The victims of the Solai Dam tragedy are aggrieved by the decision of  Hon Magistrate K. Bidali in Naivasha Law Court to set free Mr Perry Mansukush and 9[1] Others on grounds that:

  1. The victims were not given an opportunity to present their case despite having requested the court.
  2. The matter has not been heard and conclusively determined.

Following the Solai Dam tragedy on Wednesday 9th May 2018 which caused the loss of lives, massive destruction of property and unprecedented displacement of people. The owner of the Dam Mr Perry Mansukush Kansangara (popularly known as Patel) and other government officials[2] were charged in the Naivasha Court on 5th July 2018 with the offense of manslaughter and neglect of official duty.

The matter had been set down for hearing but the DPP applied for an adjournment because there was a proposal in place and discussion on a plea bargaining which had been presented in court. Similarly the Kenya Human Rights Commission had filed an application on 4th November 2019 to represent the Victims under the Victims Protection Act. The Naivasha Court was supposed to give a ruling on the application on 3rd February 2020 before the matter could proceed for hearing. Similarly, there was an application by Mr Onyango from the firm of McKevron Advocates which was also to be determined by the court on the same day.

Surprisingly when the victims attended court on 3rd February 2020, the Hon Magistrate Mr K. Bidali issued a Ruling setting free Mr Perry Mansukush and 9 others under section 210 of the Criminal Procedure Code on account of what he termed as delays by the prosecution. Section 210 of the Criminal Procedure Code provides that an accused person can be acquitted where there is no case to answer. In the instant case, the hearing had not started and the victims had not presented their witnesses. Thus the ground given by the magistrate was illegal, illogical, grossly misconstrued and calculated to deny the victims their right to access justice guaranteed under section 48 of the Constitution.

The victims are aggrieved by this ruling and find that there has been a blatant miscourage of justice because they have not been allowed and given adequate opportunity to present their case yet this matter touches on the right and interests of a whole community that has been adversely affected by the tragedy that occurred on Wednesday 9th May 2018.

The victims position is that the Constitution provides for the right to a fair hearing. This right requires that in administering justice fairness is seen in both the procedure and outcome. To ensure fairness in procedure and outcome, the deciding authority must give the people before him the opportunity to prepare and present evidence and to respond to arguments presented before reaching a conclusion. This was not the case in this matter.

As such, the victims through the Kenya Human Rights Commission will:

  1. File an application for Revision of the decision to set Mr Perry Mansukush and 9[3] Others free in the High Court.
  2. The Victims shall also lodge a complaint against the Magistrate before the Judicial Service Commission.

 

Signed By:                                                                             Signed By

Stephen Kuria                                                                       George Kegoro

Representative of the Victims                                             Kenya Human Rights Commission

 

Signed By:                                                                             Signed By:

Robert Njenga                                                                       Joseph Omondi

Freedom of Information Network                                     MidRift HURINET

 


[1] Vinoj Jaya Kumar; Winnie Muthoni Mutisya; Tomkin Odo Odhiambo; Jacinta Were; Willei Omondi Were; Lynette Jepchirchir Cheruiyot; Johnson Kamau Njuguna; Julius Kavita

[2] Ibid

[3] Vinoj Jaya Kumar; Winnie Muthoni Mutisya; Tomkin Odo Odhiambo; Jacinta Were; Willei Omondi Were; Lynette Jepchirchir Cheruiyot; Johnson Kamau Njuguna; Julius Kavita