominated Senator Catherine Mumma has failed in her bid to set aside a magistrate court’s decision to lock out her defence statement in a recovery case pitting her against the anti-corruption watchdog over alleged unjust allowances earned 22 years ago.
The Senator wanted the High Court to reverse a ruling in which a magistrate blocked her from filing a witness statement in the case that involves recovery of Sh903,000 by the Ethics and Anti-Corruption Commission (EACC).
The commission sued Ms Mumma in 2005 seeking to recover the amount on the grounds that she was overpaid allowances while serving as a member of the National Aids Control Council task force in 2001. At the time, Ms Mumma was working as a lawyer.
In a suit filed at the Milimani Commercial Courts by the defunct Kenya Anti-Corruption Commission, it was alleged that Ms Mumma was among persons tasked in 2001 with developing policies and guidelines on HIV/Aids prevention and control.
The anti-graft commission claimed that Ms Mumma was entitled to Sh357,000 from the Directorate of Personnel Management (DPM), but in breach of the DPM’s directive, she allegedly received a further Sh903,000.
But Ms Mumma denied the claims and argued that the payment was approved by DPM.
After the commencement of the case, the trial court granted Ms Mumma time to file her witness statement but she failed to do so.
She later sought to have her late defence statement admitted in court but the trial magistrate on February 15, 2015 prohibited her for being late.
On September 15, 2020 the court gave the directions declining to set aside the orders, which locked out Ms Mumma’s witness statement.
Aggrieved by the decision, Ms Mumma filed an appeal at the High Court where she argued that the magistrate subjected her to injustice and subverted her right to a fair hearing.
She also stated that the magistrate erred in holding that EACC will be prejudiced by the filing of the statement after it had closed its case, and disregarding the fact that the commission had a right to recall any witness to address any issues arising from the said statement.
“The trial magistrate erred in law by failing to properly evaluate the witness statement and establishing its relevance to the suit and the appellant’s defence already on record,” she said.
But Justice Asenath Ongeri has dismissed the appeal and said that there was an inordinate delay by Ms Mumma in seeking to review and set aside the magistrate’s orders.
"Ms Mumma had been granted an extension of time on December 11, 2014 but did not file any statement until May 15, 2018 when the trial court refused to extend time. Equity does not assist the indolent but comes to the aid of the vigilante," Justice Ongeri stated.
The judge also found that at the time Ms Mumma was seeking to set aside and review the orders of the trial court, EACC had testified and closed its case.
"Ms Mumma did not make an attempt to seek to set aside the magistrate's order before the close of the EACC case. I agree with the trial court that EACC would not be in a position to cross-examine her on the issues raised in the statements. Setting aside the ruling would occasion injustice to the Commission," the Judge ruled.
She also found that the appeal by Ms Mumma was not properly filed before the High Court because she did not seek authority to file the same.
"There is nothing on record to show that she sought leave to appeal the ruling delivered on September 15, 2020. The record shows that she was not in court when the ruling was delivered,” said the judge.
“I therefore find that the appeal is incompetent and l accordingly dismiss it with cost to the EACC,” Justice Ongeri.
The judge directed the file be taken back to the trial court for the hearing to proceed.
For its part, the commission opposed the appeal and said that having delayed for five years Ms Mumma was guilty of laches and the court of equity cannot aid her.
“It is apparent that Ms Mumma by her conduct waived her right to file any witness statement or documents. She was guilty of inordinate delay in bringing the application and in the interest of justice, cases should be concluded without unreasonable delay," EACC said.
It added that failure to comply with pre-trial orders could not be attributed to the alleged long absence of Ms Mumma because she was not permanently out of Kenya.
